This Just the Facts Series details when SSDI/SSI benefits are paid pending appeal

Cebula, Ray

English

This Just the Facts Series details when SSDI/SSI benefits are paid pending appeal.SSJ5_PDF1.pdf: 3584 downloads, before Oct. 1, 2020.0-SSJ5_TXT1.txt: 37 downloads, before Oct. 1, 2020

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When are SSDI/SSI Benefits Paid Pending Appeal?

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?When are SSDI/SSI Beneﬁts Paid Pending Appeal?A proposed beneﬁts termination is tremendously trying for any recipient. The threat of a lost stream of income and health care beneﬁts can place extreme stress on anyone. Protecting both cash and health beneﬁts during the appeal process is a critical part of representation in the post-entitlement se�ing.
Social Security Disability Insurance (SSDI) and Supple-
mental Security Income (SSI) recipients face the prospect of 
ﬁling numerous appeals during the course of their receipt of 
beneﬁts. Many times, beneﬁts may continue to be paid pend-
ing the appeal steps at both Reconsideration and Request 
for Hearing. Whenever beneﬁts can be paid pending appeal, 
the recipient must request the appeal and elect continu-
ing payment within 10 days of recipient of the notice being 
appealed.1 A separate election to continue beneﬁts must be 
made at each step in the appeal process when the election is 
available.2   
Just the Facts
March 2005
Work Incentives Support Center
Regulations and Tips for BPA&O and PABSS Staff by Ray Cebula
ADVANCING  THE  WORLD  OF  WORK
So, what
does it mean?
Both PABSS and BPAO clients contact 
our ofﬁces at various stages during the 
receipt of beneﬁts, particularly when 
they become involved with return to 
work efforts. After initially establishing 
a relationship with a PABSS advocate or 
Beneﬁts Planner it is highly likely that 
new contact from the recipient will be 
initiated upon the receipt of an adverse 
notice from SSA. Recipients are not 
always aware that ﬁling a request for 
appeal within 10 days and electing 
continuing payments will allow SSA 
to continue their stream of income.
Our ability to respond immediately and 
provide accurate and timely information 
to ensure that the recipient’s stream 
of income will not be interrupted 
during review process will go far in 
maintaining our client’s lives and well-
being.
How this regulation applies to you.
HOW TO REQUEST BENEFITS
PENDING APPEAL
Title:
SHELLEY’S CASE
Shelley has received SSDI beneﬁts for the past 7 
years. On January 10, 2005, she received a notice 
from SSA indicating that her disability will cease, 
based upon medical improvement, effective March 1, 
2005. She has contacted your ofﬁce on January 12th 
for assistance and tells you that she believes she is 
still disabled and that she cannot survive without her 
monthly beneﬁts and medical coverage.  How do you 
advise Shelley?
Just the Facts  |  March 20052
When are SSDI/SSI Beneﬁts Paid Pending Appeal?
The “election” is simply a statement by the 
recipient indicating an aﬃrmative decision 
to have beneﬁts continued pending the ap-
peal process. The SSA appeal forms provide 
a small space allowing the recipient to state 
the reasons for appeal. It is in this space 
that the recipient makes the “election” to 
continue payments pending the appeal. A 
simple statement, such as, “please continue 
to pay my beneﬁts in full during this ap-
peal,” will suﬃce. A le�er accompanying 
the appeal form requesting that beneﬁts be 
paid while the appeal is being considered 
will also do the trick.
The local SSA Claims Representative should 
inform the appealing recipient that there 
is a potential overpayment be created, or 
increased, by the election to receive beneﬁts 
pending appeal. This information however 
should not be given in such a manner as 
to dissuade the recipient from making the 
election if needed or desired.
It is important to remember that “good 
cause”3  for late appeals will also apply to 
the 10 beneﬁts continuation provision as 
well as does the 5 day mailing period4 rule.
*PRACTICE NOTE* The determination of 
“good cause” is made by SSA. Whenever a 
close question concerning good cause exists 
it is always best to ﬁle the request and allow 
SSA to make a determination.
Finally, the routine 60 day appeal period 
still applies to all SSA appeals. Should a 
recipient have missed the beneﬁts continu-
ation deadlines, the recipient is not prohib-
ited from ﬁling an appeal during the 60 day 
period. 
Unfortunately, beneﬁts will not be paid 
during an appeal ﬁled in this manner ab-
sent good cause as discussed above.
Types of Appeals and Beneﬁts Pending 
Potential —
1. Medical Cessations
In the event that a recipient receives a notice 
informing her that her medical condition has 
improved and is no longer considered disabling, 
beneﬁts continuation is available in both the SSI5 
and SSDI programs. In order to receive beneﬁts 
pending appeal, the appeal document(s) must be 
ﬁled within 10 days (good cause applies) and the 
election to continue beneﬁts must be made. How-
ever, the regular appeal period of 60 days applies 
to this, as with other types of appeals. As noted 
above, good cause for late ﬁling provisions will 
apply to this special 10 day ﬁling period. Please 
remember to consider the recipient’s medical 
condition and other circumstances at the time of 
receipt of the notice when considering whether 
good cause for late ﬁling and election is available.
The provision allowing beneﬁts to be paid pend-
ing appeal will also be applicable to children 
who are facing an “Age 18 Review.” Beneﬁts 
may be paid to the child pending this eligibil-
ity review. It is also clear that any overpayment 
incurred as a result of this appeal, if made in
“good faith” will likely be waived.6
SHELLEY’S CASE
Shelley has fortunately contacted you in plen-
ty of time to ﬁle an appeal and request that 
beneﬁts be paid pending SSA’s determination. 
Her appeal must be ﬁled by January 20th and 
she must afﬁrmatively elect to receive beneﬁts 
pending the appeal by indicating this desire 
on the appeal form or in an accompanying 
letter.
2. Substantial Gainful Activity Cessations
The major exception to the general rule of 
paying beneﬁts pending appeals involves 
those appeals concerning determinations that 
the recipient is involved in substantial gain-
ful activity7 (SGA). Even though the recipient 
may be directly challenging the SGA deter-
mination by asserting that impairment relat-
ed work expenses (IRWEs) and/or subsidies 
need to be applied in order to reduce income, 
SSA is prohibited from paying beneﬁts pend-
ing this type of review.
As a result, it behooves the recipient to move 
fast to ﬁle the appeal and to collect the neces-
sary documentation supporting the IRWE 
and subsidy allegations. While SSA will 
a�empt to develop the recipient’s allega-
tions concerning both subsidy and IRWEs 
self-help will most o�en lead to a correct and 
faster decisions. Both the recipient and advo-
cate/representative should develop all subsi-
dy and IRWE allegations as soon as possible 
and provide that information to the local SSA 
oﬃce.
Remember that the recipient need not wait 
until the documentation is gathered before 
ﬁling that appeal! In this instance the normal 
60 day appeal period rule will apply.
3. Payment Reduction Appeals
Many SSI recipients receive a “Notice of 
Planned Action” indicating that their beneﬁts 
level will increase or decrease. Each year a 
notice is sent concerning the annual cost of 
living increase provided to all recipients. 
More problematic is a notice indicating a re-
duction in payment.  For example, a change 
in living arrangement may dictate a change 
in the monthly SSI payment. Marriage, a new 
roommate, or the recipient of other public 
beneﬁts may all cause a change in the SSI 
payment level. Should the recipient choose to 
challenge the SSI beneﬁts reduction, full      
Just the Facts  |  March 20053
When are SSDI/SSI Beneﬁts Paid Pending Appeal?
beneﬁts (the rate paid prior to the Notice of 
Planned Action) can be paid pending re-
view.8
In this type of case, the recipient should be 
carefully counseled concerning the election 
of beneﬁts pending appeal. If, for instance, a 
marriage did occur and was not reported to 
SSA, the change in living arrangement and 
accompanying reduction in monthly pay-
ment may be appropriate. As a result, the 
election to receive a full payment pending 
appeal is very likely to increase any existing 
overpayment.
On the other hand, an appeal concerning a 
determination that the recipient has changed 
living arrangements and is now in “shared 
living” may be more amendable to the elec-
tion to receive full beneﬁts pending appeal. 
If the advocate/representative can piece 
together evidence to indicate that a “living 
alone” SSI rate should be paid, the election 
to receive beneﬁts during the appeal process 
will not likely cause more harm.
The decision to elect beneﬁts pending appeal 
should be carefully made with close exami-
nation of all of the surrounding facts and 
available documentation. While this election 
can ease the pain associated with appeal 
proceeding, electing for the sake of receiving 
beneﬁts that are not likely owed will only 
result in further proceedings concerning 
overpayment!
*A Note Concering Goldberg Kelly* Goldberg 
v. Kelly was a very signiﬁcant court deci-
sion that required that needs based beneﬁts 
continue to be paid until the recipient has 
received the opportunity for a face-to-face 
hearing. SSI recipients may be electing 
Goldberg Kelly (GK) beneﬁts continuation in 
certain instances. In most cases, they will not 
know this and it is really not important pro-
vided beneﬁts are actually paid pending the 
appeal! For example, all adverse SSI notices 
ADVANCING  THE  WORLD  OF  WORK
Email: ilr_edi@cornell.edu
www.edi.cornell.edu
Phone: 607-255-7727
Fax: 607-255-2673
TTY: 607-255-2891
End Notes
Employment and Disability Institute
201 ILR Extension Building
Ithaca, New York 14853
Overpayment Potential
must contain GK rights to beneﬁts pending 
appeal except for medical cessation cases. In 
this type of cessation the SSI recipient must 
elect statutory beneﬁts continuation. Same 
result. . .diﬀerent method. GK right are sim-
ply another means by which an SSI recipient 
can assert the right to receive beneﬁts during 
certain types of appeals.
When a recipient challenges a cessation 
determination and elects beneﬁts pending 
appeal, the beneﬁts paid during the appeal 
process will be considered an overpayment 
should the appeal of the cessation be unsuc-
cessful. It is very important that the recipi-
ent be aware that any beneﬁts paid pending 
an appeal may become an overpayment. In 
fact, the forms signed by the recipient dur-
ing the appeal process notify the recipient of 
this potential for overpayment. Despite the 
language of these forms, the recipient will 
have all rights to appeal and waiver of this 
type of overpayment as is the case with all 
other overpayments. Further, “good faith” 
appeals should result in a determination of 
“no fault” during the overpayment waiver 
process.
1 POMS DI 12027.010(A)(1)(a).
2 POMS DI 12027.010(A)(3)(a).
3 POMS DI 12027.010(A)(4).
4 POMS DI 12027.010(A)(1)(a).
5 POMS DI 12027. 015(2), SI 02301.310.
6 POMS SI 02260.007(2)(a).
7 POMS DI 12027.015(1)(3).
8 POMS SI 02301.310.


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When are SSDI/SSI Benefits Paid Pending Appeal?

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