I-5-4-25.Blankenship, et al., v. Secretary of Health and Human Services

Table of Contents
I Purpose
II Background
III Claims Covered by the Agreement
IV Implementation of the Agreement
V Inquiries
Attachment A - Settlement Agreement Dated January 3, 1990
Attachment B - Notice to Claimant (for use by HO)
Attachment C - Notice to Claimant (for use by Appeals Council)

ISSUED: November 7, 1990

I. Purpose

This Temporary Instruction (TI) contains instructions for implementing the settlement agreement approved by the U.S. District Court for the Western District of Kentucky in Blankenship, et al., v. Secretary of Health and Human Services, No. C 75-0185-L(A) (W.D. Ky. Jan. 3, 1990).

II. Background

On October 1, l986, the U.S. District Court for the Western District of Kentucky ordered the Secretary to send notices to all title II and title XVI disability claimants residing in Kentucky to advise them that they could initiate action against the Social Security Administration in Federal court if they believed that their cases were being “unfairly or unreasonably” delayed at the hearing or Appeals Council level of review. The Government appealed this order to the Sixth Circuit arguing that Heckler v. Day, 467 U.S. 104 (1984), precluded classwide relief of any kind. The Office of Hearings and Appeals implemented the district court order while it was on appeal and has continued to send the court-ordered notices.

On October 6, l988, the Sixth Circuit remanded the case to the district court for specific findings of fact regarding the presence or absence of systematic, unreasonable delays. Thereafter, the parties negotiated a settlement agreement which the district court approved on January 3, 1990 (Attachment A).

III. Claims Covered by the Agreement

The agreement covers all title II and title XVI disability claimants who reside in Kentucky and who request a hearing before an Administrative Law Judge and/or review by the Appeals Council.

IV. Implementation of the Agreement

A. Hearing Office Actions

When a hearing office (HO) receives a new request for hearing by a title II or title XVI disability claimant residing in Kentucky, HO personnel must send the notice in Attachment B to the claimant and a copy to the representative, if any, at the same time they send acknowledgment of the request for hearing. HO personnel must send the notice no later than 90 days after the date of the request for hearing. They must place a copy of the notice in the claim file and enter it into the record as an exhibit.

B. Headquarters Actions

When the Office of Appellate Operations (OAO) receives a new request for review from a disability claimant residing in Kentucky, OAO personnel must review the file to ensure that a Blankenship notice was sent at the hearing level. If a notice was sent, there is no need to send another because the hearing level notice also informs the claimant of the right to seek judicial relief if the Appeals Council's action is unreasonably delayed. If no notice was sent at the hearing level, OAO personnel must send the notice in Attachment C to the claimant and representative, if any. They must place a copy of the notice in the claim file and enter it into the record as an exhibit.

V. Inquiries

HO personnel may call the Atlanta Regional Office at (FTS) 242-5685. Regional Office personnel may call the Division of Field Practices and Procedures in the Office of the Chief Administrative Law Judge at (FTS) 305-0022. Headquarters personnel may call the Division of Litigation Analysis and Implementation at 305-9708.

Attachment A. - Settlement Agreement Dated January 3, 1990

[DATE FILED 01/03/1990]

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE

SAMMIE GAIL BLANKENSHIP, et al.,

) CIVIL, ACTION NO.

Plaintiffs,

) C 75-0185-L(A)
  )  
  )  

v.

)  
  )  

SECRETARY OF HEALTH AND HUMAN SERVICES,

)  
  )  

Defendant.

)  
______________________________________________ )  
  )  

GEORGIA FINCH, et al.,

) CIVIL, ACTION NO.
  )  

Plaintiffs,

) C 76-0441-L(A)
  )  

v.

)  
  )  

SECRETARY OF HEALTH AND HUMAN SERVICES,

)  

Defendant.

)  
______________________________________________ )  

SETTLEMENT AGREEMENT

I. PROCEDURAL HISTORY

  1. The consolidated class action suits were brought by plaintiff classes of Kentucky residents, seeking relief concerning the time taken to process cases at both the hearing and appeal stages of the administrative appeals processes for Supplemental Security Income (SSI) and Old Age, Survivors and Disability Insurance (OASDI) benefits claims. In 1982, the District Court ordered the Secretary to promulgate regulations establishing a 180-day time limit within which hearing decisions must be issued on disability claims under Titles II and XVI of the Social Security Act, 42 U.S.C. § 401, et seq., in cases involving terminations, suspensions, or reductions. In addition, the Court directed the Secretary to promulgate regulations establishing a 90-day time limit within which appeals decisions must be issued in Supplemental Security Income (SSI) disability claims involving terminations, suspension, or reductions.

  2. The Court also ordered that interim benefits be paid, subject to recoupment, to claimants who did not receive a hearing within 180 days of the day the hearing was requested. 532 F. Supp. at 746-47. This decision was affirmed on appeal by the Sixth Circuit in Blankenship v. Schweiker, 722 F.2d 1282 (1983). However, the District Court's order was stayed by Justice O'Connor pending the Supreme Court's decision in Day. Heckler v. Blankenship, 465 U.S. 1301 (1984). After Day was decided, the Sixth Circuit's decision affirming was vacated and the case was remanded to the District Court for reconsideration in light of Day. Blankenship v. Secretary, HHS, 750 F.2d 30 (1984). It is from the District Court's decision on remand that the Secretary now appeals.

  3. On remand, the District Court granted class-wide notice relief and ordered the Secretary to send to Title II and Title XVI disability claimants in Kentucky the “notice” attached hereto as Appendix A. The Sixth Circuit Court of Appeals, on October 6, 1988, once again remanded the case to the District Court for the purpose of making specific findings of fact regarding current systemic, unreasonable delays to support the Court's injunctive order.

  4. Since the October remand, counsel have been involved in negotiations, which led to the settlement agreement hereinunder proposed to the District Court.

II. AGREEMENT

The defendant herein has been forwarding the aforementioned notice since the District Court's injunctive order of March 20, 1986, and since both parties to this litigation agree that said notice represents the one remaining unresolved issue in this case, the parties herein desire to settle this lawsuit, with the Court's approval, on the following agreed upon terms:

  1. The defendant agrees to continue to send the attached notice (Appendix A) to Title II and Title XVI disability claimants in the Commonwealth of Kentucky who seek de novo review of adverse decision for benefits before an Administrative Law Judge and/or before the Appeals Council of the Department of Health and Human Services. In making this agreement, defendant does not acknowledge that any classwide relief is appropriate.

  2. The parties agree that a change in circumstances shall allow parties to reopen this case to request supplemental orders consistent with such changes.

  3. Plaintiffs agree not to seek attorney's fees for services performed through the date of approval of this settlement agreement.

  4. Each party shall bear its own costs.

1/3/90

DATE

/S/

CHARLES M. ALLEN, SENIOR JUDGE

AGREED TO BY:  

12/21/89

DATE

________/S/________

HENRY A. FREEDMAN
Counsel for Plaintiffs
Center on Social Welfare
 Policy and Law
95 Madison Avenue, Room 701
New York, NY 10016

12/21/89

DATE

________/S/________

DENNIS E. BRICKING
Counsel for Plaintiffs
Legal Aid Society, Inc.
425 W. Muhammad Ali Blvd.
95 Madison Avenue, Room 701
Louisville, KY. 40202
 

JOSEPH M. WHITTLE
UNITED STATES ATTORNEY

12/19/89

DATE

________/S/________

MICHAEL F. SPALDING
Assistant United States Attorney

Counsel for Defendant

12/15/89

DATE

________/S/________

STANLEY ERICSSON
Attorney
Social Security Division
Office of the General Counsel
Department of Health and Human Services

APPENDIX A

YOU HAVE A RIGHT TO HAVE A DECISION WITHIN A REASONABLE TIME AFTER YOUR HEARING REQUEST

We are required by the federal court to give you the following notice:

We have received your request for a hearing and will notify you at least 20 days before the hearing as to when and where it will be held. Although we will make every effort to schedule you as soon as possible, there may be a delay in scheduling your hearing. If you wish to find out the status of your hearing, you may call (502) 582-6446, or write to our office at:

Office of Hearings and Appeals
Suite 1402, Heyburn Bldg.
322 W. Broadway
Louisville, KY. 40202

You have a right to sue us in federal court if you believe that a decision in your case has been unfairly or unreasonably delayed. If, after requesting a status report of your hearing decision as explained above, you believe your case is being delayed unreasonably, you may seek relief in district court. Also, if you receive a decision from the Administrative Law Judge finding that you have no disability and you appeal that decision to the Social Security Appeals Council, we will make every effort to have the Appeals Council complete its action as soon as possible. However, there may be a delay in the Appeals Council's action on your case. If you believe their action is being delayed unreasonably, you may seek relief in federal court.

You may wish to consult your attorney regarding your rights. If you do not have an attorney, free legal services may be available if you qualify for them due to financial need. For further information, you can contact the attorneys for the plaintiffs in the case which challenges Social Security delays in Kentucky, Blankenship v. Secretary of Health and Human Services, No. C75-0185-L(A) (W.D. Ky. March 20, 1986):

Legal Aid Society, Inc.
425 W. Muhammad Ali Blvd., 4th Floor
Louisville, KY 40202
(502) 584-1254
(800) 292-1862

Attachment B. - Notice to Claimant (for use by HO)

YOU HAVE A RIGHT TO HAVE A DECISION WITHIN A REASONABLE TIME AFTER YOUR HEARING REQUEST

We are required by the Federal court to give you the following notice:

We have received your request for a hearing and will notify you at least 20 days before the hearing as to when and where it will by held. Although we will make every effort to schedule you as soon as possible, there may be a delay in scheduling your hearing. If you wish to find out the status of your hearing, you may call (Insert hearing office telephone number), or write to our office at:

Office of Hearings and Appeals
(Insert hearing office address)

You have a right to sue us in Federal court if you believe that a decision in your case has been unfairly or unreasonably delayed. If, after requesting a status report of your hearing decision as explained above, you believe your case is being delayed unreasonably, you may seek relief in district court. Also, if you receive a decision from the Administrative Law Judge finding that you have no disability and you appeal that decision to the Social Security Appeals Council, we will make every effort to have the Appeals Council complete its action as soon as possible. However, there may be a delay in the Appeals Council's action on your case. If you believe their action is being delayed unreasonably, you may seek relief in Federal court.

You may wish to consult your attorney regarding your rights. If you do not have an attorney, free legal services may be available if you qualify for them due to financial need. For further information, you can contact the attorneys for the plaintiffs in the case which challenges Social Security delays in Kentucky, Blankenship v. Secretary of Health and Human Services, No. C75-0185-L(A) (W.D. Ky. March 20, 1986):

Legal Aid Society, Inc.
425 W. Muhammad Ali Blvd., 4th Floor
Louisville, KY 40202
(502) 582-1254
(800) 292-1862

cc: (Representative, if any)

Attachment C. - Notice to Claimant (for use by Appeals Council)

YOU HAVE A RIGHT TO HAVE A DECISION WITHIN A REASONABLE TIME AFTER YOUR HEARING REQUEST

We are required by the Federal court to give you the following notice:

We have received your request for Appeals Council review of the Administrative Law Judge's decision on your claim. Although the Appeals Council will make every effort to complete its action on your case as soon as possible, there may be some delay. If you wish to find out the status of your case, you may call (Insert OAO branch telephone number), or write to the Appeals Council at:

Office of Appellate Operations
5107 Leesburg Pike
Falls Church, VA 22041-3255
Attention: (Insert OAO branch and room numbers)

You have a right to sue us in Federal court if you believe that the Appeals Council's action has been unfairly or unreasonably delayed. If, after requesting a status report as explained above, you believe your case is being delayed unreasonably, you may seek relief in district court.

You may wish to consult your attorney regarding your rights. If you do not have an attorney, free legal services may be available if you qualify for them due to financial need. For further information, you can contact the attorneys for the plaintiffs in the case which challenges Social Security delays in Kentucky, Blankenship v. Secretary of Health and Human Services,

No. C 75-0185-L(A) (W.D. Ky., March 20, 1986):

Legal Aid Society, Inc.
425 W. Muhammed Ali Blvd., 4th Floor
Louisville, Kentucky 40202
(502) 584-1254
(800) 292-1862

cc: (Representative, if any)