If, while effectuating the ALJ decision, the PC has a question as to the legality of the decision or there is a problem as to how the decision should be effectuated (e.g., the decision is vague or there is a clerical error), the PC may refer the case to the Appeals Council (AC). The AC may either take own motion review (within 60 days of the ALJ decision) or reopen and revise the decision.

Even if the ALJ makes an error which is unfavorable to the claimant, the PC may still follow the rules in this section concerning effectuation and protest.

Reopening of a prior final determination made at the reconsideration level or below can be done by the PC without forwarding, provided it is allowed by the rules of administrative finality, see GN 04001.020

The PC may recommend that the AC review an ALJ decision. The reason for this recommendation is that the ALJ decision:

• •

  contains a clerical error which affects the end result (First, contact hearing office (HO) for an amended decision. For HO contact information see DI 42010.075); or

• •

  is clearly contrary to the Act, regulations or rulings; or

• •

  is not clearly in error, but the PC has a problem effectuating.

In all of the above situations, the need for referral should be clear with no judgment factor involved.

Also, if the error is not part of the issue which was before the ALJ, we do not have to incorporate the error when we effectuate the decision.

The FO does not need to question Title II ALJ decisions since the PC reviews those decisions for errors before effectuation. However, if the FO determines that it is necessary to question a Title II decision, the FO should:

a. Prepare a memorandum that includes:

• •

  A brief opening statement outlining:

  • –

    the reason for the protest;

  • –

    the name and SSN of the claimant (if involved, any other earnings records);

  • –

    the date of the decision; and

  • –

    the name of the issuing administrative law judge (ALJ), attorney advisor, or administrative appeals judges (AAJs).

• •

  A summary of the facts of the case and analysis of the issue in question.

• •

  Citations to relevant portions of the Social Security Act, the Code of Federal Regulations (CFR), and any applicable Acquiescence Rulings.

• •

  A closing statement that restates the basis for referring the protest; and

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  Contact information for the FO questioning the decision, including name, title, component, and FO control email address.

Refer to DI 42010.080C. for an example of a memorandum.

b. Send the memorandum to the PC using Evidence portal for possible referral to the AC:

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  Select “Yes” for “Does this document require PC action?”

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  Select the document type “APPEAL- Appeal Related” and add “ALJ Protest” in comments.

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  Select the appropriate claim filing or click “no matching claim filing and program type T2.”

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  Import the document, if saved electronically, or create a barcode for paper documents.

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  EP will automatically determine the PC of jurisdiction and route the document to the correct technician.

• •

  The PC will review the memorandum and decide whether or not to proceed with a referral to the AC.

If the protest deadline is approaching, use the manager-to-manager process to ensure timely communication. Instructions for this process can be found in GN 01070.228A.5.

 

In situations where the PC has an HHS ALJ decision that cannot or should not for reasons above be effectuated, the PC will send a protest memo to the HHS Departmental Appeals Board for review.

The PC will follow the same guidelines in protesting HHS ALJ decisions as SSA ALJ decisions; i.e., forwarding the case within 40 days of the ALJ decision to provide sufficient time for own motion review. Forward the protest letter, stapled to the Office of Medicare Hearing and Appeals (OMHA) case file, to the following address:

Department of Health and Human Services
Departmental Appeals Board, MS 6127
Medicare Appeals Council
330 Independence Ave., S.W.
Cohen Building - Room G-644
Washington, D.C. 20201

The PC's should try to refer all "protests" of ALJ decisions to AC in sufficient time to allow the AC to take own motion review; i.e., within 60 days of the date of the ALJ decision.

The AC should receive the case within 45 days of the date of the ALJ decision. Therefore, to allow 5 days mail time, do not refer claims folders after the 40th day without first starting the payments.

For instructions on when payment is required, see GN 03103.260C.

For cases where there is a Certified Electronic Folder, refer to DI 80830.075A.

If the AC takes own motion review, do not process payments until there is a final favorable decision.

If the AC does not take own motion review, then the PC's must make payments, see GN 03103.260B.3.

For all cases referred, the PC's may contact AC at ^DA DICompliance Protest Cases no later than the 50th day after the date of the ALJ decision to determine if own motion review will be taken.

If the AC expects to send timely notice for own motion review, accept that as final without further contact ; i.e., one contact on any case is sufficient.

If on or before the 50th day, the AC knows there will be a delay beyond the 60 day own motion period, the AC should alert the PC.

If payment is necessary, coordinate with the AC as needed for pertinent information necessary to initiate payment; e.g., proof of death established by the ALJ, benefit amount information from wage record, etc.

 

1. a. 

   Those cases which cannot be forwarded to the AC within sufficient time to allow the AC to take own motion review should still be forwarded to the AC. The AC can take jurisdiction of the case under the reopening provisions of the regulations. Before forwarding the case, payments should be started, including any retroactive payments.

2. b. 

   All payments made because referral was not timely for own motion review are subject to adjustment or correction based on the AC review decision. Underpayments or overpayments may result and as applicable, follow regular waiver procedures to address any overpayments.

3. c. 

   If insured status was an issue at the hearing, the usual protest procedures apply. We pay if the AC does not take jurisdiction even if the PC is protesting that NH does not have insured status.

1. a. 

   Payments are not made when a case is referred to the AC if:

   • •

     The PC is protesting an issue other than insured status; and

   • •

     The PC notices insured status is not met; and

   • •

     Insured status was not an issue at the hearing.

2. b. 

   The PC should develop insured status at the same time it protests the ALJ decision.

3. c. 

   The PC should check to see if the AC is going to take jurisdiction if the development:

   • •

     Is completed before the AC takes jurisdiction of the case; and

   • •

     Shows the claimant has insured status.

4. d. 

   If development shows the claimant has insured status, the PC should:

   • •

     Not pay if the AC is going to take jurisdiction; or

   • •

     Pay if the AC is not going to take jurisdiction.

5. e. 

   If development shows the claimant does not have insured status, the PC should:

   • •

     Not pay while protesting, even after 60 days; and

   • •

     Notify the AC that insured status is not met.

Email notification must be provided to the AC in all protest cases. Email the protest memo to ^DA DICompliance Protest Cases.

Generally, certified electronic folders (CEF) or electronic non-medial (EMN) records should be utilized when available.

If CEF or ENM records are not available, alert the AC in the email notification. The AC will respond to the initial email with further instructions. Do not route any paper material to the AC before receiving instructions on appropriate routing.

On PCACS, show temporary folder movement to the AC using the three digit office code (LF6) from DOORS for the new location. On the face of the folder use the appropriate flag including a return address so that the AC can return the folder expeditiously to the appropriate unit.

Diary all cases referred for 50 days from the date of the ALJ decision, see GN 03103.260D.2.