Ford v Shalala, 87 F.Supp.2d 163 (E.D.N.Y. 1999) ruled that notices of SSI financial eligibility and/or benefit amounts ("SSI financial eligibility notices") violated the due process clause of the Fifth Amendment of the United States Constitution.

The Ford Judgment requires the Social Security Administration (SSA) to

expeditiously prepare and implement a plan, consistent with the Memorandum Decision and Order, that modifies defendant's automated SSI financial eligibility notices so as to provide information required in order to understand the reasons for an award, modification, termination or denial of SSI benefits, in such detail as is necessary to permit a reasonable person to understand the basis for the agency's action on the following subjects:
 

(a)	information and explanations about the individual's living arrangement category;
(b)	information about resources;
(c)	benefit computations in worksheet form, including the federal benefit and state supplementation rates;
(d)	the notice recipient's rights to review the claim; and
(e)	the legal authority for the agency's action including either (i) the appropriate legal citations or (ii) information as to how the appropriate legal citations can be obtained from the Social Security Administration.(1)

Until SSA fully complies with the Ford Judgment, millions of constitutionally defective SSI notices will continue to be issued annually. As plaintiffs' counsel in this nationwide class action, we suggest the following procedures to protect SSI claimants' due process rights in the interim.

Where there is any uncertainty about the propriety of an SSI financial eligibility determination (including determinations of benefit amounts, overpayments and living arrangement classifications), we encourage SSI claimants and their advocates to request an administrative appeal by using the accompanying Request for Reconsideration (SSA-561-U2).

As of January 2002, SSI financial eligibility notices should include language about claimants' right to request (free) copies of case file materials and the laws, regulations and agency policies upon which the determinations are based. ⁽²⁾

We have added text to this reconsideration form which cites Ford and asks that SSA mail free copies of the following information ⁽³⁾ to SSI claimants prior to scheduling their formal (or informal) conferences: ⁽⁴⁾
 
 

A check-off box and text have also been inserted to request that the reconsideration conference be held in the claimant's home due to the inability to travel to an SSA office. ⁽⁶⁾

An SSI claimant normally must request an administrative appeal within 60 days of the receipt of a notice. ⁽⁷⁾ However, this time limit for requesting an appeal should be tolled in light of the Ford ruling that SSI financial eligibility notices are constitutionally inadequate.⁽⁸⁾ In other words, the 60 days for requesting an appeal should not begin to run until a claimant has received adequate notice that satisfies due process.

Alternatively, SSA's own procedures permit the late filing of an appeal upon a showing of good cause.⁽⁹⁾ In determining whether an SSI claimant had good cause for missing the 60 day deadline, SSA must consider various factors, including "[w]hether our action misled you." ⁽¹⁰⁾

If the claimant files a reconsideration request beyond the time limit for filing an appeal, we would find good cause for extending the time limit due to misinformation resulting from the defective notice. ⁽¹¹⁾

Good cause for late filing may apply when a SSI recipient indicates that SSA actions were confusing or misleading. If a SSI claimant states that he/she did not file a timely appeal of an initial financial eligibility determination due to lack of understanding of the information contained in the SSI notice, develop for "good cause" under established procedures (see GN 03101.020, SI 02301.310, SI 04020.020).

Text has been added to the Request for Reconsideration form, seeking continuation (or reinstatement and restoration) of SSI payments at the pre-notice level if the contested determination is an SSI reduction, suspension or termination.

Normally, an SSI recipient must request reconsideration within ten days of receipt of an SSI Notice of Planned Action⁽¹²⁾ in order to qualify for continuation of SSI benefits at the pre-reduction, pre-suspension or pre-termination level⁽¹³⁾ pending the outcome of the reconsideration.⁽¹⁴⁾ Where reconsideration is requested more than ten days after receipt of the notice,

there shall be no right to continuation or reinstatement of payment at the previously established level unless good cause is established under the criteria specified in Sec. 416.1411 of this part for failure to appeal within 10 days after receipt of the notice (emphasis supplied).⁽¹⁵⁾

the claimant was furnished confusing, incorrect or incomplete information or was otherwise misled by a representative of SSA or HCFA about his/her right to request continued benefits, reconsideration, a hearing before an Administrative Law Judge, AC review, or to begin a civil action (emphasis supplied). ⁽¹⁶⁾

When an SSI recipient loses an aid-continuing reconsideration, the contested adverse action is implemented and the recipient is liable for repayment of the aid-continuing overpayment. This occurs even if the claimant has requested the next stage of an administrative appeal: a hearing before an Administrative Law Judge. Nevertheless, such aid-continuing overpayments can be waived just like any other SSI overpayments.⁽¹⁷⁾

Overpayments of $500.00 or less will generally be waived without completion of SSA's Request for Waiver of Overpayment Recovery Or Change in Repayment Rate form (SSA-632-BK) as long as there is no apparent indication of fault on the part of the overpaid person.⁽¹⁸⁾

For current SSI recipients who have received overpayments in excess of $500.00, recipients must establish that they were "without fault" in receiving the overpayment. The waiver process begins with submission of a completed waiver form (SSA-632-BK) and will include a personal conference if the overpayment is not waived upon review of the submitted form.⁽¹⁹⁾

SSA cannot recover the overpayment while the waiver request is pending. SSI recipients are also entitled to request an aid-continuing reconsideration within 30 days of the denial of a waiver request.⁽²⁰⁾

Given the constitutionally defective nature of SSI notices, a showing of "good faith" in requesting reconsideration should be sufficient to establish "without fault" in obtaining waiver of the overpayment of aid-continuing SSI benefits.⁽²¹⁾

Class counsel can assist in instances where SSA:
 

The preferred method of contacting us is by e-mail at: Ford_v_Apfel@yahoo.com.

We can also be reached by mail, fax or telephone at:
 

Peter Vollmer	Christopher Bowes
Vollmer & Tanck, L.L.P.	Center for Disability Advocacy Rights, Inc. (CeDAR)
50 Charles Lindbergh Boulevard, Suite 600A	841 Broadway, Suite 605
Uniondale, New York 11553	New York, New York 10003
Tel.: (516) 228-3381	Tel.: (212) 979-0505
Fax: (516) 222-2851	Fax: (212) 979-8778

1. Ford v Apfel, 2000 WL 281888, 2000 U.S. Dist. LEXIS 2898 (E.D.N.Y. January 13, 2000).

2. See SSA Emergency Message EM-02001 (January 2, 2002)

3. These requested materials should cure the currently defective SSI notices.

4. Because the reconsideration stage of the SSA appeal process has been held to satisfy the due process requirement for a pre-termination hearing [Taddonio v Heckler, 609 F.Supp. 689 (E.D.Pa. 1985)], we urge all SSI claimants to seek formal conferences (or at least informal conferences) rather than case reviews. See20 CFR 416.1413 for a description of the three methods for reconsideration.

5. Federal living arrangement classifications affect all SSI claimants nationwide. State living arrangement classifications affect SSI claimants who reside in the following areas where SSA administers SSI state supplements: California, Delaware, the District of Columbia (Washington D.C.), Hawaii, Iowa, Massachusetts, Michigan, Montana, Nevada, New Jersey, New York, Pennsylvania, Utah, Vermont and Washington. See POMS § SI 01415.034 for the definitions of these state living arrangements and for the 2002 SSI state supplement rates.

6. POMS § SI 04020.050[B][1] provides that

Generally, the conference should be conducted at an SSA office, either by telephone or in person, whichever the claimant prefers. However, the conference can be held elsewhere in person if the claimant shows circumstances that make this arrangement reasonably necessary (emphasis supplied).

8. In State of New York v Sullivan, 906 F.2d 910, 917 (2d Cir. 1990), the Court of Appeals noted that

While the decision whether to extend the period of review is usually left to the Secretary, cases occasionally arise where the equities in favor of tolling are "so great that deference to the agency's judgment is inappropriate." Mathews v Eldridge, 424 U.S. 319, 330, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). For example, equitable tolling is in order when government misconduct keeps plaintiffs from appreciating the scope of their rights. [Bowen v] City of New York, 476 U.S. [467,] at 481 [(1986)]; Bailey v Sullivan, 885 F.2d 52, 64 (3d Cir. 1989).

10. 20 CFR 416.1411(a)(2).

11. POMS § SI 04010.020[B][3].

12. SSA presumes that a notice has been received five days after the date on the notice. The presumption is rebuttable upon "a reasonable showing to the contrary." 20 CFR 416.1336(b).

13. SSA refers to the aid-continuing benefit amount as the "protected payment level (PPL)." POMS § SI 02301.300[C][9].

14. See 20 CFR 416.1336(b); POMS § SI 02301.300 et seq.

15. 20 CFR 416.1336(b). See POMS § SI 02301.310[C][4].

16. POMS § GN 03101.020[A][4][f].

17. See 42 U.S.C. § 1383(b)(1)(B)(i); 20 C.F.R. §§ 416.550-416.555; POMS § SI 02260.000 et seq.

18. See POMS §§ SI 02260.005[C][3][d] and 02260.030[C]

19. See POMS § SI 02260.006; SSA Emergency Message EM-00007; Stipulation and Order of Settlement in Greenawalt v  Apfel, 99-CV-2481 (E.D.N.Y. 1999).

20. See POMS § SI 02220.017[A][4][d] and [e].

21. Although SSA has not specifically addressed the "without fault" standard in the context of appeals involving defective notices, a "good faith" standard is applied to appeals involving cessation of disability determinations. See POMS § GN 02250.036; SSA Emergency Message EM-97-110.