I-5-4-44.Rosetti v. Shalala

Table of Contents
I Purpose
II Background
III Guiding Principles
IV Definition of Class
V Determination of Class Membership and Eligibility for Relief and Preadjudication Actions
VI Processing and Adjudication
VII Case Coding
VIII Reconciliation of Implementation
IX Inquiries
Attachment 1 Rosetti Stipulation and Order; Approved by the Court on July 7, 1994; Entered by the Clerk of Court on July 8, 1994
Attachment 2 ROSETTI COURT CASE FLAG/ALERT
Attachment 3 Route Slip or Case Flag for Screening
Attachment 4 ROSETTI SCREENING SHEET
Attachment 5 Route Slip for Routing Class Member Alerts and Prior Claim File(s) to ODIO or PSC - OHA No Longer Has Current Claim
Attachment 6 Notice of Non-Class Membership/Ineligibility for Relief
Attachment 7 Route Slip for Non-class Members/Ineligibility for Relief Cases
Attachment 8 Text for Notice of Revised Class Membership/Eligibility for Relief Determination
Attachment 9 Rosetti Class Member Flag for Headquarters Use (DDS Readjudication - Retention Period Expired)
Attachment 10 Rosetti Class Member Flag for Headquarters Use (DDS Readjudication - Retention Period Has Not Expired)
Attachment 11 ALJ Dismissal to DDS
Attachment 12 Notice Transmitting ALJ Order of Dismissal
Attachment 13 Rosetti Class Member Flag for HO Use (DDS Readjudication)

ISSUED: February 14, 1995; REVISED: June 28, 1996

I. Purpose

This Temporary Instruction (TI) sets forth procedures for implementing the parties' joint Stipulation and Order, approved by the United States District Court for the Eastern District of Pennsylvania on July 7, 1994, and entered on July 8, 1994, in the Rosetti v. Shalala class action involving the standard for the evaluation of disability due to human immunodeficiency virus (HIV) or acquired immunodeficiency syndrome (AIDS).

Adjudicators throughout the country must be familiar with this TI because of case transfers and because Rosetti class members who now reside outside of Delaware, New Jersey, Pennsylvania and the Virgin Islands must have their cases processed in accordance with the requirements of the joint stipulation and order.

II. Background

On May 28, 1991, plaintiffs filed a class complaint challenging certain aspects of the Secretary's evaluation of claims of disability under titles II and/or XVI of the Social Security Act due to HIV or AIDS.

On December 17, 1991, the Secretary published Social Security Ruling (SSR) 91-8p in order to revise and update the guidelines for the evaluation of claims for disability based on allegations of HIV or AIDS.

By orders dated March 31, 1992, and September 2, 1992, the United States District Court for the Eastern District of Pennsylvania dismissed the action.

On July 2, 1993, the Secretary published a final rule in the Federal Register establishing new listing sections called “Immune System” (Listings 14.00 and 114.00). The new listings included criteria for HIV (Listings 14.08 and 114.08). These criteria replaced SSR 91-8p, which was rescinded as of the date of the publication of the new regulations.

On December 15, 1993, the United States Court of Appeals for the Third Circuit vacated the district court's dismissal orders and remanded the case to the district court for consideration of plaintiffs' motion for class certification. On March 9, 1994, the Court of Appeals denied the Secretary's petition for rehearing with suggestion for rehearing en banc.

In order to avoid further litigation, the parties agreed to settle their dispute. On July 7, 1994, the district court approved the parties' joint Stipulation and Order (Attachment 1). The clerk of the court entered the Stipulation and Order on July 8, 1994.

III. Guiding Principles

Under Rosetti, the Secretary will readjudicate the title II and title XVI claims of those persons who: 1) respond to notice informing them of the opportunity for review or who do not receive notice but who otherwise self-identify and request review (e.g., “walk-ins”); and 2) are determined, after screening, to be class members entitled to relief (see Parts IV. and V.). The class action section in the Office of Disability and International Operations (ODIO) will screen title II and concurrent title II and title XVI claims for eligibility for class relief, and the Northeastern Program Service Center (NEPSC) or the Mid-Atlantic Program Service Center (MATPSC) will screen title XVI only claims, unless there is a current claim, i.e., a potential class member claim or a subsequent claim, pending in the DDS or OHA, or stored at OHA. Regardless of the state of the claimant's current residence, the Disability Determination Services (DDSs) in Delaware, New Jersey, Pennsylvania and the Virgin Islands will, in most cases, perform the agreed-upon readjudications, irrespective of the administrative level at which the claim was last decided.

EXCEPTION:

The DDS servicing the claimant's current address will perform the readjudication in terminal illness (TERI) cases and if a face-to-face review is necessary, i.e., cessation case.

OHA will screen cases and perform readjudications under limited circumstances (see Part V.B.).

Cases readjudicated by the DDS will be processed at the reconsideration level regardless of the final level at which the claim was previously decided. The type of readjudication will be a "redetermination" (see Part VI.). Class members who receive adverse readjudication determinations will have full appeal rights (i.e., Administrative Law Judge (ALJ) hearing, Appeals Council and judicial review).

Adjudicators will use the disability evaluation standards reflected in Listings 14.08 and 114.08 in evaluating the disability claims of Rosetti class members.

NOTE:

Rosetti class member claims should be processed as expeditiously as possible. (See HALLEX I-2-1-40 and I-3-1-51 for TERI procedures.)

IV. Definition of Class

Except as noted below, for purposes of implementing the terms of the stipulation and order, the Rosetti class potentially entitled to relief consists of all individuals who:

  • filed for disability benefits under titles II and/or XVI of the Social Security Act based in whole or in part on allegations of HIV infection or AIDS; and

  • were issued a less than fully favorable (i.e., later onset, closed period, denied or terminated) final administrative determination or decision, based on medical reasons, between March 22, 1991, and July 1, 1993, inclusive, while residing in Delaware, New Jersey, Pennsylvania or the Virgin Islands.

    EXCEPTIONS:

    A person is not a class member eligible for class relief if

    (1) the last administrative denial or termination received on the potential Rosetti claim was issued before March 22, 1991, or on or after July 2, 1993; or

    (2) the individual received a final judicial decision on the potential Rosetti claim; or

    (3) the individual had a subsequent claim denied on or after July 2, 1993, and the subsequent claim covered the entire period of disability at issue in the potential Rosetti claim.

V. Determination of Class Membership and Eligibility for Relief and Preadjudication Actions

A. Pre-Screening Actions - General

  1. Notification

    Within 45 days after SSA issues implementation instructions, SSA shall, to the extent practicable, send an individual notice to the last known address of every individual who has been identified by computer run as a potential class member whose primary or secondary diagnosis code identified on SSA's data processing system was 0420 (AIDS), 0430 (HIV symptomatic) or 0440 (HIV asymptomatic). Individuals will have 60 days from the date of receipt of the notice to request that SSA readjudicate their claims under the terms of the Rosetti stipulation and order. SSA will presume an individual's receipt of the notice five days after mailing, unless the individual establishes that receipt actually occurred later.

    ODIO will contact the servicing Social Security field office (FO) (i.e., district or branch office) for development of possible evidence of good cause for the untimely response. Good cause determinations will be based on the standards in 20 CFR §§ 404.911 and 416.1411. If good cause is established, the field office will forward the good cause determination and any folders currently in the FO, to ODIO (title II claims and concurrent claims) or the NEPSC or MATPSC (title XVI claims) to retrieve the folders and for screening.

  2. Alert and Folder Retrieval Process

    All response forms should be returned to ODIO so that the information can be entered into the Civil Actions Tracking System (CATS). CATS will generate alerts to ODIO. See Attachment 2 for a sample Rosetti alert.

    ODIO will associate the computer-generated alerts with available title II and concurrent title II and title XVI potential class member claim file(s) and conduct the screening. For title XVI only claims, the NEPSC or MATPSC will retrieve available folders, except those found in the Wilkes-Barre Data Operations Center (Wilkes-Barre), the DDS or OHA, and conduct the screening. Wilkes-Barre, NEPSC or MATPSC will retrieve available title XVI claim files and then forward those files to either the NEPSC or MATPSC for screening (see Part III.).

  3. Alerts Sent to OHA

    If ODIO, the NEPSC, MATPSC or Wilkes-Barre determines that a current claim, i.e., either a potential class member claim or a subsequent claim, is pending appeal or stored at OHA, it will forward the alert to OHA, along with any prior claim file(s) not in OHA's possession, for screening, consolidation consideration and readjudication (if consolidated).

    ODIO, the NEPSC, MATPSC or Wilkes Barre will forward all alerts potentially within OHA jurisdiction and related prior claim files, if any, to the Office of Appellate Operations (OAO), at the following address (case locator code 5007):

    Office of Hearings and Appeals
    Office of Appellate Operations
    One Skyline Tower, Suite 701
    5107 Leesburg Pike
    Falls Church, VA 22041-3200
    ATTN: OAO Class Action Coordinator

    NOTE:

    The OAO Class Action Coordinator is responsible for controlling and reconciling the disposition of class alerts shipped to OHA Headquarters for association with pending or stored claims. The Coordinator will maintain a record of all alerts received and the location, if any, to which they are transferred. This information will be necessary to do the final class membership reconciliation.

  4. Folder Reconstruction

    In general, ODIO, the NEPSC or MATPSC will coordinate any necessary reconstruction of prior claim files. OHA requests for reconstruction of potential Rosetti cases should be rare. Prior to requesting reconstruction, OHA will determine whether available systems data or other information provides satisfactory proof that the claim would not confer class membership. OHA (the HO or the OAO branch) will direct any necessary reconstruction requests to the servicing FO. The request will be made by memorandum and will include the alert and any accompanying claim file(s) (if the claim file(s) is not needed for adjudication purposes) as attachments. The request will also include documentation of the attempts to locate the file. The memorandum will request the FO to send the reconstructed file to OHA after it completes its reconstruction action. HOs will route any reconstruction requests directly to the servicing FO. The OAO branch will route reconstruction requests through the OAO Class Action Coordinator. For CATS purposes, HO personnel and the OAO Class Action Coordinator will forward a copy of the reconstruction request memorandum to Litigation Staff at the following address:

    Office of the Deputy Commissioner for Programs,
       Policy, Evaluation and Communications
    Litigation Staff
    3-K-26 Operations Building
    6401 Security Boulevard
    Baltimore, MD 21235
    ATTN: RosettiCoordinator

    HO personnel and the OAO branch will identify in the reconstruction request the OHA location of any existing claim file(s) being retained for adjudication purposes, and the date(s) of the claim(s) involved.

    The HO or OAO will not delay action on a pending claim when a prior claim is being reconstructed for screening purposes, unless the prior claim is needed for the adjudication of the pending claim. If OHA completes action on the pending claim prior to receipt of the reconstructed folder, the HO or OAO, as appropriate, will forward the class action material, including the alert, unneeded claim files, if any, and the reconstruction request to the OAO Class Action Coordinator, along with a copy of the action on the pending claim. For additional information on reconstruction procedures, see the Class Action Implementation instructions in HALLEX I-1-7-5C.

  5. Class Membership Denials (Non-Eligibility for Relief)

    ODIO, the NEPSC or MATPSC, or OHA, as appropriate, will hold for 90 days all claim files of individuals to whom SSA sends notice of non-class membership and ineligibility for relief, pending review by claimants or class counsel. If an individual wishes to dispute SSA's class membership/eligibility for relief determination, he or she must give timely written notice of the disagreement to the Office of the General Counsel (OGC) (i.e., within 60 days of receipt of notice that the individual is not a class member eligible for relief). Upon request, class counsel, subject to the Privacy Act Protective Order, will be given reasonable and timely access to potential class members' claim files for the purpose of resolving class membership disputes. Upon request by class counsel to review claim files, the Office of the Deputy Commissioner for Programs' Litigation Staff will coordinate with ODIO, the NEPSC or MATPSC, or OHA to forward the claim files to:

    MATPSC
    300 Spring Garden Street
    Philadelphia, PA 19123

B. OHA Screening Actions

  1. Determining Jurisdiction for Screening

    1. Current Claim in OHA

      As provided in Part V.A.3., if there is a current claim pending or stored at OHA Headquarters, the OAO Class Action Coordinator will receive the alert and related Rosetti claim file(s). The OAO Class Action Coordinator will determine OHA jurisdiction for screening and forward as follows.

      • If the current claim is in an HO, the Coordinator will forward the alert and any prior claim file(s) to the HO for screening using Attachment 3. (Part V.B.2.a. provides instructions to HOs regarding the action to be taken if they receive an alert package but no longer have a current claim pending.)

      • If the current claim is before the Appeals Council, or is located in an OAO branch mini-docket or in an OAO Docket and Files Branch (DFB), the Coordinator will forward the alert and any prior claim file(s) to the appropriate OAO branch for screening using Attachment 3. (Part V.B.2.a. provides instructions to the OAO branches regarding the action to be taken if they receive an alert package but no longer have a current claim pending.)

        If the Coordinator (or designee) is unable to locate the current claim file within OHA, the Coordinator (or designee) will broaden the claim file search and arrange for alert transfer or folder reconstruction, as necessary.

    2. Current Claim Pending in Court

      If the OAO Class Action Coordinator receives an alert for a claimant who has a civil action pending, either on the alerted case or on a subsequent or prior claim, the Coordinator will forward the alert and any accompanying claim file(s) to the appropriate OAO Court Case Preparation and Review Branch (CCPRB) for screening using Attachment 3. See Part V.B.2.b. for special screening instructions when a civil action is involved.

  2. Screening

    1. General Instructions

      The screening component will associate the alert and any prior claim file(s) with the claim file(s) in its possession and complete a screening sheet (see Attachment 4) as follows:

      NOTE:

      If the claim pending at OHA is the potential class member claim, then the individual is not a class member entitled to relief under Rosetti (see Part IV.). Complete the screening sheet and follow the instructions in Part V.B.3.a. for processing the claims of individuals who are not class members eligible for relief.

      • Consider all applications denied/ceased during the Rosetti timeframe;

        NOTE:

        Although not the “final decision of the Commissioner,” an Appeals Council denial of a request for review is the last action of the Commissioner, and the date of such denial controls for class membership screening purposes.

      • Follow all instructions on the screening sheet;

      • Sign and date the original screening sheet, place it in the claim file (on the top right side of the file); and

      • If the screening component is an OHA headquarters component, forward a copy of the screening sheet to the OAO Class Action Coordinator at the address in Part V.A.3. (The Coordinator will enter information from the screening sheet into a database and will forward a copy of the screening sheet to the Division of Litigation Analysis and Implementation (DLAI).) If the screening component is an HO, forward a copy of the screening sheet directly to DLAI at the following address:

        Office of Hearings and Appeals
        Division of Litigation Analysis and
            Implementation
        One Skyline Tower, Suite 702
        5107 Leesburg Pike
        Falls Church, VA 22041-3255

        HO personnel may also forward material by telefax to DLAI at (703) 305-0655. (DLAI will retain a copy of each screening sheet and forward a copy to Litigation Staff.)

        If the HO receives an alert only or an alert associated with a prior claim file(s) for screening, and no longer has the current claim file, it will return or forward the alert and any prior claim file(s) to the OAO Class Action Coordinator (see address in Part V.A.3.), and advise the Coordinator of the action taken on the current claim and its destination. The Coordinator will determine the claim file location and, if it is located in OHA headquarters, will forward the alert and any accompanying prior claim file(s) to the responsible OAO branch for screening, using Attachment 3. If the file(s) is no longer in OHA, the Coordinator will use Attachment 5 to send the alert and any accompanying prior claim file(s) to the non-OHA location.

        If an OAO branch receives an alert only, or an alert associated with a prior claim file(s) and no longer has the current claim file (and it is not located in mini-dockets or an OAO DFB), it will determine the location of the current claim file. If the current claim file is located within OHA, the OAO branch will use Attachment 3 to forward the material to the OHA location. If the file(s) is no longer in OHA, the OAO branch will use Attachment 5 to forward the material to the non-OHA location. The OAO branch will also advise the OAO Class Action Coordinator of its actions.

        NOTE:

        Final determinations or decisions made on or after July 2, 1993, on a subsequent claim filed by a potential Rosetti class member may have adjudicated the entire timeframe covered by the Rosetti claim. Instead of applying the doctrine of administrative res judicata to the Rosetti claim, a non-class membership/ineligibility for relief determination must be made.

    2. Special OAO Screening Instructions if a Civil Action Is Involved

      As noted in Part V.B.1.b., the CCPRB will screen for Rosetti class membership/eligibility for relief when a civil action is involved. The CCPRB's class membership/eligibility for relief determination will dictate the appropriate post-screening action.

      • If the claim pending in court is the potential class member claim, the CCPRB will immediately notify OGC so that OGC can notify the claimant of the option to have the case remanded for readjudication under Rosetti.

      • If the claim pending in court is a subsequent claim and was adjudicated in accordance with the disability evaluation standards reflected in Listings 14.08 and 114.08 and resolved all Rosetti issues, the claimant is not a Rosetti class member entitled to relief. The CCPRB will follow the instructions in Part V.B.3.a. for processing such claims.

      • If the claim pending in court was adjudicated in accordance with Listings 14.08 and 114.08, but did not resolve all Rosetti issues, e.g., there is a prior (inactive) claim and the current claim did not adjudicate the entire period covered by the Rosetti claim, the CCPRB will forward the Rosetti claim to the appropriate DDS for separate review. The CCPRB will modify the case flag in Attachment 13 to indicate that the pending court case does not resolve all Rosetti issues and that the Rosetti class member claim is being forwarded for separate processing. The CCPRB will notify the Class Action Coordinator of its action.

      • If the final administrative decision on the claim pending in court was not adjudicated in accordance with the disability evaluation standards reflected in Listings 14.08 and 114.08, or is legally insufficient for other reasons, the CCPRB will initiate voluntary remand proceedings and consolidate the claims.

  3. Post-Screening Actions

    1. Screened Out Cases

      If the screening component determines that the individual is not a class member eligible for relief, the component will:

      • notify the individual and representative, if any, (with a copy to class counsel) of that determination using Attachment 6 (modified as necessary to fit the circumstances and posture of the case when there is a current claim);

        NOTE:

        Include the date and claim number at the top of Attachment 6 in the spaces indicated.

      • retain a copy of the notice in the claim file;

      • send a copy of the notice to Rosetti class counsel:

        Community Legal Services, Inc.
        1424 Chestnut Street
        Philadelphia, PA 19102

        An individual who wishes to dispute a determination of non-class membership and ineligibility for relief may do so directly, through their representative of record, or through Rosetti class counsel.

      • retain the claim file(s) for 90 days pending a possible class membership dispute;

      • if class counsel makes a timely request to review a screened out claim file, send the file to:

        MATPSC
        300 Spring Garden Street
        Philadelphia, PA 19123

        using the pre-addressed route slip in Attachment 7;

        NOTE:

        Photocopy any material contained in the prior file that is relevant to the current claim and place it in the current claim file before shipping the prior file.

      • if SSA, through OGC, resolves the dispute in the claimant's favor: 1) the original screening component or Litigation Staff will prepare a revised screening sheet and send notice of the revised class membership/eligibility for relief determination (Attachment 8) to the claimant, or representative, if any, and class counsel; 2) OHA jurisdiction cases will proceed in accordance with Part VI.; 3) the rescreening component will notify DLAI of the revised determination by forwarding a copy of the revised screening sheet to DLAI; and 4) DLAI will coordinate with the OAO Class Action Coordinator as necessary.

      • if the dispute cannot be resolved, OGC will send the claimant, and class counsel, a notice indicating that the claimant will have 60 days to request district court review of the class membership/eligibility for relief determination.

      • if after 90 days no review is requested, return the file(s) to the appropriate storage location if not otherwise needed.

    2. Cases Determined to Be Class Members Entitled to Relief

      If the screening component determines that the individual is a class member entitled to relief, it will proceed with processing and adjudication in accordance with the instructions in Part VI.

VI. Processing and Adjudication

A. Cases Reviewed by the DDS

The Delaware, New Jersey, Pennsylvania and Virgin Islands DDSs, or any other DDSs servicing residents of Delaware, New Jersey, Pennsylvania or the Virgin Islands, will usually conduct the first Rosetti review. An exception may apply when the Rosetti claim is a TERI case. An exception will also apply for cases consolidated at the OHA level (see Part VI.E.). The DDS determination will be a reconsideration determination, regardless of the administrative level at which the class member claim(s) was previously decided, with full appeal rights (i.e., ALJ hearing, Appeals Council and judicial review). (See Part VI.B.)

B. OHA Adjudication of Class Member Claims

The following instructions apply to both consolidation cases in which the ALJ or Appeals Council conducts the Rosetti readjudication and to DDS readjudication cases in which the claimant requests a hearing or Appeals Council review. Except as noted herein, HOs and OHA Headquarters will process Rosetti class member cases according to all other current practices and procedures including coding, developing evidence, routing, etc. However, pursuant to the parties' stipulation and order, SSA must exert its best efforts to resolve all Rosetti class members' claims as expeditiously as possible.

NOTE:

Implementation of the Rosetti order must never delay the processing of TERI claims and must never interfere with the operation of TERI procedures on such claims. (See HALLEX I-2-1-40, I-3-1-51.)

  1. Type of Review and Period to Be Considered

    1. Pursuant to the Rosetti Stipulation and Order, regardless of whether the claim under review is an initial claim or a cessation case, the type of review to be conducted is a redetermination. The redetermination shall be a de novo evaluation of the class member's eligibility for benefits based on all evidence in his or her file including newly obtained evidence relevant to the period that was at issue in the administrative determination or decision(s) that forms the basis for Rosetti class membership.

    2. If the redetermination results in a favorable decision, the adjudicator will determine whether the individual's disability has been continuous through the date of the redetermination or to the date of the most recent allowance.

    3. If the evidence establishes that disability began only at some point after the administrative determination(s)/decision(s) that forms the basis for Rosetti class membership, the class member must file a new application to establish eligibility.

  2. Disability Evaluation Standards

    Adjudicators must use the disability evaluation standards reflected in Listings 14.08 and 114.08 for evaluating disability based on allegations of HIV or AIDS in class member claims.

  3. Class Member Is Deceased

    If a class member is deceased, the usual survivor and substitute party provisions and existing procedures for determining distribution of any potential underpayment apply.

C. Claim at OHA But No Current Action Pending

If a claim file (either a class member or a subsequent claim) is located in OHA Headquarters but there is no claim actively pending administrative review, i.e., Headquarters is holding the file awaiting potential receipt of a request for review or notification that a civil action has been filed, OAO will associate the alert with the file and screen for class membership. (The OAO Class Action Coordinator will coordinate the necessary actions as explained in Part V.) (See Part V.B.3., for non-class member processing instructions.)

  • If the 120-day retention period for holding a claim file after an ALJ decision or Appeals Council action has expired, OAO will attach a Rosetti class member flag (see Attachment 9) to the outside of the file and forward the claim file(s) to the appropriate DDS for review of the Rosetti class member claim.

  • If less than 120 days have elapsed, OAO will attach a Rosetti class member flag (see Attachment 10) to the outside of the file to ensure the case is routed to the appropriate DDS, after expiration of the retention period. Pending expiration of the retention period, OAO will also:

    -- return unappealed ALJ decisions and dismissals to DFB; and

    -- return unappealed Appeals Council denials to the appropriate OAO minidocket.

The respective OAO component will monitor the retention period and, if the claimant does not seek further administrative or judicial review, route the file(s) to the appropriate DDS in a timely manner.

D. Processing and Adjudicating Class Member Claims in Conjunction with Current Claims (Consolidation Procedures)

NOTE:

Even claims subject to consolidation should be consolidated only to the extent practicable. Thus, if consolidation would unreasonably delay a decision on the current claim, consolidation is not required.

  1. General

    If a class member has a current claim pending at any administrative level and consolidation is warranted according to the guidelines below, the appropriate component will consolidate all Rosetti class member claims with the current claim at the level at which the current claim is pending.

  2. Current Claim Pending in the Hearing Office

    1. Hearing Has Been Scheduled or Held, and All Remand Cases

      Except as noted below, if a Rosetti class member has a request for hearing pending on a current claim, and the ALJ has either scheduled or held a hearing, and in all remand cases, the ALJ will consolidate the Rosetti case with the appeal on the current claim.

      EXCEPTIONS:

      The ALJ will not consolidate the claims if

      • the current claim and the Rosetti claim do not have any issues in common, or

      • a court remand contains a court-ordered time limit, and it will not be possible to meet the time limit if the claims are consolidated.

      If the claims are consolidated, follow Part VI.D.2.c. If the claims are not consolidated, follow Part VI.D.2.d.

    2. Hearing Not Scheduled

      Except as noted below, if a Rosetti class member has an initial request for hearing pending on a current claim and the HO has not yet scheduled a hearing, the ALJ will not consolidate the Rosetti claim and the current claim. Instead, the ALJ will dismiss the request for hearing on the current claim and forward both the Rosetti claim and the current claim to the DDS for further action (see Part VI.D.2.d.).

      EXCEPTION:

      If the hearing has not been scheduled because the claimant waived the right to an in-person hearing, and the ALJ is prepared to issue a fully favorable decision on the current claim, and this decision would also be fully favorable with respect to all the issues raised by the application that makes the claimant a Rosetti class member, the ALJ will consolidate the claims.

      If the claims are consolidated, follow Part VI.D.2.c. If the claims are not consolidated, follow Part VI.D.2.d.

    3. Actions If Claims Consolidated

      When consolidating a Rosetti claim with any subsequent claim, the issue is whether the claimant was disabled at any time from the earliest alleged onset date through the present or to the date of the most recent allowance (or through the date the claimant last met the prescribed period requirements, if earlier).

      If the ALJ decides to consolidate the current claim with the Rosetti claim(s), the HO will:

      • give proper notice of any new issue(s) as required by 20 CFR §§ 404.946(b) and 416.1446(b), if the Rosetti claim raises any additional issue(s) not raised by the current claim;

      • offer the claimant a supplemental hearing if the ALJ has already held a hearing and the Rosetti claim raises an additional issue(s), unless the ALJ is prepared to issue a fully favorable decision with respect to the Rosetti claim;

      • issue one decision that addresses both the issues raised by the current request for hearing and those raised by the Rosetti claim (the ALJ's decision will clearly indicate that the ALJ considered the Rosetti claim pursuant to the Rosetti stipulation and order).

    4. Action If Claims Not Consolidated

      If common issues exist but the ALJ decides not to consolidate the current claim with the Rosetti claim because the hearing has not yet been scheduled, the ALJ will:

      • dismiss the request for hearing on the current claim without prejudice, using the language in Attachment 11 and the covering notice in Attachment 12;

      • send both the Rosetti claim and the current claim to the appropriate DDS for consolidation and further action.

      If the ALJ decides not to consolidate the current claim with the Rosetti claim because: 1) the claims do not have any issues in common or 2) there is a court-ordered time limit, the ALJ will:

      • flag the Rosetti claim for DDS review using Attachment 13; immediately route it to the appropriate DDS for adjudication (photocopies of any relevant material from either file should be made and placed in the other file before shipping) and retain a copy of Attachment 13 in the current claim file; and

      • take the necessary action to complete the record and issue a decision on the current claim.

      • in those instances where cases return to OHA after new denials at the DDS, the ALJ will schedule the consolidated claims for hearing using the original request for hearing date to determine scheduling priority.

  3. Current Claim Pending at the Appeals Council

    The action the Appeals Council takes on the current claim determines the disposition of the Rosetti claim. Therefore, OAO must keep the claim files together until the Appeals Council completes its action on the current claim. The following sections identify possible Appeals Council actions on the current claim and the corresponding action on the Rosetti claim.

    1. Appeals Council Intends to Dismiss, Deny Review or Issue a Denial Decision on the Current Claim -- No Rosetti Issue(s) Will Remain Unresolved.

      This will usually arise when the current claim duplicates the Rosetti review claim, i.e., the current claim raises the issue of disability and covers the entire period adjudicated in the Rosetti claim, and the current claim has been adjudicated in accordance with the provisions in Listings 14.08 and 114.08. In this instance, the Appeals Council will consolidate the claims and proceed with its intended action. The Appeals Council's order, decision or notice of action will clearly indicate that the ALJ's or Appeals Council's action resolved or resolves both the current claim and the Rosetti claim.

    2. Appeals Council Intends to Dismiss, Deny Review or Issue a Denial Decision on the Current Claim -- Rosetti Issue(s) Will Remain Unresolved.

      This will usually arise when the current claim does not duplicate the Rosetti claim, e.g., the current claim raises the issue of disability but does not cover the entire period adjudicated in the Rosetti claim. For example, the Rosetti claim raises the issue of disability for a period prior to the period adjudicated in the current claim. In this instance, the Appeals Council will proceed with its intended action on the current claim.

      OAO staff will attach a Rosetti case flag (Attachment 13; appropriately modified) to the Rosetti claim, immediately forward the Rosetti claim to the appropriate DDS for adjudication, and retain a copy of Attachment 13 in the current claim file. OAO will modify Attachment 13 to indicate that the Appeals Council's action on the current claim does not resolve all Rosetti issues and that the Rosetti class member claim is being forwarded for separate processing. OAO staff will include copies of the ALJ's or Appeals Council's decision or order or notice of denial of request for review on the current claim and the exhibit list used for the ALJ's or Appeals Council's decision.

    3. Appeals Council Intends to Issue a Favorable Decision on the Current Claim -- No Rosetti Issue(s) Will Remain Unresolved.

      If the Appeals Council intends to issue a fully favorable decision on a current claim, and this decision would be fully favorable with respect to all issues raised by the application that makes the claimant a Rosetti class member, the Appeals Council should proceed with its intended action. In this instance, the Appeals Council will consolidate the claims, reopen the final determination or decision on the Rosetti claim and issue a decision that adjudicates both applications. The Appeals Council's decision will clearly indicate that the Appeals Council considered the Rosetti claim pursuant to the Rosetti stipulation and order.

    4. Appeals Council Intends to Issue a Favorable Decision on the Current Claim -- Rosetti Issue(s) Will Remain Unresolved.

      If the Appeals Council intends to issue a favorable decision on a current claim and this decision would not be fully favorable with respect to all issues raised by the Rosetti claim, the Appeals Council will proceed with its intended action. In this situation, the Appeals Council will request the effectuating component to forward the claim files to the appropriate DDS after the Appeals Council's decision is effectuated. OAO staff will include the following language on the transmittal sheet used to forward the case for effectuation: "Rosetti court case review needed -- following effectuation forward the attached combined folders to the appropriate DDS."

    5. Appeals Council Intends to Remand the Current Claim to an Administrative Law Judge.

      If the Appeals Council intends to remand the current claim to an Administrative Law Judge, it will proceed with its intended action unless one of the exceptions below applies. In its remand order, the Appeals Council will direct the ALJ to consolidate the Rosetti claim with the action on the current claim pursuant to the instructions in Part VI.D.2.a.

      EXCEPTIONS:

      The Appeals Council will not direct the ALJ to consolidate the claim if

      • the current claim and the Rosetti claim do not have any issues in common, or

      • a court remand contains a court-ordered time limit and it will not be possible to meet the time limit if the claims are consolidated.

        If the claims do not share a common issue or a court-ordered time limit makes consolidation impractical, OAO will forward the Rosetti class member claim to the appropriate DDS, for separate review. The case flag in Attachment 13 should be modified to indicate that the Appeals Council, rather than an Administrative Law Judge, is forwarding the Rosetti class member claim for separate processing.

VII. Case Coding

HO personnel will code prior claims into the Hearing Office Tracking System (HOTS) and the OHA Case Control System (OHA CCS) as “reopenings.” If the prior claim is consolidated with a current claim already pending at the hearing level (see Part VI.D.), HO personnel will not code the prior claim as a separate hearing request. Instead, HO personnel will change the hearing type on the current claim to a “reopening.” If the conditions described in Part VI.D.2.b. apply, the ALJ should dismiss the request for hearing on the current claim and HO personnel should enter “OTDI” in the “DSP” field.

To identify class member cases in HOTS, HO personnel will code “RR” in the “Class Action” field. No special identification codes will be used in the OHA CCS.

VIII. Reconciliation of Implementation

At an appropriate time, the Office of the Deputy Commissioner for Programs, Policy, Evaluation and Communications' Litigation Staff will request SSA components to reconcile their screening activity and disposition of class member claims with information available on CATS. Within OHA, the OAO Class Action Coordinator is responsible for maintaining a personal computer-based record of OHA implementation activity (i.e., a record of alerts processed by OHA, and a record of cases screened and consolidated by OHA), as reported by HOs and OAO to the Coordinator. See HALLEX I-1-7-12 with respect to reporting requirements.

IX. Inquiries

HO personnel should direct any questions to their Regional Office. Regional Office personnel should contact the Division of Field Practices and Procedures in the Office of the Chief Administrative Law Judge at (703) 305-0022. OHA headquarters personnel should contact the Division of Litigation Analysis and Implementation at 305-0708.

Attachment 1. Rosetti Stipulation and Order; Approved by the Court on July 7, 1994; Entered by the Clerk of Court on July 8, 1994

  DATE FILED [07/07/1994]
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
PETER ROSETTI AND MARY DOE, )  
on behalf of themselves and )  
all others similarly situated, )  
  )  
Plaintiffs,
)
Civil No. 91-3389
  )  
v. )  
  )  
DONNA E. SHALALA. )  
Secretary of Health and )  
Human Services, )  
  )  
Defendant.
)  
STIPULATION AND ORDER

WHEREAS, plaintiffs filed a class action complaint on May 28, 1991, challenging certain aspects of the Social Security Administration's (SSA) evaluation of claims of disability under titles II and/or XVI of the Social Security Act due to Human Immunodeficiency Virus (HIV) infection or Acquired Immune Deficiency Syndrome (AIDS);

WHEREAS, this court dismissed the action by orders dated March 31, 1992, and September 2, 1992, after a hearing;

WHEREAS, the Secretary of Health and Human Services published a final rule in the Federal Register, after public notice and comment, on the evaluation of claims of disability based on HIV infection or AIDS and an Immune System Listing on July 2, 1993;

WHEREAS, the United States Court of Appeals for the Third Circuit vacated the above-noted dismissal orders and remanded the case to consider plantiffs' motion for class certification on December 15, 1993;

WHEREAS, the United States Court of Appeals for the Third Circuit denied Defendant's Petition for Rehearing with Suggestion for Rehearing In Banc on March 9, 1994; and

WHEREAS, the parties wish to avoid further litigation in this matter and to fully and finally resolve this dispute,

IT IS HEREBY STIPULATED AND AGREED, by and between the parties, that:

  1. The class certified under this Stipulation and Order includes individuals whose claims for disability benefits under titles II and/or XVI of the Social Security Act based in whole or in part on allegations of HIV infection or AIDS were finally denied or ceased, in whole or in part, while they were residents of Delaware, New Jersey, Pennsylvania, or the Virgin Islands, for medical reasons, or after March 22, 1991, (the first business day from 65 days prior to May 28, 1991, the date of filing of the complaint in this matter) and before July 2, 1993. The terms of this Stipulation and Order providing for review of claims shall not apply if an individual receives a final judicial decision on a claim that otherwise would be reviewed under the terms of this Stipulation and Order.

  2. For the purpose of this Stipulation and Order, SSA shall provide relief to individuals in the class as follows:

    1. Within forty-five days after the instructions referenced in paragraph 3, infra. have been issued, SSA shall, to the extent practicable, send an individual notice (attachment 1) by first-class mail to the last known address of every individual who resided in Delaware, New Jersey, Pennsylvania, or the Virgin Islands when their title II and/or XVI application for disability benefits was finally denied or ceased, for medical reasons, based on a determination or decision made on or after March 22, 1991, and through July 1, 1993, and whose primary or secondary diagnosis code from SSA's data processing systems was “0420” (AIDS) or “0430” (Symptomatic HIV) or “0440” (Asymptomatic HIV).

    2. Individuals who receive the subparagraph (A) notice must, in order to obtain a review of their claim, return the reply form in the pre-addressed postage-prepaid envelope enclosed with the notice or through any Social Security field office within sixty days after presumptive receipt of the notice pursuant to 20 C.F.R. §§ 404.901 and 416.1401. If they do not respond within sixty days of receipt, their disability claim will not be reviewed under this Stipulation and Order unless the claimant provides SSA evidence of “good cause” for untimely response as defined in 20 C.F.R. §§ 404.511 and 416.1411. Individuals who do not receive the subparagraph (A) notice and wish to obtain a review of their claim may request review by contacting any SSA office until one year after the date the subparagraph (A) notices are mailed. Individuals who respond to the subparagraph (A) notice or who otherwise request review will receive an acknowledgment letter from SSA (attachment 2).

    3. If SSA determines that an individual who responded to the notice or otherwise requested review is not in fact a class member, SSA will notify the individual in writing (in the form of attachment 3, subject to revision) of the reason for that determination and that he or she has sixty days from receipt of the notification to write to the Office of the General Counsel (OGC), Department of Health and Human Services, 600 Altmeyer Building, 6401 Security Boulevard, Baltimore MD 21235, to disagree with the determination. If the individual does not write OGC disagreeing with the SSA determination within sixty days of receipt of the notification under this paragraph, the SSA class determination shall become binding and not be subject to further review. OGC will seek to resolve these class membership disputes; however, if the dispute cannot be resolved, OGC will write the individual stating that the individual must request district court review of the SSA class membership determination within sixty days of presumptive receipt (20 C.F.R. §§ 404.901 and 416.1401) of OGC's written communication, or the SSA class membership determination will become final and not be subject to further review. SSA shall contemporaneously provide class counsel with copies of all communications sent to potential class members who are determined not to be class members. In addition, SSA, upon request, will provide class counsel with reasonable and timely access to information concerning the implementation of this agreement, including access to potential class members' files for the purpose of resolving class membership issues, should they arise, subject to the requirements of the Privacy Act and any other applicable privacy statutes or regulations.

    4. Claims will be reviewed as follows:

      1. After the instructions, referenced in paragraph 3, infra, have been issued, timely responder claims will be redetermined at the reconsideration level of administrative review, 20 C.F.R. §§ 404.907 and 416.1407, except as otherwise provided in this paragraph.

      2. The Secretary's rules, as they may hereinafter be amended, including the Immune System Listing for evaluating disability claims involving allegations of disabling HIV infection or AIDS, 20 C.F.R. Part 404, Subpart P, Appendix 1, will be used in making the redeterminations.

      3. The redeterminations will be based on the evidence of record upon which the claim is based; however, if the Disability Determination Services (DDS) cannot redetermine the claim under the Secretary's rules based on the original evidence of record, the DDS will request the necessary evidence relevant to the time period being redetermined. In addition, a class member will be permitted to submit any additional evidence relevant to the period being redetermined, and such additional, relevant evidence will be considered by DDS in making the redetermination.

      4. If the redetermination under this Stipulation and Order results in a finding that the individual was disabled, the claim will be reopened, and the evidence of the class member's disability from the period of the previous determination to the present, or to the date of a more recent allowance, will be evaluated and new determination will be issued.

      5. At the option of SSA, Rosetti claimants with subsequent disability claims active and simultaneously pending at any administrative level of review at the time their Rosetti claim is being evaluated may have all claims consolidated and reviewed simultaneously. SSA will use its best efforts to ensure that adjudication of the current claims is not delayed by such consolidation.

      6. SSA will exert its best efforts to resolve all claims of Rosetti class members as expeditiously as possible. See HALLEX, vol. 1, div. 2, June 1993, I-2-140.C (TERI cases); POMS DI E23020.001.

      7. Class members shall retain all rights to seek further administrative and judicial review of determinations or decisions made on readjudication in accordance with 42 U.S.C. § 405(g) and 20 C.F.R. Parts 404 and 416 (1993).

  3. SSA will issue instructions to its adjudicators to implement the terms of this Stipulation. SSA will make a good faith effort to provide counsel for the plaintiffs with draft instructions within 120 days of the date on which the District Court enters judgment in this action pursuant to the terms of this Stipulation. Counsel for plaintiffs will make a good faith effort to provide SSA with their comments on these instructions within ten days of counsel's receipt of the instructions. SSA will make a good faith effort to issue final instructions within 45 days of receiving the comments from counsel for plaintiffs or, if no comments are received, within 45 days of the due date for such comments. SSA may, but is not required to, incorporate plaintiffs' comments into its instructions. SSA will provide counsel for plaintiffs with a copy of the final instructions issued to adjudicators and any subsequent revisions to the instructions. SSA will not review any prior determinations of Rosetti class members until final instructions have been issued.

  4. Plaintiffs' counsel and defendant's counsel, by their signatures below, warrant that they are sole counsel to the plaintiffs and to the defendant, respectively, whose interests were represented in this action and that they are authorized to stipulate to the resolution of issues in this action.

  5. The question whether plaintiffs are entitled to any attorney's fees, expenses, and/or costs, and, if so, the amount of such fees, expenses, and/or costs shall be determined at a later date by the parties or by the Court upon timely application by the plaintiffs. Notwithstanding any other provision of this Stipulation and Order, nothing in this Stipulation and Order is, or shall be offered or construed as, a finding or evidence of an admission by any party that the position of the defendant in this action was or was not substantially justified, nor is this Stipulation and Order an admission of liability on the part of defendant for the payment of any attorney's fees, expenses, or costs.

  6. The parties will attempt to resolve any disputes arising under this Stipulation by negotiation between counsel or their designees. The parties reserve the right to seek a modification of the Stipulation from the court in the event of a change in the law.

  7. Individuals in the class shall be barred and enjoined forever from:

    1. prosecuting any claims or causes of action that have been or could be asserted by reason of, or with respect to, or in connection with, or that arise out of any of the matters alleged in this action; and

    2. seeking judicial relief that would have the effect, directly or indirectly, of requiring that the redeterminations herein be reopened, redetermined, readjudicated, or otherwise reviewed in any manner by SSA.

      Nothing in this Stipulation shall prevent any class member from pursuing an individual administrative appeal, a request for reopening, or a judicial appeal, or from asserting that a legal standard was not applied, or was improperly applied, in his or her individual case.

  8. The defendant, its administrators or successors, and any department, agency, or establishment of the United States and any officers, employees, agents, or successors of any such department, agency, or establishment, are hereby discharged and released from any claims and causes of action that have been asserted in this action, or administratively, by reason of, or with respect to, or in connection with, or that arise out of, any matters alleged in this action; provided, however, that nothing in this paragraph shall relieve the defendant of the duty to comply with this Stipulation and Order.

  9. This Stipulation does not constitute an admission by the defendant of any pattern or practice that violates or fails to comply with any law, rule, or regulation dealing with any matter within the scope of the allegations contained in the complaint or otherwise raised by plaintiffs in this action.

  10. Final judgment in accordance with the terms hereof shall be entered upon entry of this Stipulation and Order. This Stipulation and the covenants and conditions contained herein shall become effective upon entry of the Stipulation and Order as an Order of the Court. The Court will retain jurisdiction in this action only for the purpose of enforcing this Stipulation and Order, resolving disputes over whether claimants are entitled to redeterminations as provided by paragraph 2 of this Stipulation and Order, determining matters concerning modification of this Stipulation and Order pursuant to paragraph 6, and determining, upon timely application by plaintiffs, whether plaintiffs are entitled to attorney's fees, expenses, and/or costs.

/s/
FRANK W. HUNGER
_________________________  
CATHERINE C. CARR Assistant Attorney General
JAMES M. LAFFERTY  
MARIAN C. NOWELL MICHAEL R. STILES
Community Legal Services, Inc. United States Attorney
Law Center South  
1226 South Broad Street
/s/
  _________________________
Philadelphia, PA 19146 BRIAN G. KENNEDY
COUNSEL FOR PLAINTIFFS /s/
  _________________________
  CAROL FEDERIGHI
  Department of Justice
  Civil Division - Room 1012
  901 E Street, N.W.
  Washington, D.C. 20510
  Tel: (202) 514-1903
   
  COUNSEL FOR DEFENDANT
DATE:
7/5/94
DATE: 6/30/94
   
   
SO ORDERED:  
DATED:
7/7/94
/s/
  _________________________
  RAYMOND J. BRODERICK
  United States District Judge
   
   
SOCIAL SECURITY NOTICE
Important information

________________________________________

From: Department of Health and Human Services, Social Security Administration

________________________________________

Name ROS DATE:
Address   CLAIM NUMBER:
City, State, Zip DOC:  
NOTICE: YOU COULD GET SOCIAL SECRUITY BENEFITS:
READ CAREFULLY! YOU HAVE ONLY 60 DAYS TO RESPOND

We may owe you disability money. This is because of a court case called Rosetti v. Shalala.

We denied your old disability claim. You can ask us to look at your old claim again by sending in the enclosed reply form within 60 days.

IF YOU NOW GET MONEY FROM SOCIAL SECURITY

Even if you now get money from Social Security, we may still owe you more disability money.

WHAT YOU NEED TO DO IF YOU WANT US TO REVIEW YOUR CLAIM

FILL OUT THE ENCLOSED REPLY FORM AND SEND IT TO US NOW.

YOU HAVE ONLY 60 DAYS TO DO THIS. DO NOT WAIT OR YOU MAY LOSE THE RIGHT TO HAVE YOUR CLAIM REVIEWED.

WHAT WE WILL DO

If you ask us to look again at your old claim, we will review you case. We will see if you meet the standards in the Rosetti court order for a new review of you old claim. Under these standard, you may be eligible for a review of your old claim if we find that the answer is “yes” to all of the following questions:

ATTACHMENT 1
  1. Did you live in Delaware, New Jersey, Pennsylvania or the Virgin Islands when we denied your claim or ceased your benefits?

  2. Was your claim denied or benefits ceased, in whole or in part, on or after March 22, 1991, and before July 2, 1993?

  3. Did you have Human Immunodeficiency Virus (HIV) or Acquired Immune Deficiency Syndrome (AIDS) when we decided your claim?

If you do not meet the requirements, we will send you a letter that explains why.

If we find that you meet all the standards set out in the court order, we will give you a new disability decision on your old claim. You can submit new evidence about what your medical condition was at the time of the old decision. We will notify you about the new decision.

IF YOU HAVE ANY QUESTIONS

If you have any questions, you may call your local Social Security office. We can answer most questions over the phone. You can also write or visit any Social Security office. If you call or visit an office, please try to have this letter with you. It will help us answer your questions. The address and telephone number of the office that serves your area are:

You may also call us toll free at 1-800-772-1213 if you have any questions.

If you already have a lawyer or other legal representative, you may show the notice to him or her. You do not need a lawyer or legal representative to send the reply form back to Social Security.

DO NOT WAIT. ACT NOW!

ESTE ES UN AVISO IMPORTANTE RELACIONADO CON BENEFICIOS DE SEGURO SOCIAL FAVOR DE PEDIR QUE SE LO TRADUZCAN IMMEDATAMENTE Y DE LLAMA A SU OFICINA DE SEGURO SOCIAL PARA UNA EXPLICACION.

Enclosures
Reply form and envelope
[SSA's Heading]

We are writing to tell you that we received your request for us to look at your past claim for disability benefits. If you are eligible for review, we will list the standards approved by the Court under the Rosetti v. Shalala settlement agreement.

We expect to receive many requests for review and it may take several months before we look at your file. When we start the review, we will decide if you are a member of the “class” of people included in the lawsuit.

If you have a legal representative helping you with your claim, you should contact him or her. You also may ask for legal help by contacting the lawyers in the Rosetti case. They are:

Rosetti Counsel
Community Legal Services, Inc.
1226 S. Broad Street
Philadelphia, PA 19146
Telephone:

If you have any questions, you may call us toll free at 1-800-772-1218, or you may contact your local Social Security Office. The address and phone number of the Social Security Office that serves your area are shown below.

If you call to visit an office, please have this letter with you. It will help us answer your questions. Also, if you plan to visit an office, you may call ahead to make an appointment. This will help us to serve you more quickly.

ATTACHMENT 2
[SSA'S Heading]
  Date:
  Claim Number:
THIS NOTICE IS ABOUT YOUR SOCIAL SECURITY DISABILITY CLAIM
PLEASE READ IT CAREFULLY!

You asked us to review your case under the terms of the Rosetti v. Shalala settlement agreement. We have looked at your case and have decided that you are not a Rosetti class member eligible for relief. This means that we will not review our earlier decision to deny or cease your benefits. The reason you are not a class member eligible for relief under the Rosetti settlement agreement is checked below.

WHY YOU ARE NOT A CLASS MEMBER ELIGIBLE FOR RELIEF

You are not a Rosetti class member eligible for relief because:

[ ] You did not reside in Delaware, New Jersey,
Pennsylvania, or the Virgin Islands when your claim was denied or
your benefits ceased.

[ ] You did not receive a final decision denying
your claim or ceasing your benefits, in whole or in part, on or
after March 22, 1991 and before July 2, 1993.

[ ] Your disability claim was not based in
whole or in part on HIV or AIDS.

[ ] Your claim was denied for some reason other
than your medical condition. That reason was
_________________________
.

[ ] You have received a final decision by a
United States District Court in your claim for disability benefits
that would otherwise be covered by this settlement
agreement.

[ ] You have already received all the benefits
you could receive under the Rosetti settlement agreement.

[ ] Other:
______________________________________

ATTACHMENT 3
 
WE ARE NOT DECIDING IF YOU ARE DISABLED

It is important for you to know that we are not making a decision about whether you are disabled. We are deciding only that you are not a Rosetti class member eligible for relief.

IF YOU DISAGREE WITH THIS DETERMINATION

You must writewithin 60 days of when you receive this notice to:

Office of General Counsel (OGC)
Department of Health and Human Services
600 Altmeyer Building
6401 Security Boulevard
Baltimore, MD 21235
Class Counsel

In addition, you may contact the lawyers representing the Rosetti class members, who can be reached as follows:

Rosetti Counsel
Community Legal Services, Inc.
1226 S. Broad Street
Philadelphia, PA 19146
Telephone:

The Rosetti lawyers can advise you and, if appropriate, assist you in notifying Social Security that you disagree with the determination.

ESTE ES UN AVISO IMPORTANTE RELACIONADO CON BENEFICIOS DE SEGURO SOCIAL FAVOR DE PEDIR QUE SELO TRADUZCAN IMMEDIATAMENTE Y DE LLAMAR A SU OFICINA DE SEGURO SOCIAL PARA UNA EXPLICACTION.

  [DATE FILED 07/07/1994]
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
PETER ROSETTI AND MARY DOE, )  
on behalf of themselves and )  
all others similarly situated, )  
  )  
Plaintiffs,
)
Civil No. 91-3389
  )  
v. )  
  )  
DONNA E. SHALALA, )  
Secretary of Health and )  
Human Services, )  
  )  
Defendant.
)  
PRIVACY ACT PROTECTIVE ORDER

Pursuant to 5 U.S.C. § 552a(b) (11), 42 U.S.C. § 1306(a), and 20 C.F.R. § 401.340, IT IS HEREBY ORDERED as follows:

  1. Defendant may disclose to plaintiffs' counsel information required to be disclosed to plaintiffs' counsel under the Stipulation and Order executed by the parties in this case that is subject to restrictions on disclosure under the Privacy and Social Security Acts without obtaining the prior written consent of the individual to whom such records pertain, for the purposes of monitoring compliance with the Stipulation and Order, facilitating implementation of the Stipulation and Order, and assisting class members and potential class members in effectuating their rights under the Stipulation and Order. Such information consists of names, addresses, and claims files of potential class members, and other claimant-specific information reasonably relevant to the implementation of the Stipulation and Order.

  2. Plaintiffs' counsel shall use the information disclosed pursuant to paragraph 1 of this Order only for the purposes described above. Except as provided in paragraph 4 of this Order, plaintiffs' counsel shall not make disclosures of such information except: (1) to each other; (2) to members of plaintiffs' counsel's staff; (3) to defendants or their agents or their counsel; (4) to the Court in this action; or (5) to other persons participating in the accomplishment of the purposes described in paragraph 1. Any disclosure to persons described in item (5) of the preceding sentence shall be conditioned upon such persons having read this Order and acknowledged in writing that they understand the Order and agree to be bound by it. Plaintiffs' counsel shall inform all non-attorney staff in their offices who have access to information subject to this order of the requirements of this order and shall instruct them to comply with its terms. Additionally, plaintiffs' counsel may disclose information pertaining to particular class members or potential class members to those particular individuals or to representatives acting on behalf of such individuals.

  3. Plaintiffs' counsel and members of their staff shall limit the making of copies of the records disclosed pursuant to paragraph 1 of this Order to those necessary to the purposes described in paragraph 1. All such copies, and any documents created by plaintiffs' counsel or any member of their staff that contain information disclosed pursuant to paragraph 1, shall be kept confidential, consistent with the Rules of Professional Conduct. All such copies and documents concerning individuals who do not individually engage class counsel's assistance shall be returned to the defendant or destroyed upon the completion of implementation of the Stipulation and Order.

  4. Nothing in this Order shall prejudice the rights of plaintiffs' counsel to use the information that they receive pursuant to the Stipulation and Order in this action that is not subject to restrictions on disclosure contained in the Privacy and Social Security Acts, or their rights to use information obtained outside of the context of the Stipulation and Order.

  5. Failure to comply with this Order shall subject the responsible individual and/or his or her attorney to appropriate sanctions by the Court, including a finding of contempt.

  6. This Order does not constitute any agreement or ruling as to the discoverability or admissibility of any record or information.

  7. Upon twenty days' notice to the other parties, any party may seek modification of this order.

IT IS SO ORDERED this 7 day of July, 1994.

 
By: /s/
  _________________________
  RAYMOND J. BRODERICK
  United States District Judge

Approved:

/s/

_________________________

CATHERINE C. CARR
JAMES M. LAFFERTY
MARIAN C. NOWELL
Community Legal Services, Inc.
Law Center South
1226 South Broad Street
Philadelphia, PA. 19146

Dated:7/5/94

Attorney for Plaintiffs'
FRANK W. HUNGER
Assistant Attorney General
MICHAEL R. STILES
United States Attorney

/s/

_________________________

BRIAN S. KENNEDY
CAROL FEDERIGHI
Attorneys, Department of Justice
Civil Division - Room 1012
901 E Street, N.W.
Washington, D.C. 20530
Tel: (202) 514-1903

Dated:6/30/94

Attorneys for Defendant

The terms “finally” and “final,” as used herein, refer to the date of the administrative decision that became the binding decision of the Secretary pursuant to 20 C.F.R. §§404.905, 404.921, 404.955, 404.972, 404.981, 416.1405, 416.1421, 416.1455, 416.1472 and 415.1481, and do not mean that a class member must have exhausted administrative remedies under sections 205(g) and (h) of the Social Security Act, 42 U.S.C. §405(g) and (h).

Attachment 2. ROSETTI COURT CASE FLAG/ALERT

  TITLE: II CATEGORY:
REVIEW OFFICE PSC MFT DOC ALERT DATE
 

  BOAN or PAN

          NAME
 

CAN OR HUN

RESP DTE TOE
FOLDER LOCATION INFORMATION    
TITLE CFL CFL DATE ACN PAYEE ADDRESS
  SCREENING OFFICE ADDRESS:  
     
  Title II and CON Claims Title XVI
     
  SSA, ODIO Northeastern PSC or
    Mid-Atlantic PSC
 
Class Action Section
P.O. Box 17369
Baltimore, Maryland 21235-0050
 
  ATTN: Rosetti Screening Unit ATTN: Rosetti Coordinator
     
  IF CLAIM IS PENDING IN OHA, THEN SHIP FOLDER TO:
     
 

Office of Hearings and Appeals
Office of Appellate Operations (OAO)
One Skyline Tower, Suite 701
5107 Leesburg Pike
Falls Church, VA 22041-3200

 
  ATTN: OAO Class Action Coordinator  
     
  (Case locator code 5007)  

Attachment 3. Route Slip or Case Flag for Screening

Rosetti Class Action Case

SCREENING NECESSARY

Claimant's name: ___________________________    
       
SSN: ___________________________    

This claimant may be a Rosetti class member. The attached folder location information indicates that a current claim file is pending in your office. Accordingly, we are forwarding the attached alert [and prior claim file(s)] for association, screening for class membership, consolidation consideration and possible readjudication.

Please refer to HALLEX Temporary Instruction 5-4-44 for additional information and instructions.

  TO:

__________________________________
__________________________________
__________________________________
__________________________________

Attachment 4. ROSETTI SCREENING SHEET

CLASS ACTION CODE: R R

 

1. CLAIMANT'S SSN

    ___ ___ ___ - ___ ___ - ___ ___ ___ ___

 

2. CLAIMANT'S NAME (Last, First)

 

 

3. DATE OF BIRTH

     ___ ___ - ___ ___ - ___ ___

 

4. CLAIM NUMBER

     ___ ___ ____ - ___ ___ - ___ ___ ___ ___ - ___ ___

 

               (BIC/ID)

5. SCREENING DATE

     ___ - ___ - ___

 

a. SCREENING RESULT

 

____MEMBER (J) ____NONMEMBER (F)

 

b. SCREENOUT CODE

    ___ ___(see item 13 for screenout codes)

 

6. Was a less than fully favorable title II or title XVIdetermination/decision issued on any claim(s) at any administrative level while the claimant was a resident of Delaware, New Jersey, Pennsylvania or the Virgin Islands?

Yes___No___

(if No go to 13)

7. Was the less than fully favorable determination/decision(s) referred to in Question 6 issued at any administrative level on or after March 22, 1991 and before July 2, 1993, and did this become the final decision of the Secretary?

(Note: Although not the “final decision of the Secretary,” an Appeals Council denial of a request for review is the last action of the Secretary, and the date of such a denial controls for class membership screening purposes.)

Yes___No___

(if No go to 13)

8.Did the determination/decision(s) referred to in Question 6 involve an allegation or diagnosis of HIV infection or AIDS?

Yes___No___

(if No go to 13)

9. Were all determination/decision(s) issued on the potential Rosetti claim(s) based on some reason other than the individual's medical condition (e.g., SGA)?

Yes___No___

(if No go to 13)

10.Did the individual receive a subsequent fully favorable determination/decision which established entitlement to and paid benefits commencing with the earliest possible month based on the earliest potential Rosetti claim(s)?

Yes___No___

(if No go to 13)

11.Did the individual receive a final decision/determination, on the merits, on or after July 2, 1993, which covered the entire period at issue in the earliest potential Rosetti claim?

Yes___No___

(if No go to 13)

12.Did the individual receive a final decision from a federal district or appellate court based on an administrative denial/determination decision on a potential Rosetti claim(s) issued on or after March 22, 1991 and before July 2, 1993?

Yes___No___

(If Yes, go to 13. If No, claimant is a class member entitled to relief. Check member block in item 5.a.)

13. The claimant is not a Rosetti class member eligible for relief. Check the nonmember block in item 5.a. and enter the screenout code in item 5.b. as follows:

Enter 06 if question 6 was answered "NO".
Enter 07 if question 7 was answered "NO".
Enter 08 if question 8 was answered "NO".
Enter 09 if question 9 was answered "YES".
Enter 10 if question 10 was answered "YES".
Enter 11 if question 11 was answered "YES".
Enter 12 if question 12 was answered "YES".

 

 

No other screenout code entry is appropriate.

14. On the lines below, please enter the date(s) of all applications and final decisions considered in the screening process and indicate the administrative level at which the final decision was made (i.e., DDS, ALJ, AC).

Date of Application(s)    Date of Decisions     Level of Final Decision

_______________    __________________    ________________

_______________    __________________    ________________

_______________    __________________    ________________

 

15. IDENTIFICATION OF SCREENER

COMPONENT

 

DATE

 

  INSTRUCTIONS FOR COMPLETING ROSETTI SCREENING SHEET

Items 1 - 4

You must consider all applications decided during the period covered by the court order when making the class membership determination. A SEPARATE SCREENING SHEET MUST BE PREPARED FOR EACH DIFFERENT CLAIM NUMBER. Multiple applications during the period covered by the court order on the same claim number should be screened on the same screening sheet.

Fill in the identifying information as requested. Make sure the Claim Number, BIC/ID and SSN, if different from the claim number are correct and legible. (If SSN is different from claim number, copy SSN from BOAN/PAN field on alert).

Item 5

Complete this information last. Do not fill in the member/nonmember information in Item 5 until the screening process is completed.

Questions and Items 6-15 -- General

  1. In a multiple claims case, begin screening with the earliest claim in the Rosetti period and stop with the last claim in the Rosetti period. Remember, a separate screening sheet must be completed for each different claim number. Multiple claims covered by the court order under the same claim number should be screened on the same screening sheet.

  2. To answer the questions in DDS cases, use the SSA-831 for denial cases and SSA-832/833 for cessation cases. In OHA adjudicated cases, read the ALJ/AC decision to answer the questions.

  3. If the SSA-831/832/833 or OHA decision does not yield enough information to answer the questions, look further into the file.

  4. If the claim folder(s) cannot be located, but queries establish that the determination(s)/decision(s) was made outside the Rosetti timeframe, that the claim was denied for a nonmedical reason or that the claimant did not reside in Delaware, New Jersey, Pennsylvania or the Virgin Islands, screen out the claim(s) without reconstructing the lost folder(s). (See DI 42565.010B.5.c. for more information).

  5. If questions 6-8 are answered “NO,” or questions 9-12 are answered “YES,” check the nonmember block found in item 5.a. on the screening sheet, then enter the appropriate screenout code in Item 5.b. as directed in question 13 on the screening sheet.

  6. Remember to follow instructions for members/nonmembers.

Question 6

Screen for residency as of the date of the final determination/decision, not date of application. (See Question 7 for more information.) If the claimant was not a resident of Delaware, New Jersey, Pennsylvania or the Virgin Islands as of the date of the final decision, the claimant is not a class member eligible for relief under the Rosetti settlement.

Question 7

Screen for date of decision, not date of application. Individuals are potentially entitled to relief if they received a denial or less than fully favorable decision (e.g., later onset, closed period) between March 22, 1991, and July 1, 1993, inclusive, which became the final decision of the Secretary.

Question 8

Review Items 16a/b of the SSA-831 and Items 22/21 of the SSA-832/833. If diagnosis code 0420, 0430, or 0440 is present, indicate “YES” for Question 8 and go to the next question. If none of these codes are present, also review the disability interview form for an allegation of HIV infection, including AIDS. Look at Item D, page 1 of the SSA-3368-BK; Item 3a of the SSA-3820-F6; or Item 1a and 1c of the SSA-454-BK, or the OHA decision as applicable. If these items indicate that HIV infection or AIDS has been alleged, indicate “YES” for Question 8 and go to the next question.

Question 9

Check item 33 of the SSA-831 or item 11 of the SSA-832/833. The reg-basis codes that indicate a non-medical initial or post-adjudicative denial for title II are L1, L2, M7, M8, N1, N2 or S1. N01, N02, N03, N04, N05, N06, N09, N10, N11, N12, N13, N14, N17, N33, N44 (for adult claimants only) and N54, are the non-medical initial or post-adjudicative denial codes for title XVI. For a complete list of the title II denial codes see SM 00380.270. For a complete list of title XVI denial or payment status codes see SM 01005.440 and SM 01305.001F.

Question 10

Review the file and case control queries. Determine if a subsequent reversal was fully favorable, allowing the earliest possible entitlement/onset date as alleged on the Rosetti claim(s). In order for an individual to be screened out under this question, benefits must have been paid based on the earliest date of entitlement/eligibility. (If full retroactive benefits have not been paid, see DI 42565.010.C.6. for specific routing instructions).

Question 11

Review all claims files and queries to determine whether decision(s) made on or after July 2, 1993 readjudicated the merits of the entire period covered by the Rosetti claim(s).

NOTE:

Per POMS DI 27510.001A and DI 27510.005A.1.a., DDS adjudicators generally limit consideration of subsequent claims to the period after the previously adjudicated period. Therefore, a claim cannot be screened out on the basis of Question 11 unless it is clear that the DDS adjudicated the entire period covered by the Rosetti claim back to the earliest alleged onset/entitlement date. At the OHA level, ALJ and Appeals Council decisions that do not consider the previously adjudicated period usually will indicate that the claimant's request for hearing has been dismissed on the basis of res judicata with respect to the previously adjudicated period. These cases cannot be screened out.

Question 12

Screen to determine if a district or appellate court issued a final, i.e., unappealed, decision on the Rosetti application(s).

NOTE:

The period within which an appeal of a district court decision may be filed is 60 days from the date of entry of judgment. For example, a district court decision entered on October 2, 1991, became unappealable on December 2, 1991, the 61st day after entry of judgment if no appeal was filed. Consult the Office of the General Counsel, as needed.

Item 13

Self-explanatory

Item 14

Fill in the dates of the application(s), decision(s) and the level of adjudication of the final decision(s), that were reviewed in deciding class membership for the claim number in item 4. Remember a separate screening sheet must be prepared for each different claim number.

INSTRUCTIONS FOR MEMBERS

  1. Check the “MEMBER” block in item 5.a. of the screening sheet.

  2. Sign the form and retain the original screening sheet in the claim folder.

  3. OHA Headquarters components will send a copy of the screening sheet to:

    Office of Appellate Operations
    One Skyline Tower, Suite 701
    Attn: OAO Class Action Coordinator

    [The Class Action Coordinator will enter the screening sheet information from the screening sheet into a data base and forward the screening sheet to the Division of Litigation Analysis and Implementation (DLAI).]

    OHA Hearing Office (HO) components will send a copy of the screening sheet to:

    Office of Hearings and Appeals
    Division of Litigation Analysis and Implementation
    One Skyline Tower, Suite 702
    Falls Church, VA 22041-3255
    ATTN: RosettiCoordinator

    [DLAI will retain a copy of each screening sheet received from the OAO Class Action Coordinator or an HO and forward a copy to Litigation Staff at SSA Headquarters for entry into the Civil Action Tracking System.]

  4. Follow HALLEX I-5-4-44, Part V.B.3.b.

INSTRUCTIONS FOR NONMEMBERS

  1. Check the “NONMEMBER” block in item 5.a. and enter the appropriate screenout code (the number of the question that determined the individual is not a class member, numbers 6-12, see Item 13 on the screening sheet) in item 5.b.

  2. Follow items b. and c. above.

  3. Prepare and send the class membership denial letter (Attachment 6) to the claimant with a copy to his/her representative, if any, and class counsel. Retain a copy of the denial letter in the folder. Forward the claim file(s) as indicated in HALLEX I-5-444, Part V.B.3.a.

Attachment 5. Route Slip for Routing Class Member Alerts and Prior Claim File(s) to ODIO or PSC - OHA No Longer Has Current Claim

 ROUTING AND TRANSMITTAL SLIP   DATE

TO:

1.

Initials Date
2.    
3.    
4.    
5.    
6.    
7.    
__XX_ACTION _____FILE _____NOTE AND RETURN
_____APPROVAL _____FOR CLEARANCE _____PER CONVERSATION
_____AS REQUESTED _____FOR CORRECTION _____PREPARE REPLY
_____CIRCULATE _____FOR YOUR INFORMATION _____SEE ME
_____COMMENT _____INVESTIGATE _____SIGNATURE
_____COORDINATION _____JUSTIFY _____

REMARKS

  ROSETTI CASE
Claimant: ___________________________    
       
SSN: ___________________________    

OHA received the attached alert [and prior claim file(s)] for screening and no longer has the current claim file. Our records show that you now have possession of the current claim. Accordingly, we are forwarding the alert and any accompanying prior claim file(s) for association with the current claim. After associating the alert with the current claim, please forward to ODIO, the NEPSC or MATPSC (using the address indicated on the alert) for screening and possible readjudication. SEE POMS DI 12565.005 OR DI 42565.005

Attachment

DO NOT use this form as a RECORD of approvals, concurrences, disposals, clearances, and similar actions.

FROM:

      Office of Hearings and Appeals

SUITE / BUILDING

 

PHONE NUMBER

_______________

 

OPTIONAL FORM 41 (Rev. 7-76)
        *U.S.GPO:1985-0-461-274/20020 Prescribed by GSA
                FPMR (41 CFR) 101-11.206

Attachment 6. Notice of Non-Class Membership/Ineligibility for Relief

SOCIAL
SECURITY
NOTICE

Important Information

From:

Department of Health and Human Services Social Security Administration

   
  ____________________________Date:____-____-____
   
  ____________________________Claim Number:____________________
   
  ____________________________DOC___________________________
THIS NOTICE IS ABOUT YOUR SOCIAL SECURITY DISABILITY CLAIM.
PLEASE READ IT CAREFULLY!

You asked us to review your case under the terms of the Rosetti v. Shalala settlement agreement. We have looked at your case and decided that you are not a Rosetti class member eligible for relief. This means that we will not review our earlier decision to deny or cease your benefits. The reason you are not a class member eligible for relief under the Rosetti settlement agreement is checked below.

WHY YOU ARE NOT A CLASS MEMBER ELIGIBLE FOR RELIEF

You are not a Rosetti class member eligible for relief because:

___

You did not reside in Delaware, New Jersey, Pennsylvania, or the Virgin Islands when your claim was denied or your benefits ceased.

 

___

You did not receive a final decision denying your claim or ceasing your benefits, in whole or in part, on or after March 22, 1991, and before July 2, 1993.

 

___

Your disability claim was not based in whole or in part on HIV or AIDS.

 

___

Your claim was denied for some reason other than your medical condition. That reason was

__________________________________________________________

__________________________________________________________.

 

___

You have already received all the benefits you could receive under the Rosetti settlement agreement.

 

___

You received a final decision by a United States District Court in your claim for disability benefits that would otherwise be covered by this settlement agreement.

 

___

We made a decision on or after July 2, 1993, which covered the entire time period of at issue in your Rosetti claim.

 

___

Other:__________________________________________________________

_______________________________________________________________

   
WE ARE NOT DECIDING IF YOU ARE DISABLED

It is important for you to know that we are not making a decision about whether you are currently disabled. We are deciding only that you are not a Rosetti class member eligible for relief.

IF YOU DISAGREE WITH THIS DETERMINATION

You must write within 60 days of when you receive this notice to:

Office of the General Counsel (OGC)
Department of Health and Human Services
600 Altmeyer Building
6401 Security Boulevard
Baltimore, MD 21235

Class Counsel

In addition, you may contact the lawyers representing the Rosetti class members, who can be reached as follows:

Rosetti Counsel
Community Legal Services, Inc.
1424 Chestnut Street
Philadelphia, PA 19102
Telephone: 1-800-889-4369 or
(215) 981-3750

The Rosetti lawyers can advise you and, if appropriate, assist you in notifying Social Security that you disagree with this determination.

ESTE ES UN AVISO IMPORTANTE RELACIONADO CON BENEFICIOS DE SEGURO SOCIAL. FAVOR DE PEDIR QUE SE LO TRADUZCAN IMMEDIATAMENTE Y DE LLAMAR A SU OFFICINA DE SEGURO SOCIAL PARA UNA EXPLICACION.

Attachment 7. Route Slip for Non-class Members/Ineligibility for Relief Cases

 ROUTING AND TRANSMITTAL SLIP DATE

TO:

1. MATPSC

Initials Date
2. 300 Spring Garden Street    
3. Philadelphia, PA 19123    
4.    
5.    
6.    
7.    
__XX_ACTION _____FILE _____NOTE AND RETURN
_____APPROVAL _____FOR CLEARANCE _____PER CONVERSATION
_____AS REQUESTED _____FOR CORRECTION _____PREPARE REPLY
_____CIRCULATE _____FOR YOUR INFORMATION _____SEE ME
_____COMMENT _____INVESTIGATE _____SIGNATURE
_____COORDINATION _____JUSTIFY _____

REMARKS

  ROSETTI CASE
Claimant: ___________________________    
       
SSN: ___________________________    

We have determined that this claimant is not a Rosetti class member entitled to relief. (See screening sheet and copy of notice of non-class membership/ineligibility for relief in the attached claim file(s).) We are forwarding this file to your office because the claimant disputes the non-class membership determination and class counsel has asked to review the file. SEE POMS DI 12565.005

Attachment

DO NOT use this form as a RECORD of approvals, concurrences, disposals, clearances, and similar actions.

FROM:

      Office of Hearings and Appeals       

SUITE / BUILDING

 

PHONE NUMBER

_______________

 

OPTIONAL FORM 41 (Rev. 7-76)
        *U.S.GPO:1985-0-461-274/20020 Prescribed by GSA
                FPMR (41 CFR) 101-11.206

Attachment 8. Text for Notice of Revised Class Membership/Eligibility for Relief Determination

In an earlier letter that we sent you, we said that you were not a class member eligible for relief under the Rosetti v. Shalala class action. After reviewing all of the facts, we have decided that you are a Rosetti class member eligible for relief. Therefore, we will review your claim using the standards approved by the court under the Rosetti v. Shalala settlement agreement.

We have received many requests for review and it may take several months before we look at your claim file.

If you think that you are disabled now, you should fill out a new application at any Social Security office.

If you have any questions, you may call us toll-free at 1-800-772-1213, or call your local Social Security office at XXX-XXXX. We can answer most questions over the phone. You can also write or visit any Social Security office. The office that serves your area is located at:

District Office
Address
City, ST ZIP

If you do call or visit an office, please have this letter with you. It will help us answer your questions. Also, if you plan to visit an office, you may call ahead to make an appointment. This will help us serve you more quickly.

If you have someone helping you with your claim, you should contact him or her. You may also ask for legal help by contacting a legal aid organization in your area.

Attachment 9. Rosetti Class Member Flag for Headquarters Use (DDS Readjudication - Retention Period Expired)

Rosetti Class Action Case

READJUDICATION NECESSARY

Claimant's name: ___________________________    
       
SSN: ___________________________    

This claimant is a Rosetti class member. Accordingly, we are forwarding the attached claim file(s) to the DDS for readjudication.

[ Send folders to the appropriate DDS.]

Attachment 10. Rosetti Class Member Flag for Headquarters Use (DDS Readjudication - Retention Period Has Not Expired)

Rosetti Class Action Case

READJUDICATION NECESSARY

Claimant's name: ___________________________    
       
SSN: ___________________________    

This claimant is a Rosetti class member. After expiration of the retention period, forward claim file(s) to the DDS for readjudication.

[Send folders to the appropriate DDS.]

NOTE:

If the claimant has filed a civil action and elected to remain in court for review of the current claim, forward the Rosetti claim file(s) without delay to the appropriate DDS for readjudication.

Attachment 11. ALJ Dismissal to DDS

DEPARTMENT OF
HEALTH AND HUMAN SERVICES
Social Security Administration
OFFICE OF HEARINGS AND APPEALS
 
ORDER OF DISMISSAL
   
IN THE CASE OF CLAIM FOR
__________________________ ___________________________
   
__________________________ ___________________________

This case is before the Administrative Law Judge pursuant to a request for hearing filed on _________________ with respect to the application(s) filed on _________________.

In accordance with the Joint Stipulation of the parties and an order of the United States District Court for the Eastern District of Pennsylvania in the case of Rosetti v. Shalala, No. 91-3389 (E.D. Pa. July 7, 1994), the claimant has requested readjudication of the final (determination/decision) on the prior application(s) filed on ______________. The claimant has been identified as a Rosetti class member and is entitled to have the final administrative denial of the prior application(s) reviewed under the terms of the Stipulation and Order. Because the claimant's current claim shares certain issues in common with the prior claim, the undersigned hereby dismisses without prejudice the request for hearing.

The claimant's current application(s) will be associated with the prior claim(s) and forwarded to [identify the appropriate DDS by name] Disability Determination Service which will conduct the Rosetti readjudication.

The Disability Determination Service will notify the claimant of its new determination and of the claimant's right to file a new request for hearing.

   
_____________________________
Administrative Law Judge
   
_____________________________
Date

Attachment 12. Notice Transmitting ALJ Order of Dismissal

  NOTICE OF DISMISSAL
Claimant's Name
Address
City, State Zip

Enclosed is an order of the Administrative Law Judge dismissing your request for hearing and returning your case to the [identify the appropriate DDS by name] Disability Determination Service which makes disability determinations for the Social Security Administration. Please read this notice and Order of Dismissal carefully.

What This Order Means

The Administrative Law Judge has sent your current claim and your Rosetti class member claim back to the [identify the appropriate DDS by name] Disability Determination Service for further processing. The enclosed order explains why.

The Next Action on Your Claim

The [identify the appropriate DDS by name] Disability Determination Service will contact you to tell you what you need to do. If you do not hear from the [identify the appropriate DDS by name] Disability Determination Service within 30 days, contact your local Social Security office.

Do You Have Any Questions?

If you have any questions, contact your local Social Security office. If you visit your local Social Security office, please bring this notice and the Administrative Law Judge's order with you.

Enclosure

cc:
  (Name and address of representative, if any)
  (Social Security Office (City, State))

Attachment 13. Rosetti Class Member Flag for HO Use (DDS Readjudication)

Rosetti Class Action Case

READJUDICATION NECESSARY

Claimant's Name: ___________________________    
       
SSN: ___________________________    

This claimant is a Rosetti class member. The attached Rosetti claim file was forwarded to this hearing office for possible consolidation with a current claim.

  _______ The Administrative Law Judge has determined that the prior and current claims do not share a common issue and, therefore, should not be consolidated.
  OR
 

_____ The claims have not been consolidated because [(state reason(s))]______________________________________________________

  ___________________________________________________________.

Accordingly, we are forwarding the attached alert and prior claim file(s) to your location for any necessary Rosetti readjudication action.

We are sending the alert and prior file(s) to:

 

__________________________________
__________________________________
__________________________________
__________________________________
(Destination code: ___)