I-3-6-20.Notice of Own Motion Review
Last Update: 12/15/17 (Transmittal I-3-162)
When the Appeals Council (AC) reviews a hearing decision or order of dismissal on its own motion (see Hearings, Appeals and Litigation Law (HALLEX) manual I-3-6-5 and I-3-6-10), the AC must give the claimant and his or her representative, if any, notice of the review. In the notice, the AC will explain the reasons for the proposed action and provide an opportunity for the claimant to submit additional evidence and written statements before the AC takes additional action. In addition to being a due process protection for the claimant, the notice is also necessary to establish the AC's jurisdiction in the claim(s) file 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 certified mail.
When the AC exercises its own motion review authority and issues a fully favorable decision, notice is not required.
B. Content of Notice
The content of an own motion notice varies in each claim depending on the facts of the claim, the action proposed by the AC, 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, the AC will consider whether additional notice language may be required based on any of the following:
1. Opportunity for a Supplemental Hearing
During own motion proceedings, the AC will usually provide claimants an opportunity to request an appearance before the AC and, when appropriate, an opportunity to request a hearing before an administrative law judge (ALJ). However, 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 claim when the claimant is in payment status and the proposed revised action is not fully favorable (see 20 CFR 416.1336 and HALLEX 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. The own motion notice will also provide an opportunity to request a supplemental hearing with the proffered protest memorandum, when appropriate. For more information about proffering evidence, see HALLEX I-3-2-16.
3. 8001 Cases (Interim Disability Benefits in Cases of Delayed Final Decisions)
The AC must send a notice to the claimant if it takes own motion review on a hearing decision that finds the claimant disabled or that the claimant continues to be disabled, unless the claim involves a closed period of disability or a deceased claimant. In the notice, the AC will advise the claimant 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. For specific language, see HALLEX I-3-6-40 C.
4. Subsequent Applications
If relevant, the own motion notice will state whether the proposed action has any impact on a subsequent application or subsequent allowance.