TN 4 (06-05)

A. Definitions

1. Investigation

An investigation is the process of gathering information and evidence after a determination has been reopened to determine if revision of the determination is appropriate.

2. Diligent Pursuit

Diligent pursuit exists if, in light of all the facts and circumstances of a case, necessary action was undertaken and carried out as promptly as circumstances permitted.

3. Reasonable Delay

Reasonable delay occurs when a determination is revised more than 6 months after the investigation began (i.e., the date of affirmative action in writing) and the delay was caused by factors beyond SSA's control. Examples of reasonable delay include:

• Failure by recipient or his/her representative to cooperate

• Failure by a third party to cooperate

• Heavy workloads due to an unforeseeable emergency which results in an office closing for all or part of what would otherwise be a Federal workday; e.g., natural disaster, weather conditions, etc.

4. Unreasonable Delay

Unreasonable delay occurs when a determination cannot be revised more than 6 months after the investigation began (i.e., the date of affirmative action in writing) and the delay is unexplained or caused by factors within SSA's control. Examples of unreasonable delay include:

• Loss of folder by the FO

• Long periods of inaction with no effort to contact or follow up with the recipient, an employer, a bank, or other source of information

B. Policy – Diligent Pursuit

A determination may be revised after the 1- or 2-year time limit, but only if the investigation was initiated before the time limit to reopen has passed.

1. If the investigation is diligently pursued

The determination may be revised, regardless of whether the revision is favorable or unfavorable to the recipient as long as all of the other administrative finality requirements have been met.

2. If the investigation is not diligently pursued

The determination must not be revised if it is unfavorable to the individual.

The determination may be revised if it is favorable to the individual.

3. When diligent pursuit may be presumed

Diligent pursuit may be presumed if the investigation is completed and the determination is revised within the 6-month time period after the date the investigation began.

4. When diligent pursuit may not be presumed

Diligent pursuit may not be presumed if the investigation is not completed within six months after the affirmative action in writing date. In that instance, the entire time period of the investigation must be analyzed and periods of inaction must be evaluated to determine whether they constitute a reasonable or an unreasonable delay. Heavy workloads that do not result from an emergency are NOT a reasonable delay. Examples of unreasonable delay include workloads as a result of understaffing, heavy leave use by FO staff, legislative changes, lack of planning, etc. An unreasonable delay by any component of SSA pertains to the entire agency. For example, if central office sends out computer listings to FO's late, this delay must also be evaluated in SI 04070.040I. If the delay is unexplained, it is presumed to be an unreasonable delay. The fact that the FO initiated development immediately upon receipt of the listings is not the sole factor to consider regarding whether SSA's delay was reasonable or unreasonable.

5. When to begin counting the 6-month time period

To determine if there has been diligent pursuit, we begin with the date the investigation began. This is the date of affirmative action in writing. For instructions regarding affirmative action in writing and initiating reopening and revision, see SI 04070.015B. through SI 04070.015C.

6. Diligent pursuit and overpayments

SSA often becomes aware of SSI overpayments during redeterminations, working limited issues, etc. OP diaries often result.

Once past months of benefit amounts have been reopened and revised pursuant to SSA’s administrative finality rules, the collection of the resulting overpayments are not governed by the rules for reopening. In other words, administrative finality rules do not apply to overpayment collection procedures.

See SI 02220.000 – Recovery Procedures for Supplemental Security Income Overpayments, for additional information on the recovery procedures for SSI overpayments.

C. Policy – Change of Position

A change of position occurs when a policy or legal precedent previously adhered to in making determinations or decisions changes as a result of:

• A court decision or other applicable legal precedent, or

• New policy considerations.

1. Applicability to Pending Actions

Unless otherwise specified in the change of position, it will be applicable as of its effective date to:

• All applications filed or pending on and after the effective date; and

• All redeterminations, reconsiderations, ALJ hearings, AC reviews and litigation cases initiated or pending on and after the effective date.

• With regard to appeals initiated after the effective date, the change is to be applied retroactively to the effective date or 1 year, whichever is later.

2. Applicability to Cases in Which a Determination or Decision is Questioned After the Change of Position

This includes cases that are questioned by either the SSA employee or the recipient. You may reopen the case and apply the change of position retroactively to the effective date of the change or 1 year, whichever is later. (In the case of “deemed” determinations, within 1 year of the first day of the month to which the determination applies.)

3. No Good Cause for Reopening Under the 2 Year Rule

Retroactive changes are limited to 1 year and do not, without the presence of new and material evidence, clerical error or error on the face of the evidence, justify 2-year retroactivity.

4. Class Action Cases (Exception to Normal Rules for Change of Position)

In a Federal class action case, the court may issue an order with retroactive effect requiring SSA to locate and reopen determinations with regard to all or some class members. If so, the normal rules regarding change of position or reopening, in general, do not apply. In such an instance, we must comply with the order and reopen and revise all affected cases as directed, even if the notices of initial determination are more than 1 or 2 years old.

D. Policy – Change of Statute or Regulations

Revision, if applicable, will depend on the effective date specified in the statute or regulations. Revision will also depend on whether the change has retroactive effect. The instructions relating to the change will specify the effective date and how reopening and revision applies.

E. Policy – Justifying New Determination or Decision

A revision of the final determination or decision is justified if reevaluation of the total evidence now on record supports a revision. It is not necessary that the revision be based solely on the new evidence, only that all evidence viewed as a whole justifies the conclusion. However, when the new evidence merely casts doubt on the correctness of the determination or decision, such determination or decision cannot be revised based on “new and material evidence.” Such evidence can justify or even require that further development be undertaken; and if, as a result of such development, new and material evidence is secured, appropriate action should be taken.

F. Procedure – Calculating Period to Reopen and Revise

1. Actual Initial Determinations with Notices

a. Calculating the Period to Reopen

An actual determination (as distinguished from “deemed determination”) can be reopened and revised within 1 year (or 2 years) after the date of the notice of the initial determination.

EXAMPLE: If the affirmative action in writing occurs on April 22, 2003, any actual initial determination may be reopened and revised under the 2-year rule for good cause as long as the notice of initial determination is dated April 22, 2001, or later. If the 1 year rule applies, an actual determination may be reopened and revised so long as the notice of initial determination was dated April 22, 2002, or later.

See SI 04070.010F.4. and SI 04070.010F.5. for a description of when the 1-year rule and 2-year rule apply and SI 04070.005 for explanation of initial and deemed initial determinations.

b. Revising After the Period to Reopen

The fact that reopening is limited by the 1- and 2-year rules does not mean that revision is likewise limited once a determination is reopened. This is particularly true when some time has passed between the effective filing date of an application and the initial determination on the application. If the affirmative action in writing falls within the 1- or 2-year period, and revision is appropriate, you should revise all months that are incorrect, back to the effective date of the application.

EXAMPLE: An individual files an application with an effective date of March 15, 2000, and the initial determination (i.e., notice) is issued on September 30, 2000, and it is an initial determination for March 15, 2000 through October 2000. On September 16, 2002, we receive new and material evidence that the individual had income in larger amounts than he made us aware of from the application date through September 15th. Because the September 30, 2000 initial determination is within 2 years of the September 16, 2002 affirmative action in writing date, we are permitted to revise the initial determination of September 30, 2000 and correct the income amounts back to the effective date of the application, March 15, 2000, even though that date occurred more than two years before the affirmative action in writing date. We can then make an overpayment determination for the same period.

2. Deemed Determinations

A similar rule applies to deemed determinations. The first day of the month is used as the date of the deemed determination instead of the date of the notice. The earliest deemed determination that can be reopened and revised is the first determination (i.e., involving the first full eligibility month) that occurred within the applicable 1- or 2-year period.

See SI 04070.010A.3. for the definition of deemed determination.

G. Policy – When the Investigation is Complete

The investigation is complete when all the facts necessary to determine whether or not to make a revision have been received. This is not sufficient to meet the diligent pursuit requirement. To meet the requirement, the determination must be revised within the time period specified in SI 04070.040B.

H. Policy – When the Prior Determination Has Been Revised

Revision is complete as of the date of the notice that the prior determination has been changed with respect to either eligibility or payment amount. This can be through an SSA-L8100, SSA-L8155 or any other form which might be used to give notice of a revised determination. The date of the notice is used to determine whether diligent pursuit can be presumed; i.e., if it occurs within 6 months after the date that the investigation began. See SI 04070.050 for additional information on SSI notices of revised determinations.

I. Policy – When Revision is not Complete Within 6 Months (Diligent Pursuit)

When a revision is not complete within 6 months (i.e., under the diligent pursuit rule), there must be an analysis of the investigation to determine if the cause of the delay was reasonable. In doing so, we pay careful attention to periods of inaction. Unexplained periods of inaction are presumed to constitute unreasonable delay. SSA has the burden of showing that delays are reasonable. See SI 04070.040B.4.

1. New Affirmative Action in Writing Date

If the delay is unreasonable, a new date of affirmative action in writing may be established. This can be accomplished by:

• Documenting telephone calls; or

• Sending written requests for information or documenting in writing some other effort to obtain the facts necessary to revise the prior determination.

If the new affirmative action date occurs after the time limit to reopen the determination, the determination cannot be reopened and revised.

2. Documentation

Whenever the revision does not occur within 6 months, the delay must be documented in writing regardless of whether it is found to be reasonable or not. The documentation must include an explanation of why the delay was or was not reasonable. If for some reason the cause of the delay is not documented, it is presumed to be unreasonable.

3. Interface Runs - Affirmative Action in Writing

When an interface run date is the date of discovery of an error, a revision is not made within 6 months of the run date, and there is an unreasonable delay in the investigation, the run date can no longer be used as the date of affirmative action in writing if the revision will be unfavorable to the claimant. In that event, use the date the investigation was restarted (e.g., the claimant was called in for an interview, a request for information was sent to a bank) and diligently pursued to completion as the new date of affirmative action in writing. This date can be before or after the 6-month period has expired following the interface run date.

J. Exhibit – Diligent Pursuit Chart

K. Examples - Diligent Pursuit

1. Unreasonable Delay - No Diligent Pursuit

The FO received control lists and K6/K7 alerts pertaining to the 2001 MEF/SSR interface earned income discrepancy cases. The FO learns from the alert that Mr. John Jones has been receiving income since July 2000. The following dates apply:

• December 9, 2002 - MEF/SSR interface run

• December 19, 2002 - Control lists and alerts received in the FO. Development file set up.

• December 19, 2002 to April 15, 2003 - No action taken. The reason for inaction is unexplained.

• April 15, 2003 - Requests for information sent to Mr. Jones’ employers.

• April 15, 2003 to August 14, 2003 - Investigation is diligently pursued. The FO follows up on requests at reasonable intervals.

• August 14, 2003 - Last response received. The investigation is complete, and revision is made.

  • In this case, the interface run date cannot be used since the revision was not made within 6 months. The period of unexplained inaction from December 19, 2002 to April 15, 2003 constitutes unreasonable delay. As a result, SSA is barred from revising deemed determinations from January 2001 to April 2001.

  • A new affirmative action in writing date of April 15, 2003 should be established since the investigation recommenced on that date. The FO can revise actual initial determinations, as applicable, which occur on and after April 15, 2001 and deemed determinations on and after May 1, 2001. See SI 04070.030A. through SI 04070.030D. for effective months of written notices of deemed determinations.

  • In this example, the 2-year rule is used since interface alerts constitute new and material evidence.

2. Reasonable Delay - Diligent Pursuit Requirement Met

Same basic situation as in SI 04070.040K.1- Example 1(Unreasonable Delay – No Diligent Pursuit). The following dates apply:

• December 9, 2002 - MEF/SSR interface run

• December 19, 2002 - Control lists and K6/K7 diaries received in the FO. Development files set up and requests for information are sent out to Mr. Jones' employers by December 22.

• Although the FO followed up regularly and at reasonable intervals, the last report was not received until August 14, 2003.

• The revisions were made on August 14.

The investigation was diligently pursued and completed with the revisions made on August 14. December 9, 2002 is the correct affirmative action in writing date. A Report of Contact (RC) analyzing the delays from December 22 to August 14 and explaining why they are reasonable must be included in the file since the investigation took more than 6 months. Any actual initial determination occurring on and after December 9, 2000 can be reopened and revised, and any deemed determination from and after January 1, 2001 can be revised as applicable. See SI 04070.030A.1. through SI 04070.030B. for effective months of written notices of initial actual or deemed determinations.

3. Unreasonable Delay - Loss of FO Development File - Diligent Pursuit Requirement Not Met

Same fact situation as in SI 04070.040K.1. - Example 1. and SI 04070.040K.2. - Example 2. The following dates apply:

• December 9, 2002 - MEF/SSR interface run.

• December 19, 2002 - Control lists K6/K7 diaries are received in the FO. Development file is set up.

• December 21, 2002 - FO loses the development file which had been set up 2 days before.

• July 15, 2003 - Development file is located.

• July 19, 2003 - Requests for information are sent to Mr. Jones’ employers.

• August 14, 2003 - The last response is received and the FO makes revisions based on them.

Since losing the file is not justification for a delay, the delay from December 19, 2002 to July 19, 2003 is unreasonable (mere discovery of the file does not constitute affirmative action in writing). Any actual initial determinations which occurred on and after July 19, 2001 can be revised and any deemed determinations on and after August 1, 2001 can be revised. See SI 04070.030A.1. through SI 04070.030B. for effective months of written notices of initial actual or deemed determinations.