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HALLEX I-2-401

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division II: Administrative Law Judge Hearings

Subject: Dismissals

Chapter: I-2-400

June 30, 1994

Current through March 1997

I-2-401 DISMISSALS--GENERAL (REVISED 06/94)

Citations: > 20 CFR 404.911, > 404.941(d) and (e), and 404.957-404.960; 410.648-410.653; 416.1411, 416.1441(d) and (e), and 416.1457-416.1460 > 42 CFR 405.747, > 473.44, and 498.68-498.72

The regulations specify conditions under which an Administrative Law Judge (ALJ) may dismiss a request for hearing.

"Claimant," as used herein, refers to the party to the initial, reconsidered, or revised determination who has requested a hearing before an ALJ, and any other party to the determination.


HALLEX I-2-405

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division II: Administrative Law Judge Hearings

Subject: Dismissals

Chapter: I-2-400

June 30, 1994

Current through March 1997

I-2-405 DISMISSING A REQUEST FOR HEARING (REVISED 06/94)

A. Conditions for Dismissal

An ALJ may dismiss a request for hearing (RH) under any of the following conditions:

1. The claimant who requested the hearing did not make the request within the prescribed time period and the ALJ has not extended the time for requesting a hearing. (See > I-2-415, Hearing Request Not Timely Filed.)

2. The claimant who requested the hearing asks to withdraw the request and the ALJ has not mailed the notice of the hearing decision. (See > I-2-420, Dismissal at the Claimant's Request.)

3. Neither the claimant who requested the hearing nor the claimant's representative appeared at the time and place set for the hearing and the ALJ does not find "good cause" for the failure to appear. (See > I-2-425, Dismissal Due to Claimant's Failure to Appear.)

4. The claimant who requested a hearing has no right to a hearing. (See > I-2-430, Dismissal--No Right to a Hearing.)

5. The claimant who requested the hearing dies, there are no other claimants, and the record indicates that there is no other person who may be adversely affected by the determination to be reviewed at the hearing who wishes to pursue the request (e.g., in a title XVI case, if the claimant dies before SSA has paid all benefits due or before the claimant endorses the check for the correct payment, SSA may pay the amount due to the deceased claimant's surviving eligible spouse or to his or her surviving spouse who was living with the underpaid claimant within the meaning of 202(i) of the Act (see > 20 CFR 404.347) in the month he or she died or within 6 months immediately preceding the month of death, or if the deceased underpaid claimant was a disabled or blind child when the underpayment occurred, SSA may pay the amount due to the natural or adoptive parent(s) of the underpaid claimant who lived with the underpaid claimant in the month he or she died or within 6 months immediately preceding the month of death). (See > I-2-150, Death of Claimant; and > I-2-435, Dismissal Due to Death of a Claimant.)

6. The doctrine of res judicata applies. (See > I-2-440, Res Judicata.)

7. A fully favorable revised determination has been issued. (See > I-2-445, Favorable Revised Determination.)

8. In Medicare (title XVIII) and Peer Review Organization (PRO) appeals, the amount in controversy is less than the required amount. (See > I-2-450, Health Insurance Cases--Amount in Controversy.)

B. Order of Dismissal

When an ALJ dismisses a claimant's RH, he or she issues an Order of Dismissal and sends the order to the claimant at the claimant's last known address. Some of the dismissal forms available to the ALJ are preprinted forms which can also be converted for computer generation. Other dismissal forms appear in the Hearing Text Guide. The ALJ decides the type of form to use, depending on whether one of the preprinted forms is sufficient to fully inform the claimant of the basis for the dismissal, or whether special rationale is required.

1. Rationale required

The following preprinted forms and documents may be used for dismissal orders which require a rationale.

a. Blank orders

- Section p006 (macro 0016, entry g) of the Hearing Text Guide.

- Forms HA-515, Order to be Used for Other than Preprinted Order, and HA-518, Continuation Sheets for Hearing Decisions and Orders. Use Form HA-515 for the first page and Form HA-518 for the second and subsequent pages. Number the pages (except the first page) with Arabic numerals in the center of the page, and enter "DISMISSAL OF REQUEST FOR HEARING" immediately below the word "ORDER" on Form HA-515.

b. For a title II res judicata dismissal, use section p002 (macro 0016, entry c) of the Hearing Text Guide. (See > I-2-440, Res Judicata.)

c. For a title II and/or title XVI untimely request for hearing dismissal, use section p003 (macro 0016, entry d) of the Hearing Text Guide. (See > I-2-415, Hearing Request Not Timely Filed.)

d. For a title II and/or title XVI withdrawal of request for hearing dismissal, use section p004 (macro 0016, entry e) of the Hearing Text Guide. (See > I-2-420, Dismissal at the Claimant's Request.)

e. For a title II and/or title XVI failure to appear dismissal, use section p001 (macro 0016, entry b) of the Hearing Text Guide, Order of Dismissal, Failure to Appear. (See > I-2-425, Dismissal Due to Claimant's Failure to Appear.)

2. Rationale not required

The following preprinted forms may be used for dismissal orders which do not require a rationale:

a. When there has been a fully favorable revised determination, use Form HA-5272, Notice of Dismissal. (See > I-2-445, Favorable Revised Determination.)

b. When there has been no reconsideration in a title II or title XVIII case, use Form HA-5273, Order of Dismissal--No Reconsidered Determination. (See > I-2-430, No Right to a Hearing.)

c. When there has been no reconsideration in a title XVI case, use Form HA-5275-SI, Order of Dismissal--No Reconsidered Determination. (See > I-2-430, Dismissal--No Right to a Hearing.)


C. Transmitting the Order of Dismissal

Transmit the dismissal order using Form HA-L5021-U7, Notice of Dismissal. This notice informs the claimant of the right, within 60 days from the date the claimant receives the notice, to request Appeals Council review of the dismissal order.

D. Distributing Copies of the Order of Dismissal

Distribute copies of the dismissal order as indicated at the bottom of each copy. Use Form HA-5051 (Transmittal of Hearing Decision or Dismissal) to transmit copies of the dismissal order and claim file to the appropriate SSA components.

E. Documenting the Claim File

File the green "OHA PROCESS" copy and the white "CLAIMS FOLDER" copy inside the claim file on the left side, unless the dismissal is issued before the claim file is received. In that event, mail the green and white copies to the component that has the claim file for association with it.

F. Effect of an ALJ's Dismissal

The regulations provide that the dismissal of an RH is binding unless vacated by an ALJ or the Appeals Council. A dismissal action is not considered a final decision of the Secretary for purposes of filing a civil action.


HALLEX I-2-410

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division II: Administrative Law Judge Hearings

Subject: Dismissals

Chapter: I-2-400

June 30, 1994

Current through March 1997

I-2-410 VACATING AN ORDER OF DISMISSAL

A. Administrative Law Judge (ALJ) Authority and Jurisdiction

When a claimant requests an ALJ to vacate a dismissal order, the ALJ has the authority to consider the information and evidence, to request additional evidence, to verify the evidence, and to decide whether to grant the request and vacate the dismissal order. An ALJ may vacate a dismissal of a request for hearing (RH) if:

1. within 60 days after the date a claimant receives the dismissal notice, the claimant requests the ALJ to vacate the dismissal;

2. the claimant shows "good cause" why the ALJ should not have dismissed the RH; and

3. the Appeals Council does not have jurisdiction in the case.

NOTE: The Appeals Council has jurisdiction of a case if a claimant has requested the Appeals Council to review the order of dismissal or the Appeals Council is reviewing the dismissal on its own motion.

B. Determining "Good Cause" to Vacate an Order of Dismissal

There are no set criteria for determining what constitutes "good cause" to vacate an Order of Dismissal. Each reason a claimant gives for making the request must be considered on its own merit. Generally, "good cause" would be shown if the claimant shows that the premise on which the ALJ based the dismissal order was erroneous.

C. Forms for Vacating an Order of Dismissal

When vacating an Order of Dismissal, use Form HA-515, Order to be Used for Other than Preprinted Order, or modify p006 (macro 0016, entry g) of the Hearing Text Guide.

D. "Good Cause" to Vacate the Order of Dismissal Is Not Shown

If the ALJ concludes that "good cause" to vacate the dismissal order is not shown, the ALJ should:

1. advise the claimant by letter of the reasons for this conclusion;

2. advise the claimant that the ALJ's refusal to vacate the dismissal order is not subject to review by the Appeals Council; and

3. document the hearing office file by inserting the claimant's request and a copy of the ALJ's letter to the claimant, and forward copies of the correspondence for association with the claims file.

E. "Good Cause" to Vacate the Order of Dismissal is Shown

If the ALJ concludes that "good cause" to vacate the dismissal order is shown, the ALJ will vacate the dismissal order and proceed with the actions necessary to complete the record and issue a decision.



HALLEX I-2-415

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division II: Administrative Law Judge Hearings

Subject: Dismissals

Chapter: I-2-400

June 30, 1994

Current through March 1997

I-2-415 HEARING REQUEST NOT TIMELY FILED

A. What Constitutes Timely Filing

When a request for hearing (RH) is received in the Hearing Office (HO), the HO staff determines whether it was timely filed. (See > I-2-050, Timely Request for Hearing--Filing Requirements.)

B. When the RH Was Not Timely Filed--Determining Whether the Claimant had "Good Cause" for Untimely Filing

If an HO receives an untimely filed RH, an ALJ must determine whether the claimant had "good cause" for the untimely filing. (See > I-2-060, Good Cause for Late Filing.)

1. Good Cause is Shown

If the ALJ determines that the claimant had "good cause," the ALJ will proceed with the actions necessary to complete the record and issue a decision.

2. Insufficient Evidence to Determine Good Cause

If the ALJ finds that there is insufficient evidence or information to determine whether the claimant had "good cause," the ALJ may develop it (See > I-2-060 C., Development Procedures for Determining "Good Cause.") or elect to obtain it at a hearing on the issue of "good cause" for untimely filing.

3. "Good Cause" Not Shown

If the ALJ decides that the claimant did not have "good cause," the ALJ may dismiss the RH. The ALJ should:

a. use Form HA-515, Order to be Used for Other than Preprinted Order, or Hearing Text Guide section p003 (macro 0016, entry d) to produce the order; and

b. include in the dismissal order a complete rationale to explain why he or she has found that the claimant has not shown "good cause."



HALLEX I-2-420

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division II: Administrative Law Judge Hearings

Subject: Dismissals

Chapter: I-2-400

June 30, 1994

Current through March 1997

I-2-420 DISMISSAL AT THE CLAIMANT'S REQUEST

A. Claimant Voluntarily Withdraws Request for Hearing

An Administrative Law Judge (ALJ) may dismiss a request for hearing (RH), at the request of the claimant who filed the RH, at any time before mailing notice of the decision, if:

1. the claimant or the claimant's representative has submitted a written and signed request to withdraw the RH, or made such a request for withdrawal orally on the record at the hearing;

2. the record shows that the claimant understands the effects of withdrawal (i.e., that the ALJ will dismiss the RH and the dismissal will be binding unless it is vacated by the ALJ or the Appeals Council);

3. there are no other claimants (See > I-2-145, Parties to the Hearing, and the definition of "claimant" in > I-2-401.) who may be adversely affected by dismissal of the RH (See B., below.); and

4. the ALJ determines that dismissal is appropriate.

B. Another Claimant to the Hearing May Be Adversely Affected by Dismissal of the RH

If there is another claimant to the hearing who may be adversely affected by dismissal of the RH, the ALJ must notify the other claimant of the request to withdraw the RH, and offer the other claimant the opportunity to object. If the other claimant objects to the withdrawal, the ALJ must proceed with the actions necessary to complete the record and issue a decision.

C. Notice of the ALJ's Action

1. If the ALJ dismisses the RH:

a. send all claimants a copy of the dismissal order;

b. attach the claimant's signed request to the white "CLAIMS FOLDER" copy of the dismissal order; and

c. file the white "CLAIMS FOLDER" copy (with claimant's signed request attached) and the green "OHA PROCESS" copy on the inside of the claim folder on the left side. (See > I-2-405 E.)

If the ALJ does not dismiss the request for hearing, the ALJ will proceed with the actions necessary to complete the record and issue a decision.



HALLEX I-2-425

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division II: Administrative Law Judge Hearings

Subject: Dismissals

Chapter: I-2-400

June 30, 1994

Current through March 1997

I-2-425 DISMISSAL DUE TO CLAIMANT'S FAILURE TO APPEAR

A. Failure to Appear--General

An Administrative Law Judge (ALJ) may dismiss a request for hearing (RH) when neither the claimant who requested the hearing, nor the claimant's representative, appear at a scheduled hearing and do not show "good cause" for that failure.

B. Establishing "Good Cause" for Failing to Appear

To establish "good cause" for failure to attend a scheduled hearing, a claimant must show that neither the claimant nor the representative was properly notified of the scheduled hearing, or that an unexpected event occurred which did not provide them enough time, in advance of the scheduled hearing, to notify the ALJ and request a postponement. Therefore, before dismissing an RH for failure to appear, the ALJ must:

1. Determine if the claimant was properly notified of the time and place set for the hearing, e.g., determine whether the claimant or representative returned the acknowledgement form sent with the Notice of Hearing (See > I-2-320 C., Acknowledgement Form Not Returned.), or whether there is any other evidence which shows that they received the hearing notice.

- Find "good cause" for failure to appear if the claimant and representative allege that they were not properly notified of the scheduled hearing and there is no evidence to show that they received the hearing notice.

- Find that "good cause" has not been shown if the evidence shows that the claimant and representative received the hearing notice and they have not given any other reason for failing to appear at the scheduled hearing.

2. If the claimant and representative indicate that they received the hearing notice, but failed to appear at the scheduled hearing because of another reason, determine whether the other reason is sufficient to establish "good cause." (See > I-2-060, Good Cause for Late Filing.)

NOTE: If the evidence of record appears to support a fully favorable decision and thus the hearing may not be necessary, the ALJ should consider whether he or she can issue a fully favorable decision instead of dismissing the RH.

C. Notice to "Show Cause" for Failure to Appear

1. When a "Show Cause" Notice is Needed

If it is necessary to develop "good cause," send a form HA-L531, Notice to Show Cause for Failure to Appear, to the claimant and representative. Give them 10 days from the date of the notice to respond, and allow an additional 5 days for mailing time.

NOTE: Before dismissing a claimant's RH for failure to appear, the ALJ must ensure that the claimant fully understood the possible consequences of his or her failure to appear.

2. When a "Show Cause" Notice is not Needed

If neither the claimant nor the representative appears at the scheduled hearing, the ALJ may dismiss the RH without sending a show cause notice if:

a. the record shows that the claimant was notified that the RH could be dismissed without further notice if neither the claimant nor the representative appear at the scheduled hearing (See > I-2-390, Sample 1, Reminder to Return Acknowledgement Card.) and there is no indication of "good cause;" or

b. the claimant's whereabouts are unknown (e.g., the Notice of Hearing is returned to the HO as undeliverable, all attempts to contact the claimant by other means are unsuccessful, and it is concluded that the claimant cannot be located). However, before dismissing an RH because the claimant's whereabouts are unknown:

- check the Social Security Administration Data Acquisition and Retrieval System (SSADARS) for the claimant's latest address and ensure that the latest address was correctly used on the Notice of Hearing and in all other attempts to contact the claimant; and

- ensure that all attempts to contact the claimant are clearly documented in the claim file. For example, document the claim file with any envelopes returned by the post office as undeliverable and reports of any statements made by individuals regarding the absence or disappearance of the claimant.

NOTE 1: A show cause order cannot be used as an alternative to following proper notice procedures, unless there is evidence establishing that notice was actually received. (See > I-2-315, Notice of Hearing, and > I-2-320, Acknowledgement of Notice of Hearing.)

NOTE 2: Even if you are unable to locate the claimant, do not dismiss the RH until after the time scheduled for the hearing. The claimant may learn of the scheduled hearing in another way and appear. If the claimant does not appear at the scheduled hearing, dismiss the RH. In the dismissal order, describe all efforts to contact the claimant.


D. Claimant's Representative Appears at Hearing Without the Claimant

If a claimant's representative appears at a scheduled hearing without the claimant, the ALJ must determine whether the claimant is an essential witness for a proper determination of the case.

1. If the claimant is not considered to be an essential witness, the ALJ should proceed with the hearing and issue a decision.

2. If an ALJ determines the claimant is an essential witness, the ALJ should offer to postpone the hearing so that the claimant may appear. If the representative declines the offer, the ALJ must document the record that the offer was made and proceed with the actions necessary to complete the record and issue a decision.

NOTE: If a representative appears at a scheduled hearing without the claimant, dismissal is not appropriate even if the ALJ has determined that the claimant is an essential witness.

E. Claimant Requests Change in the Time or Place of the Hearing.

If a claimant or representative requests the ALJ to change the time or place set for the hearing, the ALJ will consider whether the claimant or representative has good cause for requesting the change. If the ALJ finds that the person requesting the change does not have good cause, the ALJ must notify the person of his or her finding. If the ALJ notifies the person of his or her finding, and neither the claimant nor the representative appears at the time and place set for the hearing, the ALJ may dismiss the RH for failure to appear.

F. Claimant Waived Right to Oral Hearing--ALJ Nevertheless Scheduled Hearing

The ALJ may not dismiss an RH for failure to appear if the claimant waived the right to an oral hearing and the ALJ nevertheless scheduled a hearing. In this situation, the ALJ must decide the case on the evidence of record.

G. Failure to Appear on Time for Scheduled Hearing

An ALJ may dismiss an RH on the basis of failure to appear if the claimant or representative fail to appear on time for the hearing, and the ALJ decides that good cause does not exist for such failure.



HALLEX I-2-430

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division II: Administrative Law Judge Hearings

Subject: Dismissals

Chapter: I-2-400

June 30, 1994

Current through March 1997

I-2-430 DISMISSAL--NO RIGHT TO A HEARING (REVISED 06/94)

The Administrative Law Judge (ALJ) may dismiss a request for hearing (RH) if it was not filed by a proper claimant or there is otherwise no right to a hearing.

A. Proper Claimant (See > I-2-145, Parties to the Hearing.)

Generally, the ALJ will consider an RH to have been filed by a "proper claimant" if it was filed by:

1. a claimant to the initial, reconsideration or revised determinations;

2. an individual who was not a claimant to the initial, reconsideration or revised determinations, but who shows in writing that his or her rights may be adversely affected;

3. a duly appointed representative on behalf of a proper claimant; or

4. an individual who has filed an application for and pursued a claim on behalf of a proper claimant because that claimant is a minor child, mentally incompetent or physically unable to file a request for hearing.

B. Actions Which Must Precede a Right to a Hearing

A claimant has a right to a hearing if the claimant has received:

1. notice of a reconsideration or revised reconsideration determination; notice of revised initial determination in non-disability cases; or an ALJ's notice of proposed revised decision based on new evidence in title II, title XVI, title XVIII cases, or certain black lung benefits claims under the Federal Mine Safety and Health Act of 1977; or

2. an initial determination on the issue of waiver of overpayment if the field office (FO) is unable to conduct the personal conference or the claimant declines the personal conference to request an ALJ hearing in a combined overpayment reconsideration or waiver situation.

NOTE 1: When an ALJ determines that the claimant has not exhausted all earlier administrative procedures (i.e., the claimant has not received the required initial and reconsidered or revised determinations), the ALJ must find that the claimant does not have the right to a hearing and dismiss the request for hearing.

NOTE 2: If a request for hearing includes or is based on issues for which the Social Security Administration (SSA) does not have jurisdiction, e.g., issues which are within the Jurisdiction of a State agency (See > I-2-210, Notice of Issues.) or the Internal Revenue Service (See > I-2-235 Earnings Related Issues the Administrative Law Judge May and May Not Address--Jurisdiction.), the ALJ must rule on the issues for which SSA has jurisdiction, and dismiss the request for hearing with respect to the issues for which SSA does not have jurisdiction.

C. Dismissal Orders

1. Use Form HA-5273, Order of Dismissal--No Reconsideration Determination, for the dismissal order when there has been no reconsideration in a title II or title XVIII case.

2. Use Form HA-5275-SI, Order of Dismissal--No Reconsideration Determination, for the dismissal order when there has been no reconsideration in a title XVI initial (as opposed to cessation) claim.

In other cases, use Form HA-515, Order to be Used for Other than Preprinted Order, or the blank order provided in section p006 of the Hearing Text Guide (macro 0016, entry g). Exercise care to include the appropriate facts, pertinent statutory and regulatory authority, and supporting rationale.



HALLEX I-2-435

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division II: Administrative Law Judge Hearings

Subject: Dismissals

Chapter: I-2-400

June 30, 1994

Current through March 1997

I-2-435 DISMISSAL DUE TO DEATH OF A CLAIMANT (REVISED 06/94)

Different criteria must be considered in title II, title XVI, title XVIII, and Black Lung cases when deciding whether to dismiss a request for hearing (RH) because the claimant who filed the request for hearing has died.

A. Title II, Title XVIII, and Black Lung Cases

1. The ALJ will dismiss the RH when the claimant who filed the RH dies while the request is still pending before the ALJ, if:

- the case was not remanded by a Federal court, and

- there is no other claimant who may be adversely affected by the determination which is the subject of the RH, or

- such a claimant exists, but the claimant has stated in writing that he or she does not want to pursue the claim.

NOTE 1: An ALJ may not dismiss an RH in any case remanded by a Federal court. The regulations at > 20 CFR 404.983 and > 416.1483 state that when a Federal court remands a case to the Secretary for further consideration, the Appeals Council, acting on behalf of the Secretary, may make a decision, or it may remand the case to an ALJ with instructions to take action and issue a decision or return the case to the Appeals Council with a recommended decision. (See > I-2-815, Recommended Decisions; > I-2-818, Administrative Law Judge Decisions in Court Remand Cases; and > I-2-837, Decision When Claimant Dies.)

NOTE 2: The ALJ will vacate a dismissal if, within 60 days after the date of the dismissal, another person submits a written request for a hearing on the claim and shows that he or she may be adversely affected by the determination that was to be reviewed at the hearing.

2. The ALJ will not dismiss the RH if the claimant who filed the RH dies while the case is pending before the ALJ and after the record has been completed. In this situation, the ALJ will issue a decision. (See > I-2-837, Decision When Claimant Dies.)

B. Title XVI Cases

1. The ALJ will dismiss the RH when the claimant who filed the RH dies while the request is still pending before the ALJ, if:

- the case was not remanded by a Federal court (See Note 1, above.);

- there are no other claimants;

- there is no information in the record which shows that there is another person who may be adversely affected by the determination being reviewed (e.g., in a title XVI case, if the claimant dies before SSA has paid all benefits due or before the claimant endorses the check for the correct payment, SSA may pay the amount due to the deceased claimant's surviving eligible spouse or to his or her surviving spouse who was living with the underpaid claimant within the meaning of 202(i) of the Act (see > 20 CFR 404.347) in the month he or she died or within 6 months immediately preceding the month of death, or if the deceased underpaid claimant was a disabled or blind child when the underpayment occurred, SSA may pay the amount due to the natural or adoptive parent(s) of the underpaid claimant who lived with the underpaid claimant in the month he or she died or within 6 months immediately preceding the month of death), who wishes to pursue the claim; and

- the claimant did not authorize interim assistance reimbursement (IAR) pursuant to section 1631(g) of the Act.

NOTE 1: The ALJ will vacate a dismissal if, within 60 days after the date of the dismissal, a person claiming to be the claimant's survivor, who may be paid benefits due to the claimant under > 20 CFR 416.542(b), submits a written request for a hearing, and shows that a decision on the issues that were to be considered at the hearing may adversely affect him or her.

NOTE 2: An eligible spouse or other surviving spouse or parent who shows that he or she may potentially qualify to receive an underpayment may pursue the request as a substitute party. > 20 CFR 416.542(b) specifies who may qualify to receive a Supplemental Security Income (SSI) underpayment.

2. When a deceased claimant authorized IAR to a State, the ALJ must issue a decision. (See > I-2-837, Decision When Claimant Dies.)

State Medicaid eligibility determinations under title XIX of the Act often flow from SSI eligibility determinations. When the Social Security Administration (SSA) is not required to issue an SSI eligibility determination or decision because the claimant who filed the application has died, e.g., there is no substitute party and there is no IAR in effect, Medicaid determinations, appeals and payments are the responsibility of the State. Even if there are unpaid medical expenses, the ALJ will dismiss an RH if there is no information showing the existence of a person who may pursue the SSI claim as a substitute party and there is no IAR in effect. If a survivor, who is not a qualified substitute party, wishes to pursue Medicaid eligibility, the survivor must contact the appropriate agency of the State which administers the Medicaid program.



HALLEX I-2-440

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division II: Administrative Law Judge Hearings

Subject: Dismissals

Chapter: I-2-400

June 30, 1994

Current through March 1997

I-2-440 RES JUDICATA

A. General

Under the doctrine of res judicata, an ALJ may dismiss a request for hearing (RH) when SSA has previously rendered a final and binding decision and the facts and the issues in a subsequent claim are the same. For res judicata to apply, all of the following criteria must be present:

1. There has been a previous determination or decision by the Secretary with respect to the rights of the same party. (See D., below.)

2. The previous determination or decision was made under the same law and was based on the same facts pertinent to the same issue or issues. (See E. and F., below.)

3. The previous determination or decision has become final either by administrative or judicial action.

When the requisite conditions for finding res judicata are present, the ALJ must dismiss the RH. An exception to this requirement occurs when a subsequent application indicates that the period determined became final without a hearing or decision before an ALJ, and there is prima facie evidence that the claimant, who was pro se when the prior application was adjudicated, lacked the mental competence to understand the right and obligation to pursue an administrative appeal. In this instance, the ALJ must address and resolve in adjudicating the current claim (or in considering the request for reopening the prior claim under the terms of administrative finality), the issue of whether the claimant lacked the mental competence to pursue an appeal on the prior claim. The claimant bears the burden of producing evidence of incompetency.

If the ALJ considers the unrefuted prima facie evidence, and finds that the pro se claimant was not competent at the time of the prior determination, then the ALJ shall find that "good cause" exists for reopening the final determination on the prior application. Under the doctrine of administrative finality, the ALJ shall consider the request for reopening as an untimely filed RH, find "good cause" for the untimely filing, and provide the claimant with a full hearing on all the issues raised by the prior and subsequent claims.

If there is no prima facie evidence of mental incompetence and the ALJ concludes that the pro se claimant was mentally competent at the time of the prior determination (regardless of whether a hearing on the incompetence issue was held), the ALJ may not grant the request for reopening and must dismiss the RH on the current claim based on res judicata (except as noted below).

NOTE: In the Fourth Circuit, an adjudicator may not decline to find "good cause" to reopen a final determination or decision on a prior claim without first providing the claimant a separate on-the-record evidentiary hearing and decision on the issue of whether the claimant was mentally competent at the time of the prior determination or decision.

If, after such hearing, the ALJ finds that the claimant was not mentally competent at the time of the final determination or decision on the prior claim, the ALJ must: 1) issue a separate decision on the mental competency issue, and 2) provide the claimant a full hearing and decision on all issues raised by the prior and current claims. The ALJ may not dismiss the request for hearing on the basis of res judicata.

If, however, the ALJ finds that the claimant was mentally competent at the time of the final determination or decision on the prior claim, the ALJ must 1) issue a separate decision on the mental competency issue, and 2) and proceed with action on the request for hearing in the usual manner. The ALJ may dismiss the request for hearing on the basis of res judicata if the conditions for res judicata are met.

B. Res Judicata at Pre-ALJ Hearing Levels

If a claimant files a new application and SSA finds that res judicata applies because the application involves the same law, issues, facts and person(s) as a previously adjudicated application, SSA will not issue an initial determination on the merits of the new application or provide the right to reconsideration on the merits. However, SSA will provide the claimant appeal rights; i.e., the right to request reconsideration or an ALJ hearing on the issue of whether res judicata applies.

If, at the initial or reconsideration levels, the adjudicator determines that res judicata does not apply, the adjudicator will make or issue an initial determination on the merits of the new application and provide full appeal rights.

C. Partial Dismissal of an RH


The ALJ may dismiss an RH with respect to one or more issues on the basis of res judicata and still make or issue a decision on other issues. In such a case, the ALJ should issue a decision which also dismisses the request for hearing with respect to the previously adjudicated issues.

D. Rights of the Same Party--Substitute Parties

For res judicata to apply, the claim must involve the rights of the same party. Generally, when a subsequent application is filed, it is filed by the same individual that filed the original application. However, when the original party dies and there is a substitute party, problems may arise in determining whether res judicata applies.

1. If the substitute party is filing to receive an underpayment (all or part of the benefits the original party would have received had the claim been allowed), the rights of the same party are involved and the ALJ should dismiss the request for hearing in its entirety.

2. If another individual has a claim for benefits on his or her own right regardless of whether he or she is a substitute party, res judicata would be applicable with regard to an issue decided with respect to the original party.

Example: A wage earner filed a claim for retirement insurance benefits. The claim was denied because the wage earner did not meet the earnings requirements of the Act at or after the time he reached retirement age. No reconsideration was requested and the initial determination became final and binding. Subsequently, the wage earner died and the surviving widow filed a claim for widow's insurance benefits alleging that her deceased husband did meet the earnings requirements and that he was entitled to benefits. However, since the widow did not furnish any new and material evidence on the issue of her deceased husband's insured status, res judicata should be applied to that issue. Thus, the widow would be entitled to a decision on the merits regarding her own claim, but in the decision, the ALJ should state that the issue of her husband's insured status is dismissed on the basis of res judicata.

E. Same Material Facts--No New and Material Evidence

For res judicata to apply to any particular issue, the same material facts must be involved; i.e., the prior claim represented the same material facts pertinent to the particular issue. The term "same material facts" means, in effect, that no "new and material" evidence has been submitted since the last adjudication on the prior claim. If the claimant submits new and material evidence in connection with the current claim, the facts are not the same and res judicata would not apply.

1. In title II disability cases, the issue of disability is res judicata when:

a. the claimant's insured status expired before the date of the final determination or decision on the prior application; and

b. the claimant has submitted no new and material evidence relating to the previously adjudicated period.

2. In title II cases, if the claimant continues to have insured status after the end of the previously adjudicated period, the unadjudicated period presents a new issue, and the claimant is entitled to a hearing on that new issue.

a. In the Notice of Hearing, include a statement to explain that in the absence of new and material evidence relating to the previously adjudicated period, res judicata applies and the determination or decision on the prior application is final and binding on the issue of disability during the previously adjudicated period.

b. If there is no basis for reopening the final determination or decision on the prior application, the ALJ should issue a decision regarding the unadjudicated period, based on the current application, and include in the decision the following (or similar) findings which, in effect, dismiss the request for hearing regarding the previously adjudicated period:

- There is no new and material evidence or other basis for reopening the prior determination or decision.

- The prior determination or decision is final and binding on the issue of disability during the previously adjudicated period.

- The request for hearing on the issue of disability during the previously adjudicated period is dismissed.

3. In a title XVI cases involving disability, income or resources, the ALJ cannot dismiss a subsequent request for hearing in its entirety because there is always an unadjudicated period. The ALJ should:

a. dismiss the RH with respect to the issue of disability for any previously adjudicated period, and

b. issue a decision on the merits for the unadjudicated period.

F. Effect of a Subsequent Change in Statute, Regulation or Policy Interpretation on Applicability of Res Judicata

The ALJ may not use res judicata as the basis for dismissing an RH based on a current application when there has been a change in a statute, regulation, ruling or legal precedent which was applied in reaching the final determination or decision on the prior application. A new adjudicative standard exists and the issues cannot be considered the same as the issues in the prior case. The ALJ must issue a decision.


Example:

On August 28, 1985, SSA published regulations which established new medical criteria (listings) for adjudicating cases involving mental impairments. These regulations represented a change in how we determine the issue of whether or not the claimant is under a disability when a mental impairment is present. Therefore, the ALJ cannot apply the doctrine of res judicata in a title II case involving a mental impairment on which a prior final determination or decision was issued before August 28, 1985, even if no new facts are presented and even if insured status expired before the date of the prior final determination or decision. The ALJ must apply the new regulations (i.e., the regulations published on August 28, 1985) and issue a decision on the merits of the case.

NOTE 1: Although a change in the regulations precludes an ALJ from dismissing a request for hearing on the basis of res judicata, it does not change the rules on administrative finality. Payment of the claim would be based on the current application alone, unless the conditions for reopening an earlier claim are met.

NOTE 2: When there has been a change in the regulations, ALJs must apply the new regulations as if they always existed unless the new regulation specifically states otherwise. For example, the new regulations may state that they apply only to claims filed after a certain date.

G. Dismissal of an RH in its Entirety

When dismissing the RH in its entirety on the basis of res judicata, the ALJ must include in the Order of Dismissal the following:

1. The history of the prior application(s) and actions taken, including specific reference to the determination or decision that became final.

2. A paragraph stating that a determination or decision that has become final and binding may be reopened if:

a. new and material evidence is furnished,

b. there is a clerical error, or

c. there is error on the face of the evidence on which such determination or decision was based.

3. A list and description of any new evidence submitted in connection with the current application.

4. A paragraph which includes:

a. a statement as to why any new evidence is not material and does not warrant revision of the final determination or decision made on the prior application (i.e., the new evidence essentially duplicates prior evidence, refers to an impairment which did not exist at the time the claimant was last insured, or is merely cumulative, etc.),

b. a statement that there was no clerical error or error on the face of the evidence supporting the prior determination or decision, and

c. a statement concluding that, in view of the above, the final determination or decision made on the application of (provide date) may not be reopened.

5. A paragraph stating that an ALJ may dismiss a request for hearing if all three of the following conditions exist:

a. there has been a previous determination or decision by the Secretary with respect to the rights of the same party,

b. the previous determination or decision was based on the same facts pertinent to the same issue or issues, and

c. the previous determination or decision has become final by either administrative or judicial action.

H. When a Hearing Is Needed to Determine Whether There is New and Material Evidence

The ALJ may schedule a limited hearing if there is evidence that testimony from the claimant, the treating physician, or some other witness might constitute new and material evidence:

1. Include the following in the Notice of Hearing:

a. a reference to the prior application.

b. a statement that a hearing will be held to ascertain whether additional testimony will warrant revision of the prior determination or decision.

c. a statement that if the additional testimony does not warrant revision of the prior determination or decision, the current request for hearing will be dismissed on the basis of res judicata.

2. If, after the hearing, the ALJ finds that there is no new and material evidence or other basis for reopening the prior determination or decision, the ALJ should dismiss the request for a hearing and include in the dismissal order a discussion of the testimony at the hearing and the ALJ's rationale.



HALLEX I-2-445

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division II: Administrative Law Judge Hearings

Subject: Dismissals

Chapter: I-2-400

June 30, 1994

Current through March 1997

I-2-445 REVISED DETERMINATIONS

Occasionally, after a claimant files a request for hearing (RH) and before the Administrative Law Judge (ALJ) holds a hearing, the component that issued the appealed determination may issue a revised favorable determination.

A. Revised Determination is Fully Favorable

If the revised determination is fully favorable, the notice of the revised determination will give the claimant 30 days from the date of the notice to file a written request that the ALJ proceed with the RH.

When the hearing office (HO) receives notice of such a determination, the HO staff should:

1. Diary the case for 40 days. This will allow time for the HO to receive a request mailed by the claimant within the 30-day period specified in the notice.

2. If the HO does not receive a written request (to proceed with the RH) by the end of the 40-day period, the ALJ should presume that the claimant is satisfied with the fully favorable revised determination and dismiss the RH. The ALJ may use Form HA-5272, Notice of Dismissal.

B. Revised Determination is Partially Favorable or Unfavorable

If the revised determination is partially favorable or unfavorable:

1. The ALJ should notify all claimants that the hearing will be held unless all claimants agree to dismissal of the RH.

2. If any claimant does not agree to dismissal of the RH, the ALJ must proceed with the actions necessary to complete the record and issue a decision.

C. Dismissal of an RH Following a Revised Determination

When the ALJ dismisses an RH, the HO staff should send the Order of Dismissal and Form HA-5051 (Transmittal of Hearing Decision or Dismissal) to the address shown in section 2 of Form HA-5051.

D. Attorney Fees

If the HO receives a fee petition after another component issued a favorable revised determination and the ALJ dismissed the claimant's request for a hearing, the ALJ will take no action on the fee petition and the HO staff will send the fee petition to the office which is effectuating the award.



HALLEX I-2-450

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division II: Administrative Law Judge Hearings

Subject: Dismissals

Chapter: I-2-400

June 30, 1994

Current through March 1997

I-2-450 HEALTH INSURANCE CASES--AMOUNT IN CONTROVERSY

Citations: Social Security Act 1155, 1869(b)(2) and 1876(c)(5)(B) > 42 CFR 405.720, > 405.747, 473.40, and 473.44

A. General

In health insurance (HI) cases, the amount in controversy determines whether a claimant has a right to a hearing before an Administrative Law Judge (ALJ). In all HI cases, except those involving adversary proceedings and entitlement to Hospital Insurance Benefits (Part A) or Supplemental Medical Insurance Benefits (Part B), the claimant has a right to a hearing only if the amount in controversy requirements are met. In a Part A case, the amount in controversy after the reconsideration determination is controlling, rather than the amount initially at issue. In a Part B case, the amount in controversy after the carrier hearing is controlling, rather than the amount initially at issue.

B. Determining The Amount in Controversy

In determining the amount in controversy, include any actual charges to individuals, less any deductible or co-insurance amounts, or non-covered service charges. Also apply the following:

1. Include any amounts that are paid under waiver pursuant to section 1879(a), or effective February 1, 1983 pursuant to waiver under section 1879(e). These amounts are still in controversy even though the claimant is not liable.

2. In Peer Review Organization (PRO) cases, include any amounts that would have been charged if services had been rendered (denials of prospective admissions).

C. ALJ Determines That The amount in Controversy Requirements Are Not Met--Hearing Not Held.

If a request for hearing (RH) clearly shows that the amount in controversy is less than $100 (Part A), $200 (Peer Review Organization (PRO) cases), or $500 (Part B), the ALJ will dismiss the RH without holding a hearing.

D. ALJ Determines That The Amount in Controversy Requirements Are Not Met--Hearing Already Held

If the ALJ holds a hearing and subsequently finds that the amount in controversy is less than the required amount, the ALJ will dismiss the RH and not rule on the substantive issues involved in the appeal.

E. Additional Evidence Needed to Determine Whether The Amount in Controversy Requirements Are Met

If the ALJ cannot determine, based on the RH, whether the amount in controversy requirements are met, the ALJ will give the party 15 calendar days to submit evidence showing that the amount in controversy is at least $100, $200, or $500, as appropriate. When the additional evidence is received, the ALJ will evaluate the evidence to determine whether the amount in controversy requirements are met, and either dismiss the RH or schedule a hearing, as appropriate.



HALLEX I-2-455

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division II: Administrative Law Judge Hearings

Subject: Dismissals

Chapter: I-2-400

June 30, 1994

Current through March 1997

I-2-455 DISMISSAL RETURNED AS UNDELIVERABLE (ADDED 11/93)

When the Post Office returns a claimant's Notice of Dismissal and Order of Dismissal as undeliverable (e.g., the claimant moved and left no forwarding address), the Hearings Assistant or other designated person will:

1. telephone the claimant's representative, if any, or send a brief memorandum to the field office servicing the claimant's last known address requesting the claimant's new address;

2. prepare a new Notice of Dismissal, when the new address is known. Use the current date and language that informs the claimant the dismissal previously was undeliverable and that the time period for appeal begins with receipt of the new notice; and

3. transmit the dismissal, using the new notice, following usual procedures. (See > I-2-405 C., Transmitting the Order of Dismissal.)

If all attempts to obtain the claimant's new address are unsuccessful, forward the original undelivered envelope, the Notice of Dismissal, and the Order of Dismissal with documentation of all attempts to obtain the new address (e.g., copies of correspondence and reports of telephone contacts), to the appropriate location for association with the claim file. These documents may be helpful in determining the action to take if the claimant later inquires about the case.

If the Post Office returns the representative's copies of the Notice of Dismissal and the Order of Dismissal, send the copies to the claimant with a cover letter explaining that the Post Office returned the representative's copies as undeliverable.

Forward the original undelivered envelope and a copy of the cover letter to the appropriate location for association with the claim file. These documents may be helpful in determining the action to take if the representative later inquires about the case.


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