I-5-4-44.Rosetti v. Shalala
Purpose | |
Background | |
Guiding Principles | |
Definition of Class | |
Determination of Class Membership and Eligibility for Relief and Preadjudication Actions | |
Processing and Adjudication | |
Case Coding | |
Reconciliation of Implementation | |
Inquiries | |
Rosetti Stipulation and Order; Approved by the Court on July 7, 1994; Entered by the Clerk of Court on July 8, 1994 | |
ROSETTI COURT CASE FLAG/ALERT | |
Route Slip or Case Flag for Screening | |
ROSETTI SCREENING SHEET | |
Route Slip for Routing Class Member Alerts and Prior Claim File(s) to ODIO or PSC - OHA No Longer Has Current Claim | |
Notice of Non-Class Membership/Ineligibility for Relief | |
Route Slip for Non-class Members/Ineligibility for Relief Cases | |
Text for Notice of Revised Class Membership/Eligibility for Relief Determination | |
Rosetti Class Member Flag for Headquarters Use (DDS Readjudication - Retention Period Expired) | |
Rosetti Class Member Flag for Headquarters Use (DDS Readjudication - Retention Period Has Not Expired) | |
ALJ Dismissal to DDS | |
Notice Transmitting ALJ Order of Dismissal | |
Rosetti Class Member Flag for HO Use (DDS Readjudication) |
ISSUED: February 14, 1995; REVISED: June 28, 1996
I. Purpose
This Temporary Instruction (TI) sets forth procedures for implementing the parties' joint Stipulation and Order, approved by the United States District Court for the Eastern District of Pennsylvania on July 7, 1994, and entered on July 8, 1994, in the Rosetti v. Shalala class action involving the standard for the evaluation of disability due to human immunodeficiency virus (HIV) or acquired immunodeficiency syndrome (AIDS).
Adjudicators throughout the country must be familiar with this TI because of case transfers and because Rosetti class members who now reside outside of Delaware, New Jersey, Pennsylvania and the Virgin Islands must have their cases processed in accordance with the requirements of the joint stipulation and order.
II. Background
On May 28, 1991, plaintiffs filed a class complaint challenging certain aspects of the Secretary's evaluation of claims of disability under titles II and/or XVI of the Social Security Act due to HIV or AIDS.
On December 17, 1991, the Secretary published Social Security Ruling (SSR) 91-8p in order to revise and update the guidelines for the evaluation of claims for disability based on allegations of HIV or AIDS.
By orders dated March 31, 1992, and September 2, 1992, the United States District Court for the Eastern District of Pennsylvania dismissed the action.
On July 2, 1993, the Secretary published a final rule in the Federal Register establishing new listing sections called “Immune System” (Listings 14.00 and 114.00). The new listings included criteria for HIV (Listings 14.08 and 114.08). These criteria replaced SSR 91-8p, which was rescinded as of the date of the publication of the new regulations.
On December 15, 1993, the United States Court of Appeals for the Third Circuit vacated the district court's dismissal orders and remanded the case to the district court for consideration of plaintiffs' motion for class certification. On March 9, 1994, the Court of Appeals denied the Secretary's petition for rehearing with suggestion for rehearing en banc.
In order to avoid further litigation, the parties agreed to settle their dispute. On July 7, 1994, the district court approved the parties' joint Stipulation and Order (Attachment 1). The clerk of the court entered the Stipulation and Order on July 8, 1994.
III. Guiding Principles
Under Rosetti, the Secretary will readjudicate the title II and title XVI claims of those persons who: 1) respond to notice informing them of the opportunity for review or who do not receive notice but who otherwise self-identify and request review (e.g., “walk-ins”); and 2) are determined, after screening, to be class members entitled to relief (see Parts IV. and V.). The class action section in the Office of Disability and International Operations (ODIO) will screen title II and concurrent title II and title XVI claims for eligibility for class relief, and the Northeastern Program Service Center (NEPSC) or the Mid-Atlantic Program Service Center (MATPSC) will screen title XVI only claims, unless there is a current claim, i.e., a potential class member claim or a subsequent claim, pending in the DDS or OHA, or stored at OHA. Regardless of the state of the claimant's current residence, the Disability Determination Services (DDSs) in Delaware, New Jersey, Pennsylvania and the Virgin Islands will, in most cases, perform the agreed-upon readjudications, irrespective of the administrative level at which the claim was last decided.
EXCEPTION:
The DDS servicing the claimant's current address will perform the readjudication in terminal illness (TERI) cases and if a face-to-face review is necessary, i.e., cessation case.
OHA will screen cases and perform readjudications under limited circumstances (see Part V.B.).
Cases readjudicated by the DDS will be processed at the reconsideration level regardless of the final level at which the claim was previously decided. The type of readjudication will be a "redetermination" (see Part VI.). Class members who receive adverse readjudication determinations will have full appeal rights (i.e., Administrative Law Judge (ALJ) hearing, Appeals Council and judicial review).
Adjudicators will use the disability evaluation standards reflected in Listings 14.08 and 114.08 in evaluating the disability claims of Rosetti class members.
IV. Definition of Class
Except as noted below, for purposes of implementing the terms of the stipulation and order, the Rosetti class potentially entitled to relief consists of all individuals who:
filed for disability benefits under titles II and/or XVI of the Social Security Act based in whole or in part on allegations of HIV infection or AIDS; and
were issued a less than fully favorable (i.e., later onset, closed period, denied or terminated) final administrative determination or decision, based on medical reasons, between March 22, 1991, and July 1, 1993, inclusive, while residing in Delaware, New Jersey, Pennsylvania or the Virgin Islands.
EXCEPTIONS:
A person is not a class member eligible for class relief if
(1) the last administrative denial or termination received on the potential Rosetti claim was issued before March 22, 1991, or on or after July 2, 1993; or
(2) the individual received a final judicial decision on the potential Rosetti claim; or
(3) the individual had a subsequent claim denied on or after July 2, 1993, and the subsequent claim covered the entire period of disability at issue in the potential Rosetti claim.
V. Determination of Class Membership and Eligibility for Relief and Preadjudication Actions
A. Pre-Screening Actions - General
Notification
Within 45 days after SSA issues implementation instructions, SSA shall, to the extent practicable, send an individual notice to the last known address of every individual who has been identified by computer run as a potential class member whose primary or secondary diagnosis code identified on SSA's data processing system was 0420 (AIDS), 0430 (HIV symptomatic) or 0440 (HIV asymptomatic). Individuals will have 60 days from the date of receipt of the notice to request that SSA readjudicate their claims under the terms of the Rosetti stipulation and order. SSA will presume an individual's receipt of the notice five days after mailing, unless the individual establishes that receipt actually occurred later.
ODIO will contact the servicing Social Security field office (FO) (i.e., district or branch office) for development of possible evidence of good cause for the untimely response. Good cause determinations will be based on the standards in 20 CFR §§ 404.911 and 416.1411. If good cause is established, the field office will forward the good cause determination and any folders currently in the FO, to ODIO (title II claims and concurrent claims) or the NEPSC or MATPSC (title XVI claims) to retrieve the folders and for screening.
Alert and Folder Retrieval Process
All response forms should be returned to ODIO so that the information can be entered into the Civil Actions Tracking System (CATS). CATS will generate alerts to ODIO. See Attachment 2 for a sample Rosetti alert.
ODIO will associate the computer-generated alerts with available title II and concurrent title II and title XVI potential class member claim file(s) and conduct the screening. For title XVI only claims, the NEPSC or MATPSC will retrieve available folders, except those found in the Wilkes-Barre Data Operations Center (Wilkes-Barre), the DDS or OHA, and conduct the screening. Wilkes-Barre, NEPSC or MATPSC will retrieve available title XVI claim files and then forward those files to either the NEPSC or MATPSC for screening (see Part III.).
Alerts Sent to OHA
If ODIO, the NEPSC, MATPSC or Wilkes-Barre determines that a current claim, i.e., either a potential class member claim or a subsequent claim, is pending appeal or stored at OHA, it will forward the alert to OHA, along with any prior claim file(s) not in OHA's possession, for screening, consolidation consideration and readjudication (if consolidated).
ODIO, the NEPSC, MATPSC or Wilkes Barre will forward all alerts potentially within OHA jurisdiction and related prior claim files, if any, to the Office of Appellate Operations (OAO), at the following address (case locator code 5007):
Office of Hearings and Appeals
Office of Appellate Operations
One Skyline Tower, Suite 701
5107 Leesburg Pike
Falls Church, VA 22041-3200
ATTN: OAO Class Action CoordinatorNOTE:
The OAO Class Action Coordinator is responsible for controlling and reconciling the disposition of class alerts shipped to OHA Headquarters for association with pending or stored claims. The Coordinator will maintain a record of all alerts received and the location, if any, to which they are transferred. This information will be necessary to do the final class membership reconciliation.
Folder Reconstruction
In general, ODIO, the NEPSC or MATPSC will coordinate any necessary reconstruction of prior claim files. OHA requests for reconstruction of potential Rosetti cases should be rare. Prior to requesting reconstruction, OHA will determine whether available systems data or other information provides satisfactory proof that the claim would not confer class membership. OHA (the HO or the OAO branch) will direct any necessary reconstruction requests to the servicing FO. The request will be made by memorandum and will include the alert and any accompanying claim file(s) (if the claim file(s) is not needed for adjudication purposes) as attachments. The request will also include documentation of the attempts to locate the file. The memorandum will request the FO to send the reconstructed file to OHA after it completes its reconstruction action. HOs will route any reconstruction requests directly to the servicing FO. The OAO branch will route reconstruction requests through the OAO Class Action Coordinator. For CATS purposes, HO personnel and the OAO Class Action Coordinator will forward a copy of the reconstruction request memorandum to Litigation Staff at the following address:
Office of the Deputy Commissioner for Programs,
Policy, Evaluation and Communications
Litigation Staff
3-K-26 Operations Building
6401 Security Boulevard
Baltimore, MD 21235
ATTN: RosettiCoordinatorHO personnel and the OAO branch will identify in the reconstruction request the OHA location of any existing claim file(s) being retained for adjudication purposes, and the date(s) of the claim(s) involved.
The HO or OAO will not delay action on a pending claim when a prior claim is being reconstructed for screening purposes, unless the prior claim is needed for the adjudication of the pending claim. If OHA completes action on the pending claim prior to receipt of the reconstructed folder, the HO or OAO, as appropriate, will forward the class action material, including the alert, unneeded claim files, if any, and the reconstruction request to the OAO Class Action Coordinator, along with a copy of the action on the pending claim. For additional information on reconstruction procedures, see the Class Action Implementation instructions in HALLEX I-1-7-5C.
Class Membership Denials (Non-Eligibility for Relief)
ODIO, the NEPSC or MATPSC, or OHA, as appropriate, will hold for 90 days all claim files of individuals to whom SSA sends notice of non-class membership and ineligibility for relief, pending review by claimants or class counsel. If an individual wishes to dispute SSA's class membership/eligibility for relief determination, he or she must give timely written notice of the disagreement to the Office of the General Counsel (OGC) (i.e., within 60 days of receipt of notice that the individual is not a class member eligible for relief). Upon request, class counsel, subject to the Privacy Act Protective Order, will be given reasonable and timely access to potential class members' claim files for the purpose of resolving class membership disputes. Upon request by class counsel to review claim files, the Office of the Deputy Commissioner for Programs' Litigation Staff will coordinate with ODIO, the NEPSC or MATPSC, or OHA to forward the claim files to:
MATPSC
300 Spring Garden Street
Philadelphia, PA 19123
B. OHA Screening Actions
Determining Jurisdiction for Screening
Current Claim in OHA
As provided in Part V.A.3., if there is a current claim pending or stored at OHA Headquarters, the OAO Class Action Coordinator will receive the alert and related Rosetti claim file(s). The OAO Class Action Coordinator will determine OHA jurisdiction for screening and forward as follows.
If the current claim is in an HO, the Coordinator will forward the alert and any prior claim file(s) to the HO for screening using Attachment 3. (Part V.B.2.a. provides instructions to HOs regarding the action to be taken if they receive an alert package but no longer have a current claim pending.)
If the current claim is before the Appeals Council, or is located in an OAO branch mini-docket or in an OAO Docket and Files Branch (DFB), the Coordinator will forward the alert and any prior claim file(s) to the appropriate OAO branch for screening using Attachment 3. (Part V.B.2.a. provides instructions to the OAO branches regarding the action to be taken if they receive an alert package but no longer have a current claim pending.)
If the Coordinator (or designee) is unable to locate the current claim file within OHA, the Coordinator (or designee) will broaden the claim file search and arrange for alert transfer or folder reconstruction, as necessary.
Current Claim Pending in Court
If the OAO Class Action Coordinator receives an alert for a claimant who has a civil action pending, either on the alerted case or on a subsequent or prior claim, the Coordinator will forward the alert and any accompanying claim file(s) to the appropriate OAO Court Case Preparation and Review Branch (CCPRB) for screening using Attachment 3. See Part V.B.2.b. for special screening instructions when a civil action is involved.
Screening
General Instructions
The screening component will associate the alert and any prior claim file(s) with the claim file(s) in its possession and complete a screening sheet (see Attachment 4) as follows:
NOTE:
If the claim pending at OHA is the potential class member claim, then the individual is not a class member entitled to relief under Rosetti (see Part IV.). Complete the screening sheet and follow the instructions in Part V.B.3.a. for processing the claims of individuals who are not class members eligible for relief.
Consider all applications denied/ceased during the Rosetti timeframe;
NOTE:
Although not the “final decision of the Commissioner,” an Appeals Council denial of a request for review is the last action of the Commissioner, and the date of such denial controls for class membership screening purposes.
Follow all instructions on the screening sheet;
Sign and date the original screening sheet, place it in the claim file (on the top right side of the file); and
If the screening component is an OHA headquarters component, forward a copy of the screening sheet to the OAO Class Action Coordinator at the address in Part V.A.3. (The Coordinator will enter information from the screening sheet into a database and will forward a copy of the screening sheet to the Division of Litigation Analysis and Implementation (DLAI).) If the screening component is an HO, forward a copy of the screening sheet directly to DLAI at the following address:
Office of Hearings and Appeals
Division of Litigation Analysis and
Implementation
One Skyline Tower, Suite 702
5107 Leesburg Pike
Falls Church, VA 22041-3255HO personnel may also forward material by telefax to DLAI at (703) 305-0655. (DLAI will retain a copy of each screening sheet and forward a copy to Litigation Staff.)
If the HO receives an alert only or an alert associated with a prior claim file(s) for screening, and no longer has the current claim file, it will return or forward the alert and any prior claim file(s) to the OAO Class Action Coordinator (see address in Part V.A.3.), and advise the Coordinator of the action taken on the current claim and its destination. The Coordinator will determine the claim file location and, if it is located in OHA headquarters, will forward the alert and any accompanying prior claim file(s) to the responsible OAO branch for screening, using Attachment 3. If the file(s) is no longer in OHA, the Coordinator will use Attachment 5 to send the alert and any accompanying prior claim file(s) to the non-OHA location.
If an OAO branch receives an alert only, or an alert associated with a prior claim file(s) and no longer has the current claim file (and it is not located in mini-dockets or an OAO DFB), it will determine the location of the current claim file. If the current claim file is located within OHA, the OAO branch will use Attachment 3 to forward the material to the OHA location. If the file(s) is no longer in OHA, the OAO branch will use Attachment 5 to forward the material to the non-OHA location. The OAO branch will also advise the OAO Class Action Coordinator of its actions.
NOTE:
Final determinations or decisions made on or after July 2, 1993, on a subsequent claim filed by a potential Rosetti class member may have adjudicated the entire timeframe covered by the Rosetti claim. Instead of applying the doctrine of administrative res judicata to the Rosetti claim, a non-class membership/ineligibility for relief determination must be made.
Special OAO Screening Instructions if a Civil Action Is Involved
As noted in Part V.B.1.b., the CCPRB will screen for Rosetti class membership/eligibility for relief when a civil action is involved. The CCPRB's class membership/eligibility for relief determination will dictate the appropriate post-screening action.
If the claim pending in court is the potential class member claim, the CCPRB will immediately notify OGC so that OGC can notify the claimant of the option to have the case remanded for readjudication under Rosetti.
If the claim pending in court is a subsequent claim and was adjudicated in accordance with the disability evaluation standards reflected in Listings 14.08 and 114.08 and resolved all Rosetti issues, the claimant is not a Rosetti class member entitled to relief. The CCPRB will follow the instructions in Part V.B.3.a. for processing such claims.
If the claim pending in court was adjudicated in accordance with Listings 14.08 and 114.08, but did not resolve all Rosetti issues, e.g., there is a prior (inactive) claim and the current claim did not adjudicate the entire period covered by the Rosetti claim, the CCPRB will forward the Rosetti claim to the appropriate DDS for separate review. The CCPRB will modify the case flag in Attachment 13 to indicate that the pending court case does not resolve all Rosetti issues and that the Rosetti class member claim is being forwarded for separate processing. The CCPRB will notify the Class Action Coordinator of its action.
If the final administrative decision on the claim pending in court was not adjudicated in accordance with the disability evaluation standards reflected in Listings 14.08 and 114.08, or is legally insufficient for other reasons, the CCPRB will initiate voluntary remand proceedings and consolidate the claims.
Post-Screening Actions
Screened Out Cases
If the screening component determines that the individual is not a class member eligible for relief, the component will:
notify the individual and representative, if any, (with a copy to class counsel) of that determination using Attachment 6 (modified as necessary to fit the circumstances and posture of the case when there is a current claim);
NOTE:
Include the date and claim number at the top of Attachment 6 in the spaces indicated.
retain a copy of the notice in the claim file;
send a copy of the notice to Rosetti class counsel:
Community Legal Services, Inc.
1424 Chestnut Street
Philadelphia, PA 19102An individual who wishes to dispute a determination of non-class membership and ineligibility for relief may do so directly, through their representative of record, or through Rosetti class counsel.
retain the claim file(s) for 90 days pending a possible class membership dispute;
if class counsel makes a timely request to review a screened out claim file, send the file to:
MATPSC
300 Spring Garden Street
Philadelphia, PA 19123using the pre-addressed route slip in Attachment 7;
NOTE:
Photocopy any material contained in the prior file that is relevant to the current claim and place it in the current claim file before shipping the prior file.
if SSA, through OGC, resolves the dispute in the claimant's favor: 1) the original screening component or Litigation Staff will prepare a revised screening sheet and send notice of the revised class membership/eligibility for relief determination (Attachment 8) to the claimant, or representative, if any, and class counsel; 2) OHA jurisdiction cases will proceed in accordance with Part VI.; 3) the rescreening component will notify DLAI of the revised determination by forwarding a copy of the revised screening sheet to DLAI; and 4) DLAI will coordinate with the OAO Class Action Coordinator as necessary.
if the dispute cannot be resolved, OGC will send the claimant, and class counsel, a notice indicating that the claimant will have 60 days to request district court review of the class membership/eligibility for relief determination.
if after 90 days no review is requested, return the file(s) to the appropriate storage location if not otherwise needed.
Cases Determined to Be Class Members Entitled to Relief
If the screening component determines that the individual is a class member entitled to relief, it will proceed with processing and adjudication in accordance with the instructions in Part VI.
VI. Processing and Adjudication
A. Cases Reviewed by the DDS
The Delaware, New Jersey, Pennsylvania and Virgin Islands DDSs, or any other DDSs servicing residents of Delaware, New Jersey, Pennsylvania or the Virgin Islands, will usually conduct the first Rosetti review. An exception may apply when the Rosetti claim is a TERI case. An exception will also apply for cases consolidated at the OHA level (see Part VI.E.). The DDS determination will be a reconsideration determination, regardless of the administrative level at which the class member claim(s) was previously decided, with full appeal rights (i.e., ALJ hearing, Appeals Council and judicial review). (See Part VI.B.)
B. OHA Adjudication of Class Member Claims
The following instructions apply to both consolidation cases in which the ALJ or Appeals Council conducts the Rosetti readjudication and to DDS readjudication cases in which the claimant requests a hearing or Appeals Council review. Except as noted herein, HOs and OHA Headquarters will process Rosetti class member cases according to all other current practices and procedures including coding, developing evidence, routing, etc. However, pursuant to the parties' stipulation and order, SSA must exert its best efforts to resolve all Rosetti class members' claims as expeditiously as possible.
NOTE:
Type of Review and Period to Be Considered
Pursuant to the Rosetti Stipulation and Order, regardless of whether the claim under review is an initial claim or a cessation case, the type of review to be conducted is a redetermination. The redetermination shall be a de novo evaluation of the class member's eligibility for benefits based on all evidence in his or her file including newly obtained evidence relevant to the period that was at issue in the administrative determination or decision(s) that forms the basis for Rosetti class membership.
If the redetermination results in a favorable decision, the adjudicator will determine whether the individual's disability has been continuous through the date of the redetermination or to the date of the most recent allowance.
If the evidence establishes that disability began only at some point after the administrative determination(s)/decision(s) that forms the basis for Rosetti class membership, the class member must file a new application to establish eligibility.
Disability Evaluation Standards
Adjudicators must use the disability evaluation standards reflected in Listings 14.08 and 114.08 for evaluating disability based on allegations of HIV or AIDS in class member claims.
Class Member Is Deceased
If a class member is deceased, the usual survivor and substitute party provisions and existing procedures for determining distribution of any potential underpayment apply.
C. Claim at OHA But No Current Action Pending
If a claim file (either a class member or a subsequent claim) is located in OHA Headquarters but there is no claim actively pending administrative review, i.e., Headquarters is holding the file awaiting potential receipt of a request for review or notification that a civil action has been filed, OAO will associate the alert with the file and screen for class membership. (The OAO Class Action Coordinator will coordinate the necessary actions as explained in Part V.) (See Part V.B.3., for non-class member processing instructions.)
If the 120-day retention period for holding a claim file after an ALJ decision or Appeals Council action has expired, OAO will attach a Rosetti class member flag (see Attachment 9) to the outside of the file and forward the claim file(s) to the appropriate DDS for review of the Rosetti class member claim.
If less than 120 days have elapsed, OAO will attach a Rosetti class member flag (see Attachment 10) to the outside of the file to ensure the case is routed to the appropriate DDS, after expiration of the retention period. Pending expiration of the retention period, OAO will also:
-- return unappealed ALJ decisions and dismissals to DFB; and
-- return unappealed Appeals Council denials to the appropriate OAO minidocket.
The respective OAO component will monitor the retention period and, if the claimant does not seek further administrative or judicial review, route the file(s) to the appropriate DDS in a timely manner.
D. Processing and Adjudicating Class Member Claims in Conjunction with Current Claims (Consolidation Procedures)
NOTE:
Even claims subject to consolidation should be consolidated only to the extent practicable. Thus, if consolidation would unreasonably delay a decision on the current claim, consolidation is not required.
General
If a class member has a current claim pending at any administrative level and consolidation is warranted according to the guidelines below, the appropriate component will consolidate all Rosetti class member claims with the current claim at the level at which the current claim is pending.
Current Claim Pending in the Hearing Office
Hearing Has Been Scheduled or Held, and All Remand Cases
Except as noted below, if a Rosetti class member has a request for hearing pending on a current claim, and the ALJ has either scheduled or held a hearing, and in all remand cases, the ALJ will consolidate the Rosetti case with the appeal on the current claim.
EXCEPTIONS:
The ALJ will not consolidate the claims if
the current claim and the Rosetti claim do not have any issues in common, or
a court remand contains a court-ordered time limit, and it will not be possible to meet the time limit if the claims are consolidated.
If the claims are consolidated, follow Part VI.D.2.c. If the claims are not consolidated, follow Part VI.D.2.d.
Hearing Not Scheduled
Except as noted below, if a Rosetti class member has an initial request for hearing pending on a current claim and the HO has not yet scheduled a hearing, the ALJ will not consolidate the Rosetti claim and the current claim. Instead, the ALJ will dismiss the request for hearing on the current claim and forward both the Rosetti claim and the current claim to the DDS for further action (see Part VI.D.2.d.).
EXCEPTION:
If the hearing has not been scheduled because the claimant waived the right to an in-person hearing, and the ALJ is prepared to issue a fully favorable decision on the current claim, and this decision would also be fully favorable with respect to all the issues raised by the application that makes the claimant a Rosetti class member, the ALJ will consolidate the claims.
If the claims are consolidated, follow Part VI.D.2.c. If the claims are not consolidated, follow Part VI.D.2.d.
Actions If Claims Consolidated
When consolidating a Rosetti claim with any subsequent claim, the issue is whether the claimant was disabled at any time from the earliest alleged onset date through the present or to the date of the most recent allowance (or through the date the claimant last met the prescribed period requirements, if earlier).
If the ALJ decides to consolidate the current claim with the Rosetti claim(s), the HO will:
give proper notice of any new issue(s) as required by 20 CFR §§ 404.946(b) and 416.1446(b), if the Rosetti claim raises any additional issue(s) not raised by the current claim;
offer the claimant a supplemental hearing if the ALJ has already held a hearing and the Rosetti claim raises an additional issue(s), unless the ALJ is prepared to issue a fully favorable decision with respect to the Rosetti claim;
issue one decision that addresses both the issues raised by the current request for hearing and those raised by the Rosetti claim (the ALJ's decision will clearly indicate that the ALJ considered the Rosetti claim pursuant to the Rosetti stipulation and order).
Action If Claims Not Consolidated
If common issues exist but the ALJ decides not to consolidate the current claim with the Rosetti claim because the hearing has not yet been scheduled, the ALJ will:
dismiss the request for hearing on the current claim without prejudice, using the language in Attachment 11 and the covering notice in Attachment 12;
send both the Rosetti claim and the current claim to the appropriate DDS for consolidation and further action.
If the ALJ decides not to consolidate the current claim with the Rosetti claim because: 1) the claims do not have any issues in common or 2) there is a court-ordered time limit, the ALJ will:
flag the Rosetti claim for DDS review using Attachment 13; immediately route it to the appropriate DDS for adjudication (photocopies of any relevant material from either file should be made and placed in the other file before shipping) and retain a copy of Attachment 13 in the current claim file; and
take the necessary action to complete the record and issue a decision on the current claim.
in those instances where cases return to OHA after new denials at the DDS, the ALJ will schedule the consolidated claims for hearing using the original request for hearing date to determine scheduling priority.
Current Claim Pending at the Appeals Council
The action the Appeals Council takes on the current claim determines the disposition of the Rosetti claim. Therefore, OAO must keep the claim files together until the Appeals Council completes its action on the current claim. The following sections identify possible Appeals Council actions on the current claim and the corresponding action on the Rosetti claim.
Appeals Council Intends to Dismiss, Deny Review or Issue a Denial Decision on the Current Claim -- No Rosetti Issue(s) Will Remain Unresolved.
This will usually arise when the current claim duplicates the Rosetti review claim, i.e., the current claim raises the issue of disability and covers the entire period adjudicated in the Rosetti claim, and the current claim has been adjudicated in accordance with the provisions in Listings 14.08 and 114.08. In this instance, the Appeals Council will consolidate the claims and proceed with its intended action. The Appeals Council's order, decision or notice of action will clearly indicate that the ALJ's or Appeals Council's action resolved or resolves both the current claim and the Rosetti claim.
Appeals Council Intends to Dismiss, Deny Review or Issue a Denial Decision on the Current Claim -- Rosetti Issue(s) Will Remain Unresolved.
This will usually arise when the current claim does not duplicate the Rosetti claim, e.g., the current claim raises the issue of disability but does not cover the entire period adjudicated in the Rosetti claim. For example, the Rosetti claim raises the issue of disability for a period prior to the period adjudicated in the current claim. In this instance, the Appeals Council will proceed with its intended action on the current claim.
OAO staff will attach a Rosetti case flag (Attachment 13; appropriately modified) to the Rosetti claim, immediately forward the Rosetti claim to the appropriate DDS for adjudication, and retain a copy of Attachment 13 in the current claim file. OAO will modify Attachment 13 to indicate that the Appeals Council's action on the current claim does not resolve all Rosetti issues and that the Rosetti class member claim is being forwarded for separate processing. OAO staff will include copies of the ALJ's or Appeals Council's decision or order or notice of denial of request for review on the current claim and the exhibit list used for the ALJ's or Appeals Council's decision.
Appeals Council Intends to Issue a Favorable Decision on the Current Claim -- No Rosetti Issue(s) Will Remain Unresolved.
If the Appeals Council intends to issue a fully favorable decision on a current claim, and this decision would be fully favorable with respect to all issues raised by the application that makes the claimant a Rosetti class member, the Appeals Council should proceed with its intended action. In this instance, the Appeals Council will consolidate the claims, reopen the final determination or decision on the Rosetti claim and issue a decision that adjudicates both applications. The Appeals Council's decision will clearly indicate that the Appeals Council considered the Rosetti claim pursuant to the Rosetti stipulation and order.
Appeals Council Intends to Issue a Favorable Decision on the Current Claim -- Rosetti Issue(s) Will Remain Unresolved.
If the Appeals Council intends to issue a favorable decision on a current claim and this decision would not be fully favorable with respect to all issues raised by the Rosetti claim, the Appeals Council will proceed with its intended action. In this situation, the Appeals Council will request the effectuating component to forward the claim files to the appropriate DDS after the Appeals Council's decision is effectuated. OAO staff will include the following language on the transmittal sheet used to forward the case for effectuation: "Rosetti court case review needed -- following effectuation forward the attached combined folders to the appropriate DDS."
Appeals Council Intends to Remand the Current Claim to an Administrative Law Judge.
If the Appeals Council intends to remand the current claim to an Administrative Law Judge, it will proceed with its intended action unless one of the exceptions below applies. In its remand order, the Appeals Council will direct the ALJ to consolidate the Rosetti claim with the action on the current claim pursuant to the instructions in Part VI.D.2.a.
EXCEPTIONS:
The Appeals Council will not direct the ALJ to consolidate the claim if
the current claim and the Rosetti claim do not have any issues in common, or
a court remand contains a court-ordered time limit and it will not be possible to meet the time limit if the claims are consolidated.
If the claims do not share a common issue or a court-ordered time limit makes consolidation impractical, OAO will forward the Rosetti class member claim to the appropriate DDS, for separate review. The case flag in Attachment 13 should be modified to indicate that the Appeals Council, rather than an Administrative Law Judge, is forwarding the Rosetti class member claim for separate processing.
VII. Case Coding
HO personnel will code prior claims into the Hearing Office Tracking System (HOTS) and the OHA Case Control System (OHA CCS) as “reopenings.” If the prior claim is consolidated with a current claim already pending at the hearing level (see Part VI.D.), HO personnel will not code the prior claim as a separate hearing request. Instead, HO personnel will change the hearing type on the current claim to a “reopening.” If the conditions described in Part VI.D.2.b. apply, the ALJ should dismiss the request for hearing on the current claim and HO personnel should enter “OTDI” in the “DSP” field.
To identify class member cases in HOTS, HO personnel will code “RR” in the “Class Action” field. No special identification codes will be used in the OHA CCS.
VIII. Reconciliation of Implementation
At an appropriate time, the Office of the Deputy Commissioner for Programs, Policy, Evaluation and Communications' Litigation Staff will request SSA components to reconcile their screening activity and disposition of class member claims with information available on CATS. Within OHA, the OAO Class Action Coordinator is responsible for maintaining a personal computer-based record of OHA implementation activity (i.e., a record of alerts processed by OHA, and a record of cases screened and consolidated by OHA), as reported by HOs and OAO to the Coordinator. See HALLEX I-1-7-12 with respect to reporting requirements.
IX. Inquiries
HO personnel should direct any questions to their Regional Office. Regional Office personnel should contact the Division of Field Practices and Procedures in the Office of the Chief Administrative Law Judge at (703) 305-0022. OHA headquarters personnel should contact the Division of Litigation Analysis and Implementation at 305-0708.