Your Due Process Rights

Examining the Impact of Social Security Reconsideration Changes

New procedures implemented by the Social Security Administration were outlined by Julie Cross in the November edition of Positive Living. In this article, Leslie Kline-Capelle, benefits attorney in the HIV/AIDS Legal Services Alliance, provides additional information about changes at the Social Security Administration.

On October 1, the Social Security Administration (SSA) implemented a number of changes (see the November edition of Positive Living).

One of these changes altered the disability appeal procedure at field offices in certain target areas. This new procedure, called the Prototype Redesign Process, will serve as a prototype for elimination of the Reconsideration (or Redetermination) stage completely.

If you had the idea of filing your disability benefits application at a particular field office because you wanted to be part of the Prototype Redesign Process (or because you deliberately want to avoid this new system), remember that SSA will decide which cases will be part of the trial project based on your residential address. They will not make this decision based on which SSA office you use to file your disability benefits application!

This article will discuss these new procedures from a legal perspective and explain how they may affect your due process rights.

What is Due Process?

The 5th and 14th Amendments to the U.S. Constitution establish that no person may be denied life, liberty or property without due process of law.

In the context of Social Security Disability Insurance (SSDI) and/or Supplemental Security Income (SSI) benefits, this protection of due process means that before SSA can deny an application for benefits, there must be an evaluation of the medical evidence. In the context of SSI, there also must be an evaluation of the applicant's financial resources.

The applicant must receive a written notice of any denial, with a description of the evidence on which the denial was based, and an explanation, in simple terms, of the reason why a denial decision was made.

What is Social Security Administration Due Process?

In the normal disability benefits application situation, the applicant gets a written notice of decision from SSA. In this document, SSA cites the evidence on which the decision was based, explains why the decision is considered appropriate, and informs the applicant of his or her rights to appeal the decision.

In the context of the Prototype Redesign Process (PRP), the application is left open and the disability analyst can request additional information or medical evidence from the applicant. The applicant will receive an SSA letter which indicates that the benefits claim is likely to be denied due to insufficient medical evidence.

In this case, an informal conference (the pre-decision interview) will be scheduled. This conference is the opportunity for the applicant to meet face-to-face with the disability analyst, and present any additional medical (or other) documentation.

Only after that pre-decision interview will the application be approved or denied. If denied, the applicant's appeal will go straight to the Administrative Law Judge level.

How Do the SSA Changes Affect Due Process?

Social Security does not consider the pre-decision interview to be a due process hearing.

This means that the SSA letter (to schedule the pre-decision interview) will not mention the applicant's right to have legal counsel (or any other representative) present during the interview. It also means that the applicant will not be testifying under oath, and that there will be no taped recording/record made of the interview.

Only if the applicant already has retained legal representation will SSA contact the attorney representative. But because few private attorneys accept SSDI/SSI cases for representation at the initial application level, very few applicants will have attorney representation this early in the process.

The HIV/AIDS Legal Services Alliance, for example, does not accept cases for representation at the initial application level. Therefore, HALSA will not receive notice of these pre-decision interviews.

According to statistics reported by the SSA, 20 percent to 30 percent of all claimants go all the way through the Administrative Law Judge hearing level without legal representation. Most claimants do not even consider consulting with an attorney unless their case is appealed to the Administrative Law Judge level and they have received the Notice of Hearing.

In meetings with private attorneys, SSA has conceded that the majority of pre-decision interviews are expected to occur by telephone and to last fewer than 20 minutes. But because this pre-decision interview is not considered a due process hearing, the short length of the telephone conference cannot be argued to be a denial of the applicant's due process rights.

How can an applicant's attorney/representative be included in the pre-decision interview, if it takes place by telephone? According to SSA, the call would be placed to the attorney/representative's office, and the conversation would be a three-way communication by speaker phone. This assumes the attorney/representative has access to a speaker phone, and also places the burden on the applicant to locate representation quickly.

If SSA does not know that there is an attorney or other representative involved in the matter, the pre-decision interview telephone call will be placed directly to the applicant -- which is direct communication with a represented applicant. Some members of the legal community already have expressed their concern to SSA that such a communication would be considered a violation of the applicant's due process rights. However, SSA claims that such cases will be rare, and that communication will cease as soon as the applicant informs SSA that there is a representative.

HALSA and a number of private attorneys are concerned because this pre-decision interview is not considered by SSA to be a due process hearing, if an applicant receives a call from SSA to go forward with the pre-decision interview by telephone, and the applicant wishes a representative/attorney to be present during the interview, the SSA disability analyst may tell the applicant that the hearing has to take place immediately, or the claim will be denied.

Many of the applicants do not speak English. It is expected that SSA will use the AT&T interpreter service for translation. Remember that confidential medical questions are going to comprise most of the conversation. It is not known whether use of an outside interpreter service constitutes a violation of the applicant's right to privacy.

This is a new process intended to speed up determination of applicants' SSDI and SSI claims. It is impossible to predict all benefits and all drawbacks of such a major change in SSA procedure.

If you receive a notice of a pre-decision interview and would like assistance, contact AIDS Project Los Angeles' Benefits Department at (323) 993-1444, (323) 993-1409 or (323) 993-1475 or AIDS Service Center at (626) 441-8495. At this time, HALSA will consider informal conference cases for attorney representation on a limited, case-by-case basis only, on appropriate referral from APLA, ASC or similar organization.

Leslie Kline-Capelle is the benefits attorney in the HIV/AIDS Legal Services Alliance.

This article has been reprinted at The Body with the permission of AIDS Project Los Angeles (APLA).