TN 2 (12-05)

Citations:

20 CFR 418.3605 - 418.3680

A. Introduction

SSA will make eligibility determinations based on an individual’s application for a subsidy. Notice of SSA’s subsidy determination will be mailed to the individual at his or her last known address. The notice will include appeal rights and explain how to request an appeal.

B. Policy

1. What Is an Initial Determination

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 findings. Examples of initial determinations that are subject to administrative and judicial review include, but are not limited to, determinations on:

• whether an individual is eligible for a subsidy; and

• whether an individual receives a full or partial subsidy; and

• reduction of an individual’s subsidy; and

• termination of an individual’s subsidy.

2. What Is Not an Initial Determination

All other administrative actions that are not initial determinations may be reviewed by us, but they are not subject to the administrative and judicial review process as provided by these sections. An example of a determination that is not an initial determination would be a change in an individual’s choice of a prescription drug program or a response to a pre-decisional notice.

3. Administrative Review Process for Subsidy Determinations

The appeal process for subsidy determinations consists of one formal SSA administrative step. The individual can choose a hearing either by telephone or case review. Case review will be based on the information in the file and any additional information the individual or his or her personal representative provides. Both, the hearing by telephone or the hearing by case review are the same level of the administrative appeal process for subsidy determinations. If an individual is dissatisfied with SSA’s final decision, he or she may file an action in Federal district court.

4. Filing a New Application versus Filing an Appeal

It may be more advantageous to the individual to file an appeal than to file a new application. This is because the individual may lose one or more months of Part D subsidy by filing a new application. An appeal would preserve the retroactivity of the subsidy while a new application would not.

EXAMPLE: Individual files an application for Part D subsidy January 2006. He/she receives a denial notice dated February 3, 2006, but doesn’t appeal it and starts paying a premium for Part D. He or she files a new application in May 2006 and is awarded full subsidy effective May 2006. If the individual had filed an appeal instead of a new application and the appeal decision was a reversal, he or she would have been eligible for a subsidy back to the month he or she filed the original application, January 2006.

5. Subsidy Continuation During an Appeal

Once an individual is receiving a subsidy and SSA proposes reducing or ending the subsidy, he or she qualifies for automatic subsidy continuation when he or she appeals.

Individuals who qualify for subsidy continuation may choose to waive it. An individual can verbally request waiver. After waiving it, they may reconsider and receive it (including retroactive benefits) at any time before the appeal decision is final.

If the individual contacts the FO, calls the national 800 number, or mails the appeal request to WBDOC, document the reason for late filing on the Good Cause for Late Filing screen in MAPS. Accept any reason the individual gives. If the request for appeal is filed late and good cause for late filing is established, automatic subsidy continuation is given. If good cause is not established, the appeal is dismissed and the automatic subsidy continuation ends.

If contact with the individual is necessary to determine reason for late filing, make two attempts and document on the RPOC screen in MAPS (date, time, phone number). In addition, the CR (and only the CR) may include a recommendation based on his or her perception of the individual. The case is submitted to the SAU for the good cause determination and release of appropriate notices.

The SDR will complete the appropriate MAPS screens for subsidy continuation and good cause determination as well as the subsidy end date, if appropriate. The MAPS Subsidy Continuation (DWSC) screen is removed from the MAPS application and the Determination Data History section of the MAPS Query will display, “Automatic Subsidy Continuation.”

NOTE: Subsidy continuation during an appeal is not considered an overpayment in the event the appeal decision is unfavorable.

6. Allegations of Higher Income Related Work Expenses (IRWE) or Blind Work Expenses (BWE)

See HI 03020.030D. if an eligible individual indicates that he or she has higher IRWE or BWE. Record the documentation in MAPS per HI 03010.040.

C. Process

1. Requesting an Appeal

The individual or his or her personal representative (as defined in 42 CFR 423.772 and HI 03010.010B.) may request an appeal by calling the national toll-free 800 number or by calling, writing, or visiting any Social Security office. He or she can also obtain a copy of the SSA-1021 (Appeal of Determination for Help with Medicare Prescription Drug Plan Costs) from the internet. The mailing address on the form will be the address for WBDOC. There is no signature requirement and no signature proxy. See HI 03040.100 for establishing an appeal in MAPS.

2. Appeal Method

The appeal method is a hearing by telephone unless the individual waives the hearing by telephone and agrees to a hearing by case review.

The 800 number agents, FO employees, and Wilkes-Barre Direct Operations Center (WBDOC) establish the appeal by completing the Appeal Application screens in MAPS. Once established, the case is submitted to the Subsidy Appeal Unit (SAU) in the Office of Earnings and International Operations (OEIO). This special unit was established to process subsidy appeals. The Subsidy Determination Reviewer (SDR) in the SAU makes all appeal decisions.

Once the case is reviewed and decided by the SDR, he or she will trigger the appeal decision notices through the Document Generation System (DGS). The individual may also receive a notice from the subsidy determination process if there is a change in the subsidy percentage.

See HI 03040.300C. for more information on appeal disposition notices.

If the caller has additional information to support the appeal, direct him/her to mail it to the Subsidy Appeal Unit (SAU) at the following address:

a. Case Review

The individual can request an appeal by case review. The appeal will be established in MAPS. The appeal is submitted to the Subsidy Appeal Unit. The SAU to whom the case is assigned will send an acknowledgment notice using the Document Generation System (DGS). If there is a new issue to be decided, the acknowledgment notice will inform the individual about the new issue and provide him/her with the opportunity to provide additional information. The SDR will then make a decision based on the information available.

b. Telephone Hearing

If an individual requests an appeal by telephone, an appointment will be scheduled by the SAU giving the individual at least 20 days to prepare for the appeal. When the SAU sends the appointment notice, he or she will accommodate the times requested by the individual unless for some very good reason it is not possible. If the individual waives the 20-day period, a telephone hearing will be scheduled as soon as possible. The SAU records the hearing to allow preparation of a certified transcript, if one is determined necessary.

The appeal will be established in MAPS and submitted to the SAU.

The SDR will conduct the telephone hearing, and decide the case. The individual can request a delay (one delay may be approved; up to 2 delays if the individual has good cause). Examples of good cause reasons include, but are not limited to:

• Individual attempted to obtain information but need additional time;

• Individual’s representative has a prior commitment to be in court or at another administrative hearing on the date the hearing is scheduled;

• Individual offering assistance would be unavailable to participate in the scheduled hearing;

• Individual is unrepresented, and is unable to respond to the notice of hearing because of physical, mental, educational, or linguistic limitations (including any lack of facility with the English language); or

• Individual did not receive notice of the hearing appointment;

• Individual was hospitalized at time of appointment.

• If the individual did not request a delay but is not present at time of the scheduled hearing, the SDR will wait 1-2 days before making a decision based on the information available. If the individual wishes to proceed with a hearing, the SDR will reschedule if the individual had good cause for missing the scheduled hearing. For example, the individual was suddenly hospitalized at the time of the scheduled hearing.

3. New Issue

The appeal is a review of all facets of the determination not just those that the applicant found unsatisfactory. A new issue is an issue that was not considered in the initial determination. Where the SDR is deciding a new issue, the individual will be notified of the new issue being decided prior to the review. The SDR will add the new issue to the acknowledgment or appointment notice and when making his or her decision, the notice will include appeal rights.

4. When Both Members of Couple Are Eligible for Subsidy

Determine if the individual requesting an appeal is married and has a living-with spouse and whether the living-with spouse is also requesting an appeal. If both spouses are requesting an appeal, MAPS establishes two appeals and both will receive a notice of decision.

If only one spouse appeals, but the other spouse’s eligibility for a subsidy is adversely affected by our decision upon review, the adversely-affected spouse will be sent a notice by the SDR prior to issuance of the decision, and given an opportunity to provide additional information. Allow 15 days from the date notice is received for the spouse to respond.

If the spouse contacts the FO or calls the national 800 number requesting more information, follow HI 03040.100B.3. If the spouse asks where to submit additional information, follow TC 24030.030L. to determine SAU. If no response is received, process the request of the spouse who filed the appeal.

5. Waive Telephone Hearing (Case Review)

The fact that the individual chooses not to have a hearing by telephone will be established in MAPS. The decision will then be made by a case review, i.e., the decision will be based on the information in the file and any additional information provided by the individual.

6. Timeframes and Good Cause

Administrative review must be requested within 60 days after the date the individual receives notice of the initial determination. The date that the individual receives the notice is presumed to be 5 days after the date on the notice unless the individual can show us that he or she did not receive it within the 5 days. If the timeframe is missed, the individual may ask us for more time to request a review. The request for an extension must explain why it was not filed within the stated time period and the reason entered on the Good Cause for Late Filing screen in MAPS.

The SDR will determine whether the individual has good cause for missing the timeframe. The guidelines for determining good cause are the same good cause guidelines found in GN 03101.020.

7. Notice of Decision

The SDR makes the decision and is responsible for sending the appropriate notice. See HI 03040.300C. for more detail on the decisional notices. In some situations, a second notice will be sent by the subsidy determination system.

D. Reference

See HI 03040.100, for establishing the appeal.