TN 14 (02-10)
DI 40515.005 Due Process Requirements - Title II
CITATIONS: Regulations 20 CFR 404.1595 , 404.1597 , and 404.1597a
A. Introduction to due process requirements for Title II
The primary issue about ensuring due process is determining the point at which the individual has had the opportunity to be sufficiently informed about the decision in his or her case and to provide input about that decision prior to our effectuating the adverse action. Due process requires that before SSA takes an adverse action that affects continued receipt of Title II benefits, we provide the beneficiary:
notice of the proposed action and the reason for it;
a written summary of the evidence supporting the proposed action; and
an opportunity to rebut the evidence.
B. Due process notices for Title II
Send a due process notice if a beneficiary makes a report of improvement or work activity but does not request in writing that benefits be stopped.
NOTE: A due process notice is required in almost all cases. It should be a rare instance when we do not send a due process notice. If you are unsure, provide a due process notice.
1. Due process predetermination notice requirements
See DI 28080.010B for additional guidance on the specific legal requirements for the content of the due process predetermination notice.
Give the beneficiary 10 days from receipt of the predetermination notice (or 15 days from the date of the notice since we presume it is received 5 days after the date on it) to respond before taking an adverse action. If he or she requests additional time to obtain and submit additional evidence, you may grant an additional 10 days. For further guidance on allowing a beneficiary an additional 10-day period(s) to obtain and submit additional evidence, see DI 28080.045B.
In certain situations (e.g., Title II cases involving automated computer or non-automated data match), give 30 days before taking an adverse action. See GN 03001.015A.2. for the time period for rebuttal before taking a title II adverse action. For failure to follow prescribed treatment situations, see DI 23010.005 – DI 23010.030.
EXCEPTION: A predetermination notice is not required when it is determined that disability has ceased, and the beneficiary has requested in writing that his or her benefits be stopped.
2. Due process/statutory benefit continuation
In medical/vocational cessations and certain medical adverse reopening cases (i.e., medical adverse reopening cases that require statutory benefit continuation language in the notice of the revised determination), give the beneficiary a decision notice of an unfavorable determination that includes:
notice of the action,
the reason for the action,
a written summary of the evidence supporting the action, and
the option to elect statutory benefit continuation and the time limits for requesting it per DI 12027.008.
See also DI 28080.005B.2.
3. Due process notification of auxiliaries
Due process notification to the primary beneficiary is considered notice to all auxiliaries who are living with him or her.
You must notify all auxiliaries who do not live (primary residence) with the primary beneficiary of the proposed adverse action before benefits are suspended or terminated.
You must give due process notification to auxiliaries, even if they are in suspense status.
NOTE: If the auxiliary is in suspense status, modify the due process notice language to delete the information about “receipt of benefits” and “benefits being paid.” See DI 28080.020B for a sample notice to auxiliaries in Title II and concurrent case situations.
For auxiliaries who do not live with the primary beneficiary, you must provide them due process notification at the same time that you send a due process notice to the primary beneficiary.
If two or more auxiliaries have the same payee, only one notice is necessary for that payee.
4. Concurrent Title II/Title XVI cases
For due process requirements in concurrent Title II/Title XVI cases, see DI 40515.010A.3.
See GN 01010.325B, for the content of a due process notice to a beneficiary affected by an adverse claim.
See GN 01010.320B.3.a., for instructions when a beneficiary protests an adverse claim.