TN 7 (11-16)
DI 42010.220 Interim Benefits in ALJ “Protest” Cases Involving a Disability Issue Referred to ODAR
A. Time frame for protesting an Administrative Law Judge (ALJ) decision
Generally, the Office of Central Operations (OCO) or the Program Service Center (PSC) staff has 45 days from the date of an administrative law judge (ALJ) decision to protest the case to the Office of Appellate Operation (OAO). Because of the time sensitivity involved with these cases, the technician should complete the protest immediately. This time frame serves as a general guideline to allow the OAO sufficient time to allow the Appeals Council (AC) to take own motion review. Completing the request within the 45-day window period allows the AC time to take its own motion review within the required 60-day period. See DI 42010.065B.
The AC may exercise its own review authority if an SSA office protests the ALJ's decision, or because of quality assurance sampling of ALJ decisions. The OAO will fax the interim benefit start order to the appropriate processing center (PC) in accordance with DI 42010.210A.
B. When are interim benefits payable after a protested ALJ case
The OAO will notify OCO/PSC to start interim benefits (IB) payments. If OAO does not issue a start order after 110 days have passed, see DI 42010.225A.
See DI 42010.215C.1 for an explanation on how to initiate Critical Payment System payments for Interim Benefits.
C. Disability claim processed before the AC takes its own motion review
1. Case processing
If SSA effectuates the disability claim before the AC takes its own motion review:
Do not stop current benefits in order to establish interim benefit payments.
Inform the OAO that OCO/PSC already processed regular disability benefit payments, and they should inform OCO/PSC when the disability decision becomes final to ensure correct effectuation of the case.
Complete form SSA-5002 (Report of Contact) and add a special message to the master beneficiary record explaining that SSA processed regular disability benefit payments erroneously and SSA must issue payments under the interim benefit procedure established by P.L. 100-647, section 8001. For electronic folders, create a barcode coversheet and fax the SSA-5002 into eView. For paper folders, fax the complete form SSA-5002 into the non-disability repository for evidentiary documents system.
2. Processing unfavorable final decision
If the final decision is unfavorable, SSA will not consider the statutory interim benefit period as an overpayment unless fraud is involved. SSA only considers any erroneous payment prior to the statutory interim benefit period as an overpayment.
Example: If SSA processed regular disability benefit payments erroneously before a final decision is reached with entitlement beginning January 2015, but interim benefits should have begun November 2015, the period of January 2015 through October 2015 would be considered overpaid due to no entitlement. Any payment paid beginning November 2015 and after would be considered a part of the interim benefit period and would not be considered an overpayment.