ISSUED: February 7, 1992
I. Purpose
This Temporary Instruction (TI) sets forth instructions for implementing
the February 20, 1990 decision of the United States Supreme Court in
Sullivan v. Zebley, 110 S. Ct. 885 (1990), which
affirmed the August 10, 1988 decision of the United States Court of
Appeals for the Third Circuit in Zebley by Zebley v.
Bowen, 855 F.2d 67 (3d Cir. 1988). The Third Circuit's
decision had declared the Secretary's existing regulations governing the
adjudication of childhood disability claims under title XVI of the Social
Security Act (Supplemental Security Income (SSI)) invalid as a basis for
denying such claims.
The court-ordered class relief in this case is nationwide in scope. All
OHA adjudicators must follow the instructions in this TI.
II. Background
On July 12, 1983, plaintiffs filed a class action complaint challenging
the Secretary's listings-only policy of evaluating disability in SSI child
claims. On July 16, 1986, the U.S. District Court for the Eastern District
of Pennsylvania granted, in part, the Secretary's motion for summary
judgment and dismissed the class complaint. The plaintiffs appealed to the
U.S. Court of Appeals for the Third Circuit which, on August 10, 1988,
vacated the district court's dismissal of the class complaint and remanded
the case to the district court.
In so doing, the Third Circuit found the Secretary's regulatory
interpretation of the statute's “comparable severity”
standard to be too restrictive and preclusive of an individualized
assessment of a child's functional impairment. The Third Circuit
instructed the district court to enter summary judgment in favor of the
plaintiff class. On February 15, 1989, the Secretary filed his petition
for a writ of certiorari.
Following oral argument on November 28, 1989, the Supreme Court, on
February 20, 1990, issued its decision (see
Social Security Ruling
91-7c). By a 7 to 2 margin, the Supreme Court found the Secretary's
listings-only methodology for determining disability in SSI child claims
inconsistent with the statutory standard of “comparable
severity” set forth in §
1614(a)(3)(A) of
the Social Security Act. The Court invalidated the Secretary's regulations
and rulings to the extent that they did not provide SSI child claimants
with an individualized functional assessment similar to the functional
analysis required in most adult disability claims. The Court concluded
that the Secretary could determine the effect of an impairment(s) on a
child's ability to perform age-appropriate activities in much the same way
that he determines the effect of an impairment(s) on an adult's ability to
work.
On May 3, 1990, the U.S. District Court for the Eastern District of
Pennsylvania entered a Stipulation and Order approving an “interim
standard” negotiated by the parties for use in adjudicating pending
claims until the new SSI childhood disability regulations were published.
Provisions of the Stipulation and Order provided for appeal of an adverse
initial “interim standard” determination to the
reconsideration level only. The Stipulation and Order also provided for
automatic review of all cases denied under the interim standard upon
publication of the new childhood disability regulations.
On February 11, 1991, following a series of meetings with childhood
disability experts, the Secretary published his new SSI childhood
disability regulations in the Federal Register as a final rule with an
opportunity for public comment following publication. The Secretary
subsequently extended the normal 60-day public comment period to July 8,
1991. The Secretary may, if he deems appropriate, revise the new
regulations in response to public comment.
On March 14, 1991, the U.S. District Court for the Eastern District of
Pennsylvania entered a second Stipulation and Order, also negotiated by
the parties, setting the terms for implementation of class relief
(Attachment 1). The March 14, 1991 Stipulation and Order directed the
Secretary to make all good faith efforts to publish any necessary revision
to the new regulations within fourteen months of the close of the public
comment period.
III. Guiding Principles
The regulations published on February 11, 1991, set forth the new standard
for evaluating disability in SSI child claims. The March 14, 1991
Stipulation and Order sets forth detailed provisions for implementation of
class relief. The pertinent elements are summarized below:
•
The Secretary is enjoined from denying or terminating SSI childhood
disability benefits under the regulations invalidated by the Supreme
Court, i.e., 20 CFR
§§ 416.924 and
416.994(c), or
any preexisting instructions, including Social Security Rulings and other
administrative guidance, reflecting the invalidated standard. (On April
25, 1990, the Secretary rescinded
Social Security Ruling
83-19.)
•
The Secretary shall evaluate all SSI childhood disability claims pursuant
to the provisions of the new childhood disability regulations published on
February 11, 1991.
•
The Secretary shall make special efforts to assist children, and their
caregivers, in documenting eligibility, and attempt to work with the
child, the extended family, foster parents, child welfare agencies and
others to obtain evidence needed for readjudication. In cases of
non-cooperation, the Secretary shall make special efforts to locate an
adult responsible for the child's care, and shall not terminate or deny a
childhood disability claim until a personal contact with the family or
custodian has been attempted.
•
For disability evaluation purposes, an
“adult” is a person who is age 18 or older, and a
“child” is a person who has not attained age 18
(20 CFR §
416.902).
•
The type of determination is a full reopening of all prior applications
denied or ceased within the court-ordered timeframes.
•
The disability evaluation standard reflected in the new regulations
published February 11, 1991, should be used for all SSI disability
claimants under age 18 regardless of marital status or claim type. The
child definition provisions of
20 CFR §§
416.1802(c) and
416.1856 apply
only with respect to non-medical issues of eligibility.
•
OHA personnel should be alert to the situation where a claimant under the
age of 18 had his or her disability evaluated under the regular adult
standard. This would most frequently occur when the claimant is married
and files as a disabled individual. Under the new regulations, a person
who has not attained age 18 is a “child” for
disability evaluation purposes, and his
or her claim for disability should be evaluated under the
“child” standard
(20 CFR §
416.902).
•
All SSI childhood disability cases, regardless of the level at which the
case was previously denied or ceased under the old regulations or the
interim standard will be processed under the new regulations as initial
level determinations with full appeal rights.
IV. Definition of Class
The class definition as reflected by the March 14, 1991 Stipulation and
Order consists of:
all individuals whose applications for SSI childhood disability payments
were denied in whole or in part or whose SSI childhood disability payments
were terminated on medical grounds on or after January 1, 1980 until the
date of publication of the new childhood disability regulations, February
11, 1991. An individual is also a member of the class by reason of a
denial after January 1, 1980 of a request to reopen a determination or
decision denying a claim for SSI childhood disability payments, if such
request to reopen was pending on January 1, 1980.
For purposes of implementing the March 14, 1991 Stipulation and Order, the
nationwide class consists of all individuals:
•
who filed for or received title XVI childhood disability benefits,
and
•
whose SSI childhood disability claims were denied, in whole or in part, or
whose benefits were terminated based on medical grounds from January 1,
1980, through February 11, 1991, or
•
who had pending on January 1, 1980, a request to reopen a determination or
decision denying a claim for SSI childhood disability benefits, and had
that request to reopen denied, or
•
whose SSI childhood disability claims were denied, in whole or in part, or
whose benefits were terminated, and a federal court issued a final
judgment after January 1, 1980 affirming the Secretary's denial or
termination on medical grounds.
The class is divided into three subclasses denominated as follows:
•
Subclass A comprises individuals whose claims for SSI childhood disability
benefits were denied, in whole or in part, or whose benefits were
terminated from January 1, 1980 through May 12, 1983;
•
Subclass B comprises individuals whose claims for SSI childhood disability
benefits were denied, in whole or in part, or whose benefits were
terminated from May 13, 1983 through February 27, 1990 (On February 27,
SSA instructed all adjudicating components to stop denying or terminating
SSI child's disability claims); and
•
Subclass C comprises individuals whose claims for SSI childhood disability
benefits were denied, in whole or in part, or whose benefits were
terminated under the interim standard pursuant to the May 3, 1990
Stipulation and Order.
•
Membership in another class does not preclude membership in the
Zebley class.
•
A federal court affirmation of an administrative determination rendered
during the time period at issue in this class action will not affect a
class member's right to relief under the March 14 Stipulation and
Order.
V. Determination of Class Membership and Preadjudication
Actions
A. Notice to Potential Class Members
Based on the foregoing class definition, SSA Central Office has identified
potential class members by computer run. SSA has mailed notices to
potential class members in subclasses A and B only.
Pursuant to the provisions of ¶ 4 of the district court's May 3, 1990
Stipulation and Order, individuals in subclass C will have their claims
automatically readjudicated by virtue of a denial under the interim
standard. They were previously advised that their claims would be returned
to the servicing field office (district office or branch office) and
readjudicated by DDS under the new regulations.
The notices to potential class members in subclasses A and B were mailed
from July 10 through 12, 1991. A second mailing to 6,700 potential class
members was done on August 5, 1991. Potential class members have 120 days
from the date of receipt of the notice to request a
Zebley class membership determination and review by
returning a reply form provided for this purpose. Newly located class
members will be sent another class notice and will be given 120 days from
receipt of the second notice within which to respond.
Individuals who are not identified by SSA but claim
Zebley class membership, should complete a
“Statement of Claimant,” Form SSA-795, containing information
about past claim filings. This form should be forwarded to:
Office of Disability and International Operations
ATTN:
Zebley Coordinator
P.O. Box 17369
Baltimore, MD
21241
SSA Central Office will coordinate further efforts, as necessary, to
locate the “nonresponders and undeliverables.” (See ¶
VI.D. of the March 14, 1991 Stipulation and Order (Attachment 1) for
further information regarding “nonresponders and
undeliverables.”)
The Office of Disability and International Operations (ODIO) is primarily
responsible for screening. SSA Central Office will generate potential
class membership “alerts” in the order in which reply forms
are received by ODIO. ODIO will screen all class notice responses and Form
SSA-795s from walk-ins, e.g. self-identified potential class members. ODIO
will complete a screening sheet (Attachment 2) to be retained in the file
for all walk-ins and for all screened out cases. ODIO will mail notices of
non-class membership to claimants, representatives and class counsel, as
appropriate.
Special alerts will be generated for untimely replies. “Good
cause” for missing the 120-day response deadline may be established
pursuant to 20 CFR
§ 416.1411 as provided for in ¶ VI.A. of the March 14,
1991 Stipulation and Order. ODIO will forward the alert to the servicing
field office to develop “good cause” for late filing.
Although ODIO has initial responsibility for screening and sending
non-class member notices, the servicing field office will review the
available information upon receipt of class member packages and verify
that the individual is a class member. If the field office determines that
the claimant is not a class member, it will send a non-class membership
notice. (No further notice will be sent to individuals screened in as
class members.)
C. Post-Screening Actions
1.
Claims Determined Not to be Class Members
SSA Central Office, ODIO, or in rare instances a field office, will mail
notice of non-class membership to the individual, representative, if any,
and class counsel. The notice of non-class membership explains the
individual's options in case of disagreement (Attachment 3). An individual
who has been determined “not a class member” may, within 60
days after receiving notice, request, either directly or through class
counsel, that SSA reexamine the determination.
The potential class member or his or her representative, if any, will
attempt to resolve class membership disputes through negotiation with a
designated representative in the servicing field office or ODIO. If a
resolution cannot be reached, the potential class member, or his or her
representative, may raise the matter through class counsel with the Office
of the General Counsel in Baltimore. If the class membership question
cannot be resolved through negotiation, either party may, by duly noticed
motion, submit the matter to the U.S. District Court for the Eastern
District of Pennsylvania.
2.
Claims Determined to be Class Members
ODIO will associate the reply forms with the alerts and systems queries,
place them in a blue-colored jacket (folder) stamped
“Zebley COURT CASE,” and forward the
file to the servicing field office. The blue jacket will identify the case
as a Zebley class member claim.
•
All class member folders will be dispatched to the servicing field office
for an initial level determination. The readjudicating component for all
Zebley class member claims is the servicing DDS.
•
ODIO will not attempt to retrieve any class member
claim files prior to sending the class
member folder to the servicing field office. Attempts to retrieve claim
files will be made if the DDS cannot issue a fully favorable
determination.
In general, the field office will obtain updated eligibility information
and forward the file to the DDS for a medical determination. All
nonmedical development will be done after the DDS medical determination
except if there is an allegation of continuous earnings above the SGA
level which began within one year of the alleged onset date. In such a
case, the field office will develop the work activity and, if appropriate,
prepare a denial.
VI. Processing and Adjudication
All Zebley class member claims will be returned to
the servicing DDS for review pursuant to the terms of the May 3, 1990 and
March 14, 1991 district court Stipulations and Orders.
Individuals with SSI childhood disability claims denied at the DDS level
under the interim standard did not have the right to pursue an appeal
beyond the reconsideration level. Pursuant to the terms of the district
court's May 3, 1990 Stipulation and Order, only individuals who have had
claims adjudicated by DDS under the new regulations published February 11,
1991, have had the right to appeal to the OHA level.
Moreover, the terms of the March 14, 1991 Stipulation and Order dictate
that all class member claims be returned to DDS for processing. The
Program Operations Manual System (POMS) instructions direct DDS to treat a
subsequent claim as a duplicate and consolidate it at the class member
claim level. Accordingly, as of the effective date of this instruction,
there should be only a limited number of situations where a current SSI
childhood disability claim is pending before OHA. If an SSI childhood
disability claim is pending at OHA and there is a class member claim
pending at the DDS level, follow the instructions in
VI.D.1. and 2. below.
The DDS determination will be an initial determination, regardless of the
level at which it was previously decided, with full appeal rights (i.e.,
reconsideration, Administrative Law Judge (ALJ) hearing, Appeals Council
and judicial review). ALJs should process and adjudicate requests for
hearing on Zebley reviews conducted by the DDS in
the same manner as for any other case — subject to the disability
evaluation provisions of the February 11, 1991 regulations and the special
provisions set forth below.
B. Processing Requests for Hearing — SSI Childhood Disability
Claims
Because of the unique nature of the consolidation procedures discussed in
VI.D.1. and 2. below, hearing offices
will provide all claimants (and their representatives) with a special
notice when a request for hearing is filed on an SSI childhood disability
claim. In addition to the usual Acknowledgment Letter (described in HALLEX
I-2-020), the hearing office will send a copy of the notice in Attachment
4 to the SSI childhood disability claimant and the representative.
C. Type of Review and Period to be Considered in
Zebley Claims
The type of review to be conducted is a reopening. Assess the claimant's
disability from the effective date of the earliest application accorded
Zebley class member status or the date of cessation
of SSI disability within the class period through the date of the new
hearing decision on the class member claim subject to review.
D. Processing and Adjudicating a Current Claim When a Class Member
Claim is Pending Elsewhere (Consolidation Procedures)
1.
Hearing Office
a.
If the current claim pending in the hearing office was denied after
publication of the new regulations on February 11, 1991,
and
the determination at the reconsideration level was made pursuant to the
new regulations
and
a DDS advises the hearing office that it is processing a class member
claim, the current claim will be dismissed and the claim consolidated with
the Zebley class member claim at the DDS level. Use
the sample dismissal order in Attachment 5.
If concurrent title II and title XVI claims are pending in the hearing
office, dismiss only the SSI childhood disability claim. Process the
remaining title II claim in the normal manner. If a favorable decision
ensues, forward a copy of the decision to the DDS that requested the
current SSI childhood disability claim.
If the ALJ is prepared to issue a favorable decision, the current claim
will not be consolidated with the class member claim. The ALJ will issue
the favorable decision and forward a copy of the decision (and a copy of
the medical evidence, if requested) to the servicing DDS.
b.
If the current claim pending in the hearing office is based on a
nonmedical issue, it will not be consolidated with the class member claim.
Process the request for hearing using normal procedures.
2.
OHA Headquarters
a.
OAO/Appeals Council Action
The same rules apply as for requests for hearing at the hearing office
level. (See VI.D.1. above.)
b.
OCA/Court Level Action
If a current claim is pending at the district or circuit court level, the
Assistant U.S. Attorney will move for remand of the case for
readjudication under the new regulations as required by ¶ I.C. of the
March 14, 1991 Stipulation and Order. OCA will use the remand order in
Attachment 6 to effectuate remand to the DDS.
Due to the particular circumstances of the Zebley
case, the March 14, 1991 Stipulation and Order provides for the following
special procedures to be used in the readjudication of
Zebley class member claims.
1.
Disability Presumptions
If the claimant has subsequently been found disabled under any disability
program under titles II or XVI of the Social Security Act either as a
child or as an adult, in the absence of contrary evidence (such as
traumatic onset of disability or a new impairment) or contrary medical
judgment, infer that a class member is disabled from the date of the first
application for SSI childhood disability benefits which is included within
the class period.
If the medical evidence supports a finding of current disability, but
evidence of past condition is not readily available, and the class member
has not been found disabled on a subsequent disability claim, the
adjudicator will determine, based on the nature of the impairment, whether
it is reasonable to presume that the class member's past condition and
impairments were as severe as they are currently.
2.
Nondisability Eligibility Presumptions
In general, nondisability factors of eligibility will be determined by the
field office following a favorable determination or decision of
disability. The March 14, 1991 Stipulation and Order provides for special
rules and presumptions to be employed. If an appeal reaches the OHA level
on a nondisability factor of entitlement, refer to the provisions of
¶ VII.H.2. of the March 14, 1991 order.
If an appeal pending before OHA involves only the amount of benefits due a
class member, OHA will not review the underlying disability
determination.
3.
Adjudicating the Claims of Deceased Class Members
To the extent that an SSI underpayment could be paid pursuant to 42 U.S.C.
§ 1383(b)(1)(A), the disability claim of a deceased class member must
be readjudicated. Even if there is no individual designated by 42 U.S.C.
§ 1383(b)(1)(A) to whom an SSI underpayment could be paid, the
disability claim of a deceased class member must be readjudicated for
purposes of determining Medicaid eligibility if a state with an agreement
under § 1634 of
the Social Security Act requests readjudication.
VII. Case Coding
HO personnel should code Zebley class member prior
claims into the Hearing Office Tracking System (HOTS) and the OHA Case
Control System (OHA CCS) as reopenings.
To identify class member cases in HOTS, the hearing office must code
“Z” in the “Class Action” field.
To identify class member cases in the OHA CCS, the hearing office must
code “Z” in the SPC field.
All “DC” claim types should be coded Z in the SPC field. In
addition, some DI claim types will need to be coded; e.g., where the
individual is under 18, but married.
VIII. Inquiries
Hearing office personnel should contact their Regional Office. Regional
Office personnel should contact the Division of Field Practices and
Procedures on FTS 305-0022. Headquarters personnel should contact the
Division of Litigation Analysis and Implementation (DLAI) on
305-0708.
Inquiries from class members may be referred to
Zebley class counsel, Community Legal Services, at
1-800-523-0000.
Attachment 1. - Stipulation and Order Entered by the U.S. District Court for the
Eastern District of Pennsylvania Dated March 14, 1991
[DATE FILED: 03/14/1991]
IN THE UNITED STATES DISTRICT
FOR THE EASTERN DISTRICT OF
PENNSYLVANIA
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BRIAN ZEBLEY, et al.
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Plaintiffs,
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Civil Action No. 83-3314
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v.
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LOUIS W. SULLIVAN, M.D.
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Secretary of Health and Human
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Services
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Defendant.
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STIPULATION AND ORDER
INTRODUCTION
On February 20, 1990, the Supreme Court affirmed the October 26, 1988
decision of the United States Court of Appeals for the Third Circuit.
See Sullivan v.
Zebley, __U.S.__ , 110 S. Ct. 885 (1990); Zebley ex
rel. v. Bowen, 855 F.2d 67 (3d Cir. 1988). That decision
declared invalid the Secretary's existing regulations governing the
adjudication of childhood disability claims under the Supplemental
Security Income (SSI) program as a basis for denying such claims.
This Stipulation and Order is agreed to by
the parties.
I.
Scope of the Class
A.
Pursuant to an Order entered by this Court on January 10, 1984, the class
was defined as follows:
“All persons who are now, or who in the future will be, entitled to
an administrative determination (whether initially, on reconsideration or
on reopening as to whether supplemental security income benefits are
payable on account of a child who is disabled, or as to whether such
benefits have been improperly denied, or improperly terminated, or should
be resumed.”
(footnote omitted)
B.
The class consists of all individuals whose applications for SSI childhood
disability payments were denied in whole or in part (denials in whole or
in part are hereinafter referred to as “denials”) or whose
SSI childhood disability payments were terminated on medical grounds on or
after January 1, 1980 until the date of publication of the new childhood
disability regulation described in ¶ II of this Stipulation and
Order. An individual is a member of the class by reason of a denial after
January 1, 1980 of a request to reopen a determination or decision denying
a claim for SSI childhood disability payments, if such request to reopen
was pending on January 1, 1980.
The class comprises three subclasses denominated as Subclass A, Subclass B
and Subclass C as follows:
1.
Subclass A comprises individuals who received denials from January 1, 1980
until May 12, 1983; and
2.
Subclass B comprises individuals who received denials from May 13, 1983
until February 27, 1990; [1] and
3.
Subclass C comprises individuals who received denials under the interim
standard pursuant to the Stipulation and Order entered in this action on
May 3, 1990.
C.
The scope of the class is nationwide. The class includes parties in
individual cases and other class actions that are pending in federal
courts to the extent that they involve issues which overlap with this
action.[2] The class also includes individuals who filed individual
actions in federal courts challenging the Secretary's denial or
termination of his or her (hereinafter referred to as “his”)
SSI childhood disability benefits and who received a final judgment after
January 1, 1980, that he or she (hereinafter referred to as
“he”) was not eligible for SSI childhood disability payments.
The Secretary will move to remand all SSI childhood disability cases
pending in the federal courts for readjudication under the new regulation
described in ¶ II of this Stipulation and Order.
II.
Revision of the Children's Disability Standard
The Social Security Administration shall not deny SSI childhood disability
benefits under 20 C.F.R.
§ 416.924, the regulation that the Supreme Court declared
invalid as a basis for making adverse decisions regarding children's SSI
disability claims, and pre-existing instructions governing the
adjudication of SSI childhood disability claims, including Program
Operations Manual System (POMS),
Social Security Ruling
83-19 (which has been rescinded), other Social Security Rulings and
any other administrative guidance. The Social Security Administration
shall not terminate SSI childhood disability payments under
20 C.F.R. §
416.994(c)(1989). This matter is remanded to the Secretary for the
promulgation of a new regulation pursuant to the Secretary's rulemaking
authority under 42 U.S.C. §§1302 and 1383(d)(1), which
regulation is intended to be consistent with the decision of the Supreme
Court. The Secretary has published a successor regulation to
20 C.F.R. §§
416.924 (the “new regulation”) and
416.994(c). This
new regulation is final with an opportunity for public comment following
publication. The Secretary may, if he deems it appropriate, revise the new
regulation in response to public comment. The Secretary will make all good
faith efforts to publish any such revision within fourteen months from the
close of the comment period. If any such revision is not made within that
time, the Social Security Administration shall report monthly to class
counsel as to the status of the revision. The Secretary shall consult with
and permit class counsel a period of 30 days from receipt within which to
comment on a draft of any revision of the new regulation, made in response
to the public comment on the new regulation, before the revision is
published. No challenge to the new regulation or the manner of its
publication may be made under the Administrative Procedure Act, 5 U.S.C.
§§ 551-559, 701-706.
III.
Instructions and Training
A.
The Social Security Administration shall issue instructions as necessary
to implement the new regulation or any revised regulation promulgated
pursuant to ¶ II of this Stipulation and Order. The Social Security
Administration will provide copies of the foregoing instructions to class
counsel for their comments prior to issuance of the instructions as
provided in ¶ X of this Stipulation and order.
B.
Class counsel shall be notified of formal training sessions of Social
Security Administration disability adjudicators, including Administrative
Law Judges, conducted in the central and regional offices concerning
readjudications to be conducted pursuant to ¶ VII of this Stipulation
and Order. Class counsel, or their designated co-counsel, may attend such
training in the capacity of observers.[3]
IV.
Public Notice
A.
Within 10 days after the commencement of notification pursuant to ¶
VI.A. of this Stipulation and Order, the Social Security Administration
shall begin to publicize nationwide the relief to be provided as a result
of the Zebley decision by press releases and radio
and television announcements, by posters in all Social Security field
offices and Office of Hearings and Appeals field offices, and by posters
made available to state welfare and public assistance agencies, to medical
and health agencies, hospitals and non-profit agencies serving disabled
children. Public notice in Spanish will be provided in accordance with the
terms of the media plan under subparagraph B. below. Distribution of this
information shall be made to the groups listed in Attachment 1 to this
Stipulation and Order.
B.
Within 20 days after entry of this Stipulation and Order, the Social
Security Administration shall give class counsel 20 days to comment on its
media plan and will consider any suggestions made by them. In addition,
the Social Security Administration will, to the extent practicable,
provide class counsel a reasonable opportunity to review and comment on
materials referred to in ¶ IV.A. of this Stipulation and Order prior
to their release to the public. Following receipt of comments from class
counsel, the Social Security Administration will advise class counsel, at
least three working days in advance, that it will adopt a final media plan
or release the materials referred to in this subparagraph.
V.
Identification of Potential Class Members
The Social Security Administration shall, by means of its data processing
systems, identify the names, Social Security numbers and last known
addresses of potential class members who had a claim denied, or whose
payments were terminated, between January 1, 1980 and February 27,
1990.[4] This information will be sent to class counsel, who may elect
to receive it on computer tapes generated by the Social Security
Administration's existing data processing system.
VI.
Notice to Potential Class Members
A.
The Social Security Administration shall, within 60 days after the
approval by this Court of the form of a notice pursuant to subparagraph B.
below, send a notice by first class mail to each potential class member
identified pursuant to ¶ V of this Stipulation and Order at his last
known address informing him that if he so desires, the Social Security
Administration will readjudicate his eligibility under the new regulation.
The notice will advise the potential class member that his claim will be
considered only if he returns a postage-paid, pre-addressed postcard or
form letter enclosed with the notice advising the Social Security
Administration that he desires to have his claim readjudicated. The notice
will also advise the potential class member that within 120 days of
receipt of the notice, he must notify the Social Security Administration
that he wants to have his case readjudicated. The notice will inform the
potential class member that the Secretary's regulations for determining
good cause for missing a deadline to request review are applicable to a
failure to request readjudication within the 120-day period. Examples of
good cause include illness of the potential class member or a member of
his immediate family, death of a family member, inability to understand
the notice or unusual or unavoidable circumstances that prevented timely
return of the postcard or form letter.
20 C.F.R. §
416.1411. The determination of good cause pursuant to
20 C.F.R. §
416.1411, for failure to request readjudication within the 120-day
period, shall be made in accordance with the purposes of the Social
Security Act. The time in which a potential class member must respond to
the notice shall begin to run only upon receipt of the notice by the
potential class member.
20 C.F.R. §
416.1401. The Social Security Administration will send to class
counsel a copy of any determination by the Secretary that there is not
good cause to excuse a potential class member's failure to respond timely
to the notice. The potential class member, or his counsel, may seek to
resolve the question of good cause by negotiations with the Office of the
General Counsel.
B.
Comments
Within 15 days of the entry of this Stipulation and Order, the Social
Security Administration shall provide a draft of the notice to be sent
pursuant to ¶ VI.A. of this Stipulation and Order to class counsel
providing them 10 days to comment thereon. The parties shall submit the
notice to this Court for approval.
C.
Foreign Language Notices
1.
Notices sent pursuant to ¶ VI.A. of this Stipulation and Order will
be sent in Spanish to all potential class members who have made or will
make a request to the Social Security Administration to receive notices in
Spanish.[5]
2.
Notices sent pursuant to ¶ VI.A. of this Stipulation and Order will
contain short announcements in Spanish, French, Chinese, Vietnamese and
Portuguese advising potential class members to have the notice translated
or to contact a Social Security office if they cannot read English. An
individual who does not understand English and who inquires at a Social
Security office about the relief available under
Zebley shall be deemed to have requested
readjudication.
D.
Nonresponders and Undeliverables
1.
The Social Security Administration shall, commencing 60 days after
completing the mailing of the notice to potential class members pursuant
to ¶ VI.A. of this Stipulation and Order, and every 60 days
thereafter, send a list to class counsel of the name, most recent known
address, date of mailing of a second notice, as provided for by ¶
VI.D. (2, 3 & 4) of this Stipulation and Order, and Social Security
number of each potential class member whose notice is returned as
undeliverable. The Social Security Administration shall, commencing 120
days after completing the mailing of the notice to each potential class
member pursuant to ¶ VI.A. of this Stipulation and Order, and every
60 days thereafter, send a list to class counsel of the name, most recent
known address, date of mailing of a second notice, as provided for by
¶ VI.D.(2, 3 & 4) of this Stipulation and Order, and Social
Security number of each class member who has not responded to the notice.
Class counsel may elect to receive this data on computer tapes generated
by the Social Security Administration's existing data processing system.
The Social Security Administration will send these lists for a period of
two years from the date the first list is sent to class counsel or until
all class members are accounted for, whichever occurs first. Class counsel
may contact potential class members and determine whether they meant to
request review of their claims and, if so, to assist them in demonstrating
good cause for having failed to do so in a timely manner.
2.
The Social Security Administration will, for potential class members of
both Subclasses A and B, as defined in ¶ I.B. of this Stipulation and
Order, who fail to respond to the first notice or whose notices have been
returned as undeliverable:
a.
Attempt to match the class member's Social Security number with the Social
Security Administration's records for the Retirement, Survivors and
Disability Insurance Programs under Title II of the Social Security Act in
order to obtain the most recent known addresses;
b.
Use its best efforts to effect, subject to the requirements of the Privacy
Act, as amended by the Computer Matching and Privacy Protection Act, 5
U.S.C. § 552a (“Privacy Act”), computer matches with any
compatible, current and archival state data systems (such as Aid to
Families with Dependent Children, General Assistance, Food Stamps, Medical
Assistance, and programs for handicapped children under Title V of the
Social Security Act) in order to obtain the most recent addresses for the
purpose of sending a notice to class members. The Social Security
Administration will, commencing six months after the entry of this
Stipulation and Order and every four months thereafter, report to class
counsel, with respect to each state, whether the state has agreed, has
refused or is still considering whether to conduct a computer match, the
date of such agreement, the state's data systems with which the state will
attempt a computer match, the date that the Social Security Administration
delivered its computer tape of potential class members to the state, and
the date on which the state reports to the Social Security Administration
that a computer match has been effected with a state data system;
c.
Provide, subject to the requirements of the Privacy Act, its most current
computer tape identifying potential class members who have not responded
to the first notice or whose notices have been returned as undeliverable
to any local government jurisdiction (such as a city or county) which
requests the tape for the purpose of conducting a computer match with its
data systems to obtain the most recent addresses for the purpose of
sending a notice to class members. The Social Security Administration
will, commencing six months after the entry of this Stipulation and Order
and every four months thereafter, report to class counsel whether a local
government jurisdiction has requested the Social Security Administration's
computer tape with which to conduct a computer match, whether a Privacy
Act agreement has been reached with the local government jurisdiction, the
date of such agreement, the date that the Social Security Administration
delivered its computer tape of potential class members to the local
government jurisdiction, and the date on which a local government
jurisdiction reports back to the Social Security Administration that it
has accomplished a computer match;
d.
Use its best efforts to obtain the most recent known addresses of
potential class members by matching its Zebley data
base with an IBM mainframe compatible computer data tape of
nongovernmental nonprofit organizations described in section 501(c)(3) of
the Internal Revenue Code of 1954 (26 U.S.C. § 501(c)(3)) exempt from
taxation under section 501(a) of such Code, containing the names, Social
Security numbers, and addresses of individuals reasonably likely to be
members of the class which is furnished to the Social Security
Administration within one year of the entry of this Stipulation and
Order.
e.
Send a second notice by first class mail to the potential class member's
most recent known address.
3.
With respect to members of Subclass B, as defined in ¶ I.B.2. of this
Stipulation and Order, the Social Security Administration shall, in
addition to the foregoing, use the procedures contained in POMS
§§ DI
23005.001, 11010.155 and13005.080 if necessary to obtain the most
recent known addresses of potential class members whose notices have been
returned as undeliverable.
4.
An individual who contacts a Social Security office inquiring about the
relief available under Zebley shall be deemed to
have requested readjudication.
E.
Determination of Class Membership
Individuals responding to the notice provided pursuant to ¶ VI.A. of
this Stipulation and Order will be screened for class membership during
the readjudication process set forth in ¶ VIl of this Stipulation and
Order. The Social Security Administration shall mail to any individual
determined not to be a class member a notice of that determination. The
Social Security Administration will send a copy of each class membership
denial notice to class counsel. The notice will provide that any
individual denied class membership will have 60 days from receipt of the
notice in which to request that the Social Security Administration
reexamine the class membership denial decision, that he may also request
inspection of his administrative record and that he will have a period of
10 days from notice of availability of the record in which to conduct such
inspection at a mutually agreeable office of the Social Security
Administration. The notice also will contain a telephone number for class
counsel that the potential class member can call if he wishes assistance
in requesting review of the denial of class membership. The parties will
attempt to resolve the question of an individual's class membership by
negotiations between the potential class member or his counsel and the
Office of the General Counsel. If the parties cannot resolve the question
of an individual's class membership through negotiation, either party may,
by duly noticed motion, submit the unresolved matter to the Court for
resolution.
VII.
Readjudication
A.
Scope of Readjudication and Priority for Readjudicating Claims
1.
The Social Security Administration shall readjudicate the claim of any
class member who requests readjudication pursuant to ¶ VI.A. of this
Stipulation and Order and will make payments for all months for which an
SSI payment was not made to the class member in which he met both the
disability and income and resources requirements of the Social Security
Act, 42 U.S.C. § 1382(a), and regulations,
20 C.F.R. §§
416.1100 et seq. and
416.1201
et seq., beginning with the effective
date of a claim that was denied or the date on which payments were
terminated. No payment will be made for any month as to which the class
member will be determined to have been disabled but was financially
ineligible for payment or was disqualified for any other non-disability
reason. The Social Security Administration will not be required to
readjudicate a denial after January 1, 1980 of a request to reopen a
determination or decision denying a claim for SSI childhood disability
payments, if such request to reopen was not pending on January 2, 1980.
The Social Security Administration will not readjudicate, reopen or revise
the denial of a class member's claim or the termination of his payments
using the adult disability standard on or after the date on which the
class member attained age 18.
2.
Upon entry of this Stipulation and Order, the Social Security
Administration will give priority to adjudicating SSI childhood disability
claims that are presently pending in the administrative process and then
to reexamining claims which were denied under the interim standard which
was the subject of the Stipulation and Order entered in this action on May
3, 1990. Claims that were denied prior to the entry of this Stipulation
and Order and are not pending shall be readjudicated generally in the
order in which a response to the notice is received. To the extent
practicable, the Social Security Administration also will give priority to
individual hardship cases of SSI childhood disability claimants of which
it is notified in writing by class counsel.
B.
Procedures, Component Responsible and Time Periods for Readjudication
1.
The Social Security Administration will make a good faith effort to
conduct the readjudication of class members' claims within the following
time periods:
a.
Within 45 days of receipt of a postcard or form letter from a potential
class member electing review, the Social Security Administration will
record the receipt into its data base Civil Action Tracking System and
transmit notice of the receipt to the appropriate Social Security Field
Office serving the potential class member.
b.
Within 90 days of being notified of the potential class member's election
to have his claim readjudicated, the Field Office will, in accordance with
its operating guidelines, POMS §§
DI 10005.001
et seq., contact him, schedule a time
for and conduct a personal interview if necessary to request from him any
evidence needed to readjudicate his claim for disability and transfer his
claim to the State Disability Determination Services.
c.
Within 100 days of receiving the claim from the Field Office pursuant to
¶ VII.B.1.b. of this Stipulation and Order, the State Disability
Determination Services serving the potential class member's state of
residence will, in accordance with operating guidelines POMS §§
DI 22501.001
et seq., contact and request
information and records from sources which were recorded by the Field
Office pursuant to its interview with the class member as needed to
adjudicate his disability claim pursuant to ¶ VII.B.I.b. of this
Stipulation and Order, and will readjudicate his claim and issue a
decision.
d.
The Field Office shall, within 60 days of the issuance of a decision that
the class member is disabled, request the information needed to determine
whether the class member is eligible for payments based on nondisability
considerations (such as income and resources), determine the amount of SSI
payments for which he is eligible, and effectuate payment.
2.
Delays occasioned by the failure of a claimant or any other source to
supply information requested pursuant to this Stipulation and Order may
extend the time limits set forth in ¶ VII.B. of this Stipulation and
Order.
3.
Any class member whose claim is denied will be sent a denial notice
informing him of his right to appeal pursuant to the Social Security Act
and regulations, 42 U.S.C. §§ 405(g) and1383(c)(1) and (3);
20 C.F.R. §§
416.1400 et.
seq.
4.
The Social Security Administration shall not be required to locate and
retrieve claims files in order to readjudicate claims under ¶ VII of
this Stipulation and Order. However, if an adjudicator determines that a
class member's claim will be denied, the Social Security Administration
will attempt to secure the file if there is evidence that one exists. In
instances where the Social Security Administration attempts to retrieve a
file pursuant to this provision, the time limits contained in ¶
VII.B. may be extended.
C.
Any readjudication made by the Social Security Administration pursuant to
this Stipulation and Order, except one regarding class membership, shall
be subject to administrative and judicial review only as provided for in
42 U.S.C. §§ 405(g) and 1383(c)(1) and (3) and
20 C.F.R. §§
416.1400 et.
seq. (See ¶ VI.E. above for
resolution of disputed class membership).
D.
To the extent that an SSI underpayment could be paid pursuant to 42 U.S.C.
§ 1383(b)(1)(A), the Social Security Administration will readjudicate
the disability claim of any deceased class member. Even if there is no
individual designated by 42 U.S.C. § 1383(b)(1)(A) to whom an SSI
underpayment could be paid, the Social Security Administration will
readjudicate the disability claim of a deceased class member for purposes
of determining Medicaid eligibility if a state with an agreement under
section 1634 of the
Social Security Act (42 U.S.C. § 1383c) requests that the Social
Security Administration readjudicate the disability of the deceased class
member.
E.
If the substantive standard for children's disability contained in the new
regulation is significantly revised in response to public comment, the
Social Security Administration shall review all cases denied, and may
review any case allowed, under the new regulation prior to its revision to
determine whether payments should be allowed under the revised new
regulation. All individuals whose claims are adjudicated under the new
regulation and any revision thereto promulgated in response to public
comment pursuant to ¶ II of this Stipulation and Order will be
accorded the full administrative review process provided In 42 U.S.C.
§§ 405(g) and 1383(c)(1) and (3) and
20 C.F.R. §§
416.1400 et.
seq.
F.
Nothing in this Order shall preclude the Secretary from conducting a
continuing disability review provided for by the Social Security Act and
regulations, 42 U.S.C. §§ 421(i), 1382c(a)(4), and 1383b(c), and
20 C.F.R. §
416.990, to determine if an individual allowed benefits under the
new regulation or revision thereto continues to be disabled within the
meaning of the Social Security Act.
G.
The Secretary shall notify any class member receiving a retroactive award
as the result of a readjudication under ¶ VII of this Stipulation and
Order of the limitation on resources contained in the Social Security Act,
as amended by Pub. L. No. 101-508, and regulations and the various
provisions pursuant to which a retroactive award may be excluded from
countable resources, as provided by the Social Security Act and
regulations. Such provisions include the establishment of certain trusts
and purchase of the following items of property: 1) the home, 2) household
goods and personal effects, 3) an automobile, 4) property which is
essential to the means of self-support, 5) resources which are necessary
to fulfill an approved plan for achieving self-support, 6) life insurance,
and 7) burial spaces and certain funds for burial expenses.
H.
Due to the particular circumstances of this case, the Secretary has agreed
to use the following procedures in the readjudication of claims:
1.
For purposes of determining disability factors of eligibility for SSI
payments, the Social Security Administration will instruct its
adjudicators to infer that, in the absence of contrary evidence (such as
traumatic onset of disability or a new impairment) or contrary medical
judgment, a class member is disabled from the date of the first
application for children's SSI disability payments which is included
within the class period, if he has subsequently been found disabled under
any disability program under Title II of the Social Security Act
(including Social Security disability benefits or disabled adult child
benefits) or under Title XVI of the Social Security Act, either as a child
or as an adult. In addition, where the class member has not been found
disabled on a subsequent disability claim and where evidence of the past
condition is not readily available, the adjudicator will determine, based
on the nature of the impairment, whether it is reasonable to presume that
the class member's past condition and impairments were as severe as they
are currently.
2.
For purposes of determining non-disability eligibility of class members
for payment of retroactive payments, the Social Security Administration
shall use the following method:
a.
For the period January 1990 to the present, the Social Security
Administration will determine income and resources under existing
procedures and make appropriate payments based on that
determination.
b.
For months prior to January 1990, unless ineligibility for SSI payment due
to excess income and resources or any other factor is indicated by records
of nondisability eligibility that are readily available to the Social
Security Administration or from information obtained from the class
member, the Social Security Administration will make SSI payments to each
class member for each month in which he is under age 18 and is eligible on
disability and non-disability grounds, an amount equal to one-twelfth (one
month) of the national annual average federal SSI childhood disability
payment for eligible children, plus the applicable federally administered
state supplement for each such month. These amounts are as follows:
|
Calendar Year |
Average Monthly Payment |
Maximum Federal Benefit Rate |
|
CY 1980 |
$203.00 |
$238.00 |
|
CY 1981 |
$209.00 |
$264.70 |
|
CY 1982 |
$230.00 |
$284.30 |
|
CY 1983 |
$252.00 |
$304.30 |
|
CY 1984 |
$272.00 |
$314.00 |
|
CY 1985 |
$281.00 |
$325.00 |
|
CY 1986 |
$296.00 |
$336.00 |
|
CY 1987 |
$302.00 |
$340.00 |
|
CY 1988 |
$317.00 |
$354.00 |
|
CY 1989 |
$333.00 |
$368.00 |
c.
The class member may establish that he is eligible for more than the
average payment if he submits evidence establishing that he had no income
or so little income (including receipt of Aid to Families with Dependent
Children or general assistance/general relief or home relief) that a
higher amount would be payable.
d.
The payment amount for a class member for all months after the month in
which he attained age 18, but before January 1, 1990, will not be the
average benefit payment for disabled children; but will be based on
information obtained from the class member and other records of
nondisability eligibility that are readily available to the Social
Security Administration.
e.
No payments shall be made under this Stipulation and Order for any portion
of a month for which an SSI payment was already made to the class
member.
VIII.
Quality Assurance and Other Reviews
A.
Nothing in this Stipulation and Order shall be construed as precluding the
Social Security Administration from employing the quality assurance review
or other legally authorized review procedures pursuant to 42 U.S.C.
§§ 421(c)(3) and 1383b and other applicable provisions of law to
decisions made pursuant to this Stipulation and Order.
B.
Subject to reasonable limitations, class counsel or their designated
co-counsel may, upon written request, inspect individual claims files used
in the readjudication pursuant to this Stipulation and Order, or a
reasonable sampling thereof, and review decisions made by the Social
Security Administration or the State Disability Determination Services in
connection with the readjudication of claims pursuant to this Stipulation
and Order. Individual claims files will be made available for inspection
at a mutually agreeable time and office of the Social Security
Administration. The claims files may not be removed from the custody of
the Social Security Administration. If class counsel or their designated
co-counsel wish to review a claims file, they must do so within 10
workdays after they are notified that a claims file is available for
inspection. Class counsel or their designated co-counsel may, subject to
reasonable limitations, copy the materials listed in the first sentence of
this subparagraph. To protect the privileged information contained in the
claims file, class counsel and their designated co-counsel may not
disclose information obtained from the claims file except for the purpose
of pursuing the individual's claim or for purposes directly related to
this litigation.
C.
Class counsel shall be provided with the name of an individual in the
Office of the General Counsel whom they may contact concerning quality
assurance matters.
D.
For a period of twelve months after the publication of the new regulation,
the Social Security Administration will take the steps set forth below to
review SSI childhood disability cases adjudicated under the new regulation
by State Disability Determination Services. The purpose of the review will
be to ensure that the Disability Determination Services implement the new
regulation accurately, that they obtain and consider needed evidence, that
they prepare appropriate decision rationales, and that Social Security
Administration instructions are comprehensive and clear. At the expiration
of the twelve-month period, the Social Security Administration will confer
with class counsel concerning its plans to conduct additional special
quality assurance reviews, if any. This does not constitute a commitment
by the Social Security Administration to continue to conduct additional
special quality assurance reviews beyond the twelve-month period provided
in this Paragraph.
1.
The Disability Quality Branches and Regional Office medical consultant
staff will conduct a Quality Assurance review of the lesser of the first
25 or all denials of SSI childhood disability claims in the first month of
adjudications under the new regulation. All “disagreement”
cases, i.e., denials where the
Social Security Administration Quality Assurance review disagrees with the
Disability Determination Services decision or finds that additional
evidence is needed, and at least 10% of the “agreement”
cases, i.e., denials where the
Social Security Administration Quality Assurance review agrees with the
Disability Determination Services, will be forwarded to the Social
Security Administration's Central Office for consistency review. The
consistency review will be conducted by SSI childhood disability
specialist from the Office of Disability and the Office of Program and
Integrity Reviews. The provisions of this subparagraph shall not apply to
the States subject to the Stipulation and Order filed on February 4,
1991.
2.
After the Quality Assurance review of denials in the first month under the
new regulation, the Disability Quality Branches and Regional Office
medical consultant staff will conduct a nationwide Quality Assurance
review of 1,000 denials in each subsequent month,
i.e., for an eleven month period
following the aforementioned first month. The nationwide sample may be
targeted to specific areas that the Social Security Administration
identifies as error-prone. At least 100 of these cases reviewed by the
Disability Quality Branches will be forwarded monthly to the Social
Security Administration's Central Office for consistency review.
3.
The Social Security Administration will provide monthly reports to class
counsel setting forth the results of the Social Security Administration's
Quality Assurance and consistency reviews conducted during the prior
month, including the number of denials reviewed, the step in the
sequential evaluation process at which the cases were denied and the
numbers of denials reviewed in which the Social Security Administration
agreed or disagreed with the Disability Determination Services.
IX.
Reports to Plaintiffs' Counsel
A.
The Social Security Administration shall, beginning the 60th day after the
mailing of all class notices pursuant to ¶ VI.A. of this Stipulation
and Order, and every 90 days thereafter, send a report to class counsel
setting forth, on a state-by-state basis:
1.
The number of notices sent;
2.
The number of individuals responding to notices;
3.
The number of notices returned as undeliverable;
4.
The number of individuals screened out of the class;
5.
The number of individuals screened into the class;
6.
The number of Individuals who received favorable readjudications by the
Social Security Administration, including, separately, the number of
individuals who received favorable readjudications at the initial and
reconsideration levels of the administrative adjudicatory process;
7.
The number of individuals who received unfavorable readjudications by the
Social Security Administration, including, separately, the number of
individuals who received unfavorable readjudications at the initial and
reconsideration levels of the administrative adjudicatory process.
B.
The Social Security Administration shall provide class counsel with the
name of a Social Security Administration official whom class counsel may
contact to ascertain the status of a class member's claim.
X.
Comments on Notices, Instructions and Directives
The Social Security Administration and Health Care Financing
Administration shall provide class counsel with copies of notices,
instructions, directives, and like documents of general applicability to
be issued to effect compliance with and implement this Stipulation and
Order. Class counsel will be allowed a period of 13 days from the date of
mailing to comment on the above documents prior to their issuance. The
Social Security Administration and Health Care Financing Administration
will designate an official to whom class counsel may provide such
comments. Following receipt of comments from class counsel and revisions,
if any, the Social Security Administration and Health Care Financing
Administration will advise class counsel, at least three working days in
advance, that it intends to issue the documents, with any amendment,
referred to in the first sentence of this Paragraph. The Social Security
Administration and Health Care Financing Administration are not required
under this section to provide class counsel with copies of drafts,
proposals, planning papers, study results, opinions, reports, letters,
memoranda, notes, meeting agendas, meeting summaries or other documents
which, although prepared in connection with the administration of the
childhood disability program and Medicaid program, do not set forth a
final policy statement, instruction, or directive.
XI.
General Rules and Guidelines
A.
Any class member who elects readjudication in accordance with ¶ VI.A.
of this Stipulation and Order will have his claim readjudicated in
accordance with the Social Security Act, regulations, policies and
procedures, including those requiring a claimant to cooperate with and
provide information needed by the Social Security Administration to
adjudicate his claim. See,
e.q.,
20 C.F.R. §§
416.704 et seq., especially
§ 416.708
(claimant's responsibility to report nondisability factors affecting
eligibility for SSI such as changes of address, changes in living
arrangements, income and resources); §
416.912
(claimant's responsibility to submit medical and other evidence of his
disability); §
416.916
(claimant's responsibility to cooperate with the Social Security
Administration in obtaining evidence needed to adjudicate his claim); and
§§
416.917 and
416.918
(claimant's responsibility to cooperate in undergoing consultative
examinations).
B.
In recognition of the difficulty that may be encountered by children and
their caregivers in providing accurate histories and obtaining
information, the Social Security Administration shall make special efforts
to assist children in documenting eligibility and attempt to work with the
child, the extended family, foster parents, child welfare agencies and
others to obtain evidence needed for readjudication pursuant to this
Stipulation and Order. The Social Security Administration shall, in cases
of non-cooperation, make special efforts to locate an adult person
responsible for the child's care and shall not terminate, deny, or
disqualify the child until a personal contact with his family or custodian
has been attempted.
XII.
Medicaid
A.
The Social Security Administration will notify all class members that a
person seeking Medicaid eligibility as a result of a readjudication of his
disability claim should contact the appropriate state Medicaid agency, in
the same place and manner ordinarily available to those seeking Medicaid
benefits.
B.
Within 90 days of the entry of this Stipulation and Order, the Secretary
will issue an instruction to all state Medicaid agencies:
1.
Informing them about the effect on Medicaid eligibility determinations of
the new standard for disability determinations relating to applicants
under the age of 18;
2.
Notifying them that, in determining the eligibility of persons who apply
for Medicaid benefits on the basis of disability, they must apply the new
disability standard effective February 20, 1990, except in states where
the approved state plan provides for standards which are more restrictive
than those used in the SSI program;
3.
Encouraging them to extend Medicaid benefits at the applicable rates set
forth in the state's Medicaid plan retroactively to any class member whose
application for Medicaid was denied or whose Medicaid was terminated on or
after January 1, 1980, on the grounds that he did not meet the Social
Security Administration's former SSI childhood disability standard set
forth in 20 C.F.R.
§§ 416.924 and
416.994(c)(1989),
who would have been eligible for medical assistance as a consequence of
application of the new standard and whose claim was not pending on or
after February 20, 1990, if that class member:
a.
Provides to the state Medicaid agency proof of payment of bills from a
health care provider or supplier that were paid by the class
member/Medicaid beneficiary or by an individual legally responsible for
such bills of the class member from the funds of the class member or such
individual and that are reimbursable in whole or in part under the
Medicaid program for services or supplies provided to the class member;
or
b.
Presents to the state Medicaid agency unpaid bills from a health care
provider or supplier, for which the class member/Medicaid beneficiary is
currently legally liable for payment, that are reimbursable in whole or in
part under the Medicaid program for services or supplies which were
provided to the class member either:
i.
on or after January 1, 1989; or
ii.
before January 1, 1989, and as to which there is an unsatisfied judgment
for payment, or a written claim or demand for payment has been made since
January 1, 1989;
4.
Explaining that federal financial participation will be available for
retroactive payments the states make to class members under subparagraph 3
above;
5.
Requesting that, with regard to those class members who notify the state
agencies that they seek Medicaid benefits, the state Medicaid agencies
establish, if necessary, appropriate mechanisms to notify the applicants
of their determination concerning the availability of retroactive
benefits, and the necessary procedures to obtain any such benefits;
and
6.
Requesting that the state Medicaid agencies inform their Health Care
Financing Administration Regional Offices in writing whether they intend
to pay retroactive benefits. The Health Care Financing Administration will
collect this information and will designate an official whom class counsel
can contact to obtain this information.
C.
Except as specifically set forth herein, the terms of this Paragraph XII
shall be governed by state and federal statutes, rules and regulations
applicable to the Medicaid program.
XIII.
Dispute Resolution and Adjustment of Time Limits
A.
The parties will attempt to resolve any and all disputes arising under, or
requests for relief from, any of the provisions of this Stipulation and
Order by negotiation between class counsel and counsel for the Secretary
(or their designees). Either party may submit any unresolved dispute or
request for relief from any provision of this Stipulation and Order to the
Court for resolution, by a duly noticed motion. If either party seeks
judicial resolution in connection with matters arising under this
Stipulation and Order, the time limits set forth in this Stipulation and
Order which are affected thereby will be suspended pending a resolution of
the issue by the Court.
B.
The parties may, by written agreement, alter any time period specified in
this Stipulation and Order. Such agreements need not be filed with the
Court, unless either party deems it appropriate to do so.
XIV.
Attorney's Fees
A.
Defendant shall pay to class counsel attorney's fees, expenses and costs
in the amount of $550,000 in full and final settlement of any and all
claims in this action for attorney's fees, expenses or costs pursuant to
any statute or other basis for services that have been performed or that
will be performed in the future in this action or in any administrative or
court proceeding arising under or relating to this action or this
Stipulation and Order. No other claims for attorney's fees, expenses or
costs by any counsel for the plaintiffs or plaintiff class will be allowed
in this action.
B.
The defendant and his successor, and the United States of America and any
department, agency or establishment thereof and any officers, employees,
agents, successors or assigns of such department, agency or establishment
(hereinafter referred to as the “releasees” are released from
any additional liability for attorney's fees, expenses or costs based on
any and all claims and causes of action which have been, could have been
or will be asserted in this case by reason of, or with respect to, any of
the matters alleged in this action, which the plaintiffs or the plaintiff
class, or any of them, or their heirs, executors, successors or assigns
had, now have, or may subsequently have against the releasees, including,
without limitation, any and all claims for attorney's fees, expenses or
costs for services that will be performed in the future in this action or
in any administrative or court proceeding arising under or relating to
this Stipulation and Order.
C.
The provision for attorney's fees, costs and expenses pursuant to ¶
XIV.A. of this Stipulation and Order is not a finding that the position of
the defendant in this litigation was not substantially justified or that
the defendant is liable as a matter of law for the payment of any
attorney's fees, expenses or costs. The provision for attorney's fees,
expenses and costs in this action is by stipulation of the parties and
shall not serve as precedent in any other case.
D.
Defendant shall make a good faith effort to make payment to class counsel
within 30 days of receipt by the Social Security Administration of this
Stipulation and Order after its entry.
XV.
Toll-Free Telephone
The Social Security Administration agrees to install and maintain at class
counsel's offices, located at 1324 Locust Street, Philadelphia, Pa.,
toll-free telephone lines to be operated by class counsel. The Social
Security Administration will pay for the installation and maintenance of
the telephone equipment, consisting of an 800 number, a WATS line, and an
automated attendant for messages. In addition, the Social Security
Administration will pay all telephone charges for the use of that
equipment, for a period not to exceed three years from the date of the
entry of this Stipulation and Order and in an amount not to exceed
$100,000 for the three-year period. At the end of the three-year period or
the expenditure of $I00,000, whichever occurs first, the obligation of the
Social Security Administration as provided in this Paragraph shall
terminate and the telephone equipment shall be returned to the Social
Security Administration. The Social Security Administration will advise
class counsel monthly of the amount of the charges previously incurred.
The Social Security Administration shall not be responsible for any costs
associated with operating the telephone equipment (including, but not
limited to rent, utilities, staff, furniture or stationery) other than the
costs of installing and maintaining the telephone equipment and the
payment of telephone charges as provided for above. Class counsel shall be
solely responsible for the costs of moving and reinstalling the telephone
equipment in the event that they relocate their offices. The telephone
equipment shall be used exclusively for the purpose of providing
assistance to class members in connection with the readjudication of their
claims. The Social Security Administration may take any actions (e.g.,
audits or other monitoring of telephone records) which it deems necessary
to ensure that the telephone equipment is used for the purposes provided
herein, provided, however, that class counsel shall not be required to
disclose the contents of any conversations that are privileged. Class
counsel shall be responsible for all costs and charges of the telephone
equipment which the Social Security Administration determines were not
incurred in accordance with the limitations stated in this Paragraph and
for any and all charges for use of the telephone equipment costs exceeding
$100,000 regardless of whether those costs pertain to matters in this
Paragraph. The Social Security Administration will include the 800
toll-free telephone number on the notice to potential class members, the
notice of denial of a good cause waiver request as provided for in ¶
VI.A., and the notice of a denial of class membership provided for in
¶ VI.E. of this Stipulation and Order.
XVI.
Precedent
Since this Stipulation and Order is entered by agreement of the parties,
the terms of this Stipulation and Order shall not be cited as precedent in
any other cases. This Stipulation and Order is not a finding that the
position of the defendant in this litigation was not substantially
justified or that the defendant is liable as a matter of law for the
payment of any attorney's fees, expenses or costs.
XVII.
Final Judgment
A.
This Stipulation and Order is the final judgment of the Court in this
action. This Court will retain jurisdiction of this case to oversee
implementation of the terms of this Stipulation and Order.
B.
Without limiting the generality of subparagraph A. above, this judgment
bars any amendment or supplementation of the complaint, as amended, in
this action.
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Respectfully submitted, |
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STUART M. GERSON |
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Assistant Attorney General |
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_______________/s/_____________
JONATHAN M. STEIN
_______________/s/_____________
RICHARD P. WEISHAUPT
_______________/s/_____________
THOMAS D. SUTTON
Community Legal Services, Inc.
1324 Locust Street
Philadelphia, PA 19107
Telephone: (215) 893-5300
_______________/s/_____________
MARK B. KAUFMAN
Delaware County Legal Assistance
410 Walsh Street
Chester, PA 19013
Telephone: (215) 874-8421
Attorneys for Plaintiffs
and their Class
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MICHAEL M. BAYLSON
United States Attorney
BRIAN G. KENNEDY
_______________/s/_____________
STUART A. LICHT
RICHARD G. LEPLEY
Department of Justice
Civil Division, Room 3341
10th & Pennsylvania Ave., N.W.
Washington, D.C. 20530
Telephone: (202) 514-4265
Attorneys for Defendant
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SO ORDERED:
DATED: March 14, 1991
_______________/s/_____________
JOHN
P. FULLAM
United States District Judge
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Z
E
Zebley Screening Sheet
(See
Reverse Side for Instructions)
1.
Child's SSN __ __ __ - __ __ - __ __ __ __
2.
DATE __ __ - __ __ - __ __
3.
Child's NAME ______________________________________
4.
Member (J)____ Non-Member (F)____ Screen-Out Code_______ (05, 06, 07,
08)
5.
Was a claim for title XVI childhood disability denied or were payments
terminated at any administrative or judicial level between January 1,
1980, and February 27, 1990? Or, was there a request for reopening pending
on January 1, 1980, and denied after January 1, 1980?
If Yes : Go to 6.
If No : Stop here. Check block 5 and follow I. below. ___ 05.
6.
Were all denials or terminations in the Zebley period made solely for
non-medical reason(s) (e.g., excess income and resources, SGA,
etc.)?
If Yes : Stop here. Check block 6 and follow I. below. ___ 06.
If No : Go to 7.
7.
Was there a later determination which revised the earliest
denial/termination during the Zebley period to a fully favorable
allowance/continuance?
If Yes : Check block 7 and follow I. below. ___ 07.
If No : Go to 8.
8.
Was there a later determination under the new childhood disability
regulation which covered the entire Zebley period?
If Yes : Check block 8 and follow I. below. ___ 08.
If No: Check block 9 and follow II. below. ___ 09.
I. Non-Members
If you checked block 05, 06, 07, or 08, claimant is not a class member.
CHECK THE NON-MEMBER BLOCK F IN QUESTION 4 ABOVE, ENTER THE SCREEN-OUT
CODE (05, 06, 07, or 08), sign the screening sheet and follow instructions
for non-member routing in the Zebley instruction sheet.
II. Class Members (ODIO Only)
If you checked block 09, claimant is a class member. CHECK THE MEMBER
BLOCK J IN QUESTION 4, sign the screening sheet and follow instructions
for class member routing in the Zebley instruction sheet.
Signature ___________________________________ Office
________________________
Attachment 3. - Notice of Non-Class Membership
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Date: |
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Social Security Number: |
You asked the Social Security Administration to review your claim for
Supplemental Security Income (SSI) childhood disability payments based on
a court case called Zebley v. Sullivan.
Information About Our Review
We have reviewed your claim as you asked. We found that your claim will
not be reviewed as a result of the Zebley case for
the following reason.
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_______ |
We did not deny your claim or terminate your SSI childhood disability payments between January 1, 1980, and February 27, 1990. |
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_______ |
We did not deny your claim or terminate your payments for medical reasons. We denied or terminated your claim or payments because |
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_______ |
We already changed our earlier decision and found that you were disabled and were fully paid. |
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_______ |
We have already reviewed your claim under the new regulation. |
If You Disagree With Us
If you disagree with us, you may contact any Social Security office and
ask that we look at your claim again. You must ask for a review within 60
days from the date you receive this letter.
You may also ask to look at the information we have in your file. If you
want to do this, please let us know. Then, we will let you know when your
file is in your local Social Security office. You will have 10 days from
the day we let you know to come in and look at the file.
If you need help you may contact Community Legal Services in Philadelphia,
Pennsylvania. They are the lawyers for the children in the
Zebley case. Their toll-free telephone number is
1-800-523-0000.
Information About Filing A New Application
If you think you are disabled now, you may file a new application. You can
do this in addition to asking that
we look at your claim again.
A new application is not the same as asking us to review your claim under
Zebley v. Sullivan. In the new application you will
not be able to ask for disability payments for the same period of time you
asked for in your prior claim. If you decide to file a new application,
contact any Social Security office.
If You Have Any Questions
If you have any questions, you may call or visit any Social Security
office. The office that serves your area is located at:
The telephone number is __________. If you call or visit an office please
have this notice with you. It will help us answer your questions.
Attachment 4. - Attachment to Request for Hearing Acknowledgement Letter
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
ATTENTION
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
On February 20, 1990, the United States Supreme Court, in the case of
Sullivan v. Zebley, a nationwide class action,
declared the then current regulatory standard for adjudicating
Supplemental Security Income (SSI) childhood disability claims invalid as
a basis for denying such claims.
On February 11, 1991, the Secretary published new SSI childhood disability
regulations (20 CFR
§§
416.924-416.924e).
On March 14, 1991, the U.S. District Court for the Eastern District of
Pennsylvania entered a Stipulation and Order, negotiated by the parties,
setting the terms for implementation of class relief. As part of the
relief, the Secretary is readjudicating SSI childhood disability claims
denied or terminated for medical reasons between January 1, 1980 and
February 11, 1991.
If you, or someone on your behalf, filed a prior claim for SSI childhood
disability benefits within these dates, you may be eligible for class
relief.
All class member claims are being readjudicated at the initial level by
the appropriate state disability determination service (DDS). If, while
your request for hearing on the current claim is pending at the Office of
Hearings and Appeals, we receive notice from the DDS that they have a
class member claim pending and ready for review, we will dismiss the
request for hearing on your current claim and return it to the DDS for
consolidation with the class member claim. We will take this action unless
we can issue a favorable decision at the time we are notified by
DDS.
Therefore, to minimize any delays which could be caused by consolidation
and maximize the opportunity to have your current claim adjudicated at the
Office of Hearings and Appeals, you should submit any additional evidence
to us immediately or as soon as you receive it.
Attachment 5. - Sample Dismissal Order—(current claim pending at OHA being
consolidated with class member claim pending at DDS)
On ___________, the claimant filed a request for hearing on the issue(s)
raised by (his/her) application(s)
dated ___________. The claimant has now been identified as a member of the
Zebley class and is entitled to have the final
administrative denial of (his/her)
prior application(s) reviewed under the terms of the district court's
March 14, 1991 order. Accordingly, the undersigned hereby dismisses
without prejudice the request for hearing filed on __________, on the
application(s) dated __________.
The claimant's
(date of current application(s))
application(s) (is/are) being
associated with (his/her) prior
claim(s) and forwarded to the ____________ State Disability Determination
Service, which will conduct the Zebley review. The
disability determination service will make a new disability determination,
after completing all development required by the new regulations, and
notify the claimant of its determination and of the right to further
review, should it be necessary.
Any additional evidence concerning the functional effects of the
claimant's impairment(s) on
(his/her) ability to grow, develop
and mature in an age-appropriate manner should be sent to the disability
determination service as soon as possible. Such evidence from the claimant
or any other source will be carefully considered.
Notice of this action is hereby given by mailing a copy to the claimant
and representative, if any.
_____________________________
Administrative Law Judge
Date:
cc:
Attachment 6. - Order of the Appeals Council (remanding class member claim to DDS
following court remand of civil action)
ORDER OF APPEALS COUNCIL
REMANDING CASE TO DISABILITY DETERMINATION SERVICE
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In the case of |
Claim for |
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_____________________________
(Claimant)
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_________________________
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___________________________________
(Wage Earner)
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__________________________
(Social Security Number)
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This case is before the Appeals Council on remand from the United States
District Court for the _____________________________ District
of______________________ (Civil Action No.___________).
On February 20, 1990, the United States Supreme Court, in the case of
Sullivan v. Zebley, a nationwide class action,
declared the then current regulatory standard governing the adjudication
of Supplemental Security Income (SSI) child claims invalid as a basis for
denying such claims. On May 3, 1990, The United States District Court for
the Eastern District of Pennsylvania entered a Stipulation and Order in
Zebley to begin implementing the Supreme Court's
decision. The district court's order provided an interim standard for
determining disability in SSI child claims. The interim standard was to be
applied to all pending and new SSI childhood disability claims until new
regulations governing the adjudication of such claims were published. The
new regulations were published in the Federal Register on February 11,
1991. On March 14, 1991, the district court entered a Stipulation and
Order which approved a final implementation issue settlement agreement
negotiated by the parties. Because the claimant is a member of the
Zebley class, (his/her) claim must be adjudicated
under the standard established by the new regulations.
The Appeals Council has decided it is necessary to return this case to the
appropriate disability determination service for additional evidentiary
development, and adjudication under the new regulatory standard because
the present record is not adequate to make such an adjudication.
Therefore, the Appeals Council vacates its previous action and the
(dismissal/decision) of the Administrative Law Judge, and remands this
case to the appropriate disability determination service. After completing
all development required by the new regulations, the disability
determination service will make a new disability determination, and notify
the claimant of its determination and of the right to further review,
should it be necessary.
Any additional evidence concerning the functional effects of the
claimant's impairment(s) on (his/her) ability to grow, develop and mature
in an age-appropriate manner should be sent to the disability
determination service as soon as possible. Such evidence from the claimant
or any other source will be carefully considered.
Notice of this action is hereby given by mailing a copy to the
claimant.
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____________________________
Harry H. Barr
Administrative Appeals Judge
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Date:
cc: