SSR 88-4

EFFECTIVE/PUBLICATION DATE: 03/10/88

SSR 88-4: POLICY INTERPRETATION RULING
Title II: Administrative Actions that are not Initial Determinations

PURPOSE: To state an existing policy that actions by the Social Security Administration (SSA) to suspend benefits to Social Security beneficiaries in foreign countries for certain specific reasons (stated below) will not be considered "initial determinations" as described in 20 C.F.R. 404.902, and thus will not be subject to administrative review process or judicial review as provided for in section 205(g) of the Social Security Act and 20 CFR 404.900ff. The specific reasons for the suspension are:

(1) an investigation of the social insurance system of the country of which the foreign beneficiary is a citizen to determine whether the requirements of section 202(t)(2) are met is pending; or

(2) the government of a particular country denies requests by SSA for direct access to beneficiaries in that country to assure their existence, continuing eligibility and that they receive their benefits.

CITATIONS (AUTHORITY): Sections 202(t) and 205(a) of the Social Security Act; 20 C.F.R., sections 404.902 and 404.903; Ganem v. Heckler, No. 82-2880 (D.D.C. August 11, 1983), rev'd in part, 746 F.2d 844 (D.C. Cir. 1984).

PERTINENT HISTORY: Initial determinations are determinations on entitlement to benefits or other similar matters that are subject to administrative and subsequent judicial review. The types of determinations that constitute "initial determinations" are discussed in 20 C.F.R. 404.902. An initial determination generally is binding unless a reconsideration is requested within the stated time period, or unless the Secretary revises the initial determination (20 C.F.R. 404.905).

With regard to item (1) in the "Purpose" section above --

Section 202(t)(1) of the Social Security Act requires the suspension of benefits after the sixth consecutive calendar month during all of which a beneficiary who is not a citizen or a national of the United States is outside the United States, Section 202(t)(2) provides an exception to Section 202(t)(1) for citizens of a foreign country which the Secretary finds has in effect a social insurance or pension system which is of general application in such country and under which --

(1) periodic benefits or the actuarial equivalent thereof are paid on account of old age, retirement or death, and

(2) individuals who are citizens of the U.S. but not citizens of such foreign country and who qualify for such benefits are permitted to receive such benefits or the actuarial equivalent thereof while outside the foreign country without regard to the duration of the absence.

The exception to section 202(t)(1) provided by section 202(t)(2) requires a decision on the part of the Secretary and pending that decision, benefit payments may be suspended. In addition, the exceptions to paragraph 202(t)(1) provided by subparagraphs 202(t)(4)(A) and 202(t)(4)(B) also require a determination under paragraph 202(t)(2). Pending an investigation to determine whether the exception in Section 202(t)(2) may apply, the nonpayment provision in Section 202(t)(1) is applicable and, therefore, benefits to the affected beneficiaries may need to be suspended. Similar pending investigations that result in the suspension of benefits are specified in 20 C.F.R. 404.903 as administrative actions that are not initial determinations.

With regard to item (2) in the "Purpose" section above --

Section 205(a) of the Social Security Act reads as follows:

The Secretary shall have full power and authority to make rules and regulations and to establish procedures, not inconsistent with the provisions of this title, which are necessary or appropriate to carry out such provisions, and shall adopt reasonable and proper rules and regulations to regulate and provide for the nature and extent of the proofs and evidence and the method of taking and furnishing the same in order to establish the right to benefits hereunder.

That authority is the basis for the procedures under which SSA continues to pay benefits only when there is reasonable assurance concerning the integrity of the payments; i.e., the beneficiary is alive, eligibility requirements continue to be met and the beneficiary is able to receive and use the benefits.

Where a foreign country denies SSA access to beneficiaries, there is no sound basis for ensuring the integrity of payments. Since these suspensions are made pending investigations which must be deferred until the foreign government permits access to beneficiaries in that country, they are not initial determinations subject to review but rather are the type of action described in 202 C.F.R. 404.903.

POLICY INTERPRETATION:

1. Suspending benefits pending an investigation and determination as to whether a country meets the criteria of Section 202(t)(2) of the Social Security Act is not an initial determination.

2. Suspending benefits pending agreement by a country to allow direct access to Social Security beneficiaries to ensure the integrity of benefit payments is not an initial determination.

As administrative actions that are not initial determinations, the actions noted above may e reviewed by the Secretary, but they are not subject to the administrative review process or judicial review as provided for in 20 C.F.R. 404.900ff.

FURTHER INFORMATION: 20 C.F.R. 404.902,which lists actions that are initial determinations, and 20 C.F.R. 404.903, which lists actions that are not initial determinations, provide that the actions listed are not all-inclusive. This ruling sets forth the established policy regarding two actions which are not initial determinations but which are not specified in 20 C.F.F. 404.903, and thereby clarifies the nature of these actions.

EFFECTIVE DATE:

SSA policy for nonpayment of benefits pending an investigation and determination of Section 202(t)(2) status has been in effect since 1957 when foreign countries first had to meet the criteria in Section 202(t)(2) of the Social Security Act as an exception to Section 202(t)(1).

The policy regarding suspension of benefits in a foreign country based on non-access to beneficiaries has been in effect since December 1968, when the U.S. Department of the Treasury removed the restrictions on sending checks to the U.S.S.R., and the U.S.S.R. refused access to beneficiaries in that country.

CROSS-REFERENCES: Program Operations Manual System, Part 3, Chapter 026, Subchapters 10 and 50.

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