Identification Number:
DI 33025 TN 10
Intended Audience:See Transmittal Sheet
Originating Office:ORDP ODP
Title:Procedures for Special Cases and Handling
Type:POMS Transmittals
Program:Disability
Link To Reference:
 
PROGRAM OPERATIONS MANUAL SYSTEM
Part 04 – Disability Insurance
Chapter 330 - Disability Hearing Unit Procedures
Subchapter 25 - Procedures for Special Cases and Handling
Transmittal No. 10, 12/2017



Audience

PSC: DEC, RECONR
OCO-ODO: DE, RECONE
OCO-OEIO: CTE, FCR, FDE, RECONE
ODD-DDS: DHU

Originating Component

ODP

Effective Date

Upon Receipt

Background

This transmittal is part of an ongoing-targeted revision of the Program Operations Manual System (POMS). We revised these POMS sections to update information pertaining to special cases and handling.

Summary of Changes

Throughout the document, we changed one-word sub-headers to full titles and hyperlinked all forms (if applicable). We made no policy changes. We updated all sections to meet plain language standards and added suggested language for notices, where appropriate.

DI 33025.001 Medicare for Qualified Government Employees (MQGE) Cases


    · Added citations at the top of the page for POMS reference to Medicare Code of Federal Regulations (CFR);
    · Revised the title to add the acronym “MQGE”;
    · Expanded the title in subsection A for ease in identifying the topic; and
    · Included the title of POMS DI 23540.001 referenced in subsection “A.”
DI 33025.005 Title XVI Conversion Cases
    · Included the title of POMS DI 23525.001 to identify the topic in this section;
    · Expanded the title in subsection(s) A and B of this section for ease in identifying the topic;
    · Revised the first sentence of the second paragraph of the note in subsection B.2 of this section to, “you are adjudicating,” instead of “being adjudicated”;

    · Added the specific titles of the plans identified in subsection B.3; and

    · Updated and hyperlinked form SSA-832.


DI 33025.010 Career Railroad (RR) or Surviving Dependent RR Annuitant Cases - Disability Hearing Unit (DHU) Cases

    · Reformatted the lead sentence to highlight the eligibility requirements for RR benefits;
    · Added the title to POMS reference DI 11050.005 for identification;
    · Updated the information in items 3 and 4 to add more instructions;
    · Reformatted and revised the language in this section for clarity; and
    · Added POMS references as appropriate.
    DI 33025.015 Foreign Claims
      · Reorganized and updated the information to adhere to plain language guidelines;
      · Updated names, addresses, etc., as appropriate;
      · Added definitions of acronyms where appropriate;
      · Added a link to online translation services to subsection B.2.a of this section;
      and
      · Added POMS references, as appropriate.

    DI 33025.025 Section 301 Cases – Vocational Rehabilitation (VR) Involved


      · Reorganized the title to draw attention to the types of cases involved;
      · Provided the title of POMS reference DI 28060.001 in subsection A of this section;
      · Reorganized the content in subsection B for better readability and conciseness;
      · Added “suggested wording,” for completing notices to include specific appeals language before and after an appeal decision has been made in subsection C.2;
      · Made format changes in this subsection for smoother process flow; and
      · Updated section B with POMS references involving Section 301 cases.

    DI 33025.030 Cases Involving Individuals Convicted of a Felony

      · Revised the title in subsection B.1 of this section to clarify contents;
      · Defined acronyms throughout the section;
      · Updated the “note” in subsection A for clarity;
      · Reformatted information in subsection B.1.b to specifically outline the procedures;
      · Reorganized the content of subsections B.2.b and B.2.c for clarity.

    DI 33025.035 Criminal Violations – Suspected Fraud

      · Revised the titles in subsections A, B, and C of this section to clarify the content;
      · Provided the title for POMS reference DI 23025.015 in subsection A of this section;
      · Reorganized the content in the second paragraph of subsection B of this section for clarity; and
      · Provided updated formatting where appropriate.
    DI 33025.036 Disability Hearing Officer’s Use of Cooperative Disability Investigations Unit (CDIU) Report of Investigation (ROI) Evidence
      · We will update this section in a future eIRD.

    DI 33025.040 Litigation and Court Action
      · Revised the titles in subsections A and B of this section to clarify the content;
      · Added titles to POMS references GN 03106.000 and GN 03305.010 in subsection A of this section; and
      · Formatted references in subsection A of this section for ease of identification.

    DI 33025.045 Potential Suicidal or Homicidal Behavior

      · Removed “forward slash (/),” from the title and replaced it with “or” and
      · Made minor format changes and added the title to the POMS reference.

    DI 33025.050 Disability Hearing Unit (DHU) Discovers Substantial Gainful Activity (SGA) Issue Prior to or During the Hearing

      · Revised the title for better identification of the content in this section;
      · Revised the title in subsection B.1 of this section for process flow and clear identification of action;
      · Reorganized and revised content in subsection B.2.a-g for clarity and to adhere to “plain language” guidelines; and
      · Added additional POMS references to subsection C of this section.

    DI 33025.055 Suggested Language for Notices in Cases Where a Reopening and Reversal to Cessation is Necessary due to Prior Exclusion of Felony-Related Impairment – Exhibit

      · Reorganized the title to provide a clearer description, and
      · Made minor format and sentence structure changes to clarify and update information, as appropriate.

    DI 33025.075 Age 18 Redetermination Cases under P.L. 104-193

      · Revised all the subsection titles in this section;
      · Reorganized subsection A of this section to adhere to plain language guidelines;
      · Reorganized subsection D to include more specific guidelines;
      · Revised subsection E.1 to remove any information concerning form SSA-4268-U4/C4;
      · Added subsection E.3 to discuss the disability hearing officer’s (DHO) cover notice; and
      · Made format changes, where appropriate, for consistency.

    DI 33025.080 Using Video Teleconferencing (VTC) Equipment to Conduct Hearings

      · Revised the title for this section and added the words “Video teleconferencing,” to bring it up to date;
      · Added subsections A and B to this section for consistency in the formatting of the POMS sections;
      · Removed all reference to contractors having to sign a confidentiality agreement in subsection B of this revised section;
      · Updated the privacy regulation reference (20 CFR 401.1 to 401.90) in subsection B;
      · Moved the last paragraph of this section to subsection A;
      · Added the term: “video teleconferencing,” specifically to the statement addressed by the individual or beneficiary; and
      · Deleted any reference to the phrase: ‘face-to-face’ from this section.

    DI 33025.085 Conducting Disability Hearings by Telephone

      · Revised the title for this section;
      · Removed examples 1, 2, and 4 from the list as these are redundant;
      · Added subsection A to this section for consistency in the formatting of the POMS sections;
      · Reorganized this section to include more specific guidelines for conducting telephone hearings;
      · Revised the list in subsection A to ‘numeric’ for easier reference; and
      · Deleted any reference to the phrase: ‘face-to-face’ from this subsection.


    DI 33025

    Citations:

    Social Security Act—Section 226 and 226A

    Regulations 42 CFR—Sec. 406.15

    DI 33025.001 Medicare for Qualified Government Employment (MQGE) Cases

    A. Background on MQGE for Federal employees

    See DI 23540.001 Medicare for Qualified Government Employment (MQGE) Cases.

    B. Hearing procedures

    Process the case per usual hearing procedures. Indicate in the notice attached to the decision that we will notify the beneficiary or recipient separately if he or she is eligible for Medicare. For a systematic approach on how to conduct disability hearings see, DI 33001.000 Disability Hearing Procedures.

    DI 33025.005 Title XVI Conversion Cases

    A. Background - Title XVI Conversion Reentitlement

    See DI 23525.001 Title XVI Conversion Reentitlement Cases.

    B. Procedure - Evaluating disability under Federal criteria

    1. Disabled under Federal criteria

    Continue the case following usual procedures if the individual is disabled under Federal criteria.

    2. Not disabled using Federal criteria

    Evaluate the case using State plan criteria if the individual is not disabled using Federal criteria. See DI 21501.000 Title XVI - State Plans—Disability/ Blindness.

    NOTE: Use the State plan in effect as of October 1972 under which the individual received State aid in 1973. This applies even if the individual moved to another State.

    Contact the regional office (RO) to determine if there are any subsequent interpretations of the State plan applicable to the case you are adjudicating. (There have been a number of court cases, both at the Federal and State levels, which have revised interpreted State plans).

    3. Case ceased under Federal and State plan criteria

    For cessation date, use the same date for both “Ceased” and “State plan last met” in item 9B of the SSA-832.

    DI 33025.010 Career Railroad (RR) or Surviving Dependent RR Annuitant Cases - Disability Hearings Unit (DHU) Cases

    A career RR case involves a disability claim filed by a railroad worker who is eligible for or entitled to a Railroad Retirement Board (RRB) annuity. A worker with:

    • at least 120 months of creditable RR service or

    • at least 60 months after December 31, 1995, meets this requirement.

    A dependent RR annuitant is someone who is eligible for or entitled to a survivor disability annuity with the RRB and files a disability claim with the Social Security Administration (SSA) under another social security number (SSN). See DI 11050.005 Categories of Railroad (RR) Claims.

    • The disability determination services (DDS) and State DHU do not have jurisdiction for career RR or surviving dependent RR annuitant cases.

    • If the DDS receives an RR case involving reconsideration of medical cessation or reconsideration of adverse reopenings, the DDS will send the case to Great Lakes Program Service Center-Disability Processing Branch (GLPSC-DPB). See DI 29005.020 Career Railroad and Railroad Annuitant Reconsideration Continuing Disability Review (CDR) Requests.

    • If the State DHU receives a misrouted career RR or surviving dependent RR annuitant case for a disability hearing, the State DHU will send the case to the Federal DHU in the appropriate regional office (RO). Determine the DHU of jurisdiction by the individual's residence address and the RO that includes that location.

    • If GLPSC-DPB cannot issue a fully favorable determination on either type of case, the Federal disability hearing officer (DHO) in the RO must conduct a disability hearing.

    • GLPSC-DPB forwards the case to the RO-DHU for a Federal disability hearing.

    • GLPSC-DPB coordinates the Federal DHO decision with RRB.

    DI 33025.015 Foreign Claims

    A. Policy – Processing Social Security Administration (SSA) Foreign Claims

    The Division of International Operations (DIO) is responsible for administering SSA programs abroad. This includes the full range of disability determination services (DDS) functions, including the processing of appeals with the right to a disability hearing.

    A Federal disability hearing officer (DHO) must conduct the disability hearing for an individual who uses a foreign address.

    If the DIO cannot issue a fully favorable determination, and the individual waives his or her right to appear at a hearing, a DHO in the Office of Disability Determinations (ODD) is responsible for processing the case. If the individual intends to appear, a DHO in the appropriate regional office (RO) is responsible for arranging the hearing.

    NOTE: The individual's point-of-entry into the United States (U.S.) or his or her temporary U.S. residence determines the region where the hearing is scheduled. See DI 33001.000 Disability Hearing Unit Procedures.

    B. Procedure – Responsibilities of the Disability Hearing Officer (DHO)

    1. Securing additional evidence

    Obtain the supervisory hearing officer's (SHO) or supervisor’s agreement that the claim requires additional development before requesting additional development.

    Send a notice to the beneficiary or recipient and add a copy to the claims folder stating what information or evidence is needed. Provide any explanation that would aid in clarifying the request, and forward the claims folder to SSA to the attention of the Reconsideration Branch:

    The Social Security Administration
    Office of Earnings and International Operations (OEIO)
    P.O. Box 17775
    Baltimore, MD 21235-7775

    Refer to DI 11010.275 Sending Cases to the Office of Central Operations/Office of International Operations (OCO/OIO) for paper cases and, DI 80850.010 Electronic Disability Collect System (EDCS) for information on jurisdiction and responsibility for transferring information to electronic folders.

    2. Translation of foreign documents

    1. Obtain a translation from an employee in the disability hearing unit (DHU) who is proficient in the language, an authorized translator in the field office (FO), or follow the link to SSA Central Translation Services for a full list of SSA translation services (also see 2.d below). http://oasweb.ba.ssa.gov/translators/translator.asp. See DI 23045.001B.2 to determine whether the translation must be verbatim.

      NOTE: A signature is required for every translation request. Provide as much of the following information as possible;

      • type or date of document,

      • issuing agency or official,

      • language involved, and

      • whether the document appears to be genuine, unaltered, and to have been made at the time alleged

    2. Send the original documents (if possible) rather than a photocopy when it is necessary to send a document out of the DHU for translation.

    3. If the beneficiary refuses to part with the original document, make as clear a photocopy as possible and note any alterations on an SSA-5002 (Report of Contact).

    4. Forward the document(s) and Form(s) SSA-533-E (Translation Request) when requesting an out-of-office translation.

    5. Send the document(s) and completed Form(s) SSA-533-E to:

      The Social Security Administration
      ATTN: Central Translation Services
      P.O. Box 1756
      Baltimore, MD 21203
      Fax (410) 966-0526

      See also:

      • DI 11010.275 Sending Cases to Office of Central Operations/Office of International Operations (OCO/OIO)

      • DI 23045.001 Translation of Foreign-Language Documents

      • DI 33010.001 Receipt and General Review of Claims Folder in the Disability Hearing Unit (DHU) and,

      • GN 00301.330 Overview of Translation Process

    DI 33025.025 Section 301 Cases - Vocational Rehabilitation (VR) Involved

    A. Background - Continued payment of benefits under Section 301

    Refer to DI 28060.001 General - VR or Similar Program Participation, for additional information.

    B. Policy - Identifying Section 301 Cases in the Disability Hearing Unit (DHU)

    There are two instances when a DHU may see a Section 301 case:

    • The individual is seeking reconsideration of the initial medical cessation determination when he or she was eligible for Section 301 benefits and the subsequent determination finds that the individual is not eligible for the Section 301 benefits he or she is seeking.

    • During the development phase of the reconsideration request for medical cessation, the disability determinations services (DDS) discovers the case is a potential Section 301 case.

    When the case has a certified electronic folder (CEF), i.e., the case is processed as an electronic continuing disability review (CDR) (eCDR); see DI 14510.035A.1.a. Appeals Process for Cases Involving Section 301 Determination.

    NOTE: In the above circumstances, the DHU’s responsibility is the same as in all other cases.

    C. Procedure for processing section 301 cases in the DHU

    1. If disability continues

    Process the case in the usual manner. The case is no longer a Section 301 case.

    2. If disability ceases

    In the disability hearing officer’s (DHO) decision notice, advise the individual that he or she will be considered for continued benefits under section 301, and that he or she will receive a subsequent notice regarding that determination.

       

    Suggested wording:

    Before the appeals language,

    “You may be eligible for continued payments even though your disability has ended if you are currently participating in an appropriate program of vocational rehabilitation, employment, training, educational, or other support services. We are sending your case to another office for a special decision regarding continued payments based on the information we have about your participation in such a program. You will be notified of that decision in another letter.”

    After the appeals language,

    “If you disagree with this decision, you should appeal now. We will review this decision if you appeal. Do not wait to see if your vocational rehabilitation program is approved.”

    Forward the case, per DI 33020.005A.3.a Routing Cases after the Disability Hearing.

    For additional information on DDS processing of Section 301 claims, see DI 14510.010 Disability Determination Services (DDS) Procedures for Cases Involving Participation in Vocational Rehabilitation (VR) or Similar Program.

    DI 33025.030 Cases Involving Individuals Convicted of a Felony

    A. Background - Benefit payments for Individuals Convicted of a Felony

    Social Security Ruling (SSR) 83-21 “Title II: Person Convicted of a Felony” provides a full discussion of the substantive requirements of the statutory provision, Public Law (P.L.) 96-473, addressing the payment of Social Security benefits to certain persons convicted of a felony. However, the Social Security Administration issued SSR 83-21 before the enactment of P.L. 98-21, which extended the benefit suspension provision to all Title II beneficiaries. Public Law (P.L.) 96-473 and P.L. 98-21 provide that Title II benefits are not payable to persons convicted of felonies under specific circumstances. See,

    • DI 28065.000 Cases Involving Individuals Convicted of a Felony, and

    • DI 23501.000 Prisoner Cases.

    The field office (FO) identifies cases affected by this provision when they are able to determine that the individual is charged with a felony, convicted of a felony, or has a prison-related impairment. When the FO identifies one of these cases, the FO will include an SSA-5002 (report of contact) containing information regarding conviction date, duration, if there is a trial pending, etc.

    B. Procedure - Identifying cases involving individuals convicted of a felony

    1. Evaluating and developing evidence

    1. Be alert to medical evidence that reveals the impairment(s) arose or was aggravated by circumstances related to imprisonment.

    2. Identify cases not previously identified that could be affected by P.L. 96-473 and P.L. 98-21.

      • If necessary, telephone the FO and request development to determine whether a felony was committed, the date of offense, and the status of the criminal case.

      • Request the FO to forward an SSA-5002 to the disability hearing unit (DHU) that contains this information.

      • Process the case as usual when you receive this development. This includes scheduling and holding a hearing if, the individual wants a hearing.

    3. Take the guidance in SSR-83-21 into account when writing the disability hearing officer’s (DHO) decision.

    2. Trial pending, possible adverse reopening

    1. Prepare a decision in the customary manner, considering all impairments.

      NOTE: The FO will add a diary to the case and, if the individual is convicted at the trial, the case folder will be returned to the DHU.

    2. Determine whether a felony-related impairment is involved (see DI 33025.030B.1.a, in this section). If the FO returns the case, (see note in DI 33025.030B.2.a in this section).

    3. We provide due process protections in the event of a possible adverse reopening. Suggested language for the notice in this situation is located in DI 33025.055 Suggested Language for the Notice in a Case Where a Reopening and Reversal to a Cessation is Necessary Because a Felony-Related Impairment is Excluded – Exhibit.

    DI 33025.035 Criminal Violations - Suspected Fraud

    A. Background on fraud or similar fault (FSF) violations

    The disability hearing unit (DHU) may receive a case that is under investigation for FSF, or a case with a completed investigation. Rarely, will the DHU be the first to identify a potential FSF issue. The DHU may make an FSF referral; see the FSF referral policy and procedures in DI 23025.015 Disability Determination Services (DDS) – Referring Potential Fraud or Similar Fault (FSF) Cases for Possible Prosecution.

    B. Policy - Handling a case identified as a ‘Potential Violation’

    The Federal statute of limitations set forth in 18 U.S.C. 3282, as here applicable, “prevents prosecution of an individual, tried, or punished for any offense, not capital, unless the indictment is found or the information is instituted within five years next after such offense shall have been committed.” (If this becomes relevant to the case, see DI 33025.035C.1 in this section).

    The disability hearing is not the forum for criminal prosecution. Therefore, the DHU will not investigate, query or be influenced in a decision by the fact that the case is identified as a “potential violation” case and is under investigation. The DHU will resolve ordinary issues as usual.

    C. Procedure - Handling Potential FSF Cases by the DHU

    If the DHU identifies a case requiring additional investigation, follow the steps below:

    1. When processing a DHU case that has had an FSF referral, follow the guidance in DI 23025.020 Disability Determination Services (DDS) - Procedures after the Fraud or Similar Fault (FSF) Referral is Sent.

    2. When the DHU identifies a case requiring investigation of a potential violation or attempt to defraud a Social Security Administration (SSA) program, handle it per DI 23025.020 Disability Determination Services (DDS) – Procedures after the Fraud or Similar Fault (FSF) Referral is Sent.

    DI 33025.040 Litigation and Court Action

    A. Background - Components responsible for litigation and court action

    For claims, involving litigation and court action refer to,

    • GN 03106.000 Litigation

    • GN 03305.010 Reviewing and Retaining Consent Statements

    B. Procedures - Component duties and responsibilities

    Follow the instructions in DI 03106.000 Litigation. Contact the regional office (RO) for guidance if necessary.

    DI 33025.045 Potential Suicidal or Homicidal Behavior

    For cases involving threats of suicidal or homicidal behavior, follow the procedures outlined in POMS DI 23030.000 Suicide/Homicide, substituting disability hearing unit (DHU) for disability determination services (DDS).

    DI 33025.050 Disability Hearing Unit (DHU) Discovers Substantial Gainful Activity (SGA) Issue Prior to or During the Hearing

    A. Introduction - DHU responsibilities

    This section explains the actions taken when the DHU discovers an SGA issue prior to or during the hearing in Title II CDR cases; and in initial Title II, Title XVI or concurrent cases that are escalated to the reconsideration level and are evaluated together with CDR reconsiderations.

    B. Procedure for handling cases involving SGA

    1. Possible SGA discovered prior to hearing

    If the DHU receives a case, discovers an SGA issue is material, and development is required, follow these steps:

    1. Postpone any scheduled hearing.

    2. If there is not enough time for written notice of postponement to reach the individual prior to the date of the scheduled hearing, telephone the individual and advise him or her that the hearing is being postponed pending resolution of the work issue. Advise the individual that we will send a written confirmation of the postponement shortly, and then take action to send the confirmation notice.

    3. Forward the claim to the field office (FO). Include a message for a certified electronic folder (CEF), or attach an SSA-408 to a paper claims folder, stating, “Necessary action on SGA Issue, SSA-789 filed.” If the FO does not issue a determination based on SGA, or if EPE applies, return the folder to the DHU. If the FO issues a determination based on SGA, advise the DHU. If the official folder is paper, send a copy of the FO’s completed SSA-833 to the DHU.

    4. Cancel the hearing process if the FO advises they issued a determination and no DHO decision is needed.

    5. Resume the hearing process if the FO returns the case because work was SGA, but EPE applies because work is not SGA.

    2. Possible SGA discovered during hearing

    If the DHO receives a case where an SGA issue is material during the hearing, follow these steps:

    1. Proceed with the hearing.

    2. If the evidence is sufficient to render a final medical improvement review standard (MIRS) cessation decision, do so; do not return the case to the FO just to develop for work activity.

    3. If the evidence is not sufficient to render a final MIRS cessation, document the DHU folders to show the actions taken in the DHU, and return the case to the FO as indicated in section B.1 above.

    4. Do not request development or reschedule a supplemental hearing until the FO completes its action on the SGA issue.

    5. Document the claims and DHU folders to show the specific development needed. State that the DHU will schedule a supplemental hearing, if needed, if the FO returns the case to the DHU. Refer to DI 81020.255 Processing a Reconsideration Appeal of an Electronic Continuing Disability (eCDR) Cessation for additional information.

    6. Forward the claims folder to the servicing FO. Include a message for a Certified Electronic Folder (CEF), or attach an SSA-408 to a paper claims folder, stating, “Necessary action on SGA Issue, SSA-789, filed.”

    7. Advise the individual of the status of the case.

    C. References

    • DI 24001.001 Definition of Substantial Gainful Activity (SGA)

    • DI 28020.050 Substantial Gainful Activity (SGA)

    • DI 28050 Work Activity Cases Trial Work Period

    • DI 28055.001 Extended Period of Eligibility (EPE) and Related Medicare Provisions – General

    • DI 28075.600 Overview of the 1619 Continuing Disability Review (CDR) Process

    • DI 28075.610 Disability Determination Services (DDS) Development and Evaluation in 1619 Cases

    • DI 81010.085 Transferring Cases in the Electronic Disability Collect System (EDCS)

    DI 33025.055 Suggested Language for Notices in Cases Where a Reopening and Reversal to Cessation is Necessary due to Prior Exclusion of Felony-Related Impairment - Exhibit

    “This is to notify you that it appears a determination will have to be made that you do not meet the disability requirements of the law. You may not be entitled to benefits based on your present application. Therefore, we may have to revise the previous determination continuing benefits based on disability.”

    “You were initially found disabled because of      . Our records now show that this condition is based on an impairment connected with the commission of a felony after October 19, 1980, for which you have subsequently been convicted.

    The law does not allow us to consider this impairment in determining if you are disabled. This exclusion includes an impairment that arose during the commission of a felony.”

    “This exclusion also includes the aggravation of impairment if the aggravation occurred during the felony. The law does not allow us to consider these impairments in determining whether you are disabled. Where the jurisdiction does not classify a crime as a felony, we apply these provisions to a crime as though the crime was committed in the nature of a felony.”

    “When a combination of impairments is the basis for disability, we must give an explanation as to why the remaining impairment(s) does not meet the definition of disability.” (Note: do not use this paragraph when we base disability solely on a felony-related impairment).

    “We are giving you the opportunity to request a disability hearing and to present additional statements or evidence that you want to be considered before a decision is made. If you want to request a disability hearing or submit statements or additional evidence, please complete the attached Form SSA-789 “Request For Reconsideration - Disability Cessation - Right to Appear,” and send it to us within 10 days from receipt of this notice. The enclosed envelope, which requires no postage, may be used to return the form and any additional material.”

    “If you do not contact us within 10 days from the receipt of this notice, a formal decision concerning your entitlement to benefits based on disability will be made. If we reverse the continuance to a cessation of benefits, your benefit payments will be stopped. If you want a disability hearing but need more time to submit a statement or additional evidence, it is important that you let us know that you need more time within the next 10 days.”

    DI 33025.075 Age 18 Redetermination Cases Under P.L. 104-193

    A. Background – Childhood disability eligibility at attainment of age 18

    Pursuant to Public Law (P.L.) 104-193, all title XVI childhood disability recipients who attained age 18 on or after August 22, 1996, and were eligible as children in the month before the month in which they attained age 18, must have their eligibility redetermined under the adult standards for initial claims.

    Use the adult disability criteria for initial claims to make disability redeterminations, excluding the first step of the sequential evaluation, process, substantial gainful activity (SGA).

    NOTE: The medical improvement review standard (MIRS) does not apply in Age 18 redetermination cases.

    B. Policy – Appealing the decision in an age 18 redetermination case

    Recipients found not disabled in an age 18 redetermination, based on the application of the adult disability criteria, may appeal the determination that they are not disabled. Reconsiderations of the age 18 redetermination cases will be conducted under the regulations that govern the disability hearing process. See 20 CFR §416.1414 through §416.1418.

    C. Process for conducting an age 18 redetermination case

    Except as set out in this section, age 18 redetermination reconsiderations will be conducted according to DI 33001.000 Disability Hearing Unit Procedures.

    For example:

    • If the disability determination services (DDS) could not reach a fully favorable determination, any residual functional capacity assessment forms, including SSA-416 (Medical Evaluation), SSA-4734-BK (Physical Residual Functional Capacity), or SSA-2506-BK (Psychiatric Review Technique), obtained for the case review, will be marked, “Advisory.”

    • The DDS or the disability hearing unit (DHU) will prepare an SSA-887 (Summary of Evidence).

    • The DHU will send the recipient, and his or her representative, if any, notice of the time and place of the disability hearing at least 20 days before the date of the hearing.

    • The recipient and his or her representative, if any, should be encouraged to review the evidence in the case folder on the date of the hearing or at an earlier time.

    If, for any reason, additional evidence is obtained after a hearing, and all evidence, taken together, supports an unfavorable decision, the recipient is notified, in writing, and given an opportunity to review and comment on the additional evidence within 10 days of the date the notice is received, unless there is good cause found for granting additional time.

    D. Procedure - preparing the disability hearing officer’s report of disability hearing

    While conducting the hearing, complete an SSA-1205-BK (Disability Hearing Officer's Report of Disability Hearing) to record the proceeding. Because comparison point decision (CPD) and the MIRS do not apply in age 18 redeterminations, annotate the SSA-1205-BK to show you did not use these concepts. Delete, cross out, or make remarks about any reference to the CPD or the MIRS. Examples of remarks to use in appropriate items include “not applicable” or “The medical improvement standard does not apply.”

    E. Procedure - fully favorable age 18 redetermination case

    1. Completing the form SSA-1207-BK-OP1

    Complete an SSA-1207-BK-OP1 to document a fully favorable determination. Concisely discuss the evidence and provide a rationale that explains the basis of the decision.

    2. Completing the form SSA-832

    Complete an SSA-832 in every case with a decision. Enter in the remarks section, “This decision is based on the hearing held on (date of hearing).” For special coding instructions, see DI 23570.025 Processing Childhood and Age 18 Disability Redeterminations.

    DHO cover notice

    Prepare and release the DHO cover notice with the DHO decision.

    Refer to DI 33015.025 and DI 33095.100 for a sample Notice of Reconsideration without benefit continuation. Do not use any fill-in that refers to medical improvement. For a fully favorable decision – Notice of Reconsideration with benefit continuation, suggested language follows:

    Suggested Language for a Fully Favorable Decision

        

    Social Security Administration

    Supplemental Security

    Notice of Reconsideration

    Date:

    Name

    Address

    City, State, and Zip Code

    We are writing to let you know that we have made our disability hearing decision on your case.

       

    Our Decision

    We find that your disability began (insert date of disability here).

    We have attached the hearing decision to this letter. Our decision deals only with whether you are disabled. If our decision causes a change in your benefits, you will receive a separate letter.

    If you agree with our decision, you do not have to do anything.

      

    If you Disagree with The Decision

    If you disagree with the decision, you have the right to ask for a hearing. At the hearing, a person who has not seen your case before will review your case again. That person is an Administrative Law Judge (ALJ). In this review, the ALJ will consider any new facts you have.

    • You will have 60 days to ask for a hearing

    • The 60 days start the day after you receive this letter. We assume you will receive this letter within five (5) days after the date that appears above, unless you can show us that you did not receive the letter within five days.

    • You must provide a good reason for a delay if you wait more than 60 days to ask for a hearing.

    • Your request for a hearing must be in writing. We will ask you to sign Form SSA-501, called a ‘Request for a Hearing.’ Contact the nearest Social Security Administration office for a copy of this form and if you need help.

    Enclosures:

    Hearing Decision

    F. Procedure - partially or fully unfavorable age 18 redetermination cases

    1. Completing the form SSA-1207–BK-OP1

    Complete an SSA-1207-BK-OP1 to document a partially or fully unfavorable determination.

    2. Completing the form SSA-832

    Complete an SSA-832 in every case with a decision. Enter in the remarks section, “This decision is based on the hearing held on (date of hearing).”

    3. DHO cover notice

    Prepare and release the DHO cover notice with the DHO decision.

    • Unfavorable decision and benefit continuation not offered -- SSA-L1674

    • Unfavorable decision and benefit continuation is offered – SSA-L1680

    See:

    • DI 33015.025 Preparing the Notice of the Disability Hearing Officer's Decision

    • DI 33095.116 SSA-L1680— Disability Hearing Decision Cover Letter — Payment Continuation Elected at Reconsideration and Offered Again at ALJ Hearing Level

    Do not use a fill-in that refers to medical improvement. In most cases, the appropriate fill-in will be, “We find that you are no longer eligible for payments.”

    DI 33025.080 Using Video teleconferencing (VTC) Equipment to Conduct Hearings

    A. Policy for conducting hearings using VTC equipment

    Disability hearing units (DHU) with access to VTC equipment may use that equipment to conduct disability hearings if all of the following conditions are met:

    • The beneficiary or recipient signs and returns a statement to the disability hearing officer (DHO) prior to the hearing stating, “I know that I may have an in-person hearing. I voluntarily elect to have my disability hearing conducted by video teleconferencing equipment. I understand that having my hearing conducted by video teleconferencing equipment will not affect the outcome of my claim.”

    • The hearing follows the same format as a traditional, in-person hearing. The beneficiary or recipient has the right to appoint a representative, review the record prior to the hearing, submit additional evidence, request assistance with obtaining additional evidence, present witnesses, and question any witnesses. (These rights are set out in the initial determination notice sent to the beneficiary or recipient).

    • A disability determination services (DDS) or DHU employee, contractor, or other personnel (as specified in your local business process), are at the remote site with the beneficiary or recipient to facilitate the disability hearing process, e.g., by ensuring that the VTC, facsimile machines, etc., are operating properly.

    The DHO should terminate any hearing conducted via VTC equipment and schedule an in-person hearing if the DHO believes that he or she cannot effectively conduct the hearing, or believes that the beneficiary or recipient is not able to present his or her claim effectively, due to the video format.

    B. Procedures for contractors acting as facilitators

    Contractors acting, as non-DDS or DHU employee facilitators shall take due precaution to ensure that the confidentiality of the beneficiary or recipient’s information, presented as part of the VTC hearing, is not breached. Disclosure of such information may only be made pursuant to the Social Security Administration’s privacy regulation at 20 CFR Part 401.90. Contractors who access, use, or disclose the data provided improperly (i.e. not to perform their official job duties) may be subject to civil and criminal sanctions under the Privacy Act and other applicable Federal statutes and regulations.

    NOTE: It is inappropriate for a DHO to consider a facilitator’s observations unless the facilitator advises the beneficiary or recipient of the facilitator's observations and gives him or her, an opportunity to respond.

    For example, the facilitator may advise the DHO that he or she observed the beneficiary or recipient walking and moving about without any apparent limitation prior to the hearing. Then, during the hearing, the facilitator observes the beneficiary or recipient exhibiting or relating a marked limitation in his or her ability to move freely about. However, the DHO may not consider the facilitator's statement in making his or her determination unless the beneficiary or recipient has an opportunity to respond to the facilitator's statement and both statements are added to the record.

    DI 33025.085 Conducting Disability Hearings by Telephone

    A. Policy for conducting disability hearings by telephone