TN 31 (04-10)

A. Defining due process

Due process:

• provides necessary information to a beneficiary before taking any action that will adversely affect his or her previously established right to receive Title II disability and Title XVI disability and or blindness benefits.

• requires that we send a written, advanced notice to meet certain legally established prerequisites in every instance.

• requires that all substantial gainful activity (SGA) cessation and adverse reopening cases must include a written, personalized, due process notice, unless the exception in DI 13010.185E exists.

See Details

• DI 40515.005, Due Process Requirements - Title II

• DI 40515.010, Due Process Requirements - Title XVI

B. Field office (FO) actions

Provide written due process in all Title II (SGA) cessation or termination determinations and for any adverse reopening cases that fall within the FO jurisdiction in Title II, Title XVI, and concurrently entitled claims.

C. Adverse determinations

The following adverse determinations require a due process action prior to effectuating the determination:

• determinations that result in a disability cessation;

• benefit suspension/termination or cessation during the extended period of eligibility (EPE);

• benefit termination after the end of the EPE; and

• unfavorable reopening or revisions to a prior determination.

D. When due process is required

1. Failure to cooperate (FTC)

Send a due process letter in a proposed FTC cessation cases. As in all due process actions, allow 15 days for the beneficiary to respond (i.e., 10 days plus 5 days mail time) before processing the adverse action.

NOTE: The above instructions do not apply to the streamlined FTC process for medical CDRs. For information on the streamlined FTC process, see DI 13015.005.

2. Whereabouts unknown (WU)

Send a due process letter to the beneficiary at the last known address. Provide 15 days for the beneficiary to respond. If the due process letter is undeliverable and you cannot contact the beneficiary at the last recorded telephone number, process the case following instructions in DI 13015.005.

3. Reported medical improvement or change in work activity

If the beneficiary does not request in writing to have his or her benefits ceased, provide due process before taking any action to stop benefits.

E. When due process is not required

1. Title II only – beneficiary reports he or she is no longer disabled

If a beneficiary reports that, he or she is no longer disabled due to work activity or medical recovery and requests to have benefits ceased:

• obtain a signed statement or document the request to suspend benefits from the beneficiary or representative payee that states he or she is no longer disabled, and is requesting a cessation of benefits. (See DI 13010.160C.1) Do not provide additional due process before ceasing benefits; and

• continue to develop the issues and make a continuing disability review (CDR) determination following the instructions, FO Responsibilities in a Work CDR DI 13010.025.

NOTE: Provide due process if benefits are not payable for any month that predates the month the beneficiary requested to cease benefits.

2. Title II and Title XVI – beneficiary dies

Do not send a written due process notification when there is confirmation of the beneficiary’s death (see, Processing Reports of Death GN 02602.050).

F. Handling due process in work issue cases

Cessation or termination of benefits

Our evaluation of a work issue may result in the cessation or termination of benefits however; the beneficiary may submit additional evidence pertinent to the determination. Send a written advance notice to satisfy due process.

Send a concurrently entitled beneficiary a separate written notice that provides due process for the Title II and the Title XVI action (Goldberg-Kelly requirements apply to Title XVI). For background on Goldberg-Kelly payment continuation, see SM 01305.500.

NOTE: Develop work activity and prepare a SGA determination. When making a determination when the EPE applies, follow Extended Period of Eligibility (EPE) – Procedure DI 13010.215.

G. Material conflict in work activity cases

A material conflict exists:

• If a discrepancy in the amount of earnings or period of work raises a question about the correct month of cessation, the termination month, or whether a monthly benefit is payable; or

• If the beneficiary states that the impairment affects his or her ability to perform work, work is subsidized, or he or she does not believe that benefits should cease.

When a material conflict arises from the beneficiary's information, report of work activity, other postings of work activity, or from any other evidence developed,

• resolve the conflict with the beneficiary, and

• send a written notice even if the beneficiary provided the evidence supporting the suspension, cessation, or termination of benefits.

H. Preparing the due process notice

1. The eWork program:

• generates the appropriate due process notice;

• sends the notice to the Online Retrieval System (ORS); and

• generates a “DUEPROCESS” issue on the development worksheet (DW01) screen. The due process issue remains unresolved until you receipt the date you close the issue on the DW01 screen.

NOTE: eWork does not automatically send the due process notice to the beneficiary; print and mail the notice locally. If you are precluded from using eWork, manually prepare the notice following the guidelines in this section.

2. Manual due process guidelines

Prepare the due process notice in the Document Processing System (DPS) with personalized information regarding the cessation and individual case situation. Use the template titled “SGA EPE Due Process,” located in the post-entitlement category.

NOTE: To access DPS go to http://dps.sspf.ssa.gov/DPSProjectWeb .

Due process notification requirements:

1. Inform the beneficiary that based on the evidence obtained, SSA determines he or she performed SGA in (month/year) and benefits will cease in (month/year).

2. Provide a list of the work reports evaluated.

3. Give a brief and non-technical explanation of the findings to support the SGA cessation determination and include:

   • the period of work evaluated; the employer's name, claimant's job title and

   • a brief description of job duties, hourly rate of pay, average monthly earnings and number of hours worked per week; and

   • a statement, if applicable, regarding subsidies and impairment-related work expenses (see, Determining Countable Earnings DI 10505.010; and Impairment-Related Work Expenses DI 10520.001).

4. Explain that the purpose of the notification is to give the beneficiary an opportunity to provide any additional evidence for consideration.

5. Allow the beneficiary 10 days from receipt of the notice to contact us. If we do not hear from the beneficiary, make a formal determination based on the evidence in file.

   NOTE: Allow five additional days for mailing time before taking action.

6. Inform the beneficiary that when SSA makes a formal determination we send written notification.

3. Follow-up procedure on due process notices

Do not follow-up with a beneficiary who fails to respond to the letter. If there is no response in 15 days, process the action. When the beneficiary responds to the letter with a request for more time to get additional evidence:

• determine the type of evidence and inform the beneficiary that he only has an additional 10 days to provide the additional evidence;

• document all contacts with the beneficiary or auxiliaries in eWork on the (DW01) screen, whether the contact is in person, by telephone, or by mail;

• establish appropriate controls, using eWork or the disability control file (DCF) CDR Worksheet (CDRW).

• complete the determination in eWork and input necessary actions to the DCF and post-entitlement system (POS); and

• route material. See Details:

  • GN 00301.322, Retention of Paper Material After Faxing into Either the eDIB Folder or Claims Folder using NDRed and

  • DI 81010.135, Storing Non-Medical Evidence in the Electronic Folder (EF).

There may be unusual circumstances where the beneficiary needs additional time beyond the first 10-day extension. These instances should be rare and granted only when reasonable circumstances preclude the beneficiary from obtaining the evidence in question (e.g., illness of sources, sources out of town for 30 days, etc.). If there is no response within the second 10 days, complete the determination.

4. Additional information received

If you receive additional information that does not change any aspects of the proposed determination, prepare a brief acknowledgment, and include the following language:

“This acknowledges receipt of the additional information you sent us. We will consider this evidence along with the other evidence in your case to determine your continuing entitlement to disability insurance benefits. We will notify you when we make a formal decision.”

NOTE: Do not include any statement regarding the significance of the information received.

5. Beneficiary indicates he or she will not submit additional evidence

Do not process a final determination before 15 days expire unless you receive a written statement from the beneficiary that he or she is not submitting additional evidence. If the beneficiary responds in writing that he or she is not submitting additional evidence:

• document the response in eWork on the development worksheet (DW) screen;

• store the statement in eView or the Non-Disability Repository (NDRed) system; and

• process the final determination immediately.

6. Change in date of cessation

If, as a result of the beneficiary's response, you change the cessation date to a date earlier than the date mentioned in the original notice, send a new due process notice and include the revised information.

I. Auxiliary due process notice

Provide due process to auxiliaries even if they are in suspense. If auxiliaries are already in nonpayment status,

• modify the due process language to exclude reference to “receipt of benefits” and “benefits being paid.”

• Prepare and release notices (including a file copy) at the same time you provide due process to the primary beneficiary.

• Do not send separate notices to auxiliaries living in the same household as the primary beneficiary.

Advise all auxiliaries not residing in the same household of the proposed adverse action prior to the cessation and or termination of benefits.

J. See Details

• GN 00301.285, Statement and Other Documentation

• DI 13010.001, Work Activity and Work Incentives

• DI 13010.210, Extended Period of Eligibility (EPE) - Overview

• SI 02301.300, Due Process Protections-General