TN 61 (03-05)

A. Background

Sections 202(j) and 1631(e) of the Social Security Act provide relief to claimants who lost benefits because they failed to file an application timely due to misinformation given by an SSA employee. This provision provides for establishing a “deemed” filing date when an individual satisfactorily demonstrates that information provided by SSA deterred him or her from filing a timely application and resulted in a loss of monthly title II or title XVI benefits.

The law is effective for monthly title II benefits payable after 12/82 based on misinformation furnished after 12/31/82. For title XVI, the law is effective for benefits payable after 12/89 based on misinformation given on or after 12/19/89. The title II application filing policies and procedures contained in this subchapter apply to the title XVI program unless specified otherwise.

The law does not apply to title XVIII (Medicare) of the Social Security Act. See the procedures in HI 00805.170 and HI 00805.205 for instructions for determining whether equitable relief applies.

B. Introduction

The misinformation provision allows SSA to rectify situations where misinformation deterred a claimant or proper applicant from filing for benefits. Policies have been developed which:

• Define misinformation;

• Provide that the issue of misinformation may be raised at any time;

• Include related aspects of entitlement within the scope of the provisions, such as the amount of benefits; and

• Resolve the issue in favor of the claimant, unless there is reasonable doubt or contradictory evidence exists.

C. Definitions

1. Misinformation

Misinformation is information that was not correct, complete or accurate or was misleading which:

• Is provided by an SSA official or employee who gives incorrect, misleading or incomplete information in view of the facts provided or of which he or she was aware or should have been aware;

• Is provided orally, in writing, or in the form of printed material (see GN 00204.008F.) that is specific to the case;

• Relates to aspects of entitlement to, or eligibility for, benefits or payments such as the benefit amount or whether payment can be made based on earnings;

• Is provided in connection with either filing a claim or an inquiry about or interest in a possible claim or potential benefits, where information was actively sought; and

• Deters an individual from applying for monthly title II or title XVI benefits.

2. Preferred evidence

Preferred evidence of misinformation is printed or written evidence such as a notice from SSA. (See GN 00204.008F.1.)

3. Secondary evidence

Secondary evidence of misinformation is any other evidence, including other corroborative evidence that can be used in the absence of primary evidence. (See GN 00204.008F.2.)

D. Policy - General

1. Claimant is alive

If the individual is alive and has not filed a claim for benefits, a formal application is required.

2. Death cases

In death cases, survivors can allege misinformation to establish a “deemed” filing date on behalf of the deceased. (A formal application is required if none has been filed.)

3. Filing date

We will “deem” an earlier filing date if misinformation is established. (See GN 00204.008E.)

4. Burden of proof

When misinformation is alleged, the claimant/proper applicant (see GN 00204.003) must prove that he or she failed to apply for benefits because misinformation was given.

5. State Department/American Embassies/Consulates Employees (foreign claims)

Any reference to SSA employees also includes State Department employees since they stand in the place of SSA employees.

6. Appeal rights

A claimant or proper applicant may allege misinformation at any time (i.e., before, during or after he or she has filed an application). The determination of the filing date based upon misinformation is an initial determination for which there are appeal rights. Reconsideration procedures are stated in GN 03102.100 through GN 03102.500. Claimants are notified of the misinformation determination using the appropriate notices as displayed in NL 00725.005.

7. Res Judicata

Similar to other initial determinations, the doctrine of administrative res judicata applies and limits the number of times SSA will develop an allegation of misinformation. (See GN 03101.160.)

8. Consider other policies

Develop allegations of misinformation when other established policies cannot remedy the situation (e.g. reopening, open applications, administrative finality, protective filing or recent legislative or regulatory changes, etc.).

E. Policy - “DEEMED” filing date

Where it is determined that the misinformation provision applies, the “deemed” filing date is the later of:

• The date the misinformation was given; or

• Any date after all requirements of eligibility are met.

F. Policy - acceptable evidence

1. Acceptable preferred evidence

Acceptable preferred evidence includes, but is not limited to, the following:

• A document, printed material, notice or letter issued by SSA to the claimant after information was specifically requested, which contains misinformation;

• An SSA record of a telephone call, letter or an in-person contact; or

• Other written material from SSA reflecting misinformation.

2. Acceptable secondary evidence

There may be little concrete or documentary evidence beyond the claimant's statement because:

• Interview and inquiry discussions are not always documented;

• Certain documentation in claims folders may have been purged; or

• Personnel turnover affects our ability to reconstruct the facts and events relevant to a case.

3. Examples of secondary evidence

Acceptable secondary evidence includes, but is not limited to:

a. Statements

Statements regarding the misinformation should include:

• Dates of the alleged contact,

• How the contact was made,

• Who gave the misinformation,

• The event or situation that created the need for the contact (i.e., why was the inquiry made), and

• The information that was given and the questions asked by the claimant as well as the information given and the questions asked by the SSA employee at the time of the contact.

b. Corroborative information

Corroborative information is information given by other people who were present at the time misinformation was given (e.g. a neighbor who came to the FO with the claimant) or relevant information/statements taken from identified SSA employees.

c. Management's assessment

Management’s assessment of the likelihood that misinformation was given.

d. Other information

Any other information regarding the claimant's alleged contact.

G. Kinds of information that are misinformation - Title II

Examples of situations where misinformation was given include, but are not limited to, the following:

1. Failure to develop for additional earnings

A claimant inquires about potential benefits. An SSA report of earnings (e.g., a summary earnings query) indicates a lack of insured status. However, SSA failed to develop for missing quarters and consequently earnings are not found which would yield insured status. Failure of the employee to develop in accordance with our policies and procedures and/or failure to inform the individual that missing earnings information could be documented by pay slips, wage stubs, etc., deters the claimant from filing.

2. Failure to list auxiliaries

When filing for benefits for himself, a wife and two children, a NH mentions another child living in another household. He was not advised that the child might qualify for benefits. As a result, the information is not recorded on the application, and no action is taken to protect the child's share of the family maximum.

3. Failure to explain the grace year

When inquiring about filing, an individual indicates that he is working full time earning over $95,000 thus far in the year 2000 but did not work for two months of the year. The individual is told that the yearly earnings are too high to receive benefits. The person is not told about the grace year. This incomplete information deters the person from filing.

4. Death case

A widow presents a letter her deceased husband received from SSA showing he did not have enough quarters for insured status. She also presents an earnings statement received after his death. The earnings statement shows he was insured when he first inquired about filing for benefits. She wants to file on his behalf under the misinformation provisions based upon the incorrect information in the letter which prevented him from filing timely.

5. Dual entitlement situations

See GN 00204.046 for the instructions on diaries for the optimum month for which higher benefits are due and to inform claimants of the optimum month.

Failure to establish appropriate diaries or take action on maturing diaries is only an indication of misinformation. It is not the mishandling of the diary but the failure to inform claimants of the optimum month (i.e., the correct month in which to file for higher benefits) that represents incomplete information. Whenever this inaction results in a loss of benefits, the FO or the Workload Support Unit (WSU) where the alleged misinformation was given should initiate development and make misinformation determinations following the guidelines in GN 00204.008J.

H. Kinds of information that are misinformation - Title XVI

Examples of situations where misinformation was given include, but are not limited to, the following:

1. Failure to discuss conditional payments

In a SSI oral inquiry, an individual indicates he or she owns land worth $15,000. The interviewer tells the individual that he is not eligible for SSI benefits and fails to discuss conditional payments. The incomplete information deters the inquirer from filing an SSI application.

2. Failure to discuss daughter's eligibility to SSI

An individual phones SSA and states that his only income is a monthly Social Security benefit, which is barely enough to pay rent and utilities, and buy food and clothing for himself and a disabled daughter. The individual is advised that his Social Security benefit amount is too high for him to receive SSI payments. The interviewer does not address the fact that the daughter may be eligible for SSI payments, and the individual does not file for his daughter because of the incomplete information received.

3. Failure to consider property essential for self-support

During an SSI oral inquiry an individual states that he owns a car and a truck. He uses the car to get to his weekly doctor visits and the truck for his delivery business. The interviewer excludes the car valued at $2500 for medical reasons, but fails to consider the truck valued at $2300 as property for self-support. The interviewer tells the individual that he is ineligible for SSI payments. The incorrect informal eligibility determination deters the caller from filing an SSI application.

I. Policy - types of information that are not misinformation

Examples of information that do not constitute misinformation include, but are not limited to, the following:

1. General informational pamphlets

General SSA informational pamphlets or other general information available through SSA’s Internet website are geared to basic program information and do not cover exceptions or complex issues that apply to specific case situations.

2. Benefit estimate statements

A benefit estimate statement (e.g., Social Security Statement) is based on an individual's reported and projected earnings and can be requested at any time. It is not necessarily associated with intent to file or an inquiry about eligibility, unless the claimant specifically expresses an interest in filing for benefits at the time the request for a Social Security Statement is made.

3. Information disseminated by the media

General information reviewed or prepared by SSA but, disseminated by the media; e.g., radio, magazines, TV, and newspapers or branches of the military, DVA, etc.

4. Other governmental agencies

Information provided by other governmental agencies about SSA, e.g., The Department of Veterans Affairs, State unemployment agencies, State and local governments and private agencies. See GN 00204.008D.5. for an exception to this policy.

5. Third parties

General information given to a third party who is not making a specific inquiry on behalf of a specific person.

6. General inquiries

General information given by SSA that is not case specific and is not in conjunction with a claim, an intent to file a formal application or an inquiry about a possible claim for benefits.

7. Employees not performing in an official capacity

Information provided by an SSA employee who was not acting in an official capacity at the time the alleged misinformation was provided.

J. Procedure - documentation/development

1. Who can allege/identify misinformation

A proper applicant or authorized third party who can protect the filing date of an unavailable claimant (see GN 00204.003 for the proper applicant instructions), can allege misinformation. Any SSA employee can identify misinformation.

2. Who documents the allegation

If the misinformation allegation is received by an 800 Number agent or FO employee, that employee documents the information.

3. What office is responsible for the development

a. Misinformation occurred in an 800 Number site or FO

If the misinformation occurred in an 800 Number site and it involves a current application being handled by the WSU, the WSU will develop and prepare the misinformation determination. Misinformation determinations for all other incidents of misinformation involving an 800 number or a FO will be developed and prepared by the servicing FO.

b. Misinformation occurred in a WSU

If the alleged misinformation occurred in a WSU, the WSU where the misinformation occurred will develop and prepare the misinformation determination.

c. Misinformation identified by an SSA employee

If an SSA employee identifies the misinformation, follow the procedures in GN 00204.008J.5. through GN 00204.008J.7. and use the information discovered by SSA as preferred evidence.

4. When to develop for misinformation

Develop for misinformation if the issue cannot be resolved by other policies or procedures outlined in GN 00204.008D.8.

5. How to develop

• Avoid any confrontation between the claimant and the SSA employee alleged to have given the misinformation.

• Take a signed statement from the claimant that describes his or her contact(s) with SSA and request evidence (see GN 00204.008F.).

• Retain any evidence submitted by the claimant.

• Resolve the issue of misinformation in favor of the claimant unless there is reasonable doubt or clear contradictory evidence.

6. Who makes the determination

A claims representative other than the adjudicator or employee who gave the misinformation will make a misinformation determination following the guidelines in GN 00204.008J.5.

Claims representatives also can develop for and make misinformation determinations whenever misinformation was allegedly given by an 800 Number agent if preferred evidence is available (e.g., a record of the telephone contact).

7. Preferred evidence is not available

When acceptable preferred evidence (see GN 00204.008F.1.) is not readily available, a supervisor, or designated management official (e.g., field office manager, field office assistant manager, operations officer, etc.) will conduct an interview with the claimant to:

• Obtain detailed information about the misinformation contact(s) and allegation;

• Request and develop for secondary evidence (see GN 00204.008F.2.);

• Analyze the allegation in conjunction with other relevant factors and the validity of the facts;

• Assess the likelihood that misinformation was given; and

• Prepare a formal determination (see GN 01010.360 and GN 01010.390 for preparing formal determinations) on the misinformation issue (see GN 00204.008J.4.).

8. Misinformation determination

Include the following in the formal determination (to be prepared on the RPOC screen, if possible) of the filing date based upon misinformation:

• The alleged misinformation;

• A description of any preferred and/or secondary evidence;

• Assessment of the likelihood that an SSA employee gave misinformation based on local FO, 800 Number or WSU practices, procedures, workflow, “common knowledge”; the nature or complexity of the issues involved; the employee's understanding, ability or level of training; and

• If appropriate, a determination establishing a “deemed” filing date (see GN 00204.008E.).

• Follow the partial award procedures in GN 00204.008K.2. when applicable.

K. Procedure - case handling - Title II

1. Adjudication

Generally, adjudicate the claim following the guidelines in GN 01010.001. However, special considerations for case handling may be required. (See GN 00204.008K.2. through GN 00204.008K.5.)

2. Partial award

• Pay any benefits due based on the current application and develop the misinformation aspects if further development is required to resolve the misinformation issue. (See GN 01010.110 through GN 01010.120.)

• Diary the claim for the misinformation development.

• Explain in the claimant’s notice that we are evaluating the allegation of misinformation and will inform him or her of the findings later (see paragraph MISR05 in NL 00725.005).

3. Amended awards

If misinformation is found and a “deemed” filing date is established, the PC will review the determination, process an amended award and send a notice to reflect the new filing date. See GN 01061.005.

4. Adverse actions

If benefits are awarded based on the misinformation provision and an adverse action results, follow the guidelines in GN 01010.310 — GN 01010.330. Regular overpayment procedures apply to adverse actions. Notify overpaid beneficiaries in accordance with GN 02201.009.

5. Auxiliaries

If a “deemed filing date” is established based upon misinformation, any auxiliaries named on the title II application also are protected (e.g., minor children of the NH, including situations when only the number of children is shown).

6. Month of entitlement (MOET)

Based upon the misinformation determination, a claimant may elect any MOET if he or she meets all factors of entitlement and, it is not precluded by another provision. In those situations where misinformation applies, a beneficiary has the option of selecting a new MOET that is later than the date the misinformation was given, or the date he or she met all the factors of entitlement. Document the RPOC screen that an explanation was provided to the claimant about his or her MOET options as a result of the finding of misinformation.

L. Procedure - case handling - Title XVI

1. Misinformation allegation unresolved

Process the current SSI application and pay the claimant based on that application. Develop the misinformation aspects if further development is required to resolve the issue. Diary for receipt of the misinformation development. Send a notice to the claimant and include the appropriate paragraph in NL 00725.005 explaining that the allegation of misinformation is being evaluated and that he or she will be notified of the findings when the evaluation is completed.

2. Misinformation established

Use the “deemed” filing date established in the misinformation determination to develop factors of eligibility and to recompute the amount of any SSI payments due. Notify the claimant of the earlier filing date established based on misinformation and that SSI benefits will be paid based on this filing date.

M. Procedure - misinformation not found

1. Misinformation denied; claim disallowed/denied

Process the disallowance/denial on the claim in the usual manner when an allegation of misinformation is also denied. However, in processing the disallowance/denial, keep in mind the following:

• Reconsideration rights accrue whether misinformation is raised at the initial stage or not.

• Send the beneficiary denial letter DEN001 (Opening - T2 misc. disallowance) that is located in DPS adding the notice language found in MISR06. The appropriate appeal and referral language is included in this notice.

2. Misinformation denied; claim allowed

Process the claim based on the current filing date and add a paragraph to the award notice explaining that an earlier filing date cannot be established based on misinformation; therefore, benefits will be paid based on the current claim’s application filing date.

N. References

Waiving recovery of overpayments, GN 02250.061

Extending the time for filing a request for review, GN 03101.020

Res judicata, GN 03101.160

Equitable relief in Medicare claims, HI 00805.170

Misinformation notice paragraphs, NL 00725.005