Even when the appellant challenges the constitutionality of a provision of the act,
do not offer an agreement until all other factors which might preclude eligibility
have been developed and resolved in order that constitutionality is the sole issue. Review the folder. If a pertinent eligibility factor has not been established, develop
and resolve the issue .
When this occurs, notify the claimant that processing of the request for EAP is being
delayed pending the necessary development.
If after all development, a pertinent eligibility factor is not resolved in favor
of the individual, notify the individual that EAP does not apply. Treat the denied
EAP request as a request for hearing or AC review, whichever is appropriate. Forward
the case to the Office of Disability Adjudication and Review (ODAR). Inform the claimant
that he/she will then have an opportunity to appeal the eligibility factor as well
as the constitutional issue. (Denial of the EAP request is not appealable.)