VB 02507.001 Administrative Finality -- General
Under certain circumstances, SSA can reopen and revise initial determinations or decisions that were incorrect when made. This chapter discusses the requirements and procedures for reopening and revising such initial determinations and decisions in Special Veterans Benefits (SVB) cases under title VIII of the Social Security Act.
1. Administrative Finality
Under the Social Security rules of administrative finality, a determination or decision becomes final and binding when rendered, unless it is timely appealed or later reopened and revised within a specified period and for special reasons.
2. Initial Determination
An initial determination is SSA's formal, written disposition of any legal or factual issue (e.g., payment to a representative payee) affecting an individual's right to benefit payments or any other right provided by the Social Security Act. An “initial” determination is the first determination on an application, posteligibility (PE) event or redetermination of entitlement or benefit amount. (If a redetermination results in no change in eligibility or payment amount, it is not an initial determination. See VB 02507.060C.). See VB 02507.001B.5. for the definition of a “revised” determination.
Claimants have a right to appeal actions taken by SSA only if those actions are classified as “initial determinations.” (See VB 02501.035 for examples of initial determinations.) An initial determination is subject to administrative and judicial review. It is final and binding unless the claimant requests appeal within 60 days (or later if good cause exists) or SSA revises it.
NOTE: Actions which are not initial determinations can be changed at any time and are not protected by appeal rights or the rules of administrative finality. (See VB 02501.040 for examples of situations which are not initial determinations.) Failure to make a determination with respect to any claim or post-eligibility (PE) issue is not an initial determination. Whenever such failure comes to the attention of SSA, an adjudication of the claim or PE issue is appropriate.
A determination refers to an initial determination (as defined in VB 02507.001B.2) or a reconsidered determination. In all cases, the decisionmaker is below the level of the administrative law judge (ALJ).
A decision is SSA's formal, written disposition of a formal action by an ALJ or the Appeals Council (AC).
5. Revised Determination/Decision
A “revised” determination or decision is one in which either the end result or a finding with respect to a qualification or entitlement factor of a prior determination or decision has been changed. (See VB 02507.001B.7.)
Reopening is the process of reexamining a determination or decision which has become final (see VB 02507.001C.1.). It may (or may not) result in revision of the determination or decision.
Revision of a determination or decision occurs when:
a. The end result is changed (i.e., qualification or entitlement status or payment amount is changed); or
A finding with respect to a qualifying event or entitlement factor changes even though the end result is not changed.
EXAMPLE: A claimant is determined to be eligible for Supplemental Security income (SSI) payments effective 3/00 (rather than 6/00) on the basis of a revised determination. Nevertheless, the claimant still fails to qualify for SVB payments since SSI eligibility for 12/99 (the month of title VIII enactment) has not been established.
1. When Determinations and Decisions Become Final
A determination or decision (initial or revised) regarding a claimant's qualification for or entitlement to payments under title VIII is final as of the date of the notice unless:
It is timely appealed (or a civil suit is filed); or
It is appealed late but good cause for late filing of an appeal or civil suit is found; or
The AC takes jurisdiction on its own motion within 60 days of the date of the hearing decision; or
The AC denies a request for review (does not issue a decision), in which case the hearing decision is the final decision as of the date of the notice that the AC denied review; or
It is reopened and revised.
2. What SVB Determinations or Decisions Can Be Reopened or Revised
Determinations or decisions that were incorrect when made can be reopened and revised retroactively according to the requirements and time limitations in VB 02507.010B. They can be reopened and revised prospectively at any time under the redetermination provisions of the title VIII statute (see VB 02507.060).
a. Determination/Decision Incorrect When Made
A determination or decision may have appeared correct based on the available evidence at the time it was made. If it later comes to light (through new and material evidence or other means) that the determination or decision was incorrect, reopening and revision should be considered as indicated above.
EXAMPLE 1: In processing an award for SVB, the adjudicator overlooked the SVB claimant's statement that he was receiving a monthly Philippine Veterans Affairs Office (PVAO) pension of $98 and failed to reduce the SVB payment by that amount. The initial determination notice of 6/1/00 indicated that the maximum SVB payment of $384 was payable.
The error was not discovered and corrected until 1/2/03 when the beneficiary was visiting the United States and requested the field office to initiate direct deposit of his SVB payments. An initial determination notice of the beneficiary's SVB benefit reduction was dated 1/4/03. In this case, SSA cannot reopen or revise payments for the retroactive period since the two-year limit for correcting the clerical error (6/1/00 through 6/1/02) has elapsed. However, “current” benefits can be reduced (effective 2/03) to the correct amount (including any increases in the PVAO since the earlier incorrect initial determination) on the basis of a redetermination action (see VB 02507.060B.1.). Also, see VB 02507.050A.3. and VB 02507.050B.1. for the required notice of payment reduction.
EXAMPLE 2: Same facts as above except the adjudicator noted the alleged monthly PVAO pension of $98 but incorrectly reduced the monthly SVB payment by $108. This clerical error, which was unfavorable in its effect on the beneficiary, can be reopened and revised both retroactively and prospectively according to the requirements and limitations in VB 02507.010.
b. Correct Determination or Decision (Denial) — Later Change in Circumstances
A correct determination or decision cannot be reopened and revised merely because the circumstances on which it was based changed at a later time, if the changes do not affect the period covered by the determination or decision.
EXAMPLE: A correct determination (now final) that a claimant does not qualify for SVB because of other benefit income in excess of the allowable limit under the law will not be reopened if the claimant's benefit income is later reduced to an amount lower than that limit. In such an instance, the claimant must file a new application and SSA will issue a new determination.
EXCEPTIONS: Changes of position and statutory and regulatory changes may supercede the above rule (see VB 02507.040B.6. and VB 02507.040B.7.).
c. Correct Determination or Decision (Award) — Later Change in Circumstances
When changes occur after a correct initial determination of SVB entitlement has been made and the changes affect a beneficiary's eligibility or benefit amount, the rules of administrative finality do not apply. In this case, SSA can make a new determination effective with the date of the change. This is so regardless of the time that elapses from the original determination before we are made aware of the change in facts. (See note in VB 02507.001C.2.regarding the inapplicability of “deemed determinations” in SVB cases.)
EXAMPLE: A beneficiary's initial determination notice of SVB entitlement dated 8/10/00 was based in part on his residence in the Philippines. If the beneficiary came to the United States for a visit on 10/10/00 and never left, but failed to notify SSA until 5 years later, SSA will make a new determination at that time that the beneficiary was no longer entitled to SVB on the basis of his U.S. residence. The new determination would be effective 12/00, the first month following the calendar month during all of which the SVB beneficiary was in the United States.
3. Deemed Initial Determinations
Deemed initial determinations are based on the assumption that the recipient's circumstances remain the same as in the prior month. An initial determination is deemed to occur (i.e., no notice is sent) on the first of each month that a recipient is shown on the record as eligible and payment amount remains unchanged. A deemed determination cannot occur in any month that is an effective month of a notice of an initial determination. See VB 02501.035 for examples of initial determinations.
Based on this definition of deemed initial determinations, there are no deemed determinations for any months in which payments are not received; e.g., a period of suspension.
NOTE: Erroneous Death Determinations: Although no notice is issued with a death determination, it is not a deemed initial determination. See VB 01505.020 for proper treatment of erroneous death determinations.
a. Deemed Initial Determinations - Effective Months of Notices
Deemed initial determinations are important in that they allow the Agency to effect change for past months that are not governed by written notices of initial determinations. Therefore, it is important to identify months for which there is a deemed initial determination and months for which there is an actual written initial determination.
4. When Reopening May Be Requested
Reopening may be requested after the time limit for appeal has passed (and good cause for a late appeal request does not exist) if a party is dissatisfied with a determination, revised determination, decision, or revised decision but has not requested review. (See VB 02507.001C.7. and VB 02507.001C.8.)
5. Who May Request Reopening
An individual who is party to an SVB determination or decision may request that it be reopened or revised. A representative payee, legal guardian or other representative appointed on behalf of an SVB claimant or beneficiary can also request reopening.
NOTE: An SSA employee may question a prior determination and initiate reopening by means of an affirmative action in writing (see VB 02507.010A.4. and VB 02507.010B.3.).
6. Who Can Reopen and Revise an SVB Determination or Decision
A determination or decision can only be reopened or revised by a decisionmaker at the same level or above.
The Appeals Council may reopen and revise any SSA determination or decision or revised determination or decision.
An Administrative Law Judge may reopen and revise any ALJ decision or revised decision, or any determination or revised determination.
A field office or central processing site may reopen and revise any SVB determination or revised determination, as long as it was not revised by an ALJ or the Appeals Council.
7. When to Consider Reopening
Consider the possibility of reopening a final determination or decision when:
The SVB claimant or beneficiary questions SSA's previous determination or decision on his/her case in writing (see VB 02507.001C.7.);
A new SVB application is filed within one or two years following a less than fully favorable initial determination (see VB 02507.010B.3.b.); or
SSA receives additional information or evidence that warrants review of the case; or
An SSA employee discovers an obvious error on an SSA record; e.g., the central processing site detects a data input error involving a claimant's move abroad which resulted in initiation of SVB payments a month late.
8. Consider All Requests for Reopening
SSA is not legally required to reopen a determination or decision when the claimant or beneficiary requests it (even if he/she makes the request within 1 year of the notice of initial determination). Nevertheless, it is SSA's policy to consider the request in all cases and to decide if reopening is appropriate. If SSA decides not to reopen, the claimant or beneficiary is notified of the refusal and the reason (see VB 02507.001C.8.).
9. Reopening and Revision — No Appeal Rights
Refusal by SSA to reopen and revise a final determination or decision is not an initial determination. Therefore, the individual requesting reopening has no right of appeal on such refusal and should not receive information about administrative appeal rights on the notice of refusal (see VB 02507.050B.3.).
D. PROCEDURE — CLAIMANT/BENEFICIARY STILL WITHIN TIME PERIOD FOR ADMINISTRATIVE APPEAL
Reopen and revise a determination when:
The claimant disagrees with the determination; and
It appears from a review of the file (including any new evidence submitted) that the field office or central processing site determination was incorrect; and
A fully or partially favorable determination is possible.
Otherwise, assist the claimant or beneficiary in appealing the determination at the reconsideration or ALJ level.