TN 4 (06-05)
SI 04070.010 Title XVI Administrative Finality - General Reopening Policies
A. Policy – reopening
Administrative finality or reopening applies ONLY when final determinations or decisions are being changed. If the action being changed is not a final determination or decision, administrative finality rules, including the time frames, do not apply. (See SI 04070.005A.3. for a discussion of initial determinations).
1. Actions under appeal
If an action is under appeal, i.e., it is at an appeal step, such as reconsideration, ALJ review or AC review, it is not subject to the rules of administrative finality. No matter how long that step takes, it is applicable all the way back to the period covered by the initial determination that started the process. If it is based on an initial application, it is effective back to the effective application date.
EXAMPLE: Mrs. Jones files an application for SSI on February 6, 2000. The initial determination notice dated July 13, 2000 is completed and mailed denying the claim. The reconsideration is completed on September 15, 2000 affirming the initial determination. The ALJ renders a decision on February 16, 2002 reversing the reconsidered determination as of the effective application date, February 6, 2000. We will make payment back to the application date (except for the EO2 month), even though it precedes the ALJ decision by more than two years.
2. Good cause to extend time to file an appeal
If good cause to extend the time to file an appeal is found, the matter becomes an appeal issue not subject to reopening. The administrative finality time limits do not apply.
EXAMPLE: Erroneous Death Termination.
Jerry Anderson is an SSI recipient who is required to have a representative payee because of a serious mental impairment. Mr. Anderson has been eligible for and receiving payments since August 1989. In March 1994, his payee died. When the payee's death was reported, it was mistakenly assumed that Mr. Anderson had died, and his payments were terminated in April 1994. Since it was a death termination, a notice of the initial determination was not sent to him. In March 2003, a relative brought Mr. Anderson in to the FO, and the error was discovered. The FO employee explained that Mr. Anderson could submit a request for reconsideration together with a request to extend the time for requesting a reconsideration based on the lack of notice of the termination. Mr. Anderson submitted both requests. Based on the explanation contained in the request for extension, the employee found good cause to accept the late request for reconsideration. The employee then conducted a reconsideration and reversed the termination which had been implemented in March 1994. Based on that action, an underpayment determination was rendered that awarded payments from April 1994 to present. All payments could be made, because they were paid as the result of a step in the appeal process, even though about 7 years of payments applied to months that were more than 2 years in the past.
IMPORTANT: For determinations that do not require notices, such as wrongful death terminations, inputs to the system to effectuate the determination are the determination. For all other determinations, when written notices are issued, the notice is the determination.
3. “Deemed Initial Determinations”
Unless and until we have information to the contrary, we consider that all factors of eligibility and payment amount remain the same from one month to the next. Each month’s payment is a determination in which there is “deemed” to be no change in the factors of eligibility and payment amount.
IMPORTANT: The concept of “deemed initial determinations” applies ONLY to nonmedical factors. It does not apply to medical factors of eligibility; i.e., disability.
If we learn that there has been an unreported change, we can go back and revise all such monthly “deemed determinations” for at least 1 year, and, possibly for 2 years. The rules regarding time limits for going back to reopen and revise that apply to all other determinations apply here also. The reason for the revision will determine how far back we can go to reopen; i.e., good cause (2 years), fraud (unlimited) or similar fault (unlimited). See SI 04070.010F.4. through SI 04070.010F.5. for instructions about determining which months can be reopened. See SI 04070.030F. concerning the effect of Retrospective Monthly Accounting (RMA) on determining what months can be reopened.
4. Scope of application
The SSI application form (SSA-8000BK) is a claim for all benefits administered by SSA to which the claimant may be entitled (see GN 00204.020 – Scope of the Application and SI 00601.010D.1. – Filing Applications); e.g. Title II Disability Insurance Benefits or Retirement and Survivors’ Insurance Benefits. The failure to consider and adjudicate the claimant's entitlement to a class of benefits for which all of the requirements for entitlement are met during the effective life of the application is not a determination with respect to that claim. This is true regardless of whether SSA, or the claimant, was aware of the possibility of such entitlement to any other benefits encompassed by the SSI application at the time of adjudication.
5. Scope of the award
The award or disallowance of other benefits covered by the SSI application does not dispose of a claim which is not specifically covered by the award or disallowance action.
B. Policy – effect of a failure to make a determination
The failure to make a determination with respect to any claim or issue is not an initial determination to which finality may attach. Consequently, any time such a failure comes to SSA's attention, an adjudication of the claim or issue is in order.
EXAMPLE: Mr. Davis filed an application for SSI on June 15, 2001 claiming that he was disabled. The initial determination denying his application was rendered on September 12, 2001 on the grounds that he was not disabled. No determination was made as to his income, living arrangement or resources. Mr. Davis filed a reconsideration timely. The reconsideration determination was rendered on February 9, 2002, affirming the previous decision. He timely filed a request for an ALJ hearing. The hearing was held, and the ALJ issued a decision on July 30, 2003 finding that Mr. Davis was disabled at least as of the date of his application, and his file was sent back to the field office for effectuation. Since no prior determination had been made regarding the other factors of eligibility and payment amounts, the field office will now develop his case for those factors and make an initial determination as to whether he meets the remaining factors. If he does, we can make payment for all intervening months in which he met all of the factors of eligibility back to the effective date of his application. If he does not, an initial determination (e.g., on income) will be made and the appeal level on that determination is the reconsideration.
C. Policy – only incorrect determinations can be reopened and revised
Generally, only determinations or decisions that were incorrect when made can be reopened and revised. Except as noted in SI 04070.010C.1. through SI 04070.010C.3., 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. A determination or decision may have appeared correct based on the available evidence at the time it was made. If it is later shown that it was incorrect when made; e.g., through introduction of new and material evidence, it can be reopened and revised.
EXAMPLE: A correct determination of ineligibility on an initial claim that a claimant is receiving in kind support and maintenance will not be reopened and revised because the individual stops receiving the support and maintenance at a later date. In such an instance, the individual must file a new application unless the claimant is still within the appeals period.
1. Exceptions: N17, N18 denials
These determinations for failure to pursue or cooperate, etc. can be reopened if the claimant/appellant subsequently pursues or cooperates, even though they were correct when made if we did not follow the correct procedures before issuing the denial. N17 and N18 determinations can only be reopened within two years of the initial determination if good cause is established. Unrestricted reopening does NOT apply to N17 and N18 determinations.
NOTE: Claims denied N18 for failure to provide SSA with permission to contact financial institutions should not be considered an exception since giving permission is a requirement for SSI eligibility as of 11/18/2006 (see SI 00515.001 - Requirement to Give Permission to Contact Financial Institutions).
For additional information on Reestablishing Eligibility see SI 02301.205 – Suspension and Reestablishing Eligibility.
2. Exception: changes of position
If we change our position because of a court order, legal precedent, etc. or other policy considerations, we can go back for up to one year and revise determinations, even though they were correct when made under the old position.
3. Exception: statutory and regulatory changes
Revision, if applicable, will depend on the effective date specified in the statute or regulations. Revision will also depend on whether the change has retroactive effect.
The instructions relating to the change will specify the effective date and how reopening and revision applies.
D. Policy – when to reopen and revise a determination or decision
It is our general policy to reopen and/or revise a determination or decision ONLY if the 60 day appeal period has passed.
E. Policy – when determinations and decisions become final
Determinations and decisions become final as follows:
1. Initial determinations
Immediately when rendered unless a request for reconsideration is received within 60 days after the date of the notice of the initial determination.
2. Revised determinations
Immediately when rendered, unless a request for reconsideration (in cases where current benefits are affected) or a request for Administrative Law Judge (ALJ) hearing (in cases of closed period reopenings) is received within 60 days after the date of the notice of the revised determination.
3. Reconsidered determinations
Immediately when rendered unless a request for ALJ hearing is received within 60 days after the date of the notice of the reconsidered determination.
4. ALJ hearing decisions
Immediately when rendered unless the Appeals Council (AC) takes jurisdiction as a result of:
The claimant’s request for AC review which is received within 60 days after the date of the ALJ’s decision, or
The AC decision to take jurisdiction to review the claim (“own motion review”) based on its notice to the claimant and/or representative within 60 days of the ALJ’s decision.
5. AC review
(See the instructions at DI 40115.005A.6. – Definitions and General Processing Instructions for disability cases and VB 02507.001C.1. – Administrative Finality – General for special veterans’ benefit cases.)
F. Policy – when reopening may be requested and who may request reopening
1. When reopening may be requested
A reopening may be requested after the time limit for appeal (the “appeal period”) has passed if a party is dissatisfied with a determination, revised determination, decision, or revised decision but has not requested an appeal (unless good cause exists for a late request
per SI 04005.015 – Good Cause for Extending Time Limit).
2. Who may request reopening
A person who is a party to a determination or decision, or the eligible spouse of any person who is claiming or receiving SSI payments, the representative payee or legal guardian of the person, the ineligible spouse, or a person who is eligible for an SSI underpayment may request that it be reopened and revised.
3. Who can reopen and revise a determination or a decision
a. Non-disability issues
A determination or decision can only be reopened or revised by a decision maker at the same level or above—
An initial or a reconsidered determination can be reopened and revised by a field office (FO), an ALJ, or the AC.
An ALJ’s decision can only be reopened and revised by an ALJ or the AC.
An AC decision can only be reopened and revised by the AC.
NOTE: A court is not bound by nor obligated to follow SSA’s reopening rules.
b. Disability issues
A Field Office (FO) does NOT have authority to reopen and revise DDS determinations related to disability or blindness.
4. Time limits for reopening and revising
a. 1-Year rule
A determination or decision can be reopened and revised for up to 1 year from the date of the notice of the initial determination or decision for any reason.
b. 2-Year rule
A determination or decision can be reopened and revised for up to 2 years from the date of the notice of the initial determination or decision upon a finding of “good cause.” (Criteria described in SI 04070.010F.5.) A specific finding of good cause must be expressly found, if the 1-year rule does not apply.
c. Indefinite reopening
A determination or decision can be reopened and revised at any time upon a finding of “fraud” or “similar fault.” (See SI 04070.020)
5. Good cause for reopening under the 2-year rule
There is good cause to reopen a determination or decision up to two years after the initial determination if:
a. New and material evidence
New and material evidence is any evidence which was not part of the file when the determination or decision was made and which shows facts that can result in a conclusion different from that reached in the prior determination or decision.
b. Clerical error
A clerical error is any error (e.g., mathematical, coding or input) which results in an incorrect determination or decision either favorable or unfavorable to the claimant.
c. Error on the face of the evidence
An error on the face of the evidence is an error which exists when, on the basis of all the evidence in the file on which the determination or decision was based, it is clear that the determination or decision is incorrect.
G. Policy – how to measure time limits
Time limits are measured from the date of the initial determination, regardless of the level of the determination or decision being reopened and are not extended by subsequent steps of the appeals process. In other words, the administrative finality time limits are based on the date of the notice of initial determination rather than on the date of the appellate determination or decision to be reopened.
A notice of initial determination was dated January 20, 2003. On August 5, 2003, a reconsideration was filed on the initial determination of January 20, 2003. The time limit for reopening the initial determination is based on January 20, 2003, not August 5, 2003. The time limit for subsequently reopening a revised determination is also based on January 20, 2003, not August 5, 2003. It would therefore be appropriate to reopen a determination for good cause based on affirmative action in writing dated January 20, 2005 or before.
The claimant filed an application for SSI on January 11, 2003. His application was denied because of excess resources, and the denial notice was dated February 1, 2003. On February 10, 2003, he filed a request for reconsideration. The FO affirmed the denial and issued a reconsidered determination on February 15, 2003. On February 19, 2003, the claimant requested a hearing. The ALJ issued a hearing decision, dated December 15, 2003, affirming the denial. Soon, thereafter, the process was repeated. The claimant filed a new application on March 3, 2004, which was denied again for excess resources on March 14, 2004, (date of denial notice). A reconsideration request was filed on April 15, 2004, and a reconsidered determination, dated May 1, 2004, was issued, affirming the denial. The claimant filed a request for a hearing on June 1, 2004, and the ALJ issued a hearing decision on January 16, 2005, reversing the denial and reopening and revising the hearing decision of December 15, 2003. During the second hearing, new and material evidence came to the attention of the ALJ that pertained to the first application (i.e., evidence not available at the time of the initial determination of February 1, 2003, and subsequent appeals). This was the basis for establishing good cause for reopening and revising the prior hearing decision, which appeared to be correct based on the evidence available at the time of original adjudication. Because the second application was filed within two years after the initial determination on the first application (February 1, 2003), the hearing decision based on that application could still be reopened under the 2-year rule described.
H. Policy – effect of denial of request to reopen
Denial of a request to reopen a determination or decision is an act of administrative discretion.
It is NOT an initial determination.
It is NOT appealable.