TN 24 (10-04)

SI 02301.300 Due Process Protections - General

A. Preview

The following sections explain:

  • Goldberg/Kelly (GK) due process protections including the right to benefit continuation during appeal (“protected payments”),

  • the two different types of benefit continuation (GK and statutory) depending on the reason for the adverse action,

  • Supplemental Security Income (SSI) systems GK processing,

  • the required notices, and

  • how to correct protected payments due to changes which are not under appeal including the Cost-of-Living Adjustment (COLA) (see SI 02301.325 and SI 02301.330.)

B. Introduction

1. Constitutional Due Process Rights

The U.S. Supreme Court held in Goldberg v. Kelly (1970) that the basic elements of due process under Constitutional law require that public assistance recipients receive advance notice of an adverse action. The notice must provide the individual with sufficient opportunity to appeal and the right to a face-to-face evidentiary hearing before an impartial decision maker without interruption in benefits. Because of this ruling, and a subsequent interpretation of due process rights in Cardinale v. Mathews (1975), Social Security Administration (SSA) will not reduce, suspend or terminate SSI benefits without first issuing an advance notice which provides full due process rights including the reason for the action and the right to appeal and continue receiving unreduced benefits until there is a decision at the first level of appeal.

2. GK Benefit Continuation

NOTE: GK Benefit Continuation applies only to non-disability determinations which result in a reduction, suspension, or termination of SSI benefits.

The advance notice explains that the individual has 60 days after receiving the notice to file for a reconsideration. It also explains that if the individual files the appeal request within 10 days after receiving the notice, SSI payments will continue at the same amount until there is a decision on the reconsideration.

NOTE: Generally, the first level of appeal for adverse actions resulting from non-disability determinations is a reconsideration.

When individuals respond to the advance notice and/or want to appeal, Field Office (FO) employees must fully explain the determination, appeal rights and right to benefit continuation (see SI 02301.310 for explanations). Individuals, on their own initiative, may choose to waive their automatic right to benefit continuation, but must do so in writing. However, employees must NEVER suggest waiver of benefit continuation or ask specifically if they want to waive benefits during appeal. Individuals who waive benefit continuation may change their decision and request reinstatement (including any retroactive payments, if due) as long as the reconsideration determination is pending.

When individuals contact the FO and question or disagree with a determination after the 10-day or 60-day time limits have expired, employees will assist them if they want to appeal and will develop good cause for extending the time limits for appeal and benefit continuation. (For good cause instructions, see GN 03101.020A., SI 02301.310, and SI 04020.020B.)

As long as an individual remains otherwise eligible (but for the issue under appeal), GK benefit continuation ends the month there is determination on the reconsideration. SI 02301.325 explains how to adjust protected payments due to changes in circumstances which are not under appeal.

3. Statutory Benefit Continuation (SBC)

NOTE:STATUTORY BENEFIT CONTINUATION (SBC) applies only to unfavorable continuing disability determinations.

In the Social Security Disability Benefits Reform Act of 1984, Congress further clarified how benefit continuation applies when SSA determines that an individual's disability ceased, did not exist, or is no longer disabling. Statutory benefit continuation is not automatic. Individuals must decide if they want to receive benefit continuation. They may elect to receive benefit continuation at the reconsideration level and again at the hearing level of appeal. They may also elect to receive benefit continuation at the Hearing level even though they did not elect it at the reconsideration level of appeal. (See DI 12027.010) Individuals may receive benefit continuation through the month before the hearing decision as long as they remain otherwise eligible.

NOTE: As of 08/16/2003 GK procedures are no longer used to process SBC cases.

The policy and procedures for the statutory due process provisions are in DI 12027.000. Follow those sections to provide due process in continuing disability cases.

C. Definitions

1. Advance Notice

An advance notice (“GK notice”) is a written notice of a proposed adverse action. It allows an individual time to appeal the action and continue to receive unreduced benefits.

2. Adverse Action

An adverse action is an action that results in a reduction, suspension, or termination of SSI benefits. It is an initial determination with appeal rights.

3. Adverse Action Month (AVM)

The adverse action month (AVM) is the future month when the adverse action will reduce benefits unless an individual files an appeal within 10 days after receiving the GK notice or later if the individual has good cause for extending the 10 day limit.

4. First-of-the-Month Payments

First-of-the-month payments are dated the first day of the month on the Supplemental Security Record (SSR). However, the actual payment to the individual is dated earlier when the first day of the month falls on a Saturday, Sunday, or Federal holiday (see SM 01315.044).

NOTE: First-of-the-month payments are produced from the monthly recurring and supplemental payment tapes. Recurring payments are identified by payment type code 1 in the Pay Flag One field in the Payment History (PMTH) segment on the SSR. Supplemental payments are identified by payment type code 3.

5. Formal Conference

A formal conference is an appeal method at the reconsideration level. It allows the individual to examine the evidence in file, to present witnesses, to present oral and documentary evidence, to request that SSA to obtain evidence and subpoena witnesses, and to be able to cross-examine these witnesses (see SI 04020.020B.7.).

See SI 04020.050 for additional information about SSI Reconsideration Conferences.

See SI 04005.010 for additional information about the SSI Administrative Review Process.

6. Informal Conference

An informal conference is an appeal method at the reconsideration level. It allows the individual to meet with the SSA decision maker who conducts the conference. Witnesses may also be presented (see SI 04020.050B.2.).

7. Case Review

A case review is a method of reconsideration involving a thorough review of all evidence in the file, including evidence submitted by the claimant, his/her representative or otherwise secured by SSA. No conference is held with the individual.

8. Minimum Benefit Level (MBL)

The MBL is the new benefit amount due after the system posts an adverse action to the record.

9. Monthly Benefit Amount (MBA)

The monthly benefit amount (MBA) is the total of all payments issued in the month and due for that month including first-of-the-month payments, underpayments, amounts (or voided amounts) withheld for overpayment recovery, penalty deductions and returned checks.

10. GK Payment Continuation

GK payment continuation is the term used for continuing unreduced benefits until there is a decision at the first level of appeal. GK payment continuation applies only to non-disability determinations which result in a reduction, suspension, or termination of SSI benefits. GK payment continuation ends the month there is a determination on the reconsideration. (See SI 02301.310 on appeal and the right to payment continuation.)

NOTE: A recipient's record goes into “protected payment status” to maintain payment continuation. Special manual procedures are then required in most cases to correct benefit amounts and issue notices.

11. Statutory Benefit Continuation (SBC)

Statutory Benefit Continuation (SBC) is the term used for continuing unreduced benefits until there is a decision made by the Administrative Law Judge (ALJ). SBC applies only to unfavorable medical disability determinations which result in the suspension or termination of SSI benefits.

12. Protected Payment Level (PPL)

The PPL is the monthly benefit amount in effect prior to a proposed adverse action. It is the unreduced benefit amount that a recipient may continue to receive until there is a decision at the first level of appeal. The PPL can change during the appeal period due to changes in the recipient's circumstances or a change in the Federal Benefit Rate (FBR) due to a Cost of Living Adjustment (COLA).

13. Reduction in Payment

A reduction in payment is a new monthly payment rate that is less than the payment rate due in the last regular month of payment.

14. GK Temporary Period

The GK temporary period begins the day after the GK notice cutoff (usually between the 7th to 9th day of each month) and ends with the recurring tape cutoff (usually between the 15th to 21st day of the month). During this period, the system can reduce the following month's benefit when the FO produces an online GK notice or issues a manual GK notice. See SI 02301.301C.2.

D. Policy - General

1. Recipients' Rights

GK procedures provide recipients with:

  • a written advance notice of an adverse action, and

  • time to question and appeal the action before it occurs, and

  • the right to a formal conference at the reconsideration level of appeal, and

  • the right to continue receiving unreduced benefits until there is a decision at the first level of appeal.

Individuals may not waive written advance notice of an adverse action, but they may waive their right to payment continuation in writing (see SI 02301.310). They may also choose a case review or an informal conference instead of a formal conference (see SI 04020.020B.7.).

See SI 04020.050 for additional information about SSI Reconsideration Conferences.

See SI 04005.010 for additional information about the SSI Administrative Review Process.

2. Explaining Recipients' Rights

When FOs discuss changes that result in adverse actions with recipients, they explain fully the effect of changes and recipients' rights under GK procedures. Instructions are in SI 02301.310.

E. Policy - Written Advance Notices

1. When Advance Notice is Required

Advance notice is generally required for an adverse action. However, the following situations are exceptions to GK procedures and do not require advance notice:

  • A recipient dies (T01)

  • A recipient's representative payee dies or is no longer available or suitable to act as payee (S08)

  • A recipient's whereabouts are unknown (S06)

  • A check returned for miscellaneous reasons (S07)

  • A recipient voluntarily requests termination (N19)

  • A State assumes responsibility for administration of State supplementary payments

  • An advance notice was previously sent, but the adverse action did not occur.

NOTE: When discovering an error where an advance notice was previously sent, but the adverse action did not occur, correct benefits immediately and explain the action on an SSA-L8165-U2 (Important Information) with no appeal rights. The right to appeal and payment continuation may still apply (discussed in SI 02301.310). Apply the rules of administrative finality in SI 04070.000.

2. Who Receives Advance Notice

These individuals receive an advance notice:

  • Legally competent adult recipients

  • Representative payees

  • Both members of an eligible couple when the action reduces the total couple's payment and changes the payment amount to each (even if the result is an increased payment to one member)

  • Appointed representatives and legal guardians. (See NL 00801.001 about Supplemental Security Income (SSI) notification policy and procedures.)

3. Notice Forms

The SSI Notice of Planned Action (SSA-L8155) is the form used to provide advance notice. The system issues an automated GK notice on an SSA-L8155-SM (SSI Notice of Planned Action).

An online GK Notice (SSA-L8155) is produced by the system when an adverse action is input during the GK temporary period and selected by the FO to print.

In situations where an automated notice must be suppressed or the notice cannot be produced online, FOs prepare a manual GK notice on an SSA-L8155-U2 (SSI Notice of Planned Action) or on another standard notice form with the appropriate appeal rights.

4. Notice Content

The advance notice must explain:

  • the basis for the adverse action, and

  • how the adverse action affects eligibility and payment amount, and

  • how to appeal, and

  • that unreduced benefits will continue until a decision is made at the first appeal level if the individual files an appeal within 10 days after receiving the notice.

5. Providing the 10-Day Advance Notice

The advance notice must be mailed at least 15 days (or handed to the individual at least 10 days) BEFORE the first day of the adverse action month. The individual has a full 10 days after the date on the notice to appeal and qualify for benefit continuation. We presume that receipt is 5 days after the date on the mailed notice unless there is a reason to believe otherwise.

NOTE: SI 02301.301, SI 02301.305, and SI 02301.307 explain when the FO must issue a manual or online GK notice.

For additional information see SM 01305.530.

See MSOM MSSICSCOMPS 002.001 and 162A for more information on Goldberg Kelly systems processes.

F. References


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/0502301300
SI 02301.300 - Due Process Protections - General - 08/30/2012
Batch run: 08/30/2012
Rev:08/30/2012