TN 27 (02-16)
GN 00210.005 Processing Cases Involving Same-Sex Marriages and Non-Marital Legal Relationships that were Previously on Hold
A. Process cases that were previously on hold
The previous version of this section directed you to hold claims, appeals, post-eligibility and post-entitlement (PE) actions involving same-sex marital status determinations if we had not yet issued processing instructions in subchapter GN 00210.000. Other sections in GN 00210.000 directed you to hold some cases to protect against potential loss of benefits until we published instructions for processing those cases.
IMPORTANT: Review all same-sex marriage-related claims, appeals, and post-eligibility and post-entitlement actions that have been on hold. Process all of these cases now except where processing a Title II post-eligibility or post-entitlement action would result in an overpayment due to recognition of a same-sex marriage. Specifically, refer to GN 00210.005C in this section, and continue to hold overpayment cases that fall within the categories “Marriage or Remarriage, Effect on Title II Entitlement,” and “Marriage Adversely Affects Title II Benefits Subject to the Family Maximum.” For cases involving Title XVI overpayments, please refer to EM-16013 REV2 for detailed instructions.
Instructions in GN 00210.000 contain policies, procedures, and processing instructions for claims, appeals, post-eligibility and post-entitlement actions involving a determination of a same-sex couple’s marital status. Except for the instructions in GN 00210.000, you should apply all other current and relevant instructions in the same manner for same-sex couples and opposite-sex couples.
If you determine that a legal opinion is necessary, request a legal opinion per GN 01010.815.
B. How to identify claims previously on hold, appeals, and post-eligibility and post-entitlement actions involving same-sex marriages or non-marital legal relationships (NMLR)
Examine all systems-generated listings and manual controls maintained in the field office (FO), workload support unit (WSU), processing center (PC), Office of Disability Adjudication and Review (ODAR), or Office of Medicare Hearings and Appeals (OMHA) to locate all same-sex marriage cases previously on hold.
1. Identifying claims previously on hold and appeals for processing
First, review manual listings, if any, your office may have independently maintained to control previously on hold initial claims and appeals involving same-sex marriages or NMLRs.
Then, follow the instructions for your office:
a. FOs, WSUs, and PCs
Locate all cases pending in the Modernized Claims System (MCS) and the Modernized SSI Claims System (MSSICS), where 626 appears in the first three positions of the unit code on the development worksheet (DW01).
Locate all cases pending at ODAR with a 501 Case Flag annotated, “Special Case Processing - United States v. Windsor,” as well as all same-sex marriage-related cases previously on hold at ODAR according to instructions in the Hearings, Appeals, and Litigation Law manual (HALLEX).
Locate all cases forwarded to OMHA according to instructions in GN 03108.210.
2. Identifying claims previously on hold - post-eligibility and post-entitlement (PE) actions
First, review manual listings, if any, your office may have independently maintained to control claims previously on hold for PE actions involving same-sex marriages or NMLRs.
Then, follow the instructions for your office:
Locate all cases pending:
where 626 appears in the first three positions of the unit code on the modernized development worksheet (MDW).
with this remark on the Supplemental Security Record (SSR): “HOLD 626 WINDSOR PE ACTION per EM-15016.”
where 626 appears in the first three positions of the unit code on the MAPS Development Worksheet (DWMP) for Medicare Part D subsidy events previously on hold.
Locate all cases pending, according to the local procedure you originally followed to hold the post-entitlement action.
C. Chart for processing all current and same-sex marriage cases previously on hold
Consult this chart to process previously on hold claims, appeals, or PE actions involving a same-sex marriage. Follow the referenced instructions:
Same-Sex Marriage Subject
Alternatives to Duration Requirement for Surviving Spouse Benefits: A claimant files for same-sex surviving spouse benefits and meets one of the conditions in RS 00207.001A.1.a.3. – RS 00207.001A.1.a.7. as an alternative to the 9-month duration of marriage requirement.
Divorced Spouse Claim: A claimant files a Title II or Medicare claim or appeal as the same-sex divorced spouse of the number holder (NH).
Surviving Divorced Spouse Claim: A claimant files a Title II or Medicare claim or appeal as the same-sex surviving divorced spouse of the NH.
Surviving Divorced Mother or Father Claim: A claimant files a Title II or Medicare claim or appeal as the NH’s same-sex surviving divorced spouse with an entitled child of the deceased NH in his or her care.
Lump Sum Death Payment (LSDP) Claim, Late Filing: A claimant alleges that he or she failed to file for the LSDP payment within the prescribed two-year limit due to same-sex marriage laws in effect prior to the Windsor or Obergefell decisions.
Underpayment: A same-sex surviving spouse claims a Title II underpayment.
Marriage or Remarriage, Effect on Title II Entitlement: A claimant is married, or a beneficiary marries, someone of the same sex, when the Title II benefit type requires (with certain exceptions) that he or she be unmarried.
IMPORTANT: Do NOT process any actions to terminate benefits. Hold these cases and follow instructions in GN 00210.005D in this section.
Continue to hold these cases; Do NOT process.
Marriage Adversely Affects Title II Benefits Subject to the Family Maximum: A claimant files a Title II claim as a same-sex spouse, adversely affecting the benefit amount(s) of auxiliaries on the same record.
IMPORTANT: Do NOT process these cases. Hold these cases and follow instructions in GN 00210.005D in this section.
Continue to hold these cases; DO NOT process.
PE Action Would Result in a Title XVI Overpayment: An action would result in a Title XVI overpayment due to deeming of income or resources based on recognition of a same-sex marriage or applying the couple’s payment rate or couple’s resource limit to a member of a same-sex couple.
D. Holding PE actions when recognition of marriage or remarriage creates a Title II overpayment
Follow these instructions ONLY to hold PE actions when recognition of a marriage or remarriage creates a Title II overpayment. If the case involves a Title XVI overpayment, please refer to EM-16013 REV2.
Set up a modernized development worksheet (MDW), entering the beneficiary or claimant’s name, SSN, XREF SSN, and contact information;
On the MDW, enter as the first four positions of the unit the type code that corresponds to the relationships status alleged by the claimant. Retain this as the unit code, regardless of the outcome of the PE action
Enter 626M for marriage
Enter 626C for civil union
Enter 626D for domestic partnership
Enter 626R for reciprocal beneficiary
Enter 626O for other relationship
Record information about the PE action requested in the MISC field; enter “WINDSOR” in the Issue field; enter “626PE” in the Category field; and record any other pertinent information on the remarks screen
TICKLE the MDW issue for 30 days. Do not process the action until we revise this instruction GN 00210.005 to permit processing. Do not delete the MDW.
Follow local procedure to hold the PE action.