TN 2 (07-93)

A. Policy

1. Requirements for EAP

SSA will not entertain a claimant's request to proceed under EAP unless:

• He/she, following the receipt of a reconsideration determination or hearing decision, indicates in some way that the denial of benefits was due to a provision of the law which he/she believes to be unconstitutional, and

• He/she also meets the requirements in GN 03107.100D.1.

2. EAP Explained

When a claimant seeks to use EAP, the FO must explain to him/her the following:

• EAP is a voluntary and alternative procedure to the usual administrative appeals process.

  IMPORTANT: Be sure the claimant understands that the right to pursue the issue through the usual administrative appeals process will be curtailed once a formal agreement is signed by both parties.

• To qualify for EAP all of the requirements in
  GN 03107.100D.1. must be met.

• Once all parties have signed the agreement, there is no provision for withdrawal from the agreement.

• When an EAP request is denied, as in the case where a pertinent eligibility factor cannot be resolved in favor of the claimant, he/she will be notified that EAP does not apply.

  The denied EAP request is then treated as a request for a hearing or AC review, as appropriate, and sent to the Office of Disability Adjudication and Review (ODAR).

  NOTE: No appeal rights are retained with a denied EAP request.

• He/she has 60 days from the date the agreement is received, signed on behalf of the Commissioner, to file a civil action in the U.S. District Court.

• If no civil action is filed then the last finding by SSA will be the final determination or decision in the case.

Address and document any additional questions the claimant may have.

B. Procedure - Claimant Proceeds With EAP

1. Claimant's Written Statement

If, after explaining the requirements, the claimant decides to proceed with EAP, then the FO will:

1. Obtain a signed statement indicating that he/she:

   • Received an explanation of EAP.

   • Agrees that the requirements in GN 03107.100D.1. are met; and

   • Wishes to enter into an EAP agreement.

2. Retain a copy of the EAP request until the EAP “agreement” prepared by CO (GN 03107.250B.1) is signed by all the parties or EAP is denied.

2. Review of Entitlement Factors

Review for eligibility factors before forwarding an EAP request to the PC. Review the claims folder to ascertain that all pertinent eligibility factors which might preclude receipt of benefits have been resolved in favor of the claimant. This is necessary because a court will take jurisdiction of an EAP case only if a constitutional issue prevents the payment of benefits.

NOTE: Any overpayment resulting from a disputed constitutional issue will need to be resolved before EAP can apply.

3. Routing EAP Request

Send the EAP request with the claims folder to the appropriate PC, ATTN: Reconsideration and Disability Review Branch, for review.

C. Procedure - Premature EAP Request

A premature EAP request may be received at any level of the appeals process. Depending on the level of review, handle as indicated below:

1. Prior to a Reconsideration Determination

Prior to a reconsideration determination, the FO will:

1. Advise the claimant that the issue must first be pursued through the reconsideration level.

2. Document the claims folder that the claimant is interested in pursuing EAP in that he/she wants to skip further administrative appeals and proceed directly to court.

2. Administrative Law Judge (ALJ) Hearing Decision

The FO will forward the EAP request to the hearing office where the decision is pending. ODAR has jurisdiction to approve or deny an EAP request when a request for hearing has been filed and a final decision of the Commissioner has not been issued.

3. AC Review Pending

Once a claim is pending AC review, the FO will explain to the claimant that there is no real advantage to request EAP. It normally takes less time to await an AC decision than file a civil action.

However, if the claimant insists on proceeding with EAP then, without any further action, the FO will forward the request to:

The Deputy Chair of the AC will make the determination if the criteria for EAP are met.

D. Procedure - Finalizing EAP Agreement

1. EAP Agreement Received From CO

The FO will receive, via a cover memorandum, a CO-prepared EAP agreement (GN 03107.250), requesting that every effort be made to obtain the claimant's signature on all three copies within 30 days. If this cannot be done in 30 days, but the FO is optimistic that the claimant will sign, the FO will then request an extension of time from CO.

2. Representation Involved

If the claimant is represented, obtain the signature through the representative. However, only the claimant may sign the agreement.

If the claimant is only now appointing a representative, then forward a completed Form SSA-1696-U4 (Appointment of Representative) along with the signed copies of the EAP agreement.

3. Claimant Refuses to Sign/Pursue Agreement

If the claimant's signature cannot be obtained because:

• He/she objects to the wording of the agreement, or there are questions which cannot be addressed by the FO, then telephone the staff contact, identified in the CO memorandum which transmitted the agreement to the FO.

• He/she no longer wishes to pursue EAP, then obtain a signed statement from him/her to that effect and return it, along with the unsigned agreement, to the office that prepared the agreement (e.g. ODISP, Office of Income Security Programs (OISP), ODISP, Office of Disability Programs (ODP)).

Explain to the claimant that failure to sign the agreement will cancel the EAP request and:

• There is no further right to appeal from that action.

• The reconsideration or hearing decision will then become the final determination/decision in the case.

4. Claimant Signs Agreement

After the claimant has signed all three copies of the agreement, return them to the office that prepared and had sent the agreement.

1. Title II Non-Disability, return to:

   Social Security Administration
   Due Process Team
   Office of Income Security Programs
   2-B-24 Operations
   6401 Security Boulevard
   Baltimore, Maryland 21235-6401

2. Title II Disability, return to:

   Social Security Administration
   ODISP, Office of Disability Programs
   4550 Annex
   6401 Security Boulevard
   Baltimore, Maryland 21235-6401

5. Claimant Seeks Representation

If the claimant expresses an interest in having an attorney represent him/ her in filing the civil action in district court, follow the instructions in GN 03910.010 concerning the right to representation.