HOME
SEVERE
Return to SEVERE Home Page

Return to HALLEX Table of Contents

HOME

HALLEX I-3-400

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division 3: Administrative Law Judge Hearings

Subject: Appeals Council Dismissals

Chapter: I-3-400

June 30, 1994

Current through June 1997

I-3-400 TABLE OF CONTENTS

> I-3-401 Bases for Dismissal of Request for Review

> I-3-402 Request for Review not Timely Filed

> I-3-403 Party Requests Dismissal

> I-3-404 Party Who Requested Review Dies

> I-3-405 No Right to Request Review

> I-3-420 Appeals Council Dismissal of Request for Hearing

> I-3-440 Release of Dismissal Order and Files

> I-3-450 Vacating a Dismissal of a Request for Review



HALLEX I-3-401

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division III: Appeals Court Review

Subject: Appeals Council Dismissals

Chapter: I-3-400

June 30, 1994

Current through June 1997

I-3-401 BASES FOR DISMISSAL OF REQUEST FOR REVIEW

Citations: > 20 CFR 404.932, 404.968, 404.969, 404.971, 404.973, 410.667, 416.1432, 416.1468, 416.1469, 416.1471, and 416.1473 > 42 CFR 405.724, 473.46 and 498.83

The Appeals Council may dismiss a request for review if:

- the party's request is not filed timely (see section > I-3-402);

- the party or parties to the hearing decision file a written request for dismissal (see section > I-3-403);

- the party to the decision dies and the record clearly shows that dismissal will not adversely affect another person who wishes to continue the action and, for title XVI benefits, there is no interim assistance reimbursement authorization in effect (see section > I-3-404); or

- the individual who filed the request is not a proper party or does not otherwise have a right to request review (see section > I-3-405).

In proceedings under 42 CFR Part 498, the Appeals Council may also dismiss a request for review pursuant to 498.83(b)(4).

When the Appeals Council dismisses a request for review, the party does not have the right to appeal the action to Federal court.


HALLEX I-3-402

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division III: Appeals Court Review

Subject: Appeals Council Dismissals

Chapter: I-3-400

June 30, 1994

Current through June 1997

I-3-402 REQUEST FOR REVIEW NOT TIMELY FILED

A. General

The Appeals Council may dismiss an untimely filed request for review. A request for review must be filed within 60 days of the date the claimant receives an ALJ's decision or dismissal or within any extension of time granted by the Council. See section > I-3-060, Filing of Request for Review.

B. Operating Procedure

1. General

The analyst must request an explanation for late filing, unless an explanation is already in the file.

2. Requesting Explanation for Untimely Filing

If the late request was filed by mail, the analyst will prepare letter 6-90-27 in the Appeals Text Guide. If the request was filed in person (i.e., at an FO), and the claimant is represented, telephone the representative to elicit the necessary information. If the request was filed in person, and the claimant is not represented, telephone the servicing FO, prepare letter 6-90-25 to the claimant, or prepare memorandum 6-90-26 to the FO, whichever the analyst believes would best expedite matters considering the circumstances in the case.

If follow-up is necessary, telephone the representative or field office, and prepare a report for the file to document the contact.

C. Preparing Recommendation to the Appeals Council

1. Good Cause Established for Untimely Filing

Consider the case on its merits. (See Chapter > I-3-100, Workup of Case by Analyst).

2. Good Cause for Untimely Filing Not Established

Complete Form HA-52 and Form HA-52A and explain in narrative form why good cause, as described in > 20 CFR 404.911 and 416.1411, does not exist and/or that the claimant or representative did not respond to the request for an explanation. Prepare an Appeals Council Dismissal Order. See Appeals Text Guide 6-80-10 to 6-80-12 (Untimely Request for Review of ALJ Decision) and 6-80-20 to 6-80-22 (Untimely Request for Review of ALJ Dismissal) for instructions on preparation of Appeals Council dismissal orders and disposition of any additional evidence received with the request for review.

HALLEX I-3-403

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division III: Appeals Court Review

Subject: Appeals Council Dismissals

Chapter: I-3-400

June 30, 1994

Current through June 1997

I-3-403 PARTY REQUESTS DISMISSAL

A. General

The Appeals Council may dismiss a request for review at the request of the claimant or his or her representative.

B. Operating Procedure

The claimant or representative must submit a written request for dismissal or withdrawal of the request for review. The file must clearly show that the claimant understands the effect of the request. Dismissal is discretionary with the Appeals Council.

1. Single Party

The party may state the reasons for voluntarily withdrawing the request for review in general terms or the reasons may be apparent from the nature of the case. Although the party does not have to provide specific reasons, the Appeals Council will consider dismissing the request for review only if the file indicates that the party understands the effect of the action and there is no indication of any improper influence on the party.

2. Multiple Parties

If more than one party requested review or is involved in the case, the Appeals Council must notify all parties of the request for withdrawal and that they must notify the Appeals Council of their consent or objection. The Appeals Council will not dismiss the request for review if any party objects to the action.

The Appeals Council will send written notice of its action on the request to the party who requested withdrawal and to the other parties.

C. Preparing Recommendation to the Appeals Council

1. One of the Other Parties Wishes to Continue the Appeal

Consider the case on its merits and include in your analysis your rationale for not recommending dismissal. (See > I-3-100, Workup of Case by Analyst.)

2. No Party Wishes to Continue the Appeal

Complete Form 4572 and explain in narrative form why it appears the claimant understands the effect of the request. Prepare an Appeals Council Dismissal Order. See Appeals Text Guide 6-80-40.



HALLEX I-3-404

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division III: Appeals Court Review

Subject: Appeals Council Dismissals

Chapter: I-3-400

June 30, 1994

Current through June 1997

I-3-404 PARTY WHO REQUESTED REVIEW DIES

A. General

The Appeals Council may dismiss a request for review if the party who files the request dies and certain other conditions are met.

B. Operating Procedure

1. Title II, Title XVIII and Black Lung

The Appeals Council may dismiss a request for review if the party who filed the request dies while the request is pending and the Council has no information to show that another person may be adversely affected by the ALJ decision or dismissal.

The Appeals Council will not dismiss the request for review if a substitute party shows that he or she may be adversely affected by the ALJ decision.

2. Title XVI

a. Dismissal Rules

The Appeals Council may dismiss a request for review when the supplemental security income (SSI) applicant or recipient dies if:

- there is no eligible spouse;

- there is no other surviving spouse or parent who could receive an underpayment and who wishes to pursue the request; and

- the applicant or recipient did not authorize interim assistance reimbursement (IAR) to a State pursuant to section 1631(g) of the Act.

b. Substitute Party

An eligible spouse, or other surviving spouse or parent who shows that he or she may potentially qualify to receive an underpayment due the deceased applicant or recipient, may pursue the request as a substitute party. See section 1631(b) of the Act regarding who may qualify to receive an underpayment.

c. Interim Assistance Reimbursement (IAR) Authorization

A State or a political subdivision may not pursue the claim of a deceased applicant or recipient as a substitute party. However, even if there is no qualified substitute party, the Appeals Council may not dismiss a request for review if there is an IAR authorization in effect, but will either grant or deny the request for review.

d. Medicaid Determinations After Death

Medicaid eligibility determinations often flow from SSI eligibility determinations. When the Social Security Administration is not required to issue an SSI eligibility determination or decision, Medicaid determinations, appeals and payments are the responsibility of the State. Even if there are unpaid medical expenses, the Appeals Council will dismiss a request for review 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 as specified above, wishes to pursue Medicaid eligibility, the survivor must contact the appropriate agency of the State which administers the Medicaid program.

C. Preparing Recommendation to the Appeals Council

1. A Proper Substitute Party Wishes to Continue the Appeal or IAR Was In Effect

Consider the case on its merits. (See Chapter > I-3-100, Workup of Case by Analyst).

2. No Proper Substitute Party Wishes to Continue the Appeal and NO IAR Was In Effect

Complete forms HA-52 and HA-52A. Explain in narrative form that there is no adversely affected individual (title II, XVIII and black lung). For title XVI cases, explain in narrative form that there is no party who could qualify to receive an underpayment and no indication of an IAR agreement in effect. Prepare an Appeals Council Dismissal Order. See Appeals Text Guide 6-80-42 to 6-80-44.

3. Substitute Party Development

If the analyst learns that the party who filed a request for review has died and cannot determine, either from the notice of death or from any information in the claim file, whether there is a substitute party, the analyst will:

- contact the representative, if any, for information on possible substitute parties, or

- if there is no representative, prepare a memo to the servicing field office and a draft appointment form (see Appeals Text Guide 6-90-23 and 6-90-24 (COR-23 and COR-24)).



HALLEX I-3-405

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division III: Appeals Court Review

Subject: Appeals Council Dismissals

Chapter: I-3-400

June 30, 1994

Current through June 1997

I-3-405 NO RIGHT TO REQUEST REVIEW

A. General

The Appeals Council may dismiss when:

- a request for review is filed by a person who is not a proper party;

- a request for review is filed before a hearing decision/dismissal is issued;

- a request for review form is erroneously prepared; and

- when the issue raised is unappealable.

B. Operating Procedure

1. No Proper Party

The Appeals Council may dismiss a request for review if the individual filing the request is not a proper party or does not otherwise have a right to request review. In most cases, a proper party is the person who received the hearing decision or dismissal; however, persons whose rights may be adversely affected by a decision may be parties to the case and thus have the right to file a request for review. (> 20 CFR 404.932 and 416.1432.)

Also, the following persons may file a request for review on behalf of a party:

- a duly appointed representative of a person who has a right to request review.

- an individual who may file an application for and pursue a claim on behalf of a minor child, a mentally incompetent individual, or one who is physically unable to sign his or her own request. (Note that a minor child or a person who is mentally incapable of filing on his or her own behalf is a party to the proceeding even if someone else is authorized to act on his or her behalf.)

- a person who may receive benefits due a deceased beneficiary or recipient.

2. No Hearing Decision or Dismissal Order Issued; No Intent to File Request for Review

The Appeals Council will dismiss the request for review if there has been no decision or dismissal order, except in the following circumstances:

- Premature HA-520s

Premature HA-520s may be filed on cases where hearing office action on a case has not been completed--e.g., no request for hearing has yet been filed. These HA-520s will not be entered in SSADARS but will be referred directly to the appropriate PRB by Docket and Files Branch (DFB). Corrective action will usually consist of a brief letter to the claimant/representative explaining that the form was completed in error and advising them of the actual status of the case. The claim file will not usually be in OHA Headquarters and the status of the case must be confirmed by telephone contact with the hearing office or other appropriate office.

- Request for Review Erroneously Prepared by DFB

Occasionally, a PRB may receive a case with an HA-520 prepared by DFB based on correspondence which did not actually constitute a request for review. These instances should be rare but when they do occur, the branch will need to advise the claimant and representative that the Form HA-520 was prepared in error.

AND

Just as important, complete a coding sheet advising DFB to delete the request for review from SSADARS.

- No Record in SSADARS

DFB will occasionally receive a request for review where the Social Security Number (SSN) is not active in SSADARS. There may be an error in the SSN or, when the claimant's case has not yet reached the hearing level, there is no record created on the case in SSADARS. When DFB is unable to find the correct SSN or otherwise determine the actual status of the claimant's case within five days, these HA-520s will be referred to the appropriate PRB for action.

The branch will contact the claimant's representative, the servicing field office or, if other contacts are unproductive, the claimant to verify the SSN and the status of the claimant's case. The branch will then proceed with whatever action is appropriate to process or otherwise clear the HA-520. If the request for review is legitimate, it should be returned to DFB with instructions to enter the request for review in the system, obtain the claim file and return to the branch for processing as soon as possible.

3. The Issue Raised Is Unappealable

Administrative actions that are not initial determinations, and therefore not appealable, are listed at > 20 CFR 404.903 and 416.1403.

C. Preparing Recommendation to the Appeals Council

1. If the request for review is filed by a proper party and is otherwise appropriate, proceed to consider the case on its merits (see Chapter > I-3-100, Workup of Case by Analyst).

2. Instructions for disposing of prematurely filed and erroneously completed requests for review are covered in I-3-405 B.2. above.

3. If the request for review was not filed by a proper party, the analyst will prepare a memorandum or analysis (no standard form required) explaining the relevant factors in the case; i.e., why there is no right to request review. The analyst will also prepare an appropriate dismissal order. See Appeals Text Guide 6-80-41.



HALLEX I-3-420

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division III: Appeals Court Review

Subject: Appeals Council Dismissals

Chapter: I-3-400

June 30, 1994

Current through June 1997

I-3-420 APPEALS COUNCIL DISMISSAL OF REQUEST FOR HEARING

A. General

The Appeals Council may dismiss a request for hearing for any reason it could have been dismissed by the ALJ under > 20 CFR 404.957 and 416.1457.

B. Operating Procedure

Procedural due process requires that in any case in which the Appeals Council grants review or takes own motion, and then decides to dismiss a request for hearing (for the same reason that the ALJ could have dismissed or for a different reason), the Council will send a "propose to find" letter giving the claimant/representative 20 days to submit arguments and/or evidence.

NOTE: If a title XVI claimant is in payment status, the Appeals Council must give Goldberg v. Kelly notice. See 6-30-39, SP 30.

C. Preparing Recommendation to the Appeals Council

1. Prepare a memorandum explaining the relevant factors in the case, (i.e., why the request for hearing should have been dismissed by the Administrative Law Judge). No standard form is required.

2. Prepare a "propose to find" letter as described in B. above.

D. Preparing Appeals Council Action Document

Consider any additional argument and/or evidence. If the proposed action is still appropriate, prepare an Appeals Council Dismissal Order. See Appeals Text Guide 6-80-30 to 6-80-32.



HALLEX I-3-440

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division III: Appeals Court Review

Subject: Appeals Council Dismissals

Chapter: I-3-400

June 30, 1994

Current through June 1997

I-3-440 RELEASE OF DISMISSAL ORDER AND FILES

The Appeals Council staff will mail the order of dismissal to a party at his or her last known address and will return the claim and appeals files to the branch which handled the case. The branch will retain the files in the mini-docket for the established retention period.



HALLEX I-3-450

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division III: Appeals Court Review

Subject: Appeals Council Dismissals

Chapter: I-3-400

June 30, 1994

Current through June 1997

I-3-450 VACATING A DISMISSAL OF A REQUEST FOR REVIEW

The dismissal of a request for review is binding unless the Appeals Council vacates the action. The Council will vacate its dismissal of a request for review if the Council receives evidence or documentation which establishes that the request for review should not have been dismissed. If the Council decides to vacate the dismissal and reinstate the request for review, it will usually incorporate this action in the denial notice, remand order or other action document which is then appropriate.



SEVERE
Return to SEVERE Home Page