I-5-4-70.Clark v. Astrue
| Purpose | |
| Background | |
| Definition of the Class | |
| The Court Order and Implementation | |
| Processing of Cases | |
| Inquiries | |
| Attachment 1. Order Approved by the U.S. District Court for the Southern District of New York on April 13, 2012 | |
| Attachment 2. Form HA-505 “Transmittal by Office of Disability Adjudication and Review” |
Issued: March 27, 2013
I. Purpose
This Temporary Instruction advises Office of Disability Adjudication and Review (ODAR) employees of the final Order entered by the United States District Court for the Southern District of New York on April 13, 2012 in the Clark v. Astrue class action (Clark). The Clark class action concerned the Social Security Administration's (SSA) practice of treating probation or parole violation (PPV) warrants as sufficient evidence of PPVs to suspend or deny claimants' benefits or issue overpayment determinations based solely on the existence of PPV warrants. SSA stopped its practice of suspending Old Age, Survivors, and Disability Insurance (OASDI) benefits, suspending or denying Supplemental Security Income (SSI) benefits, and issuing overpayment determinations to individuals based solely on the existence of outstanding PPV warrants, and will grant retroactive relief to certain individuals.
II. Background
On December 28, 2006, plaintiffs filed the Clark class action lawsuit against the Commissioner of SSA. The plaintiffs alleged that SSA's practice of suspending OASDI benefits and/or suspending or denying SSI benefits based solely on the existence of an outstanding warrant for the beneficiary's arrest in connection with an alleged violation of a probation or parole condition, without any determination or finding that such individual had in fact committed such a violation, was unlawful. On September 22, 2008, the District Court found that SSA's practice of suspending and/or denying benefits solely on the basis of a PPV warrant was consistent with the plain language of the statute and regulations, and denied the plaintiff's motion.
On appeal, the United States Court of Appeals for the Second Circuit (Second Circuit) rendered its decision in Clark v. Astrue, 602 F.3d 140, 152 (2d Cir. 2010) on March 19, 2010. The Second Circuit held that it is inconsistent with the plain meaning of the Social Security Act for SSA to treat a warrant alleging an individual is violating a condition of probation or parole as sufficient and irrebuttable evidence that the individual is in fact violating a condition of probation or parole. As a result, SSA stopped suspending and/or denying OASDI and SSI benefits or issuing overpayment determinations based solely on an outstanding PPV warrant for individuals who resided in New York, Connecticut, or Vermont. On March 18, 2011, the Court certified a nationwide class for Clark, and on May 9, 2011, SSA stopped the practice of suspending and/or denying OASDI and SSI benefits or issuing overpayment determinations nationwide based solely on the existence of an outstanding PPV warrant. On April 13, 2012, the Court issued the final Order.
In addition to permanently stopping this practice, the Clark Order also provides retroactive relief to certain class members whose benefits were suspended or denied or were assessed an overpayment under the former practice.
III. Definition of the Class
Clark class members include all persons nationwide for whom an initial determination to suspend or deny SSI and/or OASDI benefits was made and/or an initial determination of overpayment of such benefits was made and such initial determination was based solely on the existence of a warrant for an alleged violation of probation or parole, provided: (i) the initial determination was made during the period from October 24, 2006 to and including such time in the future when final relief is entered in this action; or (ii) a timely administrative appeal of such initial determination was pending on or after October 24, 2006.
IV. The Court Order and Implementation
SSA implemented the prospective relief for class members under the Clark Order by discontinuing the practice of suspending or denying OASDI and SSI benefits, or issuing overpayment determinations based solely on a PPV warrant. SSA is now implementing retroactive relief under Clark for class members in the following situations:
For all individuals whose benefits were suspended solely on the basis of an outstanding probation or parole violation warrant, SSA will fully reinstate all benefits retroactive to the date the benefits were suspended and on an ongoing basis. However, if there is another basis for suspending benefits for any portion of the retroactive period or ongoing benefit period, SSA may suspend such benefits upon notice to the individual with appeal rights in conformity with agency regulations. Unless otherwise provided, all payments to individuals are subject to regular payment, non-payment, and reduced payment provisions of the Social Security Act.
For all individuals for whom SSA made an initial determination of an overpayment, as defined in agency regulations in 20 CFR 404.902 and 416.1402, SSA will reverse such overpayment determination and return any funds already recovered unless any or all of those funds are needed to recover another outstanding overpayment not related to the Clark Order and for which a notice was provided to the individual as required in agency regulations in 20 CFR 404.904 and 416.1404.
For all individuals who were denied SSI payments based solely on an outstanding probation or parole violation warrant and whose claims were otherwise fully developed, SSA will reopen such claims and determine benefits based on the original application date.
Unless critical or expedited case processing procedures apply, for all individuals with appeals pending at any administrative level of determination made solely on the basis of an outstanding probation or parole violation warrant, SSA will review and complete development of such cases based on the original date of the appeal.
For all individuals SSA previously determined to be disabled who filed a new application for SSI payments subsequent to their suspension or denial (based solely on the existence of an outstanding probation or parole violation warrant), SSA will vacate any determination of non-disability on the subsequent application if it was not made in compliance with the requirements for continuing disability reviews as provided in 42 USC 423(f).
To notify class members pursuant to the Clark Order, SSA will first contact them through an informational notice mailed to the last known address in agency records. The informational notices will advise individuals that the practice regarding outstanding probation and parole warrants has changed and that they may be entitled to, or eligible for, benefits or payments for applicable periods of suspension or non-payment. For a copy of the Clark Informational Notices, see POMS GN 02615.160.
SSA will also mail an individualized notice to that person. This notice will explain the specific relief provided, including any determination that no individual relief is due.
Several aspects of the Clark Order retroactive relief described above will be automated and performed by components other than ODAR. See generally POMS GN 02615.000 for information about how other SSA components implement the Clark Order.
V. Processing of Cases
A. Hearing Level
If the case has a Clark case characteristic (CACL) in Case Processing Management System (CPMS), the hearing office (HO) will proceed immediately with processing the case.
If the case has not yet been identified, generally the Processing Center (PC) or field office (FO) will notify the HO if the claimant is eligible for Clark relief. The PC or FO will send this information directly to the HO via an email to the HO general email address, with the subject “Clark relief Order Case.” See POMS GN 02615.130C and GN 02615.185.
Once the HO receives notification from the PC or FO, HO staff will proceed as follows:
Assign the Clark case characteristic (CACL) in CPMS; and
Refer the Clark email message or notification to the assigned administrative law judge (ALJ) for further action.
The ALJ will consider the following:
Whether the claimant's benefits were denied or suspended based solely on a PPV warrant on or after October 24, 2006; and
Whether the claimant incurred an overpayment because of such a suspension or an associated termination of payments based solely on a PPV warrant.
The existence of other issues in the case may affect how the ALJ processes a case involving potential Clark relief. Carefully examine the record in each case to identify all potential issues and follow the appropriate instructions below.
1. Handling Clark Cases Involving PPV Warrant Issue Only – Administrative Dismissal/Referral to PC or FO for Revised Determination
When the only issue under review at the hearing level is the suspension or denial of benefits or an overpayment of benefits based solely on a PPV warrant, the ALJ will remand the case to the PC or FO for a revised determination under 20 CFR 404.948 and 416.1448.
The HO procedures are as follows:
Notify the claimant that his or her case will be remanded to the PC or FO for scheduled Clark relief, using the following language:
This case is before the Administrative Law Judge on a request for hearing. The Administrative Law Judge may return a case to the appropriate component of the Social Security Administration for a revised determination if there is reason to believe that the revised determination would be fully favorable to you, pursuant to the Clark v. Astrue final Order, under the authority set forth in 20 CFR 404.948 and/or 416.1448.
If you disagree with this order, you must notify the undersigned within 10 days of the date of this remand. The Administrative Law Judge will consider your objections and rule on them in writing. If you do not respond to this notice, we will assume that you agree to the remand.
Hold the case for 10 days, in case the claimant objects, in accordance with 20 CFR 404.948 and 416.1448;
If the claimant does not object, the ALJ will administratively dismiss (ADDI) the request for hearing;
Prepare a transmittal for return to the appropriate office (step e), which indicates the case needs processing under the Clark Order. Use DGS Form HA L48 “Transmittal by Office of Disability Adjudication and Review” identified as “Clark Court Order”, using the following language:
I remand the case pursuant to 20 CFR 404.948(c) and/or 416.1448(c), to the appropriate processing center or field office in accordance with the Clark Order because a favorable revised determination is possible. Please review the case and issue a revised reconsidered determination. The notice of such determination should provide the claimant with a right to a hearing.
Refer OASDI (title II) cases to the PC and SSI (title XVI) cases to the local FO.
Place an alert in the Alert and Message section in eView to notify the PC or the FO of Clark relief involvement.
If the claimant objects to the remand, schedule the case for an ALJ hearing.
2. Handling Clark Cases with Additional Issues
The claimant is entitled to a new revised determination on the suspension or denial of benefits or an overpayment of benefits based on a PPV warrant. Therefore, when the request for hearing includes issues in addition to the suspension or denial of benefits or an overpayment based on a PPV warrant, the ALJ will first determine whether resolution of the PPV issue resolves all other issues involved in the case. If it does, the ALJ will proceed with the procedures in A.1 above.
If other issues remain after resolution of the PPV issue, the ALJ will proceed with action on all issue(s) in the case. See also POMS GN 02615.130 and GN 02615.185. At the time of decision, the ALJ will act on all issue(s) in the case and take appropriate action in regards to each issue in the decision, including deciding the PPV issue. The HO will follow the normal case processing and routing procedures when releasing the decision.
The HO will also add an alert to the Alert and Message section in eView to notify the PC or FO of Clark involvement.
3. Handling a New Medical Appeal
A claimant who is potentially eligible for Clark relief on a terminated record may have filed a new claim that was medically denied. Based on Clark relief, the new claim may be moot and, if it is, must be disposed of prior to providing relief on the terminated record.
a. HO Is Processing a New Medical Appeal When There Is a Prior Clark Case
In this situation, the processing instructions depend on whether the Clark case had a medical determination. If it did, the FO will request that the ALJ dismiss the pending request for hearing on the medical appeal or vacate a decision on the medical appeal and dismiss the request for hearing (if review by the AC was not requested). The dismissal order must cite the Clark case and use the following language:
I dismiss the request for hearing in accordance with the Clark Order because a favorable revised determination on a prior record is likely. In the unusual circumstance in which relief on the prior record is not provided, the request for hearing on this claim will be reinstated.
These instructions apply regardless of the level at which the Clark case is pending.
NOTE:
If both claims are pending at the HO, the ALJ will follow the procedures in A.1 with respect to the PPV warrant issue(s) and dismiss the request for hearing on the new application, as above.
However, if there was no medical determination in the Clark case, the FO will notify the HO that the Clark case was sent to Disability Determination Services (DDS) for a medical determination. The HO will continue processing its action on the pending medical appeal for the non-Clark related case.
If DDS makes an unfavorable determination on the Clark case and the case is still pending at the HO, the case will be escalated and consolidated with the case pending at the HO.
If DDS makes a favorable determination on the Clark case, the FO will ask the HO to dismiss the pending request for hearing or, if a decision has been made on the current claim, to vacate the ALJ decision and dismiss the request for hearing. See POMS GN 02615.185. The dismissal order must cite the Clark case and use the language previously noted in this section.
b. HO Is Processing a Prior Clark Case and a New Medical Appeal Was Filed
The HO will clear the Clark case using the instructions in A.1. However, the HO will also notify the component with jurisdiction over the new medical appeal that it is moot based on Clark relief and the appeal must be disposed of in order to provide the necessary relief (even when the new medical appeal case is closed).
B. Appeals Council
The PC or FO will notify the Office of Appellate Operations Executive Director's Office (“EDO”) if a claimant is eligible for Clark relief. EDO staff will assign a Clark case characteristic (CALC) in the Appeals Review Processing System (ARPS) and forward the case to a division and branch for assignment.
If processing a case where the claimant is eligible for Clark relief, the AC will consider the following:
Whether the claimant's benefits were denied or suspended based on a PPV warrant on or after October 24, 2006; and
Whether the claimant incurred an overpayment as a result of such a suspension or associated termination of benefits based solely on a PPV warrant.
The existence of other issues in the case may affect how the AC processes a case involving potential Clark relief. Carefully examine the record in each case to identify all potential issues and follow the appropriate instructions below.
1. Handling Clark Cases Involving PPV Warrant Issue Only – Administrative Dismissal/Referral to PC or FO for Revised Determination
In order to expedite Clark relief for claimants, the AC uses an administrative dismissal and referral procedure rather than remanding the claim to the ALJ to remand to the appropriate office. When the only issue(s) on appeal to the AC is the suspension or denial of benefits or an overpayment of benefits, based solely on a PPV warrant, the AC will:
Issue an order vacating the ALJ's unfavorable decision citing the Clark Order and the right to a revised determination;
Administratively dismiss (ADDI) the request for review;
Return the case to the appropriate office, as set forth in B.1.e., to process the necessary relief required by the Clark Order via Form HA-505 “Transmittal by Office of Disability Adjudication and Review” identified as “Clark Court Order” (See Attachment 2).
Add a red “Special” flag to form HA-505 prior to returning the case to the office with appropriate jurisdiction; and
Refer OASDI (title II) cases to the PCs and SSI (title XVI) to the FOs.
2. Handling of Clark Cases with Additional Issues
The claimant is entitled to a new revised determination on the suspension or denial of benefits or an overpayment of benefits based on a PPV warrant. When the issues on appeal to the AC include other issues that the AC has proper jurisdiction to adjudicate, the AC will first determine whether resolution of the PPV issues resolves all other issues involved in the case. If it does, the AC will proceed with the procedures in B.1 above.
If other issues remain after resolution of the PPV issue, the AC will proceed with action on all issue(s) and take appropriate action in regards to all issue(s) in the case. See also POMS GN 02615.130 and GN 02615.185. The AC will follow the normal case processing procedures for release of the action document.
The AC will also add an alert to the Alert and Message section in eView to notify the PC or FO of Clark involvement.
3. .Handling a Concurrent Claim-Title II Is Pending with AC and Title XVI Previously Denied
When there was an initial concurrent claim in which the title II was medically denied but the title XVI was technically denied based on a PPV, the FO will notify the AC that a DDS determination is pending on the title XVI claim. The AC will hold the case pending a DDS determination.
If an unfavorable determination is made by DDS, the AC will first consider whether the appropriate course of action is to remand the case to an ALJ to consider the claims together.
If DDS makes a favorable determination, the AC will process the appeal case using the instructions in B.1 above.
4. Handling a New Medical Appeal
A claimant who is potentially eligible for Clark relief on a terminated record may have filed a new claim that was medically denied and is pending at the AC. Based on Clark relief, the new claim may be moot and, if it is, must be disposed of prior to providing relief on the terminated record.
a. AC Is Processing a New Medical Appeal When There Is a Prior Clark Case
In this situation, the processing instructions depend on whether the Clark case had a medical determination. If it did, the FO will ask the AC to dismiss the pending request for review on the SSI medical appeal or to vacate the AC action and dismiss the request for review. See POMS GN 02615.185. However, if the case has already been remanded, the HO has jurisdiction and the HO instructions above apply.
The dismissal order must cite the Clark case and use the following language:
The Appeals Council dismisses the request for review in accordance with the Clark Order because a favorable revised determination on a prior record is likely. In the unusual circumstance in which relief on the prior record is not provided, the request for review on this claim will be reinstated.
These instructions apply regardless of the level at which the Clark case is pending.
NOTE:
If the Clark case and the pending medical appeal are both pending at the AC, the AC will follow the procedures in B.1 with respect to the PPV warrant issue(s) and dismiss the request for review on the new application, as above.
However, if there was no medical determination on the Clark case, the FO will notify the AC that the Clark case was sent to DDS for a medical determination. The AC will continue processing its action on the pending medical appeal for the non-Clark related case.
If DDS makes an unfavorable determination on the Clark case before the AC has acted, the AC will consider whether the determination is relevant to the pending medical appeal and will take appropriate action. If the claim is remanded, the AC will instruct the ALJ to consider the claims together.
If DDS makes a favorable determination on the Clark case, the FO will ask the AC to dismiss the pending request for review on the SSI medical appeal or, if the AC has already taken action on the current claim, to vacate the AC action and dismiss the request for review. The dismissal order must cite the Clark case and use the language previously noted in this section.
b. AC Is Processing a Prior Clark Case and a New Medical Appeal Was Filed
The AC will clear the Clark case using the instructions in B.1. However, the AC will also notify the component with jurisdiction over the new medical appeal that it is moot based on Clark relief and the appeal must be disposed of in order to provide the necessary relief (even if the new medical appeal is closed).
C. Results of ODAR Actions
Upon receipt of the case from an HO or the AC, the FO or PC will evaluate the case under the Clark Order and issue a revised reconsideration determination. Vacating the ALJ's decision renders it no longer the final decision of the Commissioner and subject to revision, as pertinent.
VI. Inquiries
At the hearing level, direct all program-related and technical questions to the appropriate Regional Office (RO) support staff. RO support staff may refer questions or unresolved issues to Headquarters' contacts in the Office of the Chief Administrative Law Judge.
At the AC level, direct all program-related and technical questions to EDO Appeals Officers.
Attachment 1. Attachment 1. Order Approved by the U.S. District Court for the Southern District of New York on April 13, 2012
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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RYAN CLARK, JOY JORDAN, RAYMOND Plaintiffs,
MICHAEL J. ASTRUE, Commissioner of the Defendant. |
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ORDER |
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In an opinion dated March 19, 2010, the U.S. Court of Appeals for the Second Circuit held that the "the Social Security Administration's practice of treating a warrant alleging that a recipient is violating a condition of probation or parole as sufficient and irrebuttable evidence that the recipient is in fact violating a condition of probation or parole is inconsistent with the plain meaning of the Social Security Act." Clark v. Astrue, 602 F.3d 140 (2d Cir. 2010). This Court subsequently certified a class defined as "All persons nationwide for whom an initial determination to suspend or deny SSI and/or OASDI benefits was made and/or an initial determination of overpayment of such benefits was made and such initial determination was based solely on the existence of a warrant for an alleged violation of probation or parole, provided: (i) the initial determination was made during the period from October 24, 2006 to and including such time in the future when final relief is entered in this action; or (ii) a timely administrative appeal of such initial determination was pending on or after October 24, 2006."
Accordingly, it is hereby ORDERED, ADJUDGED AND DECREED as follows:
SECTION 1 DEFINITIONS
1.1 "Action" means the litigation in the United States District Court for the Southern District of New York, 06 Civ. 15521 (SHS), and the U.S. Court of Appeals for the Second Circuit, 08-580 l-ev, and all proceedings had therein.
1.2 "Class Counsel" or "Plaintiffs' Counsel" means: Proskauer Rose LLP, the National Senior Citizens Law Center and the Urban Justice Center.
1.3 The "Class" or "Class Members" means: a Plaintiff class, pursuant to Fed. R. Civ. P. 23(b)(2), comprising: "All persons nationwide for whom an initial determination to suspend or deny SSI and/or OASDI benefits was made and/or an initial determination of overpayment of such benefits was made and such initial determination was based solely on the existence of a warrant for an alleged violation of probation or parole, provided: (i) the initial determination was made during the period from October 24, 2006 to and including such time in the future when final relief is entered in this action; or (ii) a timely administrative appeal of such initial determination was pending on or after October 24, 2006." 1.4 "Court" means the United States District Court for the Southern District of New York.
1.5 "Defendant" or "the Commissioner" means Michael J. Astrue, the Commissioner of Social Security, in his official capacity, and/or his successors, if any.
1.6 "Named Plaintiffs" refers to Plaintiffs Raymond Giangrasso, Johnny L. Heatherman, Monell White, Ryan Clark and Joy Jordan.
1.7 "OASDI" means the Old Age, Survivors, and Disability Insurance program, under Title II of the Social Security Act. 1.8 "Overpayment" shall have the meaning as set forth in 20 C.F.R. §§ 404.501, 404.502 and 416.537(a).
1.9 "Parties" means the Named Plaintiffs, the Class and Defendant.
1.10 "Plaintiffs" refers to the Named Plaintiffs, acting on their own behalf and on behalf of all Class Members. 1.11 "SSA" means the Social Security Administration.
1.12 "SSI" means the Supplemental Security Income program under Title XVI of the Social Security Act.
SECTION 2 PROSPECTIVE RELIEF
2.1 Defendant is hereby enjoined from suspending OASDI benefits, or denying or suspending SSI payments, or making a determination of an overpayment of such benefits and payments based solely on an outstanding probation or parole violation warrant, including any such warrant with one of the following National Crime Information Center (NCIC) offense codes: 5011 (parole violation), 5012 (probation violation), 8101 Uuvenile offenders- abscond while on parole), and 8102 Uuvenile offenders- abscond while on probation). 1
SECTION 3 REMEDIAL PROVISIONS
3.1 For all Class Members whose benefits were suspended solely on the basis of an outstanding probation or parole violation warrant, Defendant shall fully reinstate all benefits retroactive to the date the benefits were suspended and on an ongoing basis. However, if there is another basis for suspending benefits for any portion of the retroactive period or ongoing benefit period, Defendant may suspend such benefits upon notice to the individual with appeal rights in conformity with SSA regulations. Except as stated herein, all payments to Class Members are subject to regular payment, non-payment, and reduced payment provisions of the Social Security Act.
3.2 For all Class Members for whom SSA has made an initial determination of an overpayment, as defined in the Commissioner's regulations (20 C.F.R. §§ 404.902U) and 416.1402), Defendant shall reverse such overpayment determination and return any funds already recovered unless any or all of those funds are needed to recover another outstanding overpayment not related to this Order and for which a notice was provided to the individual as required in the Commissioner's regulations (20 C.F.R.§§ 404.904 and 416.1404).
3.3 For all Class Members who were denied SSI payments based solely on an outstanding probation or parole violation warrant and whose claims were otherwise fully developed, Defendant shall reopen such claims and determine benefits based on the original application date.
3.4 Unless critical or expedited case processing procedures apply, for all Class Members with appeals pending at any administrative level of determinations made solely on the basis of an outstanding probation or parole violation warrant, Defendant shall review and complete development of such cases based on the original date of the appeal.
3.5 For all Class Members previously determined by SSA to be disabled who filed a new application for SSI payments subsequent to their suspension or denial, Defendant shall vacate any determination of non-disability on the subsequent application if it was not made in compliance with the requirements for continuing disability reviews as provided in 42 U.S.C. § 423(£).
3.6 Following the Effective Date, SSA shall contact Class Members through an informational notice (an OASDI or SSI one-time class settlement informational notice) mailed via U.S. Postal Service (U.S.P.S.) first class mail to the last known address in SSA records with a designated post office box as the return address. Prior to sending this informational notice, SSA shall match the addresses in its records for all SSI Class Members who are not in current pay against the U.S.P.S. National Change of Address (NCOA) file. In those instances where a match is not made, the informational notice will be sent with Forwarding Service Requested special handling. The informational notice shall include a bolded Spanish language paragraph including a brief description regarding this matter and inviting the Class Members to contact their local Social Security office for an explanation of the notice. SSA shall bear the full cost of the informational notices. The informational notices shall advise how SSA's policy regarding outstanding probation and parole warrants has changed and that individuals may be entitled to or eligible for benefits or payments for applicable periods of suspension or non-payment. This informational notice will not require a response on the part of the Class Member. SSA will follow its normal operating procedures if an informational notice is returned as undeliverable.
3.7 When providing specific relief to an OASDI or SSI Class Member, SSA will mail an individualized notice to each Class Member. This notice, to be sent via U.S.P.S first class mail to the last known address in SSA records, will explain the specific relief that will be provided. Those Class Members who have a Spanish language indicator on their records will be sent a Spanish language notice. Those Class Members with visual impairments who have requested that notices be provided in an alternate format will be provided a notice in the manner in which they have previously identified, along with a notice in standard print format. SSA shall bear the full cost of the notices. If a notice is returned as undeliverable, SSA will follow normal operating procedures, including POMS SI 2301.240.C.l, to attempt to locate the individuals.
3.8 To the extent that it is inconsistent with a provision(s) in this Order, change(s) in any controlling statutes shall supersede this Order.
3.9 This Order is not intended to change, modify, or revise SSA's or the Office of Inspector General's implementation of sections 42 U.S.C. §§ 402(x)(C) and 1382(e)(5)(A) of the Social Security Act with regard to the disclosure of information to federal, state, or local law enforcement.
SECTION 4 IMPLEMENTATION PLAN
No later than sixty (60) days following entry of this Order, Defendant shall submit for the Court's approval a plan for implementation of this Order that sets forth the anticipated time frames for implementing the terms of the Order. The implementation plan shall specify the time frames for: 1) posting a news item on SSA's official, public website (as provided in Section 5.1 of this Order); 2) posting a notice of the provisions of this Order in each SSA Field Office (as provided in Section 5.2 of this Order); 3) identifying Class Members; 4) mailing the informational notices described in Section 3.6 of this Order; 5) mailing the individual notices described in Section 3.7 of this Order; 6) providing OASDI relief by an automated process; 7) providing OASDI relief manually; 8) providing SSI relief manually; and 9) with respect to numbers 6, 7 and 8 herein, completing cases.
SECTION 5 PUBLICATION
5.1 No later than thirty days (30) days following the entry date of this Order, SSA shall publicize the terms of this Order by posting a news item on the home page of its official, public website, www.socialsecurity.gov, that will summarize the key provisions, and attach a copy of this Order.
Upon mailing the informational notices described in Section 3.6 of this Order, SSA shall post a notice of the provisions of this Order in each SSA FO. This notice shall remain posted in each SSA FO until SSA substantially completes the implementation of this Order as described in Section 6.3 below.
SECTION 6 INQUIRIES, COMMENTING AND REPORTING
6.1 SSA and Class Counsel shall each designate an individual or individuals who will serve as a point of contact. The designated individual(s) will act in good faith to address any inquiries from Class Counsel related to the implementation of this Order.
6.2 SSA shall provide Class Counsel with an advance copy of any newly created and subsequently revised draft POMS, HALLEX, Chief Judge Bulletins, Emergency Messages to SSA components, template individual notices to Class Members described in Section 3.7 of this Order, draft informational notices to Class Members described in Section 3.6 of this Order, any specialized Clark notice language, and any other notices that effectuate any term of this Order. Class Counsel shall provide comments, if any, to SSA, within five business days of receiving the drafts. SSA will consider Plaintiffs' comments in good faith, although SSA is not obligated to respond to and/or incorporate these comments in the final instructions and notices.
6.3 SSA shall report the following information to Class Counsel: I) the total number of potential OASDI Class Members; 2) the total number of potential SSI Class Members; 3) the total number of OASDI informational notices sent; 4) the total number of SSI informational notices sent; 5) the total number of informational notices returned; (items 3, 4 and 5 will be provided only once); 6) the total number of OASDI cases completed by an automated process; 7) the total number of OASDI cases completed manually; and 8) the total number of SSI cases completed manually. SSA shall continue reporting the above information quarterly to Class Counsel until it substantially completes the implementation of this Order. For the purposes of this Order, substantially completes means SSA completes at least ninety-five (95) percent each of the OASDI and SSI cases. For the purposes of this Section, "completes" means that SSA has provided the required relief as stipulated in Section 3 of this Order or has apprised the individual that no relief is appropriate. SSA shall further notify the Class Counsel of any anticipated difficulties in adhering to the implementation plan's time frames.
SECTION 7 CONTINUING JURISDICTION
7.1 The Court will retain jurisdiction over this matter for the purposes of: (a) enforcing the provisions of this Order in the event that one of the Parties claims that there has been a breach of this Order; and (b) modifying this Order if jointly requested by the Parties, or if the parties do not agree, upon good cause shown by either Party. Both Class Counsel and Defendant's counsel shall make reasonable efforts to resolve any issues with regard to this Order.
7.2 Nothing in this Order prohibits the Defendant from promulgating regulations regarding suspending OASDI benefits or denying or suspending SSI payments as provided in 42 U.S.C. §§ 402(x)(l)(A)(v) and 1382(e)(4)(A)(ii).
1. On August 20, 2010, SSA issued instructions to cease this practice for individuals residing in New York, Connecticut or Vermont. On May 9, 2011, SSA issued instructions to cease this practice nationwide.