Supplement Security Income (SSI) advocates and claimants have long complained of the systemic failures by the Social Security Administration (SSA) to process non-disability appeals, and the especially harmful effects on SSI recipients. A new policy is aimed at improving one aspect, to extend the period for requesting continuation of benefits from 15 to 65 days following the receipt of the notice of adverse action.
On October 29, 2021, SSA issued Emergency Message (EM) 21064, Goldberg Kelly Payment Continuation Period, establishing a new timeframe for ensuring the continuation of benefits during the pendency of an appeal of a suspension or reduction of SSI benefits. Payment continuation during an SSI non-disability appeal is known as Goldberg Kelly benefits, after the Supreme Court case that established the right to advance notice of adverse action. Under SSA’s regulations, 20 C.F.R. § 416.1336, SSI benefits are continued at the same level if a person appeals within 10 days of receiving notice of the suspension or reduction of benefits. Because SSA assumes a person received a notice five days after the date, this period is essentially 15 days from the date on the notice.
The deadlines provided in the regulations have not changed, but the new EM permits more time by using an automatic finding of good cause based on the agency’s difficulty processing submissions in a timely manner. The EM acknowledges that COVID-19 has presented significant challenges for the SSI population to file appeals – including field office closures and mail problems. It adds that “[t]hese and other workload-related challenges have also affected our ability to efficiently and timely process a request for reconsideration and ensure that we protect a recipient’s constitutional due process right to [Goldberg Kelly] payment continuation.” Although the EM has a retention date of April 29, 2022, SSA recognized that the challenges “will continue to affect our ability [sic] timely process requests for [Goldberg Kelly] payment continuation even after the end of the COVID-19 national public health emergency.”
EM-21064 instructs that unless Goldberg Kelly continuation is waived in writing, staff must continue benefits by automatically finding good cause if an appeal was filed after 15 days but by 65 days after the notice. After 65 days, SSA must develop for good cause rather than find it automatically.
As reported in our last newsletter, SSA had recently made other enhancements aimed at improving the processing of non-disability appeals or that enhanced processes directly related to that workload. In issuing EM-21051-REV, Mandating Use of the Dallas Appeals Application for Non-Medical Post Eligibility Supplemental Security Income Reconsideration Requests on August 2, 2021, SSA mandated use of the Dallas Appeals Application in all non-medical appeals. The application, also known as “Banana,” streamlines the amount of manual entry required to keep benefits continuing or to stop overpayment recovery. EM-21062, issued September 21, 2021, allows for better tracking and prioritizing of non-disability appeals in WorkTrack, where all submissions are reviewed and processed, by requiring these particular filings to be profiled and coded as either non-medical or medical reconsideration requests.
These systems changes, together with the extended Goldberg Kelly period, should address some of the technical obstacles to timely processing, as well as the insufficient timeframes provided under current regulations. These are promising and necessary improvements, but as acknowledged by SSA, the challenges involved are expected to persist beyond COVID-19. Without more resources to devote to processing submissions at the field office level, claimants will likely continue facing difficulty ensuring their appeals are timely processed and without undue disruption in benefits.