BASIC (01-01)

A. Definitions

1. New and material evidence

New and material evidence is any evidence that was not part of the file when the determination or decision was made and which shows facts that can result in a conclusion different from that reached in the prior determination or decision. (See VB 02507.040A.)

2. Clerical error

A clerical error is any error by SSA (e.g., mathematical, coding or input) that results in an incorrect determination or decision either favorable or unfavorable to the claimant.

3. Error on the face of the evidence

An error on the face of the evidence is an error that exists when, on the basis of all the evidence in the file on which the determination or decision is based, it is clear that the determination or decision is incorrect.

4. Affirmative action in writing

An affirmative action in writing is the establishment of a record in writing by SSA that questions the correctness of a determination or decision. This can include preparation of a report of contact; establishment of a computer record; acknowledgment of receipt of a statement from a claimant, beneficiary, representative, representative payee, etc.; or acknowledgment of receipt of an application from a claimant under certain conditions (see VB 02507.010B.3.b.)

5. Fraud

Fraud exists when a person knowingly, with intent to defraud, either:

• Makes or causes to be made a false statement or misrepresentation of a material fact for use in determining rights under the Social Security Act, or

• Conceals or fails to disclose a material fact for use in determining rights under the Social Security Act.

NOTE: The person need not be the claimant, beneficiary or individual acting on behalf of the claimant or beneficiary. See GN 04105.005B. for definitions of “knowingly,” “willfully” and “with intent to defraud.”)

6. Similar fault

Similar fault is involved with respect to a determination if a person knowingly:

• Makes an incorrect or incomplete statement that is material to the determination, or

• Conceals information that is material to the determination.

Unlike fraud, we are not required to prove fraudulent intent to make a finding of similar fault.

REFERENCES: See GN 04105.005B.4. for a definition of “intent to defraud.” See GN 04020.010 for a definition of “fraud” and further information on establishing similar fault.

NOTE: As with fraud, the person need not be the claimant, beneficiary or anyone who is either related to or acting on behalf of the claimant or beneficiary.

B. Policy -- General

1. Periods for reopening

The allowable time periods for SSA to reopen SVB determinations or decisions are as follows:

a. 1-year rule

SSA may reopen within 1 year (12 months) from the date of the initial determination notice for any reason.

b. 2-year rule

SSA may reopen within 2 years (i.e., 24 months) from the date of the initial determination notice if there is good cause to do so. Good cause exists if:

• New and material evidence is furnished (see VB 02507.010A.1.); or

• SSA made a clerical error (see VB 02507.010A.2.); or

• There is an error on the face of the evidence (see VB 02507.010A.3.).

c. Unrestricted reopening

SSA may reopen at any time if:

• there is fraud or similar fault on the part of any person or

• An SSA clerical error or an error on the face of the evidence resulted in a determination or decision that was unfavorable in whole or in part to the claimant/beneficiary. (If the result was favorable to the claimant/beneficiary, reopening is permitted within the 2-year rule only.)

d. References

• VB 02507.001C.2. -- What Determinations Can Be Reopened

• VB 02507.020 -- Unrestricted Reopening — Fraud

• VB 02507.025 –- Unrestricted Reopening — Similar Fault

• VB 02507.040B. –- Establishing period open to revision

2. Initiating action to reopen a determination

To reopen a determination that has become final, there must be:

1. A request in writing by the SVB claimant or beneficiary (or the representative payee, legal guardian or other appointed representative of an SVB claimant or beneficiary); or

2. An affirmative action in writing by SSA to question a prior determination (see VB 02507.010A.4. and VB 02507.010B.3.).

3. Types of affirmative action in writing

a. Output

SSIRDs, SSIDs, alerts, listings or other printouts generated by special systems queries or runs (including interfaces) designed to identify and record errors or potential errors.

• If the output includes a run date, use that date as the date of affirmative action in writing.

• If there is no run date, use the query date if there is one.

• If neither run date nor query date is available, use the date of the alert or diary on the SSR.

See VB 02507.010C.2. for procedures on interface alerts.

b. Subsequent application

For purposes of these instructions, a “subsequent” application is an application filed after an initial determination notice has been issued on a prior application and the determination on the prior application was less than fully favorable. (This assumes that the subsequent application involves substantially the same issues and time period as the prior application.) If reopening is permitted under the rules of administrative finality (see VB 02507.010B.1.), the initial determination on the first application may be reopened and revised as long as a favorable determination will be made on the second application.

If there is good cause to reopen under VB 02507.010B.1., the application under consideration must have been filed within 2 years of the date of the initial determination notice of the prior application. If good cause does not exist, the subsequent application must have been filed within 1 year of the date of the initial determination notice on the prior application.

NOTE: If a protective filing date is established, the protective filing date is the date of the affirmative action in writing.

c. Report of contact

A statement of an SSA employee on SSA-5002 (Report of Contact), SSA-250 (Development Worksheet), Modernized Development Worksheet (MDW) or other report or statement (on the SVB Website, MSSICS or elsewhere) indicating the prior determination might be incorrect. The date the record was made is the affirmative action date.

d. Form SSA-795 (Statement of Claimant or Other Person)

Form SSA-795 or other statement, letter, etc., from the claimant or beneficiary (or other individual representing the claimant or beneficiary) that could be interpreted as questioning the correctness of a prior determination.

NOTE: Use the date the field office or other SSA component noted (by stamp or otherwise) the receipt of the form or envelope.

e. Redetermination form

A redetermination form on which the SVB beneficiary or his or her representative payee or other representative expressly questions the correctness of the prior determination.

NOTE: Use the date the field office or other SSA component noted (by stamp or otherwise) receipt of the form or envelope.

f. Development

Development of an issue can raise another issue, which results in reopening a determination. For example, in developing a reported change in a beneficiary's other benefit income, the claims representative learns that the beneficiary has been living with a son in the United States for several months. In this case, use the date that the loss of residence abroad was first documented in file. Most likely, this will be a date that is later than the affirmative action in writing date for the original issue.

C. Procedure

1. Handling affirmative action in writing

• Document the action and any necessary background information on the MDW and the SVB website for cases not processed through MSSICS (e.g., prior denials). Document this information on the DW01 screen on reopenings involving SVB cases established on MSSICS.

• Immediately begin investigation and development of the initial determination in question to determine if reopening and revision are appropriate.

2. Processing interface alerts

• Use diaries and alerts resulting from interface runs to obtain information that may affect a claimant or beneficiary's eligibility or benefit amount.

• Follow instructions in SI 02310.005C.5. in determining the date of affirmative action in writing.