I-3-9-84.Notice of Proposed Revision of Prior Decision
Last Update: 4/1/16 (Transmittal I-3-137)
A. When Advance Notice Is Required
Under 20 CFR 404.992 and 416.1492, the Appeals Council (AC) must give the claimant notice that it intends to reopen and revise a prior determination or decision, unless the proposed revision is fully favorable to the claimant.
Additionally, when the AC proposes to revise a prior decision based on additional evidence, the AC must offer the claimant the opportunity for a hearing. If the claimant requests a hearing, the AC will remand the case to an administrative law judge (ALJ) to conduct a hearing on the issue. However, if the claimant waives the right to a hearing, the AC may proceed with its proposed action.
In a title XVI claim where the claimant is in payment status, it is irrelevant whether the AC is proposing a revision based on additional evidence. In accordance with the decision in Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), the AC will give notice of a proposed revision when the revision is not fully favorable and offer the claimant the right to request a hearing. See 20 CFR 416.1336.
B. Content of Advance Notice of Proposed Revision
When notice is required (see subsection A above), the notice will include the following information:
The authority for the action (i.e., the regulatory basis for reopening);
The nature and rationale of proposed revisions;
The right to request a hearing (when applicable);
The opportunity to submit additional evidence or a written statement, even if the claimant waives the right to a hearing; and
A statement that the AC will proceed with its action if the claimant does not request a hearing (if applicable) or has nothing further to submit.
Additionally, if the claimant received a favorable decision that the AC proposes to reopen, the notice must also include the following, as applicable:
If a favorable ALJ decision is being reopened and benefit payments have not been effectuated, the notice must include a closing paragraph that sets forth the section 8001 provisions. For more information on 8001 benefits, see Hearings, Appeals and Litigation Law (HALLEX) manual I-3-6-40.
In a title XVI claim where the claimant is in payment status, the notice must include a statement advising the individual that if a hearing is requested within 10 days, payments will continue until a hearing decision is rendered. If no hearing is requested, payments will continue until the AC issues a decision. See 20 CFR 416.1336. (If the claimant requests a hearing, see also benefit continuation remand instructions in HALLEX I-3-7-40).
C. Proffering Evidence
Unless additional evidence on which the AC is relying to revise a prior decision was submitted by the claimant or an appointed representative, if any, or the proposed revision is based on evidence that was before the ALJ or the AC at the time the prior decision was made, the AC will proffer the additional evidence to the claimant and appointed representative, if any. For procedures on proffering evidence, see HALLEX I-3-2-16.
Although a protest or referral memorandum from another agency component (see HALLEX I-3-6-10) that objects to a prior decision is not considered new or material evidence, the AC will afford the claimant the right to examine and comment on the information if the revised decision based on the referral will be less than fully favorable.