I-5-4-28.Sullivan v. Zebley

Table of Contents
I Purpose
II Background
III Guiding Principles
IV Definition of Class
V Determination of Class Membership and Preadjudication Actions
VI Processing and Adjudication
VII Case Coding
VIII Inquiries
Attachment 1 - Stipulation and Order Entered by the U.S. District Court for the Eastern District of Pennsylvania Dated March 14, 1991
Attachment 2 - Zebley Screening Sheet
Attachment 3 - Notice of Non-Class Membership
Attachment 4 - Attachment to Request for Hearing Acknowledgement Letter
Attachment 5 - Sample Dismissal Order—(current claim pending at OHA being consolidated with class member claim pending at DDS)
Attachment 6 - Order of the Appeals Council (remanding class member claim to DDS following court remand of civil action)

ISSUED: February 7, 1992

I. Purpose

This Temporary Instruction (TI) sets forth instructions for implementing the February 20, 1990 decision of the United States Supreme Court in Sullivan v. Zebley, 110 S. Ct. 885 (1990), which affirmed the August 10, 1988 decision of the United States Court of Appeals for the Third Circuit in Zebley by Zebley v. Bowen, 855 F.2d 67 (3d Cir. 1988). The Third Circuit's decision had declared the Secretary's existing regulations governing the adjudication of childhood disability claims under title XVI of the Social Security Act (Supplemental Security Income (SSI)) invalid as a basis for denying such claims.

The court-ordered class relief in this case is nationwide in scope. All OHA adjudicators must follow the instructions in this TI.

II. Background

On July 12, 1983, plaintiffs filed a class action complaint challenging the Secretary's listings-only policy of evaluating disability in SSI child claims. On July 16, 1986, the U.S. District Court for the Eastern District of Pennsylvania granted, in part, the Secretary's motion for summary judgment and dismissed the class complaint. The plaintiffs appealed to the U.S. Court of Appeals for the Third Circuit which, on August 10, 1988, vacated the district court's dismissal of the class complaint and remanded the case to the district court.

In so doing, the Third Circuit found the Secretary's regulatory interpretation of the statute's “comparable severity” standard to be too restrictive and preclusive of an individualized assessment of a child's functional impairment. The Third Circuit instructed the district court to enter summary judgment in favor of the plaintiff class. On February 15, 1989, the Secretary filed his petition for a writ of certiorari.

Following oral argument on November 28, 1989, the Supreme Court, on February 20, 1990, issued its decision (see Social Security Ruling 91-7c). By a 7 to 2 margin, the Supreme Court found the Secretary's listings-only methodology for determining disability in SSI child claims inconsistent with the statutory standard of “comparable severity” set forth in § 1614(a)(3)(A) of the Social Security Act. The Court invalidated the Secretary's regulations and rulings to the extent that they did not provide SSI child claimants with an individualized functional assessment similar to the functional analysis required in most adult disability claims. The Court concluded that the Secretary could determine the effect of an impairment(s) on a child's ability to perform age-appropriate activities in much the same way that he determines the effect of an impairment(s) on an adult's ability to work.

On May 3, 1990, the U.S. District Court for the Eastern District of Pennsylvania entered a Stipulation and Order approving an “interim standard” negotiated by the parties for use in adjudicating pending claims until the new SSI childhood disability regulations were published. Provisions of the Stipulation and Order provided for appeal of an adverse initial “interim standard” determination to the reconsideration level only. The Stipulation and Order also provided for automatic review of all cases denied under the interim standard upon publication of the new childhood disability regulations.

On February 11, 1991, following a series of meetings with childhood disability experts, the Secretary published his new SSI childhood disability regulations in the Federal Register as a final rule with an opportunity for public comment following publication. The Secretary subsequently extended the normal 60-day public comment period to July 8, 1991. The Secretary may, if he deems appropriate, revise the new regulations in response to public comment.

On March 14, 1991, the U.S. District Court for the Eastern District of Pennsylvania entered a second Stipulation and Order, also negotiated by the parties, setting the terms for implementation of class relief (Attachment 1). The March 14, 1991 Stipulation and Order directed the Secretary to make all good faith efforts to publish any necessary revision to the new regulations within fourteen months of the close of the public comment period.

III. Guiding Principles

The regulations published on February 11, 1991, set forth the new standard for evaluating disability in SSI child claims. The March 14, 1991 Stipulation and Order sets forth detailed provisions for implementation of class relief. The pertinent elements are summarized below:

  • The Secretary is enjoined from denying or terminating SSI childhood disability benefits under the regulations invalidated by the Supreme Court, i.e., 20 CFR §§ 416.924 and 416.994(c), or any preexisting instructions, including Social Security Rulings and other administrative guidance, reflecting the invalidated standard. (On April 25, 1990, the Secretary rescinded Social Security Ruling 83-19.)

  • The Secretary shall evaluate all SSI childhood disability claims pursuant to the provisions of the new childhood disability regulations published on February 11, 1991.

  • The Secretary shall make special efforts to assist children, and their caregivers, in documenting eligibility, and attempt to work with the child, the extended family, foster parents, child welfare agencies and others to obtain evidence needed for readjudication. In cases of non-cooperation, the Secretary shall make special efforts to locate an adult responsible for the child's care, and shall not terminate or deny a childhood disability claim until a personal contact with the family or custodian has been attempted.

  • For disability evaluation purposes, an “adult” is a person who is age 18 or older, and a “child” is a person who has not attained age 18 (20 CFR § 416.902).

  • The type of determination is a full reopening of all prior applications denied or ceased within the court-ordered timeframes.

NOTE:

  • The disability evaluation standard reflected in the new regulations published February 11, 1991, should be used for all SSI disability claimants under age 18 regardless of marital status or claim type. The child definition provisions of 20 CFR §§ 416.1802(c) and 416.1856 apply only with respect to non-medical issues of eligibility.

  • OHA personnel should be alert to the situation where a claimant under the age of 18 had his or her disability evaluated under the regular adult standard. This would most frequently occur when the claimant is married and files as a disabled individual. Under the new regulations, a person who has not attained age 18 is a “child” for disability evaluation purposes, and his or her claim for disability should be evaluated under the “child” standard (20 CFR § 416.902).

  • All SSI childhood disability cases, regardless of the level at which the case was previously denied or ceased under the old regulations or the interim standard will be processed under the new regulations as initial level determinations with full appeal rights.

IV. Definition of Class

The class definition as reflected by the March 14, 1991 Stipulation and Order consists of:

all individuals whose applications for SSI childhood disability payments were denied in whole or in part or whose SSI childhood disability payments were terminated on medical grounds on or after January 1, 1980 until the date of publication of the new childhood disability regulations, February 11, 1991. An individual is also a member of the class by reason of a denial after January 1, 1980 of a request to reopen a determination or decision denying a claim for SSI childhood disability payments, if such request to reopen was pending on January 1, 1980.

For purposes of implementing the March 14, 1991 Stipulation and Order, the nationwide class consists of all individuals:

  • who filed for or received title XVI childhood disability benefits, and

  • whose SSI childhood disability claims were denied, in whole or in part, or whose benefits were terminated based on medical grounds from January 1, 1980, through February 11, 1991, or

  • who had pending on January 1, 1980, a request to reopen a determination or decision denying a claim for SSI childhood disability benefits, and had that request to reopen denied, or

  • whose SSI childhood disability claims were denied, in whole or in part, or whose benefits were terminated, and a federal court issued a final judgment after January 1, 1980 affirming the Secretary's denial or termination on medical grounds.

The class is divided into three subclasses denominated as follows:

  • Subclass A comprises individuals whose claims for SSI childhood disability benefits were denied, in whole or in part, or whose benefits were terminated from January 1, 1980 through May 12, 1983;

  • Subclass B comprises individuals whose claims for SSI childhood disability benefits were denied, in whole or in part, or whose benefits were terminated from May 13, 1983 through February 27, 1990 (On February 27, SSA instructed all adjudicating components to stop denying or terminating SSI child's disability claims); and

  • Subclass C comprises individuals whose claims for SSI childhood disability benefits were denied, in whole or in part, or whose benefits were terminated under the interim standard pursuant to the May 3, 1990 Stipulation and Order.

NOTE:

  • Membership in another class does not preclude membership in the Zebley class.

  • A federal court affirmation of an administrative determination rendered during the time period at issue in this class action will not affect a class member's right to relief under the March 14 Stipulation and Order.

V. Determination of Class Membership and Preadjudication Actions

A. Notice to Potential Class Members

Based on the foregoing class definition, SSA Central Office has identified potential class members by computer run. SSA has mailed notices to potential class members in subclasses A and B only.

Pursuant to the provisions of ¶ 4 of the district court's May 3, 1990 Stipulation and Order, individuals in subclass C will have their claims automatically readjudicated by virtue of a denial under the interim standard. They were previously advised that their claims would be returned to the servicing field office (district office or branch office) and readjudicated by DDS under the new regulations.

The notices to potential class members in subclasses A and B were mailed from July 10 through 12, 1991. A second mailing to 6,700 potential class members was done on August 5, 1991. Potential class members have 120 days from the date of receipt of the notice to request a Zebley class membership determination and review by returning a reply form provided for this purpose. Newly located class members will be sent another class notice and will be given 120 days from receipt of the second notice within which to respond.

Individuals who are not identified by SSA but claim Zebley class membership, should complete a “Statement of Claimant,” Form SSA-795, containing information about past claim filings. This form should be forwarded to:

Office of Disability and International Operations
ATTN: Zebley Coordinator
P.O. Box 17369
Baltimore, MD 21241

SSA Central Office will coordinate further efforts, as necessary, to locate the “nonresponders and undeliverables.” (See ¶ VI.D. of the March 14, 1991 Stipulation and Order (Attachment 1) for further information regarding “nonresponders and undeliverables.”)

B. Screening

The Office of Disability and International Operations (ODIO) is primarily responsible for screening. SSA Central Office will generate potential class membership “alerts” in the order in which reply forms are received by ODIO. ODIO will screen all class notice responses and Form SSA-795s from walk-ins, e.g. self-identified potential class members. ODIO will complete a screening sheet (Attachment 2) to be retained in the file for all walk-ins and for all screened out cases. ODIO will mail notices of non-class membership to claimants, representatives and class counsel, as appropriate.

Special alerts will be generated for untimely replies. “Good cause” for missing the 120-day response deadline may be established pursuant to 20 CFR § 416.1411 as provided for in ¶ VI.A. of the March 14, 1991 Stipulation and Order. ODIO will forward the alert to the servicing field office to develop “good cause” for late filing.

Although ODIO has initial responsibility for screening and sending non-class member notices, the servicing field office will review the available information upon receipt of class member packages and verify that the individual is a class member. If the field office determines that the claimant is not a class member, it will send a non-class membership notice. (No further notice will be sent to individuals screened in as class members.)

C. Post-Screening Actions

  1. Claims Determined Not to be Class Members

    SSA Central Office, ODIO, or in rare instances a field office, will mail notice of non-class membership to the individual, representative, if any, and class counsel. The notice of non-class membership explains the individual's options in case of disagreement (Attachment 3). An individual who has been determined “not a class member” may, within 60 days after receiving notice, request, either directly or through class counsel, that SSA reexamine the determination.

    The potential class member or his or her representative, if any, will attempt to resolve class membership disputes through negotiation with a designated representative in the servicing field office or ODIO. If a resolution cannot be reached, the potential class member, or his or her representative, may raise the matter through class counsel with the Office of the General Counsel in Baltimore. If the class membership question cannot be resolved through negotiation, either party may, by duly noticed motion, submit the matter to the U.S. District Court for the Eastern District of Pennsylvania.

  2. Claims Determined to be Class Members

    ODIO will associate the reply forms with the alerts and systems queries, place them in a blue-colored jacket (folder) stamped “Zebley COURT CASE,” and forward the file to the servicing field office. The blue jacket will identify the case as a Zebley class member claim.

    NOTE:

    • All class member folders will be dispatched to the servicing field office for an initial level determination. The readjudicating component for all Zebley class member claims is the servicing DDS.

    • ODIO will not attempt to retrieve any class member claim files prior to sending the class member folder to the servicing field office. Attempts to retrieve claim files will be made if the DDS cannot issue a fully favorable determination.

In general, the field office will obtain updated eligibility information and forward the file to the DDS for a medical determination. All nonmedical development will be done after the DDS medical determination except if there is an allegation of continuous earnings above the SGA level which began within one year of the alleged onset date. In such a case, the field office will develop the work activity and, if appropriate, prepare a denial.

VI. Processing and Adjudication

A. General

All Zebley class member claims will be returned to the servicing DDS for review pursuant to the terms of the May 3, 1990 and March 14, 1991 district court Stipulations and Orders.

Individuals with SSI childhood disability claims denied at the DDS level under the interim standard did not have the right to pursue an appeal beyond the reconsideration level. Pursuant to the terms of the district court's May 3, 1990 Stipulation and Order, only individuals who have had claims adjudicated by DDS under the new regulations published February 11, 1991, have had the right to appeal to the OHA level.

Moreover, the terms of the March 14, 1991 Stipulation and Order dictate that all class member claims be returned to DDS for processing. The Program Operations Manual System (POMS) instructions direct DDS to treat a subsequent claim as a duplicate and consolidate it at the class member claim level. Accordingly, as of the effective date of this instruction, there should be only a limited number of situations where a current SSI childhood disability claim is pending before OHA. If an SSI childhood disability claim is pending at OHA and there is a class member claim pending at the DDS level, follow the instructions in VI.D.1. and 2. below.

The DDS determination will be an initial determination, regardless of the level at which it was previously decided, with full appeal rights (i.e., reconsideration, Administrative Law Judge (ALJ) hearing, Appeals Council and judicial review). ALJs should process and adjudicate requests for hearing on Zebley reviews conducted by the DDS in the same manner as for any other case — subject to the disability evaluation provisions of the February 11, 1991 regulations and the special provisions set forth below.

B. Processing Requests for Hearing — SSI Childhood Disability Claims

Because of the unique nature of the consolidation procedures discussed in VI.D.1. and 2. below, hearing offices will provide all claimants (and their representatives) with a special notice when a request for hearing is filed on an SSI childhood disability claim. In addition to the usual Acknowledgment Letter (described in HALLEX I-2-020), the hearing office will send a copy of the notice in Attachment 4 to the SSI childhood disability claimant and the representative.

C. Type of Review and Period to be Considered in Zebley Claims

The type of review to be conducted is a reopening. Assess the claimant's disability from the effective date of the earliest application accorded Zebley class member status or the date of cessation of SSI disability within the class period through the date of the new hearing decision on the class member claim subject to review.

D. Processing and Adjudicating a Current Claim When a Class Member Claim is Pending Elsewhere (Consolidation Procedures)

  1. Hearing Office

    1. If the current claim pending in the hearing office was denied after publication of the new regulations on February 11, 1991, and the determination at the reconsideration level was made pursuant to the new regulations and a DDS advises the hearing office that it is processing a class member claim, the current claim will be dismissed and the claim consolidated with the Zebley class member claim at the DDS level. Use the sample dismissal order in Attachment 5.

      If concurrent title II and title XVI claims are pending in the hearing office, dismiss only the SSI childhood disability claim. Process the remaining title II claim in the normal manner. If a favorable decision ensues, forward a copy of the decision to the DDS that requested the current SSI childhood disability claim.

      EXCEPTION:

      If the ALJ is prepared to issue a favorable decision, the current claim will not be consolidated with the class member claim. The ALJ will issue the favorable decision and forward a copy of the decision (and a copy of the medical evidence, if requested) to the servicing DDS.

    2. If the current claim pending in the hearing office is based on a nonmedical issue, it will not be consolidated with the class member claim. Process the request for hearing using normal procedures.

  2. OHA Headquarters

    1. OAO/Appeals Council Action

      The same rules apply as for requests for hearing at the hearing office level. (See VI.D.1. above.)

    2. OCA/Court Level Action

      If a current claim is pending at the district or circuit court level, the Assistant U.S. Attorney will move for remand of the case for readjudication under the new regulations as required by ¶ I.C. of the March 14, 1991 Stipulation and Order. OCA will use the remand order in Attachment 6 to effectuate remand to the DDS.

E. Special Procedures

Due to the particular circumstances of the Zebley case, the March 14, 1991 Stipulation and Order provides for the following special procedures to be used in the readjudication of Zebley class member claims.

  1. Disability Presumptions

    If the claimant has subsequently been found disabled under any disability program under titles II or XVI of the Social Security Act either as a child or as an adult, in the absence of contrary evidence (such as traumatic onset of disability or a new impairment) or contrary medical judgment, infer that a class member is disabled from the date of the first application for SSI childhood disability benefits which is included within the class period.

    If the medical evidence supports a finding of current disability, but evidence of past condition is not readily available, and the class member has not been found disabled on a subsequent disability claim, the adjudicator will determine, based on the nature of the impairment, whether it is reasonable to presume that the class member's past condition and impairments were as severe as they are currently.

  2. Nondisability Eligibility Presumptions

    In general, nondisability factors of eligibility will be determined by the field office following a favorable determination or decision of disability. The March 14, 1991 Stipulation and Order provides for special rules and presumptions to be employed. If an appeal reaches the OHA level on a nondisability factor of entitlement, refer to the provisions of ¶ VII.H.2. of the March 14, 1991 order.

    NOTE:

    If an appeal pending before OHA involves only the amount of benefits due a class member, OHA will not review the underlying disability determination.

  3. Adjudicating the Claims of Deceased Class Members

    To the extent that an SSI underpayment could be paid pursuant to 42 U.S.C. § 1383(b)(1)(A), the disability claim of a deceased class member must be readjudicated. Even if there is no individual designated by 42 U.S.C. § 1383(b)(1)(A) to whom an SSI underpayment could be paid, the disability claim of a deceased class member must be readjudicated for purposes of determining Medicaid eligibility if a state with an agreement under § 1634 of the Social Security Act requests readjudication.

VII. Case Coding

HO personnel should code Zebley class member prior claims into the Hearing Office Tracking System (HOTS) and the OHA Case Control System (OHA CCS) as reopenings.

To identify class member cases in HOTS, the hearing office must code “Z” in the “Class Action” field.

To identify class member cases in the OHA CCS, the hearing office must code “Z” in the SPC field.

NOTE:

All “DC” claim types should be coded Z in the SPC field. In addition, some DI claim types will need to be coded; e.g., where the individual is under 18, but married.

VIII. Inquiries

Hearing office personnel should contact their Regional Office. Regional Office personnel should contact the Division of Field Practices and Procedures on FTS 305-0022. Headquarters personnel should contact the Division of Litigation Analysis and Implementation (DLAI) on 305-0708.

Inquiries from class members may be referred to Zebley class counsel, Community Legal Services, at 1-800-523-0000.

Attachment 1. - Stipulation and Order Entered by the U.S. District Court for the Eastern District of Pennsylvania Dated March 14, 1991

[DATE FILED: 03/14/1991]

IN THE UNITED STATES DISTRICT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

BRIAN ZEBLEY, et al.

*  
  *  

Plaintiffs,

*  
  *

Civil Action No. 83-3314

v.

*  
  *  

LOUIS W. SULLIVAN, M.D.

*  

Secretary of Health and Human

*  

Services

*  
  *  

Defendant.

*  

STIPULATION AND ORDER

INTRODUCTION

On February 20, 1990, the Supreme Court affirmed the October 26, 1988 decision of the United States Court of Appeals for the Third Circuit. See Sullivan v. Zebley, __U.S.__ , 110 S. Ct. 885 (1990); Zebley ex rel. v. Bowen, 855 F.2d 67 (3d Cir. 1988). That decision declared invalid the Secretary's existing regulations governing the adjudication of childhood disability claims under the Supplemental Security Income (SSI) program as a basis for denying such claims.

     This Stipulation and Order is agreed to by the parties.

  1. Scope of the Class

    1. Pursuant to an Order entered by this Court on January 10, 1984, the class was defined as follows:

      “All persons who are now, or who in the future will be, entitled to an administrative determination (whether initially, on reconsideration or on reopening as to whether supplemental security income benefits are payable on account of a child who is disabled, or as to whether such benefits have been improperly denied, or improperly terminated, or should be resumed.”

      (footnote omitted)

    2. The class consists of all individuals whose applications for SSI childhood disability payments were denied in whole or in part (denials in whole or in part are hereinafter referred to as “denials”) or whose SSI childhood disability payments were terminated on medical grounds on or after January 1, 1980 until the date of publication of the new childhood disability regulation described in ¶ II of this Stipulation and Order. An individual is a member of the class by reason of a denial after January 1, 1980 of a request to reopen a determination or decision denying a claim for SSI childhood disability payments, if such request to reopen was pending on January 1, 1980.

      The class comprises three subclasses denominated as Subclass A, Subclass B and Subclass C as follows:

      1. Subclass A comprises individuals who received denials from January 1, 1980 until May 12, 1983; and

      2. Subclass B comprises individuals who received denials from May 13, 1983 until February 27, 1990; [1] and

      3. Subclass C comprises individuals who received denials under the interim standard pursuant to the Stipulation and Order entered in this action on May 3, 1990.

    3. The scope of the class is nationwide. The class includes parties in individual cases and other class actions that are pending in federal courts to the extent that they involve issues which overlap with this action.[2] The class also includes individuals who filed individual actions in federal courts challenging the Secretary's denial or termination of his or her (hereinafter referred to as “his”) SSI childhood disability benefits and who received a final judgment after January 1, 1980, that he or she (hereinafter referred to as “he”) was not eligible for SSI childhood disability payments. The Secretary will move to remand all SSI childhood disability cases pending in the federal courts for readjudication under the new regulation described in ¶ II of this Stipulation and Order.

  2. Revision of the Children's Disability Standard

    The Social Security Administration shall not deny SSI childhood disability benefits under 20 C.F.R. § 416.924, the regulation that the Supreme Court declared invalid as a basis for making adverse decisions regarding children's SSI disability claims, and pre-existing instructions governing the adjudication of SSI childhood disability claims, including Program Operations Manual System (POMS), Social Security Ruling 83-19 (which has been rescinded), other Social Security Rulings and any other administrative guidance. The Social Security Administration shall not terminate SSI childhood disability payments under 20 C.F.R. § 416.994(c)(1989). This matter is remanded to the Secretary for the promulgation of a new regulation pursuant to the Secretary's rulemaking authority under 42 U.S.C. §§1302 and 1383(d)(1), which regulation is intended to be consistent with the decision of the Supreme Court. The Secretary has published a successor regulation to 20 C.F.R. §§ 416.924 (the “new regulation”) and 416.994(c). This new regulation is final with an opportunity for public comment following publication. The Secretary may, if he deems it appropriate, revise the new regulation in response to public comment. The Secretary will make all good faith efforts to publish any such revision within fourteen months from the close of the comment period. If any such revision is not made within that time, the Social Security Administration shall report monthly to class counsel as to the status of the revision. The Secretary shall consult with and permit class counsel a period of 30 days from receipt within which to comment on a draft of any revision of the new regulation, made in response to the public comment on the new regulation, before the revision is published. No challenge to the new regulation or the manner of its publication may be made under the Administrative Procedure Act, 5 U.S.C. §§ 551-559, 701-706.

  3. Instructions and Training

    1. The Social Security Administration shall issue instructions as necessary to implement the new regulation or any revised regulation promulgated pursuant to ¶ II of this Stipulation and Order. The Social Security Administration will provide copies of the foregoing instructions to class counsel for their comments prior to issuance of the instructions as provided in ¶ X of this Stipulation and order.

    2. Class counsel shall be notified of formal training sessions of Social Security Administration disability adjudicators, including Administrative Law Judges, conducted in the central and regional offices concerning readjudications to be conducted pursuant to ¶ VII of this Stipulation and Order. Class counsel, or their designated co-counsel, may attend such training in the capacity of observers.[3]

  4. Public Notice

    1. Within 10 days after the commencement of notification pursuant to ¶ VI.A. of this Stipulation and Order, the Social Security Administration shall begin to publicize nationwide the relief to be provided as a result of the Zebley decision by press releases and radio and television announcements, by posters in all Social Security field offices and Office of Hearings and Appeals field offices, and by posters made available to state welfare and public assistance agencies, to medical and health agencies, hospitals and non-profit agencies serving disabled children. Public notice in Spanish will be provided in accordance with the terms of the media plan under subparagraph B. below. Distribution of this information shall be made to the groups listed in Attachment 1 to this Stipulation and Order.

    2. Within 20 days after entry of this Stipulation and Order, the Social Security Administration shall give class counsel 20 days to comment on its media plan and will consider any suggestions made by them. In addition, the Social Security Administration will, to the extent practicable, provide class counsel a reasonable opportunity to review and comment on materials referred to in ¶ IV.A. of this Stipulation and Order prior to their release to the public. Following receipt of comments from class counsel, the Social Security Administration will advise class counsel, at least three working days in advance, that it will adopt a final media plan or release the materials referred to in this subparagraph.

  5. Identification of Potential Class Members

    The Social Security Administration shall, by means of its data processing systems, identify the names, Social Security numbers and last known addresses of potential class members who had a claim denied, or whose payments were terminated, between January 1, 1980 and February 27, 1990.[4] This information will be sent to class counsel, who may elect to receive it on computer tapes generated by the Social Security Administration's existing data processing system.

  6. Notice to Potential Class Members

    1. The Social Security Administration shall, within 60 days after the approval by this Court of the form of a notice pursuant to subparagraph B. below, send a notice by first class mail to each potential class member identified pursuant to ¶ V of this Stipulation and Order at his last known address informing him that if he so desires, the Social Security Administration will readjudicate his eligibility under the new regulation. The notice will advise the potential class member that his claim will be considered only if he returns a postage-paid, pre-addressed postcard or form letter enclosed with the notice advising the Social Security Administration that he desires to have his claim readjudicated. The notice will also advise the potential class member that within 120 days of receipt of the notice, he must notify the Social Security Administration that he wants to have his case readjudicated. The notice will inform the potential class member that the Secretary's regulations for determining good cause for missing a deadline to request review are applicable to a failure to request readjudication within the 120-day period. Examples of good cause include illness of the potential class member or a member of his immediate family, death of a family member, inability to understand the notice or unusual or unavoidable circumstances that prevented timely return of the postcard or form letter. 20 C.F.R. § 416.1411. The determination of good cause pursuant to 20 C.F.R. § 416.1411, for failure to request readjudication within the 120-day period, shall be made in accordance with the purposes of the Social Security Act. The time in which a potential class member must respond to the notice shall begin to run only upon receipt of the notice by the potential class member. 20 C.F.R. § 416.1401. The Social Security Administration will send to class counsel a copy of any determination by the Secretary that there is not good cause to excuse a potential class member's failure to respond timely to the notice. The potential class member, or his counsel, may seek to resolve the question of good cause by negotiations with the Office of the General Counsel.

    2. Comments

      Within 15 days of the entry of this Stipulation and Order, the Social Security Administration shall provide a draft of the notice to be sent pursuant to ¶ VI.A. of this Stipulation and Order to class counsel providing them 10 days to comment thereon. The parties shall submit the notice to this Court for approval.

    3. Foreign Language Notices

      1. Notices sent pursuant to ¶ VI.A. of this Stipulation and Order will be sent in Spanish to all potential class members who have made or will make a request to the Social Security Administration to receive notices in Spanish.[5]

      2. Notices sent pursuant to ¶ VI.A. of this Stipulation and Order will contain short announcements in Spanish, French, Chinese, Vietnamese and Portuguese advising potential class members to have the notice translated or to contact a Social Security office if they cannot read English. An individual who does not understand English and who inquires at a Social Security office about the relief available under Zebley shall be deemed to have requested readjudication.

    4. Nonresponders and Undeliverables

      1. The Social Security Administration shall, commencing 60 days after completing the mailing of the notice to potential class members pursuant to ¶ VI.A. of this Stipulation and Order, and every 60 days thereafter, send a list to class counsel of the name, most recent known address, date of mailing of a second notice, as provided for by ¶ VI.D. (2, 3 & 4) of this Stipulation and Order, and Social Security number of each potential class member whose notice is returned as undeliverable. The Social Security Administration shall, commencing 120 days after completing the mailing of the notice to each potential class member pursuant to ¶ VI.A. of this Stipulation and Order, and every 60 days thereafter, send a list to class counsel of the name, most recent known address, date of mailing of a second notice, as provided for by ¶ VI.D.(2, 3 & 4) of this Stipulation and Order, and Social Security number of each class member who has not responded to the notice. Class counsel may elect to receive this data on computer tapes generated by the Social Security Administration's existing data processing system. The Social Security Administration will send these lists for a period of two years from the date the first list is sent to class counsel or until all class members are accounted for, whichever occurs first. Class counsel may contact potential class members and determine whether they meant to request review of their claims and, if so, to assist them in demonstrating good cause for having failed to do so in a timely manner.

      2. The Social Security Administration will, for potential class members of both Subclasses A and B, as defined in ¶ I.B. of this Stipulation and Order, who fail to respond to the first notice or whose notices have been returned as undeliverable:

        1. Attempt to match the class member's Social Security number with the Social Security Administration's records for the Retirement, Survivors and Disability Insurance Programs under Title II of the Social Security Act in order to obtain the most recent known addresses;

        2. Use its best efforts to effect, subject to the requirements of the Privacy Act, as amended by the Computer Matching and Privacy Protection Act, 5 U.S.C. § 552a (“Privacy Act”), computer matches with any compatible, current and archival state data systems (such as Aid to Families with Dependent Children, General Assistance, Food Stamps, Medical Assistance, and programs for handicapped children under Title V of the Social Security Act) in order to obtain the most recent addresses for the purpose of sending a notice to class members. The Social Security Administration will, commencing six months after the entry of this Stipulation and Order and every four months thereafter, report to class counsel, with respect to each state, whether the state has agreed, has refused or is still considering whether to conduct a computer match, the date of such agreement, the state's data systems with which the state will attempt a computer match, the date that the Social Security Administration delivered its computer tape of potential class members to the state, and the date on which the state reports to the Social Security Administration that a computer match has been effected with a state data system;

        3. Provide, subject to the requirements of the Privacy Act, its most current computer tape identifying potential class members who have not responded to the first notice or whose notices have been returned as undeliverable to any local government jurisdiction (such as a city or county) which requests the tape for the purpose of conducting a computer match with its data systems to obtain the most recent addresses for the purpose of sending a notice to class members. The Social Security Administration will, commencing six months after the entry of this Stipulation and Order and every four months thereafter, report to class counsel whether a local government jurisdiction has requested the Social Security Administration's computer tape with which to conduct a computer match, whether a Privacy Act agreement has been reached with the local government jurisdiction, the date of such agreement, the date that the Social Security Administration delivered its computer tape of potential class members to the local government jurisdiction, and the date on which a local government jurisdiction reports back to the Social Security Administration that it has accomplished a computer match;

        4. Use its best efforts to obtain the most recent known addresses of potential class members by matching its Zebley data base with an IBM mainframe compatible computer data tape of nongovernmental nonprofit organizations described in section 501(c)(3) of the Internal Revenue Code of 1954 (26 U.S.C. § 501(c)(3)) exempt from taxation under section 501(a) of such Code, containing the names, Social Security numbers, and addresses of individuals reasonably likely to be members of the class which is furnished to the Social Security Administration within one year of the entry of this Stipulation and Order.

        5. Send a second notice by first class mail to the potential class member's most recent known address.

      3. With respect to members of Subclass B, as defined in ¶ I.B.2. of this Stipulation and Order, the Social Security Administration shall, in addition to the foregoing, use the procedures contained in POMS §§ DI 23005.001, 11010.155 and13005.080 if necessary to obtain the most recent known addresses of potential class members whose notices have been returned as undeliverable.

      4. An individual who contacts a Social Security office inquiring about the relief available under Zebley shall be deemed to have requested readjudication.

    5. Determination of Class Membership

      Individuals responding to the notice provided pursuant to ¶ VI.A. of this Stipulation and Order will be screened for class membership during the readjudication process set forth in ¶ VIl of this Stipulation and Order. The Social Security Administration shall mail to any individual determined not to be a class member a notice of that determination. The Social Security Administration will send a copy of each class membership denial notice to class counsel. The notice will provide that any individual denied class membership will have 60 days from receipt of the notice in which to request that the Social Security Administration reexamine the class membership denial decision, that he may also request inspection of his administrative record and that he will have a period of 10 days from notice of availability of the record in which to conduct such inspection at a mutually agreeable office of the Social Security Administration. The notice also will contain a telephone number for class counsel that the potential class member can call if he wishes assistance in requesting review of the denial of class membership. The parties will attempt to resolve the question of an individual's class membership by negotiations between the potential class member or his counsel and the Office of the General Counsel. If the parties cannot resolve the question of an individual's class membership through negotiation, either party may, by duly noticed motion, submit the unresolved matter to the Court for resolution.

  7. Readjudication

    1. Scope of Readjudication and Priority for Readjudicating Claims

      1. The Social Security Administration shall readjudicate the claim of any class member who requests readjudication pursuant to ¶ VI.A. of this Stipulation and Order and will make payments for all months for which an SSI payment was not made to the class member in which he met both the disability and income and resources requirements of the Social Security Act, 42 U.S.C. § 1382(a), and regulations, 20 C.F.R. §§ 416.1100 et seq. and 416.1201 et seq., beginning with the effective date of a claim that was denied or the date on which payments were terminated. No payment will be made for any month as to which the class member will be determined to have been disabled but was financially ineligible for payment or was disqualified for any other non-disability reason. The Social Security Administration will not be required to readjudicate a denial after January 1, 1980 of a request to reopen a determination or decision denying a claim for SSI childhood disability payments, if such request to reopen was not pending on January 2, 1980. The Social Security Administration will not readjudicate, reopen or revise the denial of a class member's claim or the termination of his payments using the adult disability standard on or after the date on which the class member attained age 18.

      2. Upon entry of this Stipulation and Order, the Social Security Administration will give priority to adjudicating SSI childhood disability claims that are presently pending in the administrative process and then to reexamining claims which were denied under the interim standard which was the subject of the Stipulation and Order entered in this action on May 3, 1990. Claims that were denied prior to the entry of this Stipulation and Order and are not pending shall be readjudicated generally in the order in which a response to the notice is received. To the extent practicable, the Social Security Administration also will give priority to individual hardship cases of SSI childhood disability claimants of which it is notified in writing by class counsel.

    2. Procedures, Component Responsible and Time Periods for Readjudication

      1. The Social Security Administration will make a good faith effort to conduct the readjudication of class members' claims within the following time periods:

        1. Within 45 days of receipt of a postcard or form letter from a potential class member electing review, the Social Security Administration will record the receipt into its data base Civil Action Tracking System and transmit notice of the receipt to the appropriate Social Security Field Office serving the potential class member.

        2. Within 90 days of being notified of the potential class member's election to have his claim readjudicated, the Field Office will, in accordance with its operating guidelines, POMS §§ DI 10005.001 et seq., contact him, schedule a time for and conduct a personal interview if necessary to request from him any evidence needed to readjudicate his claim for disability and transfer his claim to the State Disability Determination Services.

        3. Within 100 days of receiving the claim from the Field Office pursuant to ¶ VII.B.1.b. of this Stipulation and Order, the State Disability Determination Services serving the potential class member's state of residence will, in accordance with operating guidelines POMS §§ DI 22501.001 et seq., contact and request information and records from sources which were recorded by the Field Office pursuant to its interview with the class member as needed to adjudicate his disability claim pursuant to ¶ VII.B.I.b. of this Stipulation and Order, and will readjudicate his claim and issue a decision.

        4. The Field Office shall, within 60 days of the issuance of a decision that the class member is disabled, request the information needed to determine whether the class member is eligible for payments based on nondisability considerations (such as income and resources), determine the amount of SSI payments for which he is eligible, and effectuate payment.

      2. Delays occasioned by the failure of a claimant or any other source to supply information requested pursuant to this Stipulation and Order may extend the time limits set forth in ¶ VII.B. of this Stipulation and Order.

      3. Any class member whose claim is denied will be sent a denial notice informing him of his right to appeal pursuant to the Social Security Act and regulations, 42 U.S.C. §§ 405(g) and1383(c)(1) and (3); 20 C.F.R. §§ 416.1400 et. seq.

      4. The Social Security Administration shall not be required to locate and retrieve claims files in order to readjudicate claims under ¶ VII of this Stipulation and Order. However, if an adjudicator determines that a class member's claim will be denied, the Social Security Administration will attempt to secure the file if there is evidence that one exists. In instances where the Social Security Administration attempts to retrieve a file pursuant to this provision, the time limits contained in ¶ VII.B. may be extended.

    3. Any readjudication made by the Social Security Administration pursuant to this Stipulation and Order, except one regarding class membership, shall be subject to administrative and judicial review only as provided for in 42 U.S.C. §§ 405(g) and 1383(c)(1) and (3) and 20 C.F.R. §§ 416.1400 et. seq. (See ¶ VI.E. above for resolution of disputed class membership).

    4. To the extent that an SSI underpayment could be paid pursuant to 42 U.S.C. § 1383(b)(1)(A), the Social Security Administration will readjudicate the disability claim of any deceased class member. Even if there is no individual designated by 42 U.S.C. § 1383(b)(1)(A) to whom an SSI underpayment could be paid, the Social Security Administration will readjudicate the disability claim of a deceased class member for purposes of determining Medicaid eligibility if a state with an agreement under section 1634 of the Social Security Act (42 U.S.C. § 1383c) requests that the Social Security Administration readjudicate the disability of the deceased class member.

    5. If the substantive standard for children's disability contained in the new regulation is significantly revised in response to public comment, the Social Security Administration shall review all cases denied, and may review any case allowed, under the new regulation prior to its revision to determine whether payments should be allowed under the revised new regulation. All individuals whose claims are adjudicated under the new regulation and any revision thereto promulgated in response to public comment pursuant to ¶ II of this Stipulation and Order will be accorded the full administrative review process provided In 42 U.S.C. §§ 405(g) and 1383(c)(1) and (3) and 20 C.F.R. §§ 416.1400 et. seq.

    6. Nothing in this Order shall preclude the Secretary from conducting a continuing disability review provided for by the Social Security Act and regulations, 42 U.S.C. §§ 421(i), 1382c(a)(4), and 1383b(c), and 20 C.F.R. § 416.990, to determine if an individual allowed benefits under the new regulation or revision thereto continues to be disabled within the meaning of the Social Security Act.

    7. The Secretary shall notify any class member receiving a retroactive award as the result of a readjudication under ¶ VII of this Stipulation and Order of the limitation on resources contained in the Social Security Act, as amended by Pub. L. No. 101-508, and regulations and the various provisions pursuant to which a retroactive award may be excluded from countable resources, as provided by the Social Security Act and regulations. Such provisions include the establishment of certain trusts and purchase of the following items of property: 1) the home, 2) household goods and personal effects, 3) an automobile, 4) property which is essential to the means of self-support, 5) resources which are necessary to fulfill an approved plan for achieving self-support, 6) life insurance, and 7) burial spaces and certain funds for burial expenses.

    8. Due to the particular circumstances of this case, the Secretary has agreed to use the following procedures in the readjudication of claims:

      1. For purposes of determining disability factors of eligibility for SSI payments, the Social Security Administration will instruct its adjudicators to infer that, in the absence of contrary evidence (such as traumatic onset of disability or a new impairment) or contrary medical judgment, a class member is disabled from the date of the first application for children's SSI disability payments which is included within the class period, if he has subsequently been found disabled under any disability program under Title II of the Social Security Act (including Social Security disability benefits or disabled adult child benefits) or under Title XVI of the Social Security Act, either as a child or as an adult. In addition, where the class member has not been found disabled on a subsequent disability claim and where evidence of the past condition is not readily available, the adjudicator will determine, based on the nature of the impairment, whether it is reasonable to presume that the class member's past condition and impairments were as severe as they are currently.

      2. For purposes of determining non-disability eligibility of class members for payment of retroactive payments, the Social Security Administration shall use the following method:

        1. For the period January 1990 to the present, the Social Security Administration will determine income and resources under existing procedures and make appropriate payments based on that determination.

        2. For months prior to January 1990, unless ineligibility for SSI payment due to excess income and resources or any other factor is indicated by records of nondisability eligibility that are readily available to the Social Security Administration or from information obtained from the class member, the Social Security Administration will make SSI payments to each class member for each month in which he is under age 18 and is eligible on disability and non-disability grounds, an amount equal to one-twelfth (one month) of the national annual average federal SSI childhood disability payment for eligible children, plus the applicable federally administered state supplement for each such month. These amounts are as follows:

          Calendar Year Average Monthly Payment Maximum Federal Benefit Rate
          CY 1980 $203.00 $238.00
          CY 1981 $209.00 $264.70
          CY 1982 $230.00 $284.30
          CY 1983 $252.00 $304.30
          CY 1984 $272.00 $314.00
          CY 1985 $281.00 $325.00
          CY 1986 $296.00 $336.00
          CY 1987 $302.00 $340.00
          CY 1988 $317.00 $354.00
          CY 1989 $333.00 $368.00
        3. The class member may establish that he is eligible for more than the average payment if he submits evidence establishing that he had no income or so little income (including receipt of Aid to Families with Dependent Children or general assistance/general relief or home relief) that a higher amount would be payable.

        4. The payment amount for a class member for all months after the month in which he attained age 18, but before January 1, 1990, will not be the average benefit payment for disabled children; but will be based on information obtained from the class member and other records of nondisability eligibility that are readily available to the Social Security Administration.

        5. No payments shall be made under this Stipulation and Order for any portion of a month for which an SSI payment was already made to the class member.

  8. Quality Assurance and Other Reviews

    1. Nothing in this Stipulation and Order shall be construed as precluding the Social Security Administration from employing the quality assurance review or other legally authorized review procedures pursuant to 42 U.S.C. §§ 421(c)(3) and 1383b and other applicable provisions of law to decisions made pursuant to this Stipulation and Order.

    2. Subject to reasonable limitations, class counsel or their designated co-counsel may, upon written request, inspect individual claims files used in the readjudication pursuant to this Stipulation and Order, or a reasonable sampling thereof, and review decisions made by the Social Security Administration or the State Disability Determination Services in connection with the readjudication of claims pursuant to this Stipulation and Order. Individual claims files will be made available for inspection at a mutually agreeable time and office of the Social Security Administration. The claims files may not be removed from the custody of the Social Security Administration. If class counsel or their designated co-counsel wish to review a claims file, they must do so within 10 workdays after they are notified that a claims file is available for inspection. Class counsel or their designated co-counsel may, subject to reasonable limitations, copy the materials listed in the first sentence of this subparagraph. To protect the privileged information contained in the claims file, class counsel and their designated co-counsel may not disclose information obtained from the claims file except for the purpose of pursuing the individual's claim or for purposes directly related to this litigation.

    3. Class counsel shall be provided with the name of an individual in the Office of the General Counsel whom they may contact concerning quality assurance matters.

    4. For a period of twelve months after the publication of the new regulation, the Social Security Administration will take the steps set forth below to review SSI childhood disability cases adjudicated under the new regulation by State Disability Determination Services. The purpose of the review will be to ensure that the Disability Determination Services implement the new regulation accurately, that they obtain and consider needed evidence, that they prepare appropriate decision rationales, and that Social Security Administration instructions are comprehensive and clear. At the expiration of the twelve-month period, the Social Security Administration will confer with class counsel concerning its plans to conduct additional special quality assurance reviews, if any. This does not constitute a commitment by the Social Security Administration to continue to conduct additional special quality assurance reviews beyond the twelve-month period provided in this Paragraph.

      1. The Disability Quality Branches and Regional Office medical consultant staff will conduct a Quality Assurance review of the lesser of the first 25 or all denials of SSI childhood disability claims in the first month of adjudications under the new regulation. All “disagreement” cases, i.e., denials where the Social Security Administration Quality Assurance review disagrees with the Disability Determination Services decision or finds that additional evidence is needed, and at least 10% of the “agreement” cases, i.e., denials where the Social Security Administration Quality Assurance review agrees with the Disability Determination Services, will be forwarded to the Social Security Administration's Central Office for consistency review. The consistency review will be conducted by SSI childhood disability specialist from the Office of Disability and the Office of Program and Integrity Reviews. The provisions of this subparagraph shall not apply to the States subject to the Stipulation and Order filed on February 4, 1991.

      2. After the Quality Assurance review of denials in the first month under the new regulation, the Disability Quality Branches and Regional Office medical consultant staff will conduct a nationwide Quality Assurance review of 1,000 denials in each subsequent month, i.e., for an eleven month period following the aforementioned first month. The nationwide sample may be targeted to specific areas that the Social Security Administration identifies as error-prone. At least 100 of these cases reviewed by the Disability Quality Branches will be forwarded monthly to the Social Security Administration's Central Office for consistency review.

      3. The Social Security Administration will provide monthly reports to class counsel setting forth the results of the Social Security Administration's Quality Assurance and consistency reviews conducted during the prior month, including the number of denials reviewed, the step in the sequential evaluation process at which the cases were denied and the numbers of denials reviewed in which the Social Security Administration agreed or disagreed with the Disability Determination Services.

  9. Reports to Plaintiffs' Counsel

    1. The Social Security Administration shall, beginning the 60th day after the mailing of all class notices pursuant to ¶ VI.A. of this Stipulation and Order, and every 90 days thereafter, send a report to class counsel setting forth, on a state-by-state basis:

      1. The number of notices sent;

      2. The number of individuals responding to notices;

      3. The number of notices returned as undeliverable;

      4. The number of individuals screened out of the class;

      5. The number of individuals screened into the class;

      6. The number of Individuals who received favorable readjudications by the Social Security Administration, including, separately, the number of individuals who received favorable readjudications at the initial and reconsideration levels of the administrative adjudicatory process;

      7. The number of individuals who received unfavorable readjudications by the Social Security Administration, including, separately, the number of individuals who received unfavorable readjudications at the initial and reconsideration levels of the administrative adjudicatory process.

    2. The Social Security Administration shall provide class counsel with the name of a Social Security Administration official whom class counsel may contact to ascertain the status of a class member's claim.

  10. Comments on Notices, Instructions and Directives

    The Social Security Administration and Health Care Financing Administration shall provide class counsel with copies of notices, instructions, directives, and like documents of general applicability to be issued to effect compliance with and implement this Stipulation and Order. Class counsel will be allowed a period of 13 days from the date of mailing to comment on the above documents prior to their issuance. The Social Security Administration and Health Care Financing Administration will designate an official to whom class counsel may provide such comments. Following receipt of comments from class counsel and revisions, if any, the Social Security Administration and Health Care Financing Administration will advise class counsel, at least three working days in advance, that it intends to issue the documents, with any amendment, referred to in the first sentence of this Paragraph. The Social Security Administration and Health Care Financing Administration are not required under this section to provide class counsel with copies of drafts, proposals, planning papers, study results, opinions, reports, letters, memoranda, notes, meeting agendas, meeting summaries or other documents which, although prepared in connection with the administration of the childhood disability program and Medicaid program, do not set forth a final policy statement, instruction, or directive.

  11. General Rules and Guidelines

    1. Any class member who elects readjudication in accordance with ¶ VI.A. of this Stipulation and Order will have his claim readjudicated in accordance with the Social Security Act, regulations, policies and procedures, including those requiring a claimant to cooperate with and provide information needed by the Social Security Administration to adjudicate his claim. See, e.q., 20 C.F.R. §§ 416.704 et seq., especially § 416.708 (claimant's responsibility to report nondisability factors affecting eligibility for SSI such as changes of address, changes in living arrangements, income and resources); § 416.912 (claimant's responsibility to submit medical and other evidence of his disability); § 416.916 (claimant's responsibility to cooperate with the Social Security Administration in obtaining evidence needed to adjudicate his claim); and §§ 416.917 and 416.918 (claimant's responsibility to cooperate in undergoing consultative examinations).

    2. In recognition of the difficulty that may be encountered by children and their caregivers in providing accurate histories and obtaining information, the Social Security Administration shall make special efforts to assist children in documenting eligibility and attempt to work with the child, the extended family, foster parents, child welfare agencies and others to obtain evidence needed for readjudication pursuant to this Stipulation and Order. The Social Security Administration shall, in cases of non-cooperation, make special efforts to locate an adult person responsible for the child's care and shall not terminate, deny, or disqualify the child until a personal contact with his family or custodian has been attempted.

  12. Medicaid

    1. The Social Security Administration will notify all class members that a person seeking Medicaid eligibility as a result of a readjudication of his disability claim should contact the appropriate state Medicaid agency, in the same place and manner ordinarily available to those seeking Medicaid benefits.

    2. Within 90 days of the entry of this Stipulation and Order, the Secretary will issue an instruction to all state Medicaid agencies:

      1. Informing them about the effect on Medicaid eligibility determinations of the new standard for disability determinations relating to applicants under the age of 18;

      2. Notifying them that, in determining the eligibility of persons who apply for Medicaid benefits on the basis of disability, they must apply the new disability standard effective February 20, 1990, except in states where the approved state plan provides for standards which are more restrictive than those used in the SSI program;

      3. Encouraging them to extend Medicaid benefits at the applicable rates set forth in the state's Medicaid plan retroactively to any class member whose application for Medicaid was denied or whose Medicaid was terminated on or after January 1, 1980, on the grounds that he did not meet the Social Security Administration's former SSI childhood disability standard set forth in 20 C.F.R. §§ 416.924 and 416.994(c)(1989), who would have been eligible for medical assistance as a consequence of application of the new standard and whose claim was not pending on or after February 20, 1990, if that class member:

        1. Provides to the state Medicaid agency proof of payment of bills from a health care provider or supplier that were paid by the class member/Medicaid beneficiary or by an individual legally responsible for such bills of the class member from the funds of the class member or such individual and that are reimbursable in whole or in part under the Medicaid program for services or supplies provided to the class member; or

        2. Presents to the state Medicaid agency unpaid bills from a health care provider or supplier, for which the class member/Medicaid beneficiary is currently legally liable for payment, that are reimbursable in whole or in part under the Medicaid program for services or supplies which were provided to the class member either:

          1. on or after January 1, 1989; or

          2. before January 1, 1989, and as to which there is an unsatisfied judgment for payment, or a written claim or demand for payment has been made since January 1, 1989;

      4. Explaining that federal financial participation will be available for retroactive payments the states make to class members under subparagraph 3 above;

      5. Requesting that, with regard to those class members who notify the state agencies that they seek Medicaid benefits, the state Medicaid agencies establish, if necessary, appropriate mechanisms to notify the applicants of their determination concerning the availability of retroactive benefits, and the necessary procedures to obtain any such benefits; and

      6. Requesting that the state Medicaid agencies inform their Health Care Financing Administration Regional Offices in writing whether they intend to pay retroactive benefits. The Health Care Financing Administration will collect this information and will designate an official whom class counsel can contact to obtain this information.

    3. Except as specifically set forth herein, the terms of this Paragraph XII shall be governed by state and federal statutes, rules and regulations applicable to the Medicaid program.

  13. Dispute Resolution and Adjustment of Time Limits

    1. The parties will attempt to resolve any and all disputes arising under, or requests for relief from, any of the provisions of this Stipulation and Order by negotiation between class counsel and counsel for the Secretary (or their designees). Either party may submit any unresolved dispute or request for relief from any provision of this Stipulation and Order to the Court for resolution, by a duly noticed motion. If either party seeks judicial resolution in connection with matters arising under this Stipulation and Order, the time limits set forth in this Stipulation and Order which are affected thereby will be suspended pending a resolution of the issue by the Court.

    2. The parties may, by written agreement, alter any time period specified in this Stipulation and Order. Such agreements need not be filed with the Court, unless either party deems it appropriate to do so.

  14. Attorney's Fees

    1. Defendant shall pay to class counsel attorney's fees, expenses and costs in the amount of $550,000 in full and final settlement of any and all claims in this action for attorney's fees, expenses or costs pursuant to any statute or other basis for services that have been performed or that will be performed in the future in this action or in any administrative or court proceeding arising under or relating to this action or this Stipulation and Order. No other claims for attorney's fees, expenses or costs by any counsel for the plaintiffs or plaintiff class will be allowed in this action.

    2. The defendant and his successor, and the United States of America and any department, agency or establishment thereof and any officers, employees, agents, successors or assigns of such department, agency or establishment (hereinafter referred to as the “releasees” are released from any additional liability for attorney's fees, expenses or costs based on any and all claims and causes of action which have been, could have been or will be asserted in this case by reason of, or with respect to, any of the matters alleged in this action, which the plaintiffs or the plaintiff class, or any of them, or their heirs, executors, successors or assigns had, now have, or may subsequently have against the releasees, including, without limitation, any and all claims for attorney's fees, expenses or costs for services that will be performed in the future in this action or in any administrative or court proceeding arising under or relating to this Stipulation and Order.

    3. The provision for attorney's fees, costs and expenses pursuant to ¶ XIV.A. of this Stipulation and Order is not a finding that the position of the defendant in this litigation was not substantially justified or that the defendant is liable as a matter of law for the payment of any attorney's fees, expenses or costs. The provision for attorney's fees, expenses and costs in this action is by stipulation of the parties and shall not serve as precedent in any other case.

    4. Defendant shall make a good faith effort to make payment to class counsel within 30 days of receipt by the Social Security Administration of this Stipulation and Order after its entry.

  15. Toll-Free Telephone

    The Social Security Administration agrees to install and maintain at class counsel's offices, located at 1324 Locust Street, Philadelphia, Pa., toll-free telephone lines to be operated by class counsel. The Social Security Administration will pay for the installation and maintenance of the telephone equipment, consisting of an 800 number, a WATS line, and an automated attendant for messages. In addition, the Social Security Administration will pay all telephone charges for the use of that equipment, for a period not to exceed three years from the date of the entry of this Stipulation and Order and in an amount not to exceed $100,000 for the three-year period. At the end of the three-year period or the expenditure of $I00,000, whichever occurs first, the obligation of the Social Security Administration as provided in this Paragraph shall terminate and the telephone equipment shall be returned to the Social Security Administration. The Social Security Administration will advise class counsel monthly of the amount of the charges previously incurred. The Social Security Administration shall not be responsible for any costs associated with operating the telephone equipment (including, but not limited to rent, utilities, staff, furniture or stationery) other than the costs of installing and maintaining the telephone equipment and the payment of telephone charges as provided for above. Class counsel shall be solely responsible for the costs of moving and reinstalling the telephone equipment in the event that they relocate their offices. The telephone equipment shall be used exclusively for the purpose of providing assistance to class members in connection with the readjudication of their claims. The Social Security Administration may take any actions (e.g., audits or other monitoring of telephone records) which it deems necessary to ensure that the telephone equipment is used for the purposes provided herein, provided, however, that class counsel shall not be required to disclose the contents of any conversations that are privileged. Class counsel shall be responsible for all costs and charges of the telephone equipment which the Social Security Administration determines were not incurred in accordance with the limitations stated in this Paragraph and for any and all charges for use of the telephone equipment costs exceeding $100,000 regardless of whether those costs pertain to matters in this Paragraph. The Social Security Administration will include the 800 toll-free telephone number on the notice to potential class members, the notice of denial of a good cause waiver request as provided for in ¶ VI.A., and the notice of a denial of class membership provided for in ¶ VI.E. of this Stipulation and Order.

  16. Precedent

    Since this Stipulation and Order is entered by agreement of the parties, the terms of this Stipulation and Order shall not be cited as precedent in any other cases. This Stipulation and Order is not a finding that the position of the defendant in this litigation was not substantially justified or that the defendant is liable as a matter of law for the payment of any attorney's fees, expenses or costs.

  17. Final Judgment

    1. This Stipulation and Order is the final judgment of the Court in this action. This Court will retain jurisdiction of this case to oversee implementation of the terms of this Stipulation and Order.

    2. Without limiting the generality of subparagraph A. above, this judgment bars any amendment or supplementation of the complaint, as amended, in this action.

  Respectfully submitted,
   
  STUART M. GERSON
  Assistant Attorney General

_______________/s/_____________
JONATHAN M. STEIN

_______________/s/_____________
RICHARD P. WEISHAUPT


_______________/s/_____________
THOMAS D. SUTTON

Community Legal Services, Inc.
1324 Locust Street
Philadelphia, PA 19107
Telephone: (215) 893-5300


_______________/s/_____________
MARK B. KAUFMAN

Delaware County Legal Assistance
410 Walsh Street
Chester, PA 19013
Telephone: (215) 874-8421


Attorneys for Plaintiffs
and their Class



MICHAEL M. BAYLSON
United States Attorney

BRIAN G. KENNEDY

_______________/s/_____________
STUART A. LICHT
RICHARD G. LEPLEY

Department of Justice
Civil Division, Room 3341
10th & Pennsylvania Ave., N.W.
Washington, D.C. 20530
Telephone: (202) 514-4265

Attorneys for Defendant

 

SO ORDERED:

DATED: March 14, 1991

_______________/s/_____________
JOHN P. FULLAM
United States District Judge

Attachment 2. - Zebley Screening Sheet

Z E

Zebley Screening Sheet
(See Reverse Side for Instructions)

  1. Child's SSN __ __ __ - __ __ - __ __ __ __

  2. DATE __ __ - __ __ - __ __

  3. Child's NAME ______________________________________

  4. Member (J)____ Non-Member (F)____ Screen-Out Code_______ (05, 06, 07, 08)

  5. Was a claim for title XVI childhood disability denied or were payments terminated at any administrative or judicial level between January 1, 1980, and February 27, 1990? Or, was there a request for reopening pending on January 1, 1980, and denied after January 1, 1980?

    If Yes : Go to 6.

    If No : Stop here. Check block 5 and follow I. below. ___ 05.

  6. Were all denials or terminations in the Zebley period made solely for non-medical reason(s) (e.g., excess income and resources, SGA, etc.)?

    If Yes : Stop here. Check block 6 and follow I. below. ___ 06.

    If No : Go to 7.

  7. Was there a later determination which revised the earliest denial/termination during the Zebley period to a fully favorable allowance/continuance?

    If Yes : Check block 7 and follow I. below. ___ 07.

    If No : Go to 8.

  8. Was there a later determination under the new childhood disability regulation which covered the entire Zebley period?

    If Yes : Check block 8 and follow I. below. ___ 08.

    If No: Check block 9 and follow II. below. ___ 09.

I. Non-Members

If you checked block 05, 06, 07, or 08, claimant is not a class member. CHECK THE NON-MEMBER BLOCK F IN QUESTION 4 ABOVE, ENTER THE SCREEN-OUT CODE (05, 06, 07, or 08), sign the screening sheet and follow instructions for non-member routing in the Zebley instruction sheet.

II. Class Members (ODIO Only)

If you checked block 09, claimant is a class member. CHECK THE MEMBER BLOCK J IN QUESTION 4, sign the screening sheet and follow instructions for class member routing in the Zebley instruction sheet.

Signature ___________________________________ Office ________________________

Attachment 3. - Notice of Non-Class Membership

  Date:
  Social Security Number:

You asked the Social Security Administration to review your claim for Supplemental Security Income (SSI) childhood disability payments based on a court case called Zebley v. Sullivan.

Information About Our Review

We have reviewed your claim as you asked. We found that your claim will not be reviewed as a result of the Zebley case for the following reason.

_______ We did not deny your claim or terminate your SSI childhood disability payments between January 1, 1980, and February 27, 1990.
_______ We did not deny your claim or terminate your payments for medical reasons. We denied or terminated your claim or payments because
_______ We already changed our earlier decision and found that you were disabled and were fully paid.
_______ We have already reviewed your claim under the new regulation.

If You Disagree With Us

If you disagree with us, you may contact any Social Security office and ask that we look at your claim again. You must ask for a review within 60 days from the date you receive this letter.

You may also ask to look at the information we have in your file. If you want to do this, please let us know. Then, we will let you know when your file is in your local Social Security office. You will have 10 days from the day we let you know to come in and look at the file.

If you need help you may contact Community Legal Services in Philadelphia, Pennsylvania. They are the lawyers for the children in the Zebley case. Their toll-free telephone number is 1-800-523-0000.

Information About Filing A New Application

If you think you are disabled now, you may file a new application. You can do this in addition to asking that we look at your claim again.

A new application is not the same as asking us to review your claim under Zebley v. Sullivan. In the new application you will not be able to ask for disability payments for the same period of time you asked for in your prior claim. If you decide to file a new application, contact any Social Security office.

If You Have Any Questions

If you have any questions, you may call or visit any Social Security office. The office that serves your area is located at:

The telephone number is __________. If you call or visit an office please have this notice with you. It will help us answer your questions.

Attachment 4. - Attachment to Request for Hearing Acknowledgement Letter

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

ATTENTION

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

On February 20, 1990, the United States Supreme Court, in the case of Sullivan v. Zebley, a nationwide class action, declared the then current regulatory standard for adjudicating Supplemental Security Income (SSI) childhood disability claims invalid as a basis for denying such claims.

On February 11, 1991, the Secretary published new SSI childhood disability regulations (20 CFR §§ 416.924-416.924e). On March 14, 1991, the U.S. District Court for the Eastern District of Pennsylvania entered a Stipulation and Order, negotiated by the parties, setting the terms for implementation of class relief. As part of the relief, the Secretary is readjudicating SSI childhood disability claims denied or terminated for medical reasons between January 1, 1980 and February 11, 1991.

If you, or someone on your behalf, filed a prior claim for SSI childhood disability benefits within these dates, you may be eligible for class relief.

All class member claims are being readjudicated at the initial level by the appropriate state disability determination service (DDS). If, while your request for hearing on the current claim is pending at the Office of Hearings and Appeals, we receive notice from the DDS that they have a class member claim pending and ready for review, we will dismiss the request for hearing on your current claim and return it to the DDS for consolidation with the class member claim. We will take this action unless we can issue a favorable decision at the time we are notified by DDS.

Therefore, to minimize any delays which could be caused by consolidation and maximize the opportunity to have your current claim adjudicated at the Office of Hearings and Appeals, you should submit any additional evidence to us immediately or as soon as you receive it.

Attachment 5. - Sample Dismissal Order—(current claim pending at OHA being consolidated with class member claim pending at DDS)

On ___________, the claimant filed a request for hearing on the issue(s) raised by (his/her) application(s) dated ___________. The claimant has now been identified as a member of the Zebley class and is entitled to have the final administrative denial of (his/her) prior application(s) reviewed under the terms of the district court's March 14, 1991 order. Accordingly, the undersigned hereby dismisses without prejudice the request for hearing filed on __________, on the application(s) dated __________.

The claimant's (date of current application(s)) application(s) (is/are) being associated with (his/her) prior claim(s) and forwarded to the ____________ State Disability Determination Service, which will conduct the Zebley review. The disability determination service will make a new disability determination, after completing all development required by the new regulations, and notify the claimant of its determination and of the right to further review, should it be necessary.

Any additional evidence concerning the functional effects of the claimant's impairment(s) on (his/her) ability to grow, develop and mature in an age-appropriate manner should be sent to the disability determination service as soon as possible. Such evidence from the claimant or any other source will be carefully considered.

Notice of this action is hereby given by mailing a copy to the claimant and representative, if any.

_____________________________
Administrative Law Judge

Date:

cc:

Attachment 6. - Order of the Appeals Council (remanding class member claim to DDS following court remand of civil action)

ORDER OF APPEALS COUNCIL

REMANDING CASE TO DISABILITY DETERMINATION SERVICE

In the case of Claim for

_____________________________
(Claimant)

_________________________

___________________________________
(Wage Earner)

__________________________
(Social Security Number)

This case is before the Appeals Council on remand from the United States District Court for the _____________________________ District of______________________ (Civil Action No.___________).

On February 20, 1990, the United States Supreme Court, in the case of Sullivan v. Zebley, a nationwide class action, declared the then current regulatory standard governing the adjudication of Supplemental Security Income (SSI) child claims invalid as a basis for denying such claims. On May 3, 1990, The United States District Court for the Eastern District of Pennsylvania entered a Stipulation and Order in Zebley to begin implementing the Supreme Court's decision. The district court's order provided an interim standard for determining disability in SSI child claims. The interim standard was to be applied to all pending and new SSI childhood disability claims until new regulations governing the adjudication of such claims were published. The new regulations were published in the Federal Register on February 11, 1991. On March 14, 1991, the district court entered a Stipulation and Order which approved a final implementation issue settlement agreement negotiated by the parties. Because the claimant is a member of the Zebley class, (his/her) claim must be adjudicated under the standard established by the new regulations.

The Appeals Council has decided it is necessary to return this case to the appropriate disability determination service for additional evidentiary development, and adjudication under the new regulatory standard because the present record is not adequate to make such an adjudication.

Therefore, the Appeals Council vacates its previous action and the (dismissal/decision) of the Administrative Law Judge, and remands this case to the appropriate disability determination service. After completing all development required by the new regulations, the disability determination service will make a new disability determination, and notify the claimant of its determination and of the right to further review, should it be necessary.

Any additional evidence concerning the functional effects of the claimant's impairment(s) on (his/her) ability to grow, develop and mature in an age-appropriate manner should be sent to the disability determination service as soon as possible. Such evidence from the claimant or any other source will be carefully considered.

Notice of this action is hereby given by mailing a copy to the claimant.

 

____________________________
Harry H. Barr
Administrative Appeals Judge

Date:

cc:


[1]  On February 27, 1990, the Social Security Administration instructed all of its adjudicatory components not to deny or terminate any SSI child's disability claim.

[2]  The following class actions involving challenges to aspects of the children's disability regulations are currently pending: Duncan v. Sullivan, No. 3-88-686 (E.D. Tenn.); Hartwell v. Sullivan, No. 88-74 (D. Vt.); Marcus v. Sullivan, No. 85-C-453 (N.D. Ill.).

[3]  For purposes of this Stipulation and Order, the term “designated co-counsel” shall mean co-counsel to class counsel who are designated in writing by class counsel to the Office of the General Counsel, Department of Health and Human Services, Social Security Division, Baltimore, Maryland (hereinafter referred to as “Office of the General Counsel”).

[4]  Class members who filed new claims or who had claims pending on or after February 27, 1990, will have those claims adjudicated pursuant to the Stipulation and Order entered in this action on May 3, 1990.

[5]  Under current procedures, individuals applying for benefits are given the opportunity, if they so indicate, to receive notices in the Spanish language. Accordingly, the Social Security Administration already has in its computer records an indicator of those persons who requested Spanish language notices in connection with any current or prior application.