TN 24 (10-04)
SI 02301.310 Appeal and the Right to Goldberg Kelly (GK) Payment Continuation
1. Qualifying for Goldberg Kelly (GK) Payment Continuation
Recipients qualify for GK payment continuation at the Protected Payment Level (PPL) when they appeal an adverse action:
within 10 days after receiving the advance notice, or
after the 10-day period and good cause exists for extending the time limit.
EXCEPTIONS: GK payment continuation at the PPL does not apply to:
certain erroneous payment cases (see SI 02301.315),
collection of a penalty unless the recipient also appeals the overpayment determination (see SI 02301.100 – SI 02301.110), and
medical cessation cases. When appealing these cases, individuals must elect Statutory Benefit Continuation (not GK) and can elect it at the reconsideration and/or hearing levels of appeal (see DI 12027.000).
NOTE: In concurrent medical cessation cases, electing not to receive title II benefit continuation is NOT failure to apply for and pursue other benefits for SSI (N06).
2. Waiving Payment Continuation
Recipients who qualify for payment continuation may choose to waive it. After waiving it, they may reconsider and receive it (including retroactive benefits) at any time before the first appeal decision.
B. Procedure - Explanations
When a recipient or payee reports in person a change that results in an adverse action or appeals an adverse action:
the change fully so that the individual understands the effect on benefits,
the right to receive written notice of the change before it occurs (if a GK notice has not been issued),
the individual has 60 days to appeal after receiving the notice, but only 10 days to appeal and continue receiving unreduced benefits,
unreduced benefits continue only until there is a decision at the first appeal level,
unreduced benefits may be waived,
even after waiving unreduced benefits, the individual may request them any time before the appeal decision on the reconsideration occurs and have them restored back to the first month they were reduced or stopped,
the recipient might have to pay back incorrect payments if he/she loses the appeal, and
CAUTION: When payment continuation results in overpayment, a recipient may still meet the requirements for waiver of recovery in SI 02260.001.
2. Do Not
suggest waiving payment continuation to avoid an overpayment, or
take a signed statement about the possibility of an overpayment, or
encourage or try to influence an individual to make a decision regarding payment continuation, or
suggest accepting a reduction in the PPL based on changes that are not being appealed. An individual must on his/her own initiative request a reduced benefit.
C. Procedure - Recipient Appeals
Follow these procedures to protect a recipient's right to payment continuation when he/she files a reconsideration request.
1. Advance Notice Issued and Appeal Filed Same Day
When a recipient or payee reports a change to the field office (FO) in person that results in an adverse action and wishes to appeal at the same time:
input the change,
immediately prepare an online or manual GK notice and hand it to the recipient, and
take the reconsideration request.
NOTE: A recipient cannot appeal an adverse action until there is a written notice of the determination.
2. Advance Notice Mailed - Determine Receipt Date
Determine the presumed notice receipt date:
Count 5 calendar days after the date on the notice.
If the notice is not available on the online retrieval system (ORS), count 12 calendar days after the notice run date in the NOTC segment on the SSR (7 days notice processing and 5 days mailing) or use the notice date in the DUPR segment on the SSR.
If the receipt date is a non-delivery day for the Post Office, extend the receipt date to the next delivery day.
IMPORTANT: If the notice cannot be found on the ORS, consider accepting a reasonable allegation of the receipt date since notice run dates on the Supplemental Security Record (SSR) are not always accurate and mailing of notices may not occur on time. See SI 02301.301B.3. and SI 02301.301B.4. about notice processing.
3. Determine the 10-Day time Limit
Determine the 10-day time limit to file the reconsideration request and qualify for payment continuation:
Count 10 days after the notice receipt date as determined above.
If the 10th day is a non-work day for SSA, extend the time limit to the next work day.
NOTE: The instructions on processing reconsideration requests and determining the 60-day appeal period are in SI 04020.020.
4. Extend Time Limit for Good Cause
If the recipient does not file the reconsideration request within the 10-day time limit, advise the recipient that the or she must explain in writing the reason for missing the time limit. For instructions on developing good cause, see SI 04020.020B.2. - SI 04020.020B.3.
5. Give Receipt for Appeals (SSA-94)
Give the recipient a completed Form SSA-94 (Receipt of SSI Appeal Request) only when he/she qualifies for GK payment continuation at the PPL and does not waive it, or when he/she requests it later after waiving it.
See SI 02301.410 for an exhibit of the SSA-94.
6. Recipient Waives Payment Continuation - Obtain Waiver (SSA-263-U2)
If the recipient qualifies for GK payment continuation at the PPL and on his or her own initiative chooses against it:
obtain a signed Form SSA-263-U2 (Waiver of Supplemental Security Income Payment Continuation),
retain the original copy in the recipient's file, and
give the duplicate copy to the recipient.
See SI 02301.415 for an exhibit of the SSA-263-U2.
7. Recipient does Not Waive Payment Continuation
If you cannot issue an appeal decision the same day as received, follow instructions in SI 02301.315 to continue (or restore) benefits at the PPL. If you can issue an appeal decision the same day as received, input a due process data (DPD) entry following SM 01305.570A2.
8. Record Appeal on the SSR
To input appeals data, refer to MSOM MSSICS 020.001, Appeals, Part 4 MSSICS; MSOM BUSSR 002.007, Direct Build Appeals, Part 4 MSSICS.