BASIC (12-93)

A. Policy

1. How to Request EAP

a. Time to File the Request for EAP

A request for EAP may be filed:

• within 60 days after receiving notice of the reconsidered determination unless the time for requesting review is extended for good cause;

• any time after filing an ALJ hearing request but before receiving notice of hearing decision;

• within 60 days after receiving notice of ALJ hearing decision or dismissal unless the time for requesting review is extended for good cause; or

• any time after filing a request for AC review and before receiving notice of AC action.

b. Where to File Request

A request may be filed at any SSA office.

c. Extension of Time to File Request

If a request is not filed timely, a request for extension may be filed in writing stating the reasons for his/her failure to file timely. If the appellant shows good cause, the time to file will be extended. To determine “good cause,” SSA uses the criteria set forth at SI 04020.020 B.3.

2. Effect of the EAP Request

Submission of a request for EAP stops the running of the time to request the next level of appeal until the EAP agreement is signed or cancelled or until the request is denied. If the request is denied, it will be considered to be a request for administrative review.

3. EAP Agreement

If all of the criteria in SI 04060.010 B.3. are met, an agreement must be prepared for the appellant's signature which provides that:

• the facts in the claim are not in dispute;

• the sole issue is whether the applicable provision of the Act is unconstitutional ;

• except for the contention that the provision is unconstitutional, the appellant agrees with SSA's interpretation of it;

• if the provision that the appellant believes is unconstitutional were not applied, the appellant's claim would be allowed; and

• SSA's determination or decision is final for the purpose of seeking judicial review.

4. Effect of the EAP Agreement

The appellant need not complete the remaining steps of the administrative review process but may, instead, file an action in U.S. District Court within 60 days after the date he/she receives notice that SSA's authorized representative has signed it.

NOTE: A signed copy of the agreement constitutes notice.

5. When EAP Request Does Not Result in Agreement

If the appellant fails to meet the criteria for using EAP (see SI 04060.010 B.3. above), he/she must be informed that his/her request is denied and that it will be used as a request for ALJ hearing or AC review as appropriate.

6. Voluntary Agreement

Even if the above conditions are met, the appellant is not required to use EAP. Likewise, SSA may decline to sign the EAP agreement, even if the opportunity was initially offered.

B. Procedure

1. Taking EAP Requests

Offer EAP only if the claimant indicates in some way that a provision of the law is unconstitutional after he/she has received a determination at the reconsideration level. Although the appellant may not use the word “unconstitutional,” consider such words as “unfair,” and “discriminatory” to be the equivalent of “unconstitutional.”

Remember that many appellants may disagree with provisions of the law which preclude favorable action on their claims but will be satisfied after receiving a proper explanation of the law and determination or decision or will prefer to continue the administrative appeals process.

Make sure before the EAP request is taken that the individual understands that the next appeal step after entering into an EAP agreement is to file a civil action in the U.S. District Court.

2. Requirement For Reconsidered Determination

To avoid confusion, do not take a statement requesting EAP before the reconsideration determination is made.

If a claimant inquires about EAP prior to receiving a reconsidered determination, advise that he/she must pursue the claim at least through the reconsideration level. However, document the file to show that the individual is interested in EAP and that he/she wants to skip further administrative appeals and go directly to court.

In such cases, include the paragraph concerning availability of EAP in the formal notice of reconsideration (see 5. below).

3. Facts and Interpretation of the Act Must Not Be in Dispute

Advise the appellant in cases involving a constitutional issue that he/she must use the regular administrative appeals process if he/she also disputes our factual determination or procedures. Tell him/her that when an EAP agreement is signed, he/she concedes that our determination of the facts and application of the law are correct.

Do not resolve overpayments resulting from the disputed constitutional issue before commencing EAP.

If there are other issues and questions which have not been addressed, address them and document the file accordingly (so that the file clearly shows only the constitutional issue still open) and forward the folder to the appropriate CO component.

4. Other Factors of Eligibility

Even when the appellant challenges the constitutionality of a provision of the act, do not offer an agreement until all other factors which might preclude eligibility have been developed and resolved in order that constitutionality is the sole issue. Review the folder. If a pertinent eligibility factor has not been established, develop and resolve the issue .

When this occurs, notify the claimant that processing of the request for EAP is being delayed pending the necessary development.

If after all development, a pertinent eligibility factor is not resolved in favor of the individual, notify the individual that EAP does not apply. Treat the denied EAP request as a request for hearing or AC review, whichever is appropriate. Forward the case to the Office of Disability Adjudication and Review (ODAR). Inform the claimant that he/she will then have an opportunity to appeal the eligibility factor as well as the constitutional issue. (Denial of the EAP request is not appealable.)

5. Required Notice

If the above conditions are met, add paragraph number 941 which appears in NL 00708.100 to the notice of the reconsidered determination.