HOME
SEVERE
Return to SEVERE Home Page

Return to HALLEX Table of Contents

HOME

HALLEX I-3-600

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division 3: Appeals Council Review

Subject: Grant Review and Own Motion

Chapter: I-3-600

November 15, 1994

Current through June 1997

I-3-600 GRANTING REQUEST FOR REVIEW -- GENERAL

When review of the record indicates that a recommendation to grant review is appropriate (see chapter > I-3-300), the analyst must determine whether the record is sufficient to support an Appeals Council decision or whether the case must be remanded for further administrative proceedings. If the record is complete, the following sections describe the notices required when the Council will issue a decision and the related appearance procedures.



HALLEX I-3-601

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division 3: Appeals Council Review

Subject: Grant Review and Own Motion

Chapter: I-3-600

November 15, 1994

Current through June 1997

I-3-601 NOTIFYING CLAIMANT OF GRANTING REQUEST FOR REVIEW

A. General

When the Appeals Council grants a request for review, it notifies the claimant and representative, if any, of the action before it issues its disposition.

EXCEPTION: The Appeals Council does not send prior notice of granting review when:

- it issues a fully favorable decision, because it would serve no useful purpose and would delay payment of benefits;

- it issues a remand order.

B. Grant Review Notices When Prior Notice Is Required

1. When the Appeals Council grants review to issue a less than fully favorable decision, the analyst will prepare for the Council's consideration a grant review notice to the claimant with a copy to the representative advising them of the Council's proposed findings.

2. The grant review notice provides the claimant a period of 20 days within which to submit any additional evidence or further written statement. The notice also advises that the claimant may request an appearance before the Appeals Council or, when non-procedural evidence is being proffered, may request that the case be remanded to an Administrative Law Judge. (See Appeals Text Guide 6-30-12 and 6-30-13.)

3. When the Appeals Council's proposed decision will require a new Psychiatric Review Technique Form (PRTF), a copy of the proposed PRTF (Form SSA-2506 BK), marked "Proposed" or "Draft," must accompany the grant review letter.

C. Disclosure of Evidence

1. The claimant has the right to see and examine the evidence that the Appeals Council proposes to admit into the record. Before the Council makes any additional evidence part of the record, the Council must disclose the evidence to the claimant, allow the claimant the opportunity to examine the evidence, comment on it, and refute it by submitting other evidence.

2. The Appeals Council may proffer evidence directly to an unrepresented claimant unless the evidence includes a medical report containing language which may be offensive or detrimental to the claimant's health. If an analyst believes that a medical report contains such language, the analyst must discuss the matter with the branch chief.

3. See Appeals Text Guide Chapter 6-30 for appropriate language and stored paragraphs for use with Appeals Council grant review, own motion and reopening notices.

D. Typing and Proofreading

To prepare the case for release to the Appeals Council, the analyst must:

1. Forward the case to the typist for preparation of the grant review notice; and

2. Proofread the typed document. If it is accurate, forward the file with the grant review notice and analysis to the Appeals Council for consideration.



HALLEX I-3-602

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division 3: Appeals Council Review

Subject: Grant Review and Own Motion

Chapter: I-3-600

November 15, 1994

Current through June 1997

I-3-602 ADMINISTRATIVE APPEALS JUDGE'S ACTIONS

A. Upon receipt of the analyst's recommendation, the Administrative Appeals Judge (AAJ) will review the proposed action and may:

- return the case to the analyst for further analysis, revision, or preparation of a different action; or

- approve the recommendation, sign the grant review notice, and forward the case to the "B" AAJ for consideration.

B. If both AAJs agree with the analyst's recommendation, the Appeals Council's staff will release the grant review notice and return the case to the analyst to await a response from the claimant.



HALLEX I-3-603

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division 3: Appeals Council Review

Subject: Grant Review and Own Motion

Chapter: I-3-600

November 15, 1994

Current through June 1997

I-3-603 REQUEST FOR APPEARANCE

Citations: > 20 CFR 404.976, 410.663, 416.1476, and 422.205, > 42 CFR 405.724, 473.46 and 498.85

A. Title II, Title IV, Title XI, Title XVI, Title XVIII (Entitlement and Amount in Controversy Cases)

1. General

When the Appeals Council grants a request for review or reviews an ALJ decision or order of dismissal on its own motion and gives prior notice of this action, the Council notifies the claimant and representative that they may request an appearance to present oral argument.

NOTE: When a party to a case involving participation in the Medicare Program requests an appearance, see the instructions in I-3-603 B. For all other cases, the instructions in this section (I-3-603 A.) apply.

The Appeals Council may grant or deny a request for an appearance. It will grant a request for an appearance if it determines that:

- a significant question of law or policy is presented, or

- oral argument would benefit the Appeals Council in rendering a sound decision in the case.

2. Analyst Recommends Fully Favorable Decision

If, after receiving a request for an appearance in response to a grant review notice, the analyst believes the record supports a fully favorable decision, the analyst will draft the decision. The decision will address the request for an appearance as follows: "The claimant requested an appearance before the Appeals Council to present oral argument. Because the decision of the Council is fully favorable, an appearance would serve no useful purpose."

3. Recommendation to Deny Request for Appearance

If the record is complete and there is no question of law or policy on which oral argument would be beneficial to the Appeals Council in reaching a proper decision, the analyst will draft a letter notifying the claimant and representative that the Council denies the request. The letter will explain the basis for the action and furnish an opportunity to present arguments in writing. (See Appeals Text Guide 6-90-20.)

After the Appeals Council approves and releases the letter, the analyst will diary the case for 30 days awaiting written arguments from the claimant.

a. Claimant or Representative Submits Written Statement and/or Additional Evidence: Fully Favorable Decision Recommended

If the analyst believes that the record now supports a fully favorable decision, the analyst will draft the decision for the consideration of the Appeals Council. The decision will refer to the request for an appearance, its denial by the Council, and the receipt of the written statement and/or additional evidence. The statement and any evidence submitted by the claimant shall be introduced into the record in the usual manner.

b. Claimant or Representative Submits Written Statement and/or Additional Evidence: Less than Fully Favorable Decision Recommended

If the analyst recommends either a partially favorable or denial decision, the decision must contain language stating that the claimant's request for an appearance was not granted because the Appeals Council concluded that no significant question of law or policy was presented and that oral argument would not be beneficial in rendering a proper decision. The statement and any additional evidence submitted by the claimant will be introduced into the record in the usual manner.

c. Claimant or Representative Do Not Respond

After the diary period expires, the analyst will draft an appropriate decision for the Appeals Council's consideration. If any argument or additional evidence is received after the Council issues its decision, the analyst will handle the material in accordance with the reopening and revision procedures. (See > I-3-900.)

4. Recommendation to Grant Request for Appearance

If the record of the case is complete and the claimant has requested an appearance, the analyst may conclude that a significant question of law or policy is presented and/or oral argument would be beneficial to reach a proper decision. The analyst will prepare a memorandum updating any prior analysis of the case, as necessary, and recommend granting the request for an appearance.

a. Appeals Council Does Not Agree with Recommendation

If the Appeals Council concludes that an appearance is not warranted, it will return the case to the analyst for further action as in I-3-603 A.3. above (denial of request for appearance).

b. Appeals Council Agrees with Recommendation

If the Appeals Council agrees with the recommendation to grant the request for an appearance, the "A" AAJ will instruct the appeals technician to refer the case to the office of the Deputy Chair for designation of the appearance panel and location of the appearance.

- Location of Appearance Before Appeals Council.

The Appeals Council will designate a location for the appearance considering convenience to the claimant and administrative feasibility (see 422.205(b) of Regulations No. 22). SSA will reimburse the claimant and representative, if any, for travel to and from the appearance site. SSA will not reimburse expenses of witnesses because the purpose of the appearance is for oral argument, not for testimony.

- Composition of the Appearance Panel

Section 422.205(b) of Regulations No. 22 specifies (1) that appearances will be conducted by a panel of not less than three AAJs of the Appeals Council designated in the manner prescribed by the Chair or Deputy Chair, and (2) that concurrence of a majority will constitute the Appeals Council decision. The Chair of the Appeals Council may designate an ALJ to serve as an AAJ of the Appeals Council panel. The Chair will not designate an ALJ who was previously involved in the case under review. (See section 422.205(f).)

The Chair or Deputy Chair will designate the AAJs to serve on the appearance panel based on the circumstances of each case. If an AAJ of the panel cannot attend, the Chair or Deputy Chair will designate a new AAJ to serve.

- Scheduling the Appearance

After the panel AAJs and the location for the appearance have been designated, the Administrative Officer
will make arrangements for the appearance at the designated site, and ensure a recorder is available.

The Administrative Officer will forward information about the appearance and the files to the office of the AAJ serving as chair of the panel. The panel chair's appeals technician will prepare and send a letter to the claimant and representative advising them of the date, time and place set for the appearance. The Appeals Council will send the notification at least 20 days before the date of the scheduled appearance. The appeals technician will then return the case to the appropriate branch which will establish a diary for call-up 13 days prior to the scheduled date of the appearance, unless special circumstances require otherwise.

5. Responsibilities and Actions of the Analyst and Appeals Technician Before the Appearance

- Additional Evidence Received

If the claimant or representative submits additional evidence after the Appeals Council has scheduled an appearance, the analyst will prepare a memorandum to the panel chair, summarizing this evidence and updating the prior analysis of the case. The analyst will hand-carry the memorandum and the case to the panel chair with prominent notation "Appearance Set (Date)" in red at the top of the memorandum.

- No Additional Evidence Received

The analyst will return the case to the panel chair 12 calendar days before the appearance date, with copies of all case analyses and memoranda for each AAJ of the panel. The analyst will also prepare a list (with a copy for each AAJ of the panel, the individual who will record the proceedings, and the claimant or representative) identifying any new documentary evidence to be admitted including any new evidence submitted by the claimant or representative after the issuance of the ALJ's decision. The panel chair's appeals technician will distribute these materials to the designated AAJs of the appearance panel. The panel AAJs will advise the analyst whether to attend the appearance.

6. Conduct of the Proceedings in Which the Party Appears to Present Oral Arguments Before the Appeals Council

The panel chair receives relevant evidence into the record and takes the lead in questioning. The other AAJs may ask questions as they desire. The claimant or the representative may argue the merits of the case. The recorder makes a record of the proceedings. The panel will decide whether to prepare a transcript.

After the appearance, the panel will reach a conclusion. Concurrence of a majority of the panel will constitute the Appeals Council decision. The agreeing panel AAJs present at the appearance must sign the decision. The name of an AAJ who does not agree with the panel's action will not appear on the decision.


B. Cases that Affect Participation in the Medicare Program (42 CFR 498)

1. General

Health Insurance (HI) cases involving participation in the Medicare program have several unique features which distinguish them from other types of cases. The appeals are adversarial in nature with party status afforded to the practitioner, supplier, or facility, as well as either the Health Care Financing Administration or the Office of the Inspector General. Also, pursuant to > 42 CFR 498.83, the Appeals Council must grant a request for review filed by the affected party. When the Appeals Council grants a request for review, the Council advises the parties that they may request an appearance before the Appeals Council to present evidence or oral argument. If one or both of the parties request an appearance, the Appeals Council will schedule the appearance.

2. Composition of Appeals Council Panel

The regulations require that, if the Appeals Council grants a request for review in a case involving program participation, the review will be conducted by a panel of at least two AAJs of the Council, as well as an ad hoc Member from the U.S. Public Health Service (> 42 CFR 498.83(d)). The three AAJs of the panel stand as equals in the deliberations and decision.

3. Procedures

The following procedures apply to consideration of a case involving program participation:

a. The HI analyst will simultaneously forward copies of all analyses to each AAJ of the panel.

b. The analyst must invite each panel AAJ to any discussions involving substantive matters. As the ad hoc Member is not located at OHA Headquarters, the ad hoc Member may choose to be informed of such deliberations by telephone or written report and offer comments or suggestions afterward.

c. All requests for an analyst to attend a meeting should be directed through the HI branch chief.

4. Appearance

The procedures regarding an appearance in a case involving participation in the Medicare program are essentially the same as in all other cases. (See I-3-603 A.)



HALLEX I-3-650

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division 3: Appeals Council Review

Subject: Grant Review and Own Motion

Chapter: I-3-600

November 15, 1994

Current through June 1997

I-3-650 OWN MOTION REVIEW -- GENERAL

Citations: > 20 CFR 404.969, 416.1469 > 42 CFR 405.701 and 405.724

A. General

The Appeals Council may review an ALJ's decision or order of dismissal on its own motion within 60 days after the date of notice of the ALJ's action. The Council may review a decision on its own motion for the same reasons it may grant a request for review. (See > I-3-301 ff.) The Council will not ordinarily review a case on its own motion when the end result would remain unchanged unless there is a compelling reason to do so.

B. Cases Considered for Own Motion Review

The Appeals Council considers for own motion review a random sample of unappealed title II disability decisions and dismissals and decisions referred by effectuating components.

- The Office of Disability and International Operations refers a national random sample of favorable ALJ title II disability decisions to OAO. After analyzing the case, an analyst may approve effectuation of the decision or refer the case to the Appeals Council recommending own motion review. OHA also selects a random sample of unappealed affirmations and dismissals for consideration of own motion review.

- An effectuating component of SSA may question an ALJ or Appeals Council decision or may refer the case to OHA for consideration of additional evidence.

When a substantive protest memorandum is received within 60 days, the analyst will consider whether to refer the case to the Appeals Council with a recommendation for own motion review.



HALLEX I-3-651

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division 3: Appeals Council Review

Subject: Grant Review and Own Motion

Chapter: I-3-600

November 15, 1994

Current through June 1997

I-3-651 NOTIFYING CLAIMANT OF OWN MOTION REVIEW

A. General

When the Appeals Council reviews an ALJ's action on its own motion, procedural due process requires that the Council give the claimant and representative, if any, notice of the review, the reasons for such action, and an opportunity to submit additional evidence and written statements, before the Appeals Council issues its decision or remand order. The Council also provides an opportunity to request an appearance before the Council and where appropriate an opportunity to request further consideration by an ALJ.

B. Prior Own Motion Notice Not Required

Prior notice is not required when the Appeals Council reviews a case on its own motion for the purpose of issuing a fully favorable decision. Because the Council notifies the claimant of the own motion review in the decision, no purpose would be served by delaying the issuance of a fully favorable decision.

C. Own Motion Notices

1. The analyst will prepare for the Appeals Council's consideration Forms HA-52 and HA-52A (Disability Case Fact Sheet and Disability Case Analysis and Recommendation) and a letter (i.e., own motion notice) to the claimant/representative advising them of the reasons for own motion review and of their rights.

2. Refer to Appeals Text Guide 6-30-20 through 6-30-24 for own motion notices and stored paragraphs SP 20 through SP 24, which may be completed or modified as necessary. In addition, see > I-3-655 for procedures to be followed in interim disability benefit ("8001") cases.

D. Typing and Proofreading

1. Forward the case to the typist for preparation of the own motion notice.

2. Proofread the typed document. If it is accurate, forward the file with the own motion notice and analysis to the Appeals Council for approval.



HALLEX I-3-652

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division 3: Appeals Council Review

Subject: Grant Review and Own Motion

Chapter: I-3-600

November 15, 1994

Current through June 1997

I-3-652 ADMINISTRATIVE APPEALS JUDGE'S ACTIONS

The AAJ will review the proposed action prepared by the analyst. The AAJ may return the case to the analyst for further analysis, revision, or preparation of a different action. If the AAJ approves the recommendation, he or she will forward the case to the "B" AAJ for consideration. If both AAJs agree with the analyst's recommendation, the Appeals Council will release the own motion notice and return the case to the analyst to await a response from the claimant.

If interim disability ("8001") benefits are potentially payable, the Council will forward the case to the Operations Management, Analysis and Coordination Staff (OMACS) in Room 1410. (See > I-3-655.)



HALLEX I-3-653

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division 3: Appeals Council Review

Subject: Grant Review and Own Motion

Chapter: I-3-600

November 15, 1994

Current through June 1997

I-3-653 RELEASING OWN MOTION NOTICE WITHIN PERIOD FOR INITIATING REVIEW

Regulations 404.969 and 416.1469 provide that the Appeals Council may decide to review an ALJ's decision or dismissal at any time within 60 days of the date of the ALJ's action. The Appeals Council's decision to review a decision is established by its notice of review.

The analyst must submit an own motion recommendation and notice to the Appeals Council within sufficient time for the Council to consider the case and release the notice within 60 days of the ALJ's decision or dismissal. The Council's staff will send the notice to the claimant, and a copy to the representative, by certified mail.

EXCEPTION: In First Circuit cases, the own motion review notice must be mailed by the 57th day. However, if it is between the 57th and 60th day and the ALJ's decision is clearly erroneous (e.g., lack of insured status, work activity, etc.), refer the case to the Appeals Council with the analysis and notice. The AAJs will decide whether to review the case on the Council's own motion.

Section 216(j) of the Act, which extends a deadline date falling on a nonwork day to the first full workday immediately following the deadline date, applies to provisions in the law and regulations which set a deadline date for taking certain actions. However, the Appeals Council does not invoke section 216(j) to extend the time period to take own motion. Accordingly, when the last day for taking own motion action falls on a Saturday, Sunday, legal holiday or on any other day all or part of which is declared to be a nonwork day for Federal employees by statute or Executive Order, the Appeals Council will not extend the deadline date for taking own motion review.



HALLEX I-3-654

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division 3: Appeals Council Review

Subject: Grant Review and Own Motion

Chapter: I-3-600

November 15, 1994

Current through June 1997

I-3-654 PROFFER OF PROTEST MEMORANDUM (REVISED 06/94)

An effectuating component may send a protest memorandum to OHA Headquarters questioning an ALJ's decision, thus requesting the Appeals Council to correct the decision. If the Council declines to assume jurisdiction, there is no need to proffer the memorandum. The Council will send a memorandum to the protesting component explaining the Appeals Council's action.

If the Appeals Council assumes jurisdiction, the Council will proffer the protest memorandum to the claimant and representative. See > I-3-140 F. concerning when to send a protest reply in such a situation.

See > I-3-140 for a complete discussion of protest cases and see 6-90-30 through 6-90-36 of the Appeals Text Guide.



HALLEX I-3-655

Office of Hearings and Appeals

Social Security Administration (S.S.A.)

Department of Health and Human Services

Volume I

Division 3: Appeals Council Review

Subject: Grant Review and Own Motion

Chapter: I-3-600

November 15, 1994

Current through June 1997

I-3-655 INTERIM DISABILITY BENEFITS IN CASES OF DELAYED FINAL DECISIONS ("8001" CASES) (REVISED 06/94)

A. General

Pursuant to 8001 of Pub. L. No. 100-647 (the Technical and Miscellaneous Revenue Act of 1988) which amended 223 and 1631(a) of the Social Security Act to add 223(h) and 1631(a)(8), if an ALJ issues a favorable decision the Social Security Administration (SSA) will pay the claimant interim benefits under the circumstances described in B. below.

B. Payment of Interim Benefits

If an ALJ issues a favorable decision SSA will pay the claimant interim benefits if:

1. The ALJ has issued a decision finding that the claimant is disabled under title II or is disabled or blind under title XVI (or continues to be disabled under title II or disabled or blind under title XVI);

2. The Appeals Council has initiated review of the ALJ's decision on its own motion pursuant to 404.969 or 416.1469; or

3. The Appeals Council reopens the favorable ALJ's decision pursuant to 404.987 or 416.1487;

4. 110 days have elapsed after the date of the ALJ's decision; and

5. The Secretary has not issued a final decision.

C. When Interim Benefits Begin and End

1. When interim benefits begin

SSA will pay the claimant interim benefits under title II for months beginning with the month before the month in which the 110th day after the date of the ALJ's decision expires, and under title XVI for months beginning with the month in which the 110th day after the date of the ALJ's decision expires.

2. When interim benefits end

If SSA begins paying a claimant interim benefits, SSA will stop paying the interim benefits under title II in the month before the month in which the Secretary issues a final decision, and under title XVI in the month in which the Secretary issues a final decision.

D. Notice

We must include notice of this provision in Appeals Council remand orders and prepared-to-find letters whenever the Council reviews an ALJ decision covered by the provisions of 8001 on its own motion or reopens such a decision. Add the following language as the closing paragraph of both the remand orders and prepared-to-find letters:

Section 8001 of Pub. L. No. 100-647 requires the payment of interim benefits in certain cases in which an Administrative Law Judge issues a favorable decision and we do not issue a final decision within 110 days after the date of the Administrative Law Judge's decision. Because the Appeals Council has exercised its [(own motion review)(reopening)] authority in this case, interim benefits may be payable if we do not issue a final decision within 110 days after the date of the Administrative Law Judge's decision. You will receive interim benefits until we issue a final decision. Another Social Security Administration office will notify [(the claimant)(you)] at the appropriate time as to the amount and the effective dates of any interim payments.

E. Routing

Interim benefits, when required, begin with the month before the month in which the 110th day after the date of the ALJ's decision expires in title II cases, and begin with the month in which the 110th day after the date of the ALJ's decision expires in title XVI cases. Analysts will annotate in red ink the remarks section of the route slip forwarding an own motion or reopening recommendation to the Appeals Council, "POTENTIAL 8001 CASE - 110 DAYS [(WILL EXPIRE) (EXPIRED)] ON ______________."

In addition, the analyst will route the claim file and appeals file, or the appeals file only, if appropriate, to the Operations Management, Analysis and Coordination Staff (OMACS) in Room 1410, immediately after the Appeals Council releases its own motion or reopening notice. OMACS will set up controls and return the file(s) to the PRB. When appropriate, OMACS will request the effectuating components to initiate or terminate interim benefit payments.



SEVERE
Return to SEVERE Home Page