TN 3 (04-12)

Citation: 20 CFR §§ 404.1595, 416.1331

A. What is due process?

The Fifth Amendment to the Constitution provides that no person shall be deprived of property interest without due process of law. Due process is giving the beneficiary (and his or her representative payee, if any) an opportunity to offer rebuttal evidence and respond to the proposed adverse action before we render a final decision.

Specifically, due process requires that we inform the beneficiary that we may stop or reduce his or her benefits (or an overpayment may result) if:

• He or she is no longer disabled (cessation).

• He or she is no longer entitled to disability benefits or payments on the current application (adverse reopening).

• He or she receives erroneous payments after a decision of denial.

• We change the onset date to a later date.

• We change the cessation date to an earlier date.

B. Providing due process

Merely advising the beneficiary that his or her benefits may stop because of the continuing disability review does not satisfy due process requirements; we must also inform the beneficiary of his or her right to respond and provide rebuttal evidence and allow the beneficiary an opportunity to provide that response before we make a cessation determination.

Extend due process to the beneficiary in writing, and store a copy of the notice in the official claims folder. Resolve any doubts regarding the need to provide due process in favor of providing it.

C. References

• DI 12027.015 Cases Excluded From Statutory Benefit Continuation (SBC)

• DI 27525.001 Due Process Notification for Adverse Reopenings

• DI 27525.005 Providing a Due Process Pre-Determination Notice in Cases Involving Onset Change

• DI 27525.010 Providing Due Process in Adverse Reopenings Involving Title XVI and Concurrent Title II/Title XVI Cases

• DI 27540.025 Title II-Only Pre-determination Notice Previously Mailed – Final Decision Notice Instructions

• DI 27540.030 Title XVI-Only – Goldberg/Kelly Payment Continuation Applies

• DI 27540.035 Concurrent Title II/Title XVI – Statutory Benefit Continuation Does Not Apply

• DI 28055.035 Due Process and Notice Requirements for DDS Impairment Severity Cases