20 C.F.R. Subpart J—Determinations and the Administrative Review Process
Title 20 - Employees' Benefits
Authority: Secs. 702(a)(5) and 809 of the Social Security Act (42 U.S.C. 902(a)(5) and 1009).
Source: 69 FR 25955, May 10, 2004, unless otherwise noted.
(a) Explanation of the administrative review process. This subpart explains the procedures we follow in determining your appeal rights under title VIII of the Social Security Act. The regulations describe the process of administrative review and explain your right to judicial review after you have taken all the necessary administrative steps. The administrative review process consists of several steps, which usually must be requested within certain time periods and in the following order: (1) Initial determination. This is a determination we make about whether you qualify for and can become entitled to SVB or whether your SVB entitlement can continue. It can also be about any other matter, as discussed in §408.1003, that gives you a right to further review. (2) Reconsideration. If you are dissatisfied with an initial determination, you may ask us to reconsider it. (3) Hearing before an administrative law judge. If you are dissatisfied with the reconsideration determination, you may request a hearing before an administrative law judge. (4) Appeals Council review. If you are dissatisfied with the decision of the administrative law judge, you may request that the Appeals Council review the decision. (5) Federal court review. When you have completed the steps of the administrative review process listed in paragraphs (a)(1) through (a)(4) of this section, we will have made our final decision. If you are dissatisfied with our final decision, you may request judicial review by filing an action in a Federal district court. (6) Expedited appeals process. At some time after your initial determination has been reviewed, if you have no dispute with our findings of fact and our application and interpretation of the controlling laws, but you believe that a part of the law is unconstitutional, you may use the expedited appeals process. This process permits you to go directly to a Federal district court so that the constitutional issue may be resolved. (b) Nature of the administrative review process. In making a determination or decision in your case, we conduct the administrative review process in an informal, nonadversary manner. In each step of the review process, you may present any information you feel is helpful to your case. Subject to the limitations on Appeals Council consideration of additional evidence, we will consider at each step of the review process any information you present as well as all the information in our records. You may present the information yourself or have someone represent you, including an attorney. If you are dissatisfied with our decision in the review process, but do not take the next step within the stated time period, you will lose your right to further administrative review and your right to judicial review, unless you can show us that there was good cause for your failure to make a timely request for review. As used in this subpart: Date you receive notice means 5 days after the date on the notice, unless you show us that you did not receive it within the 5-day period. Decision means the decision made by an administrative law judge or the Appeals Council. Determination means the initial determination or the reconsidered determination. Mass change means a State-initiated change in the level(s) of federally administered State recognition payments applicable to all recipients of such payments due, for example, to State legislative or executive action. Remand means to return a case for further review. SVB, for purposes of this subpart, includes qualification for SVB, entitlement to SVB and payments of SVB. Vacate means to set aside a previous action. Waive means to give up a right knowingly and voluntarily. We, us, or our refers to the Social Security Administration. You or your refers to any person claiming or receiving SVB. Initial determinations are the determinations we make that are subject to administrative and judicial review. The initial determination will state the important facts and give the reasons for our conclusions. Initial determinations regarding SVB include, but are not limited to, determinations about— (a) Whether you qualify for SVB; (b) Whether you are entitled to receive SVB payments on the basis of your residence outside the United States; (c) The amount of your SVB payments; (d) Suspension or reduction of your SVB payments; (e) Termination of your SVB entitlement; (f) Whether an overpayment of benefits must be repaid to us; (g) Whether payments will be made, on your behalf, to a representative payee, unless you are legally incompetent; (h) Who will act as your payee if we determine that representative payment will be made; (i) A claim for benefits under §408.351 based on alleged misinformation; and (j) Our calculation of the amount of change in your federally administered State recognition payment amount (i.e., a reduction, suspension, or termination) which results from a mass change as defined in §408.1001. [69 FR 25955, May 10, 2004; 69 FR 45586, July 30, 2004] Administrative actions that are not initial determinations may be reviewed by us, but they are not subject to the administrative review process provided by this subpart and they are not subject to judicial review. These actions include, but are not limited to, an action about— (a) Denial of a request to be made your representative payee; (b) Denial of your request to use the expedited appeals process; (c) Denial of your request to reopen a determination or a decision; (d) Disqualifying or suspending a person from acting as your representative in a proceeding before us; (e) Denial of your request to extend the time period for requesting review of a determination or a decision; (f) Denial of your request to readjudicate your claim and apply an Acquiescence Ruling; (g) Declining under §408.351(f) to make a determination on a claim for benefits based on alleged misinformation because one or more of the conditions specified in §408.351(f) are not met; (h) Findings on whether we can collect an overpayment by using the Federal income tax refund offset procedure. (See §408.943). (i) The determination to reduce, suspend, or terminate your federally administered State recognition payments due to a State-initiated mass change, as defined in §408.1001, in the levels of such payments, except as provided in §408.1003(h). (a) We will mail a written notice of the initial determination to you at your last known address. Generally, we will not send a notice if your benefits are stopped because of your death, or if the initial determination is a redetermination that your eligibility for benefits and the amount of your benefits have not changed. (b) The notice that we send will tell you— (1) What our initial determination is; (2) The reasons for our determination; and (3) What rights you have to a reconsideration of the determination. (c) If our initial determination is that we must suspend, reduce your SVB payments or terminate your SVB entitlement, the notice will also tell you that you have a right to a reconsideration before the determination takes effect (see §408.820). An initial determination is binding unless you request a reconsideration within the stated time period, or we revise the initial determination.
Title 20: Employees' Benefits
PART 408—SPECIAL BENEFITS FOR CERTAIN WORLD WAR II VETERANS
Subpart J—Determinations and the Administrative Review Process
Introduction, Definitions, and Initial Determinations
§ 408.1000 What is this subpart about?
§ 408.1001 Definitions.
§ 408.1002 What is an initial determination?
§ 408.1003 Which administrative actions are initial determinations?
§ 408.1004 Which administrative actions are not initial determinations?
§ 408.1005 Will we mail you a notice of the initial determination?
§ 408.1006 What is the effect of an initial determination?
Reconsideration
§ 408.1007 What is reconsideration?
Reconsideration is the first step in the administrative review process that we provide if you are dissatisfied with the initial determination. If you are dissatisfied with our reconsideration determination, you may request a hearing before an administrative law judge.
§ 408.1009 How do you request reconsideration?
(a) When you must file your request. We will reconsider an initial determination if you file a written request within 60 days after the date you receive notice of the initial determination (or within the extended time period if we extend the time as provided in paragraph (c) of this section).
(b) Where to file your request. You can file your request for reconsideration at:
(1) Any of our offices;
(2) The Veterans Affairs Regional Office in the Philippines;
(3) An office of the Railroad Retirement Board if you have 10 or more years of service in the railroad industry; or
(4) A competent authority or agency of a country with which the United States has a totalization agreement (see §404.1927 of this chapter).
(c) When we will extend the time period to request a reconsideration. If you want a reconsideration of the initial determination but do not request one within 60 days after the date you receive notice of the initial determination, you may ask us for more time to request a reconsideration. You must make your request in writing and explain why it was not filed within the stated time period. If you show us that you had good cause for missing the deadline, we will extend the time period. To determine whether good cause exists, we use the standards explained in §408.1011.
§ 408.1011 How do we determine whether you had good cause for missing the deadline to request review?
(a) In determining whether you have shown that you have good cause for missing a deadline to request review we consider—
(1) What circumstances kept you from making the request on time;
(2) Whether our action misled you;
(3) Whether you did not understand the requirements of the Act resulting from amendments to the Act, other legislation, or court decisions; and
(4) Whether you had any physical, mental, educational, or linguistic limitations (including any lack of facility with the English language) which prevented you from filing a timely request or from understanding or knowing about the need to file a timely request for review.
(b) Examples of circumstances where good cause may exist include, but are not limited to, the following situations:
(1) You were seriously ill and were prevented from contacting us in person, in writing, or through a friend, relative, or other person.
(2) There was a death or serious illness in your immediate family.
(3) Important records were destroyed or damaged by fire or other accidental cause.
(4) You were trying very hard to find necessary information to support your claim but did not find the information within the stated time periods.
(5) You asked us for additional information explaining our action within the time limit, and within 60 days of receiving the explanation you requested reconsideration or a hearing, or within 30 days of receiving the explanation you requested Appeals Council review or filed a civil suit.
(6) We gave you incorrect or incomplete information about when and how to request administrative review or to file a civil suit.
(7) You did not receive notice of the initial determination or decision.
(8) You sent the request to another Government agency in good faith within the time limit and the request did not reach us until after the time period had expired.
(9) Unusual or unavoidable circumstances exist, including the circumstances described in paragraph (a)(4) of this section, which show that you could not have known of the need to file timely, or which prevented you from filing timely.
§ 408.1013 What are the methods for reconsideration?
If you request reconsideration, we will give you a chance to present your case. How you can present your case depends upon the issue involved and whether you are asking us to reconsider an initial determination on an application or an initial determination on an SVB suspension, reduction or termination action. The methods of reconsideration include the following:
(a) Case review. We will give you an opportunity to review the evidence in our files and then to present oral and written evidence to us. We will then make a decision based on all of this evidence. The official who reviews the case will make the reconsidered determination.
(b) Informal conference. In addition to following the procedures of a case review, an informal conference allows you an opportunity to present witnesses. A summary record of this proceeding will become part of the case record. The official who conducts the informal conference will make the reconsidered determination.
(c) Formal conference. In addition to following the procedures of an informal conference, a formal conference allows you an opportunity to request us to subpoena adverse witnesses and relevant documents and to cross-examine adverse witnesses. A summary record of this proceeding will become a part of the case record. The official who conducts the formal conference will make the reconsidered determination.
§ 408.1014 What procedures apply if you request reconsideration of an initial determination on your application for SVB?
When you appeal an initial determination on your application for benefits, we will offer you a case review, and will make our determination on the basis of that review.
§ 408.1015 What procedures apply if you request reconsideration of an initial determination that results in suspension, reduction, or termination of your SVB?
If you have been entitled to SVB and we notify you that we are going to suspend, reduce or terminate your benefit payments, you can appeal our determination within 60 days of the date you receive our notice. The 60-day period may be extended if you have good cause for an extension of time under the conditions stated in §408.1011(b). If you appeal, you have the choice of a case review, informal conference or formal conference.
§ 408.1016 What happens if you request a conference?
(a) As soon as we receive a request for a formal or informal conference, we will set the time, date and place for the conference. Formal and informal conferences are held only in the United States.
(b) We will send you a written notice about the conference (either by mailing it to your last known address or by personally serving you with it) at least 10 days before the conference. However, we may hold the conference sooner if we all agree. We will not send written notice of the time, date, and place of the conference if you waive your right to receive it.
(c) We will schedule the conference within 15 days after you request it, but, at our discretion or at your request, we will delay the conference if we think the delay will ensure that the conference is conducted efficiently and properly.
(d) We will hold the conference at one of our offices in the United States, by telephone or in person, whichever you prefer. However, if you are outside the United States, we will hold the conference by telephone only if you request that we do so and time and language differences permit. We will hold the conference in person elsewhere in the United States if you show circumstances that make this arrangement reasonably necessary.
§ 408.1020 How do we make our reconsidered determination?
After you request a reconsideration, we will review the evidence considered in making the initial determination and any other evidence we receive. We will make our determination based on this evidence. The person who makes the reconsidered determination will have had no prior involvement with the initial determination.
§ 408.1021 How does the reconsidered determination affect you?
The reconsidered determination is binding unless—
(a) You request a hearing before an administrative law judge within the stated time period and a decision is made;
(b) The expedited appeals process is used; or
(c) The reconsidered determination is revised.
§ 408.1022 How will we notify you of our reconsidered determination?
We will mail a written notice of the reconsidered determination to you at your last known address. We will state the specific reasons for the determination and tell you about your right to a hearing. If it is appropriate, we will also tell you how to use the expedited appeals process.
Expedited Appeals Process
§ 408.1030 When can you use the expedited appeals process?
(a) General rules. Under the expedited appeals process (EAP), you may go directly to a Federal District Court without first completing the administrative review process. For purposes of this part, we use the same EAP rules we use in the title XVI program (see §§416.1423–416.1428 of this chapter) except as noted in paragraph (b) of this section.
(b) Exceptions. In §416.1425, the words “one of our offices” in paragraph (b) are deemed to read “any of the offices listed in §408.1009(b)” and the reference in the last sentence of paragraph (c) to “§416.1411” is deemed to read “§408.1011.”
Hearing Before an Administrative Law Judge
§ 408.1040 When can you request a hearing before an administrative law judge (ALJ)?
(a) General rules. For purposes of this part, we use the same rules on hearings before an administrative law judge (ALJ) that we use in the title XVI program (see §§416.1429–1416.1440 of this chapter), except as noted in paragraph (b) of this section.
(b) Exceptions. In §416.1433, the words “one of our offices” in paragraph (b) are deemed to read “any of the offices listed in §408.1009(b)” and the reference in the last sentence of §416.1433(c) to “§416.1411” is deemed to read “§408.1011.”
Administrative Law Judge Hearing Procedures
§ 408.1045 What procedures apply if you request an ALJ hearing?
(a) General rules. For purposes of this part, we use the same rules on ALJ hearing procedures that we use in the title XVI program (see §§416.1444–416.1461 of this chapter), except as noted in paragraph (b) of this section.
(b) Exceptions. (1) In §416.1446(b)(1), the last sentence does not apply under this part.
(2) In §416.1452(a)(1)(i), the words “supplemental security income” are deemed to read “SVB.”
(3) In §416.1457, the provisions of paragraph (c)(4) do not apply under this part.
Appeals Council Review
§ 408.1050 When can you request Appeals Council review of an ALJ hearing decision or dismissal of a hearing request?
(a) General rules. For purposes of this part, we use the same rules on Appeals Council review that we use in the title XVI program (see §§416.1467–416.1482 of this chapter), except as noted in paragraph (b) of this section.
(b) Exceptions. (1) In §416.1468(b), the words “one of our offices” in the third sentence are deemed to read “any of the offices listed in §408.1009(b).”
(2) In §416.1469(d), the last sentence does not apply under this part.
(3) In §416.1471, paragraph (b) does not apply under this part.
(4) In §416.1482, the reference to “§416.1411” in the last sentence is deemed to read “§408.1011.”
Court Remand Cases
§ 408.1060 What happens if a Federal Court remands your case to the Commissioner?
For purposes of this part, we use the same rules on court remand cases that we use in the title XVI program (see §§416.1483–416.1485 of this chapter).
Reopening and Revising Determinations and Decisions
§ 408.1070 When will we reopen a final determination?
(a) General rules. For purposes of this part, we use the same rules on reopening and revising determinations and decisions that we use in the title XVI program (see §§416.1487–416.1494 of this chapter), except as noted in paragraph (b) of this section.
(b) Exceptions. (1) In addition to the rule stated in §416.1488, a determination, revised determination, or revised decision may be reopened at any time if it was wholly or partially unfavorable to you, but only to correct—
(i) A clerical error; or
(ii) An error that appears on the face of the evidence that we considered when we made the determination or decision.
(2) In §416.1492(b), the parenthetical clause is deemed to read “(see §408.820),” and paragraph (d) does not apply to this part.
(3) In §416.1494, the words “one of our offices” in the first sentence are deemed to read “any of the offices listed in §408.1009(b).”
Browse Previous | Browse Next
