An investigation is the process of gathering information and evidence after a determination has been reopened to determine if revision of the determination is appropriate.

Diligent pursuit exists if, in light of all the facts and circumstances of a case, necessary action was undertaken and carried out as promptly as circumstances permitted.

Reasonable delay occurs when a determination is revised more than 6 months after the investigation began (i.e., the date of affirmative action in writing) and the delay was caused by factors beyond SSA's control. Examples of reasonable delay include:

• •

  Failure by recipient or their representative to cooperate

• •

  Failure by a third party to cooperate

• •

  Heavy workloads due to an unforeseeable emergency which results in an office closing for all or part of what would otherwise be a Federal workday; e.g., natural disaster, weather conditions, etc.

Unreasonable delay occurs when a determination cannot be revised more than 6 months after the investigation began (i.e., the date of affirmative action in writing) and the delay is unexplained or caused by factors within SSA's 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 recipient, an employer, a bank, or other source of information

The determination may be revised, regardless of whether the revision is favorable or unfavorable to the recipient as long as all of the other administrative finality requirements have been met.

The determination must not be revised if it is unfavorable to the individual.

The determination may be revised if it is favorable to the individual.

Diligent pursuit may be presumed if the investigation is completed and the determination is revised within the 6-month time period after the date the investigation began.

Diligent pursuit may not be presumed if the investigation is not completed within six months after the affirmative action in writing date. In that instance, the entire time period of the investigation must be analyzed and periods of inaction must be evaluated to determine whether they constitute a reasonable or an unreasonable delay. Heavy workloads that do not result from an emergency are NOT a reasonable delay. Examples of unreasonable delay include workloads as a result of understaffing, heavy leave use by FO staff, legislative changes, lack of planning, etc. An unreasonable delay by any component of SSA pertains to the entire agency. For example, if central office sends out computer listings to FO's late, this delay must also be evaluated in SI 04070.040I. If the delay is unexplained, it is presumed to be an unreasonable delay. The fact that the FO initiated development immediately upon receipt of the listings is not the sole factor to consider regarding whether SSA's delay was reasonable or unreasonable.

To determine if there has been diligent pursuit, we begin with the date the investigation began. This is the date of affirmative action in writing. For instructions regarding affirmative action in writing and initiating reopening and revision, see SI 04070.015B. through SI 04070.015C.

SSA often becomes aware of SSI overpayments during redeterminations, working limited issues, etc. OP diaries often result.

Once past months of benefit amounts have been reopened and revised pursuant to SSA’s administrative finality rules, the collection of the resulting overpayments are not governed by the rules for reopening. In other words, administrative finality rules do not apply to overpayment collection procedures.

See SI 02220.000 – Recovery Procedures for Supplemental Security Income Overpayments, for additional information on the recovery procedures for SSI overpayments.

Unless otherwise specified in the change of position, it will be applicable as of its effective date to:

• •

  All applications filed or pending on and after the effective date; and

• •

  All redeterminations, reconsiderations, ALJ hearings, AC reviews and litigation cases initiated or pending on and after the effective date.

• •

  With regard to appeals initiated after the effective date, the change is to be applied retroactively to the effective date or 1 year, whichever is later.

This includes cases that are questioned by either the SSA employee or the recipient. You may reopen the case and apply the change of position retroactively to the effective date of the change or 1 year, whichever is later. (In the case of “deemed” determinations, within 1 year of the first day of the month to which the determination applies.)

Retroactive changes are limited to 1 year and do not, without the presence of new and material evidence, clerical error or error on the face of the evidence, justify 2-year retroactivity.

In a Federal class action case, the court may issue an order with retroactive effect requiring SSA to locate and reopen determinations with regard to all or some class members. If so, the normal rules regarding change of position or reopening, in general, do not apply. In such an instance, we must comply with the order and reopen and revise all affected cases as directed, even if the notices of initial determination are more than 1 or 2 years old.

A similar rule applies to deemed determinations. The first day of the month is used as the date of the deemed determination instead of the date of the notice. The earliest deemed determination that can be reopened and revised is the first determination (i.e., involving the first full eligibility month) that occurred within the applicable 1- or 2-year period.

See SI 04070.010A.3. for the definition of deemed determination.

If the delay is unreasonable, a new date of affirmative action in writing may be established. This can be accomplished 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 the new affirmative action date occurs after the time limit to reopen the determination, the determination cannot be reopened and revised.

Whenever the revision does not occur within 6 months, the delay must be documented in writing regardless of whether it is found to be reasonable or not. The documentation must include an explanation of why the delay was or was not reasonable. If for some reason the cause of the delay is not documented, it is presumed to be unreasonable.

When an interface run date is the date of discovery of an error, a revision is not made within 6 months of the run date, and there is an unreasonable delay in the investigation, the run date can no longer be used as the date of affirmative action in writing if the revision will be unfavorable to the claimant. In that event, use the date the investigation was restarted (e.g., the claimant was called in for an interview, a request for information was sent to a bank) and diligently pursued to completion as the new date of affirmative action in writing. This date can be before or after the 6-month period has expired following the interface run date.

The FO received control lists and K6/K7 alerts pertaining to the 2001 MEF/SSR interface earned income discrepancy cases. The FO learns from the alert that John Jones has been receiving income since July 2000. The following dates apply:

• •

  December 9, 2002 - MEF/SSR interface run

• •

  December 19, 2002 - Control lists and alerts received in the FO. Development file set up.

• •

  December 19, 2002 to April 15, 2003 - No action taken. The reason for inaction is unexplained.

• •

  April 15, 2003 - Requests for information sent to John Jones’ employers.

• •

  April 15, 2003 to August 14, 2003 - Investigation is diligently pursued. The FO follows up on requests at reasonable intervals.

• •

  August 14, 2003 - Last response received. The investigation is complete, and revision is made.

  •  

    In this case, the interface run date cannot be used since the revision was not made within 6 months. The period of unexplained inaction from December 19, 2002 to April 15, 2003 constitutes unreasonable delay. As a result, SSA is barred from revising deemed determinations from January 2001 to April 2001.

  •  

    A new affirmative action in writing date of April 15, 2003 should be established since the investigation recommenced on that date. The FO can revise actual initial determinations, as applicable, which occur on and after April 15, 2001 and deemed determinations on and after May 1, 2001. See SI 04070.030A. through SI 04070.030D. for effective months of written notices of deemed determinations.

  •  

    In this example, the 2-year rule is used since interface alerts constitute new and material evidence.

Same basic situation as in SI 04070.040K.1- Example 1(Unreasonable Delay – No Diligent Pursuit). The following dates apply:

• •

  December 9, 2002 - MEF/SSR interface run

• •

  December 19, 2002 - Control lists and K6/K7 diaries received in the FO. Development files set up and requests for information are sent out to John Jones' employers by December 22.

• •

  Although the FO followed up regularly and at reasonable intervals, the last report was not received until August 14, 2003.

• •

  The revisions were made on August 14.

The investigation was diligently pursued and completed with the revisions made on August 14. December 9, 2002 is the correct affirmative action in writing date. A Report of Contact (RC) analyzing the delays from December 22 to August 14 and explaining why they are reasonable must be included in the file since the investigation took more than 6 months. Any actual initial determination occurring on and after December 9, 2000 can be reopened and revised, and any deemed determination from and after January 1, 2001 can be revised as applicable. See SI 04070.030A.1. through SI 04070.030B. for effective months of written notices of initial actual or deemed determinations.

Same fact situation as in SI 04070.040K.1. - Example 1. and SI 04070.040K.2. - Example 2. The following dates apply:

• •

  December 9, 2002 - MEF/SSR interface run.

• •

  December 19, 2002 - Control lists K6/K7 diaries are received in the FO. Development file is set up.

• •

  December 21, 2002 - FO loses the development file which had been set up 2 days before.

• •

  July 15, 2003 - Development file is located.

• •

  July 19, 2003 - Requests for information are sent to John Jones’ employers.

• •

  August 14, 2003 - The last response is received and the FO makes revisions based on them.

Since losing the file is not justification for a delay, the delay from December 19, 2002 to July 19, 2003 is unreasonable (mere discovery of the file does not constitute affirmative action in writing). Any actual initial determinations which occurred on and after July 19, 2001 can be revised and any deemed determinations on and after August 1, 2001 can be revised. See SI 04070.030A.1. through SI 04070.030B. for effective months of written notices of initial actual or deemed determinations.