TN 15 (07-06)
GN 03103.260 How to Protest ALJ Decisions
1. PC questions ALJ decision
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 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.)
NOTE: There are acquiescence rulings which affect SSA's ability to change ALJ decisions in certain circuits. In those circuits, follow the rulings in processing ALJ decisions. (See GN 03501.001 for instructions on acquiescence rulings.)
2. Reasons for protesting ALJ decision
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 (sometimes resolved by phoning ALJ before referral); 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.
3. FO questions ALJ decision
FO's need not question title II ALJ decisions since the PC's review those decisions for errors before implementation. However, if the FO feels the need to question a title II decision, send a memorandum to the appropriate PC for possible referral to Office of Analytics, Review and Oversight, Office of Appellate Operations (OAO).
4. Protesting decision made by HHS ALJ
In situations where the PC has an HHS ALJ decision that cannot or should not for reasons cited 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 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
B. Procedure — questionable cases — (telephone contact with Central Office)
Questionable ALJ decisions should not be sent to Central Office. If there is a need to discuss a questionable case with Central Office before effectuation, call the Office of Payment Policy, ODISP.
C. Procedure — timely referral; no effectuation
1. Refer within 40 days
The PC's should try to refer all “protests” of ALJ decisions to OAO 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. (See GN 03103.260D. for instructions on when payment is required.) For cases where there is a Certified Electronic Folder, please refer to DI 80830.075A.
2. Determine if AC takes own motion review
If the AC takes own motion review, payments will not be necessary until the AC issues a decision. If the AC does not take own motion review, then the PC's must make payments (see GN 03103.260C.3.). For all cases referred, the PC's may contact OAO at 703-605-8000 no later than the 50th day after the date of the ALJ decision to determine if own motion review will be taken. If OAO expects to send timely notice for own motion review, accept that as final without further telephone calls or questions; i.e., one call on any case is sufficient. If the AC did not receive the folder, start search procedures and try to initiate payment without the claims folder. Rather than wait for the PC phone call, 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 call the PC.
3. Pay if AC does not take own motion review
Do not photocopy and hold material from the claims folder for the processing of payments when you transfer it to the AC. If payment is necessary, the AC may be able to give you pertinent information from the claims folder necessary to initiate payment at that time over the phone; e.g., proof of death established by the ALJ, benefit amount information from wage record, etc. If not, the AC will make arrangements (get an exact P.O. Box mailing address for the Reconsideration and Disability Review Branch in the PSC or Division of Appeals Processing, ODO) for transferring the claims folder back to the PC for immediate effectuation of the ALJ decision. The claims folder is sent back to the AC after payments are started so the AC can consider whether to reopen and revise the ALJ decision.
D. Procedure - untimely referral
1. Payment required
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.
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 regular procedures will dispose of these. Therefore, without fault findings and waiver requests will apply to the overpayments.
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.
NOTE: Insured status may have been an issue which was appealed to the ALJ or the ALJ may have decided to include insured status as an issue in the hearing decision. ALJ's sometimes routinely make a statement that the NH meets insured status without actually making insured status an issue at the hearing or making a decision on it. If some of the exhibits pertain to insured status, consider that the ALJ made a decision on insured status. (Adjudicator will have to exercise judgment as to whether ALJ made decision on insured status when only such things as earnings record are listed as exhibits.)
2. Payment not required
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.
The PC should develop insured status at the same time it protests the ALJ decision.
The PC should check to see if the AC is going to take jurisdiction if the development:
If development shows the claimant has insured status, the PC should:
If development shows the claimant does not have insured status, the PC should:
NOTE: In some cases, the ALJ makes a finding that the claimant meets the medical requirements and tells the PC to determine if insured status is met. The PC has no problems with the ALJ decision, so the protest procedures do not apply. The PC should not pay benefits while it develops the insured status issue. Benefits will only be paid if the development shows insured status is met. Otherwise, the case should be denied.
E. Procedure — how to pay case referred to AC
Compute the payment amount based on information in file. If any information is ambiguous or missing, pay the most reasonable amount justified by the information which exists in the file. Effectuate these payments as soon as possible (after the 60 days have expired, if necessary).
It is not necessary to wait 60-days to effectuate the ALJ decision. Effectuate payments as soon as possible, which is proper procedure for any favorable decision, especially in appeals cases. Because of additional development in GN 03103.250B. and processing time, effectuation may sometimes be done after the 60 days have expired.
If the claimant is already receiving benefits, before forwarding the case to the AC, the ALJ decision should be fully effectuated and any additional money paid to the claimant. Also, if an ALJ decision concerning an overpayment issue is involved, follow the regular overpayment guides in GN 02210.000 ff. An ALJ decision which states that SSA should pay back an already recovered overpayment should be effectuated.
Withhold 25 percent of the payment for the attorney representation fee, where applicable.
F. Procedure — development required on separate issue
If the PC is protesting a favorable ALJ decision which did not adjudicate all factors of eligibility, the PC should do any development necessary on issues not decided by the ALJ simultaneously with the ALJ protest.
G. Procedure — notices
Do not send a notice of referral and/or a copy of the protest memo to the claimant/representative in any of the cases referred under these procedures, regardless of whether the referral is timely for own motion review or if reopening may be utilized. In the protest cases, it is preferable for the AC staff to send the claimant's first notice that own motion review or reopening is being taken. The protest memo will be included by the AC when they notify the claimant they are taking action. In payment cases, follow GN 03103.250C. notice procedures without mentioning the referral.
H. Procedure — how to refer case to AC
These instructions apply to all RSI issue cases processed by all PC's, including non-claims earnings cases processed by Office of Earnings Operations (OEO).
1. Mailing address
Refer the ALJ decision (including overpayments where no payment is due) with the claims folder for review to: OAO Division of Quality
5107 Leesburg Pike, Room 1400
Falls Church, VA 22041
2. Case control
On PCACS, show temporary folder movement to OAO 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 OAO 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.).
See DI 42010.065 for instructions for handling protests on disability issues.