Table of Contents
I |
Purpose |
II |
Background |
III |
Guiding Principles |
IV |
Definition of Class Entitled to Relief |
V |
Determination of Class Membership and Preadjudication Actions |
VI |
Processing and Adjudication |
VII |
Case Coding |
VIII |
Reconciliation of Implementation |
IX |
Inquiries |
Attachment 1 |
June 26, 1995 Order Approving Settlement, Issued by the United States District Court for the Southern District of Ohio, with attached Settlement Agreement and Privacy Act Protective Order |
Attachment 2 |
- Sample Day Alert |
Attachment 3 |
- Screening Flag - Within OHA |
Attachment 4 |
- Day SCREENING SHEET |
Attachment 5 |
- Screening Flag -- Outside OHA |
Attachment 6 |
- Readjudication Flay for OHA Retention Cases |
Attachment 7 |
Non-Class Membership Notice |
Attachment 8 |
- Route Slip for Non-class Membership |
Attachment 9 |
|
Attachment 10 |
- Readjudication Flag for No Common Issue Cases |
Attachment 11 |
Text for Appeals Council Remand to BDD - Class Member Claim Associated with Current Claim Pending Appeals Council Review |
ISSUED: June 27, 1996
I. Purpose
This Temporary Instruction (TI) sets forth procedures for implementing the
parties' negotiated Settlement Agreement and Privacy Act Protective Order
that the United States District Court for the Southern District of Ohio
approved and filed on June 26, 1995, in the Day v.
Chater class action (see Attachment 1).
Adjudicators throughout the country must be familiar with this TI because
of case transfers and because Day class members
who now reside outside of Ohio must have their cases processed in
accordance with the requirements of the Settlement Agreement.
II. Background
Following extensive discovery and trial, the district court issued an
order on November 22, 1991, with respect to multiple disability issues.
This order was partially favorable to the Secretary and State defendants.
Thereafter, on July 31, 1992, pursuant to the parties' requests for
clarification, the district court issued another order that the parties
cross-appealed to the United States Court of Appeals for the Sixth
Circuit.
In an opinion issued on May 12, 1994, that was favorable to the Government
on many issues, the court of appeals nonetheless determined that the
title II reconsideration notice in use between October 9, 1984, and
February 1990, was defective (Day v. Shalala, 23
F.2d 1052 (6th Cir. 1994)). Accordingly, the court held that the class
entitled to relief consists of those individuals who: 1) detrimentally
relied on the inadequate notice and filed a new application thereafter
rather than continuing the appeal process; and 2) were, on or after
October 5, 1987 (60 days prior to the filing of the amended class
complaint), either presented by the Secretary with a claim of
res judicata, and did not appeal the
res judicata determination to a district court,
or received less in retroactive benefits than he or she would have
received had he or she successfully appealed initially. The court of
appeals remanded to the district court to determine the relief to be
provided. On June 26, 1995, following a fairness hearing on April 27,
1995, the district court issued an order giving final approval to the
parties' Settlement Agreement and Privacy Act Protective Order.
III. Guiding Principles
Under Day, the Secretary will reopen the claim(s)
of those individuals who: 1) respond to personal notice informing them of
the opportunity for review; or 2) request review on their own
initiative, absent personal notice, within 180 days of the date of the
mass mailing of personal notices; and 3) are determined to be
class members entitled to relief. In most cases, the Office of Disability
and International Operations (ODIO) will screen the claims of those
individuals who respond to notice or request review, and will forward
class member claims to the Ohio Bureau of Disability Determination (BDD)
for readjudication. However, the BDD will perform the screening when a
claim is reconstructed or when a claim is pending in the BDD.
Additionally, if a subsequent claim is pending or stored in OHA, OHA will
perform the screening and, under the circumstances described in Part VI.,
will reopen and readjudicate the class member claim.
The class member claim(s) will be adjudicated under current policies and
procedures and the claimant will receive normal appeal rights (i.e.,
Administrative Law Judge (ALJ) hearing, Appeals Council and judicial
review).
IV. Definition of Class Entitled to Relief
Individuals entitled to relief under Day are
those who:
filed a title II disability claim; and
received a denial notice at the reconsideration level from the Ohio BDD on
or after October 5, 1987, and before February 1, 1990; and
were advised in the reconsideration notice that “If you do not
request a hearing of your case within the prescribed time period, you
still have the right to file another application at any time;”
and
filed a new disability claim within two years of the date of receipt of
the reconsideration notice, rather than pursuing an appeal on the first
claim because of such notice; and
on the subsequent claim, received a res judicata
denial, or received less in retroactive benefits than the individual would
have received had the individual successfully appealed initially (i.e.,
administrative finality prevented the reopening of the defective notice
claim when effectuating the subsequent favorable claim); and
did not receive a withdrawal of the res judicata
claim from the Agency for the purpose of considering the individual's
entitlement to title II benefits; and
did not pursue court review of the res judicata
action.
An individual is not a class member entitled to relief if he or she
received a substantive adjudication on any later claim covering the entire
time period at issue in the defective notice claim.
V. Determination of Class Membership and Preadjudication Actions
A. Pre-Screening
Actions - General
Notification of Potential Class Members
SSA sent notices to all potential class members that it was able to
identify by computer run. 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 Day Settlement Agreement by
returning a reply form enclosed with the notice. SSA will presume the
individual's receipt of notice to be five days after mailing, unless the
individual establishes that receipt actually occurred later. An individual
who returns the reply form untimely will not be considered for relief
unless the individual demonstrates “good cause,” as defined
in 20 CFR §
404.911. SSA's determination with respect to “good cause”
is binding and not subject to further review.
An individual who does not receive notice but who wishes to request relief
must do so within 180 days of the date of the mass mailing (or meet the
above “good cause” provisions). The individual may request
relief by contacting an SSA field office (FO) in person, in writing or by
telephone. The FO will complete a Request for Review Change of Address
Worksheet. After completion, the FO will forward the worksheet to
ODIO.
In an effort to notify all interested parties of the available relief, SSA
provided class counsel with a supply of posters describing the relief and
will also display such posters in all SSA FOs and OHA hearing offices
(HOs) in the State of Ohio until the end of the time period for response
to notification. Additionally, SSA forwarded such posters to all county
departments of human services in the State of Ohio with a written request
for display. Further, SSA provided a media package to newspapers and
television and radio stations in the State of Ohio containing information
for public service announcements, and issued a press release to newspapers
within the State of Ohio.
Alert and Folder Retrieval Process
ODIO will receive all response forms and the information will be entered
into the Civil Action Tracking System (CATS). CATS will generate alerts to
ODIO. (See Attachment 2 for a sample Day alert.)
ODIO will associate the alerts with any potential class member claims
under its jurisdiction, and will request other alerted claims from the
storage location.
Alerts Sent to OHA
If ODIO determines, through review of the OHA Case Control System (CCS),
that a current claim is pending or stored at OHA, ODIO will forward the
alert and prior claim file(s) to OHA for screening, consolidation
consideration (if appropriate) and readjudication (if consolidated). If
ODIO is unable to locate the prior claim file(s) and a current claim is
pending or stored at OHA, ODIO will telephone the HO or OHA Headquarters,
as appropriate, to determine if the prior claim file(s) is associated with
the current claim. (In most cases at the OHA level, the prior claim
file(s) will be associated with the current claim.)
If the claim is located in an HO, ODIO will forward the alert and claim
file(s), if any, directly to the HO for processing. If the claim is
located in OHA Headquarters, ODIO will forward the alert and claim
file(s), 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
Suite 701
One Skyline Tower
5107 Leesburg Pike
Falls Church,
VA 22041-3200
Attn: OAO Class Action Coordinator
The OAO Class Action 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 (see Part VIII. below).
Folder Reconstruction
After a thorough search, not to exceed 120 days, for an inactive folder,
ODIO, the processing center or the Wilkes-Barre Data Operations Center
will initiate reconstruction through the servicing FO. Because these
components obtain all potential class member claims within the class
member timeframes, or arrange for their reconstruction, prior to
forwarding cases for screening, OHA requests for reconstruction of
potential class member cases should be rare. Prior to requesting
reconstruction, OHA will determine whether available systems data or other
information provides satisfactory proof that the particular claim would
not confer class membership.
OHA HOs will direct any necessary reconstruction requests to the servicing
FO, along with a copy of the alert, documentation of attempts to locate
the file and a covering memorandum requesting that the reconstructed
folder be forwarded to the HO. Additionally, for CATS purposes, HO
personnel will send a copy of the covering memorandum to Litigation Staff
at SSA Headquarters at the following address:
Office of the Deputy Commissioner for Programs,
Policy, Evaluation and Communications
Litigation
Staff
3-K-26 Operations
6401 Security Boulevard
Baltimore, MD
21235
Attn: Day Coordinator
OAO personnel will also direct any necessary reconstruction requests to
the servicing FO, along with a copy of the alert, documentation of
attempts to locate the file and a covering memorandum requesting that the
reconstructed folder be forwarded to OAO. OAO personnel will furnish a
copy of the covering memorandum to the OAO Class Action Coordinator.
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, OHA
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.
Class Membership Denials
If an individual wishes to request SSA's further consideration of a class
membership denial determination, he or she must do so through
class counsel. Class counsel has 60 days from receipt of the notice of
non-class membership to advise the Office of the General Counsel (OGC) of
disagreement. In connection therewith, if class counsel requests to
review the claim file or other material upon which the determination of
non-class membership was based, Litigation Staff will ask the SSA
component housing the folder or material to make it available at the
Cincinnati, Ohio FO for a sixty-day period. If OHA is unable to release a
non-class member claim file because it is needed for adjudication of the
current claim, OHA will provide a copy of the claim file or other
material.
Following class counsel's review, or at the close of the sixty-day period,
whichever is earlier, the FO will forward the claim file or other
material as directed by Litigation Staff. If the parties are unable to
resolve the dispute through negotiation, OGC will provide a written
notice giving appeal rights to the district court, which must be
exercised within 60 days.
B. OHA
Screening Actions
Pre-Screening Actions
Determining Jurisdiction for Screening
As provided in Part V. A. 3. above, if there is a current claim
pending or stored at OHA Headquarters, the OAO Class Action Coordinator
will receive the Day alert and related claim
file(s). The Coordinator will determine OHA jurisdiction for screening
and forward as follows.
If the claim is in an HO, the Coordinator will use Attachment 3 to forward
the alert and any prior claim file(s) to the HO for screening (see Part
V. B. 2. below if the claim is no longer in the HO when the alert is
received).
If the claim is before the Appeals Council, pending court review or stored
in OHA Headquarters, the Coordinator will use Attachment 3 to forward the
alert and any prior claim file(s) to the appropriate OAO branch for
screening (see Part V. B. 2. below if the claim is no longer in OAO when
the alert is received).
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 claim file reconstruction, as
necessary.
Do not screen pending cases in newly implemented class actions unless an
alert has been received. Claimants sometimes allege class membership in
connection with pending claims, after returning a response card. The
presence of an alert is evidence that the claimant has timely responded to
notice of potential class membership and that his or her case is ready
for review. (Cases are called up for review in the order that responses
are received.) However, if class action implementation is nearly complete
and a claimant with a non-alerted pending case should allege class
membership, contact the Day coordinator in the
Division of Litigation Analysis and Implementation (DLAI), Office of
Policy, Planning and Evaluation, for assistance in responding to the
claimant's allegation. DLAI's address is
Office of Hearings and Appeals
Division of Litigation Analysis
and Implementation
Office of Policy, Planning
and
Evaluation
Suite 702
One Skyline
Tower
5107 Leesburg Pike
Falls Church, VA 22041-3255
Attn: Day Coordinator
The DLAI Day Coordinator's telephone number is
(703) 305-0726.
Preparing the Case for Screening
Prior to screening an individual case, the screening component will obtain
and place in the claim file appropriate systems information (if not
already in file), or updated systems information, to determine
whether:
The screening component will also:
obtain the files for all unassociated claims that fall within the class
dates, as well as any inactive claims that postdate the class period
(which potentially provide a basis for screen-out or for limiting class
relief); and
if necessary, request reconstruction of any potential class member claim
files that cannot be located (see Part V. A. 4. above).
Screening
The screening component will associate the alert and any prior claim
file(s) with the claim file(s) in its possession and then complete a
screening sheet (see Attachment 4) as follows.
Consider all applications denied during the Day
timeframe;
Follow all instructions on the screening sheet;
Annotate the “Remarks” section if a current claim is pending
at another administrative level;
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. above. (The Coordinator will enter
information from the screening sheets into a database, and will forward
the screening sheets to DLAI.) If the screening component is an HO,
forward a copy of the screening sheet directly to DLAI at the address in
Part V. B. 1. a. above. HO personnel may also forward material by telefax
to DLAI at (703) 305-0655. (DLAI will store all screening sheets, and
will forward copies to Litigation Staff for entry into CATS.)
If the HO receives an alert only, or one associated with a prior claim
file(s) for screening, and no longer has the current claim file, it will
return the material to the OAO Class Action Coordinator and advise the
Coordinator of the action taken on the current claim and its destination.
The Coordinator will determine the current claim file location and forward
the material to that location, using Attachment 3 (within OHA) or
Attachment 5 (outside OHA).
If an OAO branch receives an alert only, or one associated with a prior
claim file(s) for screening, and no longer has the current claim file, it
will determine the location of the current claim file. The OAO branch will
use Attachment 3 to forward the material to an OHA location or Attachment
5 to forward to a non-OHA location. The OAO branch will also advise the
OAO Class Action Coordinator of its actions.
Post-Screening Actions
Class Members Not Entitled to Relief
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, of non-eligibility for
class relief using Attachment 7 (modify as necessary to fit the
circumstances and posture of any pending claim);
Include the address and telephone number of the servicing Social Security
FO at the top of the notice.
retain a copy of the notice in the claim file;
send a copy of the notice to:
Day Counsel
Legal Aid Society of
Cincinnati
901 Elm Street
Cincinnati, OH 45202; and
if the claim is not currently pending, return it to its OHA storage
location.
Pursuant to the Privacy Act Protective Order (Attachment 1), the
Commissioner may disclose to class counsel information regarding class
members potentially entitled to relief. Such information consists of
names, addresses and claim files of potential class members, and other
claimant-specific information reasonably relevant to the implementation of
the settlement. The information shall be used only for the purpose of
monitoring compliance with the settlement, facilitating implementation and
assisting class members and potential class members with their
rights.
If class counsel makes a timely request to review the claim file (i.e.,
within 60 days from receipt of the notice of denial of class relief), and
the file is located in OHA, DLAI will notify the OHA component housing the
file to send the file to the SSA FO for class counsel's review (see
Part V. A. 5. above). The component will use the pre-addressed
route slip in Attachment 8 to forward the file.
If the file is needed for adjudication purposes and cannot be immediately
released, the OHA component will either forward a copy of the file or
provide an explanation to DLAI of the reason for the delay and the
expected time that the file can be released.
If SSA through OGC resolves the dispute in the claimant's favor, the OHA
component will take the following actions unless otherwise directed by
DLAI:
rescreen the case;
send the notice of revised class membership determination in Attachment 9
(modified as necessary to fit the circumstances and posture of the current
claim) to the claimant and representative, if any, and to the class
counsel;
Include the address and telephone number of the servicing Social Security
FO at the top of the notice.
proceed in accordance with Part VI. below; and
notify the OAO Class Action Coordinator or DLAI, as appropriate, of the
revised determination by forwarding a copy of the revised screening
sheet.
If class counsel fails to make a timely request to review the claim file
(i.e., within 60 days from receipt of the notice of denial of class
relief), there will be no further review of the case.
Class Members Entitled to Relief
There is no class member notice. If the screening component determines
that the individual is a class member entitled to relief, it will proceed
based on the following.
If a class member claim is associated with a current claim pending a
hearing or Appeals Council review, the HO or the Council will proceed with
processing and adjudication in accordance with the instructions in
Part VI. below.
If a class member claim is associated with a current claim that is stored
pending Appeals Council review, OAO will flag the claim for forwarding to
the DDS at the close of the retention period if no appeal is filed. OAO
will use the flag at Attachment 6 for this purpose.
If a class member claim is associated with a current claim that is stored
pending court review, the OAO Court Case Preparation and Review Branch
(CCPRB) will immediately notify OGC so that OGC can take appropriate
action. This is true regardless of whether the claim pending in court is a
subsequent or prior claim. OGC will inform the CCPRB as to how to
proceed.
VI. Processing and Adjudication
SSA will readjudicate (reopen) class member claims and apply the statutes,
regulations and instructions in effect at the time of the readjudication.
As indicated previously, the BDD will ordinarily perform the class member
readjudications. However, the following processing and adjudication
procedures will apply when OHA has responsibility for screening because a
current claim is pending or stored in OHA, and the claimant is determined
to be a class member entitled to relief.
For purposes of this instruction, class member claim refers only to the
claim in which the claimant received a defective notice, which therefore
provides the basis for class membership (although to be a class member the
claimant must also have filed a subsequent claim (see Part IV. for class
definition)). Claims providing the basis for class membership will not be
pending at the OHA level because filing an appeal on the defective notice
claim is a basis for screen-out. However, a class member claim could be
associated with a current claim pending or stored at OHA.
If a class member claim is associated with a current claim pending or
stored at OHA and the claimant files a new claim, FOs will follow normal
procedures. As appropriate, the new claim will be escalated to the OHA
level.
A. Class
Member Claim Is Associated with Current Claim Pending at Hearing
Level
Claims Have Common Issues; Hearing Scheduled or Held
Pursuant to HALLEX I-1-708 A., if the claims are disability claims
and involve disability issues, they will be considered to have common
issues regardless of the period at issue or the title(s) under which the
claims were filed. The current claim may be the subsequent claim in which
the claimant received a res judicata denial or
less than full retroactive benefits (i.e., administrative finality
prevented the reopening of the defective notice claim when effectuating
the subsequent (current) favorable claim), or a later claim (e.g., a
claim under title XVI only).
The appropriate HO action will depend on the ALJ's ability to consolidate
the class member claim and the current claim. Pursuant to the
Day stipulation (§ V.B., p. 12), SSA will
use its best efforts to ensure that adjudication of the current claim is
not delayed by consolidation. Therefore, to avoid having to give notice
of a new issue or offer a supplemental hearing, the ALJ will consolidate
common-issue claims only if the current claim and the class member claim
involve the same title and the issue of disability, and if the current
claim covers the entire period at issue in the class member claim. The
ALJ's action on the consolidated claims may be unfavorable, partially
favorable or fully favorable.
When the ALJ consolidates Day relief with action
on the current claim and the hearing has not yet been held, the ALJ
should advise the claimant at the time of the hearing that the decision
on the current claim will also provide relief under
Day. If the hearing has already been held, the
ALJ does not need to give advance notice of consolidation or offer a
supplemental hearing if the above-described consolidation conditions are
met.
When the ALJ issues a decision on the consolidated claims, the ALJ
will:
reopen the class member claim;
use the following language in the decision to notify the claimant that the
decision on the current claim also resolves the class member claim:
"Based on your claim(s) filed on _______, we previously determined you to
be a member of the Day class action. Because the
issues you raised in your Day class member
claim(s) are identical to the issues that you have raised in your current
claim, this decision resolves both claims and gives you the relief that
you are entitled to under the Day class
action."; and
forward a copy of the decision to DLAI at the address in Part V. B. 1.
a. above.
If the ALJ is unable to consolidate the two claims (e.g., the class member
claim and current claim were filed under different titles), or if the ALJ
dismisses the request for hearing on the current claim, HO personnel will
flag the class member claim (see Attachment 6) for forwarding to the BDD
on completion of all OHA actions and expiration of any appeal period.
However, HO personnel may forward the class member claim immediately if it
is not needed for the adjudication of the current claim.
The ALJ may not dismiss the request for hearing on the current claim on
the basis of res judicata if the class member
claim, or a subsequent claim in which the claimant received a
res judicata determination, forms the basis for
the res judicata action.
Claims Have Common Issues; Hearing Not Scheduled
In this situation, the ALJ will dismiss the request for hearing on the
current claim and forward both the current and class member claims to the
BDD, for a consolidated reopening.
The ALJ will not dismiss the request for hearing on the current claim,
when a hearing has not been scheduled, if 1) the claimant has waived his
or her right to an in-person hearing and the current claim is ready for an
on-the-record decision; 2) the ALJ is otherwise prepared to issue a fully
favorable decision on the current claim; 3) the current claim is on
remand from the Appeals Council; or 4) the current claim involves
terminal illness.
If the ALJ is unable to dismiss the request for hearing on the current
claim because an exception applies, the ALJ will follow the guidance in
Part VI. A. 1. above.
Claims Do Not Have Common Issues
If the current claim is not the subsequent claim in which the claimant
received a res judicata denial or less than full
retroactive benefits (i.e., administrative finality prevented the
reopening of the defective notice claim when effectuating a subsequent
favorable claim), and the current claim does not have issues in common
with the class member claim (e.g., the current claim involves an
overpayment issue), HO personnel will retain and process the current claim
separately and forward the class member claim to the BDD for
readjudication without delay, using Attachment 10. However, if the class
member claim is needed for adjudication of the current claim, HO personnel
will flag the class member claim for forwarding to the BDD on completion
of all OHA actions and expiration of any appeal period (see Attachment
6).
B. Class
Member Claim Is Associated with Current Claim Pending at Appeals Council
Level
Claims Have Common Issues
Pursuant to HALLEX
I-1-7-8 A., if
the claims are disability claims and involve disability issues, they will
be considered to have common issues regardless of the period at issue or
the title(s) under which the claims were filed. The current claim may be
the subsequent claim in which the claimant received a
res judicata denial or less than full
retroactive benefits (i.e., administrative finality prevented the
reopening of the defective notice claim when effectuating the subsequent
(current) favorable claim), or a later claim (e.g., a claim under title
XVI only). The appropriate Appeals Council action will depend on the
Appeals Council's consideration of the merits and disposition of the
current claim.
Appeals Council Issues a Decision on Current Claim
Pursuant to the Day stipulation, SSA will use its
best efforts to ensure that adjudication of the current claim is not
delayed by consolidation. Therefore, to avoid having to remand to consider
a new issue (e.g., a class member claim under another title), the Council
will consolidate claims only if the current claim and the class member
claim involve the same title and the issue of disability, and if the
current claim covers the entire period at issue in the class member claim.
The Appeals Council's action on the consolidated claims may be
unfavorable, partially favorable or fully favorable.
When the Appeals Council issues a decision on the consolidated claims, the
Council will:
reopen the class member claim;
use the following language in the decision to notify the claimant that the
decision on the current claim also resolves the class member claim:
"Based on your claim(s) filed on _______, we previously determined you to
be a member of the Day class action. Because the
issues you raised in your Day class member
claim(s) are identical to the issues that you have raised in your current
claim, this decision resolves both claims and gives you the relief that
you are entitled to under the Day class
action."; and
forward a copy of the decision to the OAO Class Action Coordinator at the
address in Part V. A. 3. above.
If the claim was screened while it was stored pending appeal and was
flagged for forwarding to the BDD (see Attachment 6), OAO personnel must
remove the flag when the Appeals Council takes the consolidation action
described above.
If the Appeals Council is unable to consolidate the two claims (e.g., the
class member claim and current claim were filed under different titles),
OAO personnel will flag the class member claim (see Attachment 6) for
forwarding to the BDD on completion of all OHA actions and expiration of
any appeal period. However, OAO personnel may forward the class member
claim immediately if it is not needed for the adjudication of the current
claim.
Appeals Council Does Not Issue a Decision on Current Claim
In all other situations (i.e., after consideration of the merits), if the
Appeals Council would otherwise dismiss or deny the request for review or
remand to an ALJ, the Appeals Council will instead remand the current
claim directly to the BDD, along with the class member claim, for a
consolidated reopening (see Attachment 11).
Claims Do Not Have Common Issues
If the claims do not have common issues (e.g., the current claim involves
an overpayment issue), and the class member claim file is not needed for
adjudication of the current claim, OAO personnel will forward the class
member claim file to the BDD, using Attachment 10 modified as
appropriate.
If the claims do not have common issues but the class member claim file is
needed for adjudication of the current claim, OAO personnel will flag the
class member claim file (see Attachment 6) for forwarding to the BDD on
completion of all OHA actions and expiration of any appeal period.
VII. Case Coding
In all situations, to identify class member cases in the Hearing Office
Tracking System (HOTS), HO personnel will code “DA” in the
“Class Action” field. Additionally, in the OHA CCS, HO
personnel will code “D” in the “SPC” field.
If the ALJ: 1) dismisses the request for hearing for the purpose of BDD
readjudication; or 2) issues a decision on the current claim that is fully
favorable with respect to the class member claim, HO personnel will
change the hearing type on the current claim to a
“reopening.” For any other ALJ action on the current claim,
the hearing type, as a new request for hearing, will remain unchanged. HO
personnel will code dismissal cases as “OTDI.” HOTS users
will need to bypass the automated case routing capability and manually
route dismissal cases through the special case disposition/routing
function. Only the systems administrator can access this function. The
individual will need to enter the BDD address and destination code.
VIII. Reconciliation of Implementation
At an appropriate time, 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 computer-based record of OHA
implementation activity (i.e., a record of alerts processed by OHA, and a
record of cases screened and cases 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
Hearing office personnel should direct any questions concerning this
instruction 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.
A Fairness Hearing in this matter was held on the 27th day of April 1995,
before The Honorable S. Arthur Spiegel, United States District Judge for
the Southern District of Ohio. The purpose of the hearing was to aid the
Court in determining whether the Proposed Settlement of this class action
lawsuit was fair and adequate, as required by Rule 23 of the Federal Rules
of Civil Procedure. The Parties recounted their settlement efforts and
their reasons for believing that the agreement should be approved by the
Court. The Court afforded all present the opportunity to express their
support or objection to the Proposed Settlement. One objector came
forward. At the encouragement of the Court, the Parties, subsequently,
negotiated an accommodation for this objector. Additionally, the Parties
have submitted minor corrections to the original settlement document. We
have reviewed the Proposed Settlement agreement and find it to be fair and
adequate. Accordingly, we approve the settlement in its final amended
form of May 11, 1995.
Initially, we grant the Social Security Administration's Motion, made
orally at the hearing, to Substitute the Commissioner for the Secretary of
Health and Human Services as the named Defendant.
The Plaintiffs' Class brought this action to remedy the effect of a faulty
notice sent out to certain individuals who were being denied Social
Security benefits. The Court ordered the Social Security Administration to
remedy the defect. The Sixth Circuit Court of Appeals modified the remedy
and remanded for the establishment of a procedure for the reopening of
denied claims applications.
The Plaintiffs' Class Counsel testified to the efforts exerted on behalf
of the class. The class is represented by the Legal Aid Society of
Cincinnati. An extensive discovery period covered several years including
more than twenty depositions, and the review of thousands of documents.
The parties argued cross motions for summary judgment, and the Court
entered partial judgment for the Plaintiffs.
The Parties then moved their advocacy to the Court of Appeals, which
significantly narrowed our holding. In particular, the Sixth Circuit
narrowed the number of claimants entitled to reopen their cases.
Additionally, the Court of Appeals held that a Plaintiff must have
detrimentally relied upon the faulty notice, in order to qualify for
relief. Upon remand, the Parties negotiated the Proposed Settlement now
before us. Under the settlement a class member who meets the negotiated
criteria will be presumed to have relied upon the faulty notice. It is
estimated that the class now consists of approximately 2,600 persons.
The Parties reported on the method of distribution of notice to the class.
Actual notice will be provided to all identifiable class members, with
the names and address of the potential class members to be provided by
the Defendants under the terms of the mutually agreed protective order.
Additionally, the settlement requires distribution of posters to all
Social Security Offices in Ohio and to other state offices. Finally,
public service announcements will be aired. The Plaintiffs indicated that
they believe that the notice is adequate.
The Plaintiffs' Class Counsel has reviewed all the objections filed with
the Court. He reported that most of the objections are in fact not actual
objections to the settlement, but notices of intent to attempt to
participate in the settlement. One true objector, Carol Lanning, appeared
at the Fairness Hearing through counsel. The Court expressed its hope that
some accommodation could be made for Ms. Lanning. The Government has
assured us that such an accommodation has been reached, and that Ms.
Lansing and her counsel no longer maintain their objection. See
Federal Defendant's Report to Court, at 1 & 3 (doc. 204).
The Government also reported to the Court that the Social Security
Administration, only the day before our Fairness Hearing, promulgated
Social
Security Ruling 95-1p, 60 Fed. Reg. 20349 (April 26, 1995). The
Government reports that this ruling:
is a nationwide Policy Interpretation Ruling concerning the finding of
good cause for missing the deadline for requesting administrative review
due to reliance on statements in initial or reconsideration denial
notices, including the Title II reconsideration notice at issue in this
case.
Federal Defendant's Report, at 2 (doc. 204). The Government reports that
this ruling “provides yet another vehicle for claimants who allege
that they received inadequate notices to seek redress.” Id.
However, under the ruling the claimant must make an evidentiary showing
of good cause. Id.
The members of this settlement class who meet the criteria specified in
the Proposed Settlement “will be presumed to have relied on the
notice, without the need to make any additional evidentiary
showing.” Id. The Government reports that class members who
do not qualify for the presumption will still have an opportunity to
demonstrate their reliance under the new Social Security Ruling.
The settlement agreement incorporates a stipulated Privacy Act Protective
Order. This order is necessary to protect the privacy of Social Security
applicants, while allowing Plaintiffs' Class Counsel to view private
documents in order to assure the applicant rights under the settlement.
Additionally, the Protective Order allows the provision of information
helpful in locating potential class members. Accordingly, at the request
of the Parties, we approve the Privacy Act Protective Order dated February
6, 1995.
Counsel for Defendant Leonard Herman, Director of the Ohio Bureau of
Disability Determination appeared at the Fairness Hearing. The state
considers the Proposed settlement to be fair and adequate to all
parties.
The Proposed Settlement provides for an appeal process if the Social
Security Administration decides that an individual who responded to the
potential class relief notice or otherwise requested review is not a class
member entitled to relief. See Proposed Settlement Order at 8-9,
Exhibit 1 to Joint Motion for Tentative Approval of the Settlement (doc.
160). Such an individual may contact Plaintiffs' Class Counsel, who upon
review may elect to carry the appeal to the Office of General Counsel,
Social Security Division, Department of Health and Human Services
(“OGC”). Id. If the Parties are unable to resolve the
dispute at the OGC level, then the Proposed Settlement Agreement provides
for appeal to the district court. Id at 9. In order to provide
prompt and orderly attention to such appeals, we designate United States
Magistrate Judge Jack Sherman as the arbiter of any such appeals.
Magistrate Judge Sherman will render a final judgment binding upon all
parties.
We have studied the Proposed Settlement. We have conducted a Fairness
Hearing at which we questioned the Parties in regard to the Proposed
Settlement. We are satisfied that the one class member who raised a formal
objection at the Fairness Hearing has removed her objection by mutual
agreement. Therefore, the Court is satisfied that the Proposed Settlement
represents a fair and adequate adjudication of the rights of the Parties
in this litigation. Accordingly, we hereby APPROVE the Settlement
Agreement and also APPROVE the Privacy Act Protective Order.
SO ORDERED
Exhibit 1
ORDER
This case is before the Court on remand from the Court of Appeals for the
Sixth Circuit which has directed this Court to determine procedures for
reopening the claims of class members who are entitled to relief pursuant
to the appellate court's May 12, 1994 decision. See
Day v. Shalala, 23 F. 3d 1052, 1067 (6th Cir.
1994). Accordingly, it is hereby ORDERED as follows:
The class defined in the Court's November 20, 1991 Order was comprised
of:
All persons who applied for and were denied, or were terminated from, the
receipt of Title II or Title XVI disability benefits since October 9,
1984, or who will be denied or terminated from the receipt of Title II or
Title XVI disability benefits, by the Ohio Bureau of Disability
Determination (BDD). This class excludes persons who were denied or
terminated because they have returned to substantial gainful activity or
who are not eligible for disability benefits for reasons not related to
disability.
On May 12, 1994, the Court of Appeals for the Sixth Circuit further
restricted the definition of a class member, holding that:
[t]he class . . . excludes any claimants whose applications for
reconsideration were denied more than sixty days before the filing of the
amended class complaint on December 4, 1987.
Day v. Shalala, 23 F.3d 1052, 1058 (6th Cir.
1994).
The Sixth Circuit also noted that “[b]ecause plaintiffs
concede that the [Title II reconsideration denial] notices used
starting in February, 1990 are adequate, their challenge is only to the
[Title II reconsideration denial] notices in use from October 9,
1984 until February, 1990.” Day, 23 F.3d at 1065.
Class members entitled to relief are individuals:
Who received at the reconsideration level a denial notice of Title II
disability benefits from the BDD on or after October 5, 1987, and before
February 1, 1990, which stated, in part, that:
If you do not request a hearing of your case within the prescribed time
period, you still have the right to file another application at any
time;
and;
Who detrimentally relied on the above notice language. To demonstrate such
reliance, a class member must have satisfied the following
criteria:1
Filed a new application within 2 years or receipt of the above-described
reconsideration denial notice, rather than pursuing the appeal of the
previous application because of such notice; and
Been subsequently presented by the Secretary with a claim of
res judicata on any new Title II2
benefit application, or received less in retroactive benefits then the
class member would have received had the class member successfully
appealed initially;
and;
If presented with a claim of res judicata
pursuant to ¶ II.B.2 of the Order, the Secretary did not withdraw
the res judicata claim and consider the class
member's entitlement to Title II benefits, and the class member did not
appeal the res judicata decision to a United
States District Court.3
1. To the extent practicable, SSA shall, by means of its data processing
systems, immediately commence identification of the names, Social Security
numbers, and last known addresses of all class members potentially
entitled to relief. SSA will attempt to complete such identification
within 90 days of final approval of this Order by the district court. SSA
believes it can reasonably be expected to complete such identification
within 90 days, but in the event that SSA experiences serious computer
difficulties, or other unforeseen circumstances, SSA will immediately
contact plaintiffs' counsel to prepare a revised timetable for
identification of class members potentially entitles to relief.
2. SSA will attempt to furnish draft implementation instructions to
plaintiffs' counsel within 120 days of final approval of this Order by the
district court. SSA believes it can reasonably be expected to provide
draft implementation instructions within 120 days, but in the event that
SSA cannot forward the draft implementation instructions within 120 days
of final approval of this Order by the district court, SSA will
immediately contact plaintiffs' counsel to prepare a revised timetable for
forwarding the draft implementation instructions. Plaintiffs' counsel
shall have 20 days to review the draft instructions and provide any
comments thereon to SSA. SSA may, but is not required to, modify the
implementation instructions based on plaintiffs' counsel's comments and
SSA will attempt to issue final implementation instructions to all
affected SSA personnel within 60 days after receipt of comments from
plaintiffs' counsel. SSA believes it can reasonably be expected to issue
final implementation instructions within 60 days, but in the event that
SSA cannot forward the final implementation instructions within 60 days of
receipt of comments from plaintiffs' counsel, SSA will immediately
contact plaintiffs' counsel to prepare a revised timetable for forwarding
the draft implementation instructions.
3. Thirty days after the issuance of final implementation instructions by
SSA under ¶ III.A.2 of this Order, or thirty days after the
identification of class members pursuant to ¶ III.A.1, whichever
occurs later, SSA shall send a copy of the potential class relief notice,
along with a review request form and a postage prepaid return envelope by
first class mail to the last known address of those individuals
potentially entitled to relief as described in ¶ II of this
Order.
4. When individual notices are returned as undeliverable, SSA will attempt
to obtain updated addresses by providing a computer tape to the Ohio
Department of Human Services (ODHS) for the sole purpose of obtaining
addresses through a computerized match with public assistance, food stamp,
and/or other relevant records. SSA's attempt to obtain updated addresses
is subject to the requirements of the Privacy Act, as amended by the
Computer Matching and Privacy Protection Act, 5 U.S.C. § 552a
(“Privacy Act”). SSA shall not be obligated to bring legal
proceedings to gain access to such data system records. After completion
of the data match, SSA shall mail notices to any potential class member
for whom ODHS provides an updated address.
1. Any individual who receives a potential class relief notice and who
wishes to request relief under this Order must mail a completed review
request form in the SSA-provided franked, self-addressed envelope to SSA
within 60 days of the date of receipt of the notice. No individual who
fails to timely return the review request form to SSA shall receive relief
under this Order unless the individual demonstrates good cause (as
defined in 20
C.F.R. § 404.911) for the untimeliness.
2. Any individual who does not receive a potential class membership notice
but who wishes to request relief under this Order must notify SSA by
mail, telephone, or in person at an SSA Field Office. Such individual
must provide SSA with his or her name, address, Social Security number,
date of birth, and his or her reason for requesting relief under this
Order. The individual must notify SSA within 180 days after SSA mails the
notices pursuant to ¶ III.A of this Order. If the individual fails
to do so, that individual shall not receive relief, unless the individual
demonstrates good cause (as defined in
20 C.F.R. §
404.911) for the untimeliness. In an effort to notify individuals
described in this paragraph, SSA will provide plaintiffs' counsel with up
to 400 posters 4, which describe the relief available under
this Order. The posters will explain that individuals must notify SSA
within 180 days after SSA mails the notices pursuant to ¶ III.A of
this Order.
SSA will also provide a media package to newspapers, television and radio
stations within the state of Ohio containing information for public
service announcements and will issue a press release to newspapers within
the state of Ohio. As the publication or broadcast of the information
provided to the media by SSA pursuant to this paragraph of this Order will
be at the discretion of these media, SSA makes no representations as to
whether, when, or how frequently this information will be published or
broadcasted. The parties further agree that SSA is under no obligation to
purchase radio time, television time or newspaper advertisements for the
dissemination of the information provided to the media pursuant to this
paragraph of this Order.
3. A determination by SSA under ¶ III.B.1 and ¶ III.B.2 of this
Order concerning good cause shall be binding and not subject to further
review.
SSA shall review the claims of individuals who timely respond to the
potential class membership notice in accordance with ¶ III.B for a
determination as to whether they are potentially entitled to relief.
Individuals who meet the criteria set forth in ¶ II of this Order
will receive the relief specified in ¶ V.
If SSA determines that an individual who responded to the potential class
relief notice or otherwise requested review is not a class member entitled
to relief, SSA will send notice of this determination to the individual
and to class counsel: John E. Schrider, Jr., Timothy Juenke, or their
designee, Legal Aid Society of Cincinnati, 901 Elm Street, Cincinnati,
Ohio 45202. Such individuals will be informed that if they disagree with
the determination, they should immediately contact class counsel upon
receipt of the notification of non-entitlement to relief.
Class Counsel may, following receipt of SSA's determination denying class
membership, write the Office of the General Counsel, Social Security
Division, Department of Health and Human Services (OGC), Altmeyer
Building, Room 611, 6401 Security Boulevard, Baltimore, MD 21235 within 60
days of receipt of the notification of non-entitlement to relief and
explain any disagreement. If class counsel does not write to OGC to
disagree with the SSA determination within 60 days of receipt of the
notification of non-entitlement to relief, SSA's determination as to
entitlement to relief shall become binding and will not be subject to
further review.
OGC will attempt to resolve through negotiation all disputes concerning
the determination made pursuant to this subparagraph. Class counsel may
request to review the folder or other material upon which the
determination of non-entitlement to relief was based. SSA will make the
folders or other materials available at one Social Security field office
agreed upon by the parties. The file or other materials will remain at the
designated SSA field office for sixty days. Class counsel will use this
information solely for the purpose of pursuing the individual's claim, and
in accordance with the Stipulated Privacy Act Protective Order dated
_________________. If the parties cannot resolve the question of the
individual's entitlement to relief through negotiation, OGC will confirm
to the individual and to class counsel, in a written notice, that the
dispute cannot be resolved. The notice will state that if within 60 days
of receipt of OGC's written confirmation the individual does not request
the district court's review of the OGC confirmation of the SSA
determination, the determination will become final and not subject to
further review.
If OGC determines after consultation with plaintiffs' counsel that the
individual is a class member entitled to relief under this settlement, SSA
will provide the relief specified in ¶ V of this Order.
Within 60 days of the issuance of the potential class relief notices, and
every three months thereafter, SSA shall submit a written report to class
counsel which includes the following information from SSA's computerized
tracking system:
the number of class notices sent pursuant to ¶ III.A.3 of this
Order;
the number of individuals responding to notices sent pursuant to ¶
III.A.3 of this Order;
the number of notices sent pursuant to ¶ III.A.3 that are returned as
undeliverable;
the number of class notices sent pursuant to ¶ III.A.4 of this
Order;
the number of responding individuals who received favorable determinations
at the reconsideration level by the BDD;
the number of responding individuals who received unfavorable
determinations at the reconsideration level by the BDD.
SSA shall inform plaintiffs' counsel of the date that notices are mailed
pursuant to ¶ III.A.3 and ¶ III.A.4 within two days of such
mailing.
SSA shall provide plaintiffs' counsel with copies of all policy
statements, directives and instructions regarding identification,
notification and potential relief to potential Day v.
Shalala class members, within seven working days of their
issuance.
If SSA determines that an individual who has responded to a class notice
or requested relief pursuant to ¶ III.B of this Order is a class
member entitled to relief, SSA will reopen the class member's Title II
application which forms the basis for relief under this Order to consider
whether the class member was eligible for disability insurance benefits.
5 SSA will take into account evidence in the claims file and
any additional evidence submitted by the class member, which relates to
an impairment that existed while the class member met the requirements of
disability insured states. All claims entitled to reopening under the
terms of the Order shall be readjudicated at the reconsideration level,
unless consolidated pursuant to ¶ V.B of this Order.
For claims readjudicated at the reconsideration level, SSA shall develop
the record in accordance with SSA policy for development of regular
claims, e.g.,
20 C.F.R.
§§ 404.1512-18. SSA will inform class members that they may
submit new evidence pertaining to the readjudication of their claim. If
SSA is unable to obtain a class member's file, SSA shall reconstruct the
missing file according to the relevant POMS provisions. See GN
01201.100; DI 20510.005; DI 20510.010.
At the option of SSA, class members with subsequent disability claims
active and simultaneously pending at any administrative level of review at
the time the class claim is being evaluated may have all claims covered
by this Order consolidated and reviewed with the current claim. SSA will
use its best efforts to ensure that adjudication of the current claim is
not delayed by such consolidation.
Individuals whose claims are redetermined pursuant to this Order shall
retain all rights to seek further administrative and judicial review in
accordance with 42 U.S.C. § 405 (g) and 20 C.F.R. Part 404, Subpart
J.
All disclosures under this Order shall be governed by the terms of the
stipulated Privacy Act Protective Order, dated ___________________, which
hereby is incorporated into this Order as if fully set forth herein in its
entirety.
The Sixth Circuit's May 12, 1994 decision in this case represents the full
and final resolution of the claims or causes of action in connection with
plaintiffs' class complaint. Accordingly, the amended class complaint
hereby is dismissed with prejudice. The Court will retain jurisdiction
over the case solely for purposes of reviewing a timely petition for
attorney fees, enforcing the terms of this Order, reviewing requests for
modification submitted by the parties pursuant to VII.B of this Order, and
enforcing or granting relief from that portion of the District Court's
Order affirmed by the appellate court's May 12, 1994 decision.
The parties may seek modification of this Order by written agreement of
all of the parties, which shall not become effective until approved by the
Court.
This Order shall not be construed as limiting the pre-existing rights of
any class member to apply for benefits, request administrative or judicial
review, or request reopening of a decision pursuant to
20 C.F.R.
§§ 404.988 and
416.1488.
This Order reflects the entire agreement of the parties concerning the
issues addressed in this Order.
Final judgment in accordance with Rules 54, 58, and 79(a), Fed. R. Civ.
P., shall be entered upon the Court's entry of this Order. This Order
shall become effective on the 61st day after such entry of final judgment.
In the event an appeal of this Court's entry of the Order or the final
judgment is filed, SSA may in its discretion delay implementation of the
Order until a final determination of the appeal.
Agreed To:
____________/s/__________________
JOHN
E. SCHRIDER, JR. (0014967)
TIMOTHY R. JEUNKE (00161309)
Legal
Aid Society of Cincinnati
901 Elm Street
Cincinnati,
OH 45202
(513) 241-9400
Attorney for
Plaintiffs
___________/s/___________________
BRIAN
G. KENNEDY
KAREN STWEART
U.S. Department of
Justice
Room
820
901 "E" Street, N.W.
Washington, D.C. 20530
(202)
514-2849
Attorneys for Federal Defendant
__________/s/____________________
JACK
W. DECKER (0021285)
Assistant Attorney General
Employment
Law Section
30 E. Broad St., 23rd Flr.
Columbus,
OH 43215-3428
(614) 644-7257
Attorney
for State Defendants
Exhibit 2
Pursuant to 5 U.S.C. § 552(b) (11), 42 U.S.C. § 1306 (a), and
20 C.F.R. § 401.340, IT IS HEREBY ORDERED as follows:
1. Defendant may disclose to plaintiffs'
counsel information regarding class members potentially entitled to relief
under the district court's Order implementing the decision in
Day v. Shalala, 23 F.3d 1052 (6th Cir. 1994),
[hereinafter “Order”] that is subject to restrictions
on disclosure under the Privacy Act of 1974 and the Social Security Act,
without obtaining the prior written consent of the individual to whom such
records pertain.
2. The information disclosed pursuant to
paragraph 1 of this Privacy Act Protective Order (“Protective
Order”) shall be used only for the purposes of monitoring
compliance with the Order, facilitating implementation of the Order, and
assisting class members and potential class members in effectuating their
rights under the Order. Except as provided in this Protective Order or
otherwise ordered by the Court, access to the information disclosed under
this Protective Order shall be limited to: (1) plaintiffs' counsel who are
actively assisting with the implementation of the Order; (2) members of
plaintiffs' counsel's staff; (3) defendant or her agents, counsel or
staff; (4) the Court in this action; or (5) other persons participating in
the accomplishment of the authorized purposes of disclosures as described
in this paragraph of the Protective Order.
3. Any disclosure to persons described in
items (2) and (5) of the paragraph 2 of this Protective Order shall be
conditioned upon such persons having read this Protective Order and
acknowledged, in a written affidavit, that they understand the Order and
agree to be bound by it.
4. Plaintiffs' counsel and members of their
staff shall limit the making of copies of the records disclosed under this
Protective Order to those necessary to the purposes described in
paragraph 2. All such copies, and any document or working paper created
by plaintiffs' counsel or any member of their staff that contain
information subject to the terms of this Protective Order, shall be
protected from disclosure in accordance with the provisions of this
Protective Order and shall be maintained in a secure place.
5. All material filed on the public record
of the court or accessible to the public shall have the names, addresses,
Social Security numbers, claim numbers and other personal identifying
information stricken therefrom, replacing the names with the appropriate
pseudonyms if necessary. If the parties deem it necessary to utilize such
information in any presentation to the court, any documents containing
such identifying information shall be filed under seal and the identifying
information need not be stricken.
6. This Protective Order shall not apply to
records of claimants who provide written consent to the release of
confidential information subject to this Protective Order to the Legal Aid
Society of Cincinnati.
7. Plaintiffs' counsel shall destroy any
documents subject to this Protective Order within ninety (90) days after
the documents are no longer needed for the purposes described in paragraph
2 of this Protective Order.
8. Nothing in this Protective Order should
be construed to be the litigating position of any party regarding
disclosures under state or federal privacy laws, including the Privacy Act
of 1974.
9. Upon twenty days notice to the other
parties, any party may seek modification of this Order.
IT IS SO ORDERED this ________ day of ____________________, 1995.
Agreed To:
___________/s/___________________
JOHN E.
SCHRIDER, JR. (0014967)
TIMOTHY R. JEUNKE (00161309)
Legal
Aid Society of Cincinnati
901 Elm Street
Cincinnati,
OH 45202
(513) 241-9400
Attorney for
Plaintiffs
___________/s/___________________
BRIAN
G. KENNEDY
KAREN STEWART
U.S. Department of
Justice
Room
820
901 "E" Street, N.W.
Washington, D.C. 20530
(202)
514-2849
Attorneys for Federal Defendant
____________/s/__________________
JACK
W. DECKER (0021285)
Assistant Attorney General
Employment
Law Section
30 E. Broad St., 23rd Flr.
Columbus,
OH 43215-3428
(614) 644-7257
Attorney
for State Defendants
1 Class members will not be
required to make a specific showing that they were misled by the relevant
notice in order to obtain relief under this Order. SSA's agreement to
forego this requirement is limited to this case for purposes of
settlement and should not be read as a concession by SSA that individuals
who have not shown that they were misled by the relevant notice
necessarily “detrimentally relied” on the notice for purposes
of any other case or circumstances.
2 An application under Title XVI
includes an application for all other possible benefits, including an
application for Title II benefits.
3 Pursuant to ¶ IV.A of this
Order, SSA will screen the claims files of potential class members to
determine if the criteria set forth in ¶ II has been met. While the
parties cannot anticipate all of the issues that might arise during the
screening process, the parties agree that the criteria set forth in
¶ II of this Order are designed to identify, for purposes of
reopening, those individuals whose decision to reapply for benefits
rather than pursuing an appeal of the previous application resulted in
either a total bar to benefits or a reduction in benefits.
Moreover, any individual who meets the criteria of ¶ II will not be
denied relief under this Order because he/she was no longer insured on the
date of the reapplication.
4 Poster notices prepared by SSA
and subject to review and approval by class counsel will be publicly
displayed in all SSA field offices and OHA offices in the State of Ohio
until the end of the time period for response to notification. In
addition, SSA will send such posters to all County Department of Human
Services in the State of Ohio with a written request that they be
conspicuously displayed in locations such as applicant and recipient
waiting rooms.
5 SSA will apply its normal
procedures for processing claim of deceased individuals. See 42
U.S.C. § 404(d);
20 C.F.R.
§§ 404.503(b); 404.610(d), 404.615, 404.621(e); 404.1505;
POMS
DI
23510.001;
GN
02301.030.
SHIP TO ADDRESS:
SPECIAL INSTRUCTIONS:
IF CLAIM IS PENDING OR STORED IN OHA HEADQUARTERS, THEN SHIP TO:
Office of Hearings and Appeals
Office of Appellate Operations
(OAO)
One Skyline Tower, Suite 701
5107 Leesburg Pike
Falls
Church, VA 22041-3200
ATTN: OAO Class Action Coordinator
(Case locator code 5007)
IF THE CLAIM IS PENDING IN AN OHA HEARING OFFICE, THEN SHIP FOLDER
DIRECTLY TO THAT OFFICE
This claimant may be a Day class member. The
attached folder location information indicates that a current claim file
is pending or stored in your office. Accordingly, pursuant to
HALLEX Temporary Instruction 5-4-53, we are forwarding [the
attached alert] or [the attached alert and prior claim
file(s)] for association, screening for class membership,
consolidation consideration, if appropriate, and possible
readjudication.
Day Screening Sheet Instructions
COMPLETE ONLY ONE SCREENING SHEET EVEN IF THE CLAIMANT RECEIVED
MULTIPLE DETERMINATIONS WITHIN THE CLASS DATES. HOWEVER, THE SCREENING
SHEET PROVISIONS MUST BE CONSIDERED SEPARATELY FOR EACH CLAIM. A CLASS
MEMBER WHO RECEIVED MULTIPLE DETERMINATIONS IS ELIGIBLE FOR READJUDICATION
ONLY ON THOSE CLAIMS MEETING ALL CLASS MEMBERSHIP REQUIREMENTS.
Items 1 - 5
Fill in the claimant's own SSN, regardless of whether it is the SSN under
which the claimant applied for or received benefits. Also fill in the SSN
under which the claimant pursued benefits, along with the BIC or ID (i.e.,
the claim number), from the alert package. If the claimant's name has
changed since the original application(s) was adjudicated, indicate the
claimant's former name in parentheses.
Item 6
Complete this item after case screening. Check one block in item 6. a.
and, if appropriate, enter the two-digit screen-out code in item 6. b.
Item 7
Only disability claims medically denied under title II are eligible for
class membership consideration. The determination within the appropriate
timeframes must have been at the reconsideration level.
Individuals who received cessation determinations, or partial awards
either at the initial or reconsideration level, are not eligible for
class membership because they would not have received notices from the
BDD. Determine the date of denial from the latest SSA-831-U3 or other
denial form.
Item 8
An individual is a potential class member only if the title II
reconsideration denial notice failed to contain the admonition
that “[a] new application is not the same as an appeal of
this determination.” In lieu of this language, defective notices
advised claimants that they had the right to file another application at
any time, leaving the impression that their rights would be preserved.
The court did not find that the title II initial notice of denial or the
title XVI notices were “defective.” If a copy of the
notice is not in file, presume that the individual received a defective
notice.
Item 9
An individual is a potential class member only if he or she was misled by
the faulty notice and filed a new claim rather than pursuing appeal (i.e.,
requested a hearing). An individual who pursued appeal could not have
been misled. A request for reopening is not the same thing as pursuing
appeal.
Items 10 and 11
In addition to the requirement that a potential class member must have
filed a new claim, the new claim must have been filed within two years of
the date of receipt of the “defective” reconsideration
notice. For purposes of implementing class relief in this case, we are
considering the claimant's filing of a new claim within two years, rather
than pursuing appeal, to be presumptive evidence that the claimant was
misled with respect to his/her appeal rights.
If the new claim was based on a new and different impairment(s), the
claimant cannot be a class member.
Item 12
An individual is a potential class member as long as he or she received,
in whole or in part, a favorable determination or decision under
either title II or title XVI on any subsequent claim filed within
the required two-year period. The date of the favorable determination or
decision itself is immaterial.
Item 13
If an individual received a favorable determination on a claim subsequent
to the defective notice claim, but that determination did not cover the
entire time period at issue in the defective notice claim, then the
individual is a class member.
Item 14
When the favorable determination/decision referenced in items 12. and 13.
was effectuated, the prior claim(s), i.e., the defective notice claim(s),
may or may not have been reopened, depending on the rules of
administrative finality. If in effectuating the subsequent claim, the
defective notice claim(s) could not be reopened for payment purposes
because of the rules of administrative finality, the individual is a class
member. However, because the entire time period covered by the defective
notice claim(s) has already been adjudicated (see item 13.), the only
action necessary is to send the defective notice claim(s) to the Office of
Disability and International Operations to pay any additional
payment/benefit due.
Item 15
An individual is a potential class member as long as he or she received,
in whole or in part, a res judicata
denial (or res judicata dismissal at the ALJ or
Appeals Council levels), under either title II or title XVI on any
subsequent claim filed within the required two-year period. The date of
the res judicata action itself is immaterial.
Item 16
Ordinarily, an individual who receives a res
judicata denial has no right to judicial review. In most cases, a
district court will dismiss a complaint filed in this situation.
Occasionally, however, district courts will take jurisdiction of an appeal
from a res judicata denial. The
Day court has specifically precluded these cases
from class membership. (An individual who appealed the issue of less than
full retroactive benefits (i.e., failure to reopen) ordinarily also has no
right to judicial review. However, the Day court
has not specifically precluded these cases from class membership.) Any
questions concerning court action in these situations should be referred
to the Day coordinator.
An individual who has received a determination (whether favorable or
unfavorable) on a later claim (at any level) concerning the entire time
period at issue in the defective notice claim, has obtained all available
relief under the Day settlement.
Processing Class Member Determinations
Check the “Member” block in item 6. a. of the screening
sheet.
Show the dates of all applications screened and the corresponding date of
defective notice or date of res judicata denial
or allowance, as appropriate, in item 19. of the screening sheet. Check
the block for each claim that confers class membership.
Sign and date the screening sheet. Enter the name of the screening
component, e.g., OHA, OAO, Branch XX, and the screener's phone number.
Retain the original screening sheet in the claim file. OHA Headquarters
components will send a copy of the screening sheet to:
Office of Appellate Operations
One Skyline Tower, Suite 701
Attn: OAO Class Action Coordinator
[The Class Action Coordinator will enter the screening sheet
information from the screening sheet into a data base and forward the
screening sheet to the Division of Litigation Analysis and Implementation
(DLAI).]
OHA Hearing Office (HO) components will send a copy of the screening sheet
to:
Office of Hearings and Appeals
Division of Litigation Analysis and
Implementation
Office of Policy, Planning and Evaluation
One
Skyline Tower, Suite 702
5107 Leesburg Pike
Falls Church, VA
22041-3200
Attn: Day Coordinator
[DLAI will retain a copy of each screening sheet received from the OAO
Class Action Coordinator or an HO and forward a copy to the Litigation
Staff at SSA Headquarters for entry into the Civil Action Tracking
System.]
Follow HALLEX I-5-4-53,
V. B. 3. b.
Processing Non-class Member Determinations
Check the “Nonmember/Member Not Entitled to Relief” block in
item 6. a. of the screening sheet and enter the screen-out code in item 6.
b.
Follow items b. - d. above.
Prepare and issue the “Non-Class Membership Notice.” Retain a
copy of it in the folder, and mail a copy to the
Day class counsel and claimant's representative,
if any. Forward the claim file(s) as indicated in HALLEX
I-5-4-53, V. B. 3. a.
REMARKS
Day Case
OHA received the attached alert [and prior claim file(s)] for
screening and no longer has the current claim file. Our records show that
you now have possession of the current claim. Accordingly, we are
forwarding the alert and any accompanying prior claim file(s) for
association with the current claim. After associating the alert with the
current claim, please forward to ODIO for screening. SEE POMS
DI 12576.020A.1. or DI 42576.005.4.
DO NOT use this form as a RECORD of approvals, concurrences, disposals,
clearances, and similar actions.
Day Class Action Case
READJUDICATION NECESSARY
This claimant is a Day class member. After
expiration of the retention period, forward claim file(s) to the BDD for
readjudication.
[Send folders to the BDD.]
If the claimant has filed a civil action and elected to remain in court
for review of the current claim, forward the Day
claim file(s) without delay to the BDD for readjudication.
We are writing to tell you that we received your request to review your
earlier claim for disability benefits under the Day
v. Chater court decision. We have looked at your case and have
decided that you are not a class member entitled to relief. This means
that we will not review our earlier decision. The reason that you are not
a class member entitled to relief under the Day
court order is checked below.
You Are Not A Day Class Member Because:
We Are Not Deciding If You Were Disabled
It is important for you to know that we are not making a decision about
whether you were disabled at the time of your earlier claim. We are
deciding only that you are not a Day class
member.
If You Do Not Agree With This Determination
If you want us to review our determination that you are not entitled to
relief under the Day case, you may contact the
class attorney, who will answer your questions about class membership. If
the attorney thinks this determination is incorrect, he has 60 days from
the date of this letter to ask us to look at your case again. The name and
address of the attorney are:
John E. Schrider, Jr., Esq.
Legal Aid Society of Cincinnati
901 Elm
Street
Cincinnati, OH 45202
(513) 241-9400
If You Think You Are Disabled Now
If you think you are disabled now, you may file a new application. A new
application is not the same as asking us to review your claim under
Day. In the new application, you may not be able
to receive disability benefits for the period of time you asked for in
your prior claim. If you decide to file a new application, contact any
Social Security office.
If You Have Any Questions
If you have any questions, you may contact your Social Security office.
The address and phone number are printed at the top of this letter. If you
call or visit an office, please have this notice with you. It will help
us answer your questions. You may also contact your personal legal
representative, if you have one, or the Day class
attorney listed above.
Si usted no entiende esta carta, llévela a la Oficina de Seguro
Social arriba mencionada para que se la expliquen.
cc: John E. Schrider, Jr., Esq.
REMARKS
We have determined that this claimant is not a
Day class member. (See screening sheet and copy
of denial of class relief notice in the attached claim file(s).) As
requested, we are forwarding the file(s) for class counsel's review.
SEE POMS DI 12576.020A.2.
DO NOT use this form as a RECORD of approvals, concurrences, disposals,
clearances, and similar actions.
OPTIONAL FORM 41 (Rev. 7-76)
*U.S.GPO:1985-0-461-274/20020
Prescribed by GSA
FPMR
(41 CFR) 101-11.206
Text for Notice of Revised Class Membership Determination
In an earlier notice that we sent you, we said that you were not a class
member entitled to relief in the Day v. Chater
class action. Upon further review of the facts in your case, we have
decided that you are a class member entitled to relief. Therefore, we will
review your class member claim under the Day
Settlement Agreement.
We have many requests for review and it may take several months before we
look at your claim file. When we start the review, we may contact you for
any additional evidence or information that you may wish to submit.
If you have any questions, you may contact any Social Security office. If
you have someone helping you with your claim, you should contact him or
her. You or your representative may also contact the attorney in this
case:
John E. Schrider, Jr.
Legal Aid Society of Cincinnati
901 Elm
Street
Cincinnati, OH 45202
Tel.No. (513) 241-9400
If you call or visit a Social Security office, please have this notice
with you. It will help us answer your questions. Also, if you plan to
visit an office, you may call ahead to make an appointment. This will help
us serve you more quickly.
Si usted no entiende esta carta, llévela a la Oficina de Seguro
Social arriba mencionada para que se la expliquen.
cc: John E. Schrider, Jr.
Day Calss Action Case
READJUDICATION NECESSARY
This claimant is a Day class member. The attached
Day claim file was forwarded to this hearing
office for possible consolidation with a current claim.
Accordingly, we are forwarding the attached alert and prior claim file(s)
to your location for any necessary Day
readjudication action.
We are sending the alert and prior file(s) to:
On ____________, the claimant filed a request for review by the Appeals
Council on the issues raised by ((his/her) application
dated ____________.) OR (the Administrative Law Judge's
dismissal action.) The claimant has also been identified as a member
of the Day class action and is entitled to have
the final administrative denial of (his/her) application(s) dated
____________ readjudicated by the Bureau of Disability Determination
under the terms of the June 26, 1995 Order Approving Settlement.
Accordingly, the Appeals Council grants the claimant's request for review
and vacates the Administrative Law Judge's (decision/dismissal
action). Because the claimant is entitled to relief at the
reconsideration level under the Day class
action, the Council remands this case to the Bureau of Disability
Determination for reopening of the issues raised by the (dates of
applications) applications. The Bureau of Disability Determination
will issue one determination covering (both or all) claims. If
the Bureau of Disability Determination does not issue a fully favorable
determination, it will notify the claimant of the right to request a
hearing before an Administrative Law Judge.