TN 9 (02-08)
GN 02270.009 Folder Review by the Person for Personal Conference
Prior to the conference, the person has the right to review anything having to do with the overpayment that is in the claims folder or is stored electronically as well as applicable law and regulations with the decisionmaker or an SSA representative who is prepared to answer questions. If the person asks for a telephone or video teleconference, the field office must mail a copy of anything having to do with the overpayment in the folder and/or stored electronically to him/her for review prior to the conference.
The Field Office (FO) must give persons who choose to conduct the personal conference via telephone or video teleconference an opportunity to submit documentary evidence by mail or fax prior to the scheduled conference. If necessary, reschedule the conference to allow the person time to do this.
B. Preparing the claims folder for Review
Prior to allowing the individual to conduct a folder review or mailing anything that has to do with the overpayment that is in the claims folder, or stored electronically remove:
Furnish a copy of any other requested material from the claims folder, electronic storage, or pertinent sections of the law or regulations (GN 03340.005), and make a record for the file of what was furnished.
C. Procedure for escalating the case to an Administrative Law Judge (ALJ)
In rare cases, the FO cannot conduct the conference because the person insists on questioning adverse witnesses who will not cooperate or material evidence can only be obtained by subpoenaing a witness or record. In these situations, the case can be escalated to an ALJ and recovery efforts will not resume until the ALJ makes a decision. The case may be escalated at any stage of the proceedings once it appears that waiver cannot be approved.
Have the person complete an HA-501-U5 or equivalent request for hearing.
If the person refuses to complete the HA-501-U5 or equivalent, proceed with the personal conference
If the person completes an equivalent request, prepare an HA-501-U5 per (GN 03103.010).
Advise the Processing Center (PC) that the folder has been transferred.
Indicate on the transmittal form to the ALJ why the case is being escalated.
When mailing the person's copy of the HA-501-U5, advise him that a decision cannot be made because of the issue(s) involved; that the case has been forwarded to ODAR for ALJ review; that the ALJ will notify him of the time and place for the hearing; and that no action will be taken on the overpayment until the ALJ makes a decision.
D. Procedure for Requesting the Adverse Witness's Presence
Point out that the evidence supplied by the witness is in file; explain what it contains and that SSA (not the witness) makes the determination.
Determine why the person believes that questioning the witness would be helpful.
If it would be helpful, try to get the witness's voluntary cooperation. (The decisionmaker has no subpoena power.)
2. Witness Refuses To Appear
Make arrangements for telephone contact during the conference; or
Have written questions prepared and mailed to the witness for completion; or
Arrange to obtain alternative evidence; or
If none of the above is possible, consider escalating the conference to an ALJ hearing.