I-3-6-20.Notices Associated with Own-Motion Review
Last Update: 9/27/22 (Transmittal I-3-191)
A. General
When the Appeals Council (AC) reviews a hearing decision or order of dismissal on its own motion, the AC must mail a notice of review to the claimant and their representative, if any, as provided in 20 CFR 404.973 and 416.1473. The notice of review is necessary to establish the AC's jurisdiction and to prevent a hearing decision from becoming the final decision of the Commissioner.
If the AC decides to issue a fully favorable decision, remand a case for further proceedings, or issue a decision that is favorable in part and remand the remaining issues for further proceedings, the AC's final action document constitutes notice of review, and a separate notice of review is not required. In these cases, the final action document may address all relevant issues, as applicable, including whether to direct a supplemental hearing on remand, proffer any relevant protest memoranda, provide notice of interim disability benefits, and address any subsequent applications (See subsection B, below).
If the AC proposes to issue a dismissal, an unfavorable decision, or a decision that is favorable in part and unfavorable as to the remaining issues, the AC must issue a separate notice of review prior to its final action. In the notice, the AC will explain the reasons for the review and provide an opportunity for the claimant to submit additional evidence and written statements before the AC issues its final action. The separate notice of review will, as applicable, address whether the claimant will have an opportunity to appear at a supplemental hearing, proffer any relevant protest memoranda, provide notice of interim disability benefits, and address any subsequent applications (See subsection B, below).
Even when not required, the AC may still issue a separate notice of review when the AC believes it would be helpful to the development or adjudication of the case.
In all cases, the AC must send the claimant and their representative, if any, written notification of own-motion review no later than 60 days after the date of the hearing decision or order of dismissal (20 CFR 404.969 and 416.1469).
B. Content of Notice of Review
The content of a notice of review varies in each case depending on the facts of the case, the claim(s) involved, the action proposed or taken by the AC, any applicable acquiescence ruling based on the court jurisdiction in which the claimant resides, and how many days remain for the AC to take own-motion review. The Document Generation System templates and stored paragraphs contain appropriate language for most situations.
In addition to providing appropriate notice language, such as language providing the claimant an opportunity to request an appearance before the AC prior to the AC issuing an unfavorable decision, the AC will consider whether additional language may be required based on any of the following:
1. Opportunity for a Supplemental Hearing
In accordance with the decision in Goldberg v. Kelly, 397 U.S. 254 (1970), the AC must offer a claimant the opportunity to request a hearing when exercising own-motion authority in title XVI cases when the claimant is in payment status and the proposed revised action is not fully favorable (see 20 CFR 416.1336 and Hearings, Appeals, and Litigation Law (HALLEX) manual I-3-9-84).
In addition, when the AC proposes to revise a prior decision based on additional evidence, it must offer the claimant an opportunity for a hearing (see HALLEX I-3-9-84).
2. Proffering Protest Memorandum
When the AC initiates own-motion review based on a protest from an effectuating component or a Regional Commissioner's office, the AC must proffer the protest memorandum to the claimant and representative, if any, unless the AC intends to issue a fully favorable decision. The AC may proffer the protest memorandum with its final action when it remands a case for further proceedings or issues a decision that is favorable in part and remands the remaining issues for further proceedings. When appropriate, the AC may issue a separate notice of review prior to its final action providing the claimant an opportunity to request a supplemental hearing or submit additional evidence. For more information about proffering evidence, see HALLEX I-3-2-16.
3. Interim Disability Benefits in Cases of Delayed Final Decisions (8001 Cases)
Interim benefits may be payable if the AC takes own-motion review on a hearing decision that finds a claimant disabled or finds that a claimant continues to be disabled. The notice of review will advise, where appropriate, that interim benefits will be payable if a final decision has not been issued within 110 days after the date of the hearing decision.
If the AC remands a case for further proceedings or issues a decision that is favorable in part and remands the remaining issues for further proceedings, the AC may include the notice of interim benefits in the AC's final action. When appropriate, the AC may advise the claimant in a separate notice of review that the agency will pay interim benefits if a final decision is not issued within 110 days after the date of the hearing decision.
Interim benefits are not payable in claims that involve a closed period of disability or a deceased claimant.
For specific notice language, see HALLEX I-3-6-40 C.
4. Subsequent Applications
If applicable, the AC may address any subsequent application(s) when it remands a case for further proceedings or issues a decision that is favorable in part and remands the remaining issues for further proceedings. When appropriate, the AC may issue a separate notice of review stating whether its proposed final action would have any impact on a subsequent application or subsequent allowance.