I-3-6-20.Notices Associated with Own-Motion Review

Last Update: 12/16/20 (Transmittal I-3-175)

A. General

When the Appeals Council (AC) reviews a hearing decision or order of dismissal on its own motion, the AC must give the claimant and his or her representative, if any, notice of the review. In the notice, that interim notice, the AC will explain the reasons for the review and when appropriate, provide an opportunity for the claimant to submit additional evidence and written statements before the AC takes additional action. The interim notice of review is necessary to establish the AC's jurisdiction and to prevent a hearing decision from becoming the final decision of the Commissioner.

Under 20 CFR 404.969 and 416.1469, the AC must send a claimant and his or her representative, if any, written notification of own-motion review no later than 60 days after the date of the hearing decision or order of dismissal. OAO staff will send the notice to the claimant and appointed representative, if any, by mail.

NOTE:

>When the AC decides to review a decision or dismissal on its own motion, it will mail an interim notice of review to all parties as provided in 20 CFR 404.973 and 416.1473. If the AC decides to issue a fully favorable decision, remand a case for further proceedings, or issue a decision that is favorable in part and remand the remaining issues for further proceedings, an interim notice of review is not required. However, even if an interim notice of review is not required, the AC still must notify the claimant and his or her representative, if any, of its final action based on own-motion review within 60 days after the date of the hearing decision or order of dismissal.

B. Content of Interim Notice

The content of an interim notice of review varies in each claim depending on the facts of the claim, the action proposed by the AC, any applicable acquiescence ruling based on the court jurisdiction in which the claimant resides, and how many days remain for the AC to take own-motion review. The Document Generation System templates and stored paragraphs contain appropriate language for most situations.

In addition to providing standard notice language, including language providing the claimant an opportunity to request an appearance before the AC, the AC will consider whether additional notice language may be required based on any of the following:

1. Opportunity for a Supplemental Hearing

In accordance with the decision in Goldberg v. Kelly, 397 U.S. 254 (1970), the AC must offer a claimant the opportunity to request a hearing when exercising own-motion authority in a title XVI cases when the claimant is in payment status and the proposed revised action is not fully favorable (see 20 CFR 416.1336 and Hearings, Appeals and Litigation Law (HALLEX) manual I-3-9-84).

In addition, when the AC proposes to revise a prior decision based on additional evidence, it must offer the claimant an opportunity for a hearing (see HALLEX I-3-9-84).

2. Proffering Protest Memorandum

When the AC initiates own-motion review based on a protest from an effectuating component or a Regional Commissioner's office, the AC must proffer the protest memorandum to the claimant and representative, if any, unless the AC intends to issue a fully favorable decision. However, the AC may proffer the protest memorandum with its final action when it remands a case for further proceedings or issues a decision that is favorable in part and remands the remaining issues for further proceedings. When appropriate, the AC will issue an interim notice of review providing the claimant an opportunity to request a supplemental hearing. For more information about proffering evidence, see HALLEX I-3-2-16.

3. Interim Disability Benefits in Cases of Delayed Final Decisions (8001 Cases)

Interim benefits may be payable if the AC takes own-motion review on a hearing decision that finds a claimant disabled or finds that a claimant continues to be disabled. If applicable, the AC will advise the claimant in its interim notice that the agency will pay interim benefits if the AC does not issue a final decision within 110 days after the date of the hearing decision. Interim benefits are not payable in claims that involve a closed period of disability or a deceased claimant. For specific notice language, see HALLEX I-3-6-40 C.

4. Subsequent Applications

If relevant, the interim notice will state whether the proposed action would have any impact on a subsequent application or subsequent allowance.