TN 4 (02-90)

DI 33020.025 Reopenings

A. Reference

See DI 27500.000ff for an understanding of the rules for reopening.

B. Policy

1. Basis Change

When a DHO proposes to reopen an unfavorable reconsidered determination to change only the basis for the cessation, the claimant will be offered a disability hearing before the determination is issued.

2. Conflicting Determinations

See DI 27520.030 and C.2 below for information on conflicting determinations.

3. Due Process

  1. See DI 27525.001 for general information on due process.

  2. Requirements

    • A notice explaining the evidence and the reasoning for the proposed adverse reopening must be sent to the claimant.

    • The notice must include the right to submit additional evidence or arguments, and the right to request a disability hearing before a formal adverse determination is made.

  3. Notice Content

    A notice containing the following elements is sent to the claimant/ representative prior to taking an adverse action:

    • Indication that we are planning to reopen our previous determination and the reason for doing so (e.g., new evidence received, an error was made.)

    • The date of the proposed cessation.

    • A list and dates of all medical reports used to make the preliminary judgment to revise. If development was undertaken and reports were not received, a disclaimer statement will be provided that only reports necessary to the decision process were obtained.

    • An explanation of why the evidence indicates that the individual is not disabled or blind. This is similar to the information given on a personalized disability notice.

    • An explanation that the claimant may request a disability hearing and present any evidence or arguments in support of his/her belief that he/she is disabled. This must be requested within 10 days of the receipt of the notice, by completing the Response to Notice of Revised Determination (SSA-765), and returning it to the DHU. (An SSA-765 is attached to the notice so the claimant can respond.) A formal determination will be made if the claimant fails to respond within 10 days.

    • An explanation of the effect of a formal adverse determination (i.e., benefits continue for two months after disability has ceased.)

    • An explanation of disability hearing rights, including the right to representation, to bring witnesses and evidence, and that notification of the date/place/time of the hearing will be sent by mail.

  4. Auxiliaries must also receive advance notice of a proposed adverse action. Model language for such a notice is in DI 27525.005.

    NOTE: Contact with the primary beneficiary is considered advance notice for all auxiliaries who are living with him/her.

C. Procedure

1. Recon Determination Cannot be Reopened and Revised

Follow DI 27501.005.

2. Conflicting Determinations

  1. General

    Offer due process as shown in B.3 above before revising a favorable determination to correct conflicting determinations.

  2. DHO Issued Unfavorable Determination—ALJ or Appeals Council (AC) Issued Favorable Decision

    • Prepare a revised determination to conform the DHO's prior decision to the ALJ's or AC's decision, or

    • Forward the claims to ODAR's central office if there is a basis for the ALJ's or AC's decision to be reopened, e.g., material evidence is in the claims folder which was not available to ALJ or AC, or error on the face of the evidence exists. Prepare a revised determination as shown above if ODAR responds by saying the ALJ's or AC's decision will not be reopened.

  3. DHO Issued Favorable Determination—ALJ or AC Issued Unfavorable Decision

    Forward the claims to ODAR's central office to resolve the conflict. This is necessary considering that DHOs cannot reopen an ALJ's or AC's decision and that the claimant must be given an opportunity for a hearing before revising a favorable determination.

3. After Due Process Notice Released

Diary the case for 15 days (10 days plus 5 days mail time).

Add the case to the hearing schedule upon receipt of the claimant's response to the notice or upon expiration of the diary, whichever is earlier.

Review all responses received from the claimant to make sure that the information needed to provide notification of a hearing is present.

4. Due Process Notice Returned (Whereabouts Unknown)

Attempt to contact the beneficiary, including auxiliary beneficiaries, at their last known telephone numbers. Issue a due process notice if an address is obtained. Otherwise, request the FO to try to locate the individual's whereabouts. Advise the FO of any leads in the claims folder which may aid in locating the beneficiar