I-2-8-6.Benefit Continuation Until Hearing Decision

Last Update: 9/2/05 (Transmittal I-2-63)

A. Claimant No Longer Disabled After Continuing Disability Review (CDR).

When the Disability Determination Services (DDS) determines that an individual is no longer disabled after a CDR, the claimant may elect benefits/payments to continue through the date of an ALJ decision. See 20 CFR 404.1597a and 416.996. If the claimant elects benefit continuation and, on appeal, the ALJ subsequently issues an unfavorable decision or dismisses the request for hearing, benefits/payments must be terminated.

At the hearing level, when the following variables in the Central Processing Management System (CPMS) are met, benefits will automatically terminate:

  • Claim type = DIWC and the Beneficiary Identification Code = A,

  • Case is input by OHA within 30 days of the ALJ decision,

  • Decision is unfavorable,

  • Hearing type indicates benefit continuation is involved, and

  • Case is coded as a medical cessation.

When the above variables are not met, termination will not be automatic and will require OHA staff to take action to request termination of benefits/payments. OHA may request termination of benefits/payments by accessing the Documentation Generation System, clicking on “Correspondence” then click on “Post-Hearing” and then select “Medical Cessation Alert.” The Medical Cessation Alert must be appended to a copy of the unfavorable decision and then transmitted to the appropriate effectuating component.

B. Continuation of Disability Payments in Medical Cessation Remand Cases. - Notices to be Sent by HOs - Title XVI-only and Concurrent Cases

Title XVI-only and Title II/XVI concurrent medical cessation cases received by HOs should contain a notation on the transmittal slip alerting the HO that the case is a case in which continued disability payments may be elected to be received pending readjudication of their claim for benefits.

The HO is required to send a notice in each individual case. The type of notice to be sent to the claimant by the HO will be made based on whether or not the individual previously received continued payments, and whether or not the individual is currently in payment status, as described below. This information will be obtained by the servicing DO/BO through SSI queries and will be telephoned to the Hearing Office Director or other HO staff person designated to receive such calls. Written confirmation will be mailed to the HO in the form of the completed SSI Payment Status Request (see I-2-8-99 Exhibit). Based upon the telephone information from the DO/BO, the appropriate notice should be promptly sent to the individual. The SSI Payment Status Request confirmation should be stapled to the CF copy of the notice when it is received. If the HO does not receive a telephone call from the DO/BO within ten days of receiving the remand order, the DO/BO should be telephoned as a reminder.

It should be noted that, in some court remanded cases, the CF cannot be forwarded immediately to the HO with the remand order. In such cases, the HO should not wait to receive the CF, but should send the proper payment continuation notice to the individual, based upon the information received from the DO/BO.

From the DO/BO contact, it should be apparent that one of the following sets of circumstances applies to the case and the actions indicated should be taken.

1. Type 1 - Individual previously received continued payments at the ALJ level, but payments were terminated. (I-2-8-99 Exhibit, SSI Payment Status Request, Part 2: Item a. is checked)

  • A notice (see I-2-8-100 Exhibit) should be sent by the HO to the individual (and representative, if any), informing him or her that the DO/BO will take necessary actions regarding redetermination of nondisability factors of eligibility and reinstatement of payments, and that he or she may also waive payments.

  • If the individual wishes to waive payment continuation, he or she should tell the DO\BO and complete a written waiver. The DO/BO should send the waiver to the HO for association with the CF.

2. Type 2 - Recipient previously received continued payments at the ALJ level and payments were not terminated (I-2-8-99 Exhibit, SSI Payment Status Request, Part 2: item b. is checked)

  • No action by the HO or DO/BO is necessary with regard to reinstatement of payments; payments should continue (as long as the individual meets the nondisability requirements of eligibility) unless and until an unfavorable decision or a dismissal order is issued following the remand.

  • The HO should send a notice (see I-2-8-101 Exhibit) to the recipient (and representative, if any) informing him or her that payments will continue and that no further action by the recipient is necessary to continue to receive payments unless the DO/BO requests information for a redetermination, or the recipient now wants to waive payments.

  • If the recipient wishes to waive payment continuation, he or she should be referred to the DO/BO to complete the written waiver. The DO/BO should send the waiver to the HO for association with the CF.

3. Type 3 - Individual previously did not receive continued payments at the ALJ level, payments were not requested or the request was filed late and good cause was not established (I-2-8-99 Exhibit, SSI Payment Status Request, Part 2: item c. is checked)

  • A notice (see I-2-8-102 Exhibit) should be sent by the HO to the individual (and representative, if any), informing him or her that payment continuation may now be requested by contacting the DO/BO within ten days of receiving the notice.

  • A copy of the notice sent to the individual should also be sent to the servicing DO/BO. The HA-505 transmittal should be annotated as following: “Possible Title XVI Payment Continuation Case.” Individual did not previously receive continued payments. The case has now been remanded and the individual has been sent a notice directing him or her to contact any Social Security Office if he or she wants to request continued payments (copy attached).

  • If the individual does contact the DO/BO to request payment continuation, the DO/BO should send the HO the written request for payment continuation for association with the CF. The DO/BO will take necessary actions regarding redetermination of nondisability factors of eligibility and starting continued payments.

Copies of notices prepared by the HO should be distributed as follows:

  • original mailed to the individual (or representative payee, if any) at the last known address;

  • file copy for the CF;

  • copy to the individual's authorized representative, if any;

  • copy to the DO.

C. Individual or Representative Initiates Action

In some remanded cases, individuals who believe that they are eligible for payment continuation may not wait to receive notices, but may contact HOs on their own initiative. Such cases should be handled as described below.

  1. If an individual (or representative) contacts an HO, the HO should refer him or her to the servicing DO/BO, and the HO should provide the DO/BO with the information indicated in 2. below.

  2. The HO will notify the servicing DO/BO of the remand order, the date of the order, the individual's name and SSN, and the current status of the remand by telephone, with written confirmation by memorandum in the format of I-2-8-103 Exhibit. Check off item 1.a. or 1.b. to indicate whether it was the individual or the representative who initiated the request and fill in the date of the contact, and, if 1.b. is checked, the representative's name. Check off item 2.a. or 2.b. to indicate whether final action has or has not already been taken on this remanded case. If item 2.a. is checked, fill in the date of the decision or dismissal order and attach a copy. If item 2.b. is checked, fill in the date of the prior (vacated) decision or dismissal order, and the date of the current remand order.

  3. The individual should contact the servicing DO/BO to record, in writing, the request for payment continuation.

  4. The DO/BO will send the individual's completed request for payment continuation to the HO for association with the CF.

  5. The HO will not send a notice regarding payment continuation to individuals who have initiated the process themselves (or whose representatives have done so).

  6. The DO/BO will take necessary actions regarding redetermination and reinstatement of continued payments unless the HO indicates that a decision/dismissal order has already been issued (item 2.a. is checked off on I-2-8-103 Exhibit).

D. Fully Favorable Decisions - Conversion of Continued Payments to Regular Monthly Payments

If a fully favorable decision (not a recommended decision) is issued by the ALJ necessary action will be taken by SSA to convert continued payments to regular, monthly payments. Send a copy of the favorable decision to the DO/BO, and annotate the HA-505 transmittal as follows: “Fully favorable decision - - please convert continued payments to regular, monthly payments.” Do not send a termination memorandum, as described in I. below.

E. Termination of Continued Payments

1. General

In cases remanded pursuant to a Federal court order, the ALJ issues a recommended decision. The final decision is then issued by the AC. In AC-initiated remands, the ALJ generally renders a decision, although the Council sometimes directs the ALJ to issue a recommended decision.

2. HO Initiates Termination Action

In cases where the ALJ issues a partially or fully unfavorable decision (not a recommended decision), or an order of dismissal following the remand, the HO should initiate termination of continued payments as described below.

  • If I-2-8-100 Exhibit (reinstatement of continued payments) or I-2-8-101 Exhibit (continuation of existing payments) was sent, initiate termination action unless a written waiver of continued payments by the recipient was received from the DO/BO.

  • If I-2-8-102 Exhibit (offer of continued payments) was sent, initiate termination action if a written request for payment continuation by the individual was received from the DO/BO, or if it is not known whether or not the individual requested continued payments.

To initiate termination action, the HO should promptly notify the servicing DO/BO, in writing, using the memorandum format in I-2-8-104 Exhibit. The memorandum should be sent, with a copy of the decision or order of dismissal, to the servicing DO/BO. A copy of both should be placed in the CF. In order to minimize overpayments, every effort should be made to transmit the termination memorandum to the servicing DO/BO as quickly as possible.

In cases where a recommended decision is issued, the HO will not initiate termination action but should annotate the HA-505 transmittal of the recommended decision to the AC in the 'Remarks' section with the following reminder:

F. Overpayments and Waiver of Recovery

Any pending overpayment recovery action by the DO/BO should be suspended while a remand is pending. HO notices to recipients (see I-2-8-100 Exhibit, I-2-8-101 Exhibit and I-2-8-102 Exhibit) inform the individual that if payments have been continued and an unfavorable decision or an order of dismissal is subsequently issued, the continued payments would be considered to be overpayments and subject to recovery. At the time of the unfavorable decision or dismissal, HO responsibility is limited to notifying the servicing DO/BO to terminate continued payments. Other (non-OHA) SSA components are responsible for effectuating the termination of payments, computing the amount of overpayment, notifying the recipient, and explaining the right to request waiver of recovery of the overpayment. Questions to HOs from recipients and their representatives on these subjects should be referred to the servicing DO/BO.

ALJs have the authority under the regulations to extend the issues, in a case properly before them, to include pertinent issues not previously considered. ALJs should not ordinarily take overpayment and waiver of recovery as new issues if they have not previously been considered at earlier stages in the administrative process.