VB 02507.030 Revising SVB Determinations — Diligent Pursuit
The concept of diligent pursuit applies in situations where SSA initiates investigation of an initial determination before the 1- or 2-year time limit for reopening of the determination has expired, but SSA cannot conclude the investigation and revise the determination (if warranted) until after such time limits have expired.
An investigation is the process of gathering facts after a determination has been reopened for the purpose of determining if revision of the determination is appropriate.
2. Diligent Pursuit
Diligent pursuit exists if, in light of all the facts and circumstances of a case, SSA initiated and carried out activities to investigate the correctness of the initial determination and to revise such determination (if warranted) as promptly as circumstances permitted.
Diligent pursuit may be presumed if the investigation is completed and the determination is revised within the 6-month period after the date the investigation began (i.e., the date of the affirmative action in writing. See VB 02507.010B.3.)
3. Reasonable Delay
Reasonable delay occurs when SSA is unable to revise an initial determination until more than 6 months after the SSA investigation began (and the lateness was caused by factors beyond SSA control). Examples of reasonable delay include:
Failure by beneficiary or his/her representative to cooperate;
Failure by a third party to cooperate;
Heavy workloads due to an unforeseeable emergency which resulted in an office closing for all or part of what should otherwise be a Federal workday; e.g., natural disaster, weather conditions, etc.
4. Unreasonable Delay
Unreasonable delay occurs when SSA is unable to revise an initial determination until 6 months after the SSA investigation began and the lateness is not explained or caused by factors within SSA control. Examples of unreasonable delay include:
Loss of folder by the FO;
Long periods of inaction with no effort to contact or follow up with the beneficiary, a bank, or other source of information (e.g., failure to begin investigation promptly after the date of affirmative action in writing);
Heavy workloads that do not result from an emergency but, rather, from understaffing, heavy leave usage by FO staff, legislative change activities, lack of planning, etc.
NOTE: An unreasonable delay by any component of SSA (including the U.S. Veterans Affairs Regional Office in Manila) pertains to the entire agency. For example, if central office sends out a computer match listing to the FO late, this delay must also be evaluated in determining diligent pursuit. The fact that the FO initiated development immediately upon receipt of the listing is not the sole factor to consider regarding whether the SSA was reasonable or unreasonable.
C. POLICY -- REVISING AN INITIAL DETERMINATION AFTER EXPIRATION OF THE 1- OR 2-YEAR TIME LIMIT
When SSA's investigation of an initial determination is delayed past the 1- or 2-year time limit, revision of the determination still may be permitted on the basis of SSA's diligent pursuit of the investigation:
1. SSA Has Diligently Pursued the Investigation
SSA may revise a determination or decision (whether favorable or unfavorable to the claimant or beneficiary) after expiration of the 1- or 2-year time limit if:
SSA reopened the determination or decision and started its investigation before the applicable time limit expired; and
SSA concluded the investigation and revised the determination or decision:
within the 6-month period after the date of affirmative action in writing; or
after the 6-month period from the date of affirmative action in writing if the delay can be considered “reasonable.” (See VB 02507.030B.3.)
2. SSA Has Not Diligently Pursued the Investigation
In the following situation, SSA must revise an initial determination or decision only if it is favorable to the claimant or beneficiary:
SSA has initiated investigation of an initial determination before expiration of the 1- or 2-year time limit; but
SSA has failed to conclude the investigation and/or revise the determination or decision within 6 months of beginning the investigation; and
“Reasonable delay” cannot be established per VB 02507.030B.3.
CAUTION: In the above situation, the failure to establish diligent pursuit prohibits SSA from issuing revised determinations or decisions which are unfavorable to the claimant or beneficiary.
D. PROCEDURES - NOTES ON DILIGENT PURSUIT
When the issue of diligent pursuit is involved, consider the following issues:
1. Starting Date for Counting the 6-Month Period
To determine if there has been diligent pursuit, begin with the date the investigation began. This is the date of the affirmative action in writing. (See VB 02507.010A.4.) If there is more than one date of affirmative action in writing, use the earliest possible date.
2. Establishing a New Affirmative Action Date When Revision is Not Completed Within 6 Months
If a delay is found to be unreasonable, a new date of affirmative action in writing may be established by:
Documenting telephone calls; or
Sending written requests for information; or
Documenting in writing some other effort to obtain the facts necessary to revise the prior determination.
If, however, the new affirmative action date occurs after the time limit to reopen the determination or decision has passed, it cannot be reopened and revised.
EXCEPTION: Certain cases involving interface run dates may require different handling if revision is not made within 6-months of the run date. Apply instructions in SI 04070.040I. in these cases.
3. No Date of Affirmative Action Exists
If no date of affirmative action in writing can be found, use the date of current review as the date of affirmative action in writing.
4. Investigation and Revision Completion Dates
The investigation is complete when all the facts necessary to determine whether or not to make a revision have been received. However, this is not the date to use when evaluating the diligent pursuit requirement. To meet this requirement, the determination or decision itself must have been revised within the 6-month period.
Revision is complete as of the date of the notice that the prior determination or decision has been changed with respect to either eligibility or payment amount (see VB 02507.040B.). The date of the notice is used to determine whether diligent pursuit can be presumed; i.e., if it occurs within 6 months after the date the investigation began.
5. Documentation of Diligent Pursuit
When a revision is not complete within the 6-month period for establishing diligent pursuit, there must be a documented analysis of the investigation activities in order to determine if the cause of the delay was reasonable. Unexplained periods of inaction are presumed to constitute unreasonable delay. SSA has the burden of showing that delays are reasonable.
While the first two instructions are designed for SSI cases, they can also apply in general terms to SVB cases.