Social Security Administration § 416.2099

§ 411.650 20 CFR Ch. III (4–1–20 Edition)

DISPUTES BETWEEN EMPLOYMENT 416.121 Receipt of aid or assistance for De- NETWORKS AND PROGRAM MANAGERS cember 1973 under an approved State plan under title I, X, XIV, or XVI of the § 411.650 Is there a process for resolv- Social Security Act. ing disputes between ENs that are not State VR agencies and PMs, Subpart B—Eligibility other than disputes on a payment GENERAL request? 416.200 Introduction. Yes. Under the agreement to assist us 416.201 General definitions and terms used in administering the Ticket to Work in this subpart. program, a PM is required to have pro- 416.202 Who may get SSI benefits. cedures to resolve disputes with ENs 416.203 Initial determinations of SSI eligi- that do not involve an EN’s payment bility. request. (See § 411.590 for the process 416.204 Redeterminations of SSI eligibility. for resolving disputes on EN payment REASONS WHY YOU MAY NOT GET SSI BENE- requests.) This process must ensure FITS FOR WHICH YOU ARE OTHERWISE ELIGI- that: BLE (a) The EN can seek a solution 416.207 You do not give us permission to through the PM’s internal grievance contact financial institutions. procedures; and 416.210 You do not apply for other benefits. (b) If the PM’s internal grievance 416.211 You are a resident of a public insti- procedures do not result in a mutually tution. agreeable solution, the PM shall refer 416.212 Continuation of full benefits in certain cases of medical confinement. the dispute to us for a decision. 416.214 You are disabled and drug addiction or alcoholism is a contributing factor § 411.655 How will the PM refer the material to the determination of dis- dispute to us? ability. The PM has 20 working days from the 416.215 You leave the United States. failure to come to a mutually agree- 416.216 You are a child of armed forces personnel living overseas. able solution with an EN to refer the dispute to us with all relevant informa- ELIGIBILITY FOR INCREASED BENEFITS tion. The information should include: BECAUSE OF ESSENTIAL PERSONS (a) A description of the disputed 416.220 General. issue(s); 416.221 Who is a qualified individual. (b) A summary of the EN’s and PM’s 416.222 Who is an essential person. position related to each disputed issue; 416.223 What happens if you are a qualified and individual. (c) A description of any solutions 416.250 Experimental, pilot, and demonstration projects in the SSI program. proposed by the EN and PM when the EN sought resolution through the PM’s SPECIAL PROVISIONS FOR PEOPLE WHO WORK grievance procedures, including the DESPITE A DISABLING IMPAIRMENT reasons each party rejected each pro- 416.260 General. posed solution. 416.261 What are special SSI cash benefits and when are they payable. § 411.660 Is SSA’s decision final? 416.262 Eligibility requirements for special Yes. Our decision is final. SSI cash benefits. 416.263 No additional application needed. 416.264 When does the special SSI eligibility PART 416—SUPPLEMENTAL SECU- status apply. RITY INCOME FOR THE AGED, 416.265 Requirements for the special SSI eligibility status. BLIND, AND DISABLED 416.266 Continuation of SSI status for Med- icaid. Subpart A—Introduction, General 416.267 General. Provisions and Definitions 416.268 What is done to determine if you must have Medicaid in order to work. Sec. 416.269 What is done to determine whether 416.101 Introduction. your earnings are too low to provide 416.105 Administration. comparable benefits and services you 416.110 Purpose of program. would receive in the absence of those 416.120 General definitions and use of terms. earnings.

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Subpart C—Filing of Applications 416.428 Eligible individual without an eligible spouse has an essential person in his GENERAL PROVISIONS home. 416.301 Introduction. 416.430 Eligible individual with eligible 416.302 Definitions. spouse; essential person(s) present. 416.305 You must file an application to re- 416.432 Change in status involving a couple; ceive supplemental security income ben- eligibility continues. efits. 416.435 Change in status involving a couple; ineligibility occurs. APPLICATIONS 416.310 What makes an application a claim Subpart E—Payment of Benefits, for benefits. Overpayments, and Underpayments 416.315 Who may sign an application. 416.320 Evidence of authority to sign an ap- 416.501 Payment of benefits: General. plication for another. 416.502 Manner of payment. 416.325 When an application is considered 416.503 Minimum monthly benefit amount. filed. 416.520 Emergency advance payments. 416.327 Pilot program for photographic iden- 416.525 Reimbursement to States for in- tification of disability benefit applicants terim assistance payments. in designated geographic areas. 416.532 Method of payment when the essential person resides with more than one EFFECTIVE FILING PERIOD OF APPLICATION eligible person. 416.330 Filing before the first month you 416.533 Transfer or assignment of benefits. meet the requirements for eligibility. 416.534 Garnishment of payments after dis- 416.335 Filing in or after the month you bursement. meet the requirements for eligibility. 416.535 Underpayments and overpayments. 416.536 Underpayments—defined. FILING DATE BASED UPON A WRITTEN 416.537 Overpayments—defined. STATEMENT OR ORAL INQUIRY 416.538 Amount of underpayment or over- 416.340 Use of date of written statement as payment. application filing date. 416.542 Underpayments—to whom underpaid 416.345 Use of date of oral inquiry as appli- amount is payable. cation filing date. 416.543 Underpayments—applied to reduce 416.350 Treating a title II application as an overpayments. oral inquiry about SSI benefits. 416.544 Paying benefits in installments: Drug addiction or alcoholism. DEEMED FILING DATE BASED ON 416.545 Paying large past-due benefits in in- MISINFORMATION stallments. 416.351 Deemed filing date in a case of mis- 416.546 Payment into dedicated accounts of information. past-due benefits for eligible individuals under age 18 who have a representative WITHDRAWAL OF APPLICATION payee. 416.355 Withdrawal of an application. 416.550 Waiver of adjustment or recovery— 416.360 Cancellation of a request to with- when applicable. draw. 416.551 Waiver of adjustment or recovery— effect of. Subpart D—Amount of Benefits 416.552 Waiver of adjustment or recovery— without fault. 416.401 Scope of subpart. 416.553 Waiver of adjustment or recovery— 416.405 Cost-of-living adjustments in bene- defeat the purpose of the supplemental fits. security income program. 416.410 Amount of benefits; eligible individual. 416.554 Waiver of adjustment or recovery— 416.412 Amount of benefits; eligible couple. against equity and good conscience. 416.413 Amount of benefits; qualified indi- 416.555 Waiver of adjustment or recovery— vidual. impede administration. 416.414 Amount of benefits; eligible indi- 416.556 Waiver of adjustment or recovery— vidual or eligible couple in a medical countable resources in excess of the lim- treatment facility. its prescribed in § 416.1205 by $50 or less. 416.415 Amount of benefits; eligible indi- 416.557 Personal conference. vidual is disabled child under age 18. 416.558 Notice relating to overpayments and 416.420 Determination of benefits; general. underpayments. 416.421 Determination of benefits; computa- 416.560 Recovery—refund. tion of prorated benefits. 416.570 Adjustment. 416.426 Change in status involving an indi- 416.571 10-percent limitation of recoupment vidual; ineligibility occurs. rate—overpayment.

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416.572 Are title II and title VIII benefits 416.660 Transfer of accumulated benefit pay- subject to adjustment to recover title ments. XVI overpayments? 416.665 How does your representative payee 416.573 How much will we withhold from account for the use of benefits? your title II and title VIII benefits to recover a title XVI overpayment? Subpart G—Reports Required 416.574 Will you receive notice of our intention to apply cross-program recovery? INTRODUCTION 416.575 When will we begin cross-program 416.701 Scope of subpart. recovery from your current monthly ben- 416.702 Definitions. efits? 416.580 Referral of overpayments to the De- REPORT PROVISIONS partment of the Treasury for tax refund 416.704 Who must make reports. offset—General. 416.708 What you must report. 416.581 Notice to overpaid person. 416.582 Review within SSA that an overpay- 416.710 What reports must include. ment is past due and legally enforceable. 416.712 Form of the report. 416.583 Findings by SSA. 416.714 When reports are due. 416.584 Review of our records related to the PENALTY DEDUCTIONS overpayment. 416.585 Suspension of offset. 416.722 Circumstances under which we make 416.586 Tax refund insufficient to cover a penalty deduction. amount of overpayment. 416.724 Amounts of penalty deductions. 416.590 Are there additional methods for re- 416.726 Penalty period: First failure to recovery of title XVI benefit overpay- port. ments? 416.728 Penalty period: Second failure to report. Subpart F—Representative Payment 416.730 Penalty period: Three or more failures to report. 416.601 Introduction. 416.732 No penalty deduction if you have 416.610 When payment will be made to a rep- good cause for failure to report timely. resentative payee. 416.611 What happens to your monthly bene- Subpart H—Determination of Age fits while we are finding a suitable representative payee for you? 416.801 Evidence as to age—when required. 416.615 Information considered in deter- 416.802 Type of evidence to be submitted. mining whether to make representative 416.803 Evaluation of evidence. payment. 416.804 Certified copy in lieu of original. 416.618 Advance designation of representa- 416.805 When additional evidence may be re- tive payees. quired. 416.620 Information considered in selecting 416.806 Expedited adjudication based on doc- a representative payee. umentary evidence of age. 416.621 What is our order of preference in selecting a representative payee for you? Subpart I—Determining Disability and 416.622 Who may not serve as a representa- Blindness tive payee? 416.624 How do we investigate a representa- GENERAL tive payee applicant? 416.901 Scope of subpart. 416.625 What information must a represent- 416.902 Definitions for this subpart. ative payee report to us? 416.626 How do we investigate an appointed DETERMINATIONS representative payee? 416.630 How will we notify you when we de- 416.903 Who makes disability and blindness cide you need a representative payee? determinations. 416.635 What are the responsibilities of your 416.903a Program integrity. representative payee? 416.903b Evidence from excluded medical 416.640 Use of benefit payments. sources of evidence. 416.640a Compensation for qualified organi- 416.904 Decisions by other governmental zations serving as representative payees. agencies and nongovernmental entities. 416.641 Who is liable if your representative DEFINITION OF DISABILITY payee misuses your benefits? 416.645 Conservation and investment of ben- 416.905 Basic definition of disability for efit payments. adults. 416.650 When will we select a new represent- 416.906 Basic definition of disability for ative payee for you? children. 416.655 When representative payment will 416.907 Disability under a State plan. be stopped. 416.908 [Reserved]

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416.909 How long the impairment must last. EVALUATION OF DISABILITY 416.910 Meaning of substantial gainful activ- 416.920 Evaluation of disability of adults, in ity. general. 416.911 Definition of disabling impairment. 416.920a Evaluation of mental impairments. 416.920b How we consider evidence. EVIDENCE 416.920c How we consider and articulate 416.912 Responsibility for evidence. medical opinions and prior administra- 416.913 Categories of evidence. tive medical findings for claims filed on 416.913a Evidence from our Federal or State or after March 27, 2017. agency medical or psychological consult- 416.921 Establishing that you have a medi- ants. cally determinable impairment(s). 416.914 When we will purchase existing evi- 416.922 What we mean by an impairment(s) dence. that is not severe in an adult. 416.915 Where and how to submit evidence. 416.923 Multiple impairments. 416.916 If you fail to submit medical and 416.924 How we determine disability for other evidence. children. 416.917 Consultative examination at our ex- 416.924a Considerations in determining dis- pense. ability for children. 416.918 If you do not appear at a consult- 416.924b Age as a factor of evaluation in the ative examination. sequential evaluation process for children. STANDARDS TO BE USED IN DETERMINING WHEN A CONSULTATIVE EXAMINATION WILL MEDICAL CONSIDERATIONS BE OBTAINED IN CONNECTION WITH DIS- 416.925 Listing of Impairments in appendix 1 ABILITY DETERMINATIONS of subpart P of part 404 of this chapter. 416.919 The consultative examination. 416.926 Medical equivalence for adults and 416.919a When we will purchase a consult- children. ative examination and how we will use 416.926a Functional equivalence for chil- it. dren. 416.919b When we will not purchase a con- 416.927 Evaluating opinion evidence for sultative examination. claims filed before March 27, 2017. 416.928 [Reserved] STANDARDS FOR THE TYPE OF REFERRAL AND 416.929 How we evaluate symptoms, includ- FOR REPORT CONTENT ing pain. 416.930 Need to follow prescribed treatment. 416.919f Type of purchased examinations. 416.919g Who we will select to perform a PRESUMPTIVE DISABILITY AND BLINDNESS consultative examination. 416.931 The meaning of presumptive dis- 416.919h Your medical source. ability or presumptive blindness. 416.919i Other sources for consultative ex- 416.932 When presumptive payments begin aminations. and end. 416.919j Objections to the medical source 416.933 How we make a finding of presump- designated to perform the consultative tive disability or presumptive blindness. examination. 416.934 Impairments that may warrant a 416.919k Purchase of medical examinations, finding of presumptive disability or pre- laboratory tests, and other services. sumptive blindness. 416.919m Diagnostic tests or procedures. 416.919n Informing the medical source of ex- DRUG ADDICTION AND ALCOHOLISM amination scheduling, report content, and signature requirements. 416.935 How we will determine whether your 416.919o When a properly signed consult- drug addiction or alcoholism is a contrib- ative examination report has not been uting factor material to the determina- received. tion of disability. 416.919p Reviewing reports of consultative 416.936 Treatment required for individuals examinations. whose drug addiction or alcoholism is a 416.919q Conflict of interest. contributing factor material to the determination of disability. AUTHORIZING AND MONITORING THE REFERRAL 416.937 What we mean by appropriate treat- PROCESS ment. 416.938 What we mean by approved institu- 416.919s Authorizing and monitoring the tions or facilities. consultative examination. 416.939 How we consider whether treatment is available. PROCEDURES TO MONITOR THE CONSULTATIVE 416.940 Evaluating compliance with the EXAMINATION treatment requirements. 416.919t Consultative examination over- 416.941 Establishment and use of referral sight. and monitoring agencies.

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RESIDUAL FUNCTIONAL CAPACITY 416.989 We may conduct a review to find out whether you continue to be disabled. 416.945 Your residual functional capacity. 416.989a We may conduct a review to find 416.946 Responsibility for assessing your re- out whether you continue to be blind. sidual functional capacity. 416.990 When and how often we will conduct VOCATIONAL CONSIDERATIONS a continuing disability review. 416.991 If your medical recovery was ex- 416.960 When we will consider your voca- pected and you returned to work. tional background. 416.992 What happens if you fail to comply 416.962 Medical-vocational profiles showing with our request for information. an inability to make an adjustment to 416.992a [Reserved] other work. 416.993 Medical evidence in continuing dis- 416.963 Your age as a vocational factor. ability review cases. 416.964 Your education as a vocational fac- 416.994 How we will decide whether your dis- tor. ability continues or ends, disabled 416.965 Your work experience as a voca- adults. tional factor. 416.994a How we will determine whether 416.966 Work which exists in the national your disability continues or ends, and economy. whether you are and have been receiving 416.967 Physical exertion requirements. treatment that is medically necessary 416.968 Skill requirements. and available, disabled children. 416.969 Listing of Medical-Vocational 416.995 If we make a determination that Guidelines in appendix 2 of subpart P of your physical or mental impairment(s) part 404 of this chapter. has ceased, did not exist or is no longer 416.969a Exertional and nonexertional limi- disabling (Medical Cessation Determina- tations. tion). 416.996 Continued disability or blindness SUBSTANTIAL GAINFUL ACTIVITY benefits pending appeal of a medical cessation determination. 416.971 General. 416.998 If you become disabled by another 416.972 What we mean by substantial gain- impairment(s). ful activity. 416.999 What is expedited reinstatement? 416.973 General information about work ac- 416.999a Who is eligible for expedited rein- tivity. statement? 416.974 Evaluation guides if you are an em- 416.999b How do I request reinstatement? ployee. 416.999c How do we determine provisional 416.974a When and how we will average your benefits? earnings. 416.999d How do we determine reinstated 416.975 Evaluation guides if you are self-em- benefits? ployed. 416.976 Impairment-related work expenses. Subpart J—Determinations of Disability BLINDNESS GENERAL PROVISIONS 416.981 Meaning of blindness as defined in 416.1001 Purpose and scope. the law. 416.1002 Definitions. 416.982 Blindness under a State plan. 416.1003 Basic responsibilities for us and the 416.983 How we evaluate statutory blind- State. ness. 416.984 If you are statutorily blind and still RESPONSIBILITIES FOR PERFORMING THE working. DISABILITY DETERMINATION FUNCTION 416.985 How we evaluate other visual im- 416.1010 How a State notifies us that it pairments. wishes to perform the disability deter- 416.986 Why and when we will find that you mination function. are no longer entitled to benefits based 416.1011 How we notify a State whether it on statutory blindness. may perform the disability determina- DISABILITY REDETERMINATIONS FOR tion function. INDIVIDUALS WHO ATTAIN AGE 18 416.1013 Disability determinations the State makes. 416.987 Disability redeterminations for indi- 416.1014 Responsibilities for obtaining evi- viduals who attain age 18. dence to make disability determinations. 416.1015 Making disability determinations. CONTINUING OR STOPPING DISABILITY OR 416.1016 Medical consultants and psycho- BLINDNESS logical consultants. 416.988 Your responsibility to tell us of 416.1017 Reasonable efforts to obtain review events that may change your disability by a physician, psychiatrist, and psy- or blindness status. chologist.

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416.1018 Notifying claimant of the disability ASSUMPTION OF DISABILITY DETERMINATION determination. FUNCTION

QUICK DISABILITY DETERMINATIONS 416.1090 Assumption when we make a finding of substantial failure. 416.1019 Quick disability determination 416.1091 Assumption when State no longer process. wishes to perform the disability determination function. ADMINISTRATIVE RESPONSIBILITIES AND 416.1092 Protection of State employees. REQUIREMENTS 416.1093 Limitation on State expenditures 416.1020 General administrative require- after notice. ments. 416.1094 Final accounting by the State. 416.1021 Personnel. 416.1022 Training. Subpart K—Income 416.1023 Facilities. GENERAL 416.1024 Medical and other purchased services. 416.1100 Income and SSI eligibility. 416.1025 Records and reports. 416.1101 Definition of terms. 416.1026 Fiscal. 416.1102 What is income? 416.1027 Audits. 416.1103 What is not income? 416.1028 Property. 416.1104 Income we count. 416.1029 Participation in research and demonstration projects. EARNED INCOME 416.1030 Coordination with other agencies. 416.1110 What is earned income. 416.1031 Confidentiality of information and 416.1111 How we count earned income. records. 416.1112 Earned income we do not count. 416.1032 Other Federal laws and regulations. 416.1033 Policies and operating instructions. UNEARNED INCOME 416.1120 What is unearned income. PERFORMANCE STANDARDS 416.1121 Types of unearned income. 416.1040 General. 416.1123 How we count unearned income. 416.1041 Standards of performance. 416.1124 Unearned income we do not count. 416.1042 Processing time standards. 416.1043 Performance accuracy standard. IN-KIND SUPPORT AND MAINTENANCE 416.1044 How and when we determine wheth- 416.1130 Introduction. er the processing time standards are met. 416.1131 The one-third reduction rule. 416.1045 How and when we determine wheth- 416.1132 What we mean by ‘‘living in an- er the performance accuracy standard is other person’s household’’. met. 416.1133 What is a pro rata share of house- 416.1050 Action we will take if a State agen- hold operating expenses. cy does not meet the standards. 416.1140 The presumed value rule. 416.1141 When the presumed value rule ap- PERFORMANCE MONITORING AND SUPPORT plies. 416.1060 How we will monitor. 416.1142 If you live in a public assistance 416.1061 When we will provide performance household. support. 416.1143 If you live in a noninstitutional 416.1062 What support we will provide. care situation. 416.1144 If you live in a nonprofit retirement SUBSTANTIAL FAILURE home or similar institution. 416.1145 How the presumed value rule ap- 416.1070 General. plies in a nonmedical for-profit institu- 416.1071 Good cause for not following the tion. Act, our regulations, or other written guidelines. IN-KIND SUPPORT AND MAINTENANCE IN 416.1075 Finding of substantial failure. SPECIAL CIRCUMSTANCES

HEARINGS AND APPEALS 416.1147 How we value in-kind support and maintenance for a couple. 416.1080 Notice of right to hearing on pro- 416.1147a Income rules in change-of-status posed finding of substantial failure. situations involving in-kind support and 416.1081 Disputes on matters other than sub- maintenance. stantial failure. 416.1148 If you have both in-kind support 416.1082 Who conducts the hearings. and maintenance and income that is 416.1083 Hearings and appeals process. deemed to you.

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TEMPORARY ABSENCE 416.1204a Deeming of resources where Med- icaid eligibility is affected. 416.1149 What is a temporary absence from 416.1205 Limitation on resources. your living arrangement. 416.1207 Resources determinations. DISASTERS 416.1208 How funds held in financial institution accounts are counted. 416.1150 How we treat income received be- 416.1210 Exclusions from resources; general. cause of a major disaster. 416.1212 Exclusion of the home. 416.1151 How we treat the repair or replace- 416.1216 Exclusion of household goods and ment of lost, damaged, or stolen re- personal effects. sources. 416.1218 Exclusion of the automobile. 416.1220 Property essential to self-support; HOME ENERGY ASSISTANCE general. 416.1157 Support and maintenance assist- 416.1222 How income-producing property es- ance. sential to self-support is counted. 416.1224 How nonbusiness property used to DEEMING OF INCOME produce goods or services essential to 416.1160 What is deeming of income? self-support is counted. 416.1161 Income of an ineligible spouse, in- 416.1225 An approved plan to achieve self- eligible parent, and essential person for support; general. deeming purposes. 416.1226 What is a plan to achieve self-sup- 416.1161a Income for deeming purposes port(PASS)? where Medicaid eligibility is affected. 416.1227 When the resources excluded under 416.1163 How we deem income to you from a plan to achieve self-support begin to your ineligible spouse. count. 416.1165 How we deem income to you from 416.1228 Exclusion of Alaskan natives’ stock your ineligible parent(s). in regional or village corporations. 416.1166 How we deem income to you and 416.1229 Exclusion of payments received as your eligible child from your ineligible compensation for expenses incurred or spouse. losses suffered as a result of a crime. 416.1166a How we deem income to you from 416.1230 Exclusion of life insurance. your sponsor if you are an alien. 416.1231 Burial spaces and certain funds set 416.1167 Temporary absences and deeming aside for burial expenses. rules. 416.1232 Replacement of lost, damaged, or 416.1168 How we deem income to you from stolen excluded resources. your essential person. 416.1233 Exclusion of certain underpayments from resources. 416.1169 When we stop deeming income from an essential person. 416.1234 Exclusion of Indian lands. 416.1235 Exclusion of certain payments re- ALTERNATIVE INCOME COUNTING RULES FOR lated to tax credits. CERTAIN BLIND INDIVIDUALS 416.1236 Exclusions from resources; provided by other statutes. 416.1170 General. 416.1237 Assistance received on account of 416.1171 When the alternative rules apply. major disaster. 416.1238 Exclusion of certain housing assist- RULES FOR HELPING BLIND AND DISABLED ance. INDIVIDUALS ACHIEVE SELF-SUPPORT 416.1239 Exclusion of State or local reloca- 416.1180 General. tion assistance payments. 416.1181 What is a plan to achieve self-sup- 416.1240 Disposition of resources. port (PASS)? 416.1242 Time limits for disposing of re- 416.1182 When we begin to count the income sources. excluded under the plan. 416.1244 Treatment of proceeds from disposi- APPENDIX TO SUBPART K OF PART 416—LIST tion of resources. OF TYPES OF INCOME EXCLUDED UNDER 416.1245 Exceptions to required disposition THE SSI PROGRAM AS PROVIDED BY FED- of real property. ERAL LAWS OTHER THAN THE SOCIAL SE- 416.1246 Disposal of resources at less than CURITY ACT fair market value. 416.1247 Exclusion of a dedicated account in Subpart L—Resources and Exclusions a financial institution. 416.1248 Exclusion of gifts to children with 416.1201 Resources; general. life-threatening conditions. 416.1202 Deeming of resources. 416.1249 Exclusion of payments received as 416.1203 Deeming of resources of an essen- restitution for misuse of benefits by a tial person. representative payee. 416.1204 Deeming of resources of the sponsor 416.1250 How we count grants, scholarships, of an alien. fellowships or gifts.

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416.1260 Special resource provision for re- 416.1340 Penalty for making false or mis- cipients under a State plan. leading statements or withholding infor- 416.1261 Application of special resource pro- mation. vision. 416.1262 Special resource provision applica- Subpart N—Determinations, Administrative ble in cases involving essential persons. Review Process, and Reopening of De- 416.1264 Spouse ineligible under a State plan terminations and Decisions in December 1973. 416.1266 Individual under special resource INTRODUCTION, DEFINITIONS, AND INITIAL DETERMINATIONS provision dies after December 1973. 416.1400 Introduction. Subpart M—Suspensions and Terminations 416.1401 Definitions. 416.1402 Administrative actions that are ini- 416.1320 Suspensions; general. tial determinations. 416.1321 Suspension for not giving us per- 416.1403 Administrative actions that are not mission to contact financial institutions. initial determinations. 416.1322 Suspension due to failure to comply 416.1404 Notice of the initial determination. with request for information. 416.1405 Effect of an initial determination. 416.1323 Suspension due to excess income. 416.1406 Testing modifications to the dis- 416.1324 Suspension due to excess resources. ability determination procedures. 416.1325 Suspension due to status as a resident of a public institution. RECONSIDERATION 416.1326 Suspension for failure to comply 416.1407 Reconsideration—general. with treatment for drug addiction or al- 416.1408 Parties to a reconsideration. coholism. 416.1409 How to request reconsideration. 416.1327 Suspension due to absence from the 416.1411 Good cause for missing the deadline United States. to request review. 416.1329 Suspension due to loss of United 416.1413 Reconsideration procedures. States residency, United States citizen- 416.1413a Reconsiderations of initial deter- ship, or status as an alien lawfully ad- minations on applications. mitted for permanent residence or other- 416.1413b Reconsideration procedures for wise permanently residing in the United post-eligibility claims. States under color of law. 416.1413c Arrangement for conferences. 416.1330 Suspension due to failure to apply 416.1414 Disability hearing—general. for and obtain other benefits. 416.1415 Disability hearing—disability hear- 416.1331 Termination of your disability or ing officers. blindness payments. 416.1416 Disability hearing—procedures. 416.1332 Termination of benefit for disabled 416.1417 Disability hearing—disability hear- individual: Exception. ing officer’s reconsidered determination. 416.1333 Termination at the request of the 416.1418 Disability hearing—review of the recipient. disability hearing officer’s reconsidered 416.1334 Termination due to death of recipi- determination before it is issued. ent. 416.1419 Notice of another person’s request 416.1335 Termination due to continuous sus- for reconsideration. pension. 416.1420 Reconsidered determination. 416.1336 Notice of intended action affecting 416.1421 Effect of a reconsidered determina- recipient’s payment status. tion. 416.1337 Exceptions to the continuation of 416.1422 Notice of a reconsidered determina- previously established payment level. tion. 416.1338 If you are participating in an appropriate program of vocational rehabilita- EXPEDITED APPEALS PROCESS tion services, employment services, or 416.1423 Expedited appeals process—general. other support services. 416.1424 When the expedited appeals process 416.1339 Suspension due to flight to avoid may be used. criminal prosecution or custody or con- 416.1425 How to request expedited appeals finement after conviction, or due to vio- process. lation of probation or parole. 416.1426 Agreement in expedited appeals process. 416.1427 Effect of expedited appeals process agreement. 416.1428 Expedited appeals process request that does not result in agreement.

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HEARING BEFORE AN ADMINISTRATIVE LAW 416.1465 [Reserved] JUDGE APPEALS COUNCIL REVIEW 416.1429 Hearing before an administrative law judge-general. 416.1466 Testing elimination of the request 416.1430 Availability of a hearing before an for Appeals Council review. administrative law judge. 416.1467 Appeals Council review—general. 416.1432 Parties to a hearing before an ad- 416.1468 How to request Appeals Council re- ministrative law judge. view. 416.1433 How to request a hearing before an 416.1469 Appeals Council initiates review. administrative law judge. 416.1470 Cases the Appeals Council will re- 416.1435 Submitting evidence prior to a view. hearing before an administrative law 416.1471 Dismissal by Appeals Council. judge. 416.1472 Effect of dismissal of request for 416.1436 Time and place for a hearing before Appeals Council review. an administrative law judge. 416.1473 Notice of Appeals Council review. 416.1437 Protecting the safety of the public 416.1474 Obtaining evidence from Appeals and our employees in our hearing proc- Council. ess. 416.1475 Filing briefs with the Appeals 416.1438 Notice of a hearing before an ad- Council. ministrative law judge. 416.1476 Procedures before Appeals Council 416.1439 Objections to the issues. on review. 416.1440 Disqualification of the administra- 416.1477 Case remanded by Appeals Council. tive law judge. 416.1479 Decision of Appeals Council. 416.1441 Prehearing case review. 416.1481 Effect of Appeals Council’s decision 416.1442 Prehearing proceedings and deci- or denial of review. sions by attorney advisors. 416.1482 Extension of time to file action in 416.1443 Responsibilities of the adjudication Federal district court. officer. COURT REMAND CASES ADMINISTRATIVE LAW JUDGE HEARING PROCEDURES 416.1483 Case remanded by a Federal court. 416.1484 Appeals Council review of adminis- 416.1444 Administrative law judge hearing trative law judge decision in a case re- procedures—general. manded by a Federal court. 416.1446 Issues before an administrative law 416.1485 Application of circuit court law. judge. 416.1448 Deciding a case without an oral REOPENING AND REVISING DETERMINATIONS hearing before an administrative law AND DECISIONS judge. 416.1449 Presenting written statements and 416.1487 Reopening and revising determina- oral arguments. tions and decisions. 416.1450 Presenting evidence at a hearing 416.1488 Conditions for reopening. before an administrative law judge. 416.1489 Good cause for reopening. 416.1451 When a record of a hearing before 416.1491 Late completion of timely inves- an administrative law judge is made. tigation. 416.1452 Consolidated hearings before an ad- 416.1492 Notice of revised determination or ministrative law judge. decision. 416.1453 The decision of an administrative 416.1493 Effect of revised determination or law judge. decision. 416.1455 The effect of an administrative law 416.1494 Time and place to request further judge’s decision. review or a hearing on revised deter- 416.1456 Removal of a hearing request from mination or decision. an administrative law judge to the Ap- peals Council. PAYMENT OF CERTAIN TRAVEL EXPENSES 416.1457 Dismissal of a request for a hearing 416.1495 Payment of certain travel ex- before an administrative law judge. penses—general. 416.1458 Notice of dismissal of a request for 416.1496 Who may be reimbursed. a hearing before an administrative law 416.1498 What travel expenses are reimburs- judge. able. 416.1459 Effect of dismissal of a request for a 416.1499 When and how to claim reimburse- hearing before an administrative law ment. judge. 416.1460 Vacating a dismissal of a request Subpart O—Representation of Parties for a hearing before an administrative law judge. 416.1500 Introduction. 416.1461 Prehearing and posthearing con- 416.1503 Definitions. ferences. 416.1505 Who may be your representative.

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416.1506 Notification of options for obtain- 416.1705 Definitions. ing attorney representation. 416.1507 Appointing a representative. REFERRAL FOR VOCATIONAL REHABILITATION 416.1510 Authority of a representative. SERVICES 416.1513 Mandatory use of electronic serv- 416.1710 Whom we refer and when. ices. 416.1515 Notice or request to a representa- REFERRAL FOR TREATMENT OF ALCOHOLISM OR tive. DRUG ADDICTION 416.1517 Direct payment of fees to eligible non-attorney representatives. 416.1720 Whom we refer. 416.1520 Fee for a representative’s services. 416.1725 Effect of your failure to comply 416.1525 Request for approval of a fee. with treatment requirements for your 416.1528 Proceedings before a State or Fed- drug addiction or alcoholism. eral court. 416.1530 Payment of fees. Subpart R—Relationship 416.1535 [Reserved] 416.1540 Rules of conduct and standards of 416.1801 Introduction. responsibility for representatives. 416.1545 Violations of our requirements, WHO IS CONSIDERED YOUR SPOUSE rules, or standards. 416.1802 Effects of marriage on eligibility 416.1550 Notice of charges against a rep- and amount of benefits. resentative. 416.1806 Whether you are married and who is 416.1555 Withdrawing charges against a rep- your spouse. resentative. 416.1816 Information we need concerning 416.1565 Hearing on charges. 416.1570 Decision by hearing officer. marriage when you apply for SSI. 416.1575 Requesting review of the hearing 416.1821 Showing that you are married when officer’s decision. you apply for SSI. 416.1576 Assignment of request for review of 416.1826 Showing that you are not married the hearing officer’s decision. when you apply for SSI. 416.1580 Appeals Council’s review of hearing 416.1830 When we stop considering you and officer’s decision. your spouse an eligible couple. 416.1585 Evidence permitted on review. 416.1832 When we consider your marriage 416.1590 Appeals Council’s decision. ended. 416.1595 When the Appeals Council will dis- 416.1835 Information we need about separa- miss a request for review. tion or end of marriage after you become 416.1597 Reinstatement after suspension— eligible for SSI. period of suspension expired. 416.1599 Reinstatement after suspension or WHO IS CONSIDERED A CHILD disqualification—period of suspension 416.1851 Effects of being considered a child. not expired. 416.1856 Who is considered a child. Subpart P—Residence and Citizenship 416.1861 Deciding whether you are a child: Are you a student? 416.1600 Introduction. 416.1866 Deciding whether you are a child: 416.1601 Definitions and terms used in this Are you the head of a household? subpart. 416.1603 How to prove you are a resident of WHO IS CONSIDERED A STUDENT FOR PURPOSES the United States. OF THE STUDENT EARNED INCOME EXCLUSION 416.1610 How to prove you are a citizen or a 416.1870 Effect of being considered a stu- national of the United States. dent. 416.1615 How to prove you are lawfully ad- 416.1872 Who is considered a student. mitted for permanent residence in the 416.1874 When we need evidence that you are United States. a student. 416.1618 When you are considered permanently residing in the United States WHO IS CONSIDERED YOUR PARENT under color of law. 416.1619 When you cannot be considered per- 416.1876 Effects a parent (or parents) can manently residing in the United States have on the child’s benefits. under color of law. 416.1881 Deciding whether someone is your parent or stepparent. Subpart Q—Referral of Persons Eligible for Supplemental Security Income to Subpart S—Interim Assistance Provisions Other Agencies INTRODUCTION GENERAL 416.1901 Scope of subpart S. 416.1701 Scope of subpart. 416.1902 Definitions.

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AUTHORIZATIONS 416.2111 Conditions for our agreeing to make Medicaid eligibility determina- 416.1904 Authorization to withhold SSI ben- tions. efits. 416.1906 When your authorization is in ef- 416.2116 Medicaid eligibility determina- fect. tions. 416.1908 When we need another authoriza- 416.2130 Effect of the agreement and respon- tion. sibilities of States. 416.2140 Liability for erroneous Medicaid INTERIM ASSISTANCE AGREEMENTS eligibility determinations. 416.1910 Requirements for interim assist- 416.2145 Services other than Medicaid deter- ance agreement. minations. 416.2161 Charges to States. APPEALS 416.2166 Changing the agreement. 416.1920 Your appeal rights in the State. 416.2171 Duration of agreement. 416.1922 Your appeal rights in SSA. 416.2176 Disagreements between a State and us. Subpart T—State Supplementation Provisions; Agreement; Payments Subpart V—Payments for Vocational Rehabilitation Services 416.2001 State supplementary payments; general. GENERAL PROVISIONS 416.2005 Administration agreements with SSA. 416.2201 General. 416.2010 Essentials of the administration 416.2202 Purpose and scope. agreements. 416.2203 Definitions. 416.2015 Establishing eligibility. 416.2204 Participation by State VR agencies. 416.2020 Federally administered supple- 416.2206 [Reserved] mentary payments. 416.2025 Optional supplementation: Count- PAYMENT PROVISIONS able income. 416.2208 Requirements for payment. 416.2030 Optional supplementation: Vari- 416.2209 Responsibility for making payment ations in payments. decisions. 416.2035 Optional supplementation: Addi- 416.2210 What we mean by ‘‘SGA’’ and by ‘‘a tional State options. continuous period of 9 months’’. 416.2040 Limitations on eligibility. 416.2045 Overpayments and underpayments; 416.2211 Criteria for determining when VR federally administered supplementation. services will be considered to have con- 416.2047 Waiver of State supplementary pay- tributed to a continuous period of 9 ments. months. 416.2050 Mandatory minimum State sup- 416.2212 Payment for VR services in a case plementation. where an individual continues to receive 416.2055 Mandatory minimum supplemen- disability or blindness benefits based on tation reduced. participation in an approved VR pro- 416.2060 Mandatory minimum supple- gram. mentary payments not applicable. 416.2214 Services for which payment may be 416.2065 Mandatory minimum State sup- made. plementation: Agreement deemed. 416.2215 When services must have been pro- 416.2070 Mandatory supplementation: State vided. compliance not applicable. 416.2216 When claims for payment for VR 416.2075 Monitoring of mandatory minimum services must be made (filing deadlines). supplementary payments. 416.2217 What costs will be paid. 416.2090 State funds transferred for supplementary payments. ADMINISTRATIVE PROVISIONS 416.2095 Pass-along of Federal benefit increases. 416.2218 [Reserved] 416.2096 Basic pass-along rules. 416.2219 Method of payment. 416.2097 Combined supplementary/SSI pay- 416.2220 Audits. ment levels. 416.2221 Validation reviews. 416.2098 Supplementary payment levels. 416.2222 Confidentiality of information and 416.2099 Compliance with pass-along. records. 416.2223 Other Federal laws and regulations. Subpart U—Medicaid Eligibility 416.2227 Resolution of disputes. Determinations EDITORIAL NOTE: Nomenclature changes to 416.2101 Introduction. part 416 appear at 68 FR 53509, Sept. 11, 2003.

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Subpart A—Introduction, General (d) Subpart D of this part sets forth Provisions and Definitions the rules for computing the amount of benefits payable to an eligible individual and eligible spouse. AUTHORITY: Secs. 702(a)(5) and 1601–1635 of the Social Security Act (42 U.S.C. 902(a)(5) (e) Subpart E of this part covers pro- and 1381–1383d); sec. 212, Pub. L. 93–66, 87 visions with respect to periodic pay- Stat. 155 (42 U.S.C. 1382 note); sec. 502(a), ment of benefits, joint payments, pay- Pub. L. 94–241, 90 Stat. 268 (48 U.S.C. 1681 ment of emergency cash advances, pay- note). ment of benefits prior to a determina- SOURCE: 39 FR 28625, Aug. 9, 1974, unless tion of disability, prohibition against otherwise noted. transfer or assignment of benefits, adjustment and waiver of overpayments, § 416.101 Introduction. and payment of underpayments. The regulations in this part 416 (Reg- (f) Subpart F of this part contains ulations No. 16 of the Social Security provisions with respect to the selection Administration) relate to the provi- of representative payees to receive ben- sions of title XVI of the Social Secu- efits on behalf of and for the use of re- rity Act as amended by section 301 of cipients and to the duties and respon- Pub. L. 92–603 enacted October 30, 1972, sibilities of representative payees. and as may thereafter be amended. (g) Subpart G of this part sets forth Title XVI (Supplemental Security In- rules with respect to the reporting of come For The Aged, Blind, and Dis- events and circumstances affecting eli- abled) of the Social Security Act, as gibility or the amount of benefits pay- amended, established a national pro- able. gram, effective January 1, 1974, for the (h) Subpart H of this part sets forth purpose of providing supplemental se- rules and guidelines for the submittal curity income to individuals who have and evaluation of evidence of age attained age 65 or are blind or disabled. where age is pertinent to establishing The regulations in this part are divided eligibility or the amount of benefits into the following subparts according payable. to subject content: (i) Subpart I of this part sets forth (a) This subpart A contains this in- the rules for establishing disability or troduction, a statement of the general blindness where the establishment of purpose underlying the supplemental disability or blindness is pertinent to security income program, general pro- eligibility. visions applicable to the program and (j) Subpart J of this part sets forth its administration, and definitions and the standards, requirements and proce- use of terms occurring throughout this dures for States making determina- part. tions of disability for the Commis- (b) Subpart B of this part covers in sioner. It also sets out the Commis- general the eligibility requirements sioner’s responsibilities in carrying out which must be met for benefits under the disability determination function. the supplemental security income pro- (k) Subpart K of this part defines in- gram. It sets forth the requirements re- come, earned income, and unearned in- garding residence, citizenship, age, dis- come and sets forth the statutory exclu- ability, or blindness, and describes the sions applicable to earned and un- conditions which bar eligibility and earned income for the purpose of estab- generally points up other conditions of lishing eligibility for and the amount eligibility taken up in greater detail of benefits payable. elsewhere in the regulations (e.g., limi- (l) Subpart L of this part defines the tations on income and resources, re- term resources and sets forth the statu- ceipt of support and maintenance, tory exclusions applicable to resources etc.). for the purpose of determining eligi- (c) Subpart C of this part sets forth bility. the rules with respect to the filing of (m) Subpart M of this part deals with applications, requests for withdrawal events or circumstances requiring sus- of applications, cancellation of with- pension or termination of benefits. drawal requests and other similar re- (n) Subpart N of this part contains quests. provisions with respect to procedures

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for making determinations with re- § 416.110 Purpose of program. spect to eligibility, amount of benefits, The basic purpose underlying the representative payment, etc., notices supplemental security income program of determinations, rights of appeal and is to assure a minimum level of income procedures applicable thereto, and for people who are age 65 or over, or other procedural due process provi- who are blind or disabled and who do sions. not have sufficient income and re- (o) Subpart O of this part contains sources to maintain a standard of liv- provisions applicable to attorneys and ing at the established Federal min- other individuals who represent appli- imum income level. The supplemental cants in connection with claims for security income program replaces the benefits. financial assistance programs for the (p) Subpart P of this part sets forth aged, blind, and disabled in the 50 the residence and citizenship require- States and the District of Columbia for ments that are pertinent to eligibility. which grants were made under the So- (q) Subpart Q of this part contains cial Security Act. Payments are fi- provisions with respect to the referral nanced from the general funds of the of individuals for vocational rehabilita- United States Treasury. Several basic tion, treatment for alcoholism and principles underlie the program: drug addiction, and application for (a) Objective tests. The law provides other benefits to which an applicant that payments are to be made to aged, may be potentially entitled. blind, and disabled people who have in- (r) Subpart R of this part sets forth come and resources below specified the rules for determining marital and amounts. This provides objective meas- other family relationships where perti- urable standards for determining each nent to the establishment of eligibility person’s benefits. for or the amount of benefits payable. (b) Legal right to payments. A person’s (s) Subpart S of this part explains in- rights to supplemental security income terim assistance and how benefits may payments—how much he gets and be withheld to repay such assistance under what conditions—are clearly de- given by the State. fined in the law. The area of adminis- (t) Subpart T of this part contains trative discretion is thus limited. If an provisions with respect to the sup- applicant disagrees with the decision plementation of Federal supplemental on his claim, he can obtain an adminis- security income payments by States, trative review of the decision and if agreements for Federal administration still not satisfied, he may initiate of State supplementation programs, court action. and payment of State supplementary (c) Protection of personal dignity. payments. (u) Subpart U of this part contains Under the Federal program, payments provisions with respect to agreements are made under conditions that are as with States for Federal determination protective of people’s dignity as pos- of Medicaid eligibility of applicants for sible. No restrictions, implied or other- supplemental security income. wise, are placed on how recipients (v) Subpart V of this part explains spend the Federal payments. when payments are made to State vo- (d) Nationwide uniformity of standards. cational rehabilitation agencies for vo- The eligibility requirements and the cational rehabilitation services. Federal minimum income level are identical throughout the 50 States and [39 FR 28625, Aug. 9, 1974, as amended at 51 the District of Columbia. This provides FR 11718, Apr. 7, 1986; 62 FR 38454, July 18, assurance of a minimum income base 1997; 83 FR 62459, Dec. 4, 2018] on which States may build supple- § 416.105 Administration. mentary payments. (e) Incentives to work and opportunities The Supplemental Security Income for rehabilitation. Payment amounts are for the Aged, Blind, and Disabled pro- not reduced dollar-for-dollar for work gram is administered by the Social Se- income but some of an applicant’s in- curity Administration. come is counted toward the eligibility [51 FR 11718, Apr. 7, 1986, as amended at 62 limit. Thus, recipients are encouraged FR 38454, July 18, 1997] to work if they can. Blind and disabled

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recipients with vocational rehabilita- payment levels for January 1972 and its tion potential are referred to the ap- total expenditures for calendar year propriate State vocational rehabilita- 1972 for aid and assistance under the tion agencies that offer rehabilitation appropriate State plan(s) (see subpart services to enable them to enter the T of this part). labor market. (2) States with Medicaid eligibility (f) State supplementation and Medicaid requirements for the aged, blind, and determinations. (1) Federal supple- disabled that are identical (except as mental security income payments less- permitted by § 416.2111) to the supple- en the variations in levels of assistance mental security income eligibility re- and provide a basic level of assistance quirements may elect to have the So- throughout the nation. States are re- cial Security Administration deter- quired to provide mandatory minimum mine Medicaid eligibility under the State supplementary payments begin- State’s program for recipients of sup- ning January 1, 1974, to aged, blind, or plemental security income and recipi- disabled recipients of assistance for the ents of a federally administered State month of December 1973 under such supplementary payment. The State State’s plan approved under title I, X, would pay half of Social Security Ad- XIV, or XVI of the Act in order for the ministration’s incremental administra- State to be eligible to receive title XIX tive costs arising from carrying out the funds (see subpart T of this part). agreement. These payments must be in an amount sufficient to ensure that individuals [39 FR 28625, Aug. 9, 1974, as amended at 53 FR 12941, Apr. 20, 1988; 62 FR 38454, July 18, who are converted to the new program 1997] will not have their income reduced below what it was under the State pro- § 416.120 General definitions and use gram for December 1973. In addition, of terms. each State may choose to provide more (a) Terms relating to acts and regula- than the Federal supplemental security tions. As used in this part: income and/or mandatory minimum State supplementary payment to what- (1) The Act means the Social Security ever extent it finds appropriate in view Act as amended (42 U.S.C. Chap. 7). of the needs and resources of its citi- (2) Wherever a title is referred to, it zens or it may choose to provide no means such title of the Act. more than the mandatory minimum (3) Vocational Rehabilitation Act payment where applicable. States means the act approved June 2, 1920 (41 which provide State supplementary Stat. 735), 29 U.S.C. 31–42, as amended, payments can enter into agreements and as may be amended from time to for Federal administration of the man- time hereafter. datory and optional State supple- (b) Commissioner; Appeals Council; de- mentary payments with the Federal fined. As used in this part: Government paying the administrative (1) Commissioner means the Commis- costs. A State which elects Federal ad- sioner of Social Security. ministration of its supplementation (2) Appeals Council means the Appeals program must apply the same eligi- Council of the Office of Hearings and bility criteria (other than those per- Appeals in the Social Security Admin- taining to income) applied to deter- istration or such member or members mine eligibility for the Federal portion thereof as may be designated by the of the supplemental security income Chairman. payment, except as provided in sec. (c) Miscellaneous. As used in this part 1616(c) of the Act (see subpart T of this unless otherwise indicated: part). There is a limitation on the (1) Supplemental security income benefit amount payable to the Commissioner means the amount to be paid to an eli- by a State for the amount of the sup- gible individual (or eligible individual plementary payments made on its be- and his eligible spouse) under title XVI half for any fiscal year pursuant to the of the Act. State’s agreement with the Secretary. (2) Income means the receipt by an in- Such limitation on the amount of re- dividual of any property or service imbursement is related to the State’s which he can apply, either directly or

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by sale or conversion, to meeting his iday or on any other day all or part of basic needs (see subpart K of this part). which is declared to be a nonworkday (3) Resources means cash or other liq- for Federal employees by statute or uid assets or any real or personal prop- Executive Order, then such act shall be erty that an individual owns and could considered as done within such period convert to cash to be used for support if it is done on the first day thereafter and maintenance (see § 416.1201(a)). which is not a Saturday, Sunday, or (4) Attainment of age. An individual legal holiday or any other day all or attains a given age on the first mo- part of which is declared to be a non- ment of the day preceding the anniver- workday for Federal employees either sary of his birth corresponding to such by statute or Executive Order. For pur- age. poses of this paragraph, the day on (5) Couple means an eligible indi- which a period ends shall include the vidual and his eligible spouse. (6) Institution (see § 416.201). final day of any extended period where (7) Public institution (see § 416.201). such extension is authorized by law or (8) Resident of a public institution (see by the Commissioner pursuant to law. § 416.201). Such extension of any period of limita- (9) State, unless otherwise indicated, tion does not apply to periods during means a State of the United States, the which an application for benefits or District of Columbia, or effective Janu- payments may be accepted as such an ary 9, 1978, the Northern Mariana Is- application pursuant to subpart C of lands. this part. (10) The term United States when used [39 FR 28625, Aug. 9, 1974, as amended at 43 in a geographical sense means the 50 FR 25091, June 9, 1978; 51 FR 11719, Apr. 7, States, the District of Columbia, and 1986; 60 FR 16374, Mar. 30, 1995; 62 FR 38454, effective January 9, 1978, the Northern July 18, 1997] Mariana Islands. (11) Masculine gender includes the § 416.121 Receipt of aid or assistance feminine, unless otherwise indicated. for December 1973 under an ap- (12) Section means a section of the proved State plan under title I, X, regulations in part 416 of this chapter XIV, or XVI of the Social Security unless the context indicates otherwise. Act. (13) Eligible individual means an aged, (a) Recipient of aid or assistance de- blind, or disabled individual who meets fined. As used in this part 416, the term all the requirements for eligibility for individual who was a recipient of aid or benefits under the supplemental secu- assistance for December 1973 under a rity income program. State plan approved under title I, X, (14) Eligible spouse means an aged, XIV, or XVI of the Social Security Act blind, or disabled individual who is the means an individual who correctly re- husband or wife of another aged, blind, ceived aid or assistance under such or disabled individual and who is living plan for December 1973 even though with that individual (see § 416.1801(c)). such aid or assistance may have been (d) Periods of limitation ending on non- received subsequent to December 1973. work days. Pursuant to the Act, where any provision of title XVI, or any pro- It also includes an individual who filed vision of another law of the United an application prior to January 1974 States (other than the Internal Rev- and was otherwise eligible for aid or as- enue Code of 1954) relating to or chang- sistance for December 1973 under the ing the effect of title XVI, or any regu- provisions of such State plan but did lation of the Commissioner issued not in fact receive such aid or assist- under title XVI, provides for a period ance. It does not include an individual within which an act is required to be who received aid or assistance because done which affects eligibility for or the of the provisions of 45 CFR 205.10(a) amount of any benefit or payment (pertaining to continuation of assist- under title XVI or is necessary to es- ance until a fair hearing decision is tablish or protect any rights under rendered), as in effect in December title XVI and such period ends on a 1973, and with respect to whom it is Saturday, Sunday, or Federal legal hol- subsequently determined that such aid

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or assistance would not have been re- Subpart B—Eligibility ceived without application of the provisions of such 45 CFR 205.10(a). AUTHORITY: Secs. 702(a)(5), 1110(b), 1602, (b) Aid or assistance defined. As used 1611, 1614, 1619(a), 1631, and 1634 of the Social in this part 416, the term aid or assist- Security Act (42 U.S.C. 902(a)(5), 1310(b), ance means aid or assistance as defined 1381a, 1382, 1382c, 1382h(a), 1383, and 1383c); in titles I, X, XIV, and XVI of the So- secs. 211 and 212, Pub. L. 93–66, 87 Stat. 154 cial Security Act, as in effect in De- and 155 (42 U.S.C. 1382 note); sec. 502(a), Pub. cember 1973, and such aid or assistance L. 94–241, 90 Stat. 268 (48 U.S.C. 1681 note); sec. 2, Pub. L. 99–643, 100 Stat. 3574 (42 U.S.C. is eligible for Federal financial partici- 1382h note). pation in accordance with those titles and the provisions of 45 CFR chapter II SOURCE: 47 FR 3103, Jan. 22, 1982, unless otherwise noted. as in effect in December 1973. (c) Determinations of receipt of aid or GENERAL assistance for December 1973. For the purpose of application of the provisions § 416.200 Introduction. of this part 416, the determination as You are eligible for SSI benefits if to whether an individual was a recipi- you meet all the basic requirements ent of aid or assistance for December listed in § 416.202. However, the first 1973 under a State plan approved under month for which you may receive SSI title I, X, XIV, or XVI of the Social Se- benefits is the month after the month curity Act will be made by the Social in which you meet these eligibility re- Security Administration. In making quirements. (See § 416.501.) You must such determination, the Social Secu- give us any information we request and rity Administration may take into show us necessary documents or other consideration a prior determination by evidence to prove that you meet these the appropriate State agency as to requirements. We determine your eligi- whether the individual was eligible for bility for each month on the basis of aid or assistance for December 1973 your countable income in that month. under such State plan. Such prior de- You continue to be eligible unless you termination, however, shall not be con- lose your eligibility because you no sidered as conclusive in determining longer meet the basic requirements or whether an individual was a recipient because of one of the reasons given in of aid or assistance for December 1973 §§ 416.207 through 416.216. under a State plan approved under title [64 FR 31972, June 15, 1999, as amended at 68 I, X, XIV, or XVI of the Social Security FR 53508, Sept. 11, 2003] Act for purposes of application of the provisions of this part 416. § 416.201 General definitions and (d) Special provision for disabled recipi- terms used in this subpart. ents. For purposes of § 416.907, the cri- Any 9-month period means any period teria and definitions enumerated in of 9 full calendar months ending with paragraphs (a) through (c) of this sec- any full calendar month throughout tion are applicable in determining which (as defined in § 416.211) an indi- whether an individual was a recipient vidual is residing in a public emer- of aid or assistance (on the basis of dis- gency shelter for the homeless (as de- ability) under a State plan approved fined in this section) and including the under title XIV or XVI of the Act for a immediately preceding 8 consecutive month prior to July 1973. It is not nec- full calendar months. January 1988 is essary that the aid or assistance for the earliest possible month in any 9- December 1973 and for a month prior to month period. July 1973 have been paid under the Educational or vocational training State plan of the same State. means a recognized program for the acquisition of knowledge or skills to pre- [39 FR 32024, Sept. 4, 1974; 39 FR 33207, Sept. pare an individual for gainful employ- 16, 1974, as amended at 51 FR 11719, Apr. 7, ment. For purposes of these regula- 1986] tions, educational or vocational training does not include programs limited

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to the acquisition of basic life skills in- Resident of a public institution means a cluding but not limited to eating and person who can receive substantially dressing. all of his or her food and shelter while Emergency shelter means a shelter for living in a public institution. The per- individuals whose homelessness poses a son need not be receiving treatment threat to their lives or health. and services available in the institu- Homeless individual is one who is not tion and is a resident regardless of in the custody of any public institution whether the resident or anyone else and has no currently usable place to pays for all food, shelter, and other live. By custody we mean the care and services in the institution. A person is control of an individual in a mandatory not a resident of a public institution if residency where the individual’s free- he or she is living in a public edu- dom to come and go as he or she choos- cational institution for the primary es is restricted. An individual in a pub- purpose of receiving educational or vo- lic institution awaiting discharge and cational training as defined in this sec- placement in the community is in the tion. A resident of a public institution custody of that institution until dis- means the same thing as an inmate of a charged and is not homeless for pur- public institution as used in section poses of this provision. 1611(e)(1)(A) of the Social Security Act. Institution means an establishment (See § 416.211(b), (c), and (d) of this sub- that makes available some treatment part for exceptions to the general limi- or services in addition to food and shel- tation on the eligibility for Supple- ter to four or more persons who are not mental Security Income benefits of in- related to the proprietor. dividuals who are residents of a public Medical treatment facility means an in- institution.) stitution or that part of an institution SSI means supplemental security in- that is licensed or otherwise approved come. by a Federal, State, or local government to provide inpatient medical care State assistance means payments and services. made by a State to an aged, blind, or Public emergency shelter for the home- disabled person under a State plan ap- less means a public institution or that proved under title I, X, XIV, or XVI part of a public institution used as an (AABD) of the Social Security Act emergency shelter by the Federal gov- which was in effect before the SSI Pro- ernment, a State, or a political sub- gram. division of a State, primarily for mak- We or Us means the Social Security ing available on a temporary basis a Administration. place to sleep, food, and some services You or Your means the person who or treatment to homeless individuals. applies for or receives SSI benefits or A medical treatment facility (as de- the person for whom an application is fined in § 416.201) or any holding facil- filed. ity, detoxification center, foster care [47 FR 3103, Jan. 22, 1982, as amended at 49 facility, or the like that has custody of FR 19639, May 19, 1984; 50 FR 48570, Nov. 26, the individual is not a public emer- 1985; 50 FR 51517, Dec. 18, 1985; 54 FR 19164, gency shelter for the homeless. Simi- May 4, 1989; 72 FR 50874, Sept. 5, 2007] larly, transitional living arrangements such as a halfway house that are part § 416.202 Who may get SSI benefits. of an insitution’s plan to facilitate the You are eligible for SSI benefits if individual’s adjustment to community you meet all of the following require- living are not public emergency shel- ments: ters for the homeless. (a) You are— Public institution means an institution that is operated by or controlled (1) Aged 65 or older (subpart H); by the Federal government, a State, or (2) Blind (subpart I); or a political subdivision of a State such (3) Disabled (subpart I). as a city or county. The term public in- (b) You are a resident of the United stitution does not include a publicly op- States (§ 416.1603), and— erated community residence which (1) A citizen or a national of the serves 16 or fewer residents. United States (§ 416.1610);

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(2) An alien lawfully admitted for about other eligibility requirements permanent residence in the United and you must answer completely. We States (§ 416.1615); will help you get any documents you (3) An alien permanently residing in need but do not have. the United States under color of law (b) How we determine your eligibility (§ 416.1618); or for SSI benefits. We determine that you (4) A child of armed forces personnel are eligible for SSI benefits for a given living overseas as described in § 416.216. month if you meet the requirements in (c) You do not have more income § 416.202 in that month. However, you than is permitted (subparts K and D). cannot become eligible for payment of (d) You do not have more resources SSI benefits until the month after the than are permitted (subpart L). month in which you first become eligi- (e) You are disabled, drug addiction ble for SSI benefits (see § 416.501). In ad- or alcoholism is a contributing factor dition, we usually determine the material to the determination of dis- amount of your SSI benefits for a ability (see § 416.935), and you have not month based on your income in an ear- previously received a total of 36 lier month (see § 416.420). Thus, it is months of Social Security benefit pay- possible for you to meet the eligibility ments when appropriate treatment was requirements in a given month but re- available or 36 months of SSI benefits ceive no benefit payment for that on the basis of disability where drug month. addiction or alcoholism was a contrib- [47 FR 3103, Jan. 22, 1982, as amended at 50 uting factor material to the determina- FR 48570, Nov. 26, 1985; 64 FR 31972, June 15, tion of disability. 1999] (f) You are not— (1) Fleeing to avoid prosecution for a § 416.204 Redeterminations of SSI eli- crime, or an attempt to commit a gibility. crime, which is a felony under the laws (a) Redeterminations defined. A rede- of the place from which you flee (or termination is a review of your eligi- which, in the case of the State of New bility to make sure that you are still Jersey, is a high misdemeanor under eligible and that you are receiving the the laws of that State); right amount of SSI benefits. This re- (2) Fleeing to avoid custody or con- view deals with the requirements for finement after conviction for a crime, eligibility other than whether you are or an attempt to commit a crime, still disabled or blind. Continuation of which is a felony under the laws of the disability or blindness reviews are dis- place from which you flee (or which, in cussed in §§ 416.989 and 416.990. the case of the State of New Jersey, is (b) When we make redeterminations. (1) a high misdemeanor under the laws of We redetermine your eligibility on a that State); or scheduled basis at periodic intervals. (3) Violating a condition of probation The length of time between scheduled or parole imposed under Federal or redeterminations varies depending on State law. the likelihood that your situation may (g) You file an application for SSI change in a way that affects your bene- benefits (subpart C). fits. [47 FR 3103, Jan. 22, 1982, as amended at 58 (2) We may also redetermine your eli- FR 4897, Jan. 19, 1993; 60 FR 8149, Feb. 10, gibility when you tell us (or we other- 1995; 61 FR 10277, Mar. 13, 1996; 65 FR 40495, wise learn) of a change in your situa- June 30, 2000] tion which affects your eligibility or the amount of your benefit. § 416.203 Initial determinations of SSI (c) The period for which a redetermina- eligibility. tion applies: (1) The first redetermina- (a) What happens when you apply for tion applies to— SSI benefits. When you apply for SSI (i) The month in which we make the benefits we will ask you for documents redetermination; and any other information we need to (ii) All months beginning with the make sure you meet all the require- first day of the latest of the following: ments. We will ask for information (A) The month of first eligibility or about your income and resources and re-eligibility; or

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(B) The month of application; or to your relationship with the financial (C) The month of deferred or updated institution. development; and (d) We may ask any financial institu- (iii) Future months until the second tion for information on any financial redetermination. account concerning you. We may also (2) All other redeterminations apply ask for information on any financial to— accounts for anyone whose income and (i) The month in which we make the resources we consider as being avail- redetermination; able to you (see §§ 416.1160, 416.1202, (ii) All months beginning with the 416.1203, and 416.1204). first day of the month the last redeter- (e) We ask financial institutions for mination was initiated; and this information when we think that it (iii) Future months until the next re- is necessary to determine your SSI eli- determination. gibility or payment amount. (3) If we made two redeterminations (f) Your permission to contact finan- which cover the same month, the later cial institutions, and the permission of redetermination is the one we apply to anyone whose income and resources we that month. consider as being available to you, i.e., [47 FR 3103, Jan. 22, 1982, as amended at 50 a deemor (see §§ 416.1160, 416.1202, FR 48570, Nov. 26, 1985; 58 FR 64893, Dec. 10, 416.1203, and 416.1204), remains in effect 1993] until a terminating event occurs. The following terminating events only REASONS WHY YOU MAY NOT GET SSI apply prospectively and do not invali- BENEFITS FOR WHICH YOU ARE OTHER- date the permission for past periods. WISE ELIGIBLE (1) You cancel your permission in writing and provide the writing to us. § 416.207 You do not give us permission to contact financial institu- (2) The deemor cancels their permis- tions. sion in writing and provides the writing to us. (a) To be eligible for SSI payments (3) The basis on which we consider a you must give us permission to contact deemor’s income and resources avail- any financial institution and request any financial records that financial in- able to you ends, e.g. when spouses sep- stitution may have about you. You arate or divorce or a child attains age must give us this permission when you 18. apply for SSI payments or when we ask (4) Your application for SSI is denied, for it at a later time. You must also and the denial is final. A denial is final provide us with permission from any- when made, unless you appeal the de- one whose income and resources we nial timely as described in §§ 416.1400 consider as being available to you, i.e., through 416.1499. deemors (see §§ 416.1160, 416.1202, (5) You are no longer eligible for SSI 416.1203, and 416.1204). as described in §§ 416.1331 through (b) Financial institution means any: 416.1335. (1) Bank, (g) If you don’t give us permission to (2) Savings bank, contact any financial institution and (3) Credit card issuer, request any financial records about (4) Industrial loan company, you when we think it is necessary to (5) Trust company, determine your SSI eligibility or pay- (6) Savings association, ment amount, or if you cancel the per- (7) Building and loan, mission, you cannot be eligible for SSI (8) Homestead association, payments. Also, except as noted in (9) Credit union, paragraph (h), if anyone whose income (10) Consumer finance institution, or and resources we consider as being (11) Any other financial institution available to you (see §§ 416.1160, 416.1202, as defined in section 1101(1) of the 416.1203, and 416.1204) doesn’t give us Right to Financial Privacy Act. permission to contact any financial in- (c) Financial record means an original stitution and request any financial of, a copy of, or information known to records about that person when we have been derived from any record held think it is necessary to determine your by the financial institution pertaining eligibility or payment amount, or if

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that person cancels the permission, you may be eligible to receive from a you cannot be eligible for SSI pay- fund established by a State to aid vic- ments. This means that if you are ap- tims of crime. (See § 416.1124(c)(17).) plying for SSI payments, you cannot (c) Our notice to you. We will give you receive them. If you are receiving SSI a dated, written notice that will tell payments, we will stop your payments. you about any other benefits that we (h) You may be eligible for SSI pay- think you are likely to be eligible for. ments if there is good cause for your In addition, the notice will explain being unable to obtain permission for that your eligibility for SSI benefits us to contact any financial institution will be affected if you do not apply for and request any financial records about those other benefits. someone whose income and resources (d) What you must do to apply for other we consider as being available to you benefits. In order to apply for other ben- (see §§ 416.1160, 416.1202, 416.1203, and efits, you must file any required appli- 416.1204). cations and do whatever else is needed (1) Good cause exists if permission so that your eligibility for the other cannot be obtained from the individual benefits can be determined. For exam- and there is evidence that the indi- ple, if any documents (such as a copy of vidual is harassing you, abusing you, a birth certificate) are required in ad- or endangering your life. dition to the application, you must (2) Good cause may exist if an indi- submit them. vidual other than one listed in para- (e) What happens if you do not apply graph (h)(3) of this section refuses to for the other benefits. (1) If you do not provide permission and: you acted in apply for the other benefits within 30 good faith to obtain permission from days from the day that you receive our the individual but were unable to do so written notice, you are not eligible for through no fault of your own, or you SSI benefits. This means that if you cooperated with us in our efforts to ob- are applying for SSI benefits, you can- tain permission. not receive them. If you are receiving (3) Good cause does not apply if the SSI benefits, your SSI benefits will individual is your representative payee stop. In addition, you will have to and your legal guardian, if you are a repay us for any SSI benefits that you minor child and the individual is your received beginning with the month representative payee and your custo- that you received our written notice. dial parent, or if you are an alien and We assume (unless you prove other- the individual is your sponsor or the wise) that you received our written no- sponsor’s living-with spouse. tice 5 days after the date shown on the [68 FR 53508, Sept. 11, 2003] notice. We will also find that you are not eligible for SSI benefits if you file § 416.210 You do not apply for other the required application for other bene- benefits. fits but do not take other necessary (a) General rule. You are not eligible steps to obtain them. for SSI benefits if you do not apply for (2) We will not find you ineligible for all other benefits for which you may be SSI benefits if you have a good reason eligible. for not applying for the other benefits (b) What ‘‘other benefits’’ includes. within the 30-day period or taking ‘‘Other benefits’’ includes any pay- other necessary steps to obtain them. ments for which you can apply that are In determining whether a good reason available to you on an ongoing or one- exists, we will take into account any time basis of a type that includes an- physical, mental, educational, or lin- nuities, pensions, retirement benefits, guistic limitations (including any lack or disability benefits. For example, of facility with the English language) ‘‘other benefits’’ includes veterans’ which may have caused you to fail to compensation and pensions, workers’ apply for other benefits. You may have compensation payments, Social Secu- a good reason if, for example— rity insurance benefits and unemploy- (i) You are incapacitated (because of ment insurance benefits. ‘‘Other bene- illness you were not able to apply); or fits’’ for which you are required to (ii) It would be useless for you to apply do not include payments that apply (you once applied for the benefits

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and the reasons why you were turned a month in a public institution that is down have not changed). a medical treatment facility where a [47 FR 3103, Jan. 22, 1982, as amended at 50 substantial part (more than 50 percent) FR 5573, Feb. 11, 1985; 50 FR 14211, Apr. 11, of the cost of your care is paid by a 1985; 59 FR 1635, Jan. 12, 1994; 61 FR 1712, Jan. combination of Medicaid payments and 23, 1996] payments made under a health insurance policy issued by a private provider § 416.211 You are a resident of a public of such insurance; or institution. (ii) You reside for part of a month in (a) General rule. (1) Subject to the ex- a public institution and the rest of the ceptions described in paragraphs (b), month in a public institution or pri- (c), and (d) of this section and § 416.212, vate medical treatment facility where you are not eligible for SSI benefits for Medicaid pays a substantial part (more any month throughout which you are a than 50 percent) of the cost of your resident of a public institution as de- care; you are a child under the age of 18 fined in § 416.201. In addition, if you are residing for part of a month in a public a resident of a public institution when institution and the rest of the month you apply for SSI benefits and meet all in a public institution or private med- other eligibility requirements, you ical treatment facility where a sub- cannot be eligible for payment of bene- stantial part (more than 50 percent) of fits until the first day of the month fol- the cost of your care is paid under a lowing the day of your release from the health insurance policy issued by a pri- institution. vate provider of such insurance; or you (2) By throughout a month we mean are a child under the age of 18 residing that you reside in an institution as of for part of a month in a public institu- the beginning of a month and stay the tion and the rest of the month in a pub- entire month. If you have been a resi- lic institution or private medical treat- dent of a public institution, you re- ment facility where a substantial part main a resident if you are transferred (more than 50 percent) of the cost of from one public institution to another your care is paid by a combination of or if you are temporarily absent for a Medicaid payments and payments period of not more than 14 consecutive made under a health insurance policy days. A person also is a resident of an issued by a private provider; and institution throughout a month if he (2) You are ineligible in that month or she is born in the institution during for a benefit described in § 416.212 that the month and resides in the institu- is payable to a person temporarily con- tion the rest of the month or resides in fined in a medical treatment facility. the institution as of the beginning of a (c) Exception for publicly operated com- month and dies in the institution dur- munity residences which serve no more ing the month. than 16 residents—(1) General rule. If you (b) Exception—SSI benefits payable at a are a resident of a publicly operated reduced rate. You may be eligible for community residence which serves no SSI benefits at a reduced rate de- more than 16 residents, you may be eli- scribed in § 416.414, if— (1)(i) You reside throughout a month gible for SSI benefits. in a public institution that is a medical (2) Services that a facility must provide treatment facility where Medicaid in order to be a community residence. To (title XIX of the Social Security Act) be a community residence, a facility pays a substantial part (more than 50 must provide food and shelter. In addi- percent) of the cost of your care; you tion, it must make available some are a child under the age of 18 residing other services. For example, the other throughout a month in a public insti- services could be— tution that is a medical treatment fa- (i) Social services; cility where a substantial part (more (ii) Help with personal living activi- than 50 percent) of the cost of your ties; care is paid under a health insurance (iii) Training in socialization and life policy issued by a private provider of skills; or such insurance; or, you are a child (iv) Providing occasional or inci- under the age of 18 residing throughout dental medical or remedial care.

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(3) Serving no more than 16 residents. A not in the shelter throughout the month of community residence serves no more March, you are eligible to receive your ben- than 16 residents if— efit for March without having this month (i) It is designed and planned to serve count towards the 6-month period. The last no more than 16 residents, or the de- full month throughout which you reside in the shelter is September 1988. Therefore, if sign and plan were changed to serve no you meet all eligibility requirements, you more than 16 residents; and will also be paid benefits for April through (ii) It is in fact serving 16 or fewer September (6 months during the 9-month pe- residents. riod September 1988 back through January (4) Publicly operated. A community 1988). If you are otherwise eligible, you will residence is publicly operated if it is receive your SSI benefit for October when operated or controlled by the Federal you left the shelter, since you were not a government, a State, or a political sub- resident of the shelter throughout that division of a State such as a city or month. county. [47 FR 3103, Jan. 22, 1982, as amended at 50 (5) Facilities which are not a publicly FR 51518, Dec. 18, 1985; 51 FR 13492, Apr. 21, operated community residence. If you live 1986; 51 FR 17332, May 12, 1986; 51 FR 34464, in any of the following facilities, you Sept. 29, 1986; 54 FR 19164, May 4, 1989; 61 FR are not a resident of a publicly oper- 10277, Mar. 13, 1996; 62 FR 1055, Jan. 8, 1997; 64 ated community residence: FR 31972, June 15, 1999; 72 FR 50874, Sept. 5, (i) A residential facility which is on 2007] the grounds of or next to a large institution or multipurpose complex; § 416.212 Continuation of full benefits (ii) An educational or vocational in certain cases of medical confinement. training institution whose main function is to provide an approved, accred- (a) Benefits payable under section ited, or recognized program to some or 1611(e)(1)(E) of the Social Security Act. all of those who live there; Subject to eligibility and regular com- (iii) A jail or other facility where the putation rules (see subparts B and D of personal freedom of anyone who lives this part), you are eligible for the bene- there is restricted because that person fits payable under section 1611(e)(1)(E) is a prisoner, is being held under court of the Social Security Act for up to 2 order, or is being held until charges full months of medical confinement against that person are disposed of; or during which your benefits would oth- (iv) A medical treatment facility (de- erwise be suspended because of resi- fined in § 416.201). dence in a public institution or reduced (d) Exception for residents of public because of residence in a public or pri- emergency shelters for the homeless. For vate institution where Medicaid pays a months after December 1987, if you are substantial part (more than 50 percent) a resident of a public emergency shel- of the cost of your care or, if you are a ter for the homeless (defined in child under age 18, reduced because of § 416.201) you may be eligible for SSI residence in a public or private institu- benefits for any 6 months throughout tion which receives payments under a which you reside in a shelter in any 9- health insurance policy issued by a pri- month period (defined in § 416.201). The vate provider, or a combination of 6 months do not need to be consecutive Medicaid and a health insurance policy and we will not count as part of the 6 months any prior months throughout issued by a private provider, pay a sub- which you lived in the shelter but did stantial part (more than 50 percent) of not receive SSI benefits. We will also the cost of your care if— not count any months throughout (1) You were eligible under either sec- which you lived in the shelter and re- tion 1619(a) or section 1619(b) of the So- ceived SSI benefits prior to January cial Security Act in the month before 1988. the first full month of residence in an institution; Example: You are receiving SSI benefits when you lose your home and enter a public (2) The institution agrees that no emergency shelter for the homeless on portion of these benefits will be paid to March 10, 1988. You remain a resident of a or retained by the institution except- shelter until October 10, 1988. Since you were ing nominal sums for reimbursement of

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the institution for any outlay for a re- section to be the date we receive it or, cipient’s personal needs (e.g., personal if mailed, the date of the postmark. hygiene items, snacks, candy); and (c) Prohibition against using benefits (3) The month of your institutional- for current maintenance. If the recipient ization is one of the first 2 full months is a resident in an institution, the re- of a continuous period of confinement. cipient or his or her representative (b) Benefits payable under section payee will not be permitted to pay the 1611(e)(1)(G) of the Social Security Act. (1) institution any portion of benefits pay- Subject to eligibility and regular com- able under section 1611(e)(1)(G) except- putation rules (see subparts B and D of ing nominal sums for reimbursement of this part), you are eligible for the bene- the institution for any outlay for the fits payable under section 1611(e)(1)(G) recipient’s personal needs (e.g., per- of the Social Security Act for up to 3 sonal hygiene items, snacks, candy). If full months of medical confinement the institution is the representative during which your benefits would oth- payee, it will not be permitted to re- erwise be suspended because of resi- tain any portion of these benefits for dence in a public institution or reduced the cost of the recipient’s current because of residence in a public or pri- maintenance excepting nominal sums vate institution where Medicaid pays a for reimbursement for outlays for the substantial part (more than 50 percent) recipient’s personal needs. of the cost of your care or, if you are a [61 FR 10277, Mar. 13, 1996, as amended at 62 child under age 18, reduced because of FR 1055, Jan. 8, 1997; 72 FR 50874, Sept. 5, residence in a public or private institu- 2007] tion which receives payments under a health insurance policy issued by a pri- § 416.214 You are disabled and drug vate provider, or a combination of addiction or alcoholism is a contrib- Medicaid and a health insurance policy uting factor material to the deter- issued by a private provider, pay a sub- mination of disability. stantial part (more than 50 percent) of (a) If you do not comply with treatment the cost of your care if— requirements. If you receive benefits be- (i) You were eligible for SSI cash cause you are disabled and drug addic- benefits and/or federally administered tion or alcoholism is a contributing State supplementary payments for the factor material to the determination of month immediately prior to the first disability (see § 416.935), you must avail full month you were a resident in such yourself of any appropriate treatment institution; for your drug addiction or alcoholism (ii) The month of your institutional- at an approved institution or facility ization is one of the first 3 full months when this treatment is available and of a continuous period of confinement; make progress in your treatment. You (iii) A physician certifies, in writing, are not eligible for SSI benefits begin- that you are not likely to be confined ning with the month after the month for longer than 90 full consecutive days you are notified in writing that we de- following the day you entered the in- termined that you have failed to com- stitution, and the certification is sub- ply with the treatment requirements. mitted to SSA no later than the day of If your benefits are suspended because discharge or the 90th full day of con- you failed to comply with treatment finement, whichever is earlier; and requirements, you will not be eligible (iv) You need to pay expenses to to receive benefits until you have dem- maintain the home or living arrange- onstrated compliance with treatment ment to which you intend to return for a period of time, as specified in after institutionalization and evidence § 416.1326. The rules regarding treat- regarding your need to pay these ex- ment for drug addiction and alcoholism penses is submitted to SSA no later are in subpart I of this part. than the day of discharge or the 90th (b) If you previously received 36 months full day of confinement, whichever is of SSI or Social Security benefits. You are earlier. not eligible for SSI benefits by reason (2) We will determine the date of sub- of disability on the basis of drug addic- mission of the evidence required in tion or alcoholism as described in paragraphs (b)(1) (iii) and (iv) of this § 416.935 if—

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(1) You previously received a total of assigned to permanent duty ashore 36 months of SSI benefits on the basis overseas. of disability and drug addiction or al- (b) Living with. You are considered to coholism was a contributing factor ma- be living with your parent who is a terial to the determination of dis- member of the armed forces if— ability for months beginning March (1) You physically live with the par- 1995, as described in § 416.935. Not in- ent who is a member of the armed cluded in these 36 months are months forces overseas; or before March 1995 and months for (2) You are not living in the same which your benefits were suspended for household as the military parent but any reason. The 36-month limit is no your presence overseas is due to his or longer effective for months beginning her permanent duty assignment. after September 2004; or (2) You previously received a total of [58 FR 4897, Jan. 19, 1993; 58 FR 9597, Feb. 22, 36 months of Social Security benefits 1993, as amended at 59 FR 41400, Aug. 12, 1994. Redesignated at 61 FR 10277, Mar. 13, 1996; 70 counted in accordance with the provi- FR 61366, Oct. 24, 2005] sions of §§ 404.316, 404.337, and 404.352 by reason of disability on the basis of drug ELIGIBILITY FOR INCREASED BENEFITS addiction or alcoholism as described in BECAUSE OF ESSENTIAL PERSONS § 404.1535. [60 FR 8149, Feb. 10, 1995. Redesignated at 61 § 416.220 General. FR 10277, Mar. 13, 1996] If you are a qualified individual and have an essential person you may be el- § 416.215 You leave the United States. igible for increased benefits. You may You lose your eligibility for SSI ben- be a qualified individual and have an efits for any month during all of which essential person only if you received you are outside of the United States. If benefits under a State assistance plan you are outside of the United States approved under title I, X, XIV, or XVI for 30 days or more in a row, you are (AABD) of the Act for December 1973. not considered to be back in the United Definitions and rules that apply to States until you are back for 30 days in qualified individuals and essential per- a row. You may again be eligible for sons are discussed in §§ 416.221 through SSI benefits in the month in which the 416.223. 30 days end if you continue to meet all other eligibility requirements. § 416.221 Who is a qualified individual. By United States, we mean the 50 You are a qualified individual if— States, the District of Columbia, and (a) You received aid or assistance for the Northern Mariana Islands. the month of December 1973 under a [47 FR 3103, Jan. 22, 1982. Redesignated at 61 State plan approved under title I, X, FR 10277, Mar. 13, 1996] XIV, or XVI (AABD) of the Act; (b) The State took into account the § 416.216 You are a child of armed needs of another person in deciding forces personnel living overseas. your need for the State assistance for (a) General rule. For purposes of this December 1973; part, overseas means any location out- (c) That other person was living in side the United States as defined in your home in December 1973; and § 416.215; i.e., the 50 States, the District (d) That other person was not eligible of Columbia and the Northern Mariana for State assistance for December 1973. Islands. You may be eligible for SSI benefits if you live overseas and if— § 416.222 Who is an essential person. (1) You are a child as described in (a) General rule. A person is an essen- § 416.1856; tial person if— (2) You are a citizen of the United (1) That person has continuously States; and lived in the home of the same qualified (3) You are living with a parent as de- individual since December 1973; scribed in § 416.1881 who is a member of (2) That person was not eligible for the armed forces of the United States State assistance for December 1973;

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(3) That person was never eligible for (b) Income and resource limits. If you SSI benefits in his or her own right or are a qualified individual, we consider as an eligible spouse; and the income and resources of an essen- (4) There are State records which tial person in your home to be yours. show that under a State plan in effect You are eligible for increased SSI bene- for June 1973, the State took that per- fits if— son’s needs into account in deter- (1) Your resources which are counted mining the qualified individual’s need do not exceed the limit for SSI eligi- for State assistance for December 1973. bility purposes (see subpart L); and Any person who meets these require- (2) Your income which is counted for ments is an essential person. This SSI eligibility purposes (see subpart K) means that the qualified individual can does not exceed the sum of— have more than one essential person. (i) The SSI Federal benefit rate (see (b) Absence of an essential person from the home of a qualified individual. An es- subpart D); and sential person may be temporarily ab- (ii) The proper number of essential sent from the house of a qualified indi- person increments (for the value of an vidual and still be an essential person. essential person increment see subpart For example, the essential person could D). One essential person increment is be hospitalized. We consider an absence added to the SSI Federal benefit rate to temporary if— for each essential person in your home. (1) The essential person intends to re- (c) Excluding the income and resources turn; of an essential person. (1) While an es- (2) The facts support this intention; sential person increment increases (3) It is likely that he or she will re- your SSI Federal benefit rate, that per- turn; and son’s income which we consider to be (4) The absence is not longer than 90 yours may actually result in a lower days. monthly payment to you. We will dis- (c) Absence of a qualified individual cuss this with you and explain how an from his or her home. You may be tem- essential person affects your benefit. If porarily absent from your home and you choose to do so, you may ask us in still have an essential person. For ex- writing to determine your eligibility ample, you could be hospitalized. We consider an absence to be temporary without your essential person or, if you if— have more than one essential person, (1) You intend to return; without one or more of your essential (2) The facts support your intention; persons. We will then figure the (3) It is likely that you will return; amount of your SSI benefits without and counting as your own income and re- (4) Your absence does not exceed six sources of the essential persons that months. you specify and we will end the essen- (d) Essential person becomes eligible for tial person increment for those essen- SSI benefits. If an essential person be- tial persons. You should consider this comes eligible for SSI benefits, he or carefully because once you make the she will no longer be an essential per- request, you cannot withdraw it. We son beginning with the month that he will make the change beginning with or she becomes eligible for the SSI ben- the month following the month that efits. you make the request. § 416.223 What happens if you are a (2) We will not include the income qualified individual. and resources of the essential person if the person’s income or resources would (a) Increased SSI benefits. We may increase the amount of your SSI benefits cause you to lose your eligibility. The if— loss of the essential person increment (1) You are a qualified individual; and will be permanent. (2) You have one or more essential persons in your home. In subpart D, we explain how these increased benefits are calculated.

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§ 416.250 Experimental, pilot, and dem- you are placed in a control group which onstration projects in the SSI pro- is not subject to the alternative re- gram. quirements, limitations, or conditions) (a) Authority and purpose. Section we will continue to apply the current 1110(b) of the Act authorizes the Com- requirements, limitations or condi- missioner to develop and conduct ex- tions of eligibility to you. perimental, pilot, and demonstration (2) Alternative provisions or methods of projects to promote the objectives or administration. The alternative require- improve the administration of the SSI ments, limitations or conditions that program. These projects will test the apply to you in an experimental, pilot, advantages of altering certain require- or demonstration project may include ments, conditions, or limitations for any of the factors needed for aged, recipients and test different adminis- blind, or disabled persons to be eligible trative methods that apply to title XVI for SSI benefits. Experiments that we applicants and recipients. conduct will include, to the extent fea- (b) Altering benefit requirements, limita- sible, applicants and recipients who are tions or conditions. Notwithstanding under age 18 as well as adults and will any other provision of this part, the include projects to ascertain the feasi- Commissioner is authorized to waive bility of treating drug addicts and alco- any of the requirements, limitations or holics. conditions established under title XVI (d) Selection of participants. Participa- of the Act and impose additional re- tion in the SSI project will be on a vol- quirements, limitations or conditions untary basis. The voluntary written for the purpose of conducting experi- consent necessary in order to partici- mental, pilot, or demonstration pate in any experimental, pilot, or projects. The projects will alter the demonstration project may be revoked provisions that currently apply to ap- by the participant at any time. plicants and recipients to test their ef- (e) Duration of experimental, pilot, and fect on the program. If, as a result of demonstration projects. A notice describ- participation in a project under this ing each experimental, pilot, or dem- section, a project participant becomes onstration project will be published in ineligible for Medicaid benefits, the the FEDERAL REGISTER before each Commissioner shall make arrange- project is placed in operation. Each ex- ments to extend Medicaid coverage to perimental, pilot and demonstration such participant and shall reimburse project will have a termination date the States for any additional expenses (up to 10 years from the start of the incurred due to such continued partici- project). pation. [48 FR 7576, Feb. 23, 1983, as amended at 52 (c) Applicability and scope—(1) Partici- FR 37605, Oct. 8, 1987; 62 FR 38454, July 18, pants and nonparticipants. If you are se- 1997] lected to participate in an experimental, pilot, or demonstration SPECIAL PROVISIONS FOR PEOPLE WHO project, we may temporarily set aside WORK DESPITE A DISABLING IMPAIRMENT one or more current requirements, limitations or conditions of eligibility and § 416.260 General. apply alternative provisions to you. We The regulations in §§ 416.260 through may also modify current methods of 416.269 describe the rules for deter- administering title XVI as part of a mining eligibility for special SSI cash project and apply alternative proce- benefits and for special SSI eligibility dures or policies to you. The alter- status for an individual who works de- native provisions or methods of admin- spite a disabling impairment. Under istration used in the projects will not these rules an individual who works de- substantially reduce your total income spite a disabling impairment may qual- or resources as a result of your partici- ify for special SSI cash benefits and in pation or disadvantage you in compari- most cases for Medicaid benefits when son to current provisions, policies, or his or her gross earned income exceeds procedures. If you are not selected to the applicable dollar amount which or- participate in the experimental, or dinarily represents SGA described in pilot, or demonstration projects (or if § 416.974(b)(2). The calculation of this

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gross earned income amount, however, (a) You were eligible to receive a reg- is not to be considered an actual SGA ular SSI benefit or a federally adminis- determination. Also, for purposes of de- tered State supplementary payment termining eligibility or continuing eli- (see § 416.2001) in a month before the gibility for Medicaid benefits, a blind month for which we are determining or disabled individual (no longer eligi- your eligibility for special SSI cash ble for regular SSI benefits or for spe- benefits as long as that month was not cial SSI cash benefits) who, except for in a prior period of eligibility which earnings, would otherwise be eligible has terminated according to §§ 416.1331 for SSI cash benefits may be eligible through 416.1335; for a special SSI eligibility status (b) In the month for which we are under which he or she is considered to making the determination, your gross be a blind or disabled individual receiv- earned income exceeds the amount or- ing SSI benefits. We explain the rules dinarily considered to represent SGA for eligibility for special SSI cash ben- under § 416.974(b)(2); efits in §§ 416.261 and 416.262. We explain (c) You continue to have a disabling the rules for the special SSI eligibility impairment; status in §§ 416.264 through 416.269. (d) If your disability is based on a determination that drug addiction or al- [59 FR 41403, Aug. 12, 1994] coholism is a contributing factor mate- § 416.261 What are special SSI cash rial to the determination of disability benefits and when are they payable. as described in § 416.935, you have not yet received SSI cash benefits, special Special SSI cash benefits are benefits SSI cash benefits, or special SSI eligi- that we may pay you in lieu of regular bility status for a total of 36 months, SSI benefits because your gross earned or Social Security benefit payments income in a month of initial eligibility when treatment was available for a for regular SSI benefits exceeds the total of 36 months; and amount ordinarily considered to rep- (e) You meet all the nondisability re- resent SGA under § 416.974(b)(2). You quirements for eligibility for SSI bene- must meet the eligibility requirements fits (see § 416.202). in § 416.262 in order to receive special SSI cash benefits. Special SSI cash We will follow the rules in this subpart benefits are not payable for any month in determining your eligibility for spe- in which your countable income ex- cial SSI cash benefits. ceeds the limits established for the SSI [47 FR 15324, Apr. 9, 1982, as amended at 59 program (see subpart K of this part). If FR 41404, Aug. 12, 1994; 60 FR 8149, Feb. 10, you are eligible for special SSI cash 1995; 64 FR 31972, June 15, 1999] benefits, we consider you to be a disabled individual receiving SSI benefits § 416.263 No additional application for purposes of eligibility for Medicaid. needed. We compute the amount of special SSI We do not require you to apply for cash benefits according to the rules in special cash benefits nor is it necessary subpart D of this part. If your State for you to apply to have the special SSI makes supplementary payments which eligibility status determined. We will we administer under a Federal-State make these determinations automati- agreement, and if your State elects to cally. supplement the special SSI cash bene- [47 FR 15324, Apr. 9, 1982] fits, the rules in subpart T of this part will apply to these payments. § 416.264 When does the special SSI eligibility status apply. [47 FR 15324, Apr. 9, 1982, as amended at 50 FR 46763, Nov. 13, 1985; 59 FR 41403, Aug. 12, The special SSI eligibility status ap- 1994] plies for the purposes of establishing or maintaining your eligibility for Med- § 416.262 Eligibility requirements for icaid. For these purposes we continue special SSI cash benefits. to consider you to be a blind or dis- You are eligible for special SSI cash abled individual receiving benefits even benefits if you meet the following re- though you are in fact no longer requirements— ceiving regular SSI benefits or special

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SSI cash benefits. You must meet the would be available to you if you did not eligibility requirements in § 416.265 in have those earnings (see § 416.269). order to qualify for the special SSI eli- [47 FR 15324, Apr. 9, 1982, as amended at 59 gibility status. Special SSI eligibility FR 41404, Aug. 12, 1994; 59 FR 49291, Sept. 27, status also applies for purposes of re- 1994; 60 FR 8149, Feb. 10, 1995] acquiring status as eligible for regular SSI benefits or special SSI cash bene- § 416.266 Continuation of SSI status fits. for Medicaid [59 FR 41404, Aug. 12, 1994] If we stop your benefits because of your earnings and you are potentially § 416.265 Requirements for the special eligible for the special SSI eligibility SSI eligibility status. status you will continue to be consid- In order to be eligible for the special ered an SSI recipient for purposes of SSI eligibility status, you must have eligibility for Medicaid during the time been eligible to receive a regular SSI it takes us to determine whether the benefit or a federally administered special eligibility status applies to State supplementary payment (see you. § 416.2001) in a month before the month [47 FR 15324, Apr. 9, 1982] for which we are making the special SSI eligibility status determination. § 416.267 General. The month you were eligible for a reg- We determine whether the special ular SSI benefit or a federally adminis- SSI eligibility status applies to you by tered State supplementary payment verifying that you continue to be blind may not be in a prior period of eligi- or have a disabling impairment by ap- bility which has been terminated ac- plying the rules in subpart I of this cording to §§ 416.1331 through 416.1335. part, and by following the rules in this For periods prior to May 1, 1991, you subpart to determine whether you must be under age 65. Also, we must es- meet the requirements in § 416.265(b). If tablish that: you do not meet these requirements we (a) You are blind or you continue to determine that the special eligibility have a disabling impairment which, if status does not apply. If you meet drug addiction or alcoholism is a con- these requirements, then we apply spe- tributing factor material to the deter- cial rules to determine if you meet the mination of disability as described in requirements of § 416.265 (c) and (d). If § 416.935, has not resulted in your re- for the period being evaluated, you ceiving SSI cash benefits, special SSI meet all of the requirements in § 416.265 cash benefits, or special SSI eligibility we determine that the special status status for a total of 36 months, or So- applies to you. cial Security benefit payments when treatment was available for a total of [47 FR 15324, Apr. 9, 1982] 36 months; § 416.268 What is done to determine if (b) Except for your earnings, you you must have Medicaid in order to meet all the nondisability require- work. ments for eligibility for SSI benefits (see § 416.202); For us to determine that you need Medicaid benefits in order to continue (c) The termination of your eligi- to work, you must establish: bility for Medicaid would seriously in- (a) That you are currently using or hibit your ability to continue working have received services which were paid (see § 416.268); and for by Medicaid during the period (d) Your earnings after the exclusions which began 12 months before our first in § 416.1112(c) (6), (8), and (9) are not contact with you to discuss this use; or sufficient to allow you to provide your- (b) That you expect to use these serv- self with a reasonable equivalent of the ices within the next 12 months; or benefits (SSI benefits, federally admin- (c) That you would need Medicaid to istered State supplementary payments, pay for unexpected medical expenses in Medicaid, and publicly-funded attend- the next 12 months. ant care services, including personal care assistance under § 416.269(d)) which [59 FR 41404, Aug. 12, 1994]

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§ 416.269 What is done to determine (i) The amount determined under whether your earnings are too low paragraph (b)(1) of this section that to provide comparable benefits and would reduce to zero the Federal SSI services you would receive in the benefit and State supplementary pay- absence of those earnings. ment for your actual living arrange- (a) What we determine. We must deter- ment; mine whether your earnings are too (ii) The average Medicaid expendi- low to provide you with benefits and tures for your State of residence under services comparable to the benefits and paragraph (b)(2) of this section or, if services you would receive if you did higher, your actual medical expendi- not have those earnings (see tures in the appropriate 12-month pe- § 416.265(d)). riod; (b) How the determination is made. In (iii) Any amounts excluded from your determining whether your earnings are income as impairment-related work ex- too low to provide you with benefits penses (see § 416.1112(c)(6)), work ex- and services comparable to the benefits penses of the blind (see § 416.1112(c)(8)), and services you would receive if you and income used or set aside for use did not have those earnings, we com- under an approved plan for achieving pare your anticipated gross earnings self support (see § 416.1112(c)(9)); and (or a combination of anticipated and (iv) the value of any publicly-funded actual gross earnings, as appropriate) attendant care services as described in for the 12-month period beginning with paragraph (d) of this section (including the month for which your special SSI personal care assistance). eligibility status is being determined (2) If you have already completed the to a threshold amount for your State 12-month period for which we are deter- of residence. This threshold amount mining your eligibility, we will con- consists of the sum for a 12-month pe- sider only the expenditures made in riod of two items, as follows: that period. (1) The amount of gross earnings in- (d) Attendant care services. Expendi- cluding amounts excluded under tures for attendant care services (in- § 416.1112(c) (4), (5) and (7) that would cluding personal care assistance) which reduce to zero the Federal SSI benefit would be available to you in the ab- and the optional State supplementary sence of earnings that make you ineli- payment for an individual with no gible for SSI cash benefits will be con- other income living in his or her own sidered in the individualized threshold household in the State where you re- (as described in paragraph (c)(1) of this side. This amount will vary from State section) if we establish that they are: to State depending on the amount of (1) Provided by a paid attendant; the State supplementary payment; and (2) Needed to assist with work-re- (2) The average expenditures for Med- lated and/or personal functions; and icaid benefits for disabled and blind (3) Paid from Federal, State, or local SSI cash recipients, including recipi- funds. ents of federally administered State (e) Annual update of information. The supplementary payments only, in your threshold amounts used in determina- State of residence. tions of sufficiency of earnings will be (c) How the eligibility requirements are based on information and data updated met. (1) You meet the requirements in no less frequently than annually. § 416.265(d) if the comparison shows that your gross earnings are equal to [59 FR 41404, Aug. 12, 1994; 59 FR 49291, Sept. or less than the applicable threshold 27, 1994] amount for your State, as determined under paragraphs (b) (1) and (2) of this Subpart C—Filing of Applications section. However, if the comparison shows that these earnings exceed the AUTHORITY: Secs. 702(a)(5), 1611, and 1631 applicable threshold amount for your (a), (d), and (e) of the Social Security Act (42 State, we will establish (and use in a U.S.C. 902(a)(5), 1382, and 1383 (a), (d), and second comparison) an individualized (e)). threshold taking into account the total SOURCE: 45 FR 48120, July 18, 1980, unless amount of: otherwise noted.

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GENERAL PROVISIONS (3) You have been receiving benefits because you are disabled or blind and § 416.301 Introduction. you are 65 years old before the date we This subpart contains the rules for determine that you are no longer blind filing a claim for supplemental secu- or disabled. rity income (SSI) benefits. It tells you (4) A redetermination of your eligi- what an application is, who may sign bility is being made and it is found it, who must file one to be eligible for that you were not eligible for benefits benefits, the period of time it is in ef- during any part of a period for which fect, and how it may be withdrawn. It we are making a redetermination but also tells you when a written state- you currently meet the requirements ment or an oral inquiry may be consid- for eligibility; ered to establish an application filing (5) You are notified that your pay- date. ments of SSI benefits will be stopped § 416.302 Definitions. because you are no longer eligible and you again meet the requirements for For the purpose of this subpart— eligibility before your appeal rights are Benefits means any payments made exhausted. under the SSI program. SSI benefits also include any federally administered [45 FR 48120, July 18, 1980, as amended at 60 State supplementary payments. FR 16374, Mar. 30, 1995; 64 FR 31972, June 15, Claimant means the person who files 1999] an application for himself or herself or the person on whose behalf an applica- APPLICATIONS tion is filed. We or us means the Social Security § 416.310 What makes an application a Administration (SSA). claim for benefits. You or your means the person who An application will be considered a applies for benefits, the person for claim for benefits, if the following re- whom an application is filed or anyone quirements are met: who may consider applying for bene- (a) An application form prescribed by fits. us must be filled out. (b) be filed at a social security office, § 416.305 You must file an application to receive supplemental security in- at another Federal or State office we come benefits. have designated to receive applications for us, or with a person we have au- (a) General rule. In addition to meeting other requirements, you must file thorized to receive applications for us. an application to become eligible to re- See § 416.325. ceive benefits. If you believe you may (c) The claimant or someone who be eligible, you should file an applica- may sign an application for the claim- tion as soon as possible. Filing an ap- ant must sign the application. See plication will— §§ 416.315 and 416.320. (1) Permit us to make a formal deter- (d) The claimant must be alive at the mination whether or not you are eligi- time the application is filed. See ble to receive benefits; §§ 416.340, 416.345, and 416.351 for excep- (2) Assure that you receive benefits tions. for any months you are eligible to receive payment; and [45 FR 48120, July 18, 1980, as amended at 59 FR 44926, Aug. 31, 1994] (3) Give you the right to appeal if you disagree with the determination. § 416.315 Who may sign an application. (b) Exceptions. You need not file a new application if— We will determine who may sign an (1) You have been receiving benefits application according to the following as an eligible spouse and are no longer rules: living with your husband or wife; (a) If you are 18 years old or over, (2) You have been receiving benefits mentally competent, and physically as an eligible spouse of an eligible indi- able, you must sign your own applica- vidual who has died; tion. If you are 16 years old or older

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and under age 18, you may sign the ap- ing his or her relationship to the plication if you are mentally com- claimant. The statement must also de- petent, have no court appointed rep- scribe the extent to which the person is resentative, and are not in the care of responsible for the care of the claim- any other person or institution. ant. This latter information will not be (b) If the claimant is under age 18, or requested if the application is signed is mentally incompetent, or is phys- by a parent for a child with whom he or ically unable to sign the application, a she is living. If the person signing is court appointed representative or a the manager or principal officer of an person who is responsible for the care institution he or she should show his or of the claimant, including a relative, may sign the application. If the claim- her title. ant is in the care of an institution, the (b) We may, at any time, require ad- manager or principal officer of the in- ditional evidence to establish the au- stitution may sign the application. thority of a person to sign an applica- (c) To prevent a claimant from losing tion for someone else. benefits because of a delay in filing an [45 FR 48120, July 18, 1980, as amended at 51 application when there is a good reason FR 13493, Apr. 21, 1986] why the claimant cannot sign an application, we may accept an application § 416.325 When an application is con- signed by someone other than a person sidered filed. described in this section. (a) General rule. We consider an appli- Example: Mr. Smith comes to a Social Se- cation for SSI benefits filed on the day curity office to file an application for SSI it is received by an employee at any so- disability benefits for Mr. Jones. Mr. Jones, who lives alone, just suffered a heart attack cial security office, by someone at an- and is in the hospital. He asked Mr. Smith, other Federal or State office des- whose only relationship is that of a neighbor ignated to receive applications for us, and friend, to file the application for him. or by a person we have authorized to We will accept an application signed by Mr. receive applications for us. Smith since it would not be possible to have Mr. Jones sign and file the application at (b) Exceptions. (1) When we receive an this time. SSI benefits can be paid starting application that is mailed, we will use with the first day of the month following the the date shown by the United States month the individual first meets all eligi- postmark as the filing date if using the bility requirements for such benefits, includ- date the application is received will re- ing having filed an application. If Mr. Smith could not sign an application for Mr. Jones, sult in a loss of benefits. If the post- a loss of benefits would result if it is later mark is unreadable or there is no post- determined that Mr. Jones is in fact dis- mark, we will use the date the applica- abled. tion is signed (if dated) or 5 days before [45 FR 48120, July 18, 1980, as amended at 51 the day we receive the signed applica- FR 13492, Apr. 21, 1986; 64 FR 31972, June 15, tion, whichever date is later. 1999] (2) We consider an application to be filed on the date of the filing of a writ- § 416.320 Evidence of authority to sign an application for another. ten statement or the making of an oral inquiry under the conditions in (a) A person who signs an application §§ 416.340, 416.345 and 416.350. for someone else will be required to (3) We will establish a ‘‘deemed’’ fil- provide evidence of his or her authority to sign the application for the person ing date of an application in a case of claiming benefits under the following misinformation under the conditions rules: described in § 416.351. The filing date of (1) If the person who signs is a court the application will be a date deter- appointed representative, he or she mined under § 416.351(b). must submit a certificate issued by the [45 FR 48120, July 18, 1980, as amended at 51 court showing authority to act for the FR 13493, Apr. 21, 1986; 59 FR 44926, Aug. 31, claimant. 1994] (2) If the person who signs is not a court appointed representative, he or she must submit a statement describ-

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§ 416.327 Pilot program for photo- fect, you must file a new application graphic identification of disability for benefits. In this case, we can pay benefit applicants in designated ge- you benefits only from the first day of ographic areas. the month following the month that (a) To be eligible for SSI disability or you meet all the requirements based on blindness benefits in the designated the new application. pilot geographic areas during the time [64 FR 31973, June 15, 1999] period of the pilot, you or a person acting on your behalf must give SSA per- § 416.335 Filing in or after the month mission to take your photograph and you meet the requirements for eligi- make this photograph a part of the bility. claims folder. You must give us this When you file an application in the permission when you apply for benefits month that you meet all the other re- and/or when we ask for it at a later quirements for eligibility, the earliest time. Failure to cooperate will result month for which we can pay you bene- in denial of benefits. We will permit an fits is the month following the month exception to the photograph require- you filed the application. If you file an ment when an individual has a sincere application after the month you first religious objection. This pilot will be meet all the other requirements for eli- in effect for a six-month period after gibility, we cannot pay you for the these final rules become effective. month in which your application is (b) Designated pilot geographic areas filed or any months before that month. means: See §§ 416.340, 416.345 and 416.350 on how (1) All SSA field offices in the State a written statement or an oral inquiry of South Carolina. made before the filing of the applica- (2) The Augusta, Georgia SSA field tion form may affect the filing date of office. the application. (3) All SSA field offices in the State of Kansas. [64 FR 31973, June 15, 1999] (4) Selected SSA field offices located in New York City. FILING DATE BASED UPON A WRITTEN STATEMENT OR ORAL INQUIRY [68 FR 23195, May 1, 2003] § 416.340 Use of date of written state- EFFECTIVE FILING PERIOD OF ment as application filing date. APPLICATION We will use the date a written state- § 416.330 Filing before the first month ment, such as a letter, an SSA ques- you meet the requirements for eligi- tionnaire or some other writing, is re- bility. ceived at a social security office, at an- If you file an application for SSI ben- other Federal or State office des- efits before the first month you meet ignated by us, or by a person we have all the other requirements for eligi- authorized to receive applications for bility, the application will remain in us as the filing date of an application effect from the date it is filed until we for benefits, only if the use of that date make a final determination on your ap- will result in your eligibility for addi- plication, unless there is a hearing de- tional benefits. If the written state- cision on your application. If there is a ment is mailed, we will use the date hearing decision, your application will the statement was mailed to us as remain in effect until the hearing deci- shown by a United States postmark. If sion is issued. the postmark is unreadable or there is (a) If you meet all the requirements no postmark, we will use the date the for eligibility while your application is statement is signed (if dated) or 5 days in effect, the earliest month for which before the day we receive the written we can pay you benefits is the month statement, whichever date is later, as following the month that you first the filing date of an application for meet all the requirements. benefits. In order for us to use your (b) If you first meet all the require- written statement to protect your fil- ments for eligibility after the period ing date, the following requirements for which your application was in ef- must be met:

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(a) The written statement shows an claimant’s behalf as described in intent to claim benefits for yourself or § 416.315. for another person. (c) The inquiry, whether in person or (b) You, your spouse or a person who by telephone, is directed to an office or may sign an application for you signs an official described in § 416.310(b). the statement. (d) The claimant or a person on his or (c) An application form signed by you her behalf as described in § 416.315 files or by a person who may sign an appli- an application on a prescribed form cation for you is filed with us within 60 within 60 days after the date of the no- days after the date of a notice we will tice we will send telling of the need to send telling of the need to file an appli- file an application. The notice will say cation. The notice will say that we will that we will make an initial deter- make an initial determination of eligi- mination of eligibility for SSI benefits bility for SSI benefits if an application if an application form is filed within 60 form is filed within 60 days after the days after the date of the notice. (We date of the notice. (We will send the will send the notice to the claimant or, notice to the claimant, or where he or where he or she is a minor or incom- she is a minor or incompetent, to the petent, to the person who made the in- person who gave us the written state- quiry.) ment.) (e)(1) The claimant is alive when the (d)(1) The claimant is alive when the application is filed on a prescribed application is filed on a prescribed form, or form, or (2) If the claimant dies after the oral (2) If the claimant dies after the writ- inquiry is made, the deceased claim- ten statement is filed, the deceased ant’s surviving spouse or parent(s) who claimant’s surviving spouse or par- could be paid the claimant’s benefits ent(s) who could be paid the claimant’s under § 416.542(b), or someone on behalf benefits under § 416.542(b), or someone of the surviving spouse or parent(s) on behalf of the surviving spouse or files an application form. If we learn parent(s) files an application form. If that the claimant has died before the we learn that the claimant has died be- notice is sent or within 60 days after fore the notice is sent or within 60 days the notice but before an application after the notice but before an applica- form is filed, we will send a notice to tion form is filed, we will send a notice such a survivor. The notice will say to such a survivor. The notice will say that we will make an initial deter- that we will make an initial determination of eligibility for SSI benefits mination of eligibility for SSI benefits only if an application form is filed on only if an application form is filed on behalf of the deceased within 60 days behalf of the deceased within 60 days after the date of the notice to the sur- after the date of the notice to the survivor. vivor. [45 FR 48120, July 18, 1980, as amended at 51 [45 FR 48120, July 18, 1980, as amended at 51 FR 13493, Apr. 21, 1986; 58 FR 52912, Oct. 13, FR 13493, Apr. 21, 1986; 58 FR 52912, Oct. 13, 1993] 1993] § 416.350 Treating a title II application § 416.345 Use of date of oral inquiry as as an oral inquiry about SSI bene- application filing date. fits. We will use the date of an oral in- (a) When a person applies for benefits quiry about SSI benefits as the filing under title II (retirement, survivors, or date of an application for benefits only disability benefits) we will explain the if the use of that date will result in requirements for receiving SSI benefits your eligibility for additional benefits and give the person a chance to file an and the following requirements are application for them if— met: (1) The person is within 2 months of (a) The inquiry asks about the claim- age 65 or older or it looks as if the per- ant’s eligibility for SSI benefits. son might qualify as a blind or disabled (b) The inquiry is made by the claim- person, and ant, the claimant’s spouse, or a person (2) It is not clear that the person’s who may sign an application on the title II benefits would prevent him or

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her from receiving SSI or any State filing date based upon her receipt of misin- supplementary benefits handled by the formation. Social Security Administration. Example 2: Mr. Adams resides in a State (b) If the person applying for title II which provides State supplementary pay- benefits does not file an application for ments that are administered by SSA under the SSI program. He telephones a Social Se- SSI on a prescribed form when SSI is curity office and tells an SSA employee that explained to him or her, we will treat he does not have enough income to live on his or her filing of an application for and wants to file for SSI benefits. Mr. Adams title II benefits as an oral inquiry states that his only income is his monthly about SSI, and the date of the title II Social Security benefit check. The SSA em- application form may be used to estab- ployee checks Mr. Adams’ Social Security lish the SSI application date if the re- record and advises him that he is ineligible quirements of § 416.345 (d) and (e) are for SSI benefits based on the amount of his met. monthly Social Security benefit. The employee does not consider whether Mr. Adams would be eligible for State supplementary DEEMED FILING DATE BASED ON payments. Because Mr. Adams was told that MISINFORMATION he would not be eligible for benefits under the SSI program, he does not file an applica- § 416.351 Deemed filing date in a case tion. The employee does not make a record of misinformation. of Mr. Adams’ oral inquiry or take any other (a) General. You may have considered action. A year later, Mr. Adams speaks to a applying for SSI benefits for yourself neighbor who receives the same Social Secu- or for another person, and you may rity benefit amount that Mr. Adams does, have contacted us in writing, by tele- but also receives payments under the SSI phone or in person to inquire about fil- program. Thinking the law may have changed, Mr. Adams recontacts a Social Se- ing an application for these benefits. It curity office and learns from an SSA em- is possible that in responding to your ployee that he would be eligible for State inquiry, we may have given you misin- supplementary payments under the SSI pro- formation about your eligibility for gram and that he could have received these such benefits, or the eligibility of the payments earlier had he filed an application. person on whose behalf you were con- Mr. Adams explains that he did not file an sidering applying for benefits, which application earlier because he was told by an caused you not to file an application at SSA employee that he was not eligible for that time. If this happened, and later SSI benefits. Mr. Adams files an application for the benefits, provides the information re- an application for such benefits is filed quired under paragraph (f) of this section to with us, we may establish an earlier show that an SSA employee provided misin- filing date under this section. formation, and requests a deemed filing date Example 1: Ms. Jones calls a Social Secu- based on the misinformation provided to him rity office to inquire about filing an applica- earlier. tion for SSI benefits. During her conversa- (b) Deemed filing date of an application tion with an SSA employee, she tells the em- based on misinformation. Subject to the ployee about her resources. The SSA employee tells Ms. Jones that because her requirements and conditions in para- countable resources are above the allowable graphs (c) through (g) of this section, limit, she would be ineligible for SSI bene- we may establish a deemed filing date fits. The employee fails to consider certain of an application for SSI benefits under resource exclusions under the SSI program the following provisions. which would have reduced Ms. Jones’ count- (1)(i) If we determine that you failed able resources below the allowable limit, to apply for SSI benefits for yourself making her eligible for benefits. Because Ms. Jones thought that she would be ineligible, because we gave you misinformation she decides not to file an application for SSI about your eligibility for such benefits, benefits. Ms. Jones later reads about re- we will deem an application for such source exclusions under the SSI program. benefits to have been filed with us on She recontacts the Social Security office to the later of— file an SSI application, and alleges that she (A) The date on which the misin- had been previously misinformed about her formation was provided to you; or eligibility for SSI benefits. She files an application for SSI benefits, provides the infor- (B) The date on which you met all of mation required under paragraph (f) of this the requirements for eligibility for section to show that an SSA employee pro- such benefits, other than the require- vided misinformation, and requests a deemed ment of filing an application.

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(ii) Before we may establish a deemed leading, or incomplete in view of the filing date of an application for bene- facts which you gave to the employee, fits for you under paragraph (b)(1)(i) of or of which the employee was aware or this section, you or a person described should have been aware, regarding your in § 416.315 must file an application for particular circumstances, or the par- such benefits. If you die before an ap- ticular circumstances of the person re- plication for the benefits is filed with ferred to in paragraph (b)(2)(i) of this us, we will consider establishing a section. In addition, for us to find that deemed filing date of an application for the information you received was in- such benefits only if a person who complete, the employee must have would be qualified under § 416.542(b) to failed to provide you with the appro- receive any benefits due you, or some- priate, additional information which he one on his or her behalf, files an appli- or she would be required to provide in cation for the benefits. carrying out his or her official duties. (2)(i) If you had authority under (3) The misinformation may have § 416.315 to sign an application for benefits for another person, and we deter- been provided to you orally or in writ- mine that you failed to apply for SSI ing. benefits for that person because we (4) The misinformation must have gave you misinformation about that been provided to you in response to a person’s eligibility for such benefits, specific request by you to us for infor- we will deem an application for such mation about your eligibility for bene- benefits to have been filed with us on fits or the eligibility for benefits of the the later of— person referred to in paragraph (b)(2)(i) (A) The date on which the misin- of this section for which you were con- formation was provided to you; or sidering filing an application. (B) The date on which the person met (d) Evidence that misinformation was all of the requirements for eligibility provided. We will consider the following for such benefits, other than the re- evidence in making a determination quirement of filing an application. under paragraph (b) of this section. (ii) Before we may establish a deemed (1) Preferred evidence. Preferred evi- filing date of an application for bene- dence is written evidence which relates fits for the person under paragraph directly to your inquiry about your eli- (b)(2)(i) of this section, you, such per- gibility for benefits or the eligibility of son, or another person described in another person and which shows that § 416.315 must file an application for we gave you misinformation which such benefits. If the person referred to caused you not to file an application. in paragraph (b)(2)(i) of this section Preferred evidence includes, but is not dies before an application for the bene- limited to, the following— fits is filed with us, we will consider es- (i) A notice, letter, or other docu- tablishing a deemed filing date of an ment which was issued by us and ad- application for such benefits only if a dressed to you; or person who would be qualified under § 416.542(b) to receive any benefits due (ii) Our record of your telephone call, the deceased person, or someone on his letter, or in-person contact. behalf, files an application for the ben- (2) Other evidence. In the absence of efits. preferred evidence, we will consider (c) Requirements concerning the misin- other evidence, including your state- formation. We apply the following re- ments about the alleged misinforma- quirements for purposes of paragraph tion, to determine whether we gave (b) of this section. you misinformation which caused you (1) The misinformation must have not to file an application. We will not been provided to you by one of our em- find that we gave you misinformation, ployees while he or she was acting in however, based solely on your state- his or her official capacity as our em- ments. Other evidence which you pro- ployee. For purposes of this section, an vide or which we obtain must support employee includes an officer of SSA. your statements. Evidence which we (2) Misinformation is information will consider includes, but is not lim- which we consider to be incorrect, mis- ited to, the following—

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(i) Your statements about the alleged (4) Information provided by other misinformation, including statements governmental agencies, e.g., the De- about— partment of Veterans Affairs, the De- (A) The date and time of the alleged partment of Defense, State unemploy- contact(s); ment agencies, and State and local (B) How the contact was made, e.g., governments. by telephone or in person; (f) Claim for benefits based on misin- (C) The reason(s) the contact was formation. You may make a claim for made; benefits based on misinformation at (D) Who gave the misinformation; any time. Your claim must contain in- and formation that will enable us to deter- (E) The questions you asked and the mine if we did provide misinformation facts you gave us, and the questions we to you about your eligibility for SSI asked and the information we gave you benefits, or the eligibility of a person at the time of the contact; on whose behalf you were considering (ii) Statements from others who were applying for benefits, which caused you present when you were given the al- not to file an application for the bene- leged misinformation, e.g., a neighbor fits. Specifically, your claim must be who accompanied you to our office; in writing and it must explain what in- (iii) If you can identify the employee formation was provided; how, when, or the employee can recall your in- and where it was provided and by quiry about benefits— whom; and why the information caused (A) Statements from the employee you not to file an application. If you concerning the alleged contact, includ- give us this information, we will make ing statements about the questions you a determination on such a claim for asked, the facts you gave, the ques- benefits if all of the following conditions the employee asked, and the in- tions are also met. formation provided to you at the time (1) An application for the benefits de- of the alleged contact; and scribed in paragraph (b)(1)(i) or (b)(2)(i) (B) Our assessment of the likelihood of this section is filed with us by some- that the employee provided the alleged one described in paragraph (b)(1)(ii) or misinformation; (b)(2)(ii) of this section, as appropriate. (iv) An evaluation of the credibility The application must be filed after the and the validity of your allegations in alleged misinformation was provided. conjunction with other relevant infor- This application may be— mation; and (i) An application on which we have (v) Any other information regarding made a previous final determination or your alleged contact. decision awarding the benefits, but (e) Information which does not con- only if the claimant continues to be el- stitute satisfactory proof that misinforma- igible for benefits (or again could be el- tion was given. Certain kinds of infor- igible for benefits) based on that appli- mation will not be considered satisfac- cation; tory proof that we gave you misin- (ii) An application on which we have formation which caused you not to file made a previous final determination or an application. Examples of such infor- decision denying the benefits, but only mation include— if such determination or decision is re- (1) General informational pamphlets opened under § 416.1488; or that we issue to provide basic program (iii) A new application on which we information; have not made a final determination or (2) The SSI Benefit Estimate Letter decision. that is based on an individual’s re- (2) The establishment of a deemed fil- ported and projected income and is an ing date of an application for benefits estimate which can be requested at any based on misinformation could result time; in the claimant becoming eligible for (3) General information which we re- benefits or for additional benefits. view or prepare but which is dissemi- (3) We have not made a previous final nated by the media, e.g., radio, tele- determination or decision to which you vision, magazines, and newspapers; and were a party on a claim for benefits

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based on alleged misinformation in- (a) You or a person who may sign an volving the same facts and issues. This application for you signs a written re- provision does not apply, however, if quest for cancellation and files it at a the final determination or decision place described in § 416.325. may be reopened under § 416.1488. (b) You are alive at the time the re- (g) Effective date. This section applies quest for cancellation is filed. only to misinformation which we pro- (c) For a cancellation request re- vided on or after December 19, 1989. In ceived after we have approved the with- addition, this section is effective only drawal, the cancellation request is for benefits payable for months after filed no later than 60 days after the December 1989. date of the notice of approval of the withdrawal request. [59 FR 44926, Aug. 31, 1994]

WITHDRAWAL OF APPLICATION Subpart D—Amount of Benefits

§ 416.355 Withdrawal of an application. AUTHORITY: Secs. 702(a)(5), 1611 (a), (b), (c), (a) Request for withdrawal filed before and (e), 1612, 1617, and 1631 of the Social Se- curity Act (42 U.S.C. 902(a)(5), 1382 (a), (b), we make a determination. If you make a (c), and (e), 1382a, 1382f, and 1383). request to withdraw your application before we make a determination on § 416.401 Scope of subpart. your claim, we will approve the request This subpart D sets forth basic guide- if the following requirements are met: lines for establishing the amount of (1) You or a person who may sign an monthly benefits payable to an eligible application for you signs a written re- individual or couple (as defined in quest to withdraw the application and § 416.120(c)(5)). This subpart does not files it at a place described in § 416.325. contain provisions with respect to es- (2) You are alive when the request is tablishing the amount of State supple- filed. mentary payments payable in accord- (b) Request for withdrawal filed after a ance with an agreement entered into determination is made. If you make a re- between a State and the Administra- quest to withdraw your application tion under the provisions of subpart T after we make a determination on your of this part. Provisions with respect to claim, we will approve the request if determination and payment of State the following requirements are met: supplementary payments under such (1) The conditions in paragraph (a) of agreements will be administered by the this section are met. Administration in accordance with the (2) Every other person who may lose terms set forth in such agreements. benefits because of the withdrawal con- [39 FR 23053, June 26, 1974] sents in writing (anyone who could sign an application for that person may § 416.405 Cost-of-living adjustments in give the consent). benefits. (3) All benefits already paid based on Whenever benefit amounts under the application are repaid or we are title II of the Act (part 404 of this chap- satisfied that they will be repaid. ter) are increased by any percentage ef- (c) Effect of withdrawal. If we approve fective with any month as a result of a your request to withdraw an applica- determination made under Section tion, we will treat the application as 215(i) of the Act, each of the dollar though you never filed it. If we dis- amounts in effect for such month under approve your request for withdrawal, §§ 416.410, 416.412, and 416.413, as speci- we will treat the application as though fied in such sections or as previously you never requested the withdrawal. increased under this section or under any provision of the Act, will be in- § 416.360 Cancellation of a request to creased. We will increase the withdraw. unrounded yearly SSI benefit amount You may cancel your request to by the same percentage by which the withdraw your application and your title II benefits are being increased application will still be good if the fol- based on the Consumer Price Index, or, lowing requirements are met: if greater, the percentage they would

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be increased if the rise in the Consumer rate is the result of a 2.6 percent cost- Price Index were currently the basis of-living adjustment (see § 416.405) to for the title II increase. (See §§ 404.270– the December 1995 rate. For the period 404.277 for an explanation of how the January 1, through December 31, 1995, title II cost-of-living adjustment is the rate payable, as increased by the computed.) If the increased annual SSI 2.8 percent cost-of-living adjustment, benefit amount is not a multiple of $12, was $8,224 per year ($687 per month). it will be rounded to the next lower For the period January 1, through De- multiple of $12. cember 31, 1994, the rate payable, as increased by the 2.6 percent cost-of-living [51 FR 12606, Apr. 21, 1986; 51 FR 16016, Apr. 30, 1986] adjustment, was $8,028 per year ($669 per month). The monthly rate is re- § 416.410 Amount of benefits; eligible duced by the amount of the couple’s in- individual. come which is not excluded pursuant to subpart K of this part. The benefit under this part for an eligible individual (including the eligible [61 FR 10278, Mar. 13, 1996] individual receiving benefits payable under the § 416.212 provisions) who does § 416.413 Amount of benefits; qualified not have an eligible spouse, who is not individual. subject to either benefit suspension The benefit under this part for a under § 416.1325 or benefit reduction qualified individual (defined in § 416.221) under § 416.414, and who is not a quali- is payable at the rate for an eligible in- fied individual (as defined in § 416.221) dividual or eligible couple plus an in- shall be payable at the rate of $5,640 crement for each essential person (de- per year ($470 per month) effective for fined in § 416.222) in the household, re- the period beginning January 1, 1996. duced by the amount of countable in- This rate is the result of a 2.6 percent come of the eligible individual or eligi- cost-of-living adjustment (see § 416.405) ble couple as explained in § 416.420. A to the December 1995 rate. For the pe- qualified individual will receive an in- riod January 1, through December 31, crement of $2,820 per year ($235 per 1995, the rate payable, as increased by month), effective for the period begin- the 2.8 percent cost-of-living adjust- ning January 1, 1996. This rate is the ment, was $5,496 per year ($458 per result of the 2.6 percent cost-of-living month). For the period January 1, adjustment (see § 416.405) to the Decem- through December 31, 1994, the rate ber 1995 rate, and is for each essential payable, as increased by the 2.6 percent person (as defined in § 416.222) living in cost-of-living adjustment, was $5,352 the household of a qualified individual. per year ($446 per month). The monthly (See § 416.532.) For the period January rate is reduced by the amount of the 1, through December 31, 1995, the rate individual’s income which is not ex- payable, as increased by the 2.8 percent cluded pursuant to subpart K of this cost-of-living adjustment, was $2,748 part. per year ($229 per month). For the pe- [61 FR 10278, Mar. 13, 1996] riod January 1, through December 31, 1994, the rate payable, as increased by § 416.412 Amount of benefits; eligible the 2.6 percent cost-of-living adjust- couple. ment, was $2,676 per year ($223 per The benefit under this part for an eli- month). The total benefit rate, includ- gible couple (including couples where ing the increment, is reduced by the one or both members of the couple are amount of the individual’s or couple’s receiving benefits payable under the income that is not excluded pursuant § 416.212 provisions), neither of whom is to subpart K of this part. subject to suspension of benefits based [61 FR 10278, Mar. 13, 1996] on § 416.1325 or reduction of benefits based on § 416.414 nor is a qualified indi- § 416.414 Amount of benefits; eligible vidual (as defined in § 416.221) shall be individual or eligible couple in a payable at the rate of $8,460 per year medical treatment facility. ($705 per month), effective for the pe- (a) General rule. Except where the riod beginning January 1, 1996. This § 416.212 provisions provide for payment

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of benefits at the rates specified under ment facility where a substantial part §§ 416.410 and 416.412, reduced SSI bene- (more than 50 percent) of the cost of fits are payable to persons and couples their care is being paid under a health who are in medical treatment facilities insurance policy issued by a private where a substantial part (more than 50 provider or by a combination of Med- percent) of the cost of their care is paid icaid and payments under a health in- by a State plan under title XIX of the surance policy issued by a private pro- Social Security Act (Medicaid). This vider. reduced SSI benefit rate applies to per- (b) The benefit rates are—(1) Eligible in- sons who are in medical treatment fa- dividual. For months after June 1988, cilities where a substantial part (more the benefit rate for an eligible indi- than 50 percent) of the cost would have vidual with no eligible spouse is $30 per been paid by an approved Medicaid month. The benefit payment is figured State plan but for the application of by subtracting the eligible individual’s section 1917(c) of the Social Security countable income (see subpart K) from Act due to a transfer of assets for less than fair market value. This reduced the benefit rate as explained in SSI benefit rate also applies to chil- § 416.420. dren under age 18 who are in medical (2) Eligible couple both of whom are treatment facilities where a substan- temporarily absent from home in medical tial part (more than 50 percent) of the treatment facilities as described in cost of their care is paid by a health in- § 416.1149(c)(1). For months after June surance policy issued by a private pro- 1988, the benefit rate for a couple is $60 vider of such insurance, or where a sub- a month. The benefit payment is fig- stantial part (more than 50 percent) of ured by subtracting the couple’s count- the cost of their care is paid for by a able income (see subpart K) from the combination of Medicaid payments and benefit rate as explained in § 416.420. payments made under a health insur- (3) Eligible couple with one spouse who ance policy issued by a private provider is temporarily absent from home as de- of such insurance. Persons and couples scribed in § 416.1149(c)(1). The couple’s to whom these reduced benefits apply benefit rate equals: are— (i) For months after June 1988, $30 per (1) Those who are otherwise eligible month for the spouse in the medical and who are in the medical treatment treatment facility; plus facility throughout a month. (By (ii) The benefit rate for an eligible in- throughout a month we mean that you dividual (see § 416.410) for the spouse are in the medical treatment facility who is not in the medical treatment fa- as of the beginning of the month and cility. The benefit payment for each stay the entire month. If you are in a spouse is figured by subtracting each medical treatment facility you will be individual’s own countable income in considered to have continuously been staying there if you are transferred the appropriate month (see § 416.420) from one medical treatment facility to from his or her portion of the benefit another or if you are temporarily ab- rate shown in paragraphs (b)(3) (i) and sent for a period of not more than 14 (ii). consecutive days.); and (c) Definition. For purposes of this (2) Those who reside for part of a section, a medical treatment facility month in a public institution and for means an institution or that part of an the rest of the month are in a public or institution that is licensed or other- private medical treatment facility wise approved by a Federal, State, or where Medicaid pays or would have local government to provide inpatient paid (but for the application of section medical care and services. 1917(c) of the Act) a substantial part [47 FR 3106, Jan. 22, 1982, as amended at 50 (more than 50 percent) of the cost of FR 48571, Nov. 26, 1985; 50 FR 51514, Dec. 18, their care; and 1985; 54 FR 19164, May 4, 1989; 58 FR 64894, (3) Children under age 18 who reside Dec. 10, 1993; 60 FR 16374, Mar. 30, 1995; 61 FR for part of a month in a public institu- 10278, Mar. 13, 1996; 62 FR 1056, Jan. 8, 1997; 72 tion and for the rest of the month are FR 50874, Sept. 5, 2007; 72 FR 54350, Sept. 25, in a public or private medical treat- 2007]

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§ 416.415 Amount of benefits; eligible crease, by including in your income the individual is disabled child under amount by which your Social Security age 18. benefit in January exceeds the amount (a) If you are a disabled child under of your Social Security benefit in No- age 18 and meet the conditions in vember. Similarly, we will compute the § 416.1165(i) for waiver of deeming, your amount of your SSI benefit for Feb- parents’ income will not be deemed to ruary by including in your income the you and your benefit rate will be $30 a amount by which your Social Security month. benefit in February exceeds the (b) If you are a disabled child under amount of your Social Security benefit age 18 and do not meet the conditions in December. in § 416.1165(i) only because your par- Example 1. Mrs. X’s benefit amount is being ents’ income is not high enough to determined for September (the current make you ineligible for SSI but deem- month). Mrs. X’s countable income in July is ing of your parents’ income would re- used to determine the benefit amount for sult in an SSI benefit less than the September. amount payable if you received bene- Example 2. Mr. Z’s SSI benefit amount is fits as a child under § 416.1165(i), your being determined for January (the current benefit will be the amount payable if month). There has been a cost-of-living in- you received benefits as a child under crease in SSI benefits effective January. Mr. Z’s countable income in November is used to § 416.1165(i). determine the benefit amount for January. [60 FR 361, Jan. 4, 1995] In November, Mr. Z had in-kind support and maintenance valued at the presumed max- § 416.420 Determination of benefits; imum value as described in § 416.1140(a). We general. will use the January benefit rate, as increased by the COLA, to determine the value Benefits shall be determined for each of the in-kind support and maintenance Mr. month. The amount of the monthly Z received in November when we determine payment will be computed by reducing Mr. Z’s SSI benefit amount for January. the benefit rate (see §§ 416.410, 416.412, Example 3. Mr. Y’s SSI benefit amount is 416.413, and 416.414) by the amount of being determined for January (the current countable income as figured under the month). Mr. Y has Social Security income of rules in subpart K of this part. The ap- $100 in November, $100 in December, and $105 propriate month’s countable income to in January. We find the amount by which his be used to determine how much your Social Security income in January exceeds his Social Security income in November ($5) benefit payment will be for the current and add that to his income in November to month (the month for which a benefit determine the SSI benefit amount for Janu- is payable) will be determined as fol- ary. lows: (a) General rule. We generally use the (b) Exceptions to the general rule—(1) amount of your countable income in First month of initial eligibility for pay- the second month prior to the current ment or the first month of eligibility after month to determine how much your a month of ineligibility. We use your benefit amount will be for the current countable income in the current month month. We will use the benefit rate to determine your benefit amount for (see §§ 416.410 through 416.414), as in- the first month you are initially eligi- creased by a cost-of-living adjustment, ble for payment of SSI benefits (see in determining the value of the one- § 416.501) or for the first month you third reduction or the presumed max- again become eligible for SSI benefits imum value, to compute your SSI ben- after at least a month of ineligibility. efit amount for the first 2 months in Your payment for a first month of re- which the cost-of-living adjustment is eligibility after at least one-month of in effect. If you have been receiving an ineligibility will be prorated according SSI benefit and a Social Security in- to the number of days in the month surance benefit and the latter is in- that you are eligible beginning with creased on the basis of the cost-of-liv- the date on which you reattain eligi- ing adjustment or because your benefit bility. is recomputed, we will compute the Example: Mrs. Y applies for SSI benefits in amount of your SSI benefit for Janu- September and meets the requirements for ary, the month of an SSI benefit ineligibility in that month. (We use Mrs. Y’s

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countable income in September to determine (4) Income derived from certain assist- if she is eligible for SSI in September.) The ance payments. We use your income in first month for which she can receive pay- the current month from the programs ment is October (see § 416.501). We use Mrs. listed below to determine your benefit Y’s countable income in October to determine the amount of her benefit for October. amount for that same month. The as- If Mrs. Y had been receiving SSI benefits sistance programs are as follows: through July, became ineligible for SSI ben- (i) Aid to Families with Dependent efits in August, and again became eligible Children under title IV-A of the Social for such benefits in September, we would use Security Act (the Act); Mrs. Y’s countable income in September to (ii) Foster Care under title IV-E of determine the amount of her benefit for Sep- the Act; tember. In addition, the proration rules dis- (iii) Refugee Cash Assistance pursu- cussed above would also apply to determine the amount of benefits in September in this ant to section 412(e) of the Immigra- second situation. tion and Nationality Act; (iv) Cuban and Haitian Entrant As- (2) Second month of initial eligibility for sistance pursuant to section 501(a) of payment or second month of eligibility Pub. L. 96–422; and after a month of ineligibility. We use (v) Bureau of Indian Affairs general your countable income in the first assistance and child welfare assistance month prior to the current month to pursuant to 42 Stat. 208 as amended. determine how much your benefit (c) Reliable information which is cur- amount will be for the current month rently available for determining benefits. when the current month is the second The Commissioner has determined that month of initial eligibility for payment no reliable information exists which is or the second month of reeligibility currently available to use in deter- following at least a month of ineligi- mining benefit amounts. bility. However, if you have been re- (1) Reliable information. For purposes ceiving both an SSI benefit and a So- of this section reliable information cial Security insurance benefit and the means payment information that is latter is increased on the basis of the maintained on a computer system of cost-of-living adjustment or because records by the government agency de- your benefit is recomputed, we will termining the payments (e.g., Depart- compute the amount of your SSI ben- ment of Veterans Affairs, Office of Per- efit for January, the month of an SSI sonnel Management for Federal civil benefit increase, by including in your service information and the Railroad income the amount by which your So- Retirement Board). cial Security benefit in January ex- (2) Currently available information. For ceeds the amount of your Social Secu- purposes of this section currently avail- rity benefit in December. able information means information Example: Mrs. Y was initially eligible for that is available at such time that it payment of SSI benefits in October. Her ben- permits us to compute and issue a cor- efit amount for November will be based on rect benefit for the month the informa- her countable income in October (first prior tion is pertinent. month). (d) Payment of benefits. See subpart E (3) Third month of initial eligibility for of this part for the rules on payments payment or third month of eligibility after and the minimum monthly benefit (as a month of ineligibility. We use your explained in § 416.503). countable income according to the rule [50 FR 48571, Nov. 26, 1985; 50 FR 51514, Dec. set out in paragraph (a) of this section 18, 1985, as amended at 54 FR 31657, Aug. 1, to determine how much your benefit 1989; 62 FR 30751, June 5, 1997; 63 FR 33546, amount will be for the third month of June 19, 1998; 64 FR 31973, June 15, 1999] initial eligibility for payment or the third month of reeligibility after at § 416.421 Determination of benefits; least a month of ineligibility. computation of prorated benefits. (a) In the month that you reacquire Example: Mrs. Y was initially eligible for payment of SSI benefits in October. Her ben- eligibility after a month or more of in- efit amount for December will be based on eligibility (see § 416.1320(b)), your ben- her countable income in October (second efit will be prorated according to the prior month). number of days in the month that you

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are eligible beginning with the date on § 416.430 Eligible individual with eligi- which you meet all eligibility require- ble spouse; essential person(s) ments. present. (b) In determining the amount of (a) When an eligible individual with your benefit for a month in which ben- an eligible spouse has an essential per- efits are to be prorated, we first com- son (§ 416.222) living in his or her home, pute the amount of the benefit that or when both such persons each has an you would receive for the month as if essential person, the increase in the proration did not apply. We then deter- rate of payment is determined in ac- mine the date on which you meet all cordance with §§ 416.413 and 416.532. The factors of eligibility. (The income lim- income of the essential person(s) is in- its must be met based on the entire cluded in the income of the couple and month and the resource limit must be the payment due will be equally di- as of the first day of the month.) We vided between each member of the eli- then count the number of days in the gible couple. month beginning with the day on (b) When one member of an eligible which you first meet all factors of eli- couple is temporarily absent in accord- gibility through the end of the month. ance with § 416.1149(c)(1) and § 416.222(c) We then multiply the amount of your and either one or both individuals has unprorated benefit for the month by an essential person, add the essential the number of days for which you are person increment to the benefit rate eligible for benefits and divide that fig- for the member of the couple who is ac- ure by the number of days in the tually residing with the essential per- month for which your benefit is being son and include the income of the es- determined. The result is the amount sential person in that member’s in- of the benefit that you are due for the come. See § 416.414(b)(3). month in which benefits are to be pro- [60 FR 16375, Mar. 30, 1995] rated. [51 FR 13493, Apr. 14, 1986, as amended at 64 § 416.432 Change in status involving a FR 31973, June 15, 1999] couple; eligibility continues. When there is a change in status § 416.426 Change in status involving which involves the formation or dis- an individual; ineligibility occurs. solution of an eligible couple (for ex- Whenever benefits are suspended or ample, marriage, divorce), a redeter- terminated for an individual because of mination of the benefit amount shall ineligibility, no benefit is payable for be made for the months subsequent to that month. the month of such formation or dissolution of the couple in accordance [50 FR 48571, Nov. 26, 1985] with the following rules: (a) When there is a dissolution of an § 416.428 Eligible individual without an eligible spouse has an essential eligible couple and each member of the person in his home. couple becomes an eligible individual, the benefit amount for each person When an eligible individual without shall be determined individually for an eligible spouse has an essential per- each month beginning with the first son (as defined in § 416.222 of this part) month after the month in which the in his home, the amount by which his dissolution occurs. This shall be done rate of payment is increased is deter- by determining the applicable benefit mined in accordance with §§ 416.220 rate for an eligible individual with no through 416.223 and with 416.413 of this eligible spouse according to §§ 416.410 or part. The essential person’s income is 416.413 and 416.414 and applying deemed to be that of the eligible indi- § 416.420(a). See § 416.1147a for the appli- vidual, and the provisions of §§ 416.401 cable income rules when in-kind sup- through 416.426 will apply in deter- port and maintenance is involved. mining the benefit of such eligible indi- (b) When two eligible individuals be- vidual. come an eligible couple, the benefit [39 FR 23053, June 26, 1974, as amended at 51 amount will be determined for the cou- FR 10616, Mar. 28, 1986; 65 FR 16814, Mar. 30, ple beginning with the first month fol- 2000] lowing the month of the change. This

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shall be done by determining which following the date all conditions for benefit rate to use for an eligible cou- eligibility are met. ple according to §§ 416.412 or 416.413 and [64 FR 31973, June 15, 1999] 416.414 and applying the requirements in § 416.420(a). § 416.502 Manner of payment. [60 FR 16375, Mar. 30, 1995] For the month an individual reestab- lishes eligibility after a month of ineli- § 416.435 Change in status involving a gibility, an SSI payment will be made couple; ineligibility occurs. on or after the day of the month on Whenever benefits are suspended or which the individual becomes reeligible terminated for both members of a cou- to receive benefits. In all other ple because of ineligibility, no benefits months, a payment will be made on the are payable for that month. However, first day of each month and represents when benefits are suspended or termi- payment for that month. If the first day of the month falls on a Saturday, nated for one member of a couple be- Sunday, or legal holiday, payments cause of ineligibility for a month, the will be made on the first day preceding member who remains eligible assumes such day which is not a Saturday, Sun- the eligibility status of an eligible in- day, or legal holiday. Unless otherwise dividual without an eligible spouse for indicated, the monthly amount for an such month and the benefit rate and eligible couple will be divided equally payment amount will be determined as and paid separately to each individual. an eligible individual for the month. Section 416.520 explains emergency ad- [50 FR 48572, Nov. 26, 1985] vance payments. [55 FR 4422, Feb. 8, 1990, as amended at 64 FR Subpart E—Payment of Benefits, 31974, June 15, 1999] Overpayments, and Under- § 416.503 Minimum monthly benefit payments amount. If you receive an SSI benefit that AUTHORITY: Secs. 702(a)(5), 1147, 1601, 1602, does not include a State supplement 1611(c) and (e), and 1631(a)–(d) and (g) of the the minimum monthly SSI benefit Social Security Act (42 U.S.C. 902(a)(5), 1320b–17, 1381, 1381a, 1382(c) and (e), and amount payable is $1. When an SSI 1383(a)–(d) and (g)); 31 U.S.C. 3716; 31 U.S.C. benefit amount of less than $1 is pay- 3720A. able, the benefit amount will be increased to $1. If you receive an SSI ben- § 416.501 Payment of benefits: General. efit that does include a State supple- Payment of SSI benefits will be made ment and the SSI benefit amount is for the month after the month of ini- less than $1 but when added to the tial eligibility and for each subsequent State supplement exceeds $1, the SSI month provided all requirements for benefit amount will not be increased to eligibility (see § 416.202) and payment $1. Rather, we pay the actual amount (see § 416.420) are met. In the month the of the SSI benefit plus the State sup- individual re-establishes eligibility plement. after at least a month of ineligibility, [50 FR 48572, Nov. 26, 1985] benefits are paid for such a month beginning with the date in the month on § 416.520 Emergency advance pay- which the individual meets all eligi- ments. bility requirements. In some months, (a) General. We may pay a one-time while the factors of eligibility based on emergency advance payment to an in- the current month may be established, dividual initially applying for benefits it is possible to receive no payment for who is presumptively eligible for SSI that month if the factors of eligibility benefits and who has a financial emer- for payment are not met. Payment of gency. The amount of this payment benefits may not be made for any pe- cannot exceed the Federal benefit rate riod that precedes the first month fol- (see §§ 416.410 through 416.414) plus the lowing the date on which an applica- federally administered State supple- tion is filed or, if later, the first month mentary payment, if any (see

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§ 416.2020), which apply for the month pected amount payable for the month for which the payment is made. Emer- for which the payment is made (see gency advance payment is defined in paragraph (c)(1) of this section) and the paragraph (b)(1) of this section. The ac- amount the applicant requested to tual payment amount is computed as meet the emergency. The actual pay- explained in paragraph (c) of this sec- ment amount is no more than the least tion. An emergency advance payment of these three amounts. is an advance of benefits expected to be (1) In computing the emergency ad- due that is recoverable as explained in vance payment amount, we apply the paragraphs (d) and (e) of this section. monthly income counting rules appro- (b) Definition of terms. For purposes of priate for the month for which the ad- this subpart— vance is paid, as explained in § 416.420. (1) Emergency advance payment means Generally, the month for which the ad- a direct, expedited payment by a Social vance is paid is the month in which it Security Administration field office to is paid. However, if the advance is paid an individual or spouse who is initially in the month the application is filed, applying (see paragraph (b)(3) of this the month for which the advance is section), who is at least presumptively paid is considered to be the first month eligible (see paragraph (b)(4) of this of expected eligibility for payment of section), and who has a financial emer- benefits. gency (see paragraph (b)(2) of this sec- (2) For a couple, we separately com- tion). pute each member’s emergency ad- (2) Financial emergency is the finan- vance payment amount. cial status of an individual who has in- (d) Recovery of emergency advance pay- sufficient income or resources to meet ment where eligibility is established. an immediate threat to health or safe- When an individual or spouse is deter- ty, such as the lack of food, clothing, mined to be eligible and retroactive shelter, or medical care. payments are due, any emergency ad- (3) Initially applying means the filing vance payment amounts are recovered of an application (see § 416.310) which in full from the first payment(s) cer- requires an initial determination of eli- tified to the United States Treasury. gibility, such as the first application However, if no retroactive payments for SSI benefits or an application filed are due and benefits are only due in fu- subsequent to a prior denial or termi- ture months, any emergency advance nation of a prior period of eligibility payment amounts are recovered for payment. An individual or spouse through proportionate reductions in who previously received an emergency those benefits over a period of not advance payment in a prior period of more than 6 months. (See paragraph (e) eligibility which terminated may again of this section if the individual or receive such a payment if he or she re- spouse is determined to be ineligible.) applies for SSI and meets the other (e) Disposition of emergency advance conditions for an emergency advance payments where eligibility is not estab- payment under this section. lished. If a presumptively eligible indi- (4) Presumptively eligible is the status vidual (or spouse) or couple is deter- of an individual or spouse who presents mined to be ineligible, the emergency strong evidence of the likelihood of advance payment constitutes a recov- meeting all of the requirements for eli- erable overpayment. (See the exception gibility including the income and rein § 416.537(b)(1) when payment is made sources tests of eligibility (see subparts on the basis of presumptive disability K and L of this part), categorical eligi- or presumptive blindness.) bility (age, disability, or blindness), [55 FR 4422, Feb. 8, 1990; 55 FR 7411, Mar. 1, and technical eligibility (United States 1990, as amended at 64 FR 31974, June 15, 1999] residency and citizenship or alien status—see subpart P of this part). § 416.525 Reimbursement to States for (c) Computation of payment amount. interim assistance payments. To compute the emergency advance Notwithstanding § 416.542, the Social payment amount, the maximum Security Administration may, in ac- amount described in paragraph (a) of cordance with the provisions of subpart this section is compared to both the ex- S of this part, withhold supplemental

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security income benefits due with re- State records established on or before spect to an individual and may pay to December 31, 1973, will provide the a State (or political subdivision there- basis for a determination as to whether of, if agreed to by the Social Security the remaining eligible individual or eli- Administration and the State) from gible spouse meets the definition of the benefits withheld, an amount suffi- qualified individual. Payment in con- cient to reimburse the State (or polit- sideration of the essential person will ical subdivision) for interim assistance be dependent on whether the essential furnished on behalf of the individual. person continues to live with a quali- [41 FR 20872, May 21, 1976] fied individual. If the essential person does reside with a qualified individual, § 416.532 Method of payment when the status as an essential person is re- essential person resides with more than one eligible person. tained. (a) When an essential person lives [39 FR 33796, Sept. 20, 1974, as amended at 50 with an eligible individual and an eligi- FR 48572, Nov. 26, 1985; 51 FR 10616, Mar. 28, ble spouse, the State may report that 1986; 60 FR 16375, Mar. 30, 1995] the person is essential to one or both members of the couple. In either event, § 416.533 Transfer or assignment of the income and resources of the essen- benefits. tial person will be considered to be Except as provided in § 416.525 and available to the family unit. The pay- subpart S of this part, the Social Secu- ment increment attributable to the es- rity Administration will not certify sential person will be added to the rate payment of supplemental security in- of payment for the couple, the count- come benefits to a transferee or as- able income subtracted, and the result- signee of a person eligible for such ben- ing total benefit divided equally be- efits under the Act or of a person quali- tween the eligible individual and the fied for payment under § 416.542. The eligible spouse. Social Security Administration shall (b) Where the essential person lives not certify payment of supplemental with two eligible individuals (as op- security income benefits to any person posed to an eligible individual and eligible spouse), one of whom has been claiming such payment by virtue of an designated the qualified individual, the execution, levy, attachment, garnish- income and resources of the essential ment, or other legal process or by vir- person will be considered to be avail- tue of any bankruptcy or insolvency able only to the qualified individual (as proceeding against or affecting the per- defined in § 416.221) and any increase in son eligible for benefits under the Act. payment will be made to such qualified [41 FR 20873, May 21, 1976, as amended at 58 individual. FR 52912, Oct. 13, 1993] (c) In those instances where the State has designated the essential per- § 416.534 Garnishment of payments son as essential to two or more eligible after disbursement. individuals so that both are qualified (a) Payments that are covered by sec- individuals, the payment increment attributable to the essential person must tion 1631(d)(1) of the Social Security be shared equally, and the income and Act and made by direct deposit are sub- resources of the essential person di- ject to 31 CFR part 212, Garnishment of vided and counted equally against each Accounts Containing Federal Benefit qualified individual. Payments. (d) When an essential person lives (b) This section may be amended only with an eligible individual and an eligi- by a rulemaking issued jointly by the ble spouse (or two or more eligible in- Department of Treasury and the agen- dividuals) only one of whom is the cies defined as a ‘‘benefit agency’’ in 31 qualified individual, essential person CFR 212.3. status is not automatically retained upon the death of the qualified indi- [76 FR 9961, Feb. 23, 2011] vidual or upon the separation from the qualified individual. A review of the

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§ 416.535 Underpayments and overpay- the failure to report was not willful. To ments. establish willful failure, the evidence (a) General. When an individual re- must show that the sponsor knowingly ceives SSI benefits of less than the cor- failed to supply pertinent information rect amount, adjustment is effected as regarding his or her income and re- described in §§ 416.542 and 416.543, and sources. the additional rules in § 416.545 may [52 FR 8881, Mar. 20, 1987, as amended at 60 apply. When an individual receives FR 8149, Feb. 10, 1995; 61 FR 67205, Dec. 20, more than the correct amount of SSI 1996] benefits, adjustment is effected as described in § 416.570. Refund of overpay- § 416.536 Underpayments—defined. ments is discussed in § 416.560 and waiv- An underpayment can occur only er of recovery of overpayments is dis- with respect to a period for which a re- cussed in §§ 416.550 through 416.555. cipient filed an application, if required, (b) Additional rules for individuals for benefits and met all conditions of whose drug addiction or alcoholism is a eligibility for benefits. An under- contributing factor material to the deter- payment, including any amounts of mination of disability. When an indi- State supplementary payments which vidual whose drug addiction or alco- are due and administered by the Social holism is a contributing factor mate- Security Administration, is: rial to the determination of disability, (a) Nonpayment, where payment was as described in § 416.935, receives less due but was not made; or than the correct amount of SSI bene- (b) Payment of less than the amount fits, adjustment is effected as described due. For purposes of this section, pay- in §§ 416.542 and 416.543 and the addi- ment has been made when certified by tional rule described in § 416.544 applies. the Social Security Administration to (c) Additional rules for eligible individ- the Department of the Treasury, ex- uals under age 18 who have a representa- cept that payment has not been made tive payee. When an eligible individual where payment has not been received under age 18 has a representative payee by the designated payee, or where pay- and receives less than the correct ment was returned. amount of SSI benefits, the additional rules in § 416.546 may apply. [58 FR 52912, Oct. 13, 1993] (d) Additional rules for eligible aliens and for their sponsors. When an indi- § 416.537 Overpayments—defined. vidual who is an alien is overpaid SSI (a) Overpayments. As used in this sub- benefits during the 3-year period in part, the term overpayment means pay- which deeming from a sponsor applies ment of more than the amount due for (see § 416.1160(a)(3)), the sponsor and the any period, including any amounts of alien may be jointly and individually State supplementary payments which liable for repayment of the overpay- are due and administered by the Social ment. The sponsor is liable for the Security Administration. For purposes overpayment if he or she failed to re- of this section, payment has been made port correct information that affected when certified by the Social Security the alien’s eligibility or payment Administration to the Department of amount. This means information about the Treasury, except that payment has the income and resources of the spon- not been made where payment has not sor and, if they live together, of the been received by the designated payee, sponsor’s spouse. However, the sponsor or where payment was returned. When is not liable for repayment if the spon- a payment of more than the amount sor was without fault or had good cause due is made by direct deposit to a fi- for failing to report correctly. A spe- nancial institution to or on behalf of cial rule that applies to adjustment of an individual who has died, and the fi- other benefits due the alien and the nancial institution credits the pay- sponsor to recover an overpayment is ment to a joint account of the deceased described in § 416.570(b). individual and another person who is (e) Sponsor without fault or good cause the surviving spouse of the deceased in- exists for failure to report. Without fault dividual and was eligible for a payment or good cause will be found to exist if under title XVI of the Act (including

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any State supplementation payment month for which there is a difference paid by the Commissioner) as an eligi- between the amount paid and the ble spouse (or as either member of an amount actually due for that month. eligible couple) for the month in which The period ends with the month the the deceased individual died, the initial determination of overpayment amount of the payment in excess of the or underpayment is made. With respect correct amount will be an overpayment to the period established, there can be to the surviving spouse. no underpayment to a recipient or his (b) Actions which are not overpay- or her eligible spouse if more than the ments—(1) Presumptive disability and pre- correct amount payable under title sumptive blindness. Any payment made XVI of the Act has been paid, whether for any month, including an advance or not adjustment or recovery of any payment of benefits under § 416.520, is overpayment for that period to the re- not an overpayment to the extent it cipient or his or her eligible spouse has meets the criteria for payment under been waived under the provisions of § 416.931. Payments made on the basis §§ 416.550 through 416.556. A subsequent of presumptive disability or presump- initial determination of overpayment tive blindness will not be considered will require no change with respect to overpayments where ineligibility is de- a prior determination of overpayment termined because the individual or eli- or to the period relating to such deter- gible spouse is not disabled or blind. mination to the extent that the basis However, where it is determined that of the prior overpayment remains the all or a portion of the presumptive pay- same. ments made are incorrect for reasons (b) Limited delay in payment of under- other than disability or blindness, paid amount to recipient or eligible sur- these incorrect payments are consid- viving spouse. Where an apparent over- ered overpayments (as defined in para- payment has been detected but deter- graph (a) of this section). Overpay- mination of the overpayment has not ments may occur, for example, when been made (see § 416.558(a)), a deter- the person who received payments on mination of an underpayment and pay- the basis of presumptive disability or ment of an underpaid amount which is presumptive blindness is determined to otherwise due cannot be delayed to a be ineligible for all or any part of the recipient or eligible surviving spouse payments because of excess resources unless a determination with respect to or is determined to have received ex- the apparent overpayment can be made cess payment for those months based before the close of the month following on an incorrect estimate of income. the month in which the underpaid (2) Penalty. The imposition of a pen- amount was discovered. alty pursuant to § 416.724 is not an ad- (c) Delay in payment of underpaid justment of an overpayment and is im- amount to ineligible individual or sur- posed only against any amount due the vivor. A determination of an under- penalized recipient, or, after death, any payment and payment of an underpaid amount due the deceased which other- amount which is otherwise due an indi- wise would be paid to a survivor as de- vidual who is no longer eligible for SSI fined in § 416.542. or is payable to a survivor pursuant to [40 FR 47763, Oct. 10, 1975, as amended at 43 § 416.542(b) will be delayed for the reso- FR 17354, Apr. 24, 1978; 50 FR 48572, Nov. 26, lution of all overpayments, incorrect 1985; 55 FR 7313, Mar. 1, 1990; 58 FR 52912, Oct. payments, adjustments, and penalties. 13, 1993; 62 FR 38454, July 18, 1997] (d) Limited delay in payment of underpaid amount to eligible individual under § 416.538 Amount of underpayment or age 18 who has a representative payee. overpayment. When the representative payee of an el- (a) General. The amount of an under- igible individual under age 18 is repayment or overpayment is the dif- quired to establish a dedicated account ference between the amount paid to a pursuant to §§ 416.546 and 416.640(e), recipient and the amount of payment payment of past-due benefits which are actually due such recipient for a given otherwise due will be delayed until the period. An underpayment or overpay- representative payee has established ment period begins with the first the dedicated account as described in

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§ 416.640(e). Once the account is estab- a deceased individual as described in lished, SSA will deposit the past-due paragraph (b) of this section. benefits payable directly to the ac- (b) Underpaid recipient deceased—un- count. derpaid amount payable to survivor. (1) If (e) Reduction of underpaid amount. a recipient dies before we have paid all Any underpayment amount otherwise benefits due or before the recipient en- payable to a survivor on account of a dorses the check for the correct pay- deceased recipient is reduced by the ment, we may pay the amount due to amount of any outstanding penalty im- the deceased recipient’s surviving eligi- posed against the benefits payable to ble spouse or to his or her surviving such deceased recipient or survivor spouse who was living with the under- under section 1631(e) of the Act (see paid recipient within the meaning of § 416.537(b)(2)). section 202(i) of the Act (see § 404.347) in [58 FR 52912, Oct. 13, 1993, as amended at 61 the month he or she died or within 6 FR 67205, Dec. 20, 1996] months immediately preceding the month of death. § 416.542 Underpayments—to whom (2) If the deceased underpaid recipi- underpaid amount is payable. ent was a disabled or blind child when (a) Underpaid recipient alive—under- the underpayment occurred, the underpayment payable. (1) If an underpaid repaid amount may be paid to the nat- cipient is alive, the amount of any un- ural or adoptive parent(s) of the under- derpayment due him or her will be paid paid recipient who lived with the un- to him or her in a separate payment or derpaid recipient in the month he or by increasing the amount of his or her she died or within the 6 months pre- monthly payment. If the underpaid ceding death. We consider the under- amount meets the formula in § 416.545 paid recipient to have been living with and one of the exceptions does not the natural or adoptive parent(s) in the apply, the amount of any past-due ben- period if the underpaid recipient satis- efits will be paid in installments. fies the ‘‘living with’’ criteria we use (2) If an underpaid recipient whose when applying § 416.1165 or would have drug addiction or alcoholism is a con- satisfied the criteria had his or her tributing factor material to the deter- death not precluded the application of mination of disability (as described in such criteria throughout a month. § 416.935) is alive, the amount of any un- (3) If the deceased individual was liv- derpayment due the recipient will be ing with his or her spouse within the paid through his or her representative meaning of section 202(i) of the Act in payee in installment payments. No un- the month of death or within 6 months derpayment may be paid directly to immediately preceding the month of the recipient. If the recipient dies be- death, and was also living with his or fore we have paid all benefits due her natural or adoptive parent(s) in the through his or her representative month of death or within 6 months pre- payee, we will follow the rules which ceding the month of death, we will pay apply to underpayments for the pay- the parent(s) any SSI underpayment ment of any remaining amounts due to due the deceased individual for months any eligible survivor of a deceased re- he or she was a blind or disabled child cipient as described in paragraph (b) of and we will pay the spouse any SSI un- this section. derpayment due the deceased indi- (3) If an underpaid individual under vidual for months he or she no longer age 18 is alive and has a representative met the definition of ‘‘child’’ as set payee and is due past-due benefits forth at § 416.1856. If no parent(s) can be which meet the formula in § 416.546, paid in such cases due to death or other SSA will pay the past-due benefits into reason, then we will pay the SSI under- the dedicated account described in payment due the deceased individual § 416.640(e). If the underpaid individual for months he or she was a blind or dis- dies before the benefits have been de- abled child to the spouse. posited into the account, we will follow (4) No benefits may be paid to the es- the rules which apply to underpay- tate of any underpaid recipient, the es- ments for the payment of any unpaid tate of the surviving spouse, the estate amount due to any eligible survivor of of a parent, or to any survivor other

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than those listed in paragraph (b) (1) § 416.544 Paying benefits in install- through (3) of this section. Payment of ments: Drug addiction or alco- an underpaid amount to an ineligible holism. spouse or surviving parent(s) may only (a) General. For disabled recipients be made for benefits payable for who receive benefit payments through months after May 1986. Payment to a representative payee because drug surviving parent(s) may be made only addiction or alcoholism is a contrib- for months of eligibility during which uting factor material to the determina- the deceased underpaid recipient was a tion of disability, certain amounts due child. We will not pay benefits to a sur- the recipient for a past period will be vivor other than the eligible spouse paid in installments. The amounts sub- who requests payment of an underpaid ject to payment in installments in- amount more than 24 months after the clude: (1) Benefits due but unpaid which ac- month of the individual’s death. crued prior to the month payment was (c) Underpaid recipient’s death caused effectuated; by an intentional act. No benefits due (2) Benefits due but unpaid which ac- the deceased individual may be paid to crued during a period of suspension for a survivor found guilty by a court of which the recipient was subsequently competent jurisdiction of intentionally determined to have been eligible; and causing the underpaid recipient’s (3) Any adjustment to benefits which death. results in an accrual of unpaid benefits. (b) Installment formula. Except as pro- [40 FR 47763, Oct. 10, 1975, as amended at 58 FR 52913, Oct. 13, 1993; 60 FR 8149, Feb. 10, vided in paragraph (c) of this section, 1995; 61 FR 67206, Dec. 20, 1996] the amount of the installment payment in any month is limited so that § 416.543 Underpayments—applied to the sum of (1) the amount due for a reduce overpayments. past period (and payable under paragraph (a) of this section) paid in such We apply any underpayment due an month and (2) the amount of any cur- individual to reduce any overpayment rent benefit due cannot exceed twice to that individual that we determine to the Federal Benefit Rate plus any fed- exist (see § 416.558) for a different pe- erally-administered State supplemen- riod, unless we have waived recovery of tation payable to an eligible individual the overpayment under the provisions for the preceding month. of §§ 416.550 through 416.556. Similarly, (c) Exception to installment limitation. when an underpaid recipient dies, we An exception to the installment pay- first apply any amounts due the de- ment limitation in paragraph (b) of ceased recipient that would be payable this section can be granted for the first to a survivor under § 416.542(b) against month in which a recipient accrues any overpayment to the survivor un- benefit amounts subject to payment in less we have waived recovery of such installments if the recipient has unpaid overpayment under the provisions of housing expenses which result in a high §§ 416.550 through 416.556. risk of homelessness for the recipient. In that case, the benefit payment may Example: A disabled child, eligible for pay- be increased by the amount of the un- ments under title XVI, and his parent, also paid housing expenses so long as that an eligible individual receiving payments increase does not exceed the amount of under title XVI, were living together. The benefits which accrued during the most disabled child dies at a time when he was underpaid $100. The deceased child’s underpaid recent period of nonpayment. We con- benefit is payable to the surviving parent. sider a person to be at risk of home- However, since the parent must repay an SSI lessness if continued nonpayment of overpayment of $225 on his own record, the the outstanding housing expenses is $100 underpayment will be applied to reduce likely to result in the person losing his the parent’s own overpayment to $125. or her place to live or if past nonpayment of housing expenses has re- [58 FR 52913, Oct. 13, 1993] sulted in the person having no appropriate personal place to live. In determining whether this exception applies,

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we will ask for evidence of outstanding for a different period while install- housing expenses that shows that the ments are being made, we will notify person is likely to lose or has already the individual of the amount due and lost his or her place to live. For pur- issue these benefits in the last install- poses of this section, homelessness is ment payment. The amounts subject to the state of not being under the control payment in installments include: of any public institution and having no (1) Benefits due but unpaid which ac- appropriate personal place to live. crued prior to the month payment was Housing expenses include charges for effectuated; all items required to maintain shelter (2) Benefits due but unpaid which ac- (for example, mortgage payments, rent, crued during a period of suspension for heating fuel, and electricity). which the recipient was subsequently (d) Payment through a representative determined to have been eligible; and payee. If the recipient does not have a (3) Any adjustment to benefits which representative payee, payment of results in an accrual of unpaid benefits. amounts subject to installments can- (b) Installment formula. Installment not be made until a representative payments must be made if the amount payee is selected. of the past-due benefits, including any (e) Underpaid recipient no longer eligi- federally administered State sup- ble. In the case of a recipient who is no plementation, after applying § 416.525 longer currently eligible for monthly (reimbursement to States for interim payments, but to whom amounts de- assistance) and applying § 416.1520 (pay- fined in paragraph (a) of this section ment of attorney fees), equals or ex- are still owing, we will continue to ceeds 3 times the Federal Benefit Rate make installment payments of such plus any federally administered State benefits through a representative supplementation payable in a month to payee. an eligible individual (or eligible indi- (f) Recipient currently not receiving SSI vidual and eligible spouse). These in- benefits because of suspension for non- stallment payments will be paid in not compliance with treatment. If a recipient more than 3 installments and made at is currently not receiving SSI benefits 6-month intervals. Except as described because his or her benefits have been in paragraph (d) of this section, the suspended for noncompliance with amount of each of the first and second treatment (as defined in § 416.936), the installment payments may not exceed payment of amounts under paragraph the threshold amount of 3 times the (a) of this section will stop until the re- maximum monthly benefit payable as cipient has demonstrated compliance described in this paragraph. with treatment as described in (c) Exception—When installments pay- § 416.1326 and will again commence with ments are not required. Installment pay- the first month the recipient begins to ments are not required and the rules in receive benefits. this section do not apply if, when the (g) Underpaid recipient deceased. Upon determination of an underpayment is the death of a recipient, any remaining made, the individual is (1) afflicted unpaid amounts as defined in para- with a medically determinable impair- graph (a) of this section will be treated ment which is expected to result in as underpayments in accordance with death within 12 months, or (2) ineli- § 416.542(b). gible for benefits and we determine [60 FR 8150, Feb. 10, 1995] that he or she is likely to remain ineligible for the next 12 months. § 416.545 Paying large past-due bene- (d) Exception—Increased first and sec- fits in installments. ond installment payments. (1) The (a) General. Except as described in amount of the first and second install- paragraph (c) of this section, when an ment payments may be increased by individual is eligible for past-due bene- the total amount of the following debts fits in an amount which meets the for- and expenses: mula in paragraph (b) of this section, (i) Outstanding debt for food, cloth- payment of these benefits must be ing, shelter, or medically necessary made in installments. If an individual services, supplies or equipment, or becomes eligible for past-due benefits medicine; or

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(ii) Current or anticipated expenses unpaid amount due to any eligible sur- in the near future for medically nec- vivor as described in § 416.542(b). essary services, supplies or equipment, [61 FR 67206, Dec. 20, 1996, as amended at 76 or medicine, or for the purchase of a FR 453, Jan. 5, 2011] home. (2) The increase described in para- § 416.550 Waiver of adjustment or re- graph (d)(1) of this section only applies covery—when applicable. to debts or expenses that are not sub- Waiver of adjustment or recovery of ject to reimbursement by a public as- an overpayment of SSI benefits may be sistance program, the Secretary of granted when (EXCEPTION: This sec- Health and Human Services under title tion does not apply to a sponsor of an XVIII of the Act, a State plan approved alien): under title XIX of the Act, or any pri- (a) The overpaid individual was with- vate entity that is legally liable for out fault in connection with an overpayment in accordance with an insur- payment, and ance policy, pre-paid plan, or other ar- (b) Adjustment or recovery of such rangement. overpayment would either: [61 FR 67206, Dec. 20, 1996, as amended at 76 (1) Defeat the purpose of title XVI, or FR 453, Jan. 5, 2011; 79 FR 33685, June 12, 2014] (2) Be against equity and good conscience, or § 416.546 Payment into dedicated ac- (3) Impede efficient or effective ad- counts of past-due benefits for eligi- ministration of title XVI due to the ble individuals under age 18 who small amount involved. have a representative payee. [52 FR 8882, Mar. 20, 1987, as amended at 53 For purposes of this section, amounts FR 16543, May 10, 1988] subject to payment into dedicated accounts (see § 416.640(e)) include the § 416.551 Waiver of adjustment or re- amounts described in § 416.545(a) (1), (2), covery—effect of. and (3). Waiver of adjustment or recovery of (a) For an eligible individual under an overpayment from the overpaid per- age 18 who has a representative payee son himself (or, after his death, from and who is determined to be eligible for his estate) frees him and his eligible past-due benefits (including any feder- spouse from the obligation to repay the ally administered State supplemen- amount of the overpayment covered by tation) in an amount which, after ap- the waiver. Waiver of adjustment or re- plying § 416.525 (reimbursement to covery of an overpayment from anyone States for interim assistance) and other than the overpaid person himself § 416.1520 (payment of attorney fee), ex- or his estate (e.g., a surviving eligible ceeds six times the Federal Benefit spouse) does not preclude adjustment Rate plus any federally administered or recovery against the overpaid person State supplementation payable in a or his estate. month, this unpaid amount must be Example: The recipient was overpaid $390. paid into the dedicated account estab- It was found that the overpaid recipient was lished and maintained as described in eligible for waiver of adjustment or recovery § 416.640(e). of $260 of that amount, and such action was (b) After the account is established, taken. Only $130 of the overpayment re- the representative payee may (but is mained to be recovered by adjustment, re- not required to) deposit into the ac- fund, or the like. count any subsequent funds rep- [40 FR 47763, Oct. 10, 1975] resenting past-due benefits under this title to the individual which are equal § 416.552 Waiver of adjustment or re- to or exceed the maximum Federal covery—without fault. Benefit Rate (including any federally Without fault relates only to the situ- administered State supplementation). ation of the individual seeking relief (c) If the underpaid individual dies from adjustment or recovery of an before all the benefits due have been overpayment. The overpaid individual deposited into the dedicated account, (and any other individual from whom we will follow the rules which apply to the Social Security Administration underpayments for the payment of any seeks to recover the overpayment) is

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not relieved of liability and is not with- § 416.553 Waiver of adjustment or re- out fault solely because the Social Se- covery—defeat the purpose of the curity Administration may have been supplemental security income pro- at fault in making the overpayment. In gram. determining whether an individual is We will waive adjustment or recovery without fault, the fault of the overpaid of an overpayment when an individual person and the fault of the individual on whose behalf waiver is being consid- seeking relief under the waiver provi- ered is without fault (as defined in sion are considered. Whether an indi- § 416.552) and adjustment or recovery of vidual is without fault depends on all the overpayment would defeat the pur- the pertinent circumstances sur- pose of the supplemental security in- rounding the overpayment in the par- come program. ticular case. The Social Security Ad- (a) General rule. We consider adjust- ministration considers the individual’s ment or recovery of an overpayment to understanding of the reporting require- defeat the purpose of the supplemental ments, the agreement to report events security income (SSI) program if the individual’s income and resources are affecting payments, knowledge of the needed for ordinary and necessary liv- occurrence of events that should have ing expenses under the criteria set out been reported, efforts to comply with in § 404.508(a) of this chapter the reporting requirements, opportuni- (b) Alternative criteria for individuals ties to comply with the reporting re- currently eligible for SSI benefits. We quirements, understanding of the obli- consider an individual or couple cur- gation to return checks which were not rently eligible for SSI benefits to have due, and ability to comply with the re- met the test in paragraph (a) of this porting requirements (e.g., age, com- section if the individual’s or couple’s prehension, memory, physical and current monthly income (that is, the mental condition). In determining income upon which the individual’s or whether an individual is without fault couple’s eligibility for the current based on a consideration of these fac- month is determined) does not exceed— tors, the Social Security Administra- (1) The applicable Federal monthly tion will take into account any phys- benefit rate for the month in which the ical, mental, educational, or linguistic determination of waiver is made (see limitations (including any lack of fa- subpart D of this part); plus cility with the English language) the (2) The $20 monthly general income individual may have. Although the exclusion described in §§ 416.1112(c)(3) finding depends on all of the cir- and 416.1124(c)(10); plus cumstances in the particular case, an (3) The monthly earned income ex- individual will be found to have been at clusion described in § 416.1112(c)(4); plus fault in connection with an overpay- (4) The applicable State supplement when an incorrect payment re- mentary payment, if any (see subpart sulted from one of the following: T of this part) for the month in which (a) Failure to furnish information determination of waiver is made. which the individual knew or should For those SSI recipients whose income have known was material; exceeds these criteria, we follow the (b) An incorrect statement made by general rule in paragraph (a) of this the individual which he knew or should section. have known was incorrect (this in- [45 FR 72649, Nov. 3, 1980, as amended at 50 cludes the individual’s furnishing his FR 48573, Nov. 26, 1985] opinion or conclusion when he was asked for facts), or § 416.554 Waiver of adjustment or recovery—against equity and good (c) The individual did not return a conscience. payment which he knew or could have been expected to know was incorrect. We will waive adjustment or recovery of an overpayment when an individual [40 FR 47763, Oct. 10, 1975, as amended at 59 on whose behalf waiver is being consid- FR 1636, Jan. 12, 1994] ered is without fault (as defined in § 416.552) and adjustment or recovery

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would be against equity and good con- determining whether the criterion is science. Adjustment or recovery is con- met, the overpaid person’s financial sidered to be against equity and good circumstances are not considered. conscience if an individual changed his [40 FR 47764, Oct. 10, 1975] or her position for the worse or relin- quished a valuable right because of re- § 416.556 Waiver of adjustment or re- liance upon a notice that payment covery—countable resources in ex- would be made or because of the incor- cess of the limits prescribed in rect payment itself. In addition, ad- § 416.1205 by $50 or less. justment or recovery is considered to (a) If any overpayment with respect be against equity and good conscience for to an individual (or an individual and an individual who is a member of an el- his or her spouse if any) is attributable igible couple that is legally separated solely to the ownership or possession and/or living apart for that part of an by the individual (and spouse if any) of overpayment not received, but subject countable resources having a value to recovery under § 416.570. which exceeds the applicable dollar fig- Example 1: Upon being notified that he was ure specified in § 416.1205 by an amount eligible for supplemental security income of $50.00 or less, including those re- payments, an individual signed a lease on an sources deemed to an individual in ac- apartment renting for $15 a month more cordance with § 416.1202, such individual than the room he had previously occupied. It (and spouse if any) shall be deemed to was subsequently found that eligibility for have been without fault in connection the payment should not have been established. In such a case, recovery would be con- with the overpayment, and waiver of sidered ‘‘against equity and good con- adjustment or recovery will be made, science.’’ unless the failure to report the value of Example 2: An individual fails to take ad- the excess resources correctly and in a vantage of a private or organization charity, timely manner was willful and know- relying instead on the award of supplemental ing. security income payments to support him- (b) Failure to report the excess re- self. It was subsequently found that the sources correctly and in a timely man- money was improperly paid. Recovery would be considered ‘‘against equity and good con- ner will be considered to be willful and science.’’ knowing and the individual will be Example 3: Mr. and Mrs. Smith—members found to be at fault when the evidence of an eligible couple—separate in July. Later clearly shows the individual (and in July, Mr. Smith receives earned income spouse if any) was fully aware of the resulting in an overpayment to both. Mrs. requirements of the law and of the ex- Smith is found to be without fault in causing cess resources and chose to conceal the overpayment. Recovery from Mrs. Smith of Mr. Smith’s part of the couple’s overpay- these resources. When an individual in- ment is waived as being against equity and curred a similar overpayment in the good conscience. Whether recovery of Mr. past and received an explanation and Smith’s portion of the couple’s overpayment instructions at the time of the previous can be waived will be evaluated separately. overpayment, we will generally find [60 FR 16375, Mar. 30, 1995] the individual to be at fault. However, in determining whether the individual § 416.555 Waiver of adjustment or re- is at fault, we will consider all aspects covery—impede administration. of the current and prior overpayment Waiver of adjustment or recovery is situations, and where we determine the proper when the overpaid person on individual is not at fault, we will waive whose behalf waiver is being considered adjustment or recovery of the subse- is without fault, as defined in § 416.552, quent overpayment. In making any de- and adjustment or recovery would im- termination or decision under this sec- pede efficient or effective administration concerning whether an individual tion of title XVI due to the small is at fault, including a determination amount involved. The amount of over- or decision of whether the failure to repayment determined to meet such cri- port the excess resources correctly and teria is measured by the current aver- in a timely manner was willful and age administrative cost of handling knowing, we will take into account any such overpayment case through such physical, mental, educational, or lin- adjustment or recovery processes. In guistic limitations (including any lack

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of facility with the English language) mation presented or reviewed at the of the individual (and spouse if any). conference; [53 FR 16544, May 10, 1988, as amended at 59 (2) Ascertains the role and identity of FR 1636, Jan. 12, 1994] everyone present; (3) Indicates whether or not the indi- § 416.557 Personal conference. vidual reviewed the claims file; (a) If waiver cannot be approved (i.e., (4) Explains the provisions of law and the requirements in § 416.550 (a) and (b) regulations applicable to the issue; are not met), the individual is notified (5) Briefly summarizes the evidence in writing and given the dates, times already in file which will be consid- and place of the file review and per- ered; sonal conference; the procedure for re- (6) Ascertains from the individual viewing the claims file prior to the per- whether the information presented is sonal conference; the procedure for correct and whether he/she fully under- seeking a change in the scheduled date, stands it; time and/or place; and all other infor- (7) Allows the individual and the in- mation necessary to fully inform the dividual’s representative, if any, to individual about the personal con- present the individual’s case; ference. The file review is always (8) Secures updated financial infor- scheduled at least 5 days before the mation and verification, if necessary; personal conference. We will offer to (9) Allows each witness to present in- the individual the option of conducting formation and allows the individual the personal conference face-to-face at and the individual’s representative to a place we designate, by telephone, or question each witness; by video teleconference. The notice (10) Ascertains whether there is any will advise the individual of the date further evidence to be presented; and time of the personal conference. (11) Reminds the individual of any (b) At the file review, the individual evidence promised by the individual and the individual’s representative which has not been presented; have the right to review the claims file (12) Lets the individual and the indi- and applicable law and regulations vidual’s representative, if any, present with the decisionmaker or another of any proposed summary or closing our representatives who is prepared to statement; answer questions. We will provide cop- (13) Explains that a decision will be ies of material related to the overpay- made and the individual will be noti- ment and/or waiver from the claims fied in writing; and file or pertinent sections of the law or (14) Explains repayment options and regulations that are requested by the further appeal rights in the event the individual or the individual’s rep- decision is adverse to the individual. resentative. (e) SSA issues a written decision to (c) At the personal conference, the the individual (and his or her rep- individual is given the opportunity to: resentative, if any) specifying the find- (1) Appear personally, testify, cross- ings of fact and conclusions in support examine any witnesses, and make argu- of the decision to approve or deny ments; waiver and advising of the individual’s (2) Be represented by an attorney or right to appeal the decision. If waiver other representative (see § 416.1500), al- is denied, adjustment or recovery of though the individual must be present the overpayment begins even if the in- at the conference; and dividual appeals. (3) Submit documents for consider- (f) If it appears that the waiver can- ation by the decisionmaker. not be approved, and the individual de- (d) At the personal conference, the clines a personal conference or fails to decisionmaker: appear for a second scheduled personal (1) Tells the individual that the deci- conference, a decision regarding the sionmaker was not previously involved waiver will be made based on the writ- in the issue under review, that the ten evidence of record. Reconsideration waiver decision is solely the decision- is the next step in the appeals process. maker’s, and that the waiver decision is based only on the evidence or infor- [73 FR 1973, Jan. 11, 2008]

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§ 416.558 Notice relating to overpay- § 416.560 Recovery—refund. ments and underpayments. An overpayment may be refunded by (a) Notice of overpayment and under- the overpaid recipient or by anyone on payment determination. Whenever a de- his or her behalf. Refund should be termination concerning the amount made in every case where the overpaid paid and payable for any period is made individual is not currently eligible for and it is found that, with respect to SSI benefits. If the individual is cur- any month in the period, more or less rently eligible for SSI benefits and has than the correct amount was paid, not refunded the overpayment, adjust- written notice of the correct and incor- ment as set forth in § 416.570 will be rect amounts for each such month in proposed. the period will be sent to the individual [55 FR 33669, Aug. 17, 1990] against whom adjustment or recovery of the overpayment as defined in § 416.570 Adjustment. § 416.537(a) may be effected or to whom (a) General. When a recipient has the underpayment as defined in been overpaid, the overpayment has §§ 416.536 and any amounts subject to not been refunded, and waiver of ad- installment payments as defined in justment or recovery is not applicable, § 416.544 would be payable, notwith- any payment due the overpaid recipi- standing the fact that part or all of the ent or his or her eligible spouse (or re- underpayment must be withheld in ac- covery from the estate of either or cordance with § 416.543. When notifying both when either or both die before ad- an individual of a determination of justment is completed) is adjusted for overpayment, the Social Security Ad- recovery of the overpayment. Adjust- ministration will, in the notice, also ment will generally be accomplished by advise the individual that adjustment withholding each month the amount or recovery is required, as set forth in set forth in § 416.571 from the benefit § 416.571, except under certain specified payable to the individual except that, conditions, and of his or her right to when the overpayment results from the request waiver of adjustment or recov- disposition of resources as provided by ery of the overpayment under the pro- §§ 416.1240(b) and 416.1244, the overpay- visions of § 416.550. ment will be recovered by withholding (b) Notice of waiver determination. any payments due the overpaid recipi- Written notice of an initial determina- ent or his or her eligible spouse before tion of waiver shall be given the indi- any further payment is made. Absent a vidual in accordance with § 416.1404 un- specific request from the person from less the individual was not given notice whom recovery is sought, no overpay- of the overpayment in accordance with ment made under title XVIII of the Act paragraph (a) of this section. will be recovered by adjusting SSI benefits. In no case shall an overpayment (c) Notice relating to installment pay- of SSI benefits be adjusted against ments to individuals whose drug addiction title XVIII benefits. No funds properly or alcoholism is a contributing factor ma- deposited into a dedicated account (see terial to the determination of disability. §§ 416.546 and 416.640(e)) can be used to Whenever a determination is made con- repay an overpayment while the over- cerning the amount of any benefits due paid individual remains subject to the for a period that must be paid in in- provisions of those sections. stallments, the written notice will also (b) Overpayment made to representative explain the amount of the installment payee after the recipient’s death. A rep- payment and when an increased initial resentative payee or his estate is solely installment payment may be made (as liable for repaying an overpayment described in § 416.544). This written no- made to the representative payee on tice will be sent to the individual and behalf of a recipient after the recipi- his or her representative payee. ent’s death. In such case, we will re- [40 FR 47764, Oct. 10, 1975, as amended at 55 cover the overpayment according to FR 33668, Aug. 17, 1990; 60 FR 8150, Feb. 10, paragraph (a) of this section, except 1995] that:

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(1) We will not adjust any other pay- part of the recipient; it is an affirma- ment due to the eligible spouse of the tive act to conceal. The 10-percent lim- overpaid representative payee to re- itation does not apply to the recovery cover the overpayment, and of overpayments incurred under agree- (2) If the overpaid representative ments to dispose of resources pursuant payee dies before we complete adjust- to § 416.1240. In addition, the 10-percent ment, we will not seek to recover the limitation does not apply to the reduc- overpayment from the eligible spouse tion of any future SSI benefits as a or the estate of the eligible spouse. consequence of the misuse of funds set aside in accordance with § 416.1231(b) to [70 FR 16, Jan. 3, 2005, as amended at 73 FR 65543, Nov. 4, 2008] meet burial expenses. Adjustment or recovery will be suspended if the re- § 416.571 10-percent limitation of cipient is subject to a reduced benefit recoupment rate—overpayment. rate under § 416.414 because of residing Any adjustment or recovery of an in a medical treatment facility in overpayment for an individual in cur- which Medicaid is paying a substantial rent payment status is limited in portion of the recipient’s cost of care. amount in any month to the lesser of [55 FR 33669, Aug. 17, 1990, as amended at 72 (1) the amount of the individual’s ben- FR 50874, Sept. 5, 2007] efit payment for that month or (2) an amount equal to 10 percent of the indi- § 416.572 Are title II and title VIII ben- vidual’s total income (countable in- efits subject to adjustment to re- come plus SSI and State supple- cover title XVI overpayments? mentary payments) for that month. (a) Definitions—(1) Cross-program re- The countable income used is the covery. Cross-program recovery is the countable income used in determining process that we will use to collect title the SSI and State supplementary pay- XVI overpayments from benefits payments for that month under § 416.420. able to you under title II or title VIII When the overpaid individual is noti- of the Social Security Act. fied of the proposed SSI and/or feder- (2) Benefits payable. For purposes of ally administered State supplementary this section, benefits payable means overpayment adjustment or recovery, the amount of title II or title VIII ben- the individual will be given the oppor- efits you actually would receive. For tunity to request that such adjustment title II benefits, it includes your or recovery be made at a higher or monthly benefit and your past-due ben- lower rate than that proposed. If a efits after any reductions or deductions lower rate is requested, a rate of with- listed in § 404.401(a) and (b) of this chap- holding that is appropriate to the fi- ter. For title VIII benefits, it includes nancial condition of the overpaid indi- your monthly benefit and any past-due vidual will be set after an evaluation of benefits after any reduction by the all the pertinent facts. An appropriate amount of income for the month as de- rate is one that will not deprive the in- scribed in §§ 408.505 through 408.510 of dividual of income required for ordi- this chapter. nary and necessary living expenses. (b) When may we collect title XVI over- This will include an evaluation of the payments using cross-program recovery? individual’s income, resources, and We may use cross-program recovery to other financial obligations. The 10-per- collect a title XVI overpayment you cent limitation does not apply where it owe when benefits are payable to you is determined that the overpayment under title II, title VIII, or both. occurred because of fraud, willful mis- [70 FR 16, Jan. 3, 2005] representation, or concealment of material information committed by the § 416.573 How much will we withhold individual or his or her spouse. Con- from your title II and title VIII ben- cealment of material information efits to recover a title XVI overpay- means an intentional, knowing, and ment? purposeful delay in making or failure (a) If past-due benefits are payable to to make a report that will affect pay- you, we will withhold the lesser of the ment amount and/or eligibility. It does entire overpayment balance or the en- not include a mere omission on the tire amount of past-due benefits.

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(b)(1) We will collect the overpay- (c) You may ask us to review this de- ment from current monthly benefits termination that you still owe this due in a month by withholding the overpayment balance; lesser of the amount of the entire over- (d) You may request that we with- payment balance or 10 percent of the hold a different amount from your cur- monthly title II benefits and monthly rent monthly benefits (the notice will title VIII benefits payable to you in the not include this information if month. § 416.573(d) applies); and (2) If we are already recovering a (e) You may ask us to waive collec- title II, title VIII or title XVI overpay- tion of this overpayment balance. ment from your monthly title II ben- [70 FR 16, Jan. 3, 2005] efit, we will figure your monthly withholding from title XVI payments (as § 416.575 When will we begin cross- described in § 416.571) without including program recovery from your cur- your title II benefits in your total rent monthly benefits? countable income. (a) We will begin collecting the over- (3) Paragraph (b)(1) of this section payment balance by cross-program re- does not apply if: covery from your current monthly title (i) You request and we approve a dif- II and title VIII benefits no sooner ferent rate of withholding, or than 30 calendar days after the date of (ii) You or your spouse willfully mis- the notice described in § 416.574. If with- represented or concealed material in- in that 30-day period you pay us the formation in connection with the over- full overpayment balance stated in the payment. notice, we will not begin cross-program (c) In determining whether to grant recovery. your request that we withhold less (b) If within that 30-day period you than the amount described in para- ask us to review our determination graph (b)(1) of this section, we will use that you still owe us this overpayment the criteria applied under § 416.571 to balance, we will not begin cross-pro- similar requests about withholding gram recovery from your current from title XVI benefits. monthly benefits before we review the (d) If you or your spouse willfully matter and notify you of our decision misrepresented or concealed material in writing. information in connection with the (c) If within that 30-day period you overpayment, we will collect the over- ask us to withhold a different amount payment by withholding the lesser of from your current monthly benefits the overpayment balance or the entire than the amount stated in the notice, amount of title II benefits and title we will not begin cross-program recov- VIII benefits payable to you. We will ery until we determine the amount we not collect at a lesser rate. (See will withhold. This paragraph does not § 416.571 for what we mean by conceal- apply when § 416.573(d) applies. ment of material information.) (d) If within that 30-day period you ask us to waive recovery of the over- [70 FR 16, Jan. 3, 2005] payment balance, we will not begin § 416.574 Will you receive notice of our cross-program recovery from your cur- intention to apply cross-program rent monthly benefits before we review recovery? the matter and notify you of our deci- Before we collect an overpayment sion in writing. See §§ 416.550 through from you using cross-program recov- 416.556. ery, we will send you a written notice [70 FR 16, Jan. 3, 2005] that tells you the following information: § 416.580 Referral of overpayments to (a) We have determined that you owe the Department of the Treasury for a specific overpayment balance that tax refund offset—General. can be collected by cross-program re- (a) The standards we will apply and covery; the procedures we will follow before re- (b) We will withhold a specific questing the Department of the Treas- amount from the title II or title VIII ury to offset income tax refunds due benefits (see § 416.573); taxpayers who have an outstanding

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overpayment are set forth in §§ 416.580 (d) That we will review any evidence through 416.586 of this subpart. These presented that the overpayment is not standards and procedures are author- past due or not legally enforceable; ized by the Deficit Reduction Act of (e) That the overpaid person has the 1984 [31 U.S.C. § 3720A], as implemented right to inspect and copy our records through Department of the Treasury related to the overpayment as deter- regulations at 31 CFR 285.2. mined by us and will be informed as to (b) We will use the Department of the where and when the inspection and Treasury tax refund offset procedure to copying can be done after we receive collect overpayments that are certain notice from the overpaid person that in amount, past due and legally en- inspection and copying are requested. forceable, and eligible for tax refund offset under regulations issued by the [62 FR 49439, Sept. 22, 1997, as amended at 76 Secretary of the Treasury. We will use FR 65109, Oct. 20, 2011] these procedures to collect overpay- § 416.582 Review within SSA that an ments only from persons who are not overpayment is past due and legally currently entitled to monthly supple- enforceable. mental security income benefits under title XVI of the Act. We refer overpay- (a) Notification by overpaid individual. ments to the Department of the Treas- An overpaid individual who receives a ury for offset against Federal tax re- notice as described in § 416.581 of this funds regardless of the amount of time subpart has the right to present evi- the debts have been outstanding. dence that all or part of the overpayment is not past due or not legally en- [62 FR 49439, Sept. 22, 1997, as amended at 76 forceable. To exercise this right, the FR 65108, Oct. 20, 2011] individual must notify us and present evidence regarding the overpayment § 416.581 Notice to overpaid person. within 60 calendar days from the date We will make a request for collection of our notice. by reduction of Federal and State in- (b) Submission of evidence. The over- come tax refunds only after we deter- paid individual may submit evidence mine that a person owes an overpay- showing that all or part of the debt is ment that is past due and provide the not past due or not legally enforceable overpaid person with written notice. as provided in paragraph (a) of this sec- Our notice of intent to collect an over- tion. Failure to submit the notification payment through tax refund offset will and evidence within 60 calendar days state: will result in referral of the overpay- (a) The amount of the overpayment; ment to the Department of the Treas- and ury, unless the overpaid individual, (b) That we will collect the overpay- within this 60-day time period, has ment by requesting that the Depart- asked us to waive collection of the ment of the Treasury reduce any overpayment under section amounts payable to the overpaid per- 1631(b)(1)(B) of the Act and we have not son as refunds of Federal and State in- yet determined whether we can grant come taxes by an amount equal to the the waiver request. If the overpaid in- amount of the overpayment unless, dividual asks us to waive collection of within 60 calendar days from the date the overpayment, we may ask that evi- of our notice, the overpaid person: dence to support the request be sub- (1) Repays the overpayment in full; mitted to us. or (c) Review of the evidence. After a (2) Provides evidence to us at the ad- timely submission of evidence by the dress given in our notice that the over- overpaid individual, we will consider payment is not past due or legally en- all available evidence related to the forceable; or overpayment. We will make findings (3) Asks us to waive collection of the based on a review of the written record, overpayment under section 204(b) of unless we determine that the question the Act. of indebtedness cannot be resolved by a (c) The conditions under which we review of the documentary evidence. will waive recovery of an overpayment under section 1631(b)(1)(B) of the Act; [62 FR 49439, Sept. 22, 1997]

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§ 416.583 Findings by SSA. copy our records related to the overpayment. We may also, at our discre- (a) Following the review of the tion, mail copies of the overpayment- record, we will issue written findings related records to the overpaid indi- which include supporting rationale for vidual. the findings. Issuance of these findings concerning whether the overpayment [62 FR 49439, Sept. 22, 1997] or part of the overpayment is past due and legally enforceable is the final § 416.585 Suspension of offset. Agency action with respect to the past- If, within 60 days of the date of the due status and enforceability of the notice described in § 416.581 of this sub- overpayment. If we make a determina- part, the overpaid individual notifies tion that a waiver request cannot be us that he or she is exercising a right granted, we will issue a written notice described in § 416.582(a) of this subpart of this determination in accordance and submits evidence pursuant to with the regulations in subpart E of § 416.582(b) of this subpart or requests a this part. Our referral of the overpay- waiver under § 416.550 of this subpart, ment to the Department of the Treas- we will suspend any notice to the De- ury will not be suspended under partment of the Treasury until we have § 416.585 of this subpart pending any issued written findings that affirm that further administrative review of the an overpayment is past due and legally waiver request that the individual may enforceable and, if applicable, make a seek. determination that a waiver request (b) Copies of the findings described in cannot be granted. paragraph (a) of this section will be [62 FR 49440, Sept. 22, 1997] distributed to the overpaid individual and the overpaid individual’s attorney § 416.586 Tax refund insufficient to or other representative, if any. cover amount of overpayment. (c) If the findings referred to in para- If a tax refund is insufficient to re- graph (a) of this section affirm that all cover an overpayment in a given year, or part of the overpayment is past due the case will remain with the Depart- and legally enforceable and, if waiver ment of the Treasury for succeeding is requested and we determine that the years, assuming that all criteria for request cannot be granted, we will certification are met at that time. refer the overpayment to the Depart- ment of the Treasury. However, no re- [62 FR 49440, Sept. 22, 1997] ferral will be made if, based on our re- § 416.590 Are there additional methods view of the overpayment, we reverse for recovery of title XVI benefit our prior finding that the overpayment overpayments? is past due and legally enforceable or, upon consideration of a waiver request, (a) General. In addition to the meth- we determine that waiver of our collec- ods specified in §§ 416.560, 416.570, 416.572 tion of the overpayment is appropriate. and 416.580, we may recover an overpayment under title XVI of the Act [62 FR 49439, Sept. 22, 1997] from you under the rules in subparts D and E of part 422 of this chapter. Sub- § 416.584 Review of our records re- part D of part 422 of this chapter ap- lated to the overpayment. plies only under the following condi- (a) Notification by the overpaid indi- tions: vidual. An overpaid individual who in- (1) The overpayment occurred after tends to inspect or copy our records re- you attained age 18; lated to the overpayment as deter- (2) You are no longer entitled to ben- mined by us must notify us stating his efits under title XVI of the Act; and or her intention to inspect or copy. (3) Pursuant to paragraph (b) of this (b) Our response. In response to a no- section, we have determined that the tification by the overpaid individual as overpayment is otherwise unrecover- described in paragraph (a) of this sec- able under section 1631(b) of the Act. tion, we will notify the overpaid indi- (b) When we consider an overpayment vidual of the location and time when to be otherwise unrecoverable. We con- the overpaid individual may inspect or sider an overpayment under title XVI

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of the Act to be otherwise unrecover- determining whether to make rep- able under section 1631(b) of the Act if resentative payment and in selecting a all of the following conditions are met: representative payee. It also explains (1) We have completed our billing the responsibilities that a representa- system sequence (i.e., we have sent you tive payee has concerning the use of an initial notice of the overpayment, a the funds he or she receives on behalf reminder notice, and a past-due notice) of a beneficiary. A representative or we have suspended or terminated payee may be either a person or an or- collection activity under applicable ganization selected by us to receive rules, such as, the Federal Claims Col- benefits on behalf of a beneficiary. A lection Standards in 31 CFR 903.2 or representative payee will be selected if 903.3. we believe that the interest of a bene- (2) We have not entered into an in- ficiary will be served by representative stallment payment arrangement with payment rather than direct payment of you or, if we have entered into such an benefits. Generally, we appoint a rep- arrangement, you have failed to make resentative payee if we have deter- any payment for two consecutive mined that the beneficiary is not able months. to manage or direct the management of (3) You have not requested waiver benefit payments in his or her own in- pursuant to § 416.550 or § 416.582 or, after terest. a review conducted pursuant to those (b) Policy used to determine whether to sections, we have determined that we make representative payment. (1) Our pol- will not waive collection of the over- icy is that every beneficiary has the payment. right to manage his or her own bene- (4) You have not requested reconsid- fits. However, some beneficiaries due eration of the initial overpayment de- to a mental or physical condition or termination pursuant to §§ 416.1407 and due to their youth may be unable to do 416.1409 or, after a review conducted so. Under these circumstances, we may pursuant to § 416.1413, we have affirmed determine that the interests of the all or part of the initial overpayment beneficiary would be better served if determination. we certified benefit payments to an- (5) We cannot recover your overpay- other person as a representative payee. ment pursuant to § 416.570 by adjust- However, we must select a representa- ment of benefits payable to any indi- tive payee for an individual who is eli- vidual other than you. For purposes of gible for benefits solely on the basis of this paragraph, if you are a member of disability if drug addiction or alco- an eligible couple that is legally separated and/or living apart, we will deem holism is a contributing factor mate- unrecoverable from the other person rial to the determination of disability. that part of your overpayment which (2) If we determine that representa- he or she did not receive. tive payment is in the interest of a beneficiary, we will appoint a rep- [66 FR 67081, Dec. 28, 2001, as amended at 68 resentative payee. We may appoint a FR 74184, Dec. 23, 2003] representative payee even if the beneficiary is a legally competent indi- Subpart F—Representative vidual. If the beneficiary is a legally Payment incompetent individual, we may appoint the legal guardian or some other AUTHORITY: Secs. 205(j)(1)(C), 702(a)(5), person as a representative payee. 1631(a)(2) and (d)(1) of the Social Security (3) If payment is being made directly Act (42 U.S.C. 405(j)(1)(C), 902(a)(5), 1383(a)(2) to a beneficiary and a question arises and (d)(1)). concerning his or her ability to manage SOURCE: 47 FR 30475, July 14, 1982, unless or direct the management of benefit otherwise noted. payments, we will, if the beneficiary is 18 years old or older and has not been § 416.601 Introduction. adjudged legally incompetent, continue (a) Explanation of representative pay- to pay the beneficiary until we make a ment. This subpart explains the prin- determination about his or her ability ciples and procedures that we follow in to manage or direct the management of

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benefit payments and the selection of a (1) If you are receiving disability pay- representative payee. ments and we have determined that you have a drug addiction or alco- [47 FR 30475, July 14, 1982, as amended at 60 FR 8150, Feb. 10, 1995] holism condition, or you are legally incompetent, or you are under age 15, we § 416.610 When payment will be made will presume that substantial harm ex- to a representative payee. ists. However, we will allow you to (a) We pay benefits to a representa- rebut this presumption by presenting tive payee on behalf of a beneficiary 18 evidence that direct payment would years old or older when it appears to us not cause you substantial harm. that this method of payment will be in (2) If you do not fit any of these cat- the interest of the beneficiary. We do egories, we make findings of substan- this if we have information that the tial harm on a case-by-case basis. We beneficiary is— consider all matters that may affect (1) Legally incompetent or mentally your ability to manage your benefits in incapable of managing benefit pay- your own best interest. We decide that ments; or substantial harm exists if both of the (2) Physically incapable of managing following conditions exist: or directing the management of his or (i) Directly receiving benefits can be her benefit payments; or expected to cause you serious physical (3) Eligible for benefits solely on the or mental injury. basis of disability and drug addiction (ii) The possible effect of the injury or alcoholism is a contributing factor would outweigh the effect of having no material to the determination of dis- income to meet your basic needs. ability. (b) We may delay or suspend your pay- (b) Generally, if a beneficiary is ments. If we find that direct payment under age 18, we will pay benefits to a will cause substantial harm to you, we representative payee. However, in cer- may delay (in the case of initial eligi- tain situations, we will make direct bility for benefits) or suspend (in the payments to a beneficiary under age 18 case of existing eligibility for benefits) who shows the ability to manage the payments for as long as one month benefits. For example, we make direct while we try to find a suitable rep- payment to a beneficiary under age 18 resentative payee. If we do not find a if the beneficiary is— payee within one month, we will pay (1) A parent and files for himself or you directly. If you are receiving dis- herself and/or his or her child and he or ability payments and we have deter- she has experience in handling his or mined that you have a drug addiction her own finances; or or alcoholism condition, or you are le- (2) Capable of using the benefits to gally incompetent, or you are under provide for his or her current needs and age 15, we will withhold payment until no qualified payee is available; or a representative payee is appointed (3) Within 7 months of attaining age even if it takes longer than one month. 18 and is initially filing an application We will, however, as noted in para- for benefits. graph (a)(1) of this section, allow you [47 FR 30475, July 14, 1982, as amended at 54 to present evidence to rebut the pre- FR 35483, Aug. 28, 1989; 60 FR 8150, Feb. 10, sumption that direct payment would 1995] cause you substantial harm. See § 416.601(b)(3) for our policy on sus- § 416.611 What happens to your month- pending the benefits if you are cur- ly benefits while we are finding a rently receiving benefits directly. suitable representative payee for you? Example 1: Substantial Harm Exists. We are (a) We may pay you directly. We will unable to find a representative payee for Mr. pay current monthly benefits directly X, a 67 year old claimant receiving title XVI to you while finding a suitable rep- benefits based on age who is an alcoholic. Based on contacts with the doctor and bene- resentative payee unless we determine ficiary, we determine that Mr. X was hos- that paying you directly would cause pitalized recently for his drinking. Paying substantial harm to you. We determine him directly will cause serious injury, so we substantial harm as follows: may delay payment for as long as one month

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based on substantial harm while we locate a which contain information helpful to suitable representative payee. us in deciding whether the beneficiary Example 2: Substantial Harm Does Not Exist. is able to manage or direct the man- We approve a claim for Mr. Y, a title XVI agement of benefit payments. claimant who suffers from a combination of mental impairments but who is not legally incompetent. We determine that Mr. Y needs § 416.618 Advance designation of rep- assistance in managing benefits, but we have resentative payees. not found a representative payee. Although (a) General. An individual who: we believe that Mr. Y may not use the (1) Is eligible for or an applicant for money wisely, there is no indication that re- a benefit; and ceiving funds directly would cause him sub- (2) Has attained 18 years of age or is stantial harm (i.e., serious physical or men- an emancipated minor, may designate tal injury). We must pay current benefits directly to Mr. Y while we locate a suitable in advance one or more individuals to representative payee. possibly serve as a representative payee for the individual if we deter- (c) How we pay delayed or suspended mine that payment will be made to a benefits. Payment of benefits, which representative payee (see § 416.610(a)). were delayed or suspended pending ap- An individual may not designate in ad- pointment of a representative payee, vance possible representative payees if can be made to you or your representa- we have information that the indi- tive payee as a single sum or in install- vidual is either legally incompetent or ments when we determine that install- mentally incapable of managing his or ments are in your best interest. her benefit payments; or physically in- [69 FR 60236, Oct. 7, 2004] capable of managing or directing the management of his or her benefit pay- § 416.615 Information considered in ments. determining whether to make rep- (b) How to designate possible represent- resentative payment. ative payees in advance. Individuals who In determining whether to make rep- meet the requirements in paragraph (a) resentative payment we consider the of this section may designate in ad- following information: vance their choice(s) for possible rep- (a) Court determinations. If we learn resentative payees by indicating their that a beneficiary has been found to be decision to designate a representative legally incompetent, a certified copy of payee in advance and providing us with the court’s determination will be the the required information. In addition basis of our determination to make to the required information, an indi- representative payment. vidual may choose to provide us with (b) Medical evidence. When available, the relationship of the advance des- we will use medical evidence to deter- ignee to the individual. The informa- mine if a beneficiary is capable of man- tion we require before we will consider aging or directing the management of an advance designee as a possible rep- benefit payments. For example, a resentative payee is: statement by a physician or other med- (1) The name of the advance designee, ical professional based upon his or her (2) A telephone number of the ad- recent examination of the beneficiary vance designee, and and his or her knowledge of the bene- (3) The order of priority in which the ficiary’s present condition will be used individual would like us to consider the in our determination, if it includes in- advance designees if he or she des- formation concerning the nature of the ignates more than one advance des- beneficiary’s illness, the beneficiary’s ignee. chances for recovery and the opinion of (c) How to make changes to advance the physician or other medical profes- designation. Individuals who meet the sional as to whether the beneficiary is requirements in paragraph (a) of this able to manage or direct the manage- section may change their advance des- ment of benefit payments. ignees by informing us of the change (c) Other evidence. We will also con- and providing the required information sider any statements of relatives, (see paragraphs (b)(1) through (3) of friends and other people in a position this section) to us. Individuals who to know and observe the beneficiary, meet the requirements in paragraph (a)

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of this section may withdraw their ad- (c) Any legal authority the person, vance designation by informing us of agency, organization or institution has the withdrawal. to act on behalf of the beneficiary; (d) How we consider advance designa- (d) Whether the potential payee has tion when we select a representative custody of the beneficiary; payee. (1) If we determine that payment (e) Whether the potential payee is in will be made to a representative payee, a position to know of and look after we will review advance designees in the the needs of the beneficiary; order listed by the individual and se- (f) The potential payee’s criminal lect the first advance designee who history; and meets the criteria for selection. To (g) Whether the beneficiary made an meet the criteria for selection— advance designation (see § 416.618). (i) The advance designee must be [47 FR 30475, July 14, 1982, as amended at 84 willing and able to serve as a rep- FR 4325, Feb. 15, 2019; 85 FR 7665, Feb. 11. resentative payee, 2020] (ii) Appointment of the advance designee must comply with the require- § 416.621 What is our order of preference in selecting a representative ments in section 205(j)(2) of the Social payee for you? Security Act, and As a guide in selecting a representa- (iii)There must be no other good tive payee, we have established cat- cause (see §§ 416.620 and 416.621) to pre- egories of preferred payees. These pref- vent us from selecting the advance des- erences are flexible. We will consider ignee. an individual’s advance designees (see (2) If none of the advance designees § 416.618) before we consider other po- meet the criteria for selection, we will tential representative payees in the use our list of categories of preferred categories of preferred payees listed in payees (see § 416.621), along with our this section. When we select a rep- other regulations in subpart F of this resentative payee, we will choose the part, as a guide to select a suitable rep- designee of the beneficiary’s highest resentative payee. priority, provided that the designee is (e) How we consider advance designa- willing and able to serve, is not prohib- tion when we select a subsequent rep- ited from serving (see § 416.622), and resentative payee. If an individual who supports the best interest of the bene- currently has a representative payee ficiary (see § 416.620). The preferences requires a change of representative are: payee, we will consider any other des- (a) For beneficiaries 18 years old or ignees identified by the individual at a older (except those described in para- time in which that individual was eli- graph (b) of this section), our pref- gible to make an advanced designation, erence is— under paragraph (d) of this section. (1) A legal guardian, spouse (or other (f) Organizations. An individual may relative) who has custody of the bene- not designate in advance an organiza- ficiary or who demonstrates strong tion to serve as his or her possible rep- concern for the personal welfare of the resentative payee. beneficiary; (2) A friend who has custody of the [85 FR 7665, Feb. 11, 2020] beneficiary or demonstrates strong concern for the personal welfare of the § 416.620 Information considered in selecting a representative payee. beneficiary; (3) A public or nonprofit agency or In selecting a payee we try to select institution having custody of the bene- the person, agency, organization or in- ficiary; stitution that will best serve the inter- (4) A private institution operated for est of the beneficiary. In making our profit and licensed under State law, selection we consider— which has custody of the beneficiary; (a) The relationship of the person to and the beneficiary; (5) Persons other than above who are (b) The amount of interest that the qualified to carry out the responsibil- person shows in the beneficiary; ities of a payee and who are able and

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willing to serve as a payee for the bene- (a) Has been convicted of a violation ficiary; e.g., members of community under section 208, 811 or 1632 of the So- groups or organizations who volunteer cial Security Act. to serve as payee for a beneficiary. (b) Has been convicted of an offense (b) For individuals who are disabled resulting in imprisonment for more and who have a drug addiction or alco- than 1 year. However, we may make an holism condition our preference is— exception to this prohibition, if the na- (1) A community-based nonprofit so- ture of the conviction is such that se- cial service agency licensed by the lection of the applicant poses no risk State, or bonded; to the beneficiary and the exception is (2) A Federal, State or local govern- in the beneficiary’s best interest. ment agency whose mission is to carry (c) Receives title II, VIII, or XVI ben- out income maintenance, social serv- efits through a representative payee. ice, or health care-related activities; (3) A State or local government agen- (d) Previously served as a representa- cy with fiduciary responsibilities; tive payee and was found by us, or a (4) A designee of an agency (other court of competent jurisdiction, to than a Federal agency) referred to in have misused title II, VIII or XVI bene- paragraphs (b)(1), (2), and (3) of this fits. However, if we decide to make an section, if appropriate; or exception to the prohibition, we must (5) A family member. evaluate the payee’s performance at (c) For beneficiaries under age 18, our least every 3 months until we are satis- preference is— fied that the payee poses no risk to the (1) A natural or adoptive parent who beneficiary’s best interest. Exceptions has custody of the beneficiary, or a are made on a case-by-case basis if all guardian; of the following are true: (2) A natural or adoptive parent who (1) Direct payment of benefits to the does not have custody of the bene- beneficiary is not in the beneficiary’s ficiary, but is contributing toward the best interest. beneficiary’s support and is dem- (2) No suitable alternative payee is onstrating strong concern for the bene- available. ficiary’s well being; (3) Selecting the payee applicant as (3) A natural or adoptive parent who representative payee would be in the does not have custody of the bene- best interest of the beneficiary. ficiary and is not contributing toward (4) The information we have indicates his or her support but is demonstrating the applicant is now suitable to serve strong concern for the beneficiary’s as a representative payee. well being; (5) The payee applicant has repaid (4) A relative or stepparent who has the misused benefits or has a plan to custody of the beneficiary; repay them. (5) A relative who does not have custody of the beneficiary but is contrib- (e) Is a creditor. A creditor is some- uting toward the beneficiary’s support one who provides you with goods or and is demonstrating concern for the services for consideration. This restric- beneficiary’s well being; tion does not apply to the creditor who (6) A relative or close friend who does poses no risk to you and whose finan- not have custody of the beneficiary but cial relationship with you presents no is demonstrating concern for the bene- substantial conflict of interest, and is ficiary’s well being; and any of the following: (7) An authorized social agency or (1) A relative living in the same custodial institution. household as you do. (2) Your legal guardian or legal rep- [47 FR 30475, July 14, 1982, as amended at 69 FR 60237, Oct. 7, 2004; 85 FR 7665, Feb. 11, resentative. 2020] (3) A facility that is licensed or certified as a care facility under the law of § 416.622 Who may not serve as a rep- a State or a political subdivision of a resentative payee? State. A representative payee applicant (4) A qualified organization author- may not serve if he/she: ized to collect a monthly fee from you

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for expenses incurred in providing rep- cant is applying to serve as representa- resentative payee services for you, tive payee, we will not consider the under § 416.640a. conviction for one of the crimes, or of (5) An administrator, owner, or em- attempt or conspiracy to commit one ployee of the facility in which you live of the crimes, listed in this paragraph and we are unable to locate an alter- (f), by itself, to prohibit the applicant native representative payee. from serving as a representative payee. (6) Any other individual we deem ap- We will consider the criminal history propriate based on a written deter- of an applicant in this category, along mination. with the factors in paragraphs (a) Example 1: Sharon applies to be representa- through (e) of this section, when we de- tive payee for Ron who we have determined cide whether it is in the best interest needs assistance in managing his benefits. Sharon has been renting a room to Ron for of the individual entitled to benefits to several years and assists Ron in handling his appoint the applicant as a representa- other financial obligations, as needed. She tive payee. charges Ron a reasonable amount of rent. (2) If the representative payee appli- Ron has no other family or friends willing to cant is the parent who was previously help manage his benefits or to act as representative payee. Sharon has demonstrated the representative payee for his or her that her interest in and concern for Ron goes minor child who has since turned age beyond her desire to collect the rent each 18 and continues to be eligible for bene- month. In this instance, we may select Shar- fits, we will not consider the convic- on as Ron’s representative payee because a tion for one of the crimes, or of at- more suitable payee is not available, she ap- tempt or conspiracy to commit one of pears to pose no risk to Ron and there is minimal conflict of interest. We will docu- the crimes, listed in this paragraph (f), ment this decision. by itself, to prohibit the applicant from Example 2: In a situation similar to the one serving as a representative payee for above, Ron’s landlord indicates that she is that beneficiary. We will consider the applying to be payee only to ensure receipt criminal history of an applicant in this of her rent. If there is money left after payment of the rent, she will give it directly to category, along with the factors in Ron to manage on his own. In this situation, paragraphs (a) through (e) of this sec- we would not select the landlord as Ron’s tion, when we decide whether it is in representative payee because of the substan- the best interest of the individual enti- tial conflict of interest and lack of interest tled to benefits to appoint the appli- in his well being. cant as a representative payee. (f) Was convicted under Federal or State law of a felony for: Human traf- (3) If the representative payee appli- ficking, false imprisonment, kidnap- cant received a Presidential or guber- ping, rape or sexual assault, first-de- natorial pardon for the relevant con- gree homicide, robbery, fraud to obtain viction, we will not consider the con- access to government assistance, fraud viction for one of the crimes, or of at- by scheme, theft of government funds tempt or conspiracy to commit one of or property, abuse or neglect, forgery, the crimes, listed in this paragraph (f), or identity theft or identity fraud. We by itself, to prohibit the applicant from will also apply this provision to a rep- serving as a representative payee. We resentative payee applicant with a fel- will consider the criminal history of an ony conviction of an attempt to com- applicant in this category, along with mit any of these crimes or conspiracy the factors in paragraphs (a) through to commit any of these crimes. (e) of this section, when we decide (1) If the representative payee appli- whether it is in the best interest of the cant is the custodial parent of a minor individual entitled to benefits to ap- child beneficiary, custodial parent of a point the applicant as a representative beneficiary who is under a disability payee. which began before the beneficiary attained the age of 22, custodial spouse of [69 FR 60237, Oct. 7, 2004, as amended at 71 FR a beneficiary, custodial court-ap- 61408, Oct. 18, 2006; 84 FR 4325, Feb. 15, 2019] pointed guardian of a beneficiary, or custodial grandparent of the minor child beneficiary for whom the appli-

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§ 416.624 How do we investigate a rep- tion, that a new face-to-face interview resentative payee applicant? is necessary. We base this decision on Before selecting an individual or or- the payee’s past performance and ganization to act as your representa- knowledge of and compliance with our tive payee, we will perform an inves- reporting requirements. tigation. (c) Impracticable. We may consider a (a) Nature of the investigation. As part face-to-face interview impracticable if of the investigation, we do the fol- it would cause the payee applicant lowing: undue hardship. For example, the (1) Conduct a face-to-face interview payee applicant would have to travel a with the payee applicant unless it is great distance to the field office. In impracticable as explained in para- this situation, we may conduct the in- graph (c) of this section. vestigation to determine the payee ap- (2) Require the payee applicant to plicant’s suitability to serve as a rep- submit documented proof of identity, resentative payee without a face-to- unless information establishing iden- face interview. tity has recently been submitted with an application for title II, VIII or XVI [69 FR 60237, Oct. 7, 2004, as amended at 73 FR benefits. 66521, Nov. 10, 2008; 84 FR 4326, Feb. 15, 2018; (3) Verify the payee applicant’s So- 84 FR 57320, Oct. 25, 2019] cial Security account number or employer identification number. § 416.625 What information must a rep- (4) Determine whether the payee ap- resentative payee report to us? plicant has been convicted of a viola- Anytime after we select a representation of section 208, 811 or 1632 of the So- tive payee for you, we may ask your cial Security Act. payee to give us information showing a (5) Determine whether the payee ap- continuing relationship with you, a plicant has previously served as a rep- continuing responsibility for your care, resentative payee and if any previous and how he/she used the payments on appointment as payee was revoked or your behalf. If your representative terminated for misusing title II, VIII payee does not give us the requested or XVI benefits. (6) Use our records to verify the information within a reasonable period payee applicant’s employment and/or of time, we may stop sending your ben- direct receipt of title II, VIII, or XVI efit payment to him/her—unless we de- benefits. termine that he/she had a satisfactory (7) Verify the payee applicant’s con- reason for not meeting our request and cern for the beneficiary with the bene- we subsequently receive the requested ficiary’s custodian or other interested information. If we decide to stop send- person. ing your benefit payment to your rep- (8) Require the payee applicant to resentative payee, we will consider provide adequate information showing paying you directly (in accordance his or her relationship to the bene- with § 416.611) while we look for a new ficiary and to describe his or her re- payee. sponsibility for the care of the beneficiary. [69 FR 60238, Oct. 7, 2004] (9) Determine whether the payee applicant is a creditor of the beneficiary § 416.626 How do we investigate an appointed representative payee? (see § 416.622(e)). (10) Conduct a criminal background After we select an individual to act check on the individual payee appli- as your representative payee, we will cant. conduct a criminal background check (b) Subsequent face-to-face interviews. on the appointed representative payee After holding a face-to-face interview at least once every 5 years. with a payee applicant, subsequent face-to-face interviews are not required [84 FR 4326, Feb. 15, 2019, as amended at 84 if that applicant continues to be quali- FR 57320, Oct. 25, 2019] fied and currently is acting as a payee, unless we determine, within our discre-

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§ 416.630 How will we notify you when (a) Use the benefits received on your we decide you need a representa- behalf only for your use and benefit in tive payee? a manner and for the purposes he or (a) We notify you in writing of our she determines under the guidelines in determination to make representative this subpart, to be in your best inter- payment. This advance notice explains ests; that we have determined that rep- (b) Keep any benefits received on resentative payment is in your inter- your behalf separate from his or her est, and it provides the name of the own funds and show your ownership of representative payee we have selected. these benefits unless he or she is your We provide this notice before we actu- spouse or natural or adoptive parent or ally appoint the payee. If you are under stepparent and lives in the same house- age 15, an unemancipated minor under hold with you or is a State or local the age of 18, or legally incompetent, government agency for whom we have our written notice goes to your legal granted an exception to this require- guardian or legal representative. The ment; advance notice: (c) Treat any interest earned on the (1) Contains language that is easily benefits as your property; understandable to the reader. (d) Notify us of any event or change (2) Identifies the person designated as in your circumstances that will affect your representative payee. the amount of benefits you receive, (3) Explains that you, your legal your right to receive benefits, or how guardian, or your legal representative you receive them; can appeal our determination that you (e) Submit to us, upon our request, a need a representative payee. written report accounting for the bene- (4) Explains that you, your legal fits received on your behalf, and make guardian, or your legal representative all supporting records available for re- can appeal our designation of a par- view if requested by us; ticular person to serve as your rep- (f) Notify us of any change in his or resentative payee. her circumstances that would affect (5) Explains that you, your legal performance of his/her payee respon- guardian, or your legal representative sibilities; and can review the evidence upon which (g) Ensure that you are receiving our designation of a particular rep- treatment to the extent considered resentative payee is based and submit medically necessary and available for additional evidence. the condition that was the basis for (b) If you, your legal guardian, or providing benefits (see § 416.994a(i)) if your legal representative objects to you are under age 18 (including cases in representative payment or to the des- which your low birth weight is a con- ignated payee, we will handle the ob- tributing factor material to our deter- jection as follows: mination that you are disabled). (1) If you disagree with the decision [71 FR 61408, Oct. 18, 2006] and wish to file an appeal, we will process it under subpart N of this part. § 416.640 Use of benefit payments. (2) If you received your advance no- (a) Current maintenance. We will con- tice by mail and you protest or file sider that payments we certify to a re- your appeal within 10 days after you presentive payee have been used for the receive the notice, we will delay the use and benefit of the beneficiary if action until we make a decision on they are used for the beneficiary’s cur- your protest or appeal. (If you received rent maintenance. Current mainte- and signed your notice while you were nance includes costs incurred in ob- in the local field office, our decision taining food, shelter, clothing, medical will be effective immediately.) care and personal comfort items. [69 FR 60238, Oct. 7, 2004] Example: A Supplemental Security Income § 416.635 What are the responsibilities beneficiary is entitled to a monthly benefit of your representative payee? of $264. The beneficiary’s son, who is the representative payee, disburses the benefits in A representative payee has a respon- the following manner: sibility to— Rent and Utilities ...... $166

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Medical ...... 20 Example: A disabled beneficiary resides in a Food ...... 60 hospital. The superintendent of the hospital Clothing ...... 10 receives $30 per month as the beneficiary’s Miscellaneous ...... 8 payee. The benefit payment is disbursed in The above expenditures would represent the following manner, which would be con- proper disbursements on behalf of the bene- sistent with our guidelines: ficiary. Miscellaneous canteen items ...... $10 (b) Institution not receiving Medicaid Clothing ...... 15 funds on beneficiary’s behalf. If a bene- Conserved for future needs of the beneficiary ... 5 ficiary is receiving care in a Federal, (d) Claims of creditors. A payee may State, or private institution because of not be required to use benefit pay- mental or physical incapacity, current ments to satisfy a debt of the bene- maintenance will include the cus- ficiary, if the debt arose prior to the tomary charges for the care and serv- first month for which payments are ices provided by an institution, expend- certified to a payee. If the debt arose itures for those items which will aid in prior to this time, a payee may satisfy the beneficiary’s recovery or release it only if the current and reasonably from the institution, and nominal ex- foreseeable needs of the beneficiary are penses for personal needs (e.g., personal met. hygiene items, snacks, candy) which will improve the beneficiary’s condi- Example: A disabled beneficiary was deter- tion. Except as provided under § 416.212, mined to be eligible for a monthly benefit there is no restriction in using SSI payment of $208 effective April 1981. The ben- benefits for a beneficiary’s current efits were certified to the beneficiary’s maintenance in an institution. Any brother who was appointed as the representative payee. The payee conserved $27 of the payments remaining from SSI benefits benefits received. In June 1981 the payee re- may be used for a temporary period to ceived a bill from a doctor who had treated maintain the beneficiary’s residence the beneficiary in February and March 1981. outside of the institution unless a phy- The bill was for $175. sician has certified that the bene- After reviewing the beneficiary’s current ficiary is not likely to return home. needs and resources, the payee decided not to use any of the benefits to pay the doctor’s Example: A hospitalized disabled bene- bill. (Approximately $180 a month is required ficiary is entitled to a monthly benefit of for the beneficiary’s current monthly living $264. The beneficiary, who resides in a board- expenses—rent, utilities, food, and insur- ing home, has resided there for over 6 years. ance—and the beneficiary will need new It is doubtful that the beneficiary will leave shoes and a coat within the next few the boarding home in the near future. The months.) boarding home charges $215 per month for the beneficiary’s room and board. Based upon the above, the payee’s decision The beneficiary’s representative payee not to pay the doctor’s bill is consistent with pays the boarding home $215 (assuming an our guidelines. unsuccessful effort was made to negotiate a (e) Dedicated accounts for eligible indi- lower rate during the beneficiary’s absence) and uses the balance to purchase miscella- viduals under age 18. (1) When past-due neous personal items for the beneficiary. benefit payments are required to be There are no benefits remaining which can paid into a separate dedicated account be conserved on behalf of the beneficiary. (see § 416.546), the representative payee The payee’s use of the benefits is consistent is required to establish in a financial with our guidelines. institution an account dedicated to the (c) Institution receiving Medicaid funds purposes described in paragraph (e)(2) on beneficiary’s behalf. Except in the of this section. This dedicated account case of a beneficiary receiving benefits may be a checking, savings or money payable under § 416.212, if a beneficiary market account subject to the titling resides throughout a month in an insti- requirements set forth in § 416.645. tution that receives more than 50 per- Dedicated accounts may not be in the cent of the cost of care on behalf of the form of certificates of deposit, mutual beneficiary from Medicaid, any pay- funds, stocks, bonds or trusts. ments due shall be used only for the (2) A representative payee shall use personal needs of the beneficiary and dedicated account funds, whether de- not for other items of current mainte- posited on a mandatory or permissive nance. basis (as described in § 416.546), for the 859

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benefit of the child and only for the fol- (ii) A new representative payee is ap- lowing allowable expenses— pointed. When funds remaining in a (i) Medical treatment and education dedicated account are returned to us or job skills training; by the former representative payee, the (ii) If related to the child’s impair- new representative payee must estab- ment(s), personal needs assistance; spe- lish an account in a financial institu- cial equipment; housing modification; tion into which we will deposit these and therapy or rehabilitation; or funds, even if the amount is less than (iii) Other items and services related that prescribed in § 416.546; or to the child’s impairment(s) that we (iii) During a period of suspension determine to be appropriate. The rep- due to ineligibility as described in resentative payee must explain why or § 416.1320, administrative suspension, or how the other item or service relates a period of eligibility for which no pay- to the impairment(s) of the child. At- ment is due. torney fees related to the pursuit of the child’s disability claim and use of [47 FR 30475, July 14, 1982, as amended at 61 funds to prevent malnourishment or FR 10278, Mar. 13, 1996; 61 FR 67206, Dec. 20, 1996; 76 FR 453, Jan. 5, 2011] homelessness could be considered appropriate expenditures. § 416.640a Compensation for qualified (3) Representative payees must keep organizations serving as represent- records and receipts of all deposits to ative payees. and expenditures from dedicated ac- (a) Organizations that can request com- counts, and must submit these records pensation. A qualified organization can to us upon our request, as explained in request us to authorize it to collect a §§ 416.635 and 416.665. monthly fee from your benefit pay- (4) The use of funds from a dedicated ment. A qualified organization is: account in any manner not authorized (1) Any State or local government by this section constitutes a agency with fiduciary responsibilities misapplication of benefits. These misapplied benefits are not an overpay- or whose mission is to carry out in- ment as defined in § 416.537; however, if come maintenance, social service, or we determine that a representative health care-related activities; or payee knowingly misapplied funds in a (2) Any community-based nonprofit dedicated account, that representative social service organization founded for payee shall be liable to us in an religious, charitable or social welfare amount equal to the total amount of purposes, which is tax exempt under the misapplied funds. In addition, if a section 501(c) of the Internal Revenue recipient who is his or her own payee Code and which is bonded/insured to knowingly misapplies benefits in a cover misuse and embezzlement by offi- dedicated account, we will reduce fu- cers and employees and which is li- ture benefits payable to that recipient censed in each State in which it serves (or to that recipient and his or her as representative payee (if licensing is spouse) by an amount equal to the available in the State). The minimum total amount of the misapplied funds. amount of bonding or insurance cov- (5) The restrictions described in this erage must equal the average monthly section and the income and resource amount of supplemental security in- exclusions described in §§ 416.1124(c)(20) come payments received by the organi- and 416.1247 shall continue to apply zation plus the amount of the bene- until all funds in the dedicated account ficiaries’ conserved funds (i.e., bene- are depleted or eligibility for benefits ficiaries’ saved supplemental security terminates, whichever comes first. income payments) plus interest on This continuation of the restrictions hand. For example, an organization and exclusions applies in situations that has conserved funds of $5,000 and where funds remain in the account in receives an average of $12,000 a month any of the following situations— in supplemental security income pay- (i) A child attains age 18, continues ments must be bonded/insured for a to be eligible and receives payments di- minimum of $17,000. The license must rectly; be appropriate under the laws of the

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State for the type of services the orga- ganization in writing that it is author- nization provides. An example of an ap- ized to collect a fee. If we need more propriately licensed organization is a evidence, or if we are not able to au- community mental health center hold- thorize the collection of a fee, we will ing a State license to provide commu- also notify the organization in writing nity mental health services. that we have not authorized the collec- (b) Requirements qualified organization of a fee. tions must meet. Organizations that are (e) Revocation and cancellation of the qualified under paragraphs (a)(1) or authorization. (1) We will revoke an au- (a)(2) of this section must also meet thorization to collect a fee if we have the following requirements before we evidence which establishes that an or- can authorize them to collect a month- ganization no longer meets the require- ly fee. ments of this section. We will issue a (1) A qualified organization must reg- written notice to the organization ex- ularly provide representative payee plaining the reason(s) for the revoca- services concurrently to at least five tion. beneficiaries. An organization which (2) An organization may cancel its has received our authorization to col- authorization at any time upon written lect a fee for representative payee serv- notice to us. ices, but is temporarily (not more than (f) Notices. The written notice we will 6 months) not a payee for at least five send to an organization authorizing the beneficiaries, may request our approval collection of a fee will contain an effec- to continue to collect fees. tive date for the collection of a fee pur- (2) A qualified organization must suant to paragraphs (a), (b) and (c) of demonstrate that it is not a creditor of this section. The effective date will be the beneficiary. See paragraph (c) of no earlier than the month in which the this section for exceptions to the re- organization asked for authorization to quirement regarding creditors. collect a fee. The notice will be appli- (c) Creditor relationship. On a case-by- cable to all beneficiaries for whom the case basis, we may authorize an organi- organization was payee at the time of zation to collect a fee for payee serv- our authorization and all beneficiaries ices despite the creditor relationship. for whom the organization becomes (For example, the creditor is the bene- payee while the authorization is in ef- ficiary’s landlord.) To provide this au- fect. thorization, we will review all of the (g) Limitation on fees. (1) An organiza- evidence submitted by the organization tion authorized to collect a fee under and authorize collection of a fee when: this section may collect from a bene- (1) The creditor services (e.g., pro- ficiary a monthly fee for expenses (in- viding housing) provided by the organi- cluding overhead) it has incurred in zation help to meet the current needs providing payee services to a bene- of the beneficiary; and ficiary. The limit on the fee a qualified (2) The amount the organization organization may collect for providing charges the beneficiary for these serv- payee services increases by the same ices is commensurate with the bene- percentage as the annual cost of living ficiary’s ability to pay. adjustment (COLA). The increased fee (d) Authorization process. (1) An orga- amount (rounded to the nearest dollar) nization must request in writing and is taken beginning with the payment receive an authorization from us before for January. it may collect a fee. (2) Any agreement providing for a fee (2) An organization seeking author- in excess of the amount permitted shall ization to collect a fee must also give be void and treated as misuse of your us evidence to show that it is qualified, benefits by the organization under pursuant to paragraphs (a), (b), and (c) § 416.641. of this section, to collect a fee. (3) A fee may be collected for any (3) If the evidence provided to us by month during which the organization— the organization shows that it meets (i) Provides representative payee the requirements of this section, and services; additional investigation by us proves it (ii) Receives a benefit payment for suitable to serve, we will notify the or- the beneficiary; and

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(iii) Is authorized to receive a fee for to the misused benefits less any representative payee services. amount we collected from the misuser (4) Fees for services may not be and repaid to you. taken from any funds conserved for the (c) Whether or not we have obtained beneficiary by a payee in accordance restitution form the misuser, we will with § 416.645. repay benefits in cases when we deter- (5) Generally, an organization may mine that an individual representative not collect a fee for months in which it payee serving 14 or fewer beneficiaries does not receive a benefit payment. misused benefits and our negligent fail- However, an organization will be al- ure in the investigation or monitoring lowed to collect a fee for months in of that representative payee results in which it did not receive a payment if the misuse. When we make restitution, we later issue payment for these we will pay you or your alternative months and the organization: representative payee an amount equal (i) Received our approval to collect a to the misused benefits less any fee for the months for which payment amount we collected from the misuser is made; and repaid to you. (ii) Provided payee services in the (d) The term ‘‘negligent failure’’ used months for which payment is made; in this subpart means that we failed to and investigate or monitor a representative (iii) Was the payee when the retro- payee or that we did investigate or active payment was paid by us. monitor a representative payee but did (6) Fees for services may not be not follow established procedures in taken from beneficiary benefits for the our investigation or monitoring. Exam- months for which we or a court of com- ples of our negligent failure include, petent jurisdiction determine(s) that but are not limited to, the following: the representative payee misused bene- (1) We did not follow our established fits. Any fees collected for such months procedures in this subpart when inves- will be treated as a part of the bene- tigating, appointing, or monitoring a ficiary’s misused benefits. representative payee; (7) An authorized organization can (2) We did not investigate timely a collect a fee for providing representa- reported allegation of misuse; or tive payee services from another source (3) We did not take the steps nec- if the total amount of the fee collected essary to prevent the issuance of pay- from both the beneficiary and the ments to the representative payee after other source does not exceed the it was determined that the payee mis- amount authorized by us. used benefits. (e) Our repayment of misused bene- [69 FR 60238, Oct. 7, 2004, as amended at 71 FR 61408, Oct. 18, 2006] fits under these provisions does not alter the representative payee’s liabil- § 416.641 Who is liable if your rep- ity and responsibility as described in resentative payee misuses your ben- paragraph (a) of this section. efits? (f) Any amounts that the representa- (a) A representative payee who mis- tive payee misuses and does not refund uses your benefits is responsible for will be treated as an overpayment to paying back misused benefits. We will that representative payee. See subpart make every reasonable effort to obtain E of this part. restitution of misused benefits so that [69 FR 60239, Oct. 7, 2004, as amended at 71 FR we can repay these benefits to you. 61409, Oct. 18, 2006] (b) Whether or not we have obtained restitution from the misuser, we will § 416.645 Conservation and investment repay benefits in cases when we deter- of benefit payments. mine that a representative payee mis- (a) General. If payments are not need- used benefits and the representative ed for the beneficiary’s current mainte- payee is an organization or an indi- nance or reasonably foreseeable needs, vidual payee serving 15 or more bene- they shall be conserved or invested on ficiaries. When we make restitution, behalf of the beneficiary. Conserved we will pay you or your alternative funds should be invested in accordance representative payee an amount equal with the rules followed by trustees.

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Any investment must show clearly § 416.650 When will we select a new that the payee holds the property in representative payee for you? trust for the beneficiary. When we learn that your interest is Example: A State institution for children not served by sending your benefit pay- with intellectual disability, which is receiv- ment to your present representative ing Medicaid funds, is representative payee payee or that your present payee is no for several beneficiaries. The checks the longer able or willing to carry out payee receives are deposited into one account which shows that the benefits are held payee responsibilities, we will prompt- in trust for the beneficiaries. The institution ly stop sending your payment to the has supporting records which show the share payee. We will then send your benefit each individual has in the account. Funds payment to an alternative payee or di- from this account are disbursed fairly quick- rectly to you, until we find a suitable ly after receipt for the personal needs of the payee. We may suspend payment as ex- beneficiaries. However, not all those funds plained in § 416.611(c) if we find that were disbursed for this purpose. As a result, several of the beneficiaries have significant paying you directly would cause sub- accumulated resources in this account. For stantial harm and we cannot find a those beneficiaries whose benefits have accu- suitable alternative representative mulated over $150, the funds should be depos- payee before your next payment is due. ited in an interest-bearing account or in- We will terminate payment of benefits vested relatively free of risk on behalf of the to your representative payee and find a beneficiaries. new payee or pay you directly if the (b) Preferred investments. Preferred in- present payee: vestments for excess funds are U.S. (a) Has been found by us or a court of Savings Bonds and deposits in an inter- competent jurisdiction to have misused est or dividend paying account in a your benefits; bank, trust company, credit union, or (b) Has not used the benefit pay- savings and loan association which is ments on your behalf in accordance insured under either Federal or State with the guidelines in this subpart; law. The account must be in a form (c) Has not carried out the other re- which shows clearly that the represent- sponsibilities described in this subpart; ative payee has only a fiduciary and (d) Dies; not a personal interest in the funds. If (e) No longer wishes to be your the payee is the legally appointed payee; guardian or fiduciary of the bene- (f) Is unable to manage your benefit ficiary, the account may be established payments; or to indicate this relationship. If the (g) Fails to cooperate, within a rea- payee is not the legally appointed sonable time, in providing evidence, ac- guardian or fiduciary, the accounts counting, or other information we re- may be established as follows: quest. (1) For U.S. Savings Bonds— llllll (Name of beneficiary) lll [69 FR 60239, Oct. 7, 2004] (Social Security Number), for whom llllll (Name of payee) is representa- § 416.655 When representative pay- tive payee for Supplemental Security In- ment will be stopped. come benefits; If a beneficiary receiving representa- (2) For interest or dividend paying tive payment shows us that he or she is accounts— mentally and physically able to manage or direct the management of ben- llllll (Name of beneficiary) by efit payments, we will make direct llllll (Name of payee), representative payee. payment. Information which the beneficiary may give us to support his or (c) Interest and dividend payments. The her request for direct payment include interest and dividends which result the following— from an investment are the property of (a) A physician’s statement regarding the beneficiary and may not be consid- the beneficiary’s condition, or a state- ered to be the property of the payee. ment by a medical officer of the insti- [47 FR 30475, July 14, 1982, as amended at 78 tution where the beneficiary is or was FR 46501, Aug. 1, 2013] confined, showing that the beneficiary

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is able to manage or direct the man- (b) Who made the decisions on how agement of his or her funds; or your benefits were spent or saved; (b) A certified copy of a court order (c) How your benefit payments were restoring the beneficiary’s rights in a used; and case where a beneficiary was adjudged (d) How much of your benefit pay- legally incompetent; or ments were saved and how the savings (c) Other evidence which establishes were invested. the beneficiary’s ability to manage or direct the management of benefits. [69 FR 60239, Oct. 7, 2004, as amended at 71 FR 61409, Oct. 18, 2006] § 416.660 Transfer of accumulated benefit payments. Subpart G—Reports Required A representative payee who has conserved or invested benefit payments AUTHORITY: Secs. 702(a)(5), 1611, 1612, 1613, shall transfer these funds and the in- 1614, and 1631 of the Social Security Act (42 terest earned from the invested funds U.S.C. 902(a)(5), 1382, 1382a, 1382b, 1382c, and to either a successor payee, to the ben- 1383); sec. 211, Pub. L. 93–66, 87 Stat. 154 (42 eficiary, or to us, as we will specify. If U.S.C. 1382 note); sec. 202, Pub. L. 108–203, 118 the funds and the earned interest are Stat. 509 (42 U.S.C. 902 note). returned to us, we will recertify them SOURCE: 46 FR 5873, Jan. 21, 1981, unless to a successor representative payee or otherwise noted. to the beneficiary. INTRODUCTION [47 FR 30475, July 14, 1982, as amended at 75 FR 7552, Feb. 22, 2010] § 416.701 Scope of subpart. § 416.665 How does your representa- (a) Report provisions. The Social Secu- tive payee account for the use of rity Administration, to achieve effi- benefits? cient administration of the Supple- Your representative payee must ac- mental Security Income (SSI) program count for the use of your benefits. We for the Aged, Blind, and Disabled, re- require written reports from your rep- quires that you (or your representa- resentative payee at least once a year tive) must report certain events to us. (except for certain State institutions It is important for us to know about that participate in a separate onsite re- these events because they may affect view program). We may verify how your continued eligibility for SSI bene- your representative payee used your fits or the amount of your benefits. benefits. Your representative payee This subpart tells you what events you should keep records of how benefits must report; what your reports must were used in order to make accounting include; and when reports are due. The reports and must make those records rules regarding reports are in §§ 416.704 available upon our request. If your rep- through 416.714. resentative payee fails to provide an (b) Penalty deductions. If you fail to annual accounting of benefits or other make a required report when it is due, required reports, we may require your you may suffer a penalty. This subpart payee to receive your benefits in per- describes the penalties; discusses when son at the local Social Security field we may impose them; and explains that office or a United States Government we will not impose a penalty if you facility that we designate serving the have good cause for failing to report area in which you reside. The decision timely. The rules regarding penalties to have your representative payee re- are in §§ 416.722 through 416.732. ceive your benefits in person may be based on a variety of reasons. Some of § 416.702 Definitions. these reasons may include the payee’s For purposes of this subpart— history of past performance or our past Essential person means someone difficulty in contacting the payee. We whose presence was believed to be nec- may ask your representative payee to essary for your welfare under the State give us the following information: program that preceded the SSI pro- (a) Where you lived during the ac- gram. (See §§ 416.220 through 416.223 of counting period; this part.)

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Parent means a natural parent, an (b) A change in living arrangements. adoptive parent, or the spouse of a nat- You must report to us any change in ural or adoptive parent. the make-up of your household: That Representative payee means an indi- is, any person who comes to live in vidual, an agency, or an institution se- your household and any person who lected by us to receive and manage SSI moves out of your household. benefits on your behalf. (See subpart F (c) A change in income. You must re- of this part for details describing when port to us any increase or decrease in a representative payee is selected and a your income, and any increase or de- representative payee’s responsibil- crease in the income of— ities.) (1) Your ineligible spouse who lives Residence in the United States means with you; that your permanent home is in the (2) Your essential person; United States. (3) Your parent, if you are an eligible United States or U.S. means the 50 child and your parent lives with you; States, the District of Columbia, and or the Northern Mariana Islands. (4) An ineligible child who lives with We, Us, or Our means the Social Se- you. curity Administration. However, you need not report an in- You or Your means an applicant, an crease in your Social Security benefits eligible individual, an eligible spouse, if the increase is only a cost-of-living or an eligible child. adjustment. (For a complete discussion [46 FR 5873, Jan. 21, 1981, as amended at 65 of what we consider income, see sub- FR 16814, Mar. 30, 2000] part K. See subpart M, § 416.1323 regarding suspension because of excess in- REPORT PROVISIONS come.) If you receive benefits based on disability, when you or your represent- § 416.704 Who must make reports. ative report changes in your earned in- (a) You are responsible for making come, we will issue a receipt to you or required reports to us if you are— your representative until we establish (1) An eligible individual (see a centralized computer file to record § 416.120(c)(13)); the information that you give us and (2) An eligible spouse (see the date that you make your report. § 416.120(c)(14)); Once the centralized computer file is in (3) An eligible child (see place, we will continue to issue re- §§ 416.120(c)(13) and 416.1856); or ceipts to you or your representative if (4) An applicant awaiting a final de- you request us to do so. termination upon an application. (d) A change in resources. You must (b) If you have a representative report to us any resources you receive payee, and you have not been legally or part with, and any resources re- adjudged incompetent, either you or ceived or parted with by— your representative payee must make (1) Your ineligible spouse who lives the required reports. with you; (c) If you have a representative payee (2) Your essential person; or and you have been legally adjudged in- (3) Your parent, if you are an eligible competent, you are not responsible for child and your parent lives with you. making reports to us; however, your (For a complete discussion of what we representative payee is responsible for consider a resource, see subpart L. See making required reports to us. subpart M, § 416.1324 regarding suspen- [46 FR 5873, Jan. 21, 1981, as amended at 51 sion because of excess resources.) FR 10616, Mar. 28, 1986] (e) Eligibility for other benefits. You must report to us your eligibility for § 416.708 What you must report. benefits other than SSI benefits. See This section describes the events §§ 416.210 and 416.1330 regarding your re- that you must report to us. They are— sponsibility to apply for any other ben- (a) A change of address. You must re- efits for which you may be eligible. port to us any change in your mailing (f) Certain deaths. (1) If you are an eli- address and any change in the address gible individual, you must report the where you live. death of your eligible spouse, the death

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of your ineligible spouse who was liv- (2) A public institution (defined in ing with you, and the death of any § 416.201); or other person who was living with you. (3) A private institution. Private insti- (2) If you are an eligible spouse, you tution means an institution as defined must report the death of your spouse, in § 416.201 which is not administered and the death of any other person who by or the responsibility of a govern- was living with you. mental unit. (3) If you are an eligible child, you (l) A change in school attendance. You must report the death of a parent who must report to us— was living with you, and the death of (1) A change in your school attend- any other person who was living with ance if you are an eligible child; you. (2) A change in school attendance of (4) If you are a representative payee, an ineligible child who is at least age you must report the death of an eligi- 18 but less than 21 and who lives with ble individual, eligible spouse, or eligi- you if you are an eligible child; and ble child whom you represent; and the (3) A change in school attendance of death of any other person who was livan ineligible child who is at least age ing in the household of the individual 18 but less than 21 and who lives with you represent. you if you are an eligible individual (5) If you have a representative living with an ineligible spouse. payee, you must report the death of (m) A termination of residence in the your representative payee. U.S. You must report to us if you leave (g) A change in marital status. You the United States voluntarily with the must report to us— intention of abandoning your residence (1) Your marriage, your divorce, or in the United States or you leave the the annulment of your marriage; United States involuntarily (for exam- (2) The marriage, divorce, or annul- ple, you are deported). ment of marriage of your parent who (n) Leaving the U.S. temporarily. You lives with you, if you are an eligible must report to us if you leave the child; United States for 30 or more consecu- (3) The marriage of an ineligible tive days or for a full calendar month child who lives with you, if you are an (without the intention of abandoning eligible child; and your residence in the U.S.). (4) The marriage of an ineligible (o) Fleeing to avoid criminal prosecu- child who lives with you if you are an tion or custody or confinement after con- eligible individual living with an ineli- viction, or violating probation or parole. gible spouse. You must report to us that you are— (h) Medical improvements. If you are (1) Fleeing to avoid prosecution for a eligible for SSI benefits because of dis- crime, or an attempt to commit a ability or blindness, you must report crime, which is a felony under the laws any improvement in your medical con- of the place from which you flee (or dition to us. which, in the case of the State of New (i) [Reserved] Jersey, is a high misdemeanor under (j) Refusal to accept treatment for drug the laws of that State); addiction or alcoholism; discontinuance of (2) Fleeing to avoid custody or con- treatment. If you have been medically finement after conviction for a crime, determined to be a drug addict or an or an attempt to commit a crime, alcoholic, and you refuse to accept which is a felony under the laws of the treatment for drug addiction or alco- place from which you flee (or which, in holism at an approved facility or insti- the case of the State of New Jersey, is tution, or if you discontinue treat- a high misdemeanor under the laws of ment, you must report your refusal or that State); or discontinuance to us. (3) Violating a condition of probation (k) Admission to or discharge from a or parole imposed under Federal or medical treatment facility, public institu- State law. tion, or private institution. You must re- [46 FR 5873, Jan. 21, 1981, as amended at 51 port to us your admission to or dis- FR 10616, Mar. 14, 1986; 65 FR 40495, June 30, charge from— 2000; 68 FR 40124, July 7, 2003; 71 FR 66866, (1) A medical treatment facility; or Nov. 17, 2006; 72 FR 50874, Sept. 5, 2007]

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§ 416.710 What reports must include. PENALTY DEDUCTIONS When you make a report you must § 416.722 Circumstances under which tell us— we make a penalty deduction. (a) The name and social security A penalty deduction is made from number under which benefits are paid; your benefits if— (b) The name of the person about (a) You fail to make a required report whom you are reporting; on time (see §§ 416.708 and 416.714); (c) The event you are reporting and (b) We must reduce, suspend, or ter- the date it happened; and minate your benefits because of the (d) Your name. event you have not reported; (c) You received and accepted an SSI § 416.712 Form of the report. benefit for the penalty period (see You may make a report in any of the §§ 416.724 through 416.728 for penalty pe- ways described in this section. riod definitions); and (d) You do not have good cause for (a) Written reports. You may write a not reporting on time (see § 416.732). report on your own paper or on a print- ed form supplied by us. You may mail § 416.724 Amounts of penalty deduc- a written report or bring it to one of tions. our offices. (a) Amounts deducted. If we find that (b) Oral reports. You may report to us we must impose a penalty deduction, by telephone, or you may come to one you will lose from your SSI benefits a of our offices and tell one of our em- total amount of— ployees what you are reporting. (1) $25 for a report overdue in the (c) Other forms. You may use any first penalty period; other suitable method of reporting—for (2) $50 for a report overdue in the sec- example, a telegram or a cable. ond penalty period; and (3) $100 for a report overdue in the § 416.714 When reports are due. third (or any following) penalty period. (a) A reportable event happens. You (b) Limit on number of penalties. Even should report to us as soon as an event though more than one required report listed in § 416.708 happens. If you do not is overdue from you at the end of a penalty period, we will limit the num- report within 10 days after the close of ber of penalty deductions imposed to the month in which the event happens, one penalty deduction for any one pen- your report will be late. We may im- alty period. pose a penalty deduction from your benefits for a late report (see §§ 416.722 § 416.726 Penalty period: First failure through 416.732). to report. (b) We request a report. We may re- (a) First penalty period. The first pen- quest a report from you if we need in- alty period begins on the first day of formation to determine continuing eli- the month you apply for SSI benefits gibility or the correct amount of your and ends on the day we first learn that SSI benefit payments. If you do not re- you should have made a required report within 30 days of our written report, but did not do so within 10 days quest, we may determine that you are after the close of the month in which ineligible to receive SSI benefits. We the event happened. There may be will suspend your benefits effective more than one required report overdue with the month following the month in at the end of the first penalty period, which we determine that you are ineli- but we will impose no more than one gible to receive SSI benefits because of penalty deduction for the period. your failure to give us necessary infor- (b) Extension of first penalty period. If mation. you have good cause for not making a report on time (see § 416.732), we will [46 FR 5873, Jan. 21, 1981, as amended at 50 extend the first penalty period to the FR 48573, Nov. 26, 1985] day when we learn that you should have made another required report, but did not do so within 10 days after the

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close of the month in which the event during an earlier penalty period, with happened. There may be more than one the reporting due date in the third (or required report overdue at the end of a following) penalty period. The due the extended first penalty period, but date and the failure to report on time we will impose no more than one pen- are the important factors in estab- alty deduction for the extended period. lishing a penalty period.) There may be [46 FR 5873, Jan. 21, 1981, as amended at 50 more than one required report overdue FR 48573, Nov. 26, 1985] at the end of a penalty period, but we will impose no more than one penalty § 416.728 Penalty period: Second fail- deduction for any one penalty period. ure to report. (b) Extension of third (or a following) (a) Second penalty period. The second penalty period. Just as with the first penalty period begins on the day after and second penalty periods, if you have the first penalty period ends. The sec- good cause for not making a report on ond penalty period ends on the day we time during the third (or a following) first learn that you should have made a penalty period (see § 416.732), we will ex- required report, but did not do so with- tend the penalty period to the day in 10 days after the close of the month when we learn that you should have in which the event happened. (The made another required report, but did event may have happened during the not do so within 10 days after the close first penalty period, with the reporting of the month in which the event hap- due date in the second penalty period. pened. There may be more than one re- The due date and the failure to report quired report overdue at the end of an on time are the important factors in extended penalty period, but we will establishing a penalty period.) There impose no more than one penalty de- may be more than one required report duction for any one extended penalty overdue at the end of the second pen- period. alty period, but we will impose no more [46 FR 5873, Jan. 21, 1981, as amended at 50 than one penalty deduction for the pe- FR 48573, Nov. 26, 1985] riod. (b) Extension of second penalty period. § 416.732 No penalty deduction if you If you have good cause for not making have good cause for failure to re- a report on time (see § 416.732), we will port timely. extend the second penalty period to the (a) We will find that you have good day when we learn that you should cause for failure to report timely and have made another required report, but we will not impose a penalty deduc- did not do so within 10 days after the tion, if— close of the month in which the event (1) You are ‘‘without fault’’ as de- happened. There may be more than one fined in § 416.552; or required report overdue at the end of the extended second penalty period, (2) Your failure or delay in reporting but we will impose no more than one is not willful. ‘‘Not willful’’ means penalty deduction for the extended pe- that— riod. (i) You did not have full knowledge of the existence of your obligation to [46 FR 5873, Jan. 21, 1981, as amended at 50 make a required report; or FR 48573, Nov. 26, 1985] (ii) You did not intentionally, know- § 416.730 Penalty period: Three or ingly, and purposely fail to make a re- more failures to report. quired report. (a) Third (or a following) penalty pe- However, in either case we may require riod. A third (or a following) penalty that you refund an overpayment period begins the day after the last caused by your failure to report. See penalty period ends. This penalty pe- subpart E of this part for waiver of re- riod ends on the day we first learn that covery of overpayments. you should have made a required report (b) In determining whether you have during the penalty period, but did not good cause for failure to report timely, do so within 10 days after the close of we will take into account any physical, the month in which the event hap- mental, educational, or linguistic limi- pened. (The event may have happened tations (including any lack of facility

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with the English language) you may dence is corroborated by other evidence have. or by information in the records of the Administration. [59 FR 1636, Jan. 12, 1994] § 416.803 Evaluation of evidence. Subpart H—Determination of Age Generally, the highest probative value will be accorded to a public AUTHORITY: Secs. 702(a)(5), 1601, 1614(a)(1) record of birth or a religious record of and 1631 of the Social Security Act (42 U.S.C. 902(a)(5), 1381, 1382c(a)(1), and 1383). birth or baptism established or recorded before age 5. Where such record SOURCE: 39 FR 12731, Apr. 8, 1974, unless is not available, and other documents otherwise noted. are submitted as evidence of age, in de- § 416.801 Evidence as to age—when re- termining their probative value, con- quired. sideration will be given to when such other documents were established or An applicant for benefits under title recorded, and the circumstances at- XVI of the Act shall file supporting tending their establishment or recorda- evidence showing the date of his birth tion. Among the documents which may if his age is a condition of eligibility be submitted for such purpose are: for benefits or is otherwise relevant to school record, census record, Bible or the payment of benefits pursuant to other family record, church record of such title XVI. Such evidence may also baptism or confirmation in youth or be required by the Administration as early adult life, insurance policy, mar- to the age of any other individual when riage record, employment record, labor such other individual’s age is relevant union record, fraternal organization to the determination of the applicant’s record, military record, voting record, eligibility or benefit amount. In the vaccination record, delayed birth cer- absence of evidence to the contrary, if tificate, birth certificate of child of ap- the applicant alleges that he is at least plicant, physician’s or midwife’s record 68 years of age and submits any docu- of birth, immigration record, natu- mentary evidence at least 3 years old ralization record, or passport. which supports his allegation, no further evidence of his age is required. In § 416.804 Certified copy in lieu of origi- the absence of evidence to the con- nal. trary, if a State required reasonably acceptable evidence of age and provides In lieu of the original of any record, a statement as to an applicant’s age, except a Bible or other family record, no further evidence of his age is re- there may be submitted as evidence of quired unless a statistically valid qual- age a copy of such record or a state- ity control sample has shown that a ment as to the date of birth shown by State’s determination of age proce- such record, which has been duly cer- dures do not yield an acceptable low tified (see § 404.701(g) of this chapter). rate of error. § 416.805 When additional evidence § 416.802 Type of evidence to be sub- may be required. mitted. If the evidence submitted is not con- Where an individual is required to vincing, additional evidence may be re- submit evidence of date of birth as in- quired. dicated in § 416.801, he shall submit a public record of birth or a religious § 416.806 Expedited adjudication based record of birth or baptism established on documentary evidence of age. or recorded before his fifth birthday, if Where documentary evidence of age available. Where no such document re- recorded at least 3 years before the ap- corded or established before age 5 is plication is filed, which reasonably available the individual shall submit as supports an aged applicant’s allegation evidence of age another document or as to his age, is submitted, payment of documents which may serve as the benefits may be initiated even though basis for a determination of the indi- additional evidence of age may be re- vidual’s date of birth provided such evi- quired by §§ 416.801 through 416.805. The

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applicant will be advised that additions are stated in §§ 416.920 through tional evidence is required and that, if 416.923. We describe the steps that we it is subsequently established that the go through and the order in which they prior finding of age is incorrect, the ap- are considered. plicant will be liable for refund of any (e) Our general rules on evaluating overpayment he has received. If any of disability for children filing new appli- the evidence initially submitted tends cations are stated in § 416.924. to show that the age of the applicant (f) Our rules on medical consider- or such other person does not cor- ations are found in §§ 416.925 through respond with the alleged age, no bene- 416.930. We explain in these rules— fits will be paid until the evidence re- (1) The purpose and use of the Listing quired by §§ 416.801 through 416.805 is of Impairments found in appendix 1 of submitted. subpart P of part 404 of this chapter; (2) What we mean by the terms med- Subpart I—Determining Disability ical equivalence and functional equiva- and Blindness lence and how we make those findings; (3) The effect of a conclusion by your AUTHORITY: Secs. 221(m), 702(a)(5), 1611, physician that you are disabled; 1614, 1619, 1631(a), (c), (d)(1), and (p), and 1633 (4) What we mean by symptoms, of the Social Security Act (42 U.S.C. 421(m), signs, and laboratory findings; 902(a)(5), 1382, 1382c, 1382h, 1383(a), (c), (d)(1), (5) How we evaluate pain and other and (p), and 1383b); secs. 4(c) and 5, 6(c)–(e), symptoms; and 14(a), and 15, Pub. L. 98–460, 98 Stat. 1794, 1801, 1802, and 1808 (42 U.S.C. 421 note, 423 (6) The effect on your benefits if you note, and 1382h note). fail to follow treatment that is expected to restore your ability to work SOURCE: 45 FR 55621, Aug. 20, 1980, unless or, if you are a child, to reduce your otherwise noted. functional limitations to the point GENERAL that they are no longer marked and severe, and how we apply the rule in § 416.901 Scope of subpart. § 416.930. In order for you to become entitled (g) In §§ 416.931 through 416.934 we ex- to any benefits based upon disability or plain that we may make payments on blindness you must be disabled or blind the basis of presumptive disability or as defined in title XVI of the Social Se- presumptive blindness. curity Act. This subpart explains how (h) In §§ 416.935 through 416.939 we ex- we determine whether you are disabled plain the rules which apply in cases of or blind. We have organized the rules in drug addiction and alcoholism. the following way. (i) In §§ 416.945 through 416.946 we ex- (a) We define general terms, then dis- plain what we mean by the term resid- cuss who makes our disability or blind- ual functional capacity, state when an ness determinations and state that dis- assessment of residual functional ca- ability and blindness determinations pacity is required, and who may make made under other programs are not it. binding on our determinations. (j) Our rules on vocational consider- (b) We explain the term disability and ations are in §§ 416.960 through 416.969a. note some of the major factors that are We explain in these rules— considered in determining whether you (1) When we must consider vocational are disabled in §§ 416.905 through 416.910. factors along with the medical evi- (c) Sections 416.912 through 416.918 dence; contain our rules on evidence. We ex- (2) How we use our residual func- plain your responsibilities for submit- tional capacity assessment to deter- ting evidence of your impairment, mine if you can still do your past rel- state what we consider to be acceptable evant work or other work; sources of medical evidence, and de- (3) How we consider the vocational scribe what information should be in- factors of age, education, and work excluded in medical reports. perience; (d) Our general rules on evaluating (4) What we mean by ‘‘work which ex- disability for adults filing new applica- ists in the national economy’’;

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(5) How we consider the exertional, only, depending on the scope of prac- nonexertional, and skill requirements tice in the State in which the optom- of work, and when we will consider the etrist practices; limitations or restrictions that result (4) Licensed podiatrist for impair- from your impairment(s) and related ments of the foot, or foot and ankle symptoms to be exertional, non- only, depending on whether the State exertional, or a combination of both; in which the podiatrist practices per- and mits the practice of podiatry on the (6) How we use the Medical-Voca- foot only, or the foot and ankle; tional Guidelines in appendix 2 of sub- (5) Qualified speech-language pathol- part P of part 404 of this chapter. ogist for speech or language impair- (k) Our rules on substantial gainful ments only. For this source, qualified activity are found in §§ 416.971 through means that the speech-language pa- 416.974. These explain what we mean by thologist must be licensed by the State substantial gainful activity and how professional licensing agency, or be we evaluate your work activity. fully certified by the State education (l) In §§ 416.981 through 416.985 we dis- agency in the State in which he or she cuss blindness. practices, or hold a Certificate of Clin- (m) Our rules on when disability or ical Competence in Speech-Language blindness continues and stops are con- Pathology from the American Speech- tained in §§ 416.986 and 416.988 through Language-Hearing Association; 416.998. We explain what your respon- (6) Licensed audiologist for impair- sibilities are in telling us of any events ments of hearing loss, auditory proc- that may cause a change in your dis- essing disorders, and balance disorders ability or blindness status and when we within the licensed scope of practice will review to see if you are still dis- only (with respect to claims filed (see abled. We also explain how we consider § 416.325) on or after March 27, 2017); the issue of medical improvement (and (7) Licensed Advanced Practice Reg- the exceptions to medical improve- istered Nurse, or other licensed ad- ment) in determining whether you are vanced practice nurse with another still disabled. title, for impairments within his or her [45 FR 55621, Aug. 20, 1980, as amended at 50 licensed scope of practice (only with FR 50136, Dec. 6, 1985; 56 FR 5553, Feb. 11, respect to claims filed (see § 416.325) on 1991; 56 FR 57944, Nov. 14, 1991; 62 FR 6420, or after March 27, 2017); or Feb. 11, 1997; 65 FR 42788, July 11, 2000; 65 FR (8) Licensed Physician Assistant for 54777, Sept. 11, 2000; 68 FR 51164, Aug. 26, 2003] impairments within his or her licensed scope of practice (only with respect to § 416.902 Definitions for this subpart. claims filed (see § 416.325) on or after As used in the subpart— March 27, 2017). (a) Acceptable medical source means a (b) Adult means a person who is age medical source who is a: 18 or older. (1) Licensed physician (medical or os- (c) Child means a person who has not teopathic doctor); attained age 18. (2) Licensed psychologist, which in- (d) Commissioner means the Commis- cludes: sioner of Social Security or his or her (i) A licensed or certified psycholo- authorized designee. gist at the independent practice level; (e) Disability redetermination means a or redetermination of your eligibility (ii) A licensed or certified school psy- based on disability using the rules for chologist, or other licensed or certified new applicants appropriate to your individual with another title who per- age, except the rules pertaining to performs the same function as a school formance of substantial gainful activ- psychologist in a school setting, for ity. For individuals who are working impairments of intellectual disability, and for whom a disability redetermina- learning disabilities, and borderline in- tion is required, we will apply the rules tellectual functioning only; in §§ 416.260 through 416.269. In con- (3) Licensed optometrist for impair- ducting a disability redetermination, ments of visual disorders, or measure- we will not use the rules for deter- ment of visual acuity and visual fields mining whether disability continues

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set forth in § 416.994 or § 416.994a. (See mental center workers, and daycare § 416.987.) center workers); (f) Impairment(s) means a medically (3) Public and private social welfare determinable physical or mental im- agency personnel; and pairment or a combination of medi- (4) Family members, caregivers, cally determinable physical or mental friends, neighbors, employers, and cler- impairments. gy. (g) means one or Laboratory findings (k) Objective medical evidence means more anatomical, physiological, or signs, laboratory findings, or both. psychological phenomena that can be shown by the use of medically accept- (l) Signs means one or more anatom- able laboratory diagnostic techniques. ical, physiological, or psychological ab- Diagnostic techniques include chem- normalities that can be observed, apart ical tests (such as blood tests), from your statements (symptoms). electrophysiological studies (such as Signs must be shown by medically ac- electrocardiograms and electro- ceptable clinical diagnostic techniques. encephalograms), medical imaging Psychiatric signs are medically demon- (such as X-rays), and psychological strable phenomena that indicate spe- tests. cific psychological abnormalities, e.g., (h) Marked and severe functional limi- abnormalities of behavior, mood, tations, when used as a phrase, means thought, memory, orientation, develop- the standard of disability in the Social ment, or perception and must also be Security Act for children claiming SSI shown by observable facts that can be benefits based on disability. It is a medically described and evaluated. level of severity that meets, medically (m) State agency means an agency of equals, or functionally equals the list- a State designated by that State to ings. (See §§ 416.906, 416.924, and carry out the disability or blindness 416.926a.) The words ‘‘marked’’ and determination function. ‘‘severe’’ are also separate terms used (n) Symptoms means your own de- throughout this subpart to describe scription of your physical or mental measures of functional limitations; the impairment. term ‘‘marked’’ is also used in the listings. (See §§ 416.924 and 416.926a.) The (o) The listings means the Listing of meaning of the words ‘‘marked’’ and Impairments in appendix 1 of subpart P ‘‘severe’’ when used as part of the of part 404 of this chapter. When we phrase marked and severe functional refer to an impairment(s) that ‘‘meets, limitations is not the same as the medically equals, or functionally meaning of the separate terms equals the listings,’’ we mean that the ‘‘marked’’ and ‘‘severe’’ used elsewhere impairment(s) meets or medically in 404 and 416. (See §§ 416.924(c) and equals the severity of any listing in ap- 416.926a(e).) pendix 1 of subpart P of part 404 of this (i) Medical source means an individual chapter, as explained in §§ 416.925 and who is licensed as a healthcare worker 416.926, or that it functionally equals by a State and working within the the severity of the listings, as ex- scope of practice permitted under plained in § 416.926a. State or Federal law, or an individual (p) We or us means, as appropriate, who is certified by a State as a speech- either the Social Security Administra- language pathologist or a school psy- tion or the State agency making the chologist and acting within the scope disability or blindness determination. of practice permitted under State or (q) You, your, me, my and I mean, as Federal law. appropriate, the person who applies for (j) Nonmedical source means a source of evidence who is not a medical benefits, the person for whom an appli- source. This includes, but is not lim- cation is filed, or the person who is re- ited to: ceiving benefits based on disability or (1) You; blindness. (2) Educational personnel (for exam- [82 FR 5873, Jan. 18, 2017, as amended at 83 ple, school teachers, counselors, early FR 51836, Oct. 15, 2018] intervention team members, develop-

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DETERMINATIONS (3) Your disability or blindness stopped earlier or later than the date § 416.903 Who makes disability and found by the State agency. blindness determinations. (e) Determinations for childhood im- (a) State agencies. State agencies pairments. In making a determination make disability and blindness deter- under title XVI with respect to the dis- minations for the Commissioner for ability of a child, we will make reason- most persons living in the State. State able efforts to ensure that a qualified agencies make these disability and pediatrician or other individual who blindness determinations under regula- specializes in a field of medicine appro- tions containing performance stand- priate to the child’s impairment(s) ards and other administrative require- evaluates the case of the child. ments relating to the disability and [46 FR 29211, May 29, 1981, as amended at 52 blindness determination function. FR 33927, Sept. 9, 1987; 58 FR 47577, Sept. 9, States have the option of turning the 1993; 62 FR 38454, July 18, 1997; 65 FR 34958, function over to the Federal Govern- June 1, 2000; 71 FR 16458, Mar. 31, 2006; 72 FR ment if they no longer want to make 51178, Sept. 6, 2007; 82 FR 5874, Jan. 18, 2017] disability determinations. Also, the Commissioner may take the function § 416.903a Program integrity. away from any State which has sub- We will not use in our program any stantially failed to make disability and individual or entity, except to provide blindness determinations in accordance existing medical evidence, who is cur- with these regulations. Subpart J of rently excluded, suspended, or other- this part contains the rules the States wise barred from participation in the must follow in making disability and Medicare or Medicaid programs, or any blindness determinations. other Federal or Federally-assisted (b) Social Security Administration. The program; whose license to provide Social Security Administration will health care services is currently re- make disability and blindness deter- voked or suspended by any State li- minations for— censing authority pursuant to ade- (1) Any person living in a State quate due process procedures for rea- which is not making for the Commis- sons bearing on professional com- sioner any disability and blindness de- petence, professional conduct, or finan- terminations or which is not making cial integrity; or who until a final de- those determinations for the class of termination is made has surrendered claimants to which that person be- such a license while formal discipli- longs; and nary proceedings involving profes- (2) Any person living outside the sional conduct are pending. By indi- United States. vidual or entity we mean a medical or (c) What determinations are authorized. psychological consultant, consultative The Commissioner has authorized the examination provider, or diagnostic State agencies and the Social Security test facility. Also see §§ 416.919 and Administration to make determina- 416.919g(b). tions about— [56 FR 36963, Aug. 1, 1991] (1) Whether you are disabled or blind; (2) The date your disability or blind- § 416.903b Evidence from excluded ness began; and medical sources of evidence. (3) The date your disability or blind- (a) General. We will not consider evi- ness stopped. dence from the following medical (d) Review of State agency determina- sources excluded under section tions. On review of a State agency de- 223(d)(5)(C)(i) of the Social Security termination or redetermination of dis- Act (Act), as amended, unless we find ability or blindness we may find that— good cause under paragraph (b) of this (1) You are, or are not, disabled or section: blind, regardless of what the State (1) Any medical source that has been agency found; convicted of a felony under section 208 (2) Your disability or blindness began or under section 1632 of the Act; earlier or later than the date found by (2) Any medical source that has been the State agency; and excluded from participation in any

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Federal health care program under sec- directly or through a representative, tion 1128 of the Act; or claimant, or other individual or entity. (3) Any medical source that has re- (1) Excluded medical sources of evi- ceived a final decision imposing a civil dence must provide a written state- monetary penalty or assessment, or ment, which contains the following in- both, for submitting false evidence formation: under section 1129 of the Act. (i) A heading stating: ‘‘WRITTEN (b) Good cause. We may find good STATEMENT REGARDING SECTION cause to consider evidence from an ex- 223(d)(5)(C) OF THE SOCIAL SECU- cluded medical source of evidence RITY ACT—DO NOT REMOVE’’ under section 223(d)(5)(C)(i) of the Act, (ii) The name and title of the medical as amended, if: source; (1) The evidence from the medical (iii) The applicable excluding event(s) source consists of evidence of treat- stated in paragraph (a)(1)–(a)(3) of this ment that occurred before the date the section; source was convicted of a felony under (iv) The date of the medical source’s section 208 or under section 1632 of the felony conviction under sections 208 or Act; 1632 of the Act, if applicable; (2) The evidence from the medical (v) The date of the imposition of a source consists of evidence of treat- civil monetary penalty or assessment, ment that occurred during a period in or both, for the submission of false evi- which the source was not excluded dence, under section 1129 of the Act, if from participation in any Federal applicable; and health care program under section 1128 (vi) The basis, effective date, antici- of the Act; pated length of the exclusion, and (3) The evidence from the medical whether the Office of the Inspector source consists of evidence of treat- General of the Department of Health ment that occurred before the date the and Human Services waived the exclu- source received a final decision impos- sion, if the excluding event was the ing a civil monetary penalty or assess- medical source’s exclusion from par- ment, or both, for submitting false evi- ticipation in any Federal health care dence under section 1129 of the Act; program under section 1128 of the Act. (4) The sole basis for the medical (2) The written statement provided source’s exclusion under section by an excluded medical source of evi- 223(d)(5)(C)(i) of the Act, as amended, is dence may not be removed by any indi- that the source cannot participate in vidual or entity prior to submitting any Federal health care program under evidence to us. section 1128 of the Act, but the Office (3) We may request that the excluded of Inspector General of the Department medical source of evidence provide us of Health and Human Services granted with additional information or clarify a waiver of the section 1128 exclusion; any information submitted that bears or on the medical source’s exclusion(s) (5) The evidence is a laboratory find- under section 223(d)(5)(C)(i) of the Act, ing about a physical impairment and as amended. there is no indication that the finding [81 FR 65540, Sept. 23, 2016] is unreliable. (c) Reporting requirements for excluded § 416.904 Decisions by other govern- medical sources of evidence. Excluded mental agencies and nongovern- medical sources of evidence (as de- mental entities. scribed in paragraph (a) of this section) Other governmental agencies and must inform us in writing that they nongovernmental entities—such as the are excluded under section Department of Veterans Affairs, the 223(d)(5)(C)(i) of the Act, as amended, Department of Defense, the Depart- each time they submit evidence related ment of Labor, the Office of Personnel to a claim for initial or continuing Management, State agencies, and pri- benefits under titles II or XVI of the vate insurers—make disability, blind- Act. This reporting requirement ap- ness, employability, Medicaid, work- plies to evidence that excluded medical ers’ compensation, and other benefits sources of evidence submit to us either decisions for their own programs using

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their own rules. Because a decision by can do other work. (See § 416.920(h) for any other governmental agency or a an exception to this rule.) nongovernmental entity about whether (b) There are different rules for deter- you are disabled, blind, employable, or mining disability for individuals who entitled to any benefits is based on its are statutorily blind. We discuss these rules, it is not binding on us and is not in §§ 416.981 through 416.985. our decision about whether you are dis- [45 FR 55621, Aug. 20, 1980, as amended at 56 abled or blind under our rules. There- FR 5553, Feb. 11, 1991; 68 FR 51164, Aug. 26, fore, in claims filed (see § 416.325) on or 2003; 77 FR 43495, July 25, 2012] after March 27, 2017, we will not provide any analysis in our determination § 416.906 Basic definition of disability or decision about a decision made by for children. any other governmental agency or a If you are under age 18, we will con- nongovernmental entity about whether sider you disabled if you have a medi- you are disabled, blind, employable, or cally determinable physical or mental entitled to any benefits. However, we impairment or combination of impair- will consider all of the supporting evi- ments that causes marked and severe dence underlying the other govern- functional limitations, and that can be mental agency or nongovernmental en- expected to cause death or that has tity’s decision that we receive as evi- lasted or can be expected to last for a dence in your claim in accordance with continuous period of not less than 12 § 416.913(a)(1) through (4). months. Notwithstanding the pre- [82 FR 5874, Jan. 18, 2017, as amended at 82 ceding sentence, if you file a new appli- FR 15132, Mar. 27, 2017] cation for benefits and you are engaging in substantial gainful activity, we DEFINITION OF DISABILITY will not consider you disabled. We discuss our rules for determining dis- § 416.905 Basic definition of disability ability in children who file new appli- for adults. cations in §§ 416.924 through 416.924b (a) The law defines disability as the and §§ 416.925 through 416.926a. inability to do any substantial gainful [62 FR 6421, Feb. 11, 1997, as amended at 65 activity by reason of any medically de- FR 54777, Sept. 11, 2000] terminable physical or mental impairment which can be expected to result § 416.907 Disability under a State plan. in death or which has lasted or can be You will also be considered disabled expected to last for a continuous period for payment of supplemental security of not less than 12 months. To meet income benefits if— this definition, you must have a severe (a) You were found to be permanently impairment(s) that makes you unable and totally disabled as defined under a to do your past relevant work (see State plan approved under title XIV or § 416.960(b)) or any other substantial XVI of the Social Security Act, as in gainful work that exists in the na- effect for October 1972; tional economy. If your severe impair- (b) You received aid under the State ment(s) does not meet or medically plan because of your disability for the equal a listing in appendix 1 to subpart month of December 1973 and for at P of part 404 of this chapter, we will as- least one month before July 1973; and sess your residual functional capacity (c) You continue to be disabled as de- as provided in §§ 416.920(e) and 416.945. fined under the State plan. (See § 416.920(g)(2) and 416.962 for an exception to this rule.) We will use this § 416.908 [Reserved] residual functional capacity assessment to determine if you can do your § 416.909 How long the impairment past relevant work. If we find that you must last. cannot do your past relevant work, we Unless your impairment is expected will use the same residual functional to result in death, it must have lasted capacity assessment and your voca- or must be expected to last for a con- tional factors of age, education, and tinuous period of at least 12 months. work experience to determine if you We call this the duration requirement.

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§ 416.910 Meaning of substantial gain- § 416.913). This duty is ongoing and re- ful activity. quires you to disclose any additional Substantial gainful activity means related evidence about which you be- work that— come aware. This duty applies at each (a) Involves doing significant and level of the administrative review proc- productive physical or mental duties; ess, including the Appeals Council level and if the evidence relates to the period on (b) Is done (or intended) for pay or or before the date of the administrative profit. law judge hearing decision. We will (See § 416.972 for further details about consider only impairment(s) you say what we mean by substantial gainful you have or about which we receive activity.) evidence. When you submit evidence received from another source, you § 416.911 Definition of disabling im- must submit that evidence in its en- pairment. tirety, unless you previously submitted (a) If you are an adult: the same evidence to us or we instruct (1) A disabling impairment is an im- you otherwise. If we ask you, you must pairment (or combination of impair- inform us about: ments) which, of itself, is so severe (i) Your medical source(s); that it meets or equals a set of criteria (ii) Your age; in the Listing of Impairments in appen- (iii) Your education and training; dix 1 of subpart P of part 404 of this (iv) Your work experience; chapter or which, when considered with (v) Your daily activities both before your age, education and work experi- and after the date you say that you be- ence, would result in a finding that you came disabled; are disabled under § 416.994, unless the (vi) Your efforts to work; and disability redetermination rules in (vii) Any other factors showing how § 416.987(b) apply to you. your impairment(s) affects your ability (2) If the disability redetermination to work, or, if you are a child, your rules in § 416.987 apply to you, a dis- functioning. In §§ 416.960 through abling impairment is an impairment or 416.969, we discuss in more detail the combination of impairments that evidence we need when we consider vo- meets the requirements in §§ 416.920 (c) cational factors. through (f). (b) If you are a child, a disabling im- (2) Completeness. The evidence in your pairment is an impairment (or com- case record must be complete and de- bination of impairments) that causes tailed enough to allow us to make a de- marked and severe functional limita- termination or decision about whether tions. This means that the impairment you are disabled or blind. It must allow or combination of impairments: us to determine— (1) Must meet, medically equal, or (i) The nature and severity of your functionally equal the listings, or impairment(s) for any period in ques- (2) Would result in a finding that you tion; are disabled under § 416.994a. (ii) Whether the duration require- (c) In determining whether you have ment described in § 416.909 is met; and a disabling impairment, earnings are (iii) Your residual functional capac- not considered. ity to do work-related physical and mental activities, when the evaluation [62 FR 6421, Feb. 11, 1997, as amended at 65 FR 54777, Sept. 11, 2000] steps described in §§ 416.920(e) or (f)(1) apply, or, if you are a child, how you EVIDENCE typically function compared to children your age who do not have impair- § 416.912 Responsibility for evidence. ments. (a) Your responsibility—(1) General. In (3) Statutory blindness. If you are ap- general, you have to prove to us that plying for benefits on the basis of stat- you are blind or disabled. You must in- utory blindness, we will require an ex- form us about or submit all evidence amination by a physician skilled in known to you that relates to whether diseases of the eye or by an optom- or not you are blind or disabled (see etrist, whichever you may select.

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(b) Our responsibility—(1) Development. such as when we know a source is not Before we make a determination that productive, is uncooperative, or is un- you are not disabled, we will develop able to provide certain tests or proce- your complete medical history for at dures. We will not evaluate this evi- least the 12 months preceding the dence until we have made every reason- month in which you file your applica- able effort to obtain evidence from tion unless there is a reason to believe your medical sources. that development of an earlier period is (3) Other work. In order to determine necessary or unless you say that your under § 416.920(g) that you are able to disability began less than 12 months adjust to other work, we must provide before you filed your application. We evidence about the existence of work in will make every reasonable effort to the national economy that you can do help you get medical evidence from (see §§ 416.960 through 416.969a), given your own medical sources and entities your residual functional capacity that maintain your medical sources’ (which we have already assessed, as de- evidence when you give us permission scribed in § 416.920(e)), age, education, to request the reports. and work experience. (i) Every reasonable effort means that we will make an initial request for evi- [82 FR 5874, Jan. 18, 2017] dence from your medical source or en- § 416.913 Categories of evidence. tity that maintains your medical source’s evidence, and, at any time be- (a) What we mean by evidence. Subject tween 10 and 20 calendar days after the to the provisions of paragraph (b), evi- initial request, if the evidence has not dence is anything you or anyone else been received, we will make one follow- submits to us or that we obtain that up request to obtain the medical evi- relates to your claim. We consider evidence necessary to make a determina- dence under §§ 416.920b, 416.920c (or tion. The medical source or entity that under § 416.927 for claims filed (see maintains your medical source’s evi- § 416.325) before March 27, 2017). We dence will have a minimum of 10 cal- evaluate evidence we receive according endar days from the date of our follow- to the rules pertaining to the relevant up request to reply, unless our experi- category of evidence. The categories of ence with that source indicates that a evidence are: longer period is advisable in a par- (1) Objective medical evidence. Objec- ticular case. tive medical evidence is medical signs, (ii) Complete medical history means the laboratory findings, or both, as defined records of your medical source(s) cov- in § 416.902(k). ering at least the 12 months preceding (2) Medical opinion. A medical opinion the month in which you file your appli- is a statement from a medical source cation. If you say that your disability about what you can still do despite began less than 12 months before you your impairment(s) and whether you filed your application, we will develop have one or more impairment-related your complete medical history begin- limitations or restrictions in the abili- ning with the month you say your dis- ties listed in paragraphs (a)(2)(i)(A) ability began unless we have reason to through (D) and (a)(2)(ii)(A) through believe your disability began earlier. (F) of this section. (For claims filed (2) Obtaining a consultative examina- (see § 416.325) before March 27, 2017, see tion. We may ask you to attend one or § 416.927(a) for the definition of medical more consultative examinations at our opinion.) expense. See §§ 416.917 through 416.919t (i) Medical opinions in adult claims for the rules governing the consult- are about impairment-related limita- ative examination process. Generally, tions and restrictions in: we will not request a consultative ex- (A) Your ability to perform physical amination until we have made every demands of work activities, such as sit- reasonable effort to obtain evidence ting, standing, walking, lifting, car- from your own medical sources. We rying, pushing, pulling, or other phys- may order a consultative examination ical functions (including manipulative while awaiting receipt of medical or postural functions, such as reaching, source evidence in some instances, handling, stooping, or crouching);

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(B) Your ability to perform mental disabled, about a medical issue made demands of work activities, such as un- by our Federal and State agency med- derstanding; remembering; maintain- ical and psychological consultants at a ing concentration, persistence, or pace; prior level of review (see § 416.1400) in carrying out instructions; or respond- your current claim based on their re- ing appropriately to supervision, co- view of the evidence in your case workers, or work pressures in a work record, such as: setting; (i) The existence and severity of your (C) Your ability to perform other de- impairment(s); mands of work, such as seeing, hearing, (ii) The existence and severity of or using other senses; and your symptoms; (D) Your ability to adapt to environ- (iii) Statements about whether your mental conditions, such as tempera- impairment(s) meets or medically ture extremes or fumes. equals any listing in the Listing of Im- (ii) Medical opinions in child claims pairments in Part 404, Subpart P, Ap- are about impairment-related limita- pendix 1; tions and restrictions in your abilities (iv) If you are a child, statements in the six domains of functioning: about whether your impairment(s) (A) Acquiring and using information functionally equals the listings in Part (see § 416.926a(g)); 404, Subpart P, Appendix 1; (B) Attending and completing tasks (v) If you are an adult, your residual (see § 416.926a(h)); functional capacity; (C) Interacting and relating with oth- (vi) Whether your impairment(s) ers (see § 416.926a(i)); meets the duration requirement; and (D) Moving about and manipulating (vii) How failure to follow prescribed objects (see § 416.926a(j)); treatment (see § 416.930) and drug addic- (E) Caring for yourself (see tion and alcoholism (see § 416.935) relate § 416.926a(k)); and to your claim. (F) Health and physical well-being (b) Exceptions for privileged commu- (see § 416.926a(l)). nications. (3) Other medical evidence. Other med- (1) The privileged communications ical evidence is evidence from a med- listed in paragraphs (b)(1)(i) and ical source that is not objective med- (b)(1)(ii) of this section are not evi- ical evidence or a medical opinion, in- dence, and we will neither consider nor cluding judgments about the nature provide any analysis about them in and severity of your impairments, your your determination or decision. This medical history, clinical findings, diag- exception for privileged communica- nosis, treatment prescribed with re- tions applies equally whether your rep- sponse, or prognosis. (For claims filed resentative is an attorney or a non-at- (see § 416.325) before March 27, 2017, torney. other medical evidence does not include (i) Oral or written communications a diagnosis, prognosis, or a statement between you and your representative that reflects a judgment(s) about the that are subject to the attorney-client nature and severity of your impair- privilege, unless you voluntarily dis- ment(s)). close the communication to us. (4) Evidence from nonmedical sources. (ii) Your representative’s analysis of Evidence from nonmedical sources is your claim, unless he or she volun- any information or statement(s) from a tarily discloses it to us. This analysis nonmedical source (including you) means information that is subject to about any issue in your claim. We may the attorney work product doctrine, receive evidence from nonmedical but it does not include medical evi- sources either directly from the non- dence, medical opinions, or any other medical source or indirectly, such as factual matter that we may consider in from forms we receive and our adminis- determining whether or not you are en- trative records. titled to benefits (see paragraph (b)(2) (5) Prior administrative medical finding. of this section). A prior administrative medical finding (2) The attorney-client privilege gen- is a finding, other than the ultimate erally protects confidential commu- determination about whether you are nications between an attorney and his

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or her client that are related to pro- tial or reconsideration level of the ad- viding or obtaining legal advice. The ministrative review process as provided attorney work product doctrine gen- in § 416.1015(c)(1), he or she will consider erally protects an attorney’s analyses, the evidence in your case record and theories, mental impressions, and make administrative findings about notes. In the context of your disability the medical issues, including, but not claim, neither the attorney-client limited to, the existence and severity privilege nor the attorney work prod- of your impairment(s), the existence uct doctrine allow you to withhold fac- and severity of your symptoms, wheth- tual information, medical opinions, or er your impairment(s) meets or medi- other medical evidence that we may cally equals the requirements for any consider in determining whether or not impairment listed in appendix 1 to this you are entitled to benefits. For exam- subpart, and your residual functional ple, if you tell your representative capacity. These administrative medical about the medical sources you have findings are based on the evidence in seen, your representative cannot refuse your case but are not in themselves to disclose the identity of those med- evidence at the level of the administra- ical sources to us based on the attor- tive review process at which they are ney-client privilege. As another exam- made. See § 416.913(a)(5). ple, if your representative asks a medical source to complete an opinion (2) When a State agency disability form related to your impairment(s), examiner makes the initial determina- symptoms, or limitations, your rep- tion alone as provided in § 416.1015(c)(3), resentative cannot withhold the com- he or she may obtain medical evidence pleted opinion form from us based on from a State agency medical or psy- the attorney work product doctrine. chological consultant about one or The attorney work product doctrine more of the medical issues listed in would not protect the source’s opinions paragraph (a)(1) of this section. In on the completed form, regardless of these cases, the State agency disability whether or not your representative examiner will consider the medical evi- used the form in his or her analysis of dence of the State agency medical or your claim or made handwritten notes psychological consultant under on the face of the report. §§ 416.920b, 416.920c, and 416.927. (3) When a State agency disability [82 FR 5875, Jan. 18, 2017] examiner makes a reconsideration de- § 416.913a Evidence from our Federal termination alone as provided in or State agency medical or psycho- § 416.1015(c)(3), he or she will consider logical consultants. prior administrative medical findings The following rules apply to our Fed- made by a State agency medical or eral or State agency medical or psy- psychological consultant at the initial chological consultants that we consult level of the administrative review proc- in connection with administrative law ess, and any medical evidence provided judge hearings and Appeals Council re- by such consultants at the initial and views: reconsideration levels, about one or (a) In claims adjudicated by the more of the medical issues listed in State agency, a State agency medical paragraph (a)(1)(i) of this section under or psychological consultant may make §§ 416.920b, 416.920c, and 416.927. the determination of disability to- (b) Administrative law judges are re- gether with a State agency disability sponsible for reviewing the evidence examiner or provide medical evidence and making administrative findings of to a State agency disability examiner fact and conclusions of law. They will when the disability examiner makes consider prior administrative medical the initial or reconsideration deter- findings and medical evidence from our mination alone (see § 416.1015(c) of this Federal or State agency medical or part). The following rules apply: psychological consultants as follows: (1) When a State agency medical or (1) Administrative law judges are not psychological consultant makes the de- required to adopt any prior administra- termination together with a State tive medical findings, but they must agency disability examiner at the ini- consider this evidence according to

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§§ 416.920b, 416.920c, and 416.927, as ap- reasons against medical examinations, propriate, because our Federal or State tests, or treatment. agency medical or psychological con- [58 FR 47577, Sept. 9, 1993] sultants are highly qualified and experts in Social Security disability eval- § 416.917 Consultative examination at uation. our expense. (2) Administrative law judges may If your medical sources cannot or also ask for medical evidence from ex- will not give us sufficient medical evi- pert medical sources. Administrative dence about your impairment for us to law judges will consider this evidence determine whether you are disabled or under §§ 416.920b, 416.920c, and 416.927, as blind, we may ask you to have one or appropriate. more physical or mental examinations (c) When the Appeals Council makes or tests. We will pay for these examina- a decision, it will consider prior admin- tions. However, we will not pay for any istrative medical findings according to medical examination arranged by you the same rules for considering prior ad- or your representative without our administrative medical findings as advance approval. If we arrange for the ministrative law judges follow under examination or test, we will give you paragraph (b) of this section. reasonable notice of the date, time, and place the examination or test will be [82 FR 5876, Jan. 18, 2017] given, and the name of the person or facility who will do it. We will also § 416.914 When we will purchase exist- give the examiner any necessary back- ing evidence. ground information about your condi- We need specific medical evidence to tion. determine whether you are disabled or [56 FR 36964, Aug. 1, 1991] blind. We will pay for the medical evidence we request, if there is a charge. § 416.918 If you do not appear at a con- We will also be responsible for the cost sultative examination. of medical evidence we ask you to get. (a) General. If you are applying for benefits and do not have a good reason § 416.915 Where and how to submit for failing or refusing to take part in a evidence. consultative examination or test which You may give us evidence about your we arrange for you to get information impairment at any of our offices or at we need to determine your disability or the office of any State agency author- blindness, we may find that you are ized to make disability or blindness de- not disabled or blind. If you are already terminations. You may also give evi- receiving benefits and do not have a dence to one of our employees author- good reason for failing or refusing to ized to accept evidence at another take part in a consultative examina- place. For more information about tion or test which we arranged for you, this, see subpart C of this part. we may determine that your disability or blindness has stopped because of § 416.916 If you fail to submit medical your failure or refusal. Therefore, if and other evidence. you have any reason why you cannot go for the scheduled appointment, you You (and if you are a child, your par- should tell us about this as soon as pos- ent, guardian, relative, or other person sible before the examination date. If acting on your behalf) must co-operate you have a good reason, we will sched- in furnishing us with, or in helping us ule another examination. We will con- to obtain or identify, available medical sider your physical, mental, edu- or other evidence about your impair- cational, and linguistic limitations (in- ment(s). When you fail to cooperate cluding any lack of facility with the with us in obtaining evidence, we will English language) when determining if have to make a decision based on infor- you have a good reason for failing to mation available in your case. We will attend a consultative examination. not excuse you from giving us evidence (b) Examples of good reasons for failure because you have religious or personal to appear. Some examples of what we

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consider good reasons for not going to § 416.919a When we will purchase a a scheduled examination include— consultative examination and how (1) Illness on the date of the sched- we will use it. uled examination or test; (a) General. If we cannot get the in- (2) Not receiving timely notice of the formation we need from your medical scheduled examination or test, or resources, we may decide to purchase a ceiving no notice at all; consultative examination. See § 416.912 (3) Being furnished incorrect or infor the procedures we will follow to ob- complete information, or being given tain evidence from your medical incorrect information about the physi- sources and § 416.920b for how we con- cian involved or the time or place of sider evidence. Before purchasing a the examination or test, or; consultative examination, we will con- (4) Having had death or serious ill- sider not only existing medical reports, ness occur in your immediate family. but also the disability interview form (c) Objections by your medical containing your allegations as well as source(s). If any of your medical sources other pertinent evidence in your file. tell you that you should not take the (b) Situations that may require a con- examination or test, you should tell us sultative examination. We may purchase at once. In many cases, we may be able a consultative examination to try to to get the information we need in an- resolve an inconsistency in the evi- other way. Your medical source(s) may dence or when the evidence as a whole agree to another type of examination is insufficient to support a determination or decision on your claim. Some for the same purpose. examples of when we might purchase a [45 FR 55621, Aug. 20, 1980, as amended at 59 consultative examination to secure FR 1636, Jan. 12, 1994; 82 FR 5877, Jan. 18, needed medical evidence, such as clin- 2017] ical findings, laboratory tests, a diagnosis, or prognosis, include but are not STANDARDS TO BE USED IN DETER- limited to: MINING WHEN A CONSULTATIVE EXAM- (1) The additional evidence needed is INATION WILL BE OBTAINED IN CONNEC- not contained in the records of your TION WITH DISABILITY DETERMINA- medical sources; TIONS (2) The evidence that may have been available from your treating or other § 416.919 The consultative examina- medical sources cannot be obtained for tion. reasons beyond your control, such as A consultative examination is a death or noncooperation of a medical physical or mental examination or test source; purchased for you at our request and (3) Highly technical or specialized expense from a treating source or an- medical evidence that we need is not other medical source, including a pedi- available from your treating or other atrician when appropriate. The deci- medical sources; or sion to purchase a consultative exam- (4) There is an indication of a change ination will be made on an individual in your condition that is likely to af- case basis in accordance with the pro- fect your ability to work, or, if you are visions of § 416.919a through § 416.919f. a child, your functioning, but the cur- Selection of the source for the exam- rent severity of your impairment is not ination will be consistent with the pro- established. visions of § 416.903a and §§ 416.919g through 416.919j. The rules and proce- [56 FR 36964, Aug. 1, 1991, as amended at 62 FR 6421, Feb. 11, 1997; 77 FR 10656, Feb. 23, dures for requesting consultative ex- 2012] aminations set forth in §§ 416.919a and 416.919b are applicable at the reconsid- § 416.919b When we will not purchase eration and hearing levels of review, as a consultative examination. well as the initial level of determina- We will not purchase a consultative tion. examination in situations including, [56 FR 36964, Aug. 1, 1991, as amended at 65 but not limited to, the following situa- FR 11879, Mar. 7, 2000] tions:

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(a) When any issues about your ac- ing to perform the additional examina- tual performance of substantial gainful tion or test(s) for the fee schedule pay- activity have not been resolved; ment, and generally furnishes complete (b) When you do not meet all of the and timely reports, your medical nondisability requirements. source will be the preferred source for [56 FR 36965, Aug. 1, 1991] the purchased examination or test(s). [82 FR 5877, Jan. 18, 2017] STANDARDS FOR THE TYPE OF REFERRAL AND FOR REPORT CONTENT § 416.919i Other sources for consultative examinations. § 416.919f Type of purchased examinations. We will use a different medical We will purchase only the specific ex- source than your medical source for a aminations and tests we need to make purchased examination or test in situa- a determination in your claim. For ex- tions including, but not limited to, the ample, we will not authorize a com- following: prehensive medical examination when (a) Your medical source prefers not the only evidence we need is a special to perform such an examination or test, such as an X-ray, blood studies, or does not have the equipment to provide an electrocardiogram. the specific data needed; (b) There are conflicts or inconsist- [56 FR 36965, Aug. 1, 1991] encies in your file that cannot be re- § 416.919g Who we will select to per- solved by going back to your medical form a consultative examination. source; (c) You prefer a source other than (a) We will purchase a consultative your medical source and have a good examination only from a qualified reason for your preference; medical source. The medical source may be your own medical source or an- (d) We know from prior experience other medical source. If you are a that your medical source may not be a child, the medical source we choose productive source, such as when he or may be a pediatrician. she has consistently failed to provide (b) By ‘‘qualified,’’ we mean that the complete or timely reports; or medical source must be currently li- (e) Your medical source is not a censed in the State and have the train- qualified medical source as defined in ing and experience to perform the type § 416.919g. of examination or test we will request; [82 FR 5877, Jan, 18, 2017] the medical source must not be barred from participation in our programs § 416.919j Objections to the medical under the provisions of § 416.903a. The source designated to perform the medical source must also have the consultative examination. equipment required to provide an ade- You or your representative may ob- quate assessment and record of the ex- ject to your being examined by a med- istence and level of severity of your al- ical source we have designated to per- leged impairments. form a consultative examination. If (c) The medical source we choose there is a good reason for the objec- may use support staff to help perform tion, we will schedule the examination the consultative examination. Any with another medical source. A good such support staff (e.g., X-ray techni- reason may be that the medical source cian, nurse) must meet appropriate li- we designated had previously rep- censing or certification requirements resented an interest adverse to you. of the State. See § 416.903a. For example, the medical source may [56 FR 36965, Aug. 1, 1991, as amended at 65 have represented your employer in a FR 11879, Mar. 7, 2000; 82 FR 5877, Jan. 18, workers’ compensation case or may 2017] have been involved in an insurance claim or legal action adverse to you. § 416.919h Your medical source. Other things we will consider include: When, in our judgment, your medical The presence of a language barrier, the source is qualified, equipped, and will- medical source’s office location (e.g.,

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2nd floor, no elevator), travel restric- chasing such services, whichever is the tions, and whether the medical source lesser amount. had examined you in connection with a (2) If the bill or request for payment previous disability determination or indicates that the test was performed decision that was unfavorable to you. by an independent laboratory, the If your objection is that a medical amount of reimbursement will not ex- source allegedly ‘‘lacks objectivity’’ in ceed the billed cost of the independent general, but not in relation to you per- laboratory or the rate of payment sonally, we will review the allegations. which the State uses for purchasing See § 416.919s. To avoid a delay in proc- such services, whichever is the lesser essing your claim, the consultative examination in your case will be changed amount. A nominal payment may be to another medical source while a re- made to the physician for collecting, view is being conducted. We will handle handling and shipping a specimen to any objection to use of the substitute the laboratory if the physician bills for medical source in the same manner. such a service. The total reimburse- However, if we had previously con- ment may not exceed the rate of pay- ducted such a review and found that ment which the State uses for pur- the reports of the medical source in chasing such services. question conformed to our guidelines, (c) The State will assure that it can we will not change your examination. support the rate of payment it uses. [65 FR 11879, Mar. 7, 2000] The State shall also be responsible for monitoring and overseeing the rate of § 416.919k Purchase of medical exami- payment it uses to ensure compliance nations, laboratory tests, and other with paragraphs (a) and (b) of this sec- services. tion. We may purchase medical examinations, including psychiatric and psy- [56 FR 36965, Aug. 1, 1991, as amended at 65 chological examinations, X-rays and FR 11879, Mar. 7, 2000; 71 FR 16459, Mar. 31, 2006; 76 FR 24810, May 3, 2011] laboratory tests (including specialized tests, such as pulmonary function stud- § 416.919m Diagnostic tests or proce- ies, electrocardiograms, and stress dures. tests) from a medical source. (a) The rate of payment for pur- We will request the results of any di- chasing medical or other services nec- agnostic tests or procedures that have essary to make determinations of dis- been performed as part of a workup by ability may not exceed the highest rate your treating source or other medical paid by Federal or public agencies in source and will use the results to help the State for the same or similar types us evaluate impairment severity or of service. See §§ 416.1024 and 416.1026 of prognosis. However, we will not order this part. diagnostic tests or procedures that in- (b) If a physician’s bill, or a request volve significant risk to you, such as for payment for a physician’s services, myelograms, arteriograms, or cardiac includes a charge for a laboratory test catheterizations for the evaluation of for which payment may be made under disability under the Supplemental Se- this part, the amount payable with re- curity Income program. A State agen- spect to the test shall be determined as cy medical consultant must approve follows: the ordering of any diagnostic test or (1) If the bill or request for payment procedure when there is a chance it indicates that the test was personally may involve significant risk. The re- performed or supervised by the physi- sponsibility for deciding whether to cian who submitted the bill (or for whose services the request for payment perform the examination rests with the was made) or by another physician medical source designated to perform with whom that physician shares his or the consultative examination. her practice, the payment will be based [56 FR 36966, Aug. 1, 1991, as amended at 65 on the physician’s usual and customary FR 11879, Mar. 7, 2000; 71 FR 16459, Mar. 31, charge for the test or the rates of pay- 2006; 76 FR 24810, May 3, 2011] ment which the State uses for pur-

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§ 416.919n Informing the medical to ensure that any overscheduling is source of examination scheduling, avoided, as overscheduling may lead to report content, and signature re- examinations that are not thorough. quirements. (b) Report content. The reported re- The medical sources who perform sults of your medical history, examina- consultative examinations will have a tion, requested laboratory findings, good understanding of our disability discussions and conclusions must con- programs and their evidentiary reform to accepted professional stand- quirements. They will be made fully ards and practices in the medical field aware of their responsibilities and obli- for a complete and competent examina- gations regarding confidentiality as de- tion. The facts in a particular case and scribed in § 401.105(e). We will fully in- the information and findings already form medical sources who perform con- reported in the medical and other evi- sultative examinations at the time we dence of record will dictate the extent first contact them, and at subsequent appropriate intervals, of the following of detail needed in the consultative ex- obligations: amination report for that case. Thus, (a) Scheduling. In scheduling full con- the detail and format for reporting the sultative examinations, sufficient time results of a purchased examination will should be allowed to permit the med- vary depending upon the type of exam- ical source to take a case history and ination or testing requested. The re- perform the examination, including porting of information will differ from any needed tests. The following min- one type of examination to another imum scheduling intervals (i.e., time when the requested examination re- set aside for the individual, not the ac- lates to the performance of tests such tual duration of the consultative exam- as ventilatory function tests, treadmill ination) should be used. exercise tests, or audiological tests. (1) Comprehensive general medical The medical report must be complete examination—at least 30 minutes; enough to help us determine the na- (2) Comprehensive musculoskeletal ture, severity, and duration of the im- or neurological examination—at least pairment, and your residual functional 20 minutes; capacity (if you are an adult) or your (3) Comprehensive psychiatric exam- functioning (if you are a child). The re- ination—at least 40 minutes; port should reflect your statement of (4) Psychological examination—at your symptoms, not simply the med- least 60 minutes (Additional time may ical source’s statements or conclu- be required depending on types of psy- sions. The medical source’s report of chological tests administered); and the consultative examination should (5) All others—at least 30 minutes, or include the objective medical facts as in accordance with accepted medical well as observations and opinions. practices. (c) Elements of a complete consultative We recognize that actual practice will examination. A complete consultative dictate that some examinations may examination is one which involves all require longer scheduling intervals de- the elements of a standard examina- pending on the circumstances in a par- tion in the applicable medical spe- ticular situation. We also recognize cialty. When the report of a complete that these minimum intervals may have to be adjusted to allow for those consultative examination is involved, claimants that do not attend their the report should include the following scheduled examination. The purpose of elements: these minimum scheduling timeframes (1) Your major or chief complaint(s); is to ensure that such examinations are (2) A detailed description, within the complete and that sufficient time is area of specialty of the examination, of made available to obtain the informa- the history of your major complaint(s); tion needed to make an accurate deter- (3) A description, and disposition, of mination in your case. State agencies pertinent ‘‘positive’’ and ‘‘negative’’ will monitor the scheduling of exami- detailed findings based on the history, nations (through their normal consult- examination and laboratory tests re- ative examination oversight activities) lated to the major complaint(s), and

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any other abnormalities or lack there- the medical source’s signature entered of reported or found during examina- by any other person is not acceptable. tion or laboratory testing; [56 FR 36966, Aug. 1, 1991, as amended at 62 (4) The results of laboratory and FR 6421, Feb. 11, 1997; 62 FR 13733, Mar. 21, other tests (e.g., X-rays) performed ac- 1997; 65 FR 11879, Mar. 7, 2000; 65 FR 54778, cording to the requirements stated in Sept. 11, 2000; 82 FR 5877, Jan. 18, 2017] the Listing of Impairments (see appendix 1 of subpart P of part 404 of this § 416.919o When a properly signed con- chapter); sultative examination report has (5) The diagnosis and prognosis for not been received. your impairment(s); If a consultative examination report (6) A medical opinion. Although we is received unsigned or improperly will ordinarily request a medical opin- signed we will take the following ac- ion as part of the consultative exam- tion. ination process, the absence of a med- (a) When we will make determinations ical opinion in a consultative examina- and decisions without a properly signed tion report will not make the report in- report. We will make a determination complete. See § 416.913(a)(3); and or decision in the circumstances speci- (7) In addition, the medical source fied in paragraphs (a)(1) and (a)(2) of will consider, and provide some expla- this section without waiting for a prop- nation or comment on, your major erly signed consultative examination complaint(s) and any other abnormali- report. After we have made the deter- ties found during the history and ex- mination or decision, we will obtain a amination or reported from the labora- properly signed report and include it in tory tests. The history, examination, the file unless the medical source who evaluation of laboratory test results, performed the original consultative ex- and the conclusions will represent the amination has died: information provided by the medical (1) Continuous period of disability al- source who signs the report. lowance with an onset date as alleged (d) When a complete consultative exam- or earlier than alleged; or ination is not required. When the evi- (2) Continuance of disability. dence we need does not require a com- (b) When we will not make determina- plete consultative examination (for ex- tions and decisions without a properly ample, we need only a specific labora- signed report. We will not use an un- tory test result to complete the signed or improperly signed consult- record), we may not require a report ative examination report to make the containing all of the elements in para- determinations or decisions specified graph (c). in paragraphs (b)(1), (b)(2), (b)(3), and (e) Signature requirements. All con- (b)(4) of this section. When we need a sultative examination reports will be properly signed consultative examina- personally reviewed and signed by the tion report to make these determina- medical source who actually performed tions or decisions, we must obtain such the examination. This attests to the a report. If the signature of the med- fact that the medical source doing the ical source who performed the original examination or testing is solely reexamination cannot be obtained be- sponsible for the report contents and cause the medical source is out of the for the conclusions, explanations or country for an extended period of time, comments provided with respect to the or on an extended vacation, seriously history, examination and evaluation of ill, deceased, or for any other reason, laboratory test results. The signature the consultative examination will be of the medical source on a report anno- rescheduled with another medical tated ‘‘not proofed’’ or ‘‘dictated but source: not read’’ is not acceptable. A rubber (1) Denial; or stamp signature of a medical source or (2) Cessation; or (3) Allowance of disability which has ended; or

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(4) Allowance with an onset date (d) We will perform ongoing special later than the filing date. management studies on the quality of [56 FR 36967, Aug. 1, 1991, as amended at 65 consultative examinations purchased FR 11880, Mar. 7, 2000] from major medical sources and the appropriateness of the examinations au- § 416.919p Reviewing reports of con- thorized. sultative examinations. (e) We will take steps to ensure that (a) We will review the report of the consultative examinations are sched- consultative examination to determine uled only with medical sources who whether the specific information re- have access to the equipment required quested has been furnished. We will to provide an adequate assessment and consider the following factors in re- record of the existence and level of se- viewing the report: verity of your alleged impairments. (1) Whether the report provides evidence which serves as an adequate [56 FR 36967, Aug. 1, 1991, as amended at 65 basis for decisionmaking in terms of FR 11880, Mar. 7, 2000] the impairment it assesses; (2) Whether the report is internally § 416.919q Conflict of interest. consistent; Whether all the diseases, All implications of possible conflict impairments and complaints described of interest between medical or psycho- in the history are adequately assessed logical consultants and their medical and reported in the clinical findings; or psychological practices will be Whether the conclusions correlate the avoided. Such consultants are not only findings from your medical history, those physicians and psychologists who clinical examination and laboratory work for us directly but are also those tests and explain all abnormalities; who do review and adjudication work (3) Whether the report is consistent in the State agencies. Physicians and with the other information available to psychologists who work for us directly us within the specialty of the examina- as employees or under contract will tion requested; Whether the report not work concurrently for a State fails to mention an important or rel- agency. Physicians and psychologists evant complaint within that specialty that is noted in other evidence in the who do review work for us will not per- file (e.g., your blindness in one eye, form consultative examinations for us amputations, pain, alcoholism, depres- without our prior approval. In such sit- sion); uations, the physician or psychologist (4) Whether this is an adequate re- will disassociate himself or herself port of examination as compared to from further involvement in the case standards set out in the course of a and will not participate in the evalua- medical education; and tion, decision, or appeal actions. In ad- (5) Whether the report is properly dition, neither they, nor any member signed. of their families, will acquire or main- (b) If the report is inadequate or in- tain, either directly or indirectly, any complete, we will contact the medical financial interest in a medical partner- source who performed the consultative ship, corporation, or similar relation- examination, give an explanation of ship in which consultative examina- our evidentiary needs, and ask that the tions are provided. Sometimes physi- medical source furnish the missing in- cians and psychologists who do review formation or prepare a revised report. work for us will have prior knowledge (c) With your permission, or when of a case; for example, when the claim- the examination discloses new diag- ant was a patient. Where this is so, the nostic information or test results that physician or psychologist will not par- reveal a potentially life-threatening ticipate in the review or determination situation, we will refer the consult- of the case. This does not preclude the ative examination report to your treat- physician or psychologist from submit- ing source. When we refer the consult- ting medical evidence based on treat- ative examination report to your treatment or examination of the claimant. ing source without your permission, we will notify you that we have done so. [56 FR 36967, Aug. 1, 1991]

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AUTHORIZING AND MONITORING THE (3) Procedures for control of sched- REFERRAL PROCESS uling consultative examinations; (4) Procedures to ensure that close § 416.919s Authorizing and monitoring attention is given to specific evalua- the consultative examination. tion issues involved in each case; (a) Day-to-day responsibility for the (5) Procedures to ensure that only re- consultative examination process rests quired examinations and tests are au- with the State agencies that make dis- thorized in accordance with the stand- ability determinations for us. ards set forth in this subpart; (b) The State agency will maintain a (6) Procedures for providing medical good working relationship with the or supervisory approval for the author- medical community in order to recruit ization or purchase of consultative ex- sufficient numbers of physicians and aminations and for additional tests or other providers of medical services to studies requested by consulting med- ensure ready availability of consult- ical sources. This includes physician ative examination providers. approval for the ordering of any diag- (c) Consistent with Federal and State nostic test or procedure where the laws, the State agency administrator question of significant risk to the will work to achieve appropriate rates of payment for purchased medical serv- claimant/beneficiary might be raised. ices. See § 416.919m. (d) Each State agency will be respon- (7) procedures for the ongoing review sible for comprehensive oversight man- of consultative examination results to agement of its consultative examina- ensure compliance with written guide- tion program, with special emphasis on lines; key providers. (8) Procedures to encourage active (e) A key consultative examination participation by physicians and psy- provider is a provider that meets at chologists in the consultative examina- least one of the following conditions: tion oversight program; (1) Any consultative examination (9) Procedures for handling com- provider with an estimated annual bill- plaints; ing to the disability programs we ad- (10) Procedures for evaluating claim- minister of at least $150,000; or ant reactions to key providers; and (2) Any consultative examination (11) A program of systematic, onsite provider with a practice directed pri- reviews of key providers that will in- marily towards evaluation examina- clude annual onsite reviews of such tions rather than the treatment of pa- providers when claimants are present tients; or for examinations. This provision does (3) Any consultative examination not contemplate that such reviews will provider that does not meet the above involve participation in the actual ex- criteria, but is one of the top five con- aminations but, rather, offer an oppor- sultative examination providers in the tunity to talk with claimants at the State by dollar volume, as evidenced provider’s site before and after the ex- by prior year data. amination and to review the provider’s (f) State agencies have flexibility in overall operation. managing their consultative examina- (g) The State agencies will cooperate tion programs, but at a minimum will with us when we conduct monitoring provide: activities in connection with their (1) An ongoing active recruitment program for consultative examination oversight management of their con- providers; sultative examination programs. (2) A process for orientation, train- [56 FR 36967, Aug. 1, 1991, as amended at 65 ing, and review of new consultative ex- FR 11880, Mar. 7, 2000; 71 FR 16459, Mar. 31, amination providers, with respect to 2006; 75 FR 32846, June 10, 2010; 76 FR 24810, SSA’s program requirements involving May 3, 2011] consultative examination report content and not with respect to medical techniques;

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PROCEDURES TO MONITOR THE abled or not disabled at a step, we CONSULTATIVE EXAMINATION make our determination or decision and we do not go on to the next step. If § 416.919t Consultative examination we cannot find that you are disabled or oversight. not disabled at a step, we go on to the (a) We will ensure that referrals for next step. Before we go from step three consultative examinations and pur- to step four, we assess your residual chases of consultative examinations functional capacity. (See paragraph (e) are made in accordance with our poli- of this section.) We use this residual cies. We will also monitor both the re- functional capacity assessment at both ferral processes and the product of the step four and at step five when we consultative examinations obtained. evaluate your claim at these steps. This monitoring may include reviews These are the five steps we follow: by independent medical specialists (i) At the first step, we consider your under direct contract with SSA. (b) Through our regional offices, we work activity, if any. If you are doing will undertake periodic comprehensive substantial gainful activity, we will reviews of each State agency to evalu- find that you are not disabled. (See ate each State’s management of the paragraph (b) of this section.) consultative examination process. The (ii) At the second step, we consider review will involve visits to key pro- the medical severity of your impair- viders, with State staff participating, ment(s). If you do not have a severe including a program physician when medically determinable physical or the visit will deal with medical tech- mental impairment that meets the du- niques or judgment, or factors that go ration requirement in § 416.909, or a to the core of medical professionalism. combination of impairments that is se- (c) We will also perform ongoing spe- vere and meets the duration require- cial management studies of the quality ment, we will find that you are not dis- of consultative examinations pur- abled. (See paragraph (c) of this sec- chased from key providers and other tion.) sources and the appropriateness of the (iii) At the third step, we also con- examinations authorized. sider the medical severity of your im- [56 FR 36968, Aug. 1, 1991] pairment(s). If you have an impairment(s) that meets or equals one of our EVALUATION OF DISABILITY listings in appendix 1 to subpart P of part 404 of this chapter and meets the § 416.920 Evaluation of disability of duration requirement, we will find that adults, in general. you are disabled. (See paragraph (d) of (a) General—(1) Purpose of this section. this section.) This section explains the five-step se- (iv) At the fourth step, we consider quential evaluation process we use to our assessment of your residual func- decide whether you are disabled, as de- tional capacity and your past relevant fined in § 416.905. (2) Applicability of these rules. These work. If you can still do your past rel- rules apply to you if you are age 18 or evant work, we will find that you are older and you file an application for not disabled. See paragraphs (f) and (h) Supplemental Security Income dis- of this section and § 416.960(b). ability benefits. (v) At the fifth and last step, we con- (3) Evidence considered. We will consider our assessment of your residual sider all evidence in your case record functional capacity and your age, edu- when we make a determination or deci- cation, and work experience to see if sion whether you are disabled. See you can make an adjustment to other § 416.920b. work. If you can make an adjustment (4) The five-step sequential evaluation to other work, we will find that you process. The sequential evaluation proc- are not disabled. If you cannot make ess is a series of five ‘‘steps’’ that we an adjustment to other work, we will follow in a set order. See paragraph (h) find that you are disabled. See para- of this section for an exception to this graphs (g) and (h) of this section and rule. If we can find that you are dis- § 416.960(c).

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(5) When you are already receiving dis- past relevant work. See paragraph (h) ability benefits. If you are already re- of this section and § 416.960(b). If you ceiving disability benefits, we will use can still do this kind of work, we will a different sequential evaluation proc- find that you are not disabled. ess to decide whether you continue to (g) Your impairment(s) must prevent be disabled. We explain this process in you from making an adjustment to any § 416.994(b)(5). other work. (1) If we find that you can- (b) If you are working. If you are not do your past relevant work because working and the work you are doing is you have a severe impairment(s) (or substantial gainful activity, we will you do not have any past relevant find that you are not disabled regard- work), we will consider the same resid- less of your medical condition or your ual functional capacity assessment we age, education, and work experience. (c) You must have a severe impairment. made under paragraph (e) of this sec- If you do not have any impairment or tion, together with your vocational combination of impairments which sig- factors (your age, education, and work nificantly limits your physical or men- experience) to determine if you can tal ability to do basic work activities, make an adjustment to other work. we will find that you do not have a se- (See § 416.960(c).) If you can make an ad- vere impairment and are, therefore, justment to other work, we will find not disabled. We will not consider your you not disabled. If you cannot, we will age, education, and work experience. find you disabled. (d) When your impairment(s) meets or (2) We use different rules if you meet equals a listed impairment in appendix 1. one of the two special medical-voca- If you have an impairment(s) which tional profiles described in § 416.962. If meets the duration requirement and is you meet one of those profiles, we will listed in appendix 1 or is equal to a list- find that you cannot make an adjusted impairment(s), we will find you dis- ment to other work, and that you are abled without considering your age, disabled. education, and work experience. (h) Expedited process. If we do not find (e) When your impairment(s) does not you disabled at the third step, and we meet or equal a listed impairment. If your do not have sufficient evidence about impairment(s) does not meet or equal a your past relevant work to make a listed impairment, we will assess and finding at the fourth step, we may pro- make a finding about your residual functional capacity based on all the ceed to the fifth step of the sequential relevant medical and other evidence in evaluation process. If we find that you your case record, as explained in can adjust to other work based solely § 416.945. (See paragraph (g)(2) of this on your age, education, and the same section and § 416.962 for an exception to residual functional capacity assess- this rule.) We use our residual func- ment we made under paragraph (e) of tional capacity assessment at the this section, we will find that you are fourth step of the sequential evalua- not disabled and will not make a find- tion process to determine if you can do ing about whether you can do your past your past relevant work (paragraph (f) relevant work at the fourth step. If we of this section) and at the fifth step of find that you may be unable to adjust the sequential evaluation process (if to other work or if § 416.962 may apply, the evaluation proceeds to this step) to we will assess your claim at the fourth determine if you can adjust to other step and make a finding about whether work (paragraph (g) of this section). you can perform your past relevant (f) Your impairment(s) must prevent you work. See paragraph (g) of this section from doing your past relevant work. If we and § 416.960(c). cannot make a determination or decision at the first three steps of the se- [50 FR 8728, Mar. 5, 1985; 50 FR 19164, May 7, quential evaluation process, we will 1985, as amended at 56 FR 5554, Feb. 11, 1991; compare our residual functional capac- 56 FR 36968, Aug. 1, 1991; 65 FR 80308, Dec. 21, ity assessment, which we made under 2000; 68 FR 51164, Aug. 26, 2003; 77 FR 10656, paragraph (e) of this section, with the Feb. 23, 2012; 77 FR 43495, July 25, 2012] physical and mental demands of your

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§ 416.920a Evaluation of mental im- cluding, but not limited to, chronic pairments. mental disorders, structured settings, (a) General. The steps outlined in medication, and other treatment. §§ 416.920 and 416.924 apply to the eval- (2) We will rate the degree of your uation of physical and mental impair- functional limitation based on the ex- ments. In addition, when we evaluate tent to which your impairment(s) the severity of mental impairments for interferes with your ability to function adults (persons age 18 and over) and in independently, appropriately, effec- persons under age 18 when Part A of tively, and on a sustained basis. Thus, the Listing of Impairments is used, we we will consider such factors as the must follow a special technique at each quality and level of your overall func- level in the administrative review tional performance, any episodic limi- process. We describe this special tech- tations, the amount of supervision or nique in paragraphs (b) through (e) of assistance you require, and the set- this section. Using this technique helps tings in which you are able to function. us: See 12.00C through 12.00H of the Listing (1) Identify the need for additional of Impairments in appendix 1 to sub- evidence to determine impairment se- part P of part 404 of this chapter for verity; more information about the factors we (2) Consider and evaluate functional consider when we rate the degree of consequences of the mental disorder(s) your functional limitation. relevant to your ability to work; and (3) We have identified four broad (3) Organize and present our findings functional areas in which we will rate in a clear, concise, and consistent man- the degree of your functional limita- ner. tion: Understand, remember, or apply (b) Use of the technique. (1) Under the information; interact with others; con- special technique, we must first evalu- centrate, persist, or maintain pace; and ate your pertinent symptoms, signs, adapt or manage oneself. See 12.00E of and laboratory findings to determine the Listing of Impairments in appendix whether you have a medically deter- 1 to subpart P of part 404 of this chap- minable mental impairment(s). See ter. § 416.921 for more information about (4) When we rate your degree of limi- what is needed to show a medically de- tation in these areas (understand, re- terminable impairment. If we deter- member, or apply information; interact mine that you have a medically deter- with others; concentrate, persist, or minable mental impairment(s), we maintain pace; and adapt or manage must specify the symptoms, signs, and oneself), we will use the following five- laboratory findings that substantiate point scale: None, mild, moderate, the presence of the impairment(s) and marked, and extreme. The last point on document our findings in accordance the scale represents a degree of limita- with paragraph (e) of this section. tion that is incompatible with the abil- (2) We must then rate the degree of ity to do any gainful activity. functional limitation resulting from (d) Use of the technique to evaluate the impairment(s) in accordance with mental impairments. After we rate the paragraph (c) of this section and record degree of functional limitation result- our findings as set out in paragraph (e) ing from your impairment(s), we will of this section. determine the severity of your mental (c) Rating the degree of functional limi- impairment(s). tation. (1) Assessment of functional (1) If we rate the degrees of your lim- limitations is a complex and highly in- itation as ‘‘none’’ or ‘‘mild,’’ we will dividualized process that requires us to generally conclude that your impair- consider multiple issues and all rel- ment(s) is not severe, unless the evi- evant evidence to obtain a longitudinal dence otherwise indicates that there is picture of your overall degree of func- more than a minimal limitation in tional limitation. We will consider all your ability to do basic work activities relevant and available clinical signs (see § 416.922). and laboratory findings, the effects of (2) If your mental impairment(s) is your symptoms, and how your func- severe, we must then determine if it tioning may be affected by factors in- meets or is equivalent in severity to a

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listed mental disorder. We do this by (3) When a disability hearing officer comparing the medical findings about makes a reconsideration determination your impairment(s) and the rating of as provided in § 416.1015(c)(4), the deter- the degree of functional limitation to mination must document application the criteria of the appropriate listed of the technique, incorporating the dis- mental disorder. We will record the ability hearing officer’s pertinent find- presence or absence of the criteria and ings and conclusions based on this the rating of the degree of functional technique. limitation on a standard document at (4) At the administrative law judge the initial and reconsideration levels of hearing and Appeals Council levels, the the administrative review process, or written decision must incorporate the in the decision at the administrative pertinent findings and conclusions law judge hearing and Appeals Council based on the technique. The decision levels (in cases in which the Appeals must show the significant history, in- Council issues a decision). See para- cluding examination and laboratory graph (e) of this section. findings, and the functional limitations (3) If we find that you have a severe that were considered in reaching a con- mental impairment(s) that neither clusion about the severity of the men- meets nor is equivalent in severity to tal impairment(s). The decision must any listing, we will then assess your re- include a specific finding as to the de- sidual functional capacity. gree of limitation in each of the func- (e) Documenting application of the tional areas described in paragraph (c) technique. At the initial and reconsider- of this section. ation levels of the administrative re- (5) If the administrative law judge review process, we will complete a stand- quires the services of a medical expert ard document to record how we applied to assist in applying the technique but the technique. At the administrative such services are unavailable, the ad- law judge hearing and Appeals Council ministrative law judge may return the levels (in cases in which the Appeals case to the State agency or the appro- Council issues a decision), we will doc- priate Federal component, using the ument application of the technique in rules in § 416.1441 of this part, for com- the decision. The following rules apply: pletion of the standard document. If, (1) When a State agency medical or after reviewing the case file and com- psychological consultant makes the de- pleting the standard document, the termination together with a State State agency or Federal component agency disability examiner at the ini- concludes that a determination favor- tial or reconsideration level of the ad- able to you is warranted, it will process ministrative review process as provided the case using the rules found in in § 416.1015(c)(1) of this part, the State § 416.1441(d) or (e) of this part. If, after agency medical or psychological con- reviewing the case file and completing sultant has overall responsibility for the standard document, the State assessing medical severity. A State agency or Federal component con- agency disability examiner may assist cludes that a determination favorable in preparing the standard document. to you is not warranted, it will send However, our medical or psychological the completed standard document and consultant must review and sign the the case to the administrative law document to attest that it is complete judge for further proceedings and a de- and that he or she is responsible for its cision. content, including the findings of fact [65 FR 50782, Aug. 21, 2000; 65 FR 60584, Oct. and any discussion of supporting evi- 12, 2000, as amended at 71 FR 16459, Mar. 31, dence. 2006; 75 FR 62682, Oct. 13, 2010; 76 FR 24810, (2) When a State agency disability May 3, 2011; 81 FR 66178, Sept. 26, 2016; 82 FR examiner makes the determination 5877, Jan. 18, 2017] alone as provided in § 416.1015(c)(3), the State agency disability examiner has § 416.920b How we consider evidence. overall responsibility for assessing After we review all of the evidence medical severity and for completing relevant to your claim, we make find- and signing the standard document. ings about what the evidence shows.

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(a) Complete and consistent evidence. If dence. If we obtain medical evidence all of the evidence we receive, includ- over the telephone, we will send the ing all medical opinion(s), is consistent telephone report to the source for re- and there is sufficient evidence for us view, signature, and return; to determine whether you are disabled, (ii) We may request additional exist- we will make our determination or de- ing evidence; cision based on that evidence. (iii) We may ask you to undergo a (b) Incomplete or inconsistent evidence. consultative examination at our ex- In some situations, we may not be able pense (see §§ 416.917 through 416.919t); or to make our determination or decision (iv) We may ask you or others for because the evidence in your case more information. record is insufficient or inconsistent. We consider evidence to be insufficient (3) When there are inconsistencies in when it does not contain all the infor- the evidence that we cannot resolve or mation we need to make our deter- when, despite efforts to obtain addi- mination or decision. We consider evi- tional evidence, the evidence is insuffi- dence to be inconsistent when it con- cient to determine whether you are dis- flicts with other evidence, contains an abled, we will make a determination or internal conflict, is ambiguous, or decision based on the evidence we have. when the medical evidence does not ap- (c) Evidence that is inherently neither pear to be based on medically accept- valuable nor persuasive. Paragraphs able clinical or laboratory diagnostic (c)(1) through (c)(3) apply in claims techniques. If the evidence in your case filed (see § 416.325) on or after March 27, record is insufficient or inconsistent, 2017. Because the evidence listed in we may need to take the additional ac- paragraphs ((c)(1)–(c)(3) of this section tions in paragraphs (b)(1) through (4) of is inherently neither valuable nor per- this section. suasive to the issue of whether you are (1) If any of the evidence in your case disabled or blind under the Act, we will record, including any medical opin- not provide any analysis about how we ion(s) and prior administrative medical considered such evidence in our deter- findings, is inconsistent, we will con- mination or decision, even under sider the relevant evidence and see if § 416.920c: we can determine whether you are dis- (1) Decisions by other governmental abled based on the evidence we have. agencies and nongovernmental entities. (2) If the evidence is consistent but See § 416.904. we have insufficient evidence to deter- (2) Disability examiner findings. Find- mine whether you are disabled, or if ings made by a State agency disability after considering the evidence we de- examiner made at a previous level of termine we cannot reach a conclusion adjudication about a medical issue, vo- about whether you are disabled, we will cational issue, or the ultimate deter- determine the best way to resolve the mination about whether you are dis- inconsistency or insufficiency. The ac- abled. tion(s) we take will depend on the na- (3) Statements on issues reserved to the ture of the inconsistency or insuffi- The statements listed in ciency. We will try to resolve the in- Commissioner. consistency or insufficiency by taking paragraphs (c)(3)(i) through (c)(3)(ix) of any one or more of the actions listed in this section would direct our deter- paragraphs (b)(2)(i) through (b)(2)(iv) of mination or decision that you are or this section. We might not take all of are not disabled or blind within the the actions listed below. We will con- meaning of the Act, but we are respon- sider any additional evidence we re- sible for making the determination or ceive together with the evidence we al- decision about whether you are dis- ready have. abled or blind: (i) We may recontact your medical (i) Statements that you are or are source. We may choose not to seek ad- not disabled, blind, able to work, or ditional evidence or clarification from able to perform regular or continuing a medical source if we know from expe- work; rience that the source either cannot or (ii) Statements about whether or not will not provide the necessary evi- you have a severe impairment(s);

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(iii) Statements about whether or not paragraphs (c)(1) through (c)(5) of this your impairment(s) meets the duration section, as appropriate. The most im- requirement (see § 416.909); portant factors we consider when we (iv) Statements about whether or not evaluate the persuasiveness of medical your impairment(s) meets or medically opinions and prior administrative med- equals any listing in the Listing of Im- ical findings are supportability (para- pairments in Part 404, Subpart P, Ap- graph (c)(1) of this section) and consist- pendix 1; ency (paragraph (c)(2) of this section). (v) If you are a child, statements We will articulate how we considered about whether or not your impair- the medical opinions and prior admin- ment(s) functionally equals the listings istrative medical findings in your in Part 404 Subpart P Appendix 1 (see claim according to paragraph (b) of § 416.926a); this section. (vi) If you are an adult, statements (b) How we articulate our consideration about what your residual functional of medical opinions and prior administra- capacity is using our programmatic tive medical findings. We will articulate terms about the functional exertional in our determination or decision how levels in Part 404, Subpart P, Appendix persuasive we find all of the medical 2, Rule 200.00 instead of descriptions opinions and all of the prior adminis- about your functional abilities and trative medical findings in your case limitations (see § 416.945); record. Our articulation requirements (vii) If you are an adult, statements are as follows: about whether or not your residual functional capacity prevents you from (1) Source-level articulation. Because doing past relevant work (see § 416.960); many claims have voluminous case (viii) If you are an adult, statements records containing many types of evi- that you do or do not meet the require- dence from different sources, it is not ments of a medical-vocational rule in administratively feasible for us to ar- Part 404, Subpart P, Appendix 2; and ticulate in each determination or deci- (ix) Statements about whether or not sion how we considered all of the fac- your disability continues or ends when tors for all of the medical opinions and we conduct a continuing disability re- prior administrative medical findings view (see § 416.994). in your case record. Instead, when a medical source provides multiple med- [82 FR 5877, Jan. 18, 2017] ical opinion(s) or prior administrative medical finding(s), we will articulate § 416.920c How we consider and articulate medical opinions and prior how we considered the medical opin- administrative medical findings for ions or prior administrative medical claims filed on or after March 27, findings from that medical source to- 2017. gether in a single analysis using the For claims filed (see § 416.325) on or factors listed in paragraphs (c)(1) after March 27, 2017, the rules in this through (c)(5) of this section, as appro- section apply. For claims filed before priate. We are not required to articu- March 27, 2017, the rules in § 416.927 late how we considered each medical apply. opinion or prior administrative med- (a) How we consider medical opinions ical finding from one medical source and prior administrative medical findings. individually. We will not defer or give any specific (2) Most important factors. The factors evidentiary weight, including control- of supportability (paragraph (c)(1) of ling weight, to any medical opinion(s) this section) and consistency (para- or prior administrative medical find- graph (c)(2) of this section) are the ing(s), including those from your med- most important factors we consider ical sources. When a medical source when we determine how persuasive we provides one or more medical opinions find a medical source’s medical opin- or prior administrative medical find- ions or prior administrative medical ings, we will consider those medical findings to be. Therefore, we will ex- opinions or prior administrative med- plain how we considered the ical findings from that medical source supportability and consistency factors together using the factors listed in for a medical source’s medical opinions

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or prior administrative medical find- whether the medical source has a lon- ings in your determination or decision. gitudinal understanding of your im- We may, but are not required to, ex- pairment(s). plain how we considered the factors in (iii) Purpose of the treatment relation- paragraphs (c)(3) through (c)(5) of this ship. The purpose for treatment you re- section, as appropriate, when we ar- ceived from the medical source may ticulate how we consider medical opin- help demonstrate the level of knowl- ions and prior administrative medical edge the medical source has of your im- findings in your case record. pairment(s). (3) Equally persuasive medical opinions (iv) Extent of the treatment relation- or prior administrative medical findings ship. The kinds and extent of examina- about the same issue. When we find that tions and testing the medical source two or more medical opinions or prior has performed or ordered from special- administrative medical findings about ists or independent laboratories may the same issue are both equally well- supported (paragraph (c)(1) of this sec- help demonstrate the level of knowl- tion) and consistent with the record edge the medical source has of your im- (paragraph (c)(2) of this section) but pairment(s). are not exactly the same, we will ar- (v) Examining relationship. A medical ticulate how we considered the other source may have a better under- most persuasive factors in paragraphs standing of your impairment(s) if he or (c)(3) through (c)(5) of this section for she examines you than if the medical those medical opinions or prior admin- source only reviews evidence in your istrative medical findings in your de- folder. termination or decision. (4) Specialization. The medical opinion (c) Factors. We will consider the fol- or prior administrative medical finding lowing factors when we consider the of a medical source who has received medical opinion(s) and prior adminis- advanced education and training to be- trative medical finding(s) in your case: come a specialist may be more persua- (1) Supportability. The more relevant sive about medical issues related to his the objective medical evidence and sup- or her area of specialty than the med- porting explanations presented by a ical opinion or prior administrative medical source are to support his or medical finding of a medical source her medical opinion(s) or prior admin- who is not a specialist in the relevant istrative medical finding(s), the more area of specialty. persuasive the medical opinions or (5) Other factors. We will consider prior administrative medical finding(s) other factors that tend to support or will be. contradict a medical opinion or prior (2) Consistency. The more consistent a administrative medical finding. This medical opinion(s) or prior administra- includes, but is not limited to, evi- tive medical finding(s) is with the evidence from other medical sources and dence showing a medical source has fa- nonmedical sources in the claim, the miliarity with the other evidence in more persuasive the medical opinion(s) the claim or an understanding of our or prior administrative medical find- disability program’s policies and evi- ing(s) will be. dentiary requirements. When we con- (3) Relationship with the claimant. This sider a medical source’s familiarity factor combines consideration of the with the other evidence in a claim, we issues in paragraphs (c)(3)(i)–(v) of this will also consider whether new evi- section. dence we receive after the medical (i) Length of the treatment relationship. source made his or her medical opinion The length of time a medical source or prior administrative medical finding has treated you may help demonstrate makes the medical opinion or prior ad- whether the medical source has a lon- ministrative medical finding more or gitudinal understanding of your im- less persuasive. pairment(s). (d) Evidence from nonmedical sources. (ii) Frequency of examinations. The We are not required to articulate how frequency of your visits with the med- we considered evidence from nonmedical source may help demonstrate ical sources using the requirements in

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paragraphs (a) through (c) in this sec- § 416.923 Multiple impairments. tion. (a) Unrelated severe impairments. We [82 FR 5878, Jan. 18, 2017] cannot combine two or more unrelated severe impairments to meet the 12- § 416.921 Establishing that you have a month duration test. If you have a se- medically determinable impair- vere impairment(s) and then develop ment(s). another unrelated severe impair- If you are not doing substantial gain- ment(s) but neither one is expected to ful activity, we will then determine last for 12 months, we cannot find you whether you have a medically deter- disabled, even though the two impair- minable physical or mental impairments in combination last for 12 ment(s) (see § 416.920(a)(4)(ii)). Your im- months. pairment(s) must result from anatom- (b) Concurrent impairments. If you ical, physiological, or psychological ab- have two or more concurrent impair- normalities that can be shown by medi- ments that, when considered in com- cally acceptable clinical and labora- bination, are severe, we must deter- tory diagnostic techniques. Therefore, mine whether the combined effect of a physical or mental impairment must your impairments can be expected to be established by objective medical evi- continue to be severe for 12 months. If dence from an acceptable medical one or more of your impairments im- source. We will not use your statement proves or is expected to improve within of symptoms, a diagnosis, or a medical 12 months, so that the combined effect opinion to establish the existence of an of your remaining impairments is no impairment(s). After we establish that longer severe, we will find that you do you have a medically determinable im- not meet the 12-month duration test. pairment(s), then we determine wheth- (c) Combined effect. In determining er your impairment(s) is severe. whether your physical or mental im- [82 FR 5879, Jan. 18, 2017] pairment or impairments are of a sufficient medical severity that such im- § 416.922 What we mean by an impair- pairment or impairments could be the ment(s) that is not severe in an basis of eligibility under the law, we adult. will consider the combined effect of all (a) Non-severe impairment(s). An im- of your impairments without regard to pairment or combination of impair- whether any such impairment, if con- ments is not severe if it does not sig- sidered separately, would be of suffi- nificantly limit your physical or men- cient severity. If we do find a medi- tal ability to do basic work activities. cally severe combination of impair- (b) Basic work activities. When we talk ments, we will consider the combined about basic work activities, we mean impact of the impairments throughout the abilities and aptitudes necessary to the disability determination process. If do most jobs. Examples of these in- we do not find that you have a medi- clude— cally severe combination of impair- (1) Physical functions such as walk- ments, we will determine that you are ing, standing, sitting, lifting, pushing, not disabled (see §§ 416.920 and 416.924). pulling, reaching, carrying, or handling; [82 FR 5879, Jan. 18, 2017] (2) Capacities for seeing, hearing, and § 416.924 How we determine disability speaking; for children. (3) Understanding, carrying out, and remembering simple instructions; (a) Steps in evaluating disability. We consider all relevant evidence in your (4) Use of judgment; case record when we make a deter- (5) Responding appropriately to su- mination or decision whether you are pervision, co-workers and usual work disabled. If you allege more than one situations; and impairment, we will evaluate all the (6) Dealing with changes in a routine impairments for which we have evi- work setting. dence. Thus, we will consider the com- [82 FR 5879, Jan. 18, 2017] bined effects of all your impairments

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upon your overall health and func- the listings, or if it functionally equals tioning. We will also evaluate any limi- the listings. tations in your functioning that result (1) Therefore, if you have an impair- from your symptoms, including pain ment(s) that meets or medically equals (see § 416.929). We will also consider all the requirements of a listing or that of the relevant factors in §§ 416.924a and functionally equals the listings, and 416.924b whenever we assess your func- that meets the duration requirement, tioning at any step of this process. We we will find you disabled. follow a set order to determine whether (2) If your impairment(s) does not you are disabled. If you are doing sub- meet the duration requirement, or does stantial gainful activity, we will deter- not meet, medically equal, or function- mine that you are not disabled and not ally equal the listings, we will find review your claim further. If you are that you are not disabled. not doing substantial gainful activity, (e) Other rules. We explain other rules we will consider your physical or men- for evaluating impairments at all steps tal impairment(s) first to see if you of this process in §§ 416.924a, 416.924b, have an impairment or combination of and 416.929. We explain our rules for de- impairments that is severe. If your im- ciding whether an impairment(s) meets pairment(s) is not severe, we will deter- a listing in § 416.925. Our rules for how mine that you are not disabled and not we decide whether an impairment(s) review your claim further. If your im- medically equals a listing are in pairment(s) is severe, we will review § 416.926. Our rules for deciding whether your claim further to see if you have an impairment(s) functionally equals an impairment(s) that meets, medi- the listings are in § 416.926a. cally equals, or functionally equals the (f) If you attain age 18 after you file listings. If you have such an impair- your disability application but before we ment(s), and it meets the duration re- make a determination or decision. For the quirement, we will find that you are period during which you are under age disabled. If you do not have such an 18, we will use the rules in this section. For the period starting with the day impairment(s), or if it does not meet you attain age 18, we will use the dis- the duration requirement, we will find ability rules we use for adults who file that you are not disabled. new claims, in § 416.920. (b) If you are working. If you are (g) How we will explain our findings. working and the work you are doing is When we make a determination or de- substantial gainful activity, we will cision whether you are disabled under find that you are not disabled regard- this section or whether your disability less of your medical condition or age, continues under § 416.994a, we will indi- education, or work experience. (For our cate our findings at each step of the se- rules on how we decide whether you are quential evaluation process as we ex- engaging in substantial gainful activ- plain in this paragraph. At the initial ity, see §§ 416.971 through 416.976.) and reconsideration levels of the ad- (c) You must have a medically deter- ministrative review process, State minable impairment(s) that is severe. If agency medical and psychological con- you do not have a medically deter- sultants will indicate their findings in minable impairment, or your impair- writing in a manner that we prescribe. ment(s) is a slight abnormality or a The State agency medical or psycho- combination of slight abnormalities logical consultant (see § 416.1016) or that causes no more than minimal other designee of the Commissioner has functional limitations, we will find overall responsibility for completing that you do not have a severe impair- the prescribed writing and must sign ment(s) and are, therefore, not dis- the prescribed writing to attest that it abled. is complete, including the findings of (d) Your impairment(s) must meet, medi- fact and any discussion of supporting cally equal, or functionally equal the list- evidence. Disability hearing officers, ings. An impairment(s) causes marked administrative law judges and the ad- and severe functional limitations if it ministrative appeals judges on the Ap- meets or medically equals the severity peals Council (when the Appeals Coun- of a set of criteria for an impairment in cil makes a decision) will indicate

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their findings at each step of the se- by the medical source should reflect quential evaluation process in their de- consideration of information from your terminations or decisions. In claims parents or other people who know you, adjudicated under the procedures in including your teachers and therapists. part 405 of this chapter, administrative When a medical source has accepted law judges will also indicate their find- and relied on such information to reach ings at each step of the sequential eval- a diagnosis, we may consider this infor- uation process in their decisions. mation to be a sign, as defined in § 416.902(l). [58 FR 47577, Sept. 9, 1993, as amended at 62 FR 6421, Feb. 11, 1997; 65 FR 54778, Sept. 11, (2) Statements from nonmedical sources. 2000; 71 FR 16460, Mar. 31, 2006; 76 FR 24811, Every child is unique, so the effects of May 3, 2011; 76 FR 41687, July 15, 2011] your impairment(s) on your functioning may be very different from the § 416.924a Considerations in deter- effects the same impairment(s) might mining disability for children. have on another child. Therefore, (a) Basic considerations. We consider whenever possible and appropriate, we all evidence in your case record (see will try to get information from people § 416.913). The evidence in your case who can tell us about the effects of record may include information from your impairment(s) on your activities medical sources (such as your pediatri- and how you function on a day-to-day cian or other physician; psychologist; basis. These other people may include, qualified speech-language pathologist; but are not limited to: and physical, occupational, and reha- (i) Your parents and other caregivers. bilitation therapists) and nonmedical Your parents and other caregivers can sources (such as your parents, teach- be important sources of information ers, and other people who know you). because they usually see you every (1) Medical evidence—(i) General. Med- day. In addition to your parents, other ical evidence of your impairment(s) caregivers may include a childcare pro- must describe symptoms, signs, and vider who takes care of you while your laboratory findings. The medical evi- parent(s) works or an adult who looks dence may include, but is not limited after you in a before-or after-school to, formal testing that provides infor- program. mation about your development or (ii) Early intervention and preschool functioning in terms of standard devi- programs. If you have been identified ations, percentiles, percentages of for early intervention services (in your delay, or age or grade equivalents. It home or elsewhere) because of your im- may also include opinions from med- pairment(s), or if you attend a pre- ical sources about the nature and se- school program (e.g., Headstart or a verity of your impairments. (See public school kindergarten for children § 416.920c.) with special needs), these programs are (ii) Test scores. We consider all of the also important sources of information relevant information in your case about your functioning. We will ask for record and will not consider any single reports from the agency and individ- piece of evidence in isolation. There- uals who provide you with services or fore, we will not rely on test scores from your teachers about how you alone when we decide whether you are typically function compared to other disabled. (See § 416.926a(e) for more in- children your age who do not have im- formation about how we consider test pairments. scores.) (iii) School. If you go to school, we (iii) Medical sources. Medical sources will ask for information from your will report their findings and observa- teachers and other school personnel tions on clinical examination and the about how you are functioning there on results of any formal testing. A med- a day-to-day basis compared to other ical source’s report should note and re- children your age who do not have im- solve any material inconsistencies be- pairments. We will ask for any reports tween formal test results, other med- that the school may have that show ical findings, and your usual func- the results of formal testing or that de- tioning. Whenever possible and appro- scribe any special education instruc- priate, the interpretation of findings tion or services, including home-based

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instruction, or any accommodations pared. For example, if the way you do provided in a regular classroom. your classwork is compared to other (b) Factors we consider when we evalu- children in a special education class, ate the effects of your impairment(s) on we will consider that you are being your functioning—(1) General. We must compared to children who do have im- consider your functioning when we de- pairments. cide whether your impairment(s) is (4) Combined effects of multiple impair- ‘‘severe’’ and when we decide whether ments. If you have more than one im- your impairment(s) functionally equals pairment, we will sometimes be able to the listings. We will also consider your decide that you have a ‘‘severe’’ im- functioning when we decide whether pairment or an impairment that meets, your impairment(s) meets or medically medically equals, or functionally equals a listing if the listing we are equals the listings by looking at each considering includes functioning of your impairments separately. When among its criteria. we cannot, we will look comprehen- (2) Factors we consider when we evalu- sively at the combined effects of your ate your functioning. Your limitations impairments on your day-to-day func- in functioning must result from your tioning instead of considering the limi- medically determinable impairment(s). tations resulting from each impair- The information we get from your med- ment separately. (See §§ 416.923 and ical and nonmedical sources can help 416.926a(c) for more information about us understand how your impairment(s) how we will consider the interactive affects your functioning. We will also and cumulative effects of your impair- consider any factors that are relevant ments on your functioning.) to how you function when we evaluate (5) How well you can initiate, sustain, your impairment or combination of im- and complete your activities, including pairments. For example, your symp- the amount of help or adaptations you toms (such as pain, fatigue, decreased need, and the effects of structured or sup- energy, or anxiety) may limit your portive settings—(i) Initiating, sustaining, functioning. (See § 416.929.) We explain and completing activities. We will con- some other factors we may consider sider how effectively you function by when we evaluate your functioning in examining how independently you are paragraphs (b)(3)–(b)(9) of this section. able to initiate, sustain, and complete (3) How your functioning compares to your activities despite your impair- the functioning of children your age who ment(s), compared to other children do not have impairments—(i) General. your age who do not have impairments. When we evaluate your functioning, we We will consider: will look at whether you do the things (A) The range of activities you do; that other children your age typically (B) Your ability to do them independ- do or whether you have limitations and ently, including any prompting you restrictions because of your medically may need to begin, carry through, and determinable impairment(s). We will complete your activities; also look at how well you do the activi- (C) The pace at which you do your ac- ties and how much help you need from tivities; your family, teachers, or others. Infor- (D) How much effort you need to mation about what you can and cannot make to do your activities; and do, and how you function on a day-to- (E) How long you are able to sustain day basis at home, school, and in the your activities. community, allows us to compare your (ii) Extra help. We will consider how activities to the activities of children independently you are able to function your age who do not have impairments. compared to other children your age (ii) How we will consider reports of who do not have impairments. We will your functioning. When we consider the consider whether you need help from evidence in your case record about the other people, or whether you need spe- quality of your activities, we will con- cial equipment, devices, or medications sider the standards used by the person to perform your day-to-day activities. who gave us the information. We will For example, we may consider how also consider the characteristics of the much supervision you need to keep group to whom you are being com- from hurting yourself, how much help

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you need every day to get dressed or, if (C) A structured or supportive set- you are an infant, how long it takes for ting may minimize signs and symp- your parents or other caregivers to toms of your impairment(s) and help to feed you. We recognize that children improve your functioning while you are often able to do things and com- are in it, but your signs, symptoms, plete tasks when given help, but may and functional limitations may worsen not be able to do these same things by outside this type of setting. Therefore, themselves. Therefore, we will consider we will consider your need for a struc- how much extra help you need, what tured setting and the degree of limita- special equipment or devices you use, tion in functioning you have or would and the medications you take that en- have outside the structured setting. able you to participate in activities Even if you are able to function ade- like other children your age who do not quately in the structured or supportive have impairments. setting, we must consider how you (iii) Adaptations. We will consider the function in other settings and whether nature and extent of any adaptations you would continue to function at an that you use to enable you to function. adequate level without the structured Such adaptations may include assistive or supportive setting. devices or appliances. Some adapta- (D) If you have a chronic impair- tions may enable you to function nor- ment(s), you may have your activities mally or almost normally (e.g., eye- structured in such a way as to mini- glasses). Others may increase your mize stress and reduce the symptoms functioning, even though you may still or signs of your impairment(s). You have functional limitations (e.g., may continue to have persistent pain, ankle-foot orthoses, hand or foot fatigue, decreased energy, or other splints, and specially adapted or cus- symptoms or signs, although at a less- tom-made tools, utensils, or devices for er level of severity. We will consider self-care activities such as bathing, whether you are more limited in your feeding, toileting, and dressing). When functioning than your symptoms and we evaluate your functioning with an signs would indicate. adaptation, we will consider the degree (E) Therefore, if your symptoms or to which the adaptation enables you to signs are controlled or reduced in a function compared to other children structured setting, we will consider your age who do not have impairments, how well you are functioning in the your ability to use the adaptation ef- setting and the nature of the setting in fectively on a sustained basis, and any which you are functioning (e.g., home functional limitations that neverthe- or a special class); the amount of help less persist. you need from your parents, teachers, (iv) Structured or supportive settings. or others to function as well as you do; (A) If you have a serious impair- adjustments you make to structure ment(s), you may spend some or all of your environment; and how you would your time in a structured or supportive function without the structured or sup- setting, beyond what a child who does portive setting. not have an impairment typically (6) Unusual settings. Children may needs. function differently in unfamiliar or (B) A structured or supportive set- one-to-one settings than they do in ting may be your own home in which their usual settings at home, at school, family members or other people (e.g., in childcare or in the community. You visiting nurses or home health work- may appear more or less impaired on a ers) make adjustments to accommo- single examination (such as a consult- date your impairment(s). A structured ative examination) than indicated by or supportive setting may also be your the information covering a longer pe- classroom at school, whether it is a riod. Therefore, we will apply the guid- regular classroom in which you are ac- ance in paragraph (b)(5) of this section commodated or a special classroom. It when we consider how you function in may also be a residential facility or an unusual or one-to-one situation. We school where you live for a period of will look at your performance in a spe- time. cial situation and at your typical day-

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to-day functioning in routine situa- because of your impairments along tions. We will not draw inferences with the other information in your about your functioning in other situa- case record. The fact that you attend tions based only on how you function school does not mean that you are not in a one-to-one, new, or unusual situa- disabled. The fact that you do or do not tion. receive special education services does (7) Early intervention and school pro- not, in itself, establish your actual lim- grams—(i) General. If you are a very itations or abilities. Children are young child who has been identified for placed in special education settings, or early intervention services, or if you are included in regular classrooms attend school (including preschool), (with or without accommodation), for the records of people who know you or many reasons that may or may not be who have examined you are important related to the level of their impair- sources of information about your im- ments. For example, you may receive pairment(s) and its effects on your one-to-one assistance from an aide functioning. Records from physicians, throughout the day in a regular class- teachers and school psychologists, or room, or be placed in a special class- physical, occupational, or speech-lan- room. We will consider the cir- guage therapists are examples of what cumstances of your school attendance, we will consider. If you receive early such as your ability to function in a intervention services or go to school or regular classroom or preschool setting preschool, we will consider this infor- with children your age who do not have mation when it is relevant and avail- impairments. Similarly, we will con- able to us. sider that good performance in a spe- (ii) School evidence. If you go to cial education setting does not mean school or preschool, we will ask your that you are functioning at the same teacher(s) about your performance in level as other children your age who do your activities throughout your school not have impairments. day. We will consider all the evidence (v) Attendance and participation. We we receive from your school, including will also consider factors affecting teacher questionnaires, teacher check- your ability to participate in your edu- lists, group achievement testing, and cation program. You may be unable to report cards. participate on a regular basis because (iii) Early intervention and special edu- of the chronic or episodic nature of cation programs. If you have received a your impairment(s) or your need for comprehensive assessment for early therapy or treatment. If you have more intervention services or special edu- than one impairment, we will look at cation services, we will consider infor- whether the effects of your impair- mation used by the assessment team to ments taken together make you unable make its recommendations. We will to participate on a regular basis. We consider the information in your Indi- will consider how your temporary re- vidualized Family Service Plan, your moval or absence from the program af- Individualized Education Program, or fects your ability to function compared your plan for transition services to to other children your age who do not help us understand your functioning. have impairments. We will examine the goals and objec- (8) The impact of chronic illness and tives of your plan or program as fur- limitations that interfere with your activi- ther indicators of your functioning, as ties over time. If you have a chronic im- well as statements regarding related pairment(s) that is characterized by services, supplementary aids, program episodes of exacerbation (worsening) modifications, and other accommoda- and remission (improvement), we will tions recommended to help you func- consider the frequency and severity of tion, together with the other relevant your episodes of exacerbation as fac- information in your case record. tors that may be limiting your func- (iv) Special education or accommoda- tioning. Your level of functioning may tions. We will consider the fact that vary considerably over time. Proper you attend school, that you may be evaluation of your ability to function placed in a special education setting, in any domain requires us to take into or that you receive accommodations account any variations in your level of

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functioning to determine the impact of of other children your age who do not your chronic illness on your ability to have impairments, such as attending function over time. If you require fre- school or classes and socializing with quent treatment, we will consider it as your peers. If you must frequently in- explained in paragraph (b)(9)(ii) of this terrupt your activities at school or at section. home for therapy, we will consider (9) The effects of treatment (including whether these interruptions interfere medications and other treatment). We will with your functioning. We will also evaluate the effects of your treatment consider the length and frequency of to determine its effect on your func- your hospitalizations. tioning in your particular case. (iii) Treatment and intervention, in (i) Effects of medications. We will con- general. With treatment or interven- sider the effects of medication on your tion, you may not only have your symptoms, signs, laboratory findings, symptoms or signs reduced, but may and functioning. Although medications also maintain, return to, or achieve a may control the most obvious mani- level of functioning that is not dis- festations of your impairment(s), they abling. Treatment or intervention may may or may not affect the functional prevent, eliminate, or reduce func- limitations imposed by your impair- tional limitations. ment(s). If your symptoms or signs are reduced by medications, we will con- [65 FR 54779, Sept. 11, 2000, as amended at 82 sider: FR 5879, Jan. 18, 2017] (A) Any of your functional limitations that may nevertheless persist, § 416.924b Age as a factor of evaluation in the sequential evaluation process even if there is improvement from the for children. medications; (B) Whether your medications create (a) General. In this section, we ex- any side effects that cause or con- plain how we consider age when we de- tribute to your functional limitations; cide whether you are disabled. Your (C) The frequency of your need for age may or may not be a factor in our medication; determination whether your impair- (D) Changes in your medication or ment(s) meets or medically equals a the way your medication is prescribed; listing, depending on the listing we use and for comparison. However, your age is (E) Any evidence over time of how an important factor when we decide medication helps or does not help you whether your impairment(s) is severe to function compared to other children (see § 416.924(c)) and whether it func- your age who do not have impairments. tionally equals the listings (see (ii) Other treatment. We will also con- § 416.926a). Except in the case of certain sider the level and frequency of treat- premature infants, as described in ment other than medications that you paragraph (b) of this section, age get for your impairment(s). You may means chronological age. need frequent and ongoing therapy (1) When we determine whether you from one or more medical sources to have an impairment or combination of maintain or improve your functional impairments that is severe, we will status. (Examples of therapy include compare your functioning to that of occupational, physical, or speech and children your age who do not have im- language therapy, nursing or home pairments. health services, psychotherapy, or psy- (2) When we determine whether your chosocial counseling.) Frequent ther- impairment(s) meets a listing, we may apy, although intended to improve or may not need to consider your age. your functioning in some ways, may The listings describe impairments that also interfere with your functioning in we consider of such significance that other ways. Therefore, we will consider they are presumed to cause marked the frequency of any therapy you must and severe functional limitations. have, and how long you have received (i) If the listing appropriate for eval- or will need it. We will also consider uating your impairment is divided into whether the therapy interferes with specific age categories, we will evalu- your participation in activities typical ate your impairment according to your

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age when we decide whether your im- gestation (8 weeks premature), then pairment meets that listing. your CCA is 12 weeks. (ii) If the listing appropriate for eval- (2) We evaluate developmental delay uating your impairment does not in- in a premature child until the child’s clude specific age categories, we will prematurity is no longer a relevant decide whether your impairment meets factor, generally no later than about the listing without giving consider- chronological age 2. ation to your age. (i) If you have not attained age 1 and (3) When we compare an unlisted im- were born prematurely, we will assess pairment or a combination of impair- your development using your CCA. ments with the listings to determine (ii) If you are over age 1 and have a whether it medically equals the sever- developmental delay, and prematurity ity of a listing, the way we consider is still a relevant factor, we will decide your age will depend on the listing we whether to correct your chronological use for comparison. We will use the age. We will base our decision on our same principles for considering your judgment and all the facts in your age as in paragraphs (a)(2)(i) and case. If we decide to correct your (a)(2)(ii) of this section; that is, we will chronological age, we may correct it by consider your age only if we are com- subtracting the full number of weeks of paring your impairment(s) to a listing prematurity or a lesser number of that includes specific age categories. weeks. If your developmental delay is (4) We will also consider your age and the result of your medically deter- whether it affects your ability to be minable impairment(s) and is not at- tested. If your impairment(s) is not tributable to your prematurity, we will amenable to formal testing because of decide not to correct your chrono- your age, we will consider all informa- logical age. tion in your case record that helps us decide whether you are disabled. We (3) Notwithstanding the provisions in will consider other generally accept- paragraph (b)(1) of this section, we will able methods consistent with the pre- not compute a corrected chronological vailing state of medical knowledge and age if the medical evidence shows that clinical practice that will help us your medical source has already con- evaluate the existence and severity of sidered your prematurity in his or her your impairment(s). assessment of your development. We (b) Correcting chronological age of pre- will not compute a CCA when we find mature infants. We generally use chron- you disabled under listing 100.04 of the ological age (a child’s age based on Listing of Impairments. birth date) when we decide whether, or [65 FR 54778, Sept. 11, 2000, as amended at 72 the extent to which, a physical or men- FR 59431, Oct. 19, 2007; 80 FR 19529, Apr. 13, tal impairment or combination of im- 2015; 82 FR 5880, Jan. 18, 2017] pairments causes functional limitations. However, if you were born pre- MEDICAL CONSIDERATIONS maturely, we may consider you younger than your chronological age when § 416.925 Listing of Impairments in ap- we evaluate your development. We may pendix 1 of subpart P of part 404 of use a ‘‘corrected’’ chronological age this chapter. (CCA); that is, your chronological age (a) What is the purpose of the Listing of adjusted by a period of gestational pre- Impairments? The Listing of Impair- maturity. We consider an infant born ments (the listings) is in appendix 1 of at less than 37 weeks’ gestation to be subpart P of part 404 of this chapter. born prematurely. For adults, it describes for each of the (1) We compute your CCA by sub- major body systems impairments that tracting the number of weeks of pre- we consider to be severe enough to prematurity (the difference between 40 vent an individual from doing any weeks of full-term gestation and the gainful activity, regardless of his or number of actual weeks of gestation) her age, education, or work experience. from your chronological age. For ex- For children, it describes impairments ample, if your chronological age is 20 that cause marked and severe func- weeks but you were born at 32 weeks tional limitations.

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(b) How is appendix 1 organized? There and definitions used in the listings for are two parts in appendix 1: that body system. We may also include (1) Part A contains criteria that apply specific criteria for establishing a diag- to individuals age 18 and over. We may nosis, confirming the existence of an also use part A for individuals who are impairment, or establishing that your under age 18 if the disease processes impairment(s) satisfies the criteria of a have a similar effect on adults and particular listing in the body system. children. Even if we do not include specific cri- (2)(i) Part B contains criteria that teria for establishing a diagnosis or apply only to individuals who are confirming the existence of your im- under age 18; we never use the listings pairment, you must still show that you in part B to evaluate individuals who have a severe medically determinable are age 18 or older. In evaluating dis- impairment(s), as defined in §§ 416.921 ability for a person under age 18, we use part B first. If the criteria in part and 416.924(c). B do not apply, we may use the criteria (3) In most cases, the specific listings in part A when those criteria give ap- follow the introduction in each body propriate consideration to the effects system, after the heading, Category of of the impairment(s) in children. To Impairments. Within each listing, we the extent possible, we number the pro- specify the objective medical and other visions in part B to maintain a rela- findings needed to satisfy the criteria tionship with their counterparts in of that listing. We will find that your part A. impairment(s) meets the requirements (ii) Although the severity criteria in of a listing when it satisfies all of the part B of the listings are expressed in criteria of that listing, including any different ways for different impair- relevant criteria in the introduction, ments, ‘‘listing-level severity’’ gen- and meets the duration requirement erally means the level of severity de- (see § 416.909). scribed in § 416.926a(a); that is, (4) Most of the listed impairments ‘‘marked’’ limitations in two domains are permanent or expected to result in of functioning or an ‘‘extreme’’ limita- death. For some listings, we state a tion in one domain. (See § 416.926a(e) for specific period of time for which your the definitions of the terms marked and impairment(s) will meet the listing. extreme as they apply to children.) For all others, the evidence must show Therefore, in general, a child’s impair- that your impairment(s) has lasted or ment(s) is of ‘‘listing-level severity’’ if it causes marked limitations in two do- can be expected to last for a contin- mains of functioning or an extreme uous period of at least 12 months. limitation in one. However, when we (5) If your impairment(s) does not decide whether your impairment(s) meet the criteria of a listing, it can meets the requirements of a listing, we medically equal the criteria of a listing. will decide that your impairment is of We explain our rules for medical ‘‘listing-level severity’’ even if it does equivalence in § 416.926. We use the list- not result in marked limitations in two ings only to find that you are disabled domains of functioning, or an extreme or still disabled. If your impairment(s) limitation in one, if the listing that we does not meet or medically equal the apply does not require such limitations criteria of a listing, we may find that to establish that an impairment(s) is you are disabled or still disabled at a disabling. later step in the sequential evaluation (c) How do we use the listings? (1) Most process. body system sections in parts A and B (d) Can your impairment(s) meet a list- of appendix 1 are in two parts: an intro- ing based only on a diagnosis? No. Your duction, followed by the specific list- impairment(s) cannot meet the criteria ings. of a listing based only on a diagnosis. (2) The introduction to each body To meet the requirements of a listing, system contains information relevant you must have a medically deter- to the use of the listings in that body system; for example, examples of com- minable impairment(s) that satisfies mon impairments in the body system all of the criteria of the listing.

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(e) How do we consider your symptoms findings with those for closely analo- when we determine whether your impair- gous listed impairments. If the findings ment(s) meets a listing? Some listed im- related to your impairments are at pairments include symptoms, such as least of equal medical significance to pain, as criteria. Section 416.929(d)(2) those of a listed impairment, we will explains how we consider your symp- find that your combination of impair- toms when your symptoms are in- ments is medically equivalent to that cluded as criteria in a listing. listing. (4) Section 416.929(d)(3) explains how [71 FR 10430, Mar. 1, 2006, as amended at 76 FR 19698, Apr. 8, 2011; 82 FR 5880, Jan. 18, we consider your symptoms, such as 2017] pain, when we make findings about medical equivalence. § 416.926 Medical equivalence for (c) What evidence do we consider when adults and children. we determine if your impairment(s) medi- (a) What is medical equivalence? Your cally equals a listing? When we deter- impairment(s) is medically equivalent mine if your impairment medically to a listed impairment in appendix 1 of equals a listing, we consider all evi- subpart P of part 404 of this chapter if dence in your case record about your it is at least equal in severity and du- impairment(s) and its effects on you ration to the criteria of any listed im- that is relevant to this finding. We do pairment. not consider your vocational factors of (b) How do we determine medical age, education, and work experience equivalence? We can find medical (see, for example, § 416.960(c)(1)). We equivalence in three ways. also consider the opinion given by one (1)(i) If you have an impairment that or more medical or psychological con- is described in the Listing of Impair- sultants designated by the Commis- ments in appendix 1 of subpart P of sioner. (See § 416.1016.) part 404 of this chapter, but— (d) Who is a designated medical or psy- (A) You do not exhibit one or more of chological consultant? A medical or psy- the findings specified in the particular chological consultant designated by listing, or the Commissioner includes any med- (B) You exhibit all of the findings, ical or psychological consultant em- but one or more of the findings is not ployed or engaged to make medical as severe as specified in the particular judgments by the Social Security Ad- listing, ministration, the Railroad Retirement (ii) We will find that your impair- Board, or a State agency authorized to ment is medically equivalent to that make disability determinations. See listing if you have other findings re- § 416.1016 for the necessary qualifica- lated to your impairment that are at tions for medical consultants and psy- least of equal medical significance to chological consultants. the required criteria. (e) Who is responsible for determining (2) If you have an impairment(s) that medical equivalence? is not described in the Listing of Im- (1) In cases where the State agency pairments in appendix 1 of subpart P of or other designee of the Commissioner part 404 of this chapter, we will com- makes the initial or reconsideration pare your findings with those for close- disability determination, a State agen- ly analogous listed impairments. If the cy medical or psychological consultant findings related to your impairment(s) or other designee of the Commissioner are at least of equal medical signifi- (see § 416.1016 of this part) has the over- cance to those of a listed impairment, all responsibility for determining med- we will find that your impairment(s) is ical equivalence. medically equivalent to the analogous (2) For cases in the disability hearing listing. process or otherwise decided by a dis- (3) If you have a combination of im- ability hearing officer, the responsi- pairments, no one of which meets a bility for determining medical equiva- listing described in the Listing of Im- lence rests with either the disability pairments in appendix 1 of subpart P of hearing officer or, if the disability part 404 of this chapter (see hearing officer’s reconsideration deter- § 416.925(c)(3)), we will compare your mination is changed under § 416.1418 of

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this part, with the Associate Commis- how your functioning is affected during sioner for Disability Policy or his or all of your activities when we decide her delegate. whether your impairment or combina- (3) For cases at the administrative tion of impairments functionally law judge or Appeals Council level, the equals the listings. Your activities are responsibility for deciding medical everything you do at home, at school, equivalence rests with the administra- and in your community. We will look tive law judge or Appeals Council. at how appropriately, effectively, and independently you perform your activi- [45 FR 55621, Aug. 20, 1980, as amended at 52 FR 33928, Sept. 9, 1987; 56 FR 5561, Feb. 11, ties compared to the performance of 1991; 62 FR 6424, Feb. 11, 1997; 62 FR 13538, other children your age who do not Mar. 21, 1997; 65 FR 34959, June 1, 2000; 71 FR have impairments. 10431, Mar. 1, 2006; 71 FR 16460, Mar. 31, 2006; (1) We will consider how you function 76 FR 24811, May 3, 2011; 82 FR 5880, Jan. 18, in your activities in terms of six do- 2017; 82 FR 15132, Mar. 27, 2017] mains. These domains are broad areas of functioning intended to capture all § 416.926a Functional equivalence for children. of what a child can or cannot do. In paragraphs (g) through (l), we describe (a) General. If you have a severe im- each domain in general terms. For pairment or combination of impair- most of the domains, we also provide ments that does not meet or medically examples of activities that illustrate equal any listing, we will decide wheth- the typical functioning of children in er it results in limitations that func- different age groups. For all of the do- tionally equal the listings. By ‘‘func- mains, we also provide examples of tionally equal the listings,’’ we mean limitations within the domains. How- that your impairment(s) must be of ever, we recognize that there is a range listing-level severity; i.e., it must re- of development and functioning, and sult in ‘‘marked’’ limitations in two that not all children within an age cat- domains of functioning or an ‘‘ex- egory are expected to be able to do all treme’’ limitation in one domain, as of the activities in the examples of typ- explained in this section. We will as- ical functioning. We also recognize sess the functional limitations caused that limitations of any of the activities by your impairment(s); i.e., what you in the examples do not necessarily cannot do, have difficulty doing, need mean that a child has a ‘‘marked’’ or help doing, or are restricted from doing ‘‘extreme’’ limitation, as defined in because of your impairment(s). When paragraph (e) of this section. The do- we make a finding regarding functional mains we use are: equivalence, we will assess the inter- (i) Acquiring and using information; active and cumulative effects of all of (ii) Attending and completing tasks; the impairments for which we have evidence, including any impairments you (iii) Interacting and relating with others; have that are not ‘‘severe.’’ (See § 416.924(c).) When we assess your func- (iv) Moving about and manipulating tional limitations, we will consider all objects; the relevant factors in §§ 416.924a, (v) Caring for yourself; and, 416.924b, and 416.929 including, but not (vi) Health and physical well-being. limited to: (2) When we evaluate your ability to (1) How well you can initiate and sus- function in each domain, we will ask tain activities, how much extra help for and consider information that will you need, and the effects of structured help us answer the following questions or supportive settings (see about whether your impairment(s) af- § 416.924a(b)(5)); fects your functioning and whether (2) How you function in school (see your activities are typical of other § 416.924a(b)(7)); and children your age who do not have im- (3) The effects of your medications or pairments. other treatment (see § 416.924a(b)(9)). (i) What activities are you able to (b) How we will consider your func- perform? tioning. We will look at the informa- (ii) What activities are you not able tion we have in your case record about to perform?

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(iii) Which of your activities are lim- limitation in one domain. We will not ited or restricted compared to other compare your functioning to the re- children your age who do not have im- quirements of any specific listing. We pairments? explain what the terms ‘‘marked’’ and (iv) Where do you have difficulty ‘‘extreme’’ mean in paragraph (e) of with your activities-at home, in this section. We explain how we use the childcare, at school, or in the commu- domains in paragraph (f) of this sec- nity? tion, and describe each domain in para- (v) Do you have difficulty independ- graphs (g)–(l). You must also meet the ently initiating, sustaining, or com- duration requirement. (See § 416.909.) pleting activities? (e) How we define ‘‘marked’’ and ‘‘ex- (vi) What kind of help do you need to treme’’ limitations—(1) General. (i) When do your activities, how much help do we decide whether you have a you need, and how often do you need ‘‘marked’’ or an ‘‘extreme’’ limitation, it? we will consider your functional limi- (3) We will try to get information tations resulting from all of your im- from sources who can tell us about the pairments, including their interactive effects of your impairment(s) and how and cumulative effects. We will con- you function. We will ask for informa- sider all the relevant information in tion from your medical sources who your case record that helps us deter- can give us medical evidence, including mine your functioning, including your medical opinions, about your limita- signs, symptoms, and laboratory find- tions and restrictions. We will also ask ings, the descriptions we have about for information from your parents and your functioning from your parents, teachers, and may ask for information teachers, and other people who know from others who see you often and can you, and the relevant factors explained describe your functioning at home, in in §§ 416.924a, 416.924b, and 416.929. childcare, at school, and in your com- (ii) The medical evidence may in- munity. We may also ask you to go to clude formal testing that provides in- a consultative examination(s) at our formation about your development or expense. (See §§ 416.912–416.919a regard- functioning in terms of percentiles, ing medical evidence and when we will percentages of delay, or age or grade purchase a consultative examination.) equivalents. Standard scores (e.g., per- (c) The interactive and cumulative ef- centiles) can be converted to standard fects of an impairment or multiple impair- deviations. When you have such scores, ments. When we evaluate your func- we will consider them together with tioning and decide which domains may the information we have about your be affected by your impairment(s), we functioning to determine whether you will look first at your activities and have a ‘‘marked’’ or ‘‘extreme’’ limita- your limitations and restrictions. Any tion in a domain. given activity may involve the inte- (2) Marked limitation. (i) We will find grated use of many abilities and skills; that you have a ‘‘marked’’ limitation therefore, any single limitation may be in a domain when your impairment(s) the result of the interactive and cumu- interferes seriously with your ability lative effects of one or more impair- to independently initiate, sustain, or ments. And any given impairment may complete activities. Your day-to-day have effects in more than one domain; functioning may be seriously limited therefore, we will evaluate the limita- when your impairment(s) limits only tions from your impairment(s) in any one activity or when the interactive affected domain(s). and cumulative effects of your impair- (d) How we will decide that your im- ment(s) limit several activities. pairment(s) functionally equals the list- ‘‘Marked’’ limitation also means a lim- ings. We will decide that your impair- itation that is ‘‘more than moderate’’ ment(s) functionally equals the listings but ‘‘less than extreme.’’ It is the if it is of listing-level severity. Your equivalent of the functioning we would impairment(s) is of listing-level sever- expect to find on standardized testing ity if you have ‘‘marked’’ limitations with scores that are at least two, but in two of the domains in paragraph less than three, standard deviations (b)(1) of this section, or an ‘‘extreme’’ below the mean.

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(ii) If you have not attained age 3, we rating we give to the worst limitations. will generally find that you have a However, ‘‘extreme limitation’’ does ‘‘marked’’ limitation if you are func- not necessarily mean a total lack or tioning at a level that is more than loss of ability to function. It is the one-half but not more than two-thirds equivalent of the functioning we would of your chronological age when there expect to find on standardized testing are no standard scores from standard- with scores that are at least three ized tests in your case record. standard deviations below the mean. (iii) If you are a child of any age (ii) If you have not attained age 3, we (birth to the attainment of age 18), we will generally find that you have an will find that you have a ‘‘marked’’ ‘‘extreme’’ limitation if you are func- limitation when you have a valid score tioning at a level that is one-half of that is two standard deviations or your chronological age or less when more below the mean, but less than there are no standard scores from three standard deviations, on a com- standardized tests in your case record. prehensive standardized test designed (iii) If you are a child of any age to measure ability or functioning in (birth to the attainment of age 18), we that domain, and your day-to-day func- will find that you have an ‘‘extreme’’ tioning in domain-related activities is limitation when you have a valid score consistent with that score. (See para- that is three standard deviations or graph (e)(4) of this section.) more below the mean on a comprehen- (iv) For the sixth domain of func- sive standardized test designed to tioning, ‘‘Health and physical well- measure ability or functioning in that being,’’ we may also consider you to domain, and your day-to-day func- have a ‘‘marked’’ limitation if you are tioning in domain-related activities is frequently ill because of your impair- consistent with that score. (See para- ment(s) or have frequent exacerbations graph (e)(4) of this section.) of your impairment(s) that result in (iv) For the sixth domain of func- significant, documented symptoms or tioning, ‘‘Health and physical well- signs. For purposes of this domain, ‘‘frequent means that you have epi- being,’’ we may also consider you to sodes of illness or exacerbations that have an ‘‘extreme’’ limitation if you occur on an average of 3 times a year, are frequently ill because of your im- or once every 4 months, each lasting 2 pairment(s) or have frequent exacer- weeks or more. We may also find that bations of your impairment(s) that re- you have a ‘‘marked’’ limitation if you sult in significant, documented symp- have episodes that occur more often toms or signs substantially in excess of than 3 times in a year or once every 4 the requirements for showing a months but do not last for 2 weeks, or ‘‘marked’’ limitation in paragraph occur less often than an average of 3 (e)(2)(iv) of this section. However, if times a year or once every 4 months you have episodes of illness or exacer- but last longer than 2 weeks, if the bations of your impairment(s) that we overall effect (based on the length of would rate as ‘‘extreme’’ under this the episode(s) or its frequency) is definition, your impairment(s) should equivalent in severity. meet or medically equal the require- (3) Extreme limitation. (i) We will find ments of a listing in most cases. See that you have an ‘‘extreme’’ limitation §§ 416.925 and 416.926. in a domain when your impairment(s) (4) How we will consider your test interferes very seriously with your scores. (i) As indicated in ability to independently initiate, sus- § 416.924a(a)(1)(ii), we will not rely on tain, or complete activities. Your day- any test score alone. No single piece of to-day functioning may be very seri- information taken in isolation can es- ously limited when your impairment(s) tablish whether you have a ‘‘marked’’ limits only one activity or when the or an ‘‘extreme’’ limitation in a do- interactive and cumulative effects of main. your impairment(s) limit several ac- (ii) We will consider your test scores tivities. ‘‘Extreme’’ limitation also together with the other information we means a limitation that is ‘‘more than have about your functioning, including marked.’’ ‘‘Extreme’’ limitation is the reports of classroom performance and

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the observations of school personnel (B) Generally, we will not rely on a and others. test score as a measurement of your (A) We may find that you have a functioning within a domain when the ‘‘marked’’ or ‘‘extreme’’ limitation information we have about your func- when you have a test score that is tioning is the kind of information typi- slightly higher than the level provided cally used by medical professionals to in paragraph (e)(2) or (e)(3) of this sec- determine that the test results are not tion, if other information in your case the best measure of your day-to-day record shows that your functioning in functioning. When we do not rely on day-to-day activities is seriously or test scores, we will explain our reasons very seriously limited because of your for doing so in your case record or in impairment(s). For example, you may our decision. have IQ scores above the level in para- (f) How we will use the domains to help graph (e)(2), but other evidence shows us evaluate your functioning. (1) When that your impairment(s) causes you to we consider whether you have function in school, home, and the com- ‘‘marked’’ or ‘‘extreme’’ limitations in munity far below your expected level of any domain, we examine all the infor- functioning based on this score. mation we have in your case record (B) On the other hand, we may find about how your functioning is limited that you do not have a ‘‘marked’’ or because of your impairment(s), and we ‘‘extreme’’ limitation, even if your test compare your functioning to the typ- scores are at the level provided in para- ical functioning of children your age graph (e)(2) or (e)(3) of this section, if who do not have impairments. other information in your case record (2) The general descriptions of each shows that your functioning in day-to- domain in paragraphs (g)–(l) help us de- day activities is not seriously or very cide whether you have limitations in seriously limited by your impair- any given domain and whether these ment(s). For example, you may have a limitations are ‘‘marked’’ or ‘‘ex- valid IQ score below the level in para- treme.’’ graph (e)(2), but other evidence shows that you have learned to drive a car, (3) The domain descriptions also in- shop independently, and read books clude examples of some activities typ- near your expected grade level. ical of children in each age group and (iii) If there is a material inconsist- some functional limitations that we ency between your test scores and may consider. These examples also other information in your case record, help us decide whether you have limi- we will try to resolve it. The interpre- tations in a domain because of your tation of the test is primarily the re- impairment(s). The examples are not sponsibility of the psychologist or all-inclusive, and we will not require other professional who administered our adjudicators to develop evidence the test. But it is also our responsi- about each specific example. When you bility to ensure that the evidence in have limitations in a given activity or your case is complete and consistent or activities in the examples, we may or that any material inconsistencies have may not decide that you have a been resolved. Therefore, we will use ‘‘marked’’ or ‘‘extreme’’ limitation in the following guidelines when we re- the domain. We will consider the ac- solve concerns about your test scores: tivities in which you are limited be- (A) We may be able to resolve the in- cause of your impairment(s) and the consistency with the information we extent of your limitations under the have. We may need to obtain additional rules in paragraph (e) of this section. information; e.g., by recontact with We will also consider all of the rel- your medical source(s), by purchase of evant provisions of §§ 416.924a, 416.924b, a consultative examination to provide and 416.929. further medical information, by recon- (g) Acquiring and using information. In tact with a medical source who pro- this domain, we consider how well you vided a consultative examination, or acquire or learn information, and how by questioning individuals familiar well you use the information you have with your day-to-day functioning. learned.

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(1) General. (i) Learning and thinking real things. This helps you understand begin at birth. You learn as you ex- that words represent things, and that plore the world through sight, sound, words are simply symbols or names for taste, touch, and smell. As you play, toys, people, places, and activities. You you acquire concepts and learn that should refer to yourself and things people, things, and activities have around you by pointing and eventually names. This lets you understand sym- by naming. You should form concepts bols, which prepares you to use lan- and solve simple problems through pur- guage for learning. Using the concepts poseful experimentation (e.g., taking and symbols you have acquired toys apart), imitation, constructive through play and learning experiences, play (e.g., building with blocks), and you should be able to learn to read, pretend play activities. You should write, do arithmetic, and understand begin to respond to increasingly com- and use new information. plex instructions and questions, and to (ii) Thinking is the application or use produce an increasing number of words of information you have learned. It in- and grammatically correct simple sen- volves being able to perceive relation- tences and questions. ships, reason, and make logical (iii) Preschool children (age 3 to attain- choices. People think in different ways. ment of age 6). When you are old enough When you think in pictures, you may to go to preschool or kindergarten, you solve a problem by watching and imi- should begin to learn and use the skills tating what another person does. When that will help you to read and write you think in words, you may solve a and do arithmetic when you are older. problem by using language to talk your For example, listening to stories, way through it. You must also be able rhyming words, and matching letters to use language to think about the world and to understand others and ex- are skills needed for learning to read. press yourself; e.g., to follow direc- Counting, sorting shapes, and building tions, ask for information, or explain with blocks are skills needed to learn something. math. Painting, coloring, copying (2) Age group descriptors—(i) Newborns shapes, and using scissors are some of and young infants (birth to attainment of the skills needed in learning to write. age 1). At this age, you should show in- Using words to ask questions, give an- terest in, and explore, your environ- swers, follow directions, describe ment. At first, your actions are ran- things, explain what you mean, and dom; for example, when you acciden- tell stories allows you to acquire and tally touch the mobile over your crib. share knowledge and experience of the Eventually, your actions should be- world around you. All of these are come deliberate and purposeful, as called ‘‘readiness skills,’’ and you when you shake noisemaking toys like should have them by the time you a bell or rattle. You should begin to begin first grade. recognize, and then anticipate, routine (iv) School-age children (age 6 to at- situations and events, as when you grin tainment of age 12). When you are old with expectation at the sight of your enough to go to elementary and middle stroller. You should also recognize and school, you should be able to learn to gradually attach meaning to everyday read, write, and do math, and discuss sounds, as when you hear the telephone history and science. You will need to or your name. Eventually, you should use these skills in academic situations recognize and respond to familiar to demonstrate what you have learned; words, including family names and e.g., by reading about various subjects what your favorite toys and activities and producing oral and written are called. projects, solving mathematical prob- (ii) Older infants and toddlers (age 1 to lems, taking achievement tests, doing attainment of age 3). At this age, you group work, and entering into class are learning about the world around discussions. You will also need to use you. When you play, you should learn these skills in daily living situations at how objects go together in different home and in the community (e.g., read- ways. You should learn that by pre- ing street signs, telling time, and mak- tending, your actions can represent ing change). You should be able to use

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increasingly complex language (vocab- (iii) You have difficulty recalling im- ulary and grammar) to share informa- portant things you learnedin school tion and ideas with individuals or yesterday. groups, by asking questions and ex- (iv) You have difficulty solving pressing your own ideas, and by under- mathematics questions or computing standing and responding to the opin- arithmetic answers. ions of others. (v) You talk only in short, simple (v) Adolescents (age 12 to attainment of sentences and have difficulty explain- age 18). In middle and high school, you ing what you mean. should continue to demonstrate what (h) Attending and completing tasks. In you have learned in academic assign- this domain, we consider how well you ments (e.g., composition, classroom are able to focus and maintain your at- discussion, and laboratory experi- tention, and how well you begin, carry ments). You should also be able to use through, and finish your activities, in- what you have learned in daily living cluding the pace at which you perform situations without assistance (e.g., activities and the ease with which you going to the store, using the library, change them. and using public transportation). You (1) General. (i) Attention involves reg- should be able to comprehend and ex- ulating your levels of alertness and ini- press both simple and complex ideas, tiating and maintaining concentration. using increasingly complex language It involves the ability to filter out dis- (vocabulary and grammar) in learning tractions and to remain focused on an and daily living situations (e.g., to ob- activity or task at a consistent level of tain and convey information and performance. This means focusing long ideas). You should also learn to apply enough to initiate and complete an ac- these skills in practical ways that will tivity or task, and changing focus once help you enter the workplace after you it is completed. It also means that if finish school (e.g., carrying out in- you lose or change your focus in the structions, preparing a job application, middle of a task, you are able to return or being interviewed by a potential em- to the task without other people hav- ployer). ing to remind you frequently to finish (3) Examples of limited functioning in it. acquiring and using information. The fol- (ii) Adequate attention is needed to lowing examples describe some limita- maintain physical and mental effort tions we may consider in this domain. and concentration on an activity or Your limitations may be different from task. Adequate attention permits you the ones listed here. Also, the examples to think and reflect before starting or do not necessarily describe a ‘‘marked’’ deciding to stop an activity. In other or ‘‘extreme’’ limitation. Whether an words, you are able to look ahead and example applies in your case may de- predict the possible outcomes of your pend on your age and developmental actions before you act. Focusing your stage; e.g., an example below may de- attention allows you to attempt tasks scribe a limitation in an older child, at an appropriate pace. It also helps but not a limitation in a younger one. you determine the time needed to fin- As in any case, your limitations must ish a task within an appropriate time- result from your medically deter- frame. minable impairment(s). However, we (2) Age group descriptors—(i) Newborns will consider all of the relevant infor- and young infants (birth to attainment of mation in your case record when we de- age 1). You should begin at birth to cide whether your medically deter- show sensitivity to your environment minable impairment(s) results in a by responding to various stimuli (e.g., ‘‘marked’’ or ‘‘extreme’’ limitation in light, touch, temperature, movement). this domain. Very soon, you should be able to fix (i) You do not demonstrate under- your gaze on a human face. You should standing of words about space, size, or stop your activity when you hear time; e.g., in/under, big/little, morning/ voices or sounds around you. Next, you night. should begin to attend to and follow (ii) You cannot rhyme words or the various moving objects with your gaze, sounds in words. including people or toys. You should be

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listening to your family’s conversa- sition task (e.g., be ready for the tions for longer and longer periods of school bus, change clothes after gym, time. Eventually, as you are able to change classrooms) without extra remove around and explore your environ- minders and accommodation. ment, you should begin to play with (v) Adolescents (age 12 to attainment of people and toys for longer periods of age 18). In your later years of school, time. You will still want to change ac- you should be able to pay attention to tivities frequently, but your interest in increasingly longer presentations and continuing interaction or a game discussions, maintain your concentra- should gradually expand. tion while reading textbooks, and inde- (ii) Older infants and toddlers (age 1 to pendently plan and complete long- attainment of age 3). At this age, you range academic projects. You should should be able to attend to things that also be able to organize your materials interest you and have adequate atten- and to plan your time in order to com- tion to complete some tasks by your- plete school tasks and assignments. In self. As a toddler, you should dem- anticipation of entering the workplace, onstrate sustained attention, such as you should be able to maintain your when looking at picture books, listen- attention on a task for extended peri- ing to stories, or building with blocks, ods of time, and not be unduly dis- and when helping to put on your tracted by your peers or unduly dis- clothes. tracting to them in a school or work (iii) Preschool children (age 3 to attain- setting. ment of age 6). As a preschooler, you (3) Examples of limited functioning in should be able to pay attention when attending and completing tasks. The fol- you are spoken to directly, sustain at- lowing examples describe some limita- tention to your play and learning actions we may consider in this domain. tivities, and concentrate on activities Your limitations may be different from like putting puzzles together or com- the ones listed here. Also, the examples pleting art projects. You should also be do not necessarily describe a ‘‘marked’’ able to focus long enough to do many or ‘‘extreme’’ limitation. Whether an more things by yourself, such as get- example applies in your case may de- ting your clothes together and dressing pend on your age and developmental yourself, feeding yourself, or putting stage; e.g., an example below may de- away your toys. You should usually be scribe a limitation in an older child, able to wait your turn and to change but not a limitation in a younger one. your activity when a caregiver or As in any case, your limitations must teacher says it is time to do something else. result from your medically determinable impairment(s). However, we (iv) School-age children (age 6 to at- will consider all of the relevant infor- tainment of age 12). When you are of school age, you should be able to focus mation in your case record when we de- your attention in a variety of situa- cide whether your medically deter- tions in order to follow directions, re- minable impairment(s) results in a member and organize your school ma- ‘‘marked’’ or ‘‘extreme’’ limitation in terials, and complete classroom and this domain. homework assignments. You should be (i) You are easily startled, distracted, able to concentrate on details and not or overreactive to sounds, sights, make careless mistakes in your work movements, or touch. (beyond what would be expected in (ii) You are slow to focus on, or fail other children your age who do not to complete activities of interest to have impairments). You should be able you, e.g., games or art projects. to change your activities or routines (iii) You repeatedly become side- without distracting yourself or others, tracked from your activities or you fre- and stay on task and in place when ap- quently interrupt others. propriate. You should be able to sus- (iv) You are easily frustrated and tain your attention well enough to par- give up on tasks, including ones you ticipate in group sports, read by your- are capable of completing. self, and complete family chores. You (v) You require extra supervision to should also be able to complete a tran- keep you engaged in an activity.

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(i) Interacting and relating with others. your caregiver(s), through mutual gaze In this domain, we consider how well and vocal exchanges, and by physically you initiate and sustain emotional con- molding your body to the caregiver’s nections with others, develop and use while being held. You should eventu- the language of your community, co- ally initiate give-and-take games (such operate with others, comply with rules, as pat-a-cake, peek-a-boo) with your respond to criticism, and respect and caregivers, and begin to affect others take care of the possessions of others. through your own purposeful behavior (1) General. (i) Interacting means ini- (e.g., gestures and vocalizations). You tiating and responding to exchanges should be able to respond to a variety with other people, for practical or so- of emotions (e.g., facial expressions cial purposes. You interact with others and vocal tone changes). You should by using facial expressions, gestures, begin to develop speech by using vowel actions, or words. You may interact sounds and later consonants, first with another person only once, as when alone, and then in babbling. asking a stranger for directions, or (ii) Older infants and toddlers (age 1 to many times, as when describing your attainment of age 3). At this age, you day at school to your parents. You may are dependent upon your caregivers, interact with people one-at-a-time, as but should begin to separate from when you are listening to another stu- them. You should be able to express dent in the hallway at school, or in emotions and respond to the feelings of groups, as when you are playing with others. You should begin initiating and others. maintaining interactions with adults, (ii) Relating to other people means but also show interest in, then play forming intimate relationships with alongside, and eventually interact with family members and with friends who other children your age. You should be are your age, and sustaining them over able to spontaneously communicate time. You may relate to individuals, your wishes or needs, first by using such as your siblings, parents or best gestures, and eventually by speaking friend, or to groups, such as other chil- words clearly enough that people who dren in childcare, your friends in know you can understand what you say school, teammates in sports activities, most of the time. or people in your neighborhood. (iii) Preschool children (age 3 to attain- (iii) Interacting and relating require ment of age 6). At this age, you should you to respond appropriately to a vari- be able to socialize with children as ety of emotional and behavioral cues. well as adults. You should begin to pre- You must be able to speak intelligibly fer playmates your own age and start and fluently so that others can under- to develop friendships with children stand you; participate in verbal who are your age. You should be able turntaking and nonverbal exchanges; to use words instead of actions to ex- consider others’ feelings and points of press yourself, and also be better able view; follow social rules for interaction to share, show affection, and offer to and conversation; and respond to oth- help. You should be able to relate to ers appropriately and meaningfully. caregivers with increasing independ- (iv) Your activities at home or school ence, choose your own friends, and play or in your community may involve cooperatively with other children, one- playing, learning, and working coop- at-a-time or in a group, without con- eratively with other children, one-at-a- tinual adult supervision. You should be time or in groups; joining voluntarily able to initiate and participate in con- in activities with the other children in versations, using increasingly complex your school or community; and re- vocabulary and grammar, and speaking sponding to persons in authority (e.g., clearly enough that both familiar and your parent, teacher, bus driver, coach, unfamiliar listeners can understand or employer). what you say most of the time. (2) Age group descriptors—(i) Newborns (iv) School-age children (age 6 to at- and young infants (birth to attainment of tainment of age 12). When you enter age 1). You should begin to form inti- school, you should be able to develop mate relationships at birth by gradu- more lasting friendships with children ally responding visually and vocally to who are your age. You should begin to

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understand how to work in groups to (ii) You have no close friends, or your create projects and solve problems. friends are all older or younger than You should have an increasing ability you. to understand another’s point of view (iii) You avoid or withdraw from peo- and to tolerate differences. You should ple you know, or you are overly anx- be well able to talk to people of all ious or fearful of meeting new people or ages, to share ideas, tell stories, and to trying new experiences. speak in a manner that both familiar (iv) You have difficulty playing and unfamiliar listeners readily under- games or sports with rules. stand. (v) You have difficulty commu- (v) Adolescents (age 12 to attainment of nicating with others; e.g., in using age 18). By the time you reach adoles- verbal and nonverbal skills to express cence, you should be able to initiate yourself, carrying on a conversation, or and develop friendships with children in asking others for assistance. who are your age and to relate appro- (vi) You have difficulty speaking in- priately to other children and adults, telligibly or with adequate fluency. both individually and in groups. You (j) Moving about and manipulating ob- should begin to be able to solve con- jects. In this domain, we consider how flicts between yourself and peers or you move your body from one place to family members or adults outside your another and how you move and manip- family. You should recognize that ulate things. These are called gross and there are different social rules for you fine motor skills. and your friends and for acquaintances (1) General. (i) Moving your body in- or adults. You should be able to intel- volves several different kinds of ac- ligibly express your feelings, ask for tions: Rolling your body; rising or pull- assistance in getting your needs met, ing yourself from a sitting to a stand- seek information, describe events, and ing position; pushing yourself up; rais- tell stories, in all kinds of environ- ing your head, arms, and legs, and ments (e.g., home, classroom, sports, twisting your hands and feet; balancing extra-curricular activities, or part- your weight on your legs and feet; time job), and with all types of people shifting your weight while sitting or (e.g., parents, siblings, friends, class- standing; transferring yourself from mates, teachers, employers, and one surface to another; lowering your- strangers). self to or toward the floor as when (3) Examples of limited functioning in bending, kneeling, stooping, or crouch- interacting and relating with others. The ing; moving yourself forward and back- following examples describe some limi- ward in space as when crawling, walk- tations we may consider in this doing, or running, and negotiating dif- main. Your limitations may be different terrains (e.g., curbs, steps, and ferent from the ones listed here. Also, hills). the examples do not necessarily de- (ii) Moving and manipulating things scribe a ‘‘marked’’ or ‘‘extreme’’ limi- involves several different kinds of ac- tation. Whether an example applies in tions: Engaging your upper and lower your case may depend on your age and body to push, pull, lift, or carry objects developmental stage; e.g., an example from one place to another; controlling below may describe a limitation in an your shoulders, arms, and hands to older child, but not a limitation in a hold or transfer objects; coordinating younger one. As in any case, your limi- your eyes and hands to manipulate tations must result from your medi- small objects or parts of objects. cally determinable impairment(s). (iii) These actions require varying However, we will consider all of the rel- degrees of strength, coordination, dex- evant information in your case record terity, pace, and physical ability to when we decide whether your medi- persist at the task. They also require a cally determinable impairment(s) re- sense of where your body is and how it sults in a ‘‘marked’’ or ‘‘extreme’’ limi- moves in space; the integration of sen- tation in this domain. sory input with motor output; and the (i) You do not reach out to be picked capacity to plan, remember, and exe- up and held by your caregiver. cute controlled motor movements.

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(2) Age group descriptors—(i) Newborns oping fine motor skills should enable and infants (birth to attainment of age 1). you to do things like use many kitchen At birth, you should begin to explore and household tools independently, use your world by moving your body and scissors, and write. by using your limbs. You should learn (v) Adolescents (age 12 to attainment of to hold your head up, sit, crawl, and age 18). As an adolescent, you should be stand, and sometimes hold onto a sta- able to use your motor skills freely and ble object and stand actively for brief easily to get about your school, the periods. You should begin to practice neighborhood, and the community. You your developing eye-hand control by should be able to participate in a full reaching for objects or picking up range of individual and group physical small objects and dropping them into fitness activities. You should show ma- containers. ture skills in activities requiring eye- (ii) Older infants and toddlers (age 1 to hand coordination, and should have the attainment of age 3). At this age, you fine motor skills needed to write effi- should begin to explore actively a wide ciently or type on a keyboard. area of your physical environment, (3) Examples of limited functioning in using your body with steadily increas- moving about and manipulating objects. ing control and independence from oth- The following examples describe some ers. You should begin to walk and run limitations we may consider in this do- without assistance, and climb with in- main. Your limitations may be dif- creasing skill. You should frequently ferent from the ones listed here. Also, try to manipulate small objects and to the examples do not necessarily de- use your hands to do or get something scribe a ‘‘marked’’ or ‘‘extreme’’ limi- that you want or need. Your improved tation. Whether an example applies in motor skills should enable you to play your case may depend on your age and with small blocks, scribble with cray- developmental stage; e.g., an example ons, and feed yourself. below may describe a limitation in an (iii) Preschool children (age 3 to attain- older child, but not a limitation in a ment of age 6). As a preschooler, you younger one. As in any case, your limi- should be able to walk and run with tations must result from your medi- ease. Your gross motor skills should let cally determinable impairment(s). you climb stairs and playground equip- However, we will consider all of the rel- ment with little supervision, and let evant information in your case record you play more independently; e.g., you when we decide whether your medi- should be able to swing by yourself and cally determinable impairment(s) re- may start learning to ride a tricycle. sults in a ‘‘marked’’ or ‘‘extreme’’ limi- Your fine motor skills should also be tation in this domain. developing. You should be able to com- (i) You experience muscle weakness, plete puzzles easily, string beads, and joint stiffness, or sensory loss (e.g., build with an assortment of blocks. spasticity, hypotonia, neuropathy, or You should be showing increasing con- paresthesia) that interferes with your trol of crayons, markers, and small motor activities (e.g., you unintention- pieces in board games, and should be ally drop things). able to cut with scissors independently (ii) You have trouble climbing up and and manipulate buttons and other fas- down stairs, or have jerky or disorga- teners. nized locomotion or difficulty with (iv) School-age children (age 6 to at- your balance. tainment of age 12). As a school-age (iii) You have difficulty coordinating child, your developing gross motor gross motor movements (e.g., bending, skills should let you move at an effi- kneeling, crawling, running, jumping cient pace about your school, home, rope, or riding a bike). and neighborhood. Your increasing (iv) You have difficulty with sequenc- strength and coordination should ex- ing hand or finger movements. pand your ability to enjoy a variety of (v) You have difficulty with fine physical activities, such as running motor movement (e.g., gripping or and jumping, and throwing, kicking, grasping objects). catching and hitting balls in informal (vi) You have poor eye-hand coordi- play or organized sports. Your devel- nation when using a pencil or scissors.

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(k) Caring for yourself. In this domain, danger yourself, and knowing when to we consider how well you maintain a ask for help from others. healthy emotional and physical state, (2) Age group descriptors—(i) Newborns including how well you get your phys- and infants (birth to attainment of age 1. ical and emotional wants and needs Your sense of independence and com- met in appropriate ways; how you cope petence begins in being able to recog- with stress and changes in your envi- nize your body’s signals (e.g., hunger, ronment; and whether you take care of pain, discomfort), to alert your care- your own health, possessions, and liv- giver to your needs (e.g., by crying), ing area. and to console yourself (e.g., by suck- (1) General. (i) Caring for yourself ef- ing on your hand) until help comes. As fectively, which includes regulating you mature, your capacity for self-con- yourself, depends upon your ability to solation should expand to include respond to changes in your emotions rhythmic behaviors (e.g., rocking). and the daily demands of your environ- Your need for a sense of competence ment to help yourself and cooperate also emerges in things you try to do for with others in taking care of your per- yourself, perhaps before you are ready sonal needs, health and safety. It is to do them, as when insisting on put- characterized by a sense of independ- ting food in your mouth and refusing ence and competence. The effort to be- your caregiver’s help. come independent and competent (ii) Older infants and toddlers (age 1 to should be observable throughout your attainment of age 3). As you grow, you childhood. should be trying to do more things for (ii) Caring for yourself effectively yourself that increase your sense of means becoming increasingly inde- independence and competence in your pendent in making and following your environment. You might console your- own decisions. This entails relying on self by carrying a favorite blanket with your own abilities and skills, and dis- you everywhere. You should be learn- playing consistent judgment about the ing to cooperate with your caregivers consequences of caring for yourself. As when they take care of your physical you mature, using and testing your own judgment helps you develop con- needs, but you should also want to fidence in your independence and com- show what you can do; e.g., pointing to petence. Caring for yourself includes the bathroom, pulling off your coat. using your independence and com- You should be experimenting with your petence to meet your physical needs, independence by showing some degree such as feeding, dressing, toileting, and of contrariness (e.g., ‘‘No! No!’’) and bathing, appropriately for your age. identity (e.g., hoarding your toys). (iii) Caring for yourself effectively (iii) Preschool children (age 3 to attain- requires you to have a basic under- ment of age 6). You should want to take standing of your body, including its care of many of your physical needs by normal functioning, and of your phys- yourself (e.g., putting on your shoes, ical and emotional needs. To meet getting a snack), and also want to try these needs successfully, you must em- doing some things that you cannot do ploy effective coping strategies, appro- fully (e.g., tying your shoes, climbing priate to your age, to identify and reg- on a chair to reach something up high, ulate your feelings, thoughts, urges, taking a bath). Early in this age range, and intentions. Such strategies are it may be easy for you to agree to do based on taking responsibility for get- what your caregiver asks. Later, that ting your needs met in an appropriate may be difficult for you because you and satisfactory manner. want to do things your way or not at (iv) Caring for yourself means recog- all. These changes usually mean that nizing when you are ill, following rec- you are more confident about your ommended treatment, taking medica- ideas and what you are able to do. You tion as prescribed, following safety should also begin to understand how to rules, responding to your cir- control behaviors that are not good for cumstances in safe and appropriate you (e.g., crossing the street without ways, making decisions that do not en- an adult).

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(iv) School-age children (age 6 to at- of the relevant information in your tainment of age 12). You should be inde- case record when we decide whether pendent in most day-to-day activities your medically determinable impair- (e.g., dressing yourself, bathing your- ment(s) results in a ‘‘marked’’ or ‘‘ex- self), although you may still need to be treme’’ limitation in this domain. reminded sometimes to do these rou- (i) You continue to place non-nutri- tinely. You should begin to recognize tive or inedible objects in your mouth. that you are competent in doing some (ii) You often use self-soothing ac- activities and that you have difficulty tivities showing developmental regres- with others. You should be able to sion (e.g., thumbsucking, re-chewing identify those circumstances when you food), or you have restrictive or stereo- feel good about yourself and when you typed mannerisms (e.g., body rocking, feel bad. You should begin to develop headbanging). understanding of what is right and (iii) You do not dress or bathe your- wrong, and what is acceptable and un- self appropriately for your age because acceptable behavior. You should begin you have an impairment(s) that affects to demonstrate consistent control over this domain. your behavior, and you should be able (iv) You engage in self-injurious be- to avoid behaviors that are unsafe or havior (e.g., suicidal thoughts or ac- otherwise not good for you. You should tions, self-inflicted injury, or refusal to begin to imitate more of the behavior take your medication), or you ignore of adults you know. safety rules. (v) Adolescents (age 12 to attainment of (v) You do not spontaneously pursue age 18). You should feel more inde- enjoyable activities or interests. pendent from others and should be in- (vi) You have disturbance in eating creasingly independent in all of your or sleeping patterns. day-to-day activities. You may some- (l) Health and physical well-being. In times experience confusion in the way this domain, we consider the cumu- you feel about yourself. You should lative physical effects of physical or begin to notice significant changes in mental impairments and their associ- your body’s development, and this can ated treatments or therapies on your result in anxiety or worrying about functioning that we did not consider in yourself and your body. Sometimes paragraph (j) of this section. When these worries can make you feel angry your physical impairment(s), your or frustrated. You should begin to dis- mental impairment(s), or your com- cover appropriate ways to express your bination of physical and mental im- feelings, both good and bad (e.g., keep- pairments has physical effects that ing a diary to sort out angry feelings cause ‘‘extreme’’ limitation in your or listening to music to calm yourself functioning, you will generally have an down). You should begin to think seri- impairment(s) that ‘‘meets’’ or ‘‘medi- ously about your future plans, and cally equals’’ a listing. what you will do when you finish (1) A physical or mental disorder may school. have physical effects that vary in kind (3) Examples of limited functioning in and intensity, and may make it dif- caring for yourself. The following exam- ficult for you to perform your activi- ples describe some limitations we may ties independently or effectively. You consider in this domain. Your limita- may experience problems such as gen- tions may be different from the ones eralized weakness, dizziness, shortness listed here. Also, the examples do not of breath, reduced stamina, fatigue, necessarily describe a ‘‘marked’’ or psychomotor retardation, allergic reac- ‘‘extreme’’ limitation. Whether an ex- tions, recurrent infection, poor growth, ample applies in your case may depend bladder or bowel incontinence, or local on your age and developmental stage; or generalized pain. e.g., an example below may describe a (2) In addition, the medications you limitation in an older child, but not a take (e.g., for asthma or depression) or limitation in a younger one. As in any the treatments you receive (e.g., chem- case, your limitations must result from otherapy or multiple surgeries) may your medically determinable impair- have physical effects that also limit ment(s). However, we will consider all your performance of activities.

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(3) Your illness may be chronic with (v) You are medically fragile and stable symptoms, or episodic with peri- need intensive medical care to main- ods of worsening and improvement. We tain your level of health and physical will consider how you function during well-being. periods of worsening and how often and (m) Examples of impairments that func- for how long these periods occur. You tionally equal the listings. The following may be medically fragile and need in- are some examples of impairments and tensive medical care to maintain your limitations that functionally equal the level of health and physical well-being. listings. Findings of equivalence based In any case, as a result of the illness on the disabling functional limitations itself, the medications or treatment of a child’s impairment(s) are not lim- you receive, or both, you may experi- ited to the examples in this paragraph, ence physical effects that interfere because these examples do not describe with your functioning in any or all of all possible effects of impairments that your activities. might be found to functionally equal (4) Examples of limitations in health the listings. As with any disabling im- and physical well-being. The following pairment, the duration requirement examples describe some limitations we must also be met (see §§ 416.909 and may consider in this domain. Your lim- 416.924(a)). itations may be different from the ones (1) Any condition that is disabling at listed here. Also, the examples do not the time of onset, requiring continuing necessarily describe a ‘‘marked’’ or surgical management within 12 months ‘‘extreme’’ limitation. Whether an ex- after onset as a life-saving measure or ample applies in your case may depend for salvage or restoration of function, on your age and developmental stage; and such major function is not restored e.g., an example below may describe a or is not expected to be restored within limitation in an older child, but not a 12 months after onset of this condition. limitation in a younger one. As in any (2) Effective ambulation possible case, your limitations must result from only with obligatory bilateral upper your medically determinable impair- limb assistance. ment(s). However, we will consider all (3) Any physical impairment(s) or of the relevant information in your combination of physical and mental case record when we decide whether impairments causing complete inabil- your medically determinable impair- ity to function independently outside the area of one’s home within age-ap- ment(s) results in a ‘‘marked’’ or ‘‘ex- propriate norms. treme’’ limitation in this domain. (4) Requirement for 24-hour-a-day su- (i) You have generalized symptoms, pervision for medical (including psy- such as weakness, dizziness, agitation chological) reasons. (e.g., excitability), lethargy (e.g., fa- (5) Major congenital organ dysfunc- tigue or loss of energy or stamina), or tion which could be expected to result psychomotor retardation because of in death within the first year of life your impairment(s). without surgical correction, and the (ii) You have somatic complaints re- impairment is expected to be disabling lated to your impairments (e.g., seizure (because of residual impairment fol- or convulsive activity, headaches, in- lowing surgery, or the recovery time continence, recurrent infections, aller- required, or both) until attainment of 1 gies, changes in weight or eating hab- year of age. its, stomach discomfort, nausea, head- (n) Responsibility for determining func- aches, or insomnia). tional equivalence. In cases where the (iii) You have limitations in your State agency or other designee of the physical functioning because of your Commissioner makes the initial or re- treatment (e.g., chemotherapy, mul- consideration disability determination, tiple surgeries, chelation, pulmonary a State agency medical or psycho- cleansing, or nebulizer treatments). logical consultant or other designee of (iv) You have exacerbations from one the Commissioner (see § 416.1016 of this impairment or a combination of im- part) has the overall responsibility for pairments that interfere with your determining functional equivalence. physical functioning. For cases in the disability hearing

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process or otherwise decided by a dis- treating source if the nature and fre- ability hearing officer, the responsi- quency of the treatment or evaluation bility for determining functional is typical for your condition(s). We will equivalence rests with either the dis- not consider an acceptable medical ability hearing officer or, if the dis- source to be your treating source if ability hearing officer’s reconsider- your relationship with the source is ation determination is changed under not based on your medical need for § 416.1418 of this part, with the Asso- treatment or evaluation, but solely on ciate Commissioner for Disability Pro- your need to obtain a report in support grams or his or her delegate. For cases of your claim for disability. In such a at the administrative law judge or Ap- case, we will consider the acceptable peals Council level, the responsibility medical source to be a nontreating for deciding functional equivalence source. rests with the administrative law judge (b) How we consider medical opinions. or Appeals Council. In determining whether you are dis- [62 FR 6424, Feb. 11, 1997; 62 FR 13538, 13733, abled, we will always consider the med- Mar. 21, 1997, as amended at 65 FR 54782, ical opinions in your case record to- Sept. 11, 2000; 65 FR 80308, Dec. 21, 2000; 66 FR gether with the rest of the relevant 58045, Nov. 19, 2001; 71 FR 16460, Mar. 31, 2006; evidence we receive. See § 416.920b. 72 FR 59431, Oct. 19, 2007; 76 FR 24811, May 3, (c) How we weigh medical opinions. Re- 2011; 80 FR 19530, Apr. 13, 2015; 81 FR 37153, gardless of its source, we will evaluate June 9, 2016; 82 FR 5880, Jan. 18, 2017] every medical opinion we receive. Un- § 416.927 Evaluating opinion evidence less we give a treating source’s medical for claims filed before March 27, opinion controlling weight under para- 2017. graph (c)(2) of this section, we consider For claims filed (see § 416.325) before all of the following factors in deciding March 27, 2017, the rules in this section the weight we give to any medical apply. For claims filed on or after opinion. March 27, 2017, the rules in § 416.920c (1) Examining relationship. Generally, apply. we give more weight to the medical (a) Definitions. opinion of a source who has examined (1) Medical opinions. Medical opinions you than to the medical opinion of a are statements from acceptable med- medical source who has not examined ical sources that reflect judgments you. about the nature and severity of your (2) Treatment relationship. Generally, impairment(s), including your symp- we give more weight to medical opin- toms, diagnosis and prognosis, what ions from your treating sources, since you can still do despite impairment(s), these sources are likely to be the med- and your physical or mental restric- ical professionals most able to provide tions. a detailed, longitudinal picture of your (2) Treating source. Treating source medical impairment(s) and may bring a means your own acceptable medical unique perspective to the medical evi- source who provides you, or has pro- dence that cannot be obtained from the vided you, with medical treatment or objective medical findings alone or evaluation and who has, or has had, an from reports of individual examina- ongoing treatment relationship with tions, such as consultative examina- you. Generally, we will consider that tions or brief hospitalizations. If we you have an ongoing treatment rela- find that a treating source’s medical tionship with an acceptable medical opinion on the issue(s) of the nature source when the medical evidence es- and severity of your impairment(s) is tablishes that you see, or have seen, well-supported by medically acceptable the source with a frequency consistent clinical and laboratory diagnostic with accepted medical practice for the techniques and is not inconsistent with type of treatment and/or evaluation re- the other substantial evidence in your quired for your medical condition(s). case record, we will give it controlling We may consider an acceptable medical weight. When we do not give the treat- source who has treated or evaluated ing source’s medical opinion control- you only a few times or only after long ling weight, we apply the factors listed intervals (e.g., twice a year) to be your in paragraphs (c)(2)(i) and (c)(2)(ii) of

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this section, as well as the factors in nations for their medical opinions. We paragraphs (c)(3) through (c)(6) of this will evaluate the degree to which these section in determining the weight to medical opinions consider all of the give the medical opinion. We will al- pertinent evidence in your claim, in- ways give good reasons in our notice of cluding medical opinions of treating determination or decision for the and other examining sources. weight we give your treating source’s (4) Consistency. Generally, the more medical opinion. consistent a medical opinion is with (i) Length of the treatment relationship the record as a whole, the more weight and the frequency of examination. Gen- we will give to that medical opinion. erally, the longer a treating source has (5) Specialization. We generally give treated you and the more times you more weight to the medical opinion of have been seen by a treating source, a specialist about medical issues re- the more weight we will give to the lated to his or her area of specialty source’s medical opinion. When the than to the medical opinion of a source treating source has seen you a number who is not a specialist. of times and long enough to have ob- (6) Other factors. When we consider tained a longitudinal picture of your how much weight to give to a medical impairment, we will give the medical opinion, we will also consider any fac- source’s medical opinion more weight tors you or others bring to our atten- than we would give it if it were from a tion, or of which we are aware, which nontreating source. tend to support or contradict the med- (ii) Nature and extent of the treatment ical opinion. For example, the amount relationship. Generally, the more of understanding of our disability pro- knowledge a treating source has about grams and their evidentiary require- your impairment(s) the more weight ments that a medical source has, re- we will give to the source’s medical gardless of the source of that under- opinion. We will look at the treatment standing, and the extent to which a the source has provided and at the medical source is familiar with the kinds and extent of examinations and other information in your case record testing the source has performed or or- are relevant factors that we will con- dered from specialists and independent sider in deciding the weight to give to laboratories. For example, if your oph- a medical opinion. thalmologist notices that you have (d) Medical source opinions on issues complained of neck pain during your reserved to the Commissioner. Opinions eye examinations, we will consider his on some issues, such as the examples or her medical opinion with respect to that follow, are not medical opinions, your neck pain, but we will give it less as described in paragraph (a)(1) of this weight than that of another physician section, but are, instead, opinions on who has treated you for the neck pain. issues reserved to the Commissioner When the treating source has reason- because they are administrative find- able knowledge of your impairment(s), ings that are dispositive of a case; i.e., we will give the source’s medical opin- that would direct the determination or ion more weight than we would give it decision of disability. if it were from a nontreating source. (1) Opinions that you are disabled. We (3) Supportability. The more a medical are responsible for making the deter- source presents relevant evidence to mination or decision about whether support a medical opinion, particularly you meet the statutory definition of medical signs and laboratory findings, disability. In so doing, we review all of the more weight we will give that med- the medical findings and other evi- ical opinion. The better an explanation dence that support a medical source’s a source provides for a medical opin- statement that you are disabled. A ion, the more weight we will give that statement by a medical source that medical opinion. Furthermore, because you are ‘‘disabled’’ or ‘‘unable to nonexamining sources have no exam- work’’ does not mean that we will de- ining or treating relationship with you, termine that you are disabled. the weight we will give their medical (2) Other opinions on issues reserved to opinions will depend on the degree to the Commissioner. We use medical which they provide supporting expla- sources, including your treating

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source, to provide evidence, including propriate to give more weight to the opinions, on the nature and severity of opinion of a medical source who is not your impairment(s). Although we con- an acceptable medical source if he or sider opinions from medical sources on she has seen the individual more often issues such as whether your impair- than the treating source, has provided ment(s) meets or equals the require- better supporting evidence and a better ments of any impairment(s) in the explanation for the opinion, and the Listing of Impairments in appendix 1 opinion is more consistent with the to subpart P of part 404 of this chapter, evidence as a whole. your residual functional capacity (see (2) Articulation. The adjudicator gen- §§ 416.945 and 416.946), or the application erally should explain the weight given of vocational factors, the final respon- to opinions from these sources or oth- sibility for deciding these issues is re- erwise ensure that the discussion of the served to the Commissioner. evidence in the determination or deci- (3) We will not give any special sig- sion allows a claimant or subsequent nificance to the source of an opinion on reviewer to follow the adjudicator’s issues reserved to the Commissioner reasoning, when such opinions may described in paragraphs (d)(1) and (d)(2) have an effect on the outcome of the of this section. case. In addition, when an adjudicator (e) Evidence from our Federal or State determines that an opinion from such a agency medical or psychological consult- source is entitled to greater weight ants. The rules in § 416.913a apply ex- than a medical opinion from a treating cept that when an administrative law source, the adjudicator must explain judge gives controlling weight to a the reasons in the notice of decision in treating source’s medical opinion, the hearing cases and in the notice of de- administrative law judge is not re- termination (that is, in the personal- quired to explain in the decision the ized disability notice) at the initial and weight he or she gave to the prior ad- reconsideration levels, if the deter- ministrative medical findings in the mination is less than fully favorable. claim. [82 FR 5880, Jan. 18, 2017; 82 FR 15133, Mar. 27, (f) Opinions from medical sources who 2017] are not acceptable medical sources and from nonmedical sources. § 416.928 [Reserved] (1) Consideration. Opinions from medical sources who are not acceptable § 416.929 How we evaluate symptoms, medical sources and from nonmedical including pain. sources may reflect the source’s judg- (a) General. In determining whether ment about some of the same issues ad- you are disabled, we consider all your dressed in medical opinions from ac- symptoms, including pain, and the ex- ceptable medical sources. Although we tent to which your symptoms can rea- will consider these opinions using the sonably be accepted as consistent with same factors as listed in paragraph the objective medical evidence and (c)(1) through (c)(6) in this section, not other evidence. We will consider all of every factor for weighing opinion evi- your statements about your symptoms, dence will apply in every case because such as pain, and any description your the evaluation of an opinion from a medical sources or nonmedical sources medical source who is not an accept- may provide about how the symptoms able medical source or from a nonmed- affect your activities of daily living ical source depends on the particular and your ability to work (or, if you are facts in each case. Depending on the a child, your functioning). However, particular facts in a case, and after ap- statements about your pain or other plying the factors for weighing opinion symptoms will not alone establish that evidence, an opinion from a medical you are disabled. There must be objec- source who is not an acceptable med- tive medical evidence from an accept- ical source or from a nonmedical able medical source that shows you source may outweigh the medical opin- have a medical impairment(s) which ion of an acceptable medical source, in- could reasonably be expected to cluding the medical opinion of a treat- produce the pain or other symptoms al- ing source. For example, it may be ap- leged and that, when considered with

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all of the other evidence (including ability hearing officer in determining statements about the intensity and whether your impairment(s) could rea- persistence of your pain or other symp- sonably be expected to produce your al- toms which may reasonably be accept- leged symptoms. At the administrative ed as consistent with the medical signs law judge hearing or Appeals Council and laboratory findings), would lead to level of the administrative review proc- a conclusion that you are disabled. In ess, the adjudicator(s) may ask for and evaluating the intensity and persist- consider the opinion of a medical or ence of your symptoms, including pain, psychological expert concerning we will consider all of the available whether your impairment(s) could rea- evidence, including your medical his- sonably be expected to produce your al- tory, the medical signs and laboratory leged symptoms. The finding that your findings, and statements about how impairment(s) could reasonably be ex- your symptoms affect you. We will pected to produce your pain or other then determine the extent to which symptoms does not involve a deter- your alleged functional limitations and restrictions due to pain or other symp- mination as to the intensity, persist- toms can reasonably be accepted as ence, or functionally limiting effects of consistent with the medical signs and your symptoms. We will develop evi- laboratory findings and other evidence dence regarding the possibility of a to decide how your symptoms affect medically determinable mental impair- your ability to work (or if you are a ment when we have information to sug- child, your functioning). gest that such an impairment exists, (b) Need for medically determinable im- and you allege pain or other symptoms pairment that could reasonably be ex- but the medical signs and laboratory pected to produce your symptoms, such as findings do not substantiate any phys- pain. Your symptoms, such as pain, fa- ical impairment(s) capable of pro- tigue, shortness of breath, weakness, or ducing the pain or other symptoms. nervousness, will not be found to affect (c) Evaluating the intensity and persist- your ability to do basic work activities ence of your symptoms, such as pain, and unless medical signs or laboratory find- determining the extent to which your ings show that a medically deter- symptoms limit your capacity for work or, minable impairment(s) is present. Med- if you are a child, your functioning—(1) ical signs and laboratory findings, es- General. When the medical signs or lab- tablished by medically acceptable clin- oratory findings show that you have a ical or laboratory diagnostic tech- medically determinable impairment(s) niques, must show the existence of a that could reasonably be expected to medical impairment(s) which results produce your symptoms, such as pain, from anatomical, physiological, or psy- we must then evaluate the intensity chological abnormalities and which and persistence of your symptoms so could reasonably be expected to that we can determine how your symp- produce the pain or other symptoms al- toms limit your capacity for work or, leged. In cases decided by a State agen- if you are a child, your functioning. In cy (except in disability hearings under evaluating the intensity and persist- §§ 416.1414 through 416.1418 of this part and in fully favorable determinations ence of your symptoms, we consider all made by State agency disability exam- of the available evidence from your iners alone under § 416.1015(c)(3) of this medical sources and nonmedical part), a State agency medical or psy- sources about how your symptoms af- chological consultant or other medical fect you. We also consider the medical or psychological consultant designated opinions as explained in § 416.920c. by the Commissioner directly partici- Paragraphs (c)(2) through (c)(4) of this pates in determining whether your section explain further how we evalu- medically determinable impairment(s) ate the intensity and persistence of could reasonably be expected to your symptoms and how we determine produce your alleged symptoms. In the the extent to which your symptoms disability hearing process, a medical or limit your capacity for work (or, if you psychological consultant may provide are a child, your functioning) when the an advisory assessment to assist a dis- medical signs or laboratory findings

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show that you have a medically deter- into account as explained in paragraph minable impairment(s) that could rea- (c)(4) of this section in reaching a con- sonably be expected to produce your clusion as to whether you are disabled. symptoms, such as pain. We will consider all of the evidence (2) Consideration of objective medical presented, including information about evidence. Objective medical evidence is your prior work record, your state- evidence obtained from the application ments about your symptoms, evidence of medically acceptable clinical and submitted by your medical sources, laboratory diagnostic techniques, such and observations by our employees and as evidence of reduced joint motion, other persons. If you are a child, we muscle spasm, sensory deficit or motor will also consider all of the evidence disruption. Objective medical evidence presented, including evidence sub- of this type is a useful indicator to as- mitted by your medical sources (such sist us in making reasonable conclu- as physicians, psychologists, and thera- sions about the intensity and persist- pists) and nonmedical sources (such as ence of your symptoms and the effect educational agencies and personnel, those symptoms, such as pain, may parents and other relatives, and social have on your ability to work or, if you welfare agencies). Section 416.920c ex- are a child, your functioning. We must plains in detail how we consider med- always attempt to obtain objective ical opinions and prior administrative medical evidence and, when it is ob- medical findings about the nature and tained, we will consider it in reaching severity of your impairment(s) and any a conclusion as to whether you are dis- related symptoms, such as pain. Fac- abled. However, we will not reject your tors relevant to your symptoms, such statements about the intensity and as pain, which we will consider include: persistence of your pain or other symp- (i) Your daily activities; toms or about the effect your symp- (ii) The location, duration, fre- toms have on your ability to work (or quency, and intensity of your pain or if you are a child, to function independ- other symptoms; ently, appropriately, and effectively in an age-appropriate manner) solely be- (iii) Precipitating and aggravating cause the available objective medical factors; evidence does not substantiate your (iv) The type, dosage, effectiveness, statements. and side effects of any medication you (3) Consideration of other evidence. Be- take or have taken to alleviate your cause symptoms sometimes suggest a pain or other symptoms; greater severity of impairment than (v) Treatment, other than medica- can be shown by objective medical evi- tion, you receive or have received for dence alone, we will carefully consider relief of your pain or other symptoms; any other information you may submit (vi) Any measures you use or have about your symptoms. The information used to relieve your pain or other that your medical sources or nonmed- symptoms (e.g., lying flat on your ical sources provide about your pain or back, standing for 15 to 20 minutes other symptoms (e.g., what may pre- every hour, sleeping on a board, etc.); cipitate or aggravate your symptoms, and what medications, treatments or other (vii) Other factors concerning your methods you use to alleviate them, and functional limitations and restrictions how the symptoms may affect your due to pain or other symptoms. pattern of daily living) is also an im- (4) How we determine the extent to portant indicator of the intensity and which symptoms, such as pain, affect persistence of your symptoms. Because your capacity to perform basic work ac- symptoms, such as pain, are subjective tivities, or, if you are a child, your func- and difficult to quantify, any symp- tioning). In determining the extent to tom-related functional limitations and which your symptoms, such as pain, af- restrictions that your medical sources fect your capacity to perform basic or nonmedical sources report, which work activities (or if you are a child, can reasonably be accepted as con- your functioning), we consider all of sistent with the objective medical evi- the available evidence described in dence and other evidence, will be taken paragraphs (c)(1) through (c)(3) of this

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section. We will consider your state- teria. Generally, when a symptom is ments about the intensity, persistence, one of the criteria in a listing, it is and limiting effects of your symptoms, only necessary that the symptom be and we will evaluate your statements present in combination with the other in relation to the objective medical criteria. It is not necessary, unless the evidence and other evidence, in reach- listing specifically states otherwise, to ing a conclusion as to whether you are provide information about the inten- disabled. We will consider whether sity, persistence, or limiting effects of there are any inconsistencies in the the symptom as long as all other find- evidence and the extent to which there ings required by the specific listing are are any conflicts between your state- present. ments and the rest of the evidence, in- (3) Decision whether the Listing of Im- cluding your history, the signs and lab- pairments is equaled. If your impairment oratory findings, and statements by is not the same as a listed impairment, your medical sources or other persons we must determine whether your im- about how your symptoms affect you. pairment(s) is medically equivalent to Your symptoms, including pain, will be a listed impairment. Section 416.926 ex- determined to diminish your capacity plains how we make this determina- for basic work activities (or, if you are tion. Under § 416.926(b), we will consider a child, your functioning) to the extent medical equivalence based on all evi- that your alleged functional limita- dence in your case record about your tions and restrictions due to symp- impairment(s) and its effects on you toms, such as pain, can reasonably be that is relevant to this finding. In con- accepted as consistent with the objective medical evidence and other evi- sidering whether your symptoms, dence. signs, and laboratory findings are (d) Consideration of symptoms in the medically equal to the symptoms, disability determination process. We fol- signs, and laboratory findings of a list- low a set order of steps to determine ed impairment, we will look to see whether you are disabled. If you are whether your symptoms, signs, and not doing substantial gainful activity, laboratory findings are at least equal we consider your symptoms, such as in severity to the listed criteria. How- pain, to evaluate whether you have a ever, we will not substitute your alle- severe physical or mental impair- gations of pain or other symptoms for ment(s), and at each of the remaining a missing or deficient sign or labora- steps in the process. Sections 416.920 tory finding to raise the severity of and 416.920a (for adults) and 416.924 (for your impairment(s) to that of a listed children) explain this process in detail. impairment. (If you are a child and we We also consider your symptoms, such cannot find equivalence based on med- as pain, at the appropriate steps in our ical evidence only, we will consider review when we consider whether your pain and other symptoms under disability continues. The procedure we §§ 416.924a and 416.926a in determining follow in reviewing whether your dis- whether you have an impairment(s) ability continues is explained in that functionally equals the listings.) § 416.994 (for adults) and § 416.994a (for Regardless of whether you are an adult children). or a child, if the symptoms, signs, and (1) Need to establish a severe medically laboratory findings of your impair- determinable impairment(s). Your symp- ment(s) are equivalent in severity to toms, such as pain, fatigue, shortness those of a listed impairment, we will of breath, weakness, or nervousness, find you disabled. (If you are a child are considered in making a determina- and your impairment(s) functionally tion as to whether your impairment or equals the listings under the rules in combination of impairment(s) is se- § 416.926a, we will also find you dis- vere.(See § 416.920(c) for adults and abled.) If they are not, we will consider § 416.924(c) for children.) the impact of your symptoms on your (2) Decision whether the Listing of Im- residual functional capacity if you are pairments is met. Some listed impair- an adult. If they are not, we will con- ments include symptoms usually asso- sider the impact of your symptoms on ciated with those impairments as cri- your residual functional capacity if

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you are an adult. (See paragraph (d)(4) (3) Surgery was previously performed of this section.) with unsuccessful results and the same (4) Impact of symptoms (including pain) surgery is again being recommended on residual functional capacity or, if you for the same impairment. are a child, on your functioning. If you (4) The treatment because of its enor- have a medically determinable severe mity (e.g., open heart surgery), un- physical or mental impairment(s), but usual nature (e.g., organ transplant), your impairment(s) does not meet or or other reason is very risky for you; or equal an impairment listed in appendix (5) The treatment involves amputa- 1 of subpart P of part 404 of this chap- tion of an extremity, or a major part of ter, we will consider the impact of your an extremity. impairment(s) and any related symp- [45 FR 55621, Aug. 20, 1980, as amended at 59 toms, including pain, or your residual FR 1636, Jan. 12, 1994; 62 FR 6429, Feb. 11, functional capacity, if you are an 1997; 82 FR 5882, Jan. 18, 2017] adult, or, on your functioning if you are a child. (See §§ 416.945 and 416.924a– PRESUMPTIVE DISABILITY AND 416.924b.) BLINDNESS [56 FR 57944, Nov. 14, 1991, as amended at 62 § 416.931 The meaning of presumptive FR 6429, Feb. 11, 1997; 62 FR 13538, Mar. 21, disability or presumptive blindness. 1997; 62 FR 38454, July 18, 1997; 65 FR 16814, If you are applying for supplemental Mar. 30, 2000; 65 FR 54789, Sept. 11, 2000; 71 FR security income benefits on the basis of 10431, Mar. 1, 2006; 71 FR 16461, Mar. 31, 2006; disability or blindness, we may pay you 75 FR 62683, Oct. 13, 2010; 76 FR 24811, May 3, benefits before we make a formal find- 2011; 82 FR 5882, Jan. 18, 2017] ing of whether or not you are disabled § 416.930 Need to follow prescribed or blind. In order to receive these pay- treatment. ments, we must find that you are presumptively disabled or presumptively (a) What treatment you must follow. In blind. You must also meet all other eli- order to get benefits, you must follow gibility requirements for supplemental treatment prescribed by your medical security income benefits. We may source(s) if this treatment is expected make these payments to you for a pe- to restore your ability to work. riod not longer than 6 months. These (b) When you do not follow prescribed payments will not be considered over- treatment. If you do not follow the pre- payments if we later find that you are scribed treatment without a good rea- not disabled or blind. son, we will not find you disabled or blind or, if you are already receiving [45 FR 55621, Aug. 20, 1980, as amended at 57 benefits, we will stop paying you bene- FR 53853, Nov. 13, 1992] fits. § 416.932 When presumptive payments (c) Acceptable reasons for failure to fol- begin and end. low prescribed treatment. We will con- We may make payments to you on sider your physical, mental, edu- the basis of presumptive disability or cational, and linguistic limitations (in- presumptive blindness before we make cluding any lack of facility with the a formal determination about your dis- English language) when determining if ability or blindness. The payments can you have an acceptable reason for fail- not be made for more than 6 months. ure to follow prescribed treatment. The They start for a period of not more following are examples of a good rea- than 6 months beginning in the month son for not following treatment: we make the presumptive disability or (1) The specific medical treatment is presumptive blindness finding. The contrary to the established teaching payments end the earliest of— and tenets of your religion. (a) The month in which we make a (2) The prescribed treatment would formal finding on whether or not you be cataract surgery for one eye when are disabled or blind; there is an impairment of the other eye (b) The month for which we make the resulting in a severe loss of vision and sixth monthly payment based on pre- is not subject to improvement through sumptive disability or presumptive treatment. blindness to you; or

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(c) The month in which you no longer (d) Allegation of bed confinement or meet one of the other eligibility re- immobility without a wheelchair, quirements (e.g., your income exceeds walker, or crutches, due to a long- the limits). standing condition, excluding recent [45 FR 55621, Aug. 20, 1980, as amended at 57 accident and recent surgery; FR 53853, Nov. 13, 1992] (e) Allegation of a stroke (cerebral vascular accident) more than 3 months § 416.933 How we make a finding of in the past and continued marked dif- presumptive disability or presump- ficulty in walking or using a hand or tive blindness. arm; We may make a finding of presump- (f) Allegation of cerebral palsy, mus- tive disability or presumptive blind- cular dystrophy or muscle atrophy and ness if the evidence available at the marked difficulty in walking (e.g., use time we make the presumptive dis- of braces), speaking, or coordination of ability or presumptive blindness find- the hands or arms. ing reflects a high degree of probability (g) Allegation of Down syndrome. that you are disabled or blind. In the (h) Allegation of intellectual dis- case of readily observable impairments ability or another neurodevelopmental (e.g., total blindness), we will find that impairment (for example, autism spec- you are disabled or blind for purposes trum disorder) with complete inability of this section without medical or to independently perform basic self- other evidence. For other impairments, care activities (such as toileting, eat- a finding of disability or blindness ing, dressing, or bathing) made by an- must be based on medical evidence or other person who files on behalf of a other information that, though not suf- claimant who is at least 4 years old. ficient for a formal determination of (i) Allegation of amyotrophic lateral disability or blindness, is sufficient for sclerosis (ALS, Lou Gehrig’s disease). us to find that there is a high degree of (j) Infants weighing less than 1200 probability that you are disabled or grams at birth, until attainment of 1 blind. For example, for claims involv- year of age. ing the human immunodeficiency virus (k) Infants weighing at least 1200 but (HIV), the Social Security Field Office less than 2000 grams at birth, and who may make a finding of presumptive are small for gestational age, until at- disability if your medical source pro- tainment of 1 year of age. (Small for vides us with information that con- gestational age means a birth weight firms that your disease manifestations that is at or more than 2 standard devi- meet the severity of listing-level cri- ations below the mean or that is less teria for HIV. Of course, regardless of than the third growth percentile for the specific HIV manifestations, the the gestational age of the infant.) State agency may make a finding of presumptive disability if the medical [45 FR 55621, Aug. 20, 1980, as amended at 50 evidence or other information reflects FR 5574, Feb. 11, 1985; 53 FR 3741, Feb. 9, 1988; a high degree of probability that you 56 FR 65684, Dec. 18, 1991; 67 FR 58046, Nov. 19, are disabled. 2001; 68 FR 51693, Aug. 28, 2003; 80 FR 19530, Apr. 13, 2015; 81 FR 66178, Sept. 26, 2016] [58 FR 36063, July 2, 1993, as amended at 66 FR 58046, Nov. 19, 2001] DRUG ADDICTION AND ALCOHOLISM

§ 416.934 Impairments that may war- § 416.935 How we will determine rant a finding of presumptive dis- whether your drug addiction or al- ability or presumptive blindness. coholism is a contributing factor We may make findings of presump- material to the determination of tive disability and presumptive blind- disability. ness in specific impairment categories (a) General. If we find that you are without obtaining any medical evi- disabled and have medical evidence of dence. These specific impairment cat- your drug addiction or alcoholism, we egories are— must determine whether your drug ad- (a) Amputation of a leg at the hip; diction or alcoholism is a contributing (b) Allegation of total deafness; factor material to the determination of (c) Allegation of total blindness; disability, unless we find that you are

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eligible for benefits because of your age (2) You did not avail yourself of the or blindness. treatment after you had been notified (b) Process we will follow when we have that it is available to you. medical evidence of your drug addiction (b) If your benefits are suspended for or alcoholism. (1) The key factor we will failure to comply with treatment re- examine in determining whether drug quirements, your benefits can be rein- addiction or alcoholism is a contrib- stated in accordance with the rules in uting factor material to the determina- § 416.1326. tion of disability is whether we would [60 FR 8151, Feb. 10, 1995] still find you disabled if you stopped using drugs or alcohol. § 416.937 What we mean by appro- (2) In making this determination, we priate treatment. will evaluate which of your current By appropriate treatment, we mean physical and mental limitations, upon treatment for drug addiction or alco- which we based our current disability holism that serves the needs of the in- determination, would remain if you dividual in the least restrictive setting stopped using drugs or alcohol and possible consistent with your treat- then determine whether any or all of ment plan. These settings range from your remaining limitations would be outpatient counseling services through disabling. a variety of residential treatment set- (i) If we determine that your remain- tings including acute detoxification, ing limitations would not be disabling, short-term intensive residential treat- we will find that your drug addiction ment, long-term therapeutic residen- or alcoholism is a contributing factor tial treatment, and long-term recovery material to the determination of dis- houses. Appropriate treatment is deter- ability. mined with the involvement of a State (ii) If we determine that your re- licensed or certified addiction profes- maining limitations are disabling, you sional on the basis of a detailed assess- are disabled independent of your drug ment of the individual’s presenting addiction or alcoholism and we will symptomatology, psychosocial profile, find that your drug addiction or alco- and other relevant factors. This assess- holism is not a contributing factor ma- ment may lead to a determination that terial to the determination of dis- more than one treatment modality is ability. appropriate for the individual. The treatment will be provided or overseen [60 FR 8151, Feb. 10, 1995] by an approved institution or facility. This treatment may include (but is not § 416.936 Treatment required for individuals whose drug addiction or al- limited to)— coholism is a contributing factor (a) Medical examination and medical material to the determination of management; disability. (b) Detoxification; (a) If we determine that you are dis- (c) Medication management to in- abled and drug addiction or alcoholism clude substitution therapy (e.g., meth- is a contributing factor material to the adone); determination of disability, you must (d) Psychiatric, psychological, psy- avail yourself of appropriate treatment chosocial, vocational, or other sub- for your drug addiction or alcoholism stance abuse counseling in a residen- at an institution or facility approved tial or outpatient treatment setting; or by us when this treatment is available (e) Relapse prevention. and make progress in your treatment. [60 FR 8151, Feb. 10, 1995] Generally, you are not expected to pay for this treatment. You will not be paid § 416.938 What we mean by approved benefits for any month after the month institutions or facilities. we have notified you in writing that— Institutions or facilities that we may (1) You did not comply with the approve include— terms, conditions and requirements of (a) An institution or facility that fur- the treatment which has been made nishes medically recognized treatment available to you; or for drug addiction or alcoholism in

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conformity with applicable Federal or § 416.940 Evaluating compliance with State laws and regulations; the treatment requirements. (b) An institution or facility used by (a) General. Generally, we will con- or licensed by an appropriate State sider information from the treatment agency which is authorized to refer institution or facility to evaluate your persons for treatment of drug addiction compliance with your treatment plan. or alcoholism; The treatment institution or facility (c) State licensed or certified care will— providers; (1) Monitor your attendance at and (d) Programs accredited by the Com- participation in treatment sessions; mission on Accreditation for Rehabili- (2) Provide reports of the results of tation Facilities (CARF) and/or the any clinical testing (such as, hematological or urinalysis studies for Joint Commission for the Accredita- individuals with drug addiction and tion of Healthcare Organizations hematological studies and breath anal- (JCAHO) for the treatment of drug ad- ysis for individuals with alcoholism) diction or alcoholism; when such tests are likely to yield im- (e) Medicare or Medicaid certified portant information; care providers; or (3) Provide observational reports (f) Nationally recognized self-help from the treatment professionals fa- drug addiction or alcoholism recovery miliar with your individual case (sub- programs (e.g., Alcoholics Anonymous ject to verification and Federal con- or Narcotics Anonymous) when partici- fidentiality requirements); or pation in these programs is specifically (4) Provide their assessment or views prescribed by a treatment professional on your noncompliance with treatment at an institution or facility described requirements. in paragraphs (a) through (e) of this (b) Measuring progress. Generally, we section as part of an individual’s treat- will consider information from the treatment institution or facility to ment plan. evaluate your progress in completing [60 FR 8151, Feb. 10, 1995] your treatment plan. Examples of milestones for measuring your progress § 416.939 How we consider whether with the treatment which has been pre- treatment is available. scribed for your drug addiction or alco- Our determination about whether holism may include (but are not lim- treatment is available to you for your ited to)— drug addiction or your alcoholism will (1) Abstinence from drug or alcohol use (initial progress may include sig- depend upon— nificant reduction in use); (a) The capacity of an approved insti- (2) Consistent attendance at and par- tution or facility to admit you for ap- ticipation in treatment sessions; propriate treatment; (3) Improved social functioning and (b) The location of the approved in- levels of gainful activity; stitution or facility, or the place where (4) Participation in vocational reha- treatment, services or resources could bilitation activities; or be provided to you; (5) Avoidance of criminal activity. (c) The availability and cost of trans- [60 FR 8151, Feb. 10, 1995] portation for you to the place of treatment; § 416.941 Establishment and use of re- (d) Your general health, including ferral and monitoring agencies. your ability to travel and capacity to We will contract with one or more understand and follow the prescribed agencies in each of the States and the treatment; District of Columbia to provide serv- (e) Your particular condition and cir- ices to individuals whose disabilities cumstances; and are based on a determination that drug (f) The treatment that is prescribed addiction or alcoholism is a contrib- for your drug addiction or alcoholism. uting factor material to the determination of disability (as described in [60 FR 8151, Feb. 10, 1995] § 416.935) and to submit information to

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us which we will use to make decisions ing arranging for a consultative exam- about these individuals’ benefits. These ination(s) if necessary, and making agencies will be known as referral and every reasonable effort to help you get monitoring agencies. Their duties and medical reports from your own medical responsibilities include (but are not sources. (See §§ 416.912(d) through (e).) limited to)— We will consider any statements about (a) Identifying appropriate treatment what you can still do that have been placements for individuals we refer to provided by medical sources, whether them; or not they are based on formal med- (b) Referring these individuals for ical examinations. (See § 416.913.) We treatment; will also consider descriptions and ob- (c) Monitoring the compliance and servations of your limitations from progress with the appropriate treat- your impairment(s), including limita- ment of these individuals; and tions that result from your symptoms, (d) Promptly reporting to us any in- such as pain, provided by you, your dividual’s failure to comply with treat- family, neighbors, friends, or other per- ment requirements as well as failure to sons. (See paragraph (e) of this section achieve progress through the treat- and § 416.929.) ment. (4) What we will consider in assessing [60 FR 8152, Feb. 10, 1995] residual functional capacity. When we assess your residual functional capac- RESIDUAL FUNCTIONAL CAPACITY ity, we will consider your ability to meet the physical, mental, sensory, § 416.945 Your residual functional ca- and other requirements of work, as de- pacity. scribed in paragraphs (b), (c), and (d) of (a) General—(1) Residual functional ca- this section. pacity assessment. Your impairment(s), (5) How we will use our residual func- and any related symptoms, such as tional capacity assessment. (i) We will pain, may cause physical and mental first use our residual functional capac- limitations that affect what you can do ity assessment at step four of the se- in a work setting. Your residual func- quential evaluation process to decide if tional capacity is the most you can you can do your past relevant work. still do despite your limitations. We (See §§ 416.920(f) and 416.960(b).) will assess your residual functional ca- (ii) If we find that you cannot do pacity based on all the relevant evi- your past relevant work, you do not dence in your case record. (See have any past relevant work, or if we § 416.946.) use the procedures in § 416.920(h) and (2) If you have more than one impair- § 416.962 does not apply, we will use the ment. We will consider all of your medi- same assessment of your residual func- cally determinable impairments of tional capacity at step five of the se- which we are aware, including your quential evaluation process to decide if medically determinable impairments you can adjust to any other work that that are not ‘‘severe,’’ as explained in exists in the national economy. (See §§ 416.920(c), 416.921, and 416.923, when §§ 416.920(g) and 416.966.) At this step, we assess your residual functional ca- we will not use our assessment of your pacity. (See paragraph (e) of this sec- residual functional capacity alone to tion.) decide if you are disabled. We will use (3) Evidence we use to assess your resid- the guidelines in §§ 416.960 through ual functional capacity. We will assess 416.969a, and consider our residual func- your residual functional capacity based tional capacity assessment together on all of the relevant medical and with the information about your voca- other evidence. In general, you are re- tional background to make our dis- sponsible for providing the evidence we ability determination or decision. For will use to make a finding about your our rules on residual functional capac- residual functional capacity. (See ity assessment in deciding whether § 416.912(c).) However, before we make a your disability continues or ends, see determination that you are not dis- § 416.994. abled, we are responsible for developing (b) Physical abilities. When we assess your complete medical history, includ- your physical abilities, we first assess

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the nature and extent of your physical be fully capable of the physical de- limitations and then determine your mands consistent with those of sus- residual functional capacity for work tained medium work activity, but an- activity on a regular and continuing other person with the same disorder, basis. A limited ability to perform cer- because of pain, may not be capable of tain physical demands of work activ- more than the physical demands con- ity, such as sitting, standing, walking, sistent with those of light work activ- lifting, carrying, pushing, pulling, or ity on a sustained basis. In assessing other physical functions (including ma- the total limiting effects of your im- nipulative or postural functions, such pairment(s) and any related symptoms, as reaching, handling, stooping or we will consider all of the medical and crouching), may reduce your ability to nonmedical evidence, including the in- do past work and other work. formation described in § 416.929(c). (c) Mental abilities. When we assess your mental abilities, we first assess [56 FR 57947, Nov. 14, 1991, as amended at 68 the nature and extent of your mental FR 51165, Aug. 26, 2003; 77 FR 10657, Feb. 23, 2012; 77 FR 43495, July 25, 2012] limitations and restrictions and then determine your residual functional ca- § 416.946 Responsibility for assessing pacity for work activity on a regular your residual functional capacity. and continuing basis. A limited ability to carry out certain mental activities, (a) Responsibility for assessing residual such as limitations in understanding, functional capacity at the State agency. remembering, and carrying out in- When a State agency medical or psy- structions, and in responding appro- chological consultant and a State priately to supervision, coworkers, and agency disability examiner make the work pressures in a work setting, may disability determination as provided in reduce your ability to do past work and § 416.1015(c)(1) of this part, a State other work. agency medical or psychological con- (d) Other abilities affected by impair- sultant(s) is responsible for assessing ment(s). Some medically determinable your residual functional capacity. impairment(s), such as skin impair- When a State agency disability exam- ment(s), epilepsy, impairment(s) of vi- iner makes a disability determination sion, hearing or other senses, and im- alone as provided in § 416.1015(c)(3), the pairment(s) which impose environ- disability examiner is responsible for mental restrictions, may cause limita- assessing your residual functional cations and restrictions which affect pacity. other work-related abilities. If you (b) Responsibility for assessing residual have this type of impairment(s), we functional capacity in the disability hear- consider any resulting limitations and ings process. If your case involves a dis- restrictions which may reduce your ability hearing under § 416.1414, a disability to do past work and other work ability hearing officer is responsible in deciding your residual functional ca- for assessing your residual functional pacity. capacity. However, if the disability (e) Total limiting effects. When you hearing officer’s reconsidered deter- have a severe impairment(s), but your mination is changed under § 416.1418, symptoms, signs, and laboratory find- the Associate Commissioner for the Of- ings do not meet or equal those of a fice of Disability Determinations or his listed impairment in appendix 1 of sub- or her delegate is responsible for as- part P of part 404 of this chapter, we sessing your residual functional capac- will consider the limiting effects of all ity. your impairment(s), even those that (c) Responsibility for assessing residual are not severe, in determining your re- functional capacity at the administrative sidual functional capacity. Pain or law judge hearing or Appeals Council other symptoms may cause a limita- level. If your case is at the administration of function beyond that which can tive law judge hearing level or at the be determined on the basis of the ana- Appeals Council review level, the ad- tomical, physiological or psychological ministrative law judge or the adminis- abnormalities considered alone; e.g., trative appeals judge at the Appeals someone with a low back disorder may Council (when the Appeals Council

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makes a decision) is responsible for as- racy of the claimant’s description of sessing your residual functional capac- his past work. In addition, a vocational ity. expert or specialist may offer expert opinion testimony in response to a hy- [68 FR 51165, Aug. 26, 2003, as amended at 71 FR 16461, Mar. 31, 2006; 75 FR 62683, Oct. 13, pothetical question about whether a 2010; 76 FR 24812, May 3, 2011] person with the physical and mental limitations imposed by the claimant’s VOCATIONAL CONSIDERATIONS medical impairment(s) can meet the demands of the claimant’s previous § 416.960 When we will consider your work, either as the claimant actually vocational background. performed it or as generally performed (a) General. If you are age 18 or older in the national economy. and applying for supplemental security (3) If you can do your past relevant income benefits based on disability, work. If we find that you have the re- and we cannot decide whether you are sidual functional capacity to do your disabled at one of the first three steps past relevant work, we will determine of the sequential evaluation process that you can still do your past work (see § 416.920), we will consider your re- and are not disabled. We will not con- sidual functional capacity together sider your vocational factors of age, with your vocational background, as education, and work experience or discussed in paragraphs (b) and (c) of whether your past relevant work exists this section. in significant numbers in the national (b) Past relevant work. We will first economy. compare our assessment of your resid- (c) Other work. (1) If we find that your ual functional capacity with the phys- residual functional capacity does not ical and mental demands of your past enable you to do any of your past rel- relevant work. See § 416.920(h) for an evant work or if we use the procedures exception to this rule. in § 416.920(h), we will use the same re- (1) Definition of past relevant work. sidual functional capacity assessment Past relevant work is work that you when we decide if you can adjust to have done within the past 15 years, any other work. We will look at your that was substantial gainful activity, ability to adjust to other work by con- and that lasted long enough for you to sidering your residual functional ca- learn to do it. (See § 416.965(a).) pacity and the vocational factors of (2) Determining whether you can do age, education, and work experience, as your past relevant work. We will ask you appropriate in your case. (See for information about work you have § 416.920(h) for an exception to this done in the past. We may also ask rule.) Any other work (jobs) that you other people who know about your can adjust to must exist in significant work. (See § 416.965(b).) We may use the numbers in the national economy (ei- services of vocational experts or voca- ther in the region where you live or in tional specialists, or other resources, several regions in the country). such as the ‘‘Dictionary of Occupa- (2) In order to support a finding that tional Titles’’ and its companion vol- you are not disabled at this fifth step umes and supplements, published by of the sequential evaluation process, the Department of Labor, to obtain we are responsible for providing evi- evidence we need to help us determine dence that demonstrates that other whether you can do your past relevant work exists in significant numbers in work, given your residual functional the national economy that you can do, capacity. A vocational expert or spe- given your residual functional capacity cialist may offer relevant evidence and vocational factors. We are not re- within his or her expertise or knowl- sponsible for providing additional evi- edge concerning the physical and men- dence about your residual functional tal demands of a claimant’s past rel- capacity because we will use the same evant work, either as the claimant ac- residual functional capacity assess- tually performed it or as generally per- ment that we used to determine if you formed in the national economy. Such can do your past relevant work. evidence may be helpful in [68 FR 51166, Aug. 26, 2003, as amended at 77 supplementing or evaluating the accu- FR 43495, July 25, 2012]

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§ 416.962 Medical-vocational profiles through (e) of this section. If you are showing an inability to make an ad- unemployed but you still have the abil- justment to other work. ity to adjust to other work, we will (a) If you have done only arduous un- find that you are not disabled. In para- skilled physical labor. If you have no graphs (b) through (e) of this section more than a marginal education (see and in appendix 2 of subpart P of part § 416.964) and work experience of 35 404 of this chapter, we explain in more years or more during which you did detail how we consider your age as a only arduous unskilled physical labor, vocational factor. and you are not working and are no (b) How we apply the age categories. longer able to do this kind of work be- When we make a finding about your cause of a severe impairment(s) (see ability to do other work under §§ 416.920(c), 416.921, and 416.923), we will § 416.920(f)(1), we will use the age cat- consider you unable to do lighter work, egories in paragraphs (c) through (e) of and therefore, disabled. this section. We will use each of the age categories that applies to you dur- Example to paragraph (a): B is a 58-year-old miner’s helper with a fourth grade education ing the period for which we must deter- who has a lifelong history of unskilled ardu- mine if you are disabled. We will not ous physical labor. B says that he is disabled apply the age categories mechanically because of arthritis of the spine, hips, and in a borderline situation. If you are knees, and other impairments. Medical evi- within a few days to a few months of dence shows a ‘‘severe’’ combination of im- reaching an older age category, and pairments that prevents B from performing using the older age category would re- his past relevant work. Under these circumstances, we will find that B is disabled. sult in a determination or decision that you are disabled, we will consider (b) If you are at least 55 years old, have whether to use the older age category no more than a limited education, and after evaluating the overall impact of have no past relevant work experience. If all the factors of your case. you have a severe, medically deter- (c) Younger person. If you are a minable impairment(s) (see §§ 416.920(c), younger person (under age 50), we gen- 416.921, and 416.923), are of advanced age erally do not consider that your age (age 55 or older, see § 416.963), have a will seriously affect your ability to ad- limited education or less (see § 416.964), just to other work. However, in some and have no past relevant work experi- circumstances, we consider that per- ence (see § 416.965), we will find you dis- sons age 45–49 are more limited in their abled. If the evidence shows that you ability to adjust to other work than meet this profile, we will not need to persons who have not attained age 45. assess your residual functional capac- See Rule 201.17 in appendix 2 of subpart ity or consider the rules in appendix 2 P of part 404 of this chapter. to subpart P of part 404 of this chapter. (d) Person closely approaching ad- [68 FR 51166, Aug. 26, 2003] vanced age. If you are closely approaching advanced age (age 50–54), we will § 416.963 Your age as a vocational fac- consider that your age along with a se- tor. vere impairment(s) and limited work (a) General. ‘‘Age’’ means your chron- experience may seriously affect your ological age. When we decide whether ability to adjust to other work. you are disabled under § 416.920(g)(1), we (e) Person of advanced age. We con- will consider your chronological age in sider that at advanced age (age 55 or combination with your residual func- older), age significantly affects a per- tional capacity, education, and work son’s ability to adjust to other work. experience. We will not consider your We have special rules for persons of ad- ability to adjust to other work on the vanced age and for persons in this cat- basis of your age alone. In determining egory who are closely approaching re- the extent to which age affects a per- tirement age (age 60 or older). See son’s ability to adjust to other work, § 416.968(d)(4). we consider advancing age to be an in- (f) Information about your age. We will creasingly limiting factor in the per- usually not ask you to prove your age. son’s ability to make such an adjust- However, if we need to know your ment, as we explain in paragraphs (c) exact age to determine whether you

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get disability benefits, we will ask you read or write a simple message such as for evidence of your age. instructions or inventory lists even [45 FR 55621, Aug. 20, 1980, as amended at 65 though the person can sign his or her FR 18001, Apr. 6, 2000; 68 FR 51166, Aug. 26, name. Generally, an illiterate person 2003; 73 FR 64197, Oct. 29, 2008] has had little or no formal schooling. (2) Marginal education. Marginal edu- § 416.964 Your education as a voca- cation means ability in reasoning, tional factor. arithmetic, and language skills which (a) General. Education is primarily are needed to do simple, unskilled used to mean formal schooling or other types of jobs. We generally consider training which contributes to your that formal schooling at a 6th grade ability to meet vocational require- level or less is a marginal education. ments, for example, reasoning ability, (3) Limited education. Limited edu- communication skills, and arithmet- cation means ability in reasoning, ical ability. However, if you do not arithmetic, and language skills, but have formal schooling, this does not not enough to allow a person with necessarily mean that you are these educational qualifications to do uneducated or lack these abilities. Past most of the more complex job duties work experience and the kinds of re- needed in semi-skilled or skilled jobs. sponsibilities you had when you were We generally consider that a 7th grade working may show that you have intel- through the 11th grade level of formal lectual abilities, although you may education is a limited education. have little formal education. Your (4) High school education and above. daily activities, hobbies, or the results High school education and above means of testing may also show that you have abilities in reasoning, arithmetic, and significant intellectual ability that can language skills acquired through for- be used to work. mal schooling at a 12th grade level or (b) How we evaluate your education. above. We generally consider that The importance of your educational someone with these educational abili- background may depend upon how ties can do semi-skilled through skilled much time has passed between the work. completion of your formal education and the beginning of your physical or (5) Inability to communicate in English. mental impairment(s) and by what you Since the ability to speak, read and un- have done with your education in a derstand English is generally learned work or other setting. Formal edu- or increased at school, we may consider cation that you completed many years this an educational factor. Because before your impairment began, or un- English is the dominant language of used skills and knowledge that were a the country, it may be difficult for part of your formal education, may no someone who doesn’t speak and under- longer be useful or meaningful in terms stand English to do a job, regardless of of your ability to work. Therefore, the the amount of education the person numerical grade level that you com- may have in another language. There- pleted in school may not represent fore, we consider a person’s ability to your actual educational abilities. communicate in English when we These may be higher or lower. How- evaluate what work, if any, he or she ever, if there is no other evidence to can do. It generally doesn’t matter contradict it, we will use your numer- what other language a person may be ical grade level to determine your edu- fluent in. cational abilities. The term education (6) Information about your education. also includes how well you are able to We will ask you how long you attended communicate in English since this school and whether you are able to ability is often acquired or improved speak, understand, read and write in by education. In evaluating your edu- English and do at least simple calcula- cational level, we use the following tions in arithmetic. We will also con- categories: sider other information about how (1) Illiteracy. Illiteracy means the in- much formal or informal education you ability to read or write. We consider may have had through your previous someone illiterate if the person cannot work, community projects, hobbies,

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and any other activities which might you are able to do unskilled work be- help you to work. cause it requires little or no judgment and can be learned in a short period of EFFECTIVE DATE NOTE: At 85 FR 10603, Feb. 25, 2020, § 416.964 was amended by removing time. the sixth sentence of paragraph (b) introduc- (b) Information about your work. tory text and paragraph (b)(5); redesignating Under certain circumstances, we will paragraph (b)(6) as paragraph (c), and; revis- ask you about the work you have done ing the first sentence of newly redesignated in the past. If you cannot give us all of paragraph (c), effective Apr. 27, 2020. For the the information we need, we may try, convenience of the user, the added and re- with your permission, to get it from vised text is set forth as follows: your employer or other person who § 416.964 Your education as a vocational fac- knows about your work, such as a tor. member of your family or a co-worker. When we need to consider your work * * * * * experience to decide whether you are able to do work that is different from (c) Information about your education. We what you have done in the past, we will will ask you how long you attended school, and whether you are able to understand, ask you to tell us about all of the jobs read, and write, and do at least simple arith- you have had in the last 15 years. You metic calculations. * * * must tell us the dates you worked, all of the duties you did, and any tools, § 416.965 Your work experience as a machinery, and equipment you used. vocational factor. We will need to know about the (a) General. Work experience means amount of walking, standing, sitting, skills and abilities you have acquired lifting and carrying you did during the through work you have done which work day, as well as any other physical show the type of work you may be ex- or mental duties of your job. If all of pected to do. Work you have already your work in the past 15 years has been been able to do shows the kind of work arduous and unskilled, and you have that you may be expected to do. We very little education, we will ask you consider that your work experience ap- to tell us about all of your work from plies when it was done within the last the time you first began working. This 15 years, lasted long enough for you to information could help you to get dis- learn to do it, and was substantial ability benefits. gainful activity. We do not usually [45 FR 55584, Aug. 20, 1980, as amended at 77 consider that work you did 15 years or FR 43495, July 25, 2012] more before the time we are deciding whether you are disabled applies. A § 416.966 Work which exists in the na- gradual change occurs in most jobs so tional economy. that after 15 years it is no longer real- (a) General. We consider that work istic to expect that skills and abilities exists in the national economy when it acquired in a job done then continue to exists in significant numbers either in apply. The 15-year guide is intended to the region where you live or in several insure that remote work experience is other regions of the country. It does not currently applied. If you have no not matter whether— work experience or worked only off- (1) Work exists in the immediate area and-on or for brief periods of time dur- in which you live; ing the 15-year period, we generally (2) A specific job vacancy exists for consider that these do not apply. If you you; or have acquired skills through your past (3) You would be hired if you applied work, we consider you to have these for work. work skills unless you cannot use them (b) How we determine the existence of in other skilled or semi-skilled work work. Work exists in the national econ- that you can now do. If you cannot use omy when there is a significant num- your skills in other skilled or semi- ber of jobs (in one or more occupations) skilled work, we will consider your having requirements which you are work background the same as unable to meet with your physical or skilled. However, even if you have no mental abilities and vocational quali- work experience, we may consider that fications. Isolated jobs that exist only

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in very limited numbers in relatively work and the specific occupations in few locations outside of the region which they can be used, or there is a where you live are not considered work similarly complex issue, we may use which exists in the national economy. We the services of a vocational expert or will not deny you disability benefits on other specialist. We will decide wheth- the basis of the existence of these er to use a vocational expert or other kinds of jobs. If work that you can do specialist. does not exist in the national economy, we will determine that you are dis- § 416.967 Physical exertion require- abled. However, if work that you can ments. do does exist in the national economy, To determine the physical exertion we will determine that you are not dis- requirements of work in the national abled. economy, we classify jobs as sedentary, (c) Inability to obtain work. We will light, medium, heavy, and very heavy. determine that you are not disabled if These terms have the same meaning as your residual functional capacity and they have in the Dictionary of Occupa- vocational abilities make it possible tional Titles, published by the Depart- for you to do work which exists in the ment of Labor. In making disability de- national economy, but you remain un- terminations under this subpart, we employed because of— use the following definitions: (1) Your inability to get work; (a) Sedentary work. Sedentary work (2) Lack of work in your local area; involves lifting no more than 10 pounds (3) The hiring practices of employers; at a time and occasionally lifting or (4) Technological changes in the in- carrying articles like docket files, dustry in which you have worked; ledgers, and small tools. Although a (5) Cyclical economic conditions; sedentary job is defined as one which (6) No job openings for you; involves sitting, a certain amount of (7) You would not actually be hired walking and standing is often nec- to do work you could otherwise do, or; essary in carrying out job duties. Jobs (8) You do not wish to do a particular are sedentary if walking and standing type of work. are required occasionally and other (d) Administrative notice of job data. When we determine that unskilled, sed- sedentary criteria are met. entary, light, and medium jobs exist in (b) Light work. Light work involves the national economy (in significant lifting no more than 20 pounds at a numbers either in the region where you time with frequent lifting or carrying live or in several regions of the coun- of objects weighing up to 10 pounds. try), we will take administrative no- Even though the weight lifted may be tice of reliable job information avail- very little, a job is in this category able from various governmental and when it requires a good deal of walking other publications. For example, we or standing, or when it involves sitting will take notice of— most of the time with some pushing (1) Dictionary of Occupational Titles, and pulling of arm or leg controls. To published by the Department of Labor; be considered capable of performing a (2) County Business Patterns, pub- full or wide range of light work, you lished by the Bureau of the Census; must have the ability to do substan- (3) Census Reports, also published by tially all of these activities. If someone the Bureau of the Census; can do light work, we determine that (4) Occupational Analyses prepared for he or she can also do sedentary work, the Social Security Administration by unless there are additional limiting various State employment agencies; factors such as loss of fine dexterity or and inability to sit for long periods of time. (5) Occupational Outlook Handbook, (c) Medium work. Medium work in- published by the Bureau of Labor Sta- volves lifting no more than 50 pounds tistics. at a time with frequent lifting or car- (e) Use of vocational experts and other rying of objects weighing up to 25 specialists. If the issue in determining pounds. If someone can do medium whether you are disabled is whether work, we determine that he or she can your work skills can be used in other also do sedentary and light work.

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(d) Heavy work. Heavy work involves dexterity are necessary, as when hands lifting no more than 100 pounds at a or feet must be moved quickly to do re- time with frequent lifting or carrying petitive tasks. of objects weighing up to 50 pounds. If (c) Skilled work. Skilled work requires someone can do heavy work, we deter- qualifications in which a person uses mine that he or she can also do me- judgment to determine the machine dium, light, and sedentary work. and manual operations to be performed (e) Very heavy work. Very heavy work in order to obtain the proper form, involves lifting objects weighing more quality, or quantity of material to be than 100 pounds at a time with frequent produced. Skilled work may require lifting or carrying of objects weighing laying out work, estimating quality, 50 pounds or more. If someone can do determining the suitability and needed very heavy work, we determine that he quantities of materials, making precise or she can also do heavy, medium, measurements, reading blueprints or light, and sedentary work. other specifications, or making necessary computations or mechanical ad- § 416.968 Skill requirements. justments to control or regulate the In order to evaluate your skills and work. Other skilled jobs may require to help determine the existence in the dealing with people, facts, or figures or national economy of work you are able abstract ideas at a high level of com- to do, occupations are classified as un- plexity. skilled, semi-skilled, and skilled. In (d) Skills that can be used in other work classifying these occupations, we use (transferability)—(1) What we mean by materials published by the Department transferable skills. We consider you to of Labor. When we make disability de- have skills that can be used in other terminations under this subpart, we jobs, when the skilled or semi-skilled use the following definitions: work activities you did in past work (a) Unskilled work. Unskilled work is can be used to meet the requirements work which needs little or no judgment of skilled or semi-skilled work activi- to do simple duties that can be learned ties of other jobs or kinds of work. This on the job in a short period of time. depends largely on the similarity of oc- The job may or may not require consid- cupationally significant work activi- erable strength. For example, we con- ties among different jobs. sider jobs unskilled if the primary work duties are handling, feeding and (2) How we determine skills that can be offbearing (that is, placing or removing transferred to other jobs. Transferability materials from machines which are is most probable and meaningful automatic or operated by others), or among jobs in which— machine tending, and a person can usu- (i) The same or a lesser degree of ally learn to do the job in 30 days, and skill is required; little specific vocational preparation (ii) The same or similar tools and and judgment are needed. A person machines are used; and does not gain work skills by doing un- (iii) The same or similar raw mate- skilled jobs. rials, products, processes, or services (b) Semi-skilled work. Semi-skilled are involved. work is work which needs some skills (3) Degrees of transferability. There are but does not require doing the more degrees of transferability of skills complex work duties. Semi-skilled jobs ranging from very close similarities to may require alertness and close atten- remote and incidental similarities tion to watching machine processes; or among jobs. A complete similarity of inspecting, testing or otherwise look- all three factors is not necessary for ing for irregularities; or tending or transferability. However, when skills guarding equipment, property, mate- are so specialized or have been ac- rials, or persons against loss, damage quired in such an isolated vocational or injury; or other types of activities setting (like many jobs in mining, agri- which are similarly less complex than culture, or fishing) that they are not skilled work, but more complex than readily usable in other industries, jobs, unskilled work. A job may be classified and work settings, we consider that as semi-skilled where coordination and they are not transferable.

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(4) Transferability of skills for persons quirements) that exist in the national of advanced age. If you are of advanced economy. Appendix 2 provides rules age (age 55 or older), and you have a se- using this data reflecting major func- vere impairment(s) that limits you to tional and vocational patterns. We sedentary or light work, we will find apply these rules in cases where a per- that you cannot make an adjustment son is not doing substantial gainful ac- to other work unless you have skills tivity and is prevented by a severe that you can transfer to other skilled medically determinable impairment or semiskilled work (or you have re- from doing vocationally relevant past cently completed education which pro- work. (See § 416.920(h) for an exception vides for direct entry into skilled to this rule.) The rules in appendix 2 do work) that you can do despite your im- not cover all possible variations of fac- pairment(s). We will decide if you have tors. Also, as we explain in § 200.00 of transferable skills as follows. If you are appendix 2, we do not apply these rules of advanced age and you have a severe if one of the findings of fact about the impairment(s) that limits you to no person’s vocational factors and resid- more than sedentary work, we will find ual functional capacity is not the same that you have skills that are transfer- as the corresponding criterion of a able to skilled or semiskilled sedentary rule. In these instances, we give full work only if the sedentary work is so consideration to all relevant facts in similar to your previous work that you accordance with the definitions and would need to make very little, if any, discussions under vocational consider- vocational adjustment in terms of ations. However, if the findings of fact tools, work processes, work settings, or made about all factors are the same as the industry. (See § 416.967(a) and Rule the rule, we use that rule to decide 201.00(f) of appendix 2 of subpart P of whether a person is disabled. part 404 of this chapter.) If you are of [45 FR 55584, Aug. 20, 1980, as amended at 77 advanced age but have not attained age FR 43495, July 25, 2012] 60, and you have a severe impairment(s) that limits you to no more § 416.969a Exertional and non- than light work, we will apply the rules exertional limitations. in paragraphs (d)(1) through (d)(3) of (a) General. Your impairment(s) and this section to decide if you have skills related symptoms, such as pain, may that are transferable to skilled or cause limitations of function or re- semiskilled light work (see § 416.967(b)). strictions which limit your ability to If you are closely approaching retirement meet certain demands of jobs. These age (age 60 or older) and you have a se- limitations may be exertional, non- vere impairment(s) that limits you to exertional, or a combination of both. no more than light work, we will find Limitations are classified as exertional that you have skills that are transfer- if they affect your ability to meet the able to skilled or semiskilled light strength demands of jobs. The classi- work only if the light work is so simi- fication of a limitation as exertional is lar to your previous work that you related to the United States Depart- would need to make very little, if any, ment of Labor’s classification of jobs vocational adjustment in terms of by various exertional levels (sedentary, tools, work processes, work settings, or light, medium, heavy, and very heavy) the industry. (See § 416.967(b) and Rule in terms of the strength demands for 202.00(f) of appendix 2 of subpart P of sitting, standing, walking, lifting, car- part 404 of this chapter.) rying, pushing, and pulling. Sections [45 FR 55621, Aug. 20, 1980, as amended at 65 416.967 and 416.969 explain how we use FR 18001, Apr. 6, 2000; 73 FR 64197, Oct. 29, the classification of jobs by exertional 2008] levels (strength demands) which is contained in the Dictionary of Occupa- § 416.969 Listing of Medical-Vocational tional Titles published by the Depart- Guidelines in appendix 2 of subpart ment of Labor, to determine the exer- P of part 404 of this chapter. tional requirements of work which ex- The Dictionary of Occupational Titles ists in the national economy. Limita- includes information about jobs (classi- tions or restrictions which affect your fied by their exertional and skill re- ability to meet the demands of jobs

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other than the strength demands, that (iii) You have difficulty under- is, demands other than sitting, stand- standing or remembering detailed ining, walking, lifting, carrying, pushing structions; or pulling, are considered non- (iv) You have difficulty in seeing or exertional. When we decide whether hearing; you can do your past relevant work (see (v) You have difficulty tolerating §§ 416.920(f) and 416.994(b)(5)(vi)), we will some physical feature(s) of certain compare our assessment of your resid- work settings, e.g., you cannot tolerate ual functional capacity with the de- dust or fumes; or mands of your past relevant work. If (vi) You have difficulty performing you cannot do your past relevant work, the manipulative or postural functions we will use the same residual func- of some work such as reaching, han- tional capacity assessment along with dling, stooping, climbing, crawling, or your age, education, and work experi- crouching. ence to decide if you can adjust to any (2) If your impairment(s) and related other work which exists in the national symptoms, such as pain, only affect economy. (See §§ 416.920(g) and your ability to perform the non- 416.994(b)(5)(vii).) Paragraphs (b), (c), exertional aspects of work-related ac- and (d) of this section explain how we tivities, the rules in appendix 2 do not apply the medical-vocational guide- direct factual conclusions of disabled lines in appendix 2 of subpart P of part or not disabled. The determination as 404 of this chapter in making this de- to whether disability exists will be termination, depending on whether the based on the principles in the appro- limitations or restrictions imposed by priate sections of the regulations, giv- your impairment(s) and related symp- ing consideration to the rules for spe- toms, such as pain, are exertional, non- cific case situations in appendix 2. (d) Combined exertional and nonexertional, or a combination of both. exertional limitations. When the limita- (b) Exertional limitations. When the tions and restrictions imposed by your limitations and restrictions imposed by impairment(s) and related symptoms, your impairment(s) and related symp- such as pain, affect your ability to toms, such as pain, affect only your meet both the strength and demands of ability to meet the strength demands jobs other than the strength demands, of jobs (sitting, standing, walking, lift- we consider that you have a combina- ing, carrying, pushing, and pulling), we tion of exertional and nonexertional consider that you have only exertional limitations or restrictions. If your im- limitations. When your impairment(s) pairment(s) and related symptoms, and related symptoms only impose such as pain, affect your ability to exertional limitations and your spe- meet both the strength and demands of cific vocational profile is listed in a jobs other than the strength demands, rule contained in appendix 2, we will we will not directly apply the rules in directly apply that rule to decide appendix 2 unless there is a rule that whether you are disabled. directs a conclusion that you are dis- (c) Nonexertional limitations. (1) When abled based upon your strength limita- the limitations and restrictions im- tions; otherwise the rules provide a posed by your impairment(s) and re- framework to guide our decision. lated symptoms, such as pain, affect only your ability to meet the demands [56 FR 57947, Nov. 14, 1991, as amended at 68 FR 51166, Aug. 26, 2003] of jobs other than the strength demands, we consider that you have only SUBSTANTIAL GAINFUL ACTIVITY nonexertional limitations or restrictions. Some examples of nonexertional § 416.971 General. limitations or restrictions include the The work, without regard to legality, following: that you have done during any period (i) You have difficulty functioning in which you believe you are disabled because you are nervous, anxious, or may show that you are able to work at depressed; the substantial gainful activity level. (ii) You have difficulty maintaining If you are able to engage in substantial attention or concentrating; gainful activity, we will find that you

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are not disabled. (We explain the rules vision or assistance than is usually for persons who are statutorily blind in given other people doing similar work, § 416.984.) Even if the work you have this may show that you are not work- done was not substantial gainful activ- ing at the substantial gainful activity ity, it may show that you are able to level. If you are doing work that in- do more work than you actually did. volves minimal duties that make little We will consider all of the medical and or no demands on you and that are of vocational evidence in your file to de- little or no use to your employer, or to cide whether or not you have the abil- the operation of a business if you are ity to engage in substantial gainful ac- self-employed, this does not show that tivity. you are working at the substantial [45 FR 55621, Aug. 20, 1980, as amended at 65 gainful activity level. FR 42788, July 11, 2000] (c) If your work is done under special conditions. The work you are doing may § 416.972 What we mean by substantial be done under special conditions that gainful activity. take into account your impairment, Substantial gainful activity is work such as work done in a sheltered work- activity that is both substantial and shop or as a patient in a hospital. If gainful: your work is done under special condi- (a) Substantial work activity. Substan- tions, we may find that it does not tial work activity is work activity that show that you have the ability to do involves doing significant physical or substantial gainful activity. Also, if mental activities. Your work may be you are forced to stop or reduce your substantial even if it is done on a part- work because of the removal of special time basis or if you do less, get paid conditions that were related to your less, or have less responsibility than impairment and essential to your when you worked before. work, we may find that your work does (b) Gainful work activity. Gainful not show that you are able to do sub- work activity is work activity that you stantial gainful activity. However, do for pay or profit. Work activity is work done under special conditions gainful if it is the kind of work usually may show that you have the necessary done for pay or profit, whether or not a skills and ability to work at the sub- profit is realized. stantial gainful activity level. Exam- (c) Some other activities. Generally, we ples of the special conditions that may do not consider activities like taking relate to your impairment include, but care of yourself, household tasks, hob- are not limited to, situations in bies, therapy, school attendance, club which— activities, or social programs to be sub- (1) You required and received special stantial gainful activity. assistance from other employees in performing your work; § 416.973 General information about (2) You were allowed to work irreg- work activity. ular hours or take frequent rest peri- (a) The nature of your work. If your ods; duties require use of your experience, (3) You were provided with special skills, supervision and responsibilities, equipment or were assigned work espe- or contribute substantially to the oper- cially suited to your impairment; ation of a business, this tends to show (4) You were able to work only be- that you have the ability to work at cause of specially arranged cir- the substantial gainful activity level. cumstances, for example, other persons (b) How well you perform. We consider helped you prepare for or get to and how well you do your work when we de- from your work; termine whether or not you are doing (5) You were permitted to work at a substantial gainful activity. If you do lower standard of productivity or effi- your work satisfactorily, this may ciency than other employees; or show that you are working at the sub- (6) You were given the opportunity to stantial gainful activity level. If you work, despite your impairment, be- are unable, because of your impair- cause of family relationship, past asso- ments, to do ordinary or simple tasks ciation with your employer, or your satisfactorily without more super- employer’s concern for your welfare.

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(d) If you are self-employed. Super- not substantial will not necessarily visory, managerial, advisory or other show that you are not able to do sub- significant personal services that you stantial gainful activity. We generally perform as a self-employed individual consider work that you are forced to may show that you are able to do sub- stop or to reduce below the substantial stantial gainful activity. gainful activity level after a short time (e) Time spent in work. While the time because of your impairment to be an you spend in work is important, we unsuccessful work attempt. Your earn- will not decide whether or not you are ings from an unsuccessful work at- doing substantial gainful activity only tempt will not show that you are able on that basis. We will still evaluate the to do substantial gainful activity. We work to decide whether it is substan- will use the criteria in paragraph (c) of tial and gainful regardless of whether this section to determine if the work you spend more time or less time at you did was an unsuccessful work at- the job than workers who are not im- tempt. paired and who are doing similar work (2) We consider only the amounts you as a regular means of their livelihood. earn. When we decide whether your [45 FR 55621, Aug. 20, 1980, as amended at 65 earnings show that you have done sub- FR 42788, July 11, 2000] stantial gainful activity, we do not consider any income that is not di- § 416.974 Evaluation guides if you are rectly related to your productivity. an employee. When your earnings exceed the reason- (a) We use several guides to decide able value of the work you perform, we whether the work you have done shows consider only that part of your pay that you are able to do substantial which you actually earn. If your earn- gainful activity. If you are working or ings are being subsidized, we do not have worked as an employee, we will consider the amount of the subsidy use the provisions in paragraphs (a) when we determine if your earnings through (d) of this section that are rel- show that you have done substantial evant to your work activity. We will gainful activity. We consider your use these provisions whenever they are work to be subsidized if the true value appropriate in connection with your of your work, when compared with the application for supplemental security same or similar work done by income benefits (when we make an ini- unimpaired persons, is less than the ac- tial determination on your application tual amount of earnings paid to you for and throughout any appeals you may your work. For example, when a person request) to determine if you are eligi- with a serious impairment does simple ble. tasks under close and continuous su- (1) Your earnings may show you have pervision, our determination of wheth- done substantial gainful activity. Gen- er that person has done substantial erally, in evaluating your work activ- gainful activity will not be based only ity for substantial gainful activity pur- on the amount of the wages paid. We poses, our primary consideration will will first determine whether the person be the earnings you derive from the received a subsidy; that is, we will de- work activity. We will use your earn- termine whether the person was being ings to determine whether you have paid more than the reasonable value of done substantial gainful activity un- the actual services performed. We will less we have information from you, then subtract the value of the subsidy your employer, or others that shows from the person’s gross earnings to de- that we should not count all of your termine the earnings we will use to de- earnings. The amount of your earnings termine if he or she has done substan- from work you have done (regardless of tial gainful activity. whether it is unsheltered or sheltered (3) If you are working in a sheltered or work) may show that you have engaged special environment. If you are working in substantial gainful activity. Gen- in a sheltered workshop, you may or erally, if you worked for substantial may not be earning the amounts you earnings, we will find that you are able are being paid. The fact that the shel- to do substantial gainful activity. How- tered workshop or similar facility is ever, the fact that your earnings were operating at a loss or is receiving some

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charitable contributions or govern- year 1998. We will then round the re- mental aid does not establish that you sulting amount to the next higher mul- are not earning all you are being paid. tiple of $10 where such amount is a Since persons in military service being multiple of $5 but not of $10 and to the treated for severe impairments usually nearest multiple of $10 in any other continue to receive full pay, we evalu- case. ate work activity in a therapy program or while on limited duty by comparing TABLE 1 it with similar work in the civilian Your monthly work force or on the basis of reason- earnings For months: averaged able worth of the work, rather than on more than: the actual amount of the earnings. (b) Earnings guidelines. (1) General. If In calendar years before 1976 ...... $200 In calendar year 1976 ...... 230 you are an employee, we first consider In calendar year 1977 ...... 240 the criteria in paragraph (a) of this sec- In calendar year 1978 ...... 260 tion and § 416.976, and then the guides In calendar year 1979 ...... 280 In calendar years 1980–1989 ...... 300 in paragraphs (b)(2) and (3) of this sec- January 1990–June 1999 ...... 500 tion. When we review your earnings to July 1999–December 2000 ...... 700 determine if you have been performing substantial gainful activity, we will (3) Earnings that will ordinarily show subtract the value of any subsidized that you have not engaged in substantial earnings (see paragraph (a)(2) of this gainful activity—(i) General. If your av- section) and the reasonable cost of any erage monthly earnings are equal to or impairment-related work expenses less than the amount(s) determined from your gross earnings (see § 416.976). under paragraph (b)(2) of this section The resulting amount is the amount we for the year(s) in which you work, we use to determine if you have done sub- will generally consider that the earn- stantial gainful activity. We will gen- ings from your work as an employee erally average your earnings for com- (including earnings from work in a parison with the earnings guidelines in sheltered workshop or comparable fa- paragraphs (b)(2) and (3) of this section. cility) will show that you have not en- See § 416.974a for our rules on averaging gaged in substantial gainful activity. earnings. We will generally not consider other (2) Earnings that will ordinarily show information in addition to your earn- that you have engaged in substantial ings except in the circumstances de- gainful activity. We will consider that scribed in paragraph (b)(3)(ii) of this your earnings from your work activity section. as an employee (including earnings (ii) When we will consider other infor- from work in a sheltered workshop or a mation in addition to your earnings. Un- comparable facility especially set up less you meet the criteria set forth in for severely impaired persons) show section 416.990 (h) and (i), we will gen- that you have engaged in substantial erally consider other information in gainful activity if: addition to your earnings if there is (i) Before January 1, 2001, they aver- evidence indicating that you may be aged more than the amount(s) in Table engaging in substantial gainful activ- 1 of this section for the time(s) in ity or that you are in a position to con- which you worked. trol when earnings are paid to you or (ii) Beginning January 1, 2001, and the amount of wages paid to you (for each year thereafter, they average example, if you are working for a small more than the larger of: corporation owned by a relative). Ex- (A) The amount for the previous amples of other information we may year, or consider include, whether— (B) An amount adjusted for national (A) Your work is comparable to that wage growth, calculated by multi- of unimpaired people in your commu- plying $700 by the ratio of the national nity who are doing the same or similar average wage index for the year 2 cal- occupations as their means of liveli- endar years before the year for which hood, taking into account the time, en- the amount is being calculated to the ergy, skill, and responsibility involved national average wage index for the in the work; and

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(B) Your work, although signifi- was reduced below the substantial cantly less than that done by gainful activity earnings level. unimpaired people, is clearly worth the (d) Work activity in certain volunteer amounts shown in paragraph (b)(2) of programs. If you work as a volunteer in this section, according to pay scales in certain programs administered by the your community. Federal government under the Domes- (c) The unsuccessful work attempt—(1) tic Volunteer Service Act of 1973 or the General. Ordinarily, work you have Small Business Act, we will not count done will not show that you are able to any payments you receive from these do substantial gainful activity if, after programs as earnings when we deter- working for a period of 6 months or mine whether you are engaging in sub- less, you were forced by your impair- stantial gainful activity. These payment to stop working or to reduce the ments may include a minimal stipend, amount of work you do so that your payments for supportive services such earnings from such work fall below the as housing, supplies and equipment, an substantial gainful activity earnings expense allowance, or reimbursement level in paragraph (b)(2) of this section of out-of-pocket expenses. We will also and you meet the conditions described disregard the services you perform as a in paragraphs (c)(2), (3), (4), and (5) of volunteer in applying any of the sub- this section. stantial gainful activity tests discussed (2) Event that must precede an unsuc- in paragraph (b)(6) of this section. This cessful work attempt. There must be a exclusion from the substantial gainful significant break in the continuity of activity provisions will apply only if your work before we will consider you you are a volunteer in a program ex- to have begun a work attempt that plicitly mentioned in the Domestic later proved unsuccessful. You must Volunteer Service Act of 1973 or the have stopped working or reduced your Small Business Act. Programs explic- work and earnings below the substan- itly mentioned in those Acts include tial gainful activity earnings level be- Volunteers in Service to America, Uni- cause of your impairment or because of versity Year for ACTION, Special Vol- the removal of special conditions that unteer Programs, Retired Senior Vol- were essential to the further perform- unteer Program, Foster Grandparent ance of your work. We explain what we Program, Service Corps of Retired Ex- mean by special conditions in ecutives, and Active Corps of Execu- § 416.973(c). We will consider your prior tives. We will not exclude under this work to be ‘‘discontinued’’ for a signifi- paragraph volunteer work you perform cant period if you were out of work at in other programs or any nonvolunteer least 30 consecutive days. We will also work you may perform, including non- consider your prior work to be ‘‘dis- volunteer work under one of the speci- continued’’ if, because of your impair- fied programs. For civilians in certain ment, you were forced to change to an- government-sponsored job training and other type of work or another em- employment programs, we evaluate the ployer. work activity on a case-by-case basis (3) If you worked 6 months or less. We under the substantial gainful activity will consider work of 6 months or less earnings test. In programs such as to be an unsuccessful work attempt if these, subsidies often occur. We will you stopped working or you reduced subtract the value of any subsidy and your work and earnings below the sub- use the remainder to determine if you stantial gainful activity earnings level have done substantial gainful activity. because of your impairment or because See paragraphs (a)(2)–(3) of this sec- of the removal of special conditions tion. that took into account your impair- (e) Work activity as a member or con- ment and permitted you to work. sultant of an advisory committee estab- (4) If you worked more than 6 months. lished under the Federal Advisory Com- We will not consider work you per- mittee Act (FACA), 5 U.S.C. App. 2. If formed at the substantial gainful activ- you are serving as a member or con- ity earnings level for more than 6 sultant of an advisory committee, months to be an unsuccessful work at- board, commission, council, or similar tempt regardless of why it ended or group established under FACA, we will

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not count any payments you receive stantial gainful activity earnings level from serving on such committees as applies. earnings when we determine whether (c) If there is a significant change in you are engaging in substantial gainful your work pattern or earnings during activity. These payments may include the period of work requiring evalua- compensation, travel expenses, and tion, we will average your earnings special assistance. We also will exclude over each separate period of work to the services you perform as a member determine if any of your work efforts or consultant of an advisory committee were substantial gainful activity. established under FACA in applying any of the substantial gainful activity [65 FR 42790, July 11, 2000] tests discussed in paragraph (b)(6) of this section. This exclusion from the § 416.975 Evaluation guides if you are self-employed. substantial gainful activity provision will apply only if you are a member or (a) If you are a self-employed person. If consultant of an advisory committee you are working or have worked as a specifically authorized by statute, or self-employed person, we will use the by the President, or determined as a provisions in paragraphs (a) through matter of formal record by the head of (d) of this section that are relevant to a federal government agency. This ex- your work activity. We will use these clusion from the substantial gainful ac- provisions whenever they are appro- tivity provisions will not apply if your priate in connection with your applica- service as a member or consultant of tion for supplemental security income an advisory committee is part of your benefits (when we make an initial de- duties or is required as an employee of termination on your application and any governmental or non-govern- throughout any appeals you may re- mental organization, agency, or busi- quest). We will consider your activities ness. and their value to your business to decide whether you have engaged in sub- [46 FR 4871, Jan. 19, 1981, as amended at 48 stantial gainful activity if you are self- FR 21939, May 16, 1983; 49 FR 22274, May 29, 1984; 54 FR 53605, Dec. 29, 1989; 64 FR 18570, employed. We will not consider your Apr. 15, 1999; 64 FR 22903, Apr. 28, 1999; 65 FR income alone because the amount of 42789, July 11, 2000; 65 FR 82911, Dec. 29, 2000; income you actually receive may de- 71 FR 3219, Jan. 20, 2006; 71 FR 66857, Nov. 17, pend on a number of different factors, 2006; 81 FR 71369, Oct. 17, 2016] such as capital investment and profit- sharing agreements. We will generally § 416.974a When and how we will aver- consider work that you were forced to age your earnings. stop or reduce to below substantial (a) To determine your initial eligi- gainful activity after 6 months or less bility for benefits, we will average any because of your impairment as an un- earnings you make during the month successful work attempt. See para- you file for benefits and any succeeding graph (d) of this section. We will evalu- months to determine if you are doing ate your work activity based on the substantial gainful activity. If your value of your services to the business work as an employee or as a self-em- regardless of whether you receive an ployed person was continuous without immediate income for your services. significant change in work patterns or We determine whether you have en- earnings, and there has been no change gaged in substantial gainful activity by in the substantial gainful activity applying three tests. If you have not earnings levels, your earnings will be engaged in substantial gainful activity averaged over the entire period of work under test one, then we will consider requiring evaluation to determine if tests two and three. The tests are as you have done substantial gainful ac- follows: tivity. (1) Test One: You have engaged in (b) If you work over a period of time substantial gainful activity if you during which the substantial gainful render services that are significant to activity earnings levels change, we will the operation of the business and re- average your earnings separately for ceive a substantial income from the each period in which a different sub- business. Paragraphs (b) and (c) of this

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section explain what we mean by sig- children, or others. Miscellaneous du- nificant services and substantial in- ties that ordinarily would not have come for purposes of this test. commercial value would not be consid- (2) Test Two: You have engaged in ered significant. We deduct impair- substantial gainful activity if your ment-related work expenses that have work activity, in terms of factors such not already been deducted in deter- as hours, skills, energy output, effi- mining your net income. Impairment- ciency, duties, and responsibilities, is related work expenses are explained in comparable to that of unimpaired indi- § 416.976. We deduct unincurred business viduals in your community who are in expenses paid for you by another indi- the same or similar businesses as their vidual or agency. An unincurred busi- means of livelihood. ness expense occurs when a sponsoring (3) Test Three: You have engaged in agency or another person incurs re- substantial gainful activity if your sponsibility for the payment of certain work activity, although not com- business expenses, e.g., rent, utilities, parable to that of unimpaired individ- or purchases and repair of equipment, uals, is clearly worth the amount or provides you with equipment, stock, shown in § 416.974(b)(2) when considered or other material for the operation of in terms of its value to the business, or your business. We deduct soil bank when compared to the salary that an payments if they were included as farm owner would pay to an employee to do income. That part of your income re- the work you are doing. maining after we have made all appli- (b) What we mean by significant serv- cable deductions represents the actual ices. (1) If you are not a farm landlord value of work performed. The resulting and you operate a business entirely by amount is the amount we use to deter- yourself, any services that you render mine if you have done substantial gain- are significant to the business. If your ful activity. We will generally average business involves the services of more your income for comparison with the than one person, we will consider you earnings guidelines in §§ 416.974(b)(2) to be rendering significant services if and 416.974(b)(3). See § 416.974a for our you contribute more than half the rules on averaging of earnings. We will total time required for the manage- consider this amount to be substantial ment of the business, or you render if— management services for more than 45 (1) It averages more than the hours a month regardless of the total amounts described in § 416.974(b)(2); or management time required by the busi- (2) It averages less than the amounts ness. described in § 416.974(b)(2) but it is ei- (2) If you are a farm landlord, that is, ther comparable to what it was before you rent farm land to another, we will you became seriously impaired if we consider you to be rendering signifi- had not considered your earnings or is cant services if you materially partici- comparable to that of unimpaired self- pate in the production or the manage- employed persons in your community ment of the production of the things who are in the same or a similar busi- raised on the rented farm. (See ness as their means of livelihood. § 404.1082 of this chapter for an expla- (d) The unsuccessful work attempt—(1) nation of ‘‘material participation’’.) If General. Ordinarily, work you have you were given social security earnings done will not show that you are able to credits because you materially partici- do substantial gainful activity if, after pated in the activities of the farm and working for a period of 6 months or you continue these same activities, we less, you were forced by your impair- will consider you to be rendering sig- ment to stop working or to reduce the nificant services. amount of work you do so that you are (c) What we mean by substantial in- no longer performing substantial gain- come. We deduct your normal business ful activity and you meet the condi- expenses from your gross income to de- tions described in paragraphs (d)(2), (3), termine net income. Once net income and (4) of this section. is determined, we deduct the reason- (2) Event that must precede an unsuc- able value of any significant amount of cessful work attempt. There must be a unpaid help furnished by your spouse, significant break in the continuity of

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your work before we will consider you also need or use the items and services to have begun a work attempt that to carry out daily living functions un- later proved unsuccessful. You must related to your work. Paragraph (b) of have stopped working or reduced your this section explains the conditions for work and earnings below substantial deducting work expenses. Paragraph (c) gainful activity because of your im- of this section describes the expenses pairment or because of the removal of we will deduct. Paragraph (d) of this special conditions which took into ac- section explains when expenses may be count your impairment and permitted deducted. Paragraph (e) of this section you to work. Examples of such special describes how expenses may be allo- conditions may include any significant cated. Paragraph (f) of this section ex- amount of unpaid help furnished by plains the limitations on deducting ex- your spouse, children, or others, or penses. Paragraph (g) of this section unincurred business expenses, as de- explains our verification procedures. scribed in paragraph (c) of this section, (b) Conditions for deducting impair- paid for you by another individual or ment-related work expenses. We will de- agency. We will consider your prior duct impairment-related work ex- work to be ‘‘discontinued’’ for a signifi- penses if— cant period if you were out of work at (1) You are otherwise disabled as de- least 30 consecutive days. We will also fined in §§ 416.905 through 416.907; consider your prior work to be ‘‘dis- (2) The severity of your impair- continued’’ if, because of your impairment(s) requires you to purchase (or ment, you were forced to change to an- rent) certain items and services in other type of work. order to work; (3) If you worked 6 months or less. We (3) You pay the cost of the item or will consider work of 6 months or less service. No deduction will be allowed to be an unsuccessful work attempt if to the extent that payment has been or you stopped working or you reduced will be made by another source. No de- your work and earnings below the sub- duction will be allowed to the extent stantial gainful activity earnings level that you have been, could be, or will be because of your impairment or because reimbursed for such cost by any other of the removal of special conditions source (such as through a private in- that took into account your impair- surance plan, Medicare or Medicaid, or ment and permitted you to work. other plan or agency). For example, if (4) If you worked more than 6 months. you purchase crutches for $80 but you We will not consider work you per- were, could be, or will be reimbursed formed at the substantial gainful activ- $64 by some agency, plan, or program, ity level for more than 6 months to be we will deduct only $16; an unsuccessful work attempt regard- (4) You pay for the item or service in less of why it ended or was reduced accordance with paragraph (d) of this below the substantial gainful activity section; and level. (5) Your payment is in cash (includ- [46 FR 4872, Jan. 19, 1981, as amended at 48 ing checks or other forms of money). FR 21940, May 16, 1983; 49 FR 22274, May 29, Payment in kind is not deductible. 1984; 65 FR 42790, July 11, 2000; 81 FR 71369, (c) What expenses may be deducted—(1) Oct. 17, 2016] Payments for attendant care services. (i) If because of your impairment(s) you § 416.976 Impairment-related work ex- need assistance in traveling to and penses. from work, or while at work you need (a) General. When we figure your assistance with personal functions earnings in deciding if you have done (e.g., eating, toileting) or with work-re- substantial gainful activity, and in de- lated functions (e.g., reading, commu- termining your countable earned in- nicating), the payments you make for come (see § 416.1112(c)(5)), we will sub- those services may be deducted. tract the reasonable costs to you of (ii) If because of your impairment(s) certain items and services which, be- you need assistance with personal func- cause of your impairment(s), you need tions (e.g., dressing, administering and use to enable you to work. The medications) at home in preparation costs are deductible even though you for going to and assistance in returning

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from work, the payments you make for lated equipment are one-hand type- those services may be deducted. writers, telecommunication devices for (iii)(A) We will deduct payments you the deaf and tools specifically designed make to a family member for attend- to accommodate a person’s impair- ant care services only if such person, in ment(s). order to perform the services, suffers (ii) Residential modifications. If your an economic loss by terminating his or impairment(s) requires that you make her employment or by reducing the modifications to your residence, the lo- number of hours he or she worked. cation of your place of work will deter- (B) We consider a family member to mine if the cost of these modifications be anyone who is related to you by will be deducted. If you are employed blood, marriage or adoption, whether away from home, only the cost of or not that person lives with you. changes made outside of your home to (iv) If only part of your payment to a permit you to get to your means of person is for services that come under transportation (e.g., the installation of the provisions of paragraph (c)(1) of an exterior ramp for a wheel-chair con- this section, we will only deduct that fined person or special exterior railings part of the payment which is attrib- or pathways for someone who requires utable to those services. For example, crutches) will be deducted. Costs relat- an attendant gets you ready for work ing to modifications of the inside of and helps you in returning from work, your home will not be deducted. If you which takes about 2 hours a day. The work at home, the costs of modifying rest of his or her 8 hour day is spent the inside of your home in order to cre- cleaning your house and doing your ate a working space to accommodate laundry, etc. We would only deduct your impairment(s) will be deducted to one-fourth of the attendant’s daily the extent that the changes pertain wages as an impairment-related work specifically to the space in which you expense. work. Examples of such changes are (2) Payments for medical devices. If the enlargement of a doorway leading your impairment(s) requires that you into the work space or modification of utilize medical devices in order to the work space to accommodate prob- work, the payments you make for lems in dexterity. However, if you are those devices may be deducted. As used self-employed at home, any cost de- in this subparagraph, medical devices ducted as a business expense cannot be include durable medical equipment deducted as an impairment-related which can withstand repeated use, is work expense. customarily used for medical purposes, (iii) Nonmedical appliances and equip- and is generally not useful to a person ment. Expenses for appliances and in the absence of an illness or injury. equipment which you do not ordinarily Examples of durable medical equip- use for medical purposes are generally ment are wheelchairs, hemodialysis not deductible. Examples of these equipment, canes, crutches, inhalators items are portable room heaters, air and pacemakers. conditioners, humidifiers, dehumidi- (3) Payments for prosthetic devices. If fiers, and electric air cleaners. How- your impairment(s) requires that you ever, expenses for such items may be utilize a prosthetic device in order to deductible when unusual circumstances work, the payments you make for that clearly establish an impairment-re- device may be deducted. A prosthetic lated and medically verified need for device is that which replaces an inter- such an item because it is essential for nal body organ or external body part. the control of your disabling condition, Examples of prosthetic devices are ar- thus enabling you to work. To be con- tificial replacements of arms, legs and sidered essential, the item must be of other parts of the body. such a nature that if it were not avail- (4) Payments for equipment—(i) Work- able to you there would be an imme- related equipment. If your impairment(s) diate adverse impact on your ability to requires that you utilize special equip- function in your work activity. In this ment in order to do your job, the pay- situation, the expense is deductible ments you make for that equipment whether the item is used at home or in may be deducted. Examples of work-re- the working place. An example would

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be the need for an electric air cleaner ices are medical supplies and services by an individual with severe res- not discussed above, and transpor- piratory disease who cannot function tation. in a non-purified air environment. An (ii) Medical supplies and services not item such as an exercycle is not de- described above. We will deduct pay- ductible if used for general physical fit- ments you make for expendable med- ness. If it is prescribed and used as nec- ical supplies, such as incontinence essary treatment of your impairment pads, catheters, bandages, elastic and necessary to enable you to work, stockings, face masks, irrigating kits, we will deduct payments you make to- and disposable sheets and bags. We will ward its cost. also deduct payments you make for (5) Payments for drugs and medical physical therapy which you require be- services. (i) If you must use drugs or cause of your impairment(s) and which medical services (including diagnostic you need in order to work. procedures) to control your impair- (iii) Payments for transportation costs. ment(s), the payments you make for We will deduct transportation costs in them may be deducted. The drugs or these situations: services must be prescribed (or uti- (A) Your impairment(s) requires that lized) to reduce or eliminate symptoms in order to get to work you need a ve- of your impairment(s) or to slow down hicle that has structural or operational its progression. The diagnostic proce- modifications. The modifications must dures must be performed to ascertain be critical to your operation or use of how the impairment(s) is progressing the vehicle and directly related to your or to determine what type of treatment impairment(s). We will deduct the should be provided for the impair- costs of the modifications, but not the ment(s). cost of the vehicle. We will also deduct (ii) Examples of deductible drugs and a mileage allowance for the trip to and medical services are anticonvulsant from work. The allowance will be based drugs to control epilepsy or on data compiled by the Federal High- anticonvulsant blood level monitoring; antidepressant medication for mental way Administration relating to vehicle disorders; medication used to allay the operating costs. side effects of certain treatments; radi- (B) Your impairment(s) requires you ation treatment or chemotherapy for to use driver assistance, taxicabs or cancer patients; corrective surgery for other hired vehicles in order to work. spinal disorders; electroencepha- We will deduct amounts paid to the lograms and brain scans related to a driver and, if your own vehicle is used, disabling epileptic condition; tests to we will also deduct a mileage allow- determine the efficacy of medication ance, as provided in paragraph on a diabetic condition; and immuno- (c)(6)(iii)(A) of this section, for the trip suppressive medications that kidney to and from work. transplant patients regularly take to (C) Your impairment(s) prevents your protect against graft rejection. taking available public transportation (iii) We will only deduct the costs of to and from work and you must drive drugs or services that are directly re- your (unmodified) vehicle to work. If lated to your impairment(s). Examples we can verify through your physician of non-deductible items are routine an- or other sources that the need to drive nual physical examinations, optician is caused by your impairment(s) (and services (unrelated to a disabling vis- not due to the unavailability of public ual impairment) and dental examina- transportation), we will deduct a mile- tions. age allowance as provided in paragraph (6) Payments for similar items and serv- (c)(6)(iii)(A) of this section, for the trip ices—(i) General. If you are required to to and from work. utilize items and services not specified (7) Payments for installing, maintain- in paragraph (c) (1) through (5) of this ing, and repairing deductible items. If the section but which are directly related device, equipment, appliance, etc., that to your impairment(s) and which you you utilize qualifies as a deductible need to work, their costs are deduct- item as described in paragraphs (c)(2), ible. Examples of such items and serv- (3), (4), and (6) of this section, the costs

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directly related to installing, main- deductible. If you make a payment taining and repairing these items are after you stop working, and the pay- also deductible. (The costs which are ment is made in the month you re- associated with modifications to a ve- ceived earned income for work done in hicle are deductible. Except for a mile- the month you used the item, the pay- age allowance, as provided for in para- ment is also deductible. See paragraph graph (c)(6)(iii) of this section, the (e)(4) of this section when purchases costs which are associated with the ve- are made in anticipation of work. hicle itself are not deductible.) (e) How expenses are allocated—(1) Re- (d) When expenses may be deducted—(1) curring expenses. You may pay for serv- Effective date. To be deductible an ex- ices on a regular periodic basis, or you pense must be incurred after November may purchase an item on credit and 30, 1980. An expense may be considered pay for it in regular periodic install- incurred after that date if it is paid ments or you may rent an item. If so, thereafter even though pursuant to a each payment you make for the serv- contract or other arrangement entered ices and each payment you make to- into before December 1, 1980. ward the purchase or rental (including (2) Payments for services. For the pur- interest) is deductible as described in pose of determining SGA, a payment paragraph (d) of this section. you make for services may be deducted Example: B starts work in October 1981 at if the services are received while you which time she purchases a medical device are working and the payment is made at a cost of $4,800 plus interest charges of in a month you are working. We con- $720. Her monthly payments begin in Octo- sider you to be working even though ber. She earns and receives $400 a month. you must leave work temporarily to re- The term of the installment contract is 48 months. No downpayment is made. The ceive the services. For the purpose of monthly allowable deduction for the item determining your SSI monthly pay- would be $115 ($5520 divided by 48) for each ment amount, a payment you make for month of work (for SGA purposes) and for services may be deducted if the pay- each month earned income is received (for ment is made in the month your earned SSI payment purposes) during the 48 months. income is received and the earned in- (2) Nonrecurring expenses. Part or all come is for work done in the month of your expenses may not be recurring. you received the services. If you begin For example, you may make a one- working and make a payment before time payment in full for an item or the month earned income is received, service or make a downpayment. For the payment is also deductible. If you the purpose of determining SGA, if you make a payment after you stop work- are working when you make the paying, and the payment is made in the ment we will either deduct the entire month you received earned income for amount in the month you pay it or al- work done in the month you received locate the amount over a 12 consecu- the services, the payment is also de- tive month period beginning with the ductible. month of payment, whichever you se- (3) Payment for items. For the purpose lect. For the purpose of determining of determining SGA, a payment you your SSI monthly payment amount, if make toward the cost of a deductible you are working in the month you item (regardless of when it is acquired) make the payment and the payment is may be deducted if payment is made in made in a month earned income is re- a month you are working. For the pur- ceived, we will either deduct the entire pose of determining your SSI monthly amount in that month, or we will allo- payment amount, a payment you make cate the amount over a 12 consecutive toward the cost of a deductible item month period, beginning with that (regardless of when it is acquired) may month, whichever you select. If you be deducted if the payment is made in begin working and do not receive the month your earned income is re- earned income in the month you make ceived and the earned income is for the payment, we will either deduct or work done in the month you used the begin allocating the payment amount item. If you begin working and make a in the first month you do receive payment before the month earned in- earned income. If you make a payment come is received, the payment is also for services or items after you stopped

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working, we will deduct the payment if Monthly payments 11/81 it was made in the month you received through 09/82 ...... 1,265 earned income for work done in the 12) 2,465 = month you received the services or $205.42. used the item. Example 2. D, while working, buys a de- Example: A begins working in October 1981 ductible item in July 1981, paying $1,450 and earns and receives $525 a month. In the down. (D earns and receives $500 a month.) same month he purchases and pays for a de- However, his first monthly payment of $125 ductible item at a cost of $250. In this situa- is not due until September 1981. D chooses to tion we could allow a $250 deduction for both have the downpayment allocated. In this sit- SGA and SSI payment purposes for October uation we would allow a deduction of $225 a 1981, reducing A’s earnings below the SGA month for each month of work (for SGA pur- level for that month. poses) and for each month earned income is If A’s earnings had been $15 above the SGA received (for SSI payment purposes) during earnings amount, A probably would select the period July 1981 through June 1982. After the option of projecting the $250 payment June 1982, the deduction amount would be over the 12-month period, October 1981–Sep- the regular monthly payment of $125 for each tember 1982, giving A an allowable deduction month of work (for SGA purposes) and for of $20.83 a month for each month of work (for each month earned income is received (for SGA purposes) and for each month earned in- SSI payment purposes). come is received (for SSI payment purposes) Explanation: during that period. This deduction would re- Downpayment in 07/81 ...... $1,450 duce A’s earnings below the SGA level for 12 Monthly payments 09/81 months. through 06/82 ...... 1,250 (3) Allocating downpayments. If you 12) 2,700 = 225. make a downpayment we will, if you (4) Payments made in anticipation of choose, make a separate calculation work. A payment toward the cost of a for the downpayment in order to pro- deductible item that you made in any vide for uniform monthly deductions. of the 11 months preceding the month In these situations we will determine you started working will be taken into the total payment that you will make account in determining your impair- over a 12 consecutive month period be- ment-related work expenses. When an ginning with the month of the down- item is paid for in full during the 11 payment and allocate that amount months preceding the month you start- over the 12 months. Beginning with the ed working the payment will be allo- 13th month, the regular monthly pay- cated over the 12-consecutive month ment will be deductible. This alloca- period beginning with the month of the tion process will be for a shorter period payment. However, the only portion of if your regular monthly payments will the payment which may be deductible extend over a period of less than 12 is the portion allocated to the month months. work begins and the following months. Example 1. C starts working in October For example, if an item is purchased 3 1981, at which time he purchases special months before the month work began equipment at a cost of $4,800, paying $1,200 and is paid for with a one-time pay- down. The balance of $3,600, plus interest of ment of $600, the deductible amount $540, is to be repaid in 36 installments of $115 would be $450 ($600 divided by 12, multi- a month beginning November 1981. C earns plied by 9). Installment payments (in- and receives $500 a month. He chooses to have the downpayment allocated. In this sit- cluding a downpayment) that you made uation we would allow a deduction of $205.42 for a particular item during the 11 a month for each month of work (for SGA months preceding the month you start- purposes) and for each month earned income ed working will be totaled and consid- is received (for SSI payment purposes) dur- ered to have been made in the month of ing the period October 1981 through Sep- your first payment for that item with- tember 1982. After September 1982, the deduc- in this 11 month period. The sum of tion amount would be the regular monthly these payments will be allocated over payment of $115 for each month of work (for SGA purposes) and for each month earned in- the 12-consecutive month period begin- come is received (for SSI payment purposes) ning with the month of your first pay- during the remaining installment period. ment (but never earlier than 11 months Explanation: before the month work began). How- Downpayment in 10/81 ...... $1,200 ever, the only portion of the total 948

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which may be deductible is the portion not deductible for purposes of this allocated to the month work begins paragraph. and the following months. For exam- (f) Limits on deductions. (1) We will de- ple, if an item is purchased 3 months duct the actual amounts you pay to- before the month work began and is ward your impairment-related work ex- paid for in 3 monthly installments of penses unless the amounts are unrea- $200 each, the total payment of $600 sonable. With respect to durable med- will be considered to have been made in ical equipment, prosthetic devices, the month of the first payment, that medical services, and similar medically is, 3 months before the month work related items and services, we will began. The deductible amount would be apply the prevailing charges under $450 ($600 divided by 12, multiplied by Medicare (part B of title XVIII, Health 9). The amount, as determined by these Insurance for the Aged and Disabled) to formulas, will then be considered to the extent that this information is have been paid in the first month of readily available. Where the Medicare work for the purpose of determining guides are used, we will consider the SGA and in the first month earned in- amount that you pay to be reasonable come is received for the purpose of de- if it is no more than the prevailing termining the SSI monthly payment charge for the same item or service amount. For the purpose of deter- under the Medicare guidelines. If the mining SGA, we will deduct either the amount you actually pay is more than the prevailing charge for the same entire amount in the first month of item under the Medicare guidelines, we work or allocate it over a 12 consecu- will deduct from your earnings the tive month period beginning with the amount you paid to the extent you es- first month of work, whichever you se- tablish that the amount is consistent lect. In the above examples, the indi- with the standard or normal charge for vidual would have the choice of having the same or similar item or service in the entire $450 deducted in the first your community. For items and serv- month of work or of having $37.50 a ices that are not listed in the Medicare month ($450 divided by 12) deducted for guidelines, and for items and services each month that he works over a 12- that are listed in the Medicare guide- consecutive month period, beginning lines but for which such guides cannot with the first month of work. For the be used because the information is not purpose of determining the SSI pay- readily available, we will consider the ment amount, we will either deduct the amount you pay to be reasonable if it entire amount in the first month does not exceed the standard or normal earned income is received or allocate it charge for the same or similar item(s) over a 12-consecutive month period be- or service(s) in your community. ginning with the first month earned in- (2) The decision as to whether you come is received, whichever you select. performed substantial gainful activity In the above examples, the individual in a case involving impairment-related would have the choice of having the en- work expenses for items or services tire $450 deducted in the first month necessary for you to work generally earned income is received or of having will be based upon your ‘‘earnings’’ and $37.50 a month ($450 divided by 12) de- not on the value of ‘‘services’’ you ren- ducted for each month he receives dered. (See §§ 416.974(b)(6) (i) and (ii), earned income (for work) over a 12-con- and 416.975(a)). This is not necessarily secutive month period, beginning with so, however, if you are in a position to the first month earned income is re- control or manipulate your earnings. ceived. To be deductible the payments (3) The amount of the expenses to be must be for durable items such as med- deducted must be determined in a uni- ical devices, prostheses, work-related form manner in both the disability in- equipment, residential modifications, surance and SSI programs. The amount nonmedical appliances and vehicle of deductions must, therefore, be the modifications. Payments for services same for determinations as to substan- and expendable items such as drugs, tial gainful activity under both pro- oxygen, diagnostic procedures, medical grams. The deductions that apply in supplies and vehicle operating costs are determining the SSI payment amounts,

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though determined in the same manner § 416.982 Blindness under a State plan. as for SGA determinations, are applied We shall also consider you blind for so that they correspond to the timing the purposes of payment of supple- of the receipt of the earned income to mental security income benefits if— be excluded. (a) You were found to be blind as de- (4) No deduction will be allowed to fined under a State plan approved the extent that any other source has under title X or title XVI of the Social paid or will pay for an item or service. Security Act, as in effect for October No deduction will be allowed to the ex- 1972; tent that you have been, could be, or (b) You received aid under the State will be, reimbursed for payments you plan because of your blindness for the made. (See paragraph (b)(3) of this sec- month of December 1973; and tion.) (c) You continue to be blind as de- (5) The provisions described in the fined under the State plan. foregoing paragraphs of this section § 416.983 How we evaluate statutory are effective with respect to expenses blindness. incurred on and after December 1, 1980, although expenses incurred after No- We will find that you are blind if you vember 1980 as a result of contractual are statutorily blind within the meaning or other arrangements entered into be- of § 416.981. For us to find that you are statutorily blind, it is not necessary— fore December 1980, are deductible. For (a) That your blindness meet the du- months before December 1980 we will ration requirement; or deduct impairment-related work ex- (b) That you be unable to do any sub- penses from your earnings only to the stantial gainful activity. extent they exceeded the normal work- related expenses you would have had if § 416.984 If you are statutorily blind you did not have your impairment(s). and still working. We will not deduct expenses, however, There is no requirement that you be for those things which you needed even unable to work in order for us to find when you were not working. that you are blind. However, if you are (g) Verification. We will verify your working, your earnings will be consid- need for items or services for which de- ered under the income and resources ductions are claimed, and the amount rules in subparts K and L of this part. of the charges for those items or serv- This means that if your income or re- ices. You will also be asked to provide sources exceed the limitations, you proof that you paid for the items or will not be eligible for benefits, even services. though you are blind.

[48 FR 21940, May 16, 1983, as amended at 65 § 416.985 How we evaluate other visual FR 42791, July 11, 2000] impairments.

BLINDNESS If you are not blind as defined in the law, we will evaluate a visual impair- § 416.981 Meaning of blindness as de- ment the same as we evaluate other fined in the law. impairments in determining disability. Although you will not qualify for bene- We will consider you blind under the fits on the basis of blindness, you may law for payment of supplemental secu- still be eligible for benefits if we find rity income benefits if we determine that you are disabled as defined in that you are statutorily blind. Statu- §§ 416.905 through 416.907. tory blindness is central visual acuity of 20/200 or less in the better eye with § 416.986 Why and when we will find the use of a correcting lens. An eye that you are no longer entitled to which has a limitation in the field of benefits based on statutory blind- vision so that the widest diameter of ness. the visual field subtends an angle no (a) If your vision does not meet the defi- greater than 20 degrees is considered to nition of blindness. If you become enti- have a central visual acuity of 20/200 or tled to payments as a statutorily blind less. person and your statutory blindness

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ends, your eligibility for payments gen- we will give you a chance to give us erally will end 2 months after your your reasons why we should not stop blindness ends. We will find that your payment. Subpart M of this part de- statutory blindness has ended begin- scribes your rights and the procedures ning with the earliest of the following we will follow. months— (1) The month your vision, based on [45 FR 55621, Aug. 20, 1980, as amended at 50 FR 50137, Dec. 6, 1985; 51 FR 7603, Feb. 28, current medical evidence, does not 1986; 59 FR 1636, Jan. 12, 1994] meet the definition of blindness and you were disabled only for a specified DISABILITY REDETERMINATIONS FOR period of time in the past; INDIVIDUALS WHO ATTAIN AGE 18 (2) The month your vision based on current medical evidence, does not § 416.987 Disability redeterminations meet the definition of blindness, but for individuals who attain age 18. not earlier than the month in which we (a) Who is affected by this section? (1) mail you a notice saying that the in- We must redetermine your eligibility if formation we have shows that you are you are eligible for SSI disability bene- not now blind; or fits and: (3) The first month in which you fail (i) You are at least 18 years old; and to follow prescribed treatment that can (ii) You became eligible for SSI dis- restore your ability to work (see ability benefits as a child (i.e., before § 416.930). you attained age 18); and (b) If you were found blind as defined (iii) You were eligible for such bene- in a State plan. If you become eligible fits for the month before the month in for payments because you were blind as which you attained age 18. defined in a State plan, we will find that your blindness has ended begin- (2) We may find that you are not now ning with the first month in which disabled even though we previously your vision, as shown by medical or found that you were disabled. other evidence, does not meet the cri- (b) What are the rules for age-18 rede- teria of the appropriate State plan or terminations? When we redetermine the first month in which your vision your eligibility, we will use the rules does not meet the definition of statu- for adults (individuals age 18 or older) tory blindness (§ 416.981), whichever is who file new applications explained in later, and in neither event earlier than § 416.920(c) through (h). We will not use the month in which we mail you a no- the rule in § 416.920(b) for people who tice saying that we have determined are doing substantial gainful activity, that you are not now blind under a and we will not use the rules in § 416.994 State plan or not now statutorily for determining whether disability con- blind, as appropriate. tinues. If you are working and we find (c) If you do not cooperate with us. If that you are disabled under § 416.920(d) you are asked to give us medical or or (g), we will apply the rules in other evidence or to go for a physical §§ 416.260ff. or mental examination by a certain (c) When will my eligibility be redeter- date, we will find that your blindness mined? We will redetermine your eligi- ended if you fail, without good cause, bility either during the 1-year period to do what we ask. Section 416.1411 ex- beginning on your 18th birthday or, in plains the factors we consider and how lieu of a continuing disability review, we will determine generally whether whenever we determine that your case you have good cause for failure to co- is subject to redetermination under the operate. In addition, § 416.918 discusses Act. how we determine whether you have (d) Will I be notified?—(1) We will no- good cause for failing to attend a con- tify you in writing before we begin your sultative examination. The month in disability redetermination. We will tell which your blindness ends will be the you: month in which you fail to do what we (i) That we are redetermining your asked. eligibility for payments; (d) Before we stop your payments. Be- (ii) Why we are redetermining your fore we stop payment of your benefits eligibility;

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(iii) Which disability rules we will CONTINUING OR STOPPING DISABILITY OR apply; BLINDNESS (iv) That our review could result in a finding that your SSI payments based § 416.988 Your responsibility to tell us of events that may change your dis- on disability could be terminated; ability or blindness status. (v) That you have the right to submit medical and other evidence for our con- If you are entitled to payments be- sideration during the redetermination; cause you are disabled or blind, you and should promptly tell us if— (a) Your condition improves; (vi) That we will notify you of our de- (b) Your return to work; termination, your right to appeal the (c) You increase the amount of your determination, and your right to re- work; or quest continuation of benefits during (d) Your earnings increase. appeal. (2) We will notify you in writing of the § 416.989 We may conduct a review to results of the disability redetermination. find out whether you continue to be The notice will tell you what our deter- disabled. mination is, the reasons for our deter- After we find that you are disabled, mination, and your right to request re- we must evaluate your impairment(s) consideration of the determination. If from time to time to determine if you our determination shows that we are still eligible for payments based on should stop your SSI payments based disability. We call this evaluation a on disability, the notice will also tell continuing disability review. We may you of your right to request that your begin a continuing disability review for benefits continue during any appeal. any number of reasons including your Our initial disability redetermination failure to follow the provisions of the will be binding unless you request a re- Social Security Act or these regula- consideration within the stated time tions. When we begin such a review, we period or we revise the initial deter- will notify you that we are reviewing mination. your eligibility for payments, why we (e) When will we find that your dis- are reviewing your eligibility, that in ability ended? If we find that you are medical reviews the medical improve- not disabled, we will find that your dis- ment review standard will apply, that ability ended in the earliest of: our review could result in the termination of your payments, and that you (1) The month the evidence shows have the right to submit medical and that you are not disabled under the other evidence for our consideration rules in this section, but not earlier during the continuing disability re- than the month in which we mail you view. In doing a medical review, we a notice saying that you are not dis- will develop a complete medical his- abled. tory of at least the preceding 12 (2) The first month in which you months in any case in which a deter- failed without good cause to follow pre- mination is made that you are no scribed treatment under the rules in longer under a disability. If this review § 416.930. shows that we should stop your pay- (3) The first month in which you ments, we will notify you in writing failed without good cause to do what and give you an opportunity to appeal. we asked. Section 416.1411 explains the In § 416.990 we describe those events factors we will consider and how we that may prompt us to review whether will determine generally whether you you continue to be disabled. have good cause for failure to cooper- [51 FR 16826, May 7, 1986] ate. In addition, § 416.918 discusses how we determine whether you have good § 416.989a We may conduct a review to cause for failing to attend a consult- find out whether you continue to be ative examination. blind. [65 FR 54789, Sept. 11, 2000, as amended at 70 After we find that you are blind, we FR 36508, June 24, 2005; 77 FR 43495, July 25, must evaluate your impairment(s) 2012] from time to time to determine if you

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are still eligible for payments based on we will start a continuing disability re- blindness. We call this evaluation a view if— continuing disability review. We may (1) You have been scheduled for a begin a continuing disability review for medical improvement expected diary any number of reasons including your review; failure to follow the provisions of the (2) You have been scheduled for a Social Security Act or these regula- periodic review (medical improvement tions. When we begin such a review, we possible or medical improvement not will notify you that we are reviewing expected) in accordance with the provi- your eligibility for payments, why we sions of paragraph (d) of this section; are reviewing your eligibility, that our (3) We need a current medical or review could result in the termination other report to see if your disability of your payments, and that you have continues. (This could happen when, the right to submit medical and other for example, an advance in medical evidence for our consideration during technology, such as improved treat- the continuing disability review. In ment for Alzheimer’s disease, or a doing a medical review, we will develop change in vocational therapy or tech- a complete medical history of at least nology raises a disability issue); the preceding 12 months in any case in (4) You return to work; which a determination is made that (5) Substantial earnings are reported you are no longer blind. If this review to your wage record; shows that we should stop your pay- (6) You tell us that— ments, we will notify you in writing (i) You have recovered from your dis- and give you an opportunity to appeal. ability; or In § 416.990 we describe those events (ii) You have returned to work; that may prompt us to review whether (7) Your State Vocational Rehabilita- you continue to be blind. tion Agency tells us that— [51 FR 16826, May 7, 1986] (i) The services have been completed; or § 416.990 When and how often we will (ii) You are now working; or conduct a continuing disability re- (iii) You are able to work; view. (8) Someone in a position to know of (a) General. We conduct continuing your physical or mental condition tells disability reviews to determine wheth- us any of the following, and it appears er or not you continue to meet the dis- that the report could be substantially ability or blindness requirements of correct: the law. Payment ends if the medical (i) You are not disabled or blind; or or other evidence shows that you are (ii) You are not following prescribed not disabled or blind as determined treatment; or under the standards set out in section (iii) You have returned to work; or 1614(a) of the Social Security Act if you (iv) You are failing to follow the pro- receive benefits based on disability or visions of the Social Security Act or § 416.986 of this subpart if you receive these regulations; benefits based on blindness. In para- (9) Evidence we receive raises a ques- graphs (b) through (g) of this section, tion whether your disability or blind- we explain when and how often we con- ness continues; duct continuing disability reviews for (10) You have been scheduled for a vo- most individuals. In paragraph (h) of cational reexamination diary review; this section, we explain special rules or for some individuals who are partici- (11) By your first birthday, if you are pating in the Ticket to Work program. a child whose low birth weight was a In paragraph (i) of this section, we ex- contributing factor material to our de- plain special rules for some individuals termination that you were disabled; who work and have received social se- i.e., whether we would have found you curity benefits as well as supplemental disabled if we had not considered your security income payments. low birth weight. However, we will con- (b) When we will conduct a continuing duct your continuing disability review disability review. Except as provided in later if at the time of our initial deter- paragraphs (h) and (i) of this section, mination that you were disabled:

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(i) We determine that you have an necessary to meet the Listing in appen- impairment that is not expected to im- dix 1 of subpart P of part 404 of this prove by your first birthday; and chapter. (ii) We schedule you for a continuing (3) Diffuse pulmonary fibrosis in an disability review after your first birth- individual age 55 or over which has day. reached the level of severity necessary (c) Definitions. As used in this sec- to meet the Listing in appendix 1 of tion— subpart P of part 404 of this chapter. Medical improvement expected diary— (4) Amputation of leg at hip. refers to a case which is scheduled for Nonpermanent impairment—refers to a review at a later date because the indi- case in which any medical improve- vidual’s impairment(s) is expected to ment in the person’s impairment(s) is improve. Generally, the diary period is possible. This means an impairment for set for not less than 6 months or for which improvement cannot be pre- not more than 18 months. Examples of dicted based on current experience and cases likely to be scheduled for medical the facts of the particular case but improvement expected diary are frac- which is not at the level of severity of tures and cases in which corrective sur- an impairment that is considered per- gery is planned and recovery can be an- manent. Examples of nonpermanent ticipated. impairments are: Regional enteritis, Permanent impairment—medical im- hyperthyroidism, and chronic ulcera- provement not expected—refers to a case tive colitis. in which any medical improvement in Vocational reexamination diary—refers a person’s impairment(s) is not ex- to a case which is scheduled for review pected. This means an extremely se- at a later date because the individual is vere condition determined on the basis undergoing vocational therapy, train- of our experience in administering the ing or an educational program which disability programs to be at least stat- may improve his or her ability to work ic, but more likely to be progressively so that the disability or blindness re- disabling either by itself or by reason quirement of the law is no longer met. of impairment complications, and un- Generally, the diary period will be set likely to improve so as to permit the for the length of the training, therapy, individual to engage in substantial or program of education. gainful activity or, if you are a child, (d) Frequency of review. If your im- unlikely to improve to the point that pairment is expected to improve, gen- you will no longer have marked and se- erally we will review your continuing vere functional limitations. The inter- eligibility for payments based on dis- action of the individual’s age, impair- ability or blindness at intervals from 6 ment consequences and the lack of re- months to 18 months following our cent attachment to the labor market most recent decision. Our notice to you may also be considered in determining about the review of your case will tell whether an impairment is permanent. you more precisely when the review Improvement which is considered tem- will be conducted. If your disability is porary under § 416.994(b)(2)(iv)(D) or not considered permanent but is such § 416.994(c)(2)(iv), as appropriate, will that any medical improvement in your not be considered in deciding if an im- impairment(s) cannot be accurately pairment is permanent. Examples of predicted, we will review your con- permanent impairments taken from tinuing eligibility for payments at the list contained in our other written least once every 3 years. If your dis- guidelines which are available for pub- ability is considered permanent, we lic review are as follows and are not in- will review your continuing eligibility tended to be all inclusive: for payments no less frequently than (1) Parkinsonian Syndrome which once every 7 years but no more fre- has reached the level of severity nec- quently than once every 5 years. Re- essary to meet the Listing in appendix gardless of your classification we will 1 of subpart P or part 404 of this chap- conduct an immediate continuing dis- ter. ability review if a question of con- (2) Amyotrophic Lateral Sclerosis tinuing disability is raised pursuant to which has reached the level of severity paragraph (b) of this section.

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(e) Change in classification of impair- formed by the Social Security Dis- ment. If the evidence developed during ability Benefits Reform Act (Pub. L. a continuing disability review dem- 98–460), and new disability claims work- onstrates that your impairment has loads are accomplished within avail- improved, is expected to improve, or able medical and other resources in the has worsened since the last review, we State agency and that such reviews are may reclassify your impairment to re- done carefully and accurately. flect this change in severity. A change (h) If you are participating in the Tick- in the classification of your impair- et to Work program. If you are partici- ment will change the frequency with pating in the Ticket to Work program, which we will review your case. We we will not start a continuing dis- may also reclassify certain impair- ability review during the period in ments because of improved tests, treat- which you are using a ticket. See sub- ment, and other technical advances part C of part 411 of this chapter. concerning those impairments. (i) If you are working and have received (f) Review after administrative appeal. social security disability benefits for at If you were found eligible to receive or least 24 months—(1) General. Notwith- to continue to receive, payments on standing the provisions in paragraphs the basis of a decision by an adminis- (b)(4), (b)(5), (b)(6)(ii), (b)(7)(ii), and trative law judge, the Appeals Council (b)(8)(iii) of this section, we will not or a Federal court, we will not conduct start a continuing disability review a continuing disability review earlier based solely on your work activity if— than 3 years after that decision unless (i) You are currently entitled to dis- your case should be scheduled for a ability insurance benefits as a disabled medical improvement expected or vo- worker, child’s insurance benefits cational reexamination diary review or based on disability, or widow’s or wid- a question of continuing disability is ower’s insurance benefits based on dis- raised pursuant to paragraph (b) of this ability under title II of the Social Se- section. curity Act (see subpart D of part 404 of (g) Waiver of timeframes. All cases in- this chapter); and volving a nonpermanent impairment (ii) You have received such benefits will be reviewed by us at least once for at least 24 months (see paragraph every 3 years unless we, after consulta- (i)(2) of this section). tion with the State agency, determine (2) The 24-month requirement. (i) The that the requirement should be waived months for which you have actually re- to ensure that only the appropriate ceived disability insurance benefits as number of cases are reviewed. The ap- a disabled worker, child’s insurance propriate number of cases to be re- benefits based on disability, or widow’s viewed is to be based on such consider- or widower’s insurance benefits based ations as the backlog of pending re- on disability that you were due under views, the projected number of new ap- title II of the Social Security Act, or plications, and projected staffing lev- for which you have constructively re- els. Such waiver shall be given only ceived such benefits, will count for the after good faith effort on the part of 24-month requirement under paragraph the State to meet staffing require- (i)(1)(ii) of this section, regardless of ments and to process the reviews on a whether the months were consecutive. timely basis. Availability of inde- We will consider you to have construc- pendent medical resources may also be tively received a benefit for a month a factor. A waiver in this context refers for purposes of the 24-month require- to our administrative discretion to de- ment if you were otherwise due a social termine the appropriate number of security disability benefit for that cases to be reviewed on a State by month and your monthly benefit was State basis. Therefore, your continuing withheld to recover an overpayment. disability review may be delayed Any month for which you were entitled longer than 3 years following our origi- to social security disability benefits nal decision or other review under cer- but for which you did not actually or tain circumstances. Such a delay would constructively receive a benefit pay- be based on our need to ensure that ment will not be counted for the 24- backlogs, reviews required to be per- month requirement. Months for which

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your social security disability benefits ments of paragraph (i)(1) of this section are continued under § 404.1597a pending as of the date of the start of your con- reconsideration and/or a hearing before tinuing disability review and that the an administrative law judge on a med- start of the review was erroneous; and ical cessation determination will not (ii) We receive the evidence within 12 be counted for the 24-month require- months of the date of the notice of the ment. Months for which you received initial determination of medical ces- only supplemental security income sation. payments will not be counted for the [51 FR 16826, May 7, 1986, as amended at 62 24-month requirement. FR 6430, Feb. 11, 1997; 65 FR 54790, Sept. 11, (ii) In determining whether para- 2000; 71 FR 66858, Nov. 17, 2006] graph (i)(1) of this section applies, we consider whether you have received § 416.991 If your medical recovery was disability insurance benefits as a dis- expected and you returned to work. abled worker, child’s insurance bene- If your impairment was expected to fits based on disability, or widow’s or improve and you returned to full-time widower’s insurance benefits based on work with no significant medical limi- disability under title II of the Social tations and acknowledge that medical Security Act for at least 24 months as improvement has occurred, we may of the date on which we start a con- find that your disability ended in the tinuing disability review. For purposes month you returned to work. Unless of this provision, the date on which we there is evidence showing that your start a continuing disability review is disability has not ended, we will use the date on the notice we send you that the medical and other evidence already tells you that we are beginning to rein your file and the fact that you review your disability case. turned to full-time work without sig- (3) When we may start a continuing dis- nificant limitations to determine that ability review even if you have received you are no longer disabled. social security disability benefits for at least 24 months. Even if you meet the Example: Evidence obtained during the processing of your claim showed that you requirements of paragraph (i)(1) of this had an impairment that was expected to im- section, we may still start a continuing prove about 18 months after your disability disability review for a reason(s) other began. We, therefore, told you that your than your work activity. We may start claim would be reviewed again at that time. a continuing disability review if we However, before the time arrived for your have scheduled you for a periodic rescheduled medical re-examination, you told view of your continuing disability, we us that you had returned to work and your need a current medical or other report impairment had improved. We reviewed your claim immediately and found that, in the to see if your disability continues, we 16th month after your disability began, you receive evidence which raises a ques- returned to full-time work without any sig- tion as to whether your disability or nificant medical restrictions. Therefore, we blindness continues, or you fail to fol- would find that your disability ended in the low the provisions of the Social Secu- first month you returned to full-time work. rity Act or these regulations. For ex- [50 FR 50137, Dec. 6, 1985, as amended at 65 ample, we will start a continuing dis- FR 42791, July 11, 2000] ability review when you have been scheduled for a medical improvement § 416.992 What happens if you fail to expected diary review, and we may comply with our request for infor- start a continuing disability review if mation. you failed to report your work to us. We will suspend your payments be- (4) Erroneous start of the continuing fore we make a determination regard- disability review. If we start a con- ing your continued eligibility for dis- tinuing disability review based solely ability payments if you fail to comply, on your work activity that results in a without good cause (see § 416.1411), with medical cessation determination, we our request for information for your will vacate the medical cessation de- continuing disability review or age-18 termination if— redetermination. The suspension is ef- (i) You provide us evidence that es- fective with the month in which it is tablishes that you met the require- determined in accordance with

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§ 416.1322 that your eligibility for dis- source evidence. See § 416.912(b)(1)(ii). ability payments has ended due to your See § 416.912(c). failure to comply with our request for (c) When we will purchase a consult- necessary information. When we have ative examination. A consultative exam- received the information, we will rein- ination may be purchased when we state your payments for any previous need additional evidence to determine month for which they are otherwise whether or not your disability con- payable, and continue with the CDR or tinues. As a result, we may ask you, age-18 redetermination process. We will upon our request and reasonable no- terminate your eligibility for pay- tice, to undergo consultative examina- ments following 12 consecutive months tions and tests to help us determine if of payment suspension as discussed in you are still disabled. See § 416.917. We § 416.1335. will decide whether or not to purchase a consultative examination in accord- [71 FR 60823, Oct. 17, 2006] ance with the standards in §§ 416.919a § 416.992a [Reserved] through 416.919b. [56 FR 36970, Aug. 1, 1991, as amended at 65 § 416.993 Medical evidence in con- FR 16815, Mar. 30, 2000; 82 FR 5882, Jan. 18, tinuing disability review cases. 2017] (a) General. If you are entitled to benefits because you are disabled, we will § 416.994 How we will determine have your case file with the supporting whether your disability continues or ends, disabled adults. medical evidence previously used to establish or continue your entitlement. (a) General. There is a statutory re- Generally, therefore, the medical evi- quirement that, if you are entitled to dence we will need for a continuing dis- disability benefits, your continued en- ability review will be that required to titlement to such benefits must be re- make a current determination or deci- viewed periodically. Our rules for de- sion as to whether you are still dis- ciding whether your disability con- abled, as defined under the medical im- tinues are set forth in paragraph (b) of provement review standard. See this section. Additional rules apply if §§ 416.987 and 416.994. you were found disabled under a State (b) Obtaining evidence from your med- plan, as set forth in paragraph (c) of ical sources. You must provide us with this section. reports from your physician, psycholo- (b) Disabled persons age 18 or over gist, or others who have treated or (adults). If you are entitled to dis- evaluated you, as well as any other evi- ability benefits as a disabled person dence that will help us determine if age 18 or over (adult) there are a num- you are still disabled. See § 416.912. You ber of factors we consider in deciding must have a good reason for not giving whether your disability continues. We us this information or we may find must determine if there has been any that your disability has ended. See medical improvement in your impair- § 416.994(e)(2). lf we ask you, you must ment(s) and, if so, whether this medical contact your medical sources to help improvement is related to your ability us get the medical reports. We will to work. If your impairment(s) has not make every reasonable effort to help so medically improved, we must con- you in getting medical reports when sider whether one or more of the excep- you give us permission to request them tions to medical improvement applies. from your physician, psychologist, or If medical improvement related to other medical sources. See your ability to work has not occurred § 416.912(b)(1)(i) concerning what we and no exception applies, your benefits mean by every reasonable effort. In will continue. Even where medical im- some instances, such as when a source provement related to your ability to is known to be unable to provide cer- work has occurred or an exception ap- tain tests or procedures or is known to plies, in most cases, (see paragraph be nonproductive or uncooperative, we (b)(4) of this section for exceptions) we may order a consultative examination must also show that you are currently while awaiting receipt of medical able to engage in substantial gainful

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activity before we can find that you there has been a decrease in the severity of are no longer disabled. your impairment as documented by the cur- (1) Terms and definitions. There are rent symptoms and signs reported by your several terms and definitions which are physician. Although your impairment is sub- important to know in order to under- ject to temporary remissions and exacerbations, the improvement that has occurred stand how we review whether your dis- has been sustained long enough to permit a ability continues. In addition, see para- finding of medical improvement. We would graph (b)(8) of this section if you work then determine if this medical improvement during your current period of eligi- is related to your ability to work. bility based on disability or during certain other periods. (ii) Medical improvement not related to (i) Medical improvement. Medical im- ability to do work. Medical improvement provement is any decrease in the med- is not related to your ability to work if ical severity of your impairment(s) there has been a decrease in the sever- which was present at the time of the ity of the impairment(s) as defined in most recent favorable medical decision paragraph (b)(1)(i) of this section, that you were disabled or continued to present at the time of the most recent be disabled. A determination that there favorable medical decision, but no in- has been a decrease in medical severity crease in your functional capacity to must be based on changes (improve- do basic work activities as defined in ment) in the symptoms, signs, or lab- paragraph (b)(1)(iv) of this section. If oratory findings associated with your there has been any medical improve- impairment(s). ment in your impairment(s), but it is not related to your ability to do work Example 1: You were awarded disability benefits due to a herniated nucleus pulposus. and none of the exceptions applies, At the time of our prior decision granting your benefits will be continued. you benefits you had had a laminectomy. Example: You are 65 inches tall and Postoperatively, a myelogram still shows weighed 246 pounds at the time your dis- evidence of a persistent deficit in your lum- bar spine. You had pain in your back, and ability was established. You had venous in- pain and a burning sensation in your right sufficiency and persistent edema in your foot and leg. There were no muscle weakness legs. At the time, your ability to do basic or neurological changes and a modest de- work activities was affected because you crease in motion in your back and leg. When were able to sit for 6 hours, but were able to we reviewed your claim your medical source stand or walk only occasionally. At the time who has treated you reported that he or she of our continuing disability review, you had had seen you regularly every 2 to 3 months undergone a vein stripping operation. You for the past 2 years. No further myelograms now weigh 220 pounds and have intermittent had been done, complaints of pain in the edema. You are still able to sit for 6 hours at back and right leg continued especially on a time and to stand or work only occasion- sitting or standing for more than a short pe- ally although you report less discomfort on riod of time. Your doctor further reported a walking. Medical improvement has occurred moderately decreased range of motion in because there has been a decrease in the se- your back and right leg, but again no muscle verity of the existing impairment as shown atrophy or neurological changes were re- by your weight loss and the improvement in ported. Medical improvement has not oc- your edema. This medical improvement is curred because there has been no decrease in not related to your ability to work, however, the severity of your back impairment as because your functional capacity to do basic shown by changes in symptoms, signs or lab- work activities (i.e., the ability to sit, stand oratory findings. and walk) has not increased. Example 2: You were awarded disability benefits due to rheumatoid arthritis. At the (iii) Medical improvement that is re- time, laboratory findings were positive for lated to ability to do work. Medical im- this condition. Your doctor reported per- provement is related to your ability to sistent swelling and tenderness of your fin- work if there has been a decrease in the gers and wrists and that you complained of severity, as defined in paragraph joint pain. Current medical evidence shows (b)(1)(i) of this section, of the impair- that while laboratory tests are still positive ment(s) present at the time of the most for rheumatoid arthritis, your impairment has responded favorably to therapy so that recent favorable medical decision and for the last year your fingers and wrists have an increase in your functional capacity not been significantly swollen or painful. to do basic work activities as discussed Medical improvement has occurred because in paragraph (b)(1)(iv) of this section. A

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determination that medical improve- part 404 of this chapter (see paragraph ment related to your ability to do work (b)(2)(iii)(A) of this section). In fact, you no has occurred does not, necessarily, longer have an impairment which is severe mean that your disability will be found (see § 416.921) and your disability will be found to have ended. to have ended unless it is also shown that you are currently able to engage (iv) Functional capacity to do basic in substantial gainful activity as dis- work activities. Under the law, discussed in paragraph (b)(1)(v) of this ability is defined, in part, as the inabil- section. ity to do any substantial gainful activ- Example 1: You have a back impairment ity by reason of any medically deter- and had a laminectomy to relieve the nerve minable physical or mental impair- root impingement and weakness in your left ment(s). In determining whether you leg. At the time of our prior decision, basic are disabled under the law, we must work activities were affected because you measure, therefore, how and to what were able to stand less than 6 hours, and sit extent your impairment(s) has affected no more than 1⁄2 hour at a time. You had a your ability to do work. We do this by successful fusion operation on your back looking at how your functional capac- about 1 year before our review of your entitlement. At the time of our review, the ity for doing basic work activities has weakness in your leg has decreased. Your been affected. Basic work activities functional capacity to perform basic work means the abilities and aptitudes nec- activities now is unimpaired because you essary to do most jobs. Included are now have no limitation on your ability to exertional abilities such as walking, sit, walk, or stand. Medical improvement has standing, pushing, pulling, reaching occurred because there has been a decrease and carrying, and nonexertional abili- in the severity of your impairment as demonstrated by the decreased weakness in your ties and aptitudes such as seeing, hear- leg. This medical improvement is related to ing, speaking, remembering, using your ability to work because there has also judgment, dealing with changes and been an increase in your functional capacity dealing with both supervisors and fel- to perform basic work activities (or residual low workers. A person who has no im- functional capacity) as shown by the absence pairment(s) would be able to do all of limitation on your ability to sit, walk, or basic work activities at normal levels; stand. Whether or not your disability is he or she would have an unlimited found to have ended, however, will depend on our determination as to whether you can functional capacity to do basic work currently engage in substantial gainful ac- activities. Depending on its nature and tivity. severity, an impairment will result in Example 2: You were injured in an auto- some limitation to the functional ca- mobile accident receiving a compound frac- pacity to do one or more of these basic ture to your right femur and a fractured pel- work activities. Diabetes, for example, vis. When you applied for disability benefits can result in circulatory problems 10 months after the accident your doctor re- which could limit the length of time a ported that neither fracture had yet achieved solid union based on his clinical ex- person could stand or walk and damage amination. X-rays supported this finding. to his or her eyes as well, so that the Your doctor estimated that solid union and a person also had limited vision. What a subsequent return to full weight bearing person can still do despite an impair- would not occur for at least 3 more months. ment, is called his or her residual func- At the time of our review 6 months later, tional capacity. How the residual func- solid union had occurred and you had been tional capacity is assessed is discussed returned to weight-bearing for over a month. in more detail in § 416.945. Unless an Your doctor reported this and the fact that your prior fractures no longer placed any impairment is so severe that it is limitation on your ability to walk, stand, deemed to prevent you from doing sub- lift, etc., and, that in fact, you could return stantial gainful activity (see §§ 416.925 to fulltime work if you so desired. and 416.926) it is this residual func- Medical improvement has occurred because tional capacity that is used to deter- there has been a decrease in the severity of mine whether you can still do your your impairments as shown by X-ray and past work or, in conjunction with your clinical evidence of solid union and your return to full weight-bearing. This medical im- age, education and work experience, provement is related to your ability to work any other work. because you no longer meet the same listed (A) A decrease in the severity of an impairment in appendix 1 of subpart P of impairment as measured by changes

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(improvement) in symptoms, signs or a long period of disability will be con- laboratory findings can, if great sidered. In some instances where avail- enough, result in an increase in the able evidence does not resolve what functional capacity to do work activi- you can or cannot do on a sustained ties. Vascular surgery (e.g., femoro- basis, we will provide special work popliteal bypass) may sometimes re- evaluations or other appropriate test- duce the severity of the circulatory ing. complications of diabetes so that bet- (v) Ability to engage in substantial ter circulation results and the person gainful activity. In most instances, we can stand or walk for longer periods. must show that you are able to engage When new evidence showing a change in substantial gainful activity before in symptoms, signs and laboratory your benefits are stopped. When doing findings establishes that both medical this, we will consider all your current improvement has occurred and your impairments not just that impair- functional capacity to perform basic ment(s) present at the time of the most work activities, or residual functional recent favorable determination. If we capacity, has increased, we say that cannot determine that you are still dis- medical improvement which is related abled based on medical consideration to your ability to do work has oc- alone (as discussed in §§ 416.925 and curred. A residual functional capacity 416.926), we will use the new symptoms, assessment is also used to determine signs and laboratory findings to make whether you can engage in substantial an objective assessment of your func- gainful activity and, thus, whether you tional capacity to do basic work activi- continue to be disabled (see paragraph ties or residual functional capacity and (b)(1)(vi) of this section). we will consider your vocational fac- (B) Many impairment-related factors tors. See §§ 416.945 through 416.969. must be considered in assessing your (vi) Evidence and basis for our decision. functional capacity for basic work ac- Our decisions under this section will be tivities. Age is one key factor. Medical made on a neutral basis without any literature shows that there is a gradual initial inference as to the presence or decrease in organ function with age; absence of disability being drawn from that major losses and deficits become the fact that you have previously been irreversible over time and that max- determined to be disabled. We will con- imum exercise performance diminishes sider all evidence you submit and that with age. Other changes related to sus- we obtain from your medical sources tained periods of inactivity and the and nonmedical sources. What con- aging process include muscle atrophy, stitutes ‘‘evidence’’ and our procedures degenerative joint changes, decrease in for obtaining it are set out in §§ 416.912 range of motion, and changes in the through 416.918. Our determination re- cardiac and respiratory systems which garding whether your disability con- limit the exertional range. tinues will be made on the basis of the (C) Studies have also shown that the weight of the evidence. longer an individual is away from the (vii) Point of comparison. For purpose workplace and is inactive, the more of determining whether medical im- difficult it becomes to return to ongo- provement has occurred, we will coming gainful employment. In addition, a pare the current medical severity of gradual change occurs in most jobs so that impairment(s) which was present that after about 15 years, it is no at the time of the most recent favor- longer realistic to expect that skills able medical decision that you were and abilities acquired in these jobs will disabled or continued to be disabled to continue to apply to the current work- the medical severity of that impair- place. Thus, if you are age 50 or over ment(s) at that time. If medical im- and have been receiving disability ben- provement has occurred, we will com- efits for a considerable period of time, pare your current functional capacity we will consider this factor along with to do basic work activities (i.e., your your age in assessing your residual residual functional capacity) based on functional capacity. This will ensure the previously existing impairments that the disadvantages resulting from with your prior residual functional ca- inactivity and the aging process during pacity in order to determine whether

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the medical improvement is related to (iii) Your new residual functional ca- your ability to do work. The most re- pacity will then be compared to your cent favorable medical decision is the residual functional capacity at the latest decision involving a consider- time of our most recent favorable med- ation of the medical evidence and the ical decision. Unless an increase in the issue of whether you were disabled or current residual functional capacity is continued to be disabled which became based on actual changes in the signs, final. symptoms, or laboratory findings any (2) Determining medical improvement medical improvement that has oc- and its relationship to your abilities to do curred will not be considered to be re- work. Paragraphs (b)(1)(i) through lated to your ability to do work. (b)(1)(iii) of this section discuss what (iv) Following are some additional we mean by medical improvement, factors and considerations which we medical improvement not related to will apply in making these determina- your ability to work, and medical im- tions. provement that is related to your abil- (A) Previous impairment met or equaled ity to work. (In addition, see paragraph listings. If our most recent favorable de- (b)(8) of this section if you work during cision was based on the fact that your your current period of eligibility based impairment(s) at the time met or on disability or during certain other equaled the severity contemplated by periods.) How we will arrive at the de- the Listing of Impairments in appendix cision that medical improvement has 1 of subpart P of part 404 of this chapter, an assessment of your residual occurred and its relationship to the functional capacity would not have ability to do work, is discussed below. been made. If medical improvement (i) Medical im- Medical improvement. has occurred and the severity of the provement is any decrease in the med- prior impairment(s) no longer meets or ical severity of impairment(s) present equals the same listing section used to at the time of the most recent favor- make our most recent favorable deci- able medical decision that you were sion, we will find that the medical im- disabled or continued to be disabled provement was related to your ability and is determined by a comparison of to work. Appendix 1 of subpart P of prior and current medical evidence part 404 of this chapter describes im- which must show that there have been pairments which, if severe enough, af- changes (improvement) in the symp- fect a person’s ability to work. If the toms, signs or laboratory findings asso- appendix level severity is met or ciated with that impairment(s). equaled the individual is deemed, in (ii) Determining if medical improvement the absence of evidence to the con- is related to ability to work. If there is a trary, to be unable to engage in gainful decrease in medical severity as shown activity. If there has been medical im- by the symptoms, signs and laboratory provement to the degree that the re- findings, we then must determine if it quirement of the listing section is no is related to your ability to do work. In longer met or equaled, then the med- paragraph (b)(1)(iv) of this section, we ical improvement is related to your explain the relationship between med- ability to work. We must, of course, ical severity and limitation on func- also establish that you can currently tional capacity to do basic work activi- engage in substantial gainful activity ties (or residual functional capacity) before finding that your disability has and how changes in medical severity ended. can affect your residual functional ca- (B) Prior residual functional capacity pacity. In determining whether med- assessment made. The residual func- ical improvement that has occurred is tional capacity assessment used in related to your ability to do work, we making the most recent favorable med- will assess your residual functional ca- ical decision will be compared to the pacity (in accordance with paragraph residual functional capacity assess- (b)(1)(iv) of this section) based on the ment based on current evidence in current severity of the impairment(s) order to determine if your functional which was present at your last favor- capacity for basic work activities has able medical decision. increased. There will be no attempt

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made to reassess the prior residual (E) Prior file cannot be located. If the functional capacity. prior file cannot be located, we will (C) Prior residual functional capacity first determine whether you are able to assessment should have been made, but now engage in substantial gainful ac- was not. If the most recent favorable tivity based on all your current impair- medical decision should have contained ments. (In this way, we will be able to an assessment of your residual func- determine that your disability con- tional capacity (i.e., your impairments tinues at the earliest point without ad- did not meet or equal the level of se- dressing the often lengthy process of verity contemplated by the Listing of reconstructing prior evidence.) If you Impairments in appendix 1 of subpart P cannot engage in substantial gainful of part 404 of this chapter) but does activity currently, your benefits will not, either because this assessment is continue unless one of the second missing from your file or because it group of exceptions applies (see para- was not done, we will reconstruct the graph (b)(4) of this section). If you are residual functional capacity. This re- able to engage in substantial gainful constructed residual functional capac- activity, we will determine whether an ity will accurately and objectively as- attempt should be made to reconstruct sess your functional capacity to do those portions of the missing file that basic work activities. We will assign were relevant to our most recent favor- the maximum functional capacity con- able medical decision (e.g., work his- sistent with a decision of allowance. tory, medical evidence, and the results of consultative examinations). This de- Example: You were previously found to be termination will consider the potential disabled on the basis that ‘‘while your im- availability of old records in light of pairment did not meet or equal a listing, it their age, whether the source of the did prevent you from doing your past or any evidence is still in operation , and other work.’’ The prior adjudicator did not, however, include a residual functional capac- whether reconstruction efforts will ity assessment in the rationale of this deci- yield a complete record of the basis for sion and a review of the prior evidence does the most recent favorable medical deci- not show that such an assessment was ever sion. If relevant parts of the prior made. If a decrease in medical severity, i.e., record are not reconstructed either be- medical improvement, has occurred, the re- cause it is determined not to attempt sidual functional capacity based on the cur- reconstruction or because such efforts rent level of severity of your impairment fail, medical improvement cannot be will have to be compared with your residual found. The documentation of your cur- functional capacity based on its prior severity in order to determine if the medical im- rent impairments will provide a basis provement is related to your ability to do for any future reviews. If the missing work. In order to make this comparison, we file is later found, it may serve as a will review the prior evidence and make an basis for reopening any decision under objective assessment of your residual func- this section in accordance with tional capacity at the time of our most re- § 416.988. cent favorable medical determination, based (3) First group of exceptions to medical on the symptoms, signs and laboratory find- improvement. The law provides for cer- ings as they then existed. tain limited situations when your dis- (D) Impairment subject to temporary re- ability can be found to have ended even mission. In some cases the evidence though medical improvement has not shows that an individual’s impairments occurred, if you can engage in substan- are subject to temporary remission. In tial gainful activity. These exceptions assessing whether medical improve- to medical improvement are intended ment has occurred in persons with this to provide a way of finding that a per- type of impairment, we will be careful son is no longer disabled in those lim- to consider the longitudinal history of ited situations where, even though the impairment, including the occur- there has been no decrease in severity rence of prior remission, and prospects of the impairment(s), evidence shows for future worsenings. Improvement in that the person should no longer be such impairments that is only tem- considered disabled or never should porary will not warrant a finding of have been considered disabled. If one of medical improvement. these exceptions applies, we must also

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show that, taking all your current im- § 416.261. If, at the time of our review, pairment(s) into account, not just you have not completed vocational those that existed at the time of our therapy which could affect the continu- most recent favorable medical deci- ance of your disability, we will review sion, you are now able to engage in your claim upon completion of the substantial gainful activity before your therapy. disability can be found to have ended. Example 1: You were found to be disabled As part of the review process, you will because the limitations imposed on you by be asked about any medical or voca- your impairment allowed you to only do tional therapy you received or are re- work that was at a sedentary level of exer- ceiving. Your answers and the evidence tion. Your prior work experience was work gathered as a result as well as all other that required a medium level of exertion. evidence, will serve as the basis for the Your age and education at the time would not have qualified you for work that was finding that an exception applies. below this medium level of exertion. You en- (i) Substantial evidence shows that you rolled in and completed a specialized train- are the beneficiary of advances in medical ing course which qualifies you for a job in or vocational therapy or technology (re- data processing as a computer programmer lated to your ability to work). Advances in the period since you were awarded bene- in medical or vocational therapy or fits. On review of your claim, current evi- technology are improvements in treat- dence shows that there is no medical im- ment or rehabilitative methods which provement and that you can still do only sedentary work. As the work of a computer have increased your ability to do basic programmer is sedentary in nature, you are work activities. We will apply this ex- now able to engage in substantial gainful ac- ception when substantial evidence tivity when your new skills are considered. shows that you have been the bene- Example 2: You were previously entitled to ficiary of services which reflect these benefits because the medical evidence and advances and they have favorably af- assessment of your residual functional ca- fected the severity of your impairment pacity showed you could only do light work. Your prior work was considered to be heavy or your ability to do basic work activi- in nature and your age, education and the ties. This decision will be based on new nature of your prior work qualified you for medical evidence and a new residual work which was no less than medium in ex- functional capacity assessment. (See ertion. The current evidence and residual § 416.945.) This exception does not apply functional capacity show there has been no if you are eligible to receive special medical improvement and that you can still Supplemental Security Income cash do only light work. Since you were origi- benefits as explained in § 416.261. In nally entitled to benefits, your vocational rehabilitation agency enrolled you in and many instances, an advanced medical you successfully completed a trade school therapy or technology will result in a course so that you are now qualified to do decrease in severity as shown by symp- small appliance repair. This work is light in toms, signs and laboratory findings nature, so when your new skills are consid- which will meet the definition of med- ered, you are now able to engage in substan- ical improvement. This exception will, tial gainful activity even though there has therefore, see very limited application. been no change in your residual functional (ii) Substantial evidence shows that you capacity. have undergone vocational therapy (re- (iii) Substantial evidence shows that lated to your ability to work). Vocational based on new or improved diagnostic or therapy (related to your ability to evaluative techniques your impairment(s) work) may include, but is not limited is not as disabling as it was considered to to, additional education, training, or be at the time of the most recent favorable work experience that improves your decision. Changing methodologies and ability to meet the vocational require- advances in medical and other diag- ments of more jobs. This decision will nostic or evaluative techniques have be based on substantial evidence which given, and will continue to give, rise to includes new medical evidence and a improved methods for measuring and new residual functional capacity as- documenting the effect of various im- sessment. (See § 416.945.) This exception pairments on the ability to do work. does not apply if you are eligible to re- Where, by such new or improved meth- ceive special Supplemental Security ods, substantial evidence shows that Income cash benefits as explained in your impairment(s) is not as severe as

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was determined at the time of our most changes in the Listing of Impairments recent favorable medical decision, such published in the Code of Federal Regu- evidence may serve as a basis for find- lations since 1970 which are reflective ing that you are no longer disabled, if of new or improved techniques. No you can currently engage in substan- cases will be processed under this ex- tial gainful activity. In order to be ception until this cumulative listing is used under this exception, however, the so published. Subsequent changes to new or improved techniques must have the list will be published periodically. become generally available after the The period will be determined by the date of our most recent favorable med- volume of changes needed. ical decision. Example: The electrocardiographic exercise (A) How we will determine which meth- test has replaced the Master’s 2-step test as ods are new or improved techniques and a measurement of heart function since the when they become generally available. time of your last favorable medical decision. New or improved diagnostic techniques Current evidence could show that your con- or evaluations will come to our atten- dition, which was previously evaluated based tion by several methods. In reviewing on the Master’s 2-step test, is not now as disabling as was previously thought. If, taking cases, we often become aware of new all your current impairments into account, techniques when their results are pre- you are now able to engage in substantial sented as evidence. Such techniques gainful activity, this exception would be and evaluations are also discussed and used to find that you are no longer disabled acknowledged in medical literature by even if medical improvement has not oc- medical professional groups and other curred. governmental entities. Through these (iv) Substantial evidence demonstrates sources, we develop listings of new that any prior disability decision was in techniques and when they become gen- error. We will apply the exception to erally available. For example, we will medical improvement based on error if consult the Health Care Financing Ad- substantial evidence (which may be ministration for its experience regard- evidence on the record at the time any ing when a technique is recognized for prior determination of the entitlement payment under Medicare and when to benefits based on disability was they began paying for the technique. made, or newly obtained evidence (B) How you will know which methods which relates to that determination) are new or improved techniques and when demonstrates that a prior determina- they become generally available. We will tion was in error. A prior determina- let you know which methods we con- tion will be found in error only if: sider to be new or improved techniques (A) Substantial evidence shows on its and when they become available face that the decision in question through two vehicles. should not have been made (e.g., the (1) Some of the future changes in the evidence in your file such as pul- Listing of Impairments in appendix 1 of monary function study values was mis- subpart P of part 404 of this chapter read or an adjudicative standard such will be based on new or improved diag- as a listing in appendix 1 of subpart P nostic or evaluation techniques. Such of part 404 of this chapter or a medical/ listings changes will clearly state this vocational rule in appendix 2 of subpart fact as they are published as Notices of P of part 404 of this chapter was mis- Proposed Rulemaking and the new or applied). improved techniques will be considered Example 1: You were granted benefits when generally available as of the date of it was determined that your epilepsy met the final publication of that particular Listing 11.02. This listing calls for a finding listing in the FEDERAL REGISTER. of major motor seizures more frequently (2) A cumulative list since 1970 of new than once a month as documented by elec- or approved diagnostic techniques or troencephalogram evidence and by a detailed evaluations, how they changed the description of a typical seizure pattern. A evaluation of the applicable impair- history of either diurnal episodes or noc- turnal episodes with residuals interfering ment and the month and year they be- with daily activities is also required. On re- came generally available, will be pub- view, it is found that a history of the fre- lished in the Notices section of the FED- quency of your seizures showed that they oc- ERAL REGISTER. Included will be any curred only once or twice a year. The prior

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decision would be found to be in error, and cision, the claim would not have been whether you were still considered to be disallowed or continued. A substitution of abled would be based on whether you could current judgment for that used in the currently engage in substantial gainful activity. prior favorable decision will not be the Example 2: Your prior award of benefits was basis for applying this exception. based on vocational rule 201.12 in appendix 2 Example: You were previously found enti- of subpart P of part 404 of this chapter. This tled to benefits on the basis of diabetes rule applies to a person age 50–54 who has at mellitus which the prior adjudicator believed least a high school education, whose pre- was equivalent to the level of severity con- vious work was entirely at a semiskilled templated in the Listing of Impairments. level, and who can do only sedentary work. The prior record shows that you had ‘‘brit- On review, it is found that at the time of the tle’’ diabetes for which you were taking insu- prior determination you were actually only lin. Your urine was 3 + for sugar, and you al- age 46 and vocational rule 201.21 should have leged occasional hypoglycemic attacks been used. This rule would have called for a caused by exertion. On review, symptoms, denial of your claim and the prior decision is signs and laboratory findings are unchanged. found to have been in error. Continuation of The current adjudicator feels, however, that your disability would depend on a finding of your impairment clearly does not equal the your current ability to engage in substantial severity contemplated by the listings. Error gainful activity. cannot be found because it would represent a (B) At the time of the prior evalua- substitution of current judgment for that of tion, required and material evidence of the prior adjudicator that your impairment the severity of your impairment(s) was equaled a listing. missing. That evidence becomes avail- (D) The exception for error will not able upon review, and substantial evi- be applied retroactively under the con- dence demonstrates that had such evi- ditions set out above unless the condi- dence been present at the time of the tions for reopening the prior decision prior determination, disability would (see §§ 416.1488 through 416.1489) are not have been found. met. Example: You were found disabled on the (4) Second group of exceptions to med- basis of chronic obstructive pulmonary dis- ical improvement. In addition to the ease. The severity of your impairment was first group of exceptions to medical im- documented primarily by pulmonary func- provement, the following exceptions tion testing results. The evidence showed may result in a determination that you that you could do only light work. Spiro- are no longer disabled. In these situa- metric tracings of this testing, although required, were not obtained, however. On re- tions the decision will be made without view, the original report is resubmitted by a determination that you have medi- the consultative examining physician along cally improved or can engage in sub- with the corresponding spirometric tracings. stantial gainful activity. A review of the tracings shows that the test (i) A prior determination or decision was invalid. Current pulmonary function was fraudulently obtained. If we find testing supported by spirometric tracings re- that any prior favorable determination veals that your impairment does not limit your ability to perform basic work activities or decision was obtained by fraud, we in any way. Error is found based on the fact may find that you are not disabled. In that required, material evidence which was addition, we may reopen your claim originally missing now becomes available under the rules in § 416.1488. In deter- and shows that if it had been available at the mining whether a prior favorable deter- time of the prior determination, disability mination or decision was fraudulently would not have been found. obtained, we will take into account (C) Substantial evidence which is new any physical, mental, educational, or evidence which relates to the prior de- linguistic limitations (including any termination (of allowance or continu- lack of facility with the English lan- ance) refutes the conclusions that were guage) which you may have had at the based upon the prior evidence (e.g., a time. tumor thought to be malignant was (ii) You do not cooperate with us. If later shown to have actually been be- there is a question about whether you nign). Substantial evidence must show continue to be disabled and we ask you that had the new evidence, (which re- to give us medical or other evidence or lates to the prior determination) been to go for a physical or mental examina- considered at the time of the prior de- tion by a certain date, we will find that

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your disability has ended if you fail, meets or equals the severity of an im- without good cause, to do what we ask. pairment listed in appendix 1 of sub- Section 416.1411 explains the factors we part P of part 404 of this chapter? If consider and how we will determine you do, your disability will be found to generally whether you have good cause continue. for failure to cooperate. In addition, (ii) Step 2. If you do not, has there § 416.918 discusses how we determine been medical improvement as defined whether you have good cause for fail- in paragraph (b)(1)(i) of this section? If ing to attend a consultative examina- there has been medical improvement as tion. The month in which your dis- shown by a decrease in medical sever- ability ends will be the first month in ity, see step 3 in paragraph (b)(5)(iii) of which you failed to do what we asked. this section. If there has been no de- (iii) We are unable to find you. If there crease in medical severity, there has is a question about whether you con- been no medical improvement. (See tinue to be disabled and we are unable step 4 in paragraph (b)(5)(iv) of this sec- to find you to resolve the question, we tion.) will suspend your payments. The (iii) Step 3. If there has been medical month your payments are suspended improvement, we must determine will be the first month in which the whether it is related to your ability to question arose and we could not find do work in accordance with paragraphs you. (b)(1)(i) through (b)(1)(iv) of this sec- (iv) You fail to follow prescribed treat- tion; i.e., whether or not there has been ment which would be expected to restore an increase in the residual functional your ability to engage in substantial gain- capacity based on the impairment(s) ful activity. If treatment has been pre- that was present at the time of the scribed for you which would be ex- most recent favorable medical deter- pected to restore your ability to work, mination. If medical improvement is you must follow that treatment in not related to your ability to do work, order to be paid benefits. If you are not see step 4 in paragraph (b)(5)(iv) of this following that treatment and you do section. If medical improvement is re- not have good cause for failing to fol- lated to your ability to do work, see low that treatment, we will find that your disability has ended (see step 5 in paragraph (b)(5)(v) of this sec- § 416.930(c)). The month your disability tion. ends will be the first month in which (iv) Step 4. If we found at step 2 in you failed to follow the prescribed paragraph (b)(5)(ii) of this section that treatment. there has been no medical improve- (5) Evaluation steps. To assure that ment or if we found at step 3 in para- disability reviews are carried out in a graph (b)(5)(iii) of this section that the uniform manner, that a decision of medical improvement is not related to continuing disability can be made in your ability to work, we consider the most expeditious and administra- whether any of the exceptions in para- tively efficient way, and that any deci- graphs (b)(3) and (b)(4) of this section sions to stop disability benefits are apply. If none of them apply, your dis- made objectively, neutrally, and are ability will be found to continue. If one fully documented, we will follow spe- of the first group of exceptions to med- cific steps in reviewing the question of ical improvement applies, see step 5 in whether your disability continues. Our paragraph (b)(5)(v) of this section. If an review may cease and benefits may be exception from the second group of ex- continued at any point if we determine ceptions to medical improvement ap- there is sufficient evidence to find that plies, your disability will be found to you are still unable to engage in sub- have ended. The second group of excep- stantial gainful activity. The steps are tions to medical improvement may be as follows. (See paragraph (b)(8) of this considered at any point in this process. section if you work during your cur- (v) Step 5. If medical improvement is rent period of eligibility based on dis- shown to be related to your ability to ability or during certain other periods.) do work or if one of the first group of (i) Step 1. Do you have an impairment exceptions to medical improvement ap- or combination of impairments which plies, we will determine whether all

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your current impairments in combina- work or if § 416.962 may apply, we will tion are severe (see § 416.921). This de- assess your claim under paragraph termination will consider all your cur- (b)(5)(vi) of this section and make a rent impairments and the impact of finding about whether you can perform the combination of these impairments your past relevant work. on your ability to function. If the re- (6) The month in which we will find you sidual functional capacity assessment are no longer disabled. If the evidence in step 3 in paragraph (b)(5)(iii) of this shows that you are no longer disabled, section shows significant limitation of we will find that your disability ended your ability to do basic work activi- in the earliest of the following months. ties, see step 6 in paragraph (b)(5)(vi) of (i) The month the evidence shows this section. When the evidence shows that you are no longer disabled under that all your current impairments in the rules set out in this section, and combination do not significantly limit you were disabled only for a specified your physical or mental abilities to do period of time in the past; basic work activities, these impair- (ii) The month the evidence shows ments will not be considered severe in that you are no longer disabled under nature. If so, you will no longer be con- the rules set out in this section, but sidered to be disabled. not earlier than the month in which we (vi) Step 6. If your impairment(s) is mail you a notice saying that the in- severe, we will assess your current formation we have shows that you are ability to do substantial gainful activ- not disabled; ity in accordance with § 416.960. That is, (iii) The month in which you return we will assess your residual functional to full-time work, with no significant capacity based on all your current im- medical restrictions and acknowledge pairments and consider whether you that medical improvement has oc- can still do work you have done in the curred, and we expected your impair- past. If you can do such work, dis- ment(s) to improve (see § 416.991); ability will be found to have ended. (iv) The first month in which you fail (vii) Step 7. If you are not able to do without good cause to follow prescribed work you have done in the past, we will treatment, when the rule set out in consider whether you can do other paragraph (b)(4)(iv) of this section ap- work given the residual functional ca- plies; pacity assessment made under para- (v) The first month you were told by graph (b)(5)(vi) of this section and your your physician that you could return age, education, and past work experi- to work, provided there is no substan- ence (see paragraph (b)(5)(viii) of this tial conflict between your physician’s section for an exception to this rule). If and your statements regarding your you can, we will find that your dis- awareness of your capacity for work ability has ended. If you cannot, we and the earlier date is supported by will find that your disability con- substantial evidence; or tinues. (vi) The first month in which you (viii) Step 8. We may proceed to the failed without good cause to do what final step, described in paragraph we asked, when the rule set out in (b)(5)(vii) of this section, if the evi- paragraph (b)(4)(ii) of this section ap- dence in your file about your past rel- plies. evant work is not sufficient for us to (7) Before we stop your benefits. If we make a finding under paragraph find you are no longer disabled, before (b)(5)(vi) of this section about whether we stop your benefits, we will give you you can perform your past relevant a chance to explain why we should not work. If we find that you can adjust to do so. Subparts M and N of this part other work based solely on your age, describe your rights and the procedures education, and residual functional ca- we will follow. pacity, we will find that you are no (8) If you work during your current pe- longer disabled, and we will not make a riod of eligibility based on disability or finding about whether you can do your during certain other periods. (i) We will past relevant work under paragraph not consider the work you are doing or (b)(5)(vi) of this section. If we find that have done during your current period you may be unable to adjust to other of eligibility based on disability (or,

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when determining whether you are eli- minated period of eligibility referred to gible for expedited reinstatement of in section 1631(p)(1)(B) of the Act) to be benefits under section 1631(p) of the past relevant work under paragraph Act, the work you are doing or have (b)(5)(vi) of this section or past work done during or after the previously ter- experience under paragraph (b)(5)(vii) minated period of eligibility referred to of this section. in section 1631(p)(1)(B) of the Act) to be (c) Persons who were found disabled past relevant work under paragraph under a State plan. If you became enti- (b)(5)(vi) of this section or past work tled to benefits because you were found experience under paragraph (b)(5)(vii) to be disabled under a State plan, we of this section. In addition, if you are will first evaluate your impairment(s) currently entitled to disability benefits under the rules explained in paragraph under title II of the Social Security (b) of this section. We will apply the Act, we may or may not consider the same steps as described in paragraph physical and mental activities that you (b) of this section to the last decision perform in the work you are doing or granting or affirming entitlement to have done during your current period benefits under the State plan. If we are of entitlement based on disability, as not able to find that your disability explained in paragraphs (b)(8)(ii) and continues on the basis of these rules, (iii) of this section. we will then evaluate your impair- (ii) If you are currently entitled to ment(s) under the appropriate State disability insurance benefits as a dis- plan. If we are not able to find that abled worker, child’s insurance bene- your disability continues under these fits based on disability, or widow’s or State plan criteria, we will find that widower’s insurance benefits based on your disability ends. Disability will be disability under title II of the Social found to end the month the evidence Security Act, and at the time we are shows that you are no longer disabled making a determination on your case under the criteria in paragraph (b) of you have received such benefits for at this section (or appropriate State plan least 24 months, we will not consider criteria), subject to the rules set out in the activities you perform in the work paragraph (b)(6) of this section. you are doing or have done during your current period of entitlement based on [50 FR 50137, Dec. 6, 1985; 51 FR 7063, Feb. 28, disability if they support a finding that 1986; 51 FR 16015, Apr. 30, 1986, as amended at your disability has ended. (We will use 52 FR 44971, Nov. 24, 1987; 56 FR 5562, Feb. 11, the rules in § 416.990(i)(2) to determine 1991; 59 FR 1636, Jan. 12, 1994; 65 FR 42791, July 11, 2000; 68 FR 51167, Aug. 26, 2003; 68 FR whether the 24-month requirement is 53219, Sept. 9, 2003; 71 FR 66859, Nov. 17, 2006; met.) However, we will consider the ac- 77 FR 43496, July 25, 2012; 82 FR 5882, Jan. 18, tivities you do in that work if they 2017] support a finding that your disability continues or they do not conflict with § 416.994a How we will determine a finding that your disability con- whether your disability continues tinues. We will not presume that you or ends, and whether you are and are still disabled if you stop working. have been receiving treatment that (iii) If you are not a person described is medically necessary and available, disabled children. in paragraph (b)(8)(ii) of this section, we will consider the activities you per- (a) Evaluation of continuing disability, form in your work at any of the eval- in general. There is a statutory require- uation steps in paragraph (b)(5) of this ment that, if you are eligible for dis- section at which we need to assess your ability benefits as a disabled child, ability to function. However, we will your continued eligibility for such ben- not consider the work you are doing or efits must be reviewed periodically. have done during your current period There are a number of factors we con- of eligibility based on disability (or, sider when we decide whether your dis- when determining whether you are eli- ability continues. gible for expedited reinstatement of (1) We will first consider whether benefits under section 1631(p) of the there has been medical improvement in Act, the work you are doing or have your impairment(s). We define ‘‘med- done during or after the previously ter- ical improvement’’ in paragraph (c) of

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this section. If there has been no med- decision at any point in the sequence, ical improvement, we will find you are we do not review further. The steps still disabled unless one of the excep- are: tions in paragraphs (e) or (f) of this sec- (1) Has there been medical improvement tion applies. If there has been medical in your condition(s)? We will determine improvement, we will consider whether whether there has been medical im- the impairments(s) you had at the time provement in the impairment(s) you of our most recent favorable deter- had at the time of our most recent fa- mination or decision now meets or vorable determination or decision. medically or functionally equals the (The term medical improvement is de- severity of the listing it met or fined in paragraph (c) of this section.) equalled at that time. If so, we will If there has been no medical improve- find you are still disabled, unless one of ment, we will find that your disability the exceptions in paragraphs (e) or (f) continues, unless one of the exceptions of this section applies. If not, we will to medical improvement described in consider whether your current impairment(s) are disabling under the rules in paragraph (e) or (f) of this section ap- § 416.924. These steps are described in plies. more detail in paragraph (b) of this sec- (i) If one of the first group of exception. Even where medical improvement tions to medical improvement applies, or an exception applies, in most cases, we will proceed to step 3. we will find that your disability has (ii) If one of the second group of ex- ended only if we also find that you are ceptions to medical improvement ap- not currently disabled. plies, we may find that your disability (2) Our determinations and decisions has ended. under this section will be made on a (2) Does your impairment(s) still meet or neutral basis, without any initial infer- equal the severity of the listed impairment ence as to the presence or absence of that it met or equaled before? If there has disability being drawn from the fact been medical improvement, we will that you have been previously found consider whether the impairment(s) disabled. We will consider all evidence that we considered at the time of our you submit and that we obtain from most recent favorable determination or your medical and nonmedical sources. decision still meets or equals the sever- What constitutes ‘‘evidence’’ and our ity of the listed impairment it met or procedures for obtaining it are set out equaled at that time. In making this in §§ 416.912 through 416.918. Our deter- decision, we will consider the current mination regarding whether your dis- severity of the impairment(s) present ability continues will be made on the and documented at the time of our basis of the weight of the evidence. most recent favorable determination or (b) Sequence of evaluation. To ensure decision, and the same listing section that disability reviews are carried out used to make that determination or de- in a uniform manner, that decisions of continuing disability can be made in cision as it was written at that time, the most expeditious and administra- even if it has since been revised or re- tively efficient way, and that any deci- moved from the Listing of Impair- sions to stop disability benefits are ments. If that impairment(s) does not made objectively, neutrally, and are still meet or equal the severity of that fully documented, we follow specific listed impairment, we will proceed to steps in determining whether your dis- the next step. If that impairment(s) ability continues. However, we may still meets or equals the severity of skip steps in the sequence if it is clear that listed impairment as it was writ- this would lead to a more prompt find- ten at that time, we will find that you ing that your disability continues. For are still disabled, unless one of the ex- example, we might not consider the ceptions to medical improvement de- issue of medical improvement if it is scribed in paragraphs (e) or (f) of this obvious on the face of the evidence section applies. that a current impairment meets the (i) If one of the first group of excep- severity of a listed impairment. If we tions to medical improvement applies, can make a favorable determination or we will proceed to step 3.

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(ii) If one of the second group of ex- decision that you were disabled or con- ceptions to medical improvement ap- tinued to be disabled. Although the de- plies, we may find that your disability crease in severity may be of any quan- has ended. tity or degree, we will disregard minor (3) Are you currently disabled? If there changes in your signs, symptoms, and has been medical improvement in the laboratory findings that obviously do impairment(s) that we considered at not represent medical improvement the time of our most recent favorable and could not result in a finding that determination or decision, and if that your disability has ended. A determina- impairment(s) no longer meets or tion that there has been a decrease in equals the severity of the listed im- medical severity must be based on pairment that it met or equaled at that changes (improvement) in the symp- time, we will consider whether you are toms, signs, or laboratory findings as- disabled under the rules in §§ 416.924(c) sociated with your impairment(s). and (d). In determining whether you (1) The most recent favorable deci- are currently disabled, we will consider sion is the latest final determination all impairments you now have, includ- or decision involving a consideration of ing any you did not have at the time of the medical evidence and whether you our most recent favorable determina- were disabled or continued to be dis- tion or decision, or that we did not abled. consider at that time. The steps in de- (2) The terms symptoms, signs, and termining current disability are sum- laboratory findings are defined in marized as follows: § 416.902. For children, our definitions (i) Do you have a severe impairment or of the terms symptoms, signs, and lab- combination of impairment? If there has oratory findings may include any abnor- been medical improvement in your im- malities of physical and mental func- pairment(s), or if one of the first group tioning that we used in making our of exceptions applies, we will deter- most recent favorable decision. mine whether your current impair- (3) Some impairments are subject to ment(s) is severe, as defined in temporary remissions, which can give § 416.924(c). If your impairment(s) is not the appearance of medical improve- severe, we will find that your disability ment when in fact there has been none. has ended. If your impairment(s) is se- If you have the kind of impairment vere, we will then consider whether it that is subject to temporary remis- meets or medically equals the severity sions, we will be careful to consider the of a listed impairment. longitudinal history of the impair- (ii) Does your impairment(s) meet or ment, including the occurrence of prior medically equal the severity of any im- remissions and prospects for future pairment listed in appendix 1 of subpart P worsenings, when we decide whether of part 404 of this chapter? If your cur- there has been medical improvement. rent impairment(s) meets or medically Improvements that are only temporary equals the severity of any listed im- will not warrant a finding of medical pairment, as described in §§ 416.925 and improvement. 416.926, we will find that your disability (d) Prior file cannot be located. If we continues. If not, we will consider cannot locate your prior file, we will whether it functionally equals the list- first determine whether you are cur- ings. rently disabled under the sequence set (iii) Does your impairment(s) function- forth in § 416.924. (In this way, we will ally equal the listings? If your current determine that your benefits continue impairment(s) functionally equals the at the earliest time without recon- listings, as described in § 416.926a, we structing prior evidence.) If so, your will find that your disability con- benefits will continue unless one of the tinues. If not, we will find that your second group of exceptions applies (see disability has ended. paragraph (f) of this section). If not, we (c) What we mean by medical improve- will determine whether an attempt ment. Medical improvement is any de- should be made to reconstruct those crease in the medical severity of your portions of the missing file that were impairment(s) which was present at relevant to our most recent favorable the time of the most recent favorable determination or decision (e.g., school

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records, medical evidence, and the re- mining the causes of (i.e., diagnosing) sults of consultative examinations). and measuring and documenting the ef- This determination will consider the fects of various impairments on chil- potential availability of old records in dren and their functioning. Where, by light of their age, whether the source such new or improved methods, sub- of the evidence is still in operation, stantial evidence shows that your im- and whether reconstruction efforts will pairment(s) is not as severe as was de- yield a complete record of the basis for termined at the time of our most re- the most recent favorable decision. If cent favorable decision, such evidence relevant parts of the prior record are may serve as a basis for a finding that not reconstructed, either because we you are no longer disabled, provided decide not to attempt reconstruction that you do not currently have an im- or because our efforts failed, we will pairment(s) that meets, medically not find that you have medically im- equals, or functionally equals the list- proved. The documentation of your ings, and therefore results in marked current impairment(s) will provide a and severe functional limitations. In basis for any future reviews. If the order to be used under this exception, missing file is later found, it may serve however, the new or improved tech- as a basis for reopening any determina- niques must have become generally tion or decision under this section, in available after the date of our most re- accordance with § 416.1488. cent favorable decision. (e) First group of exceptions to medical (i) How we will determine which meth- improvement. The law provides certain ods are new or improved techniques and limited situations when your disability when they become generally available. can be found to have ended even New or improved diagnostic techniques though medical improvement has not or evaluations will come to our atten- occurred, if your impairment(s) no tion by several methods. In reviewing longer results in marked and severe cases, we often become aware of new functional limitations. These excep- techniques when their results are pre- tions to medical improvement are in- sented as evidence. Such techniques tended to provide a way of finding that and evaluations are also discussed and a person is no longer disabled in those acknowledged in medical literature by situations where, even though there medical professional groups and other has been no decrease in severity of the governmental entities. Through these impairment(s), evidence shows that the sources, we develop listings of new person should no longer be considered techniques and when they become gen- disabled or never should have been con- erally available. For example, we will sidered disabled. If one of these excep- consult the Health Care Financing Ad- tions applies, we must also show that ministration for its experience regard- your impairment(s) does not now result ing when a technique is recognized for in marked and severe functional limi- payment under Medicare and when tations, before we can find you are no they began paying for the technique. longer disabled, taking all your current (ii) How you will know which methods impairments into account, not just are new or improved techniques and when those that existed at the time of our they become generally available. We will most recent favorable determination or let you know which methods we con- decision. The evidence we gather will sider to be new or improved techniques serve as the basis for the finding that and when they become available an exception applies. through two vehicles. (1) Substantial evidence shows that, (A) Some of the future changes in the based on new or improved diagnostic tech- Listing of Impairments in appendix 1 of niques or evaluations, your impairment(s) subpart P of part 404 of this chapter is not as disabling as it was considered to will be based on new or improved diag- be at the time of the most recent favorable nostic or evaluative techniques. Such decision. Changing methodologies and listings changes will clearly state this advances in medical and other diag- fact as they are published as Notices of nostic techniques or evaluations have Proposed Rulemaking and the new or given rise to, and will continue to give improved technique will be considered rise to, improved methods for deter- generally available as of the date of

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the final publication of that particular were based upon the prior evidence at listing in the FEDERAL REGISTER. the time of that determination or deci- (B) From time to time, we will pub- sion (e.g., a tumor thought to be malig- lish in the FEDERAL REGISTER cumu- nant was later shown to have actually lative lists of new or approved diag- been benign). Substantial evidence nostic techniques or evaluations that must show that, had the new evidence have been in use since 1970, how they (which relates to the prior determina- changed the evaluation of the application or decision) been considered at the ble impairment and the month and time of the prior determination or de- year they became generally available. cision, the claim would not have been We will include any changes in the allowed or continued. A substitution of Listing of Impairments published in current judgment for that used in the the Code of Federal Regulations since prior favorable determination or deci- 1970 that are reflective of new or im- sion will not be the basis for applying proved techniques. We will not process this exception. any cases under this exception using a (iv) The exception for error will not new or improved diagnostic technique be applied retroactively under the con- that we have not included in a pub- ditions set out above unless the condi- lished notice until we have published tions for reopening the prior decision an updated cumulative list. The period (see §§ 416.1488 and 416.1489) are met. between publications will be deter- (f) Second group of exceptions to med- mined by the volume of changes need- ical improvement. In addition to the ed. first group of exceptions to medical im- (2) Substantial evidence demonstrates provement, the following exceptions that any prior disability decision was in may result in a determination or deci- error. We will apply the exception to sion that you are no longer disabled. In medical improvement based on error if these situations, the determination or substantial evidence (which may be decision will be made without a finding evidence on the record at the time any that you have demonstrated medical prior determination or decision of the improvement or that you are currently entitlement to benefits based on dis- not disabled under the rules in § 416.924. ability was made, or newly obtained There is no set point in the continuing evidence which relates to that deter- disability review sequence described in mination or decision) demonstrates paragraph (b) of this section at which that a prior determination or decision we must consider these exceptions; ex- (of allowance or continuance) was in ceptions in the second group may be error. A prior determination or deci- considered at any point in the process. sion will be found in error only if: (1) A prior determination or decision (i) Substantial evidence shows on its was fraudulently obtained. If we find face that the determination or decision that any prior favorable determination in question should not have been made or decision was obtained by fraud, we (e.g., the evidence in your file, such as may find that you are not disabled. In pulmonary function study values, was addition, we may reopen your claim misread, or an adjudicative standard, under the rules in § 416.1488. In deter- such as a listing in appendix 1 of sub- mining whether a prior favorable deter- part P of part 404 of this chapter, was mination or decision was fraudulently misapplied). obtained, we will take into account (ii) At the time of the prior evalua- any physical, mental, educational, or tion, required and material evidence of linguistic limitations (including any the severity of your impairment(s) was lack of facility with the English lan- missing. That evidence becomes avail- guage) which you may have had at the able upon review, and substantial evi- time. dence demonstrates that, had such evi- (2) You do not cooperate with us. If dence been present at the time of the there is a question about whether you prior determination or decision, discontinue to be disabled and we ask you ability would not have been found. to give us medical or other evidence or (iii) New substantial evidence that to go for a physical or mental examina- relates to the prior determination or tion by a certain date, we will find that decision refutes the conclusions that your disability has ended if you fail,

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without good cause, to do what we ask. ment has occurred, and we expected Section 416.1411 explains the factors we your impairment(s) to improve (see consider and how we will determine § 416.991); generally whether you have good cause (4) The first month in which you fail for failure to cooperate. In addition, without good cause to follow prescribed § 416.918 discusses how we determine treatment, when the rule set out in whether you have good cause for fail- paragraph (f)(4) of this section applies; ing to attend a consultative examina- (5) The first month in which you were tion. The month in which your dis- told by your physician that you could ability ends will be the first month in return to normal activities, provided which you failed to do what we asked. there is no substantial conflict between (3) We are unable to find you. If there your physician’s and your statements is a question about whether you con- regarding your awareness of your ca- tinue to be disabled and we are unable pacity, and the earlier date is sup- to find you to resolve the question, we ported by substantial evidence; or will suspend your payments. The (6) The first month in which you month your payments are suspended failed without good cause to do what will be the first month in which the we asked, when the rule set out in question arose and we could not find paragraph (f)(2) of this section applies. you. (h) Before we stop your benefits. If we (4) You fail to follow prescribed treat- find you are no longer disabled, before ment which would be expected to improve we stop your benefits, we will give you your impairment(s) so that it no longer re- a chance to explain why we should not sults in marked and severe functional limitations. If treatment has been pre- do so. Subparts M and N of this part scribed for you which would be ex- describe your rights and the procedures pected to improve your impairment(s) we will follow. so that it no longer results in marked (i) Requirement for treatment that is and severe functional limitations, you medically necessary and available. If you must follow that treatment in order to have a representative payee, the rep- be paid benefits. If you are not fol- resentative payee must, at the time of lowing that treatment and you do not the continuing disability review, have good cause for failing to follow present evidence demonstrating that that treatment, we will find that your you are and have been receiving treat- disability has ended (see § 416.930(c)). ment, to the extent considered medi- The month your disability ends will be cally necessary and available, for the the first month in which you failed to condition(s) that was the basis for pro- follow the prescribed treatment. viding you with SSI benefits, unless we (g) The month in which we will find determine that requiring your rep- you are no longer disabled. If the evi- resentative payee to provide such evidence shows that you are no longer dis- dence would be inappropriate or unnec- abled, we will find that your disability essary considering the nature of your ended in the following month— impairment(s). If your representative (1) The month the evidence shows payee refuses without good cause to that you are no longer disabled under comply with this requirement, and if the rules set out in this section, and we decide that it is in your best inter- you were disabled only for a specified ests, we may pay your benefits to an- period of time in the past; other representative payee or to you (2) The month the evidence shows directly. that you are no longer disabled under (1) What we mean by treatment that is the rules set out in this section, but medically necessary. Treatment that is not earlier than the month in which we medically necessary means treatment mail you a notice saying that the in- that is expected to improve or restore formation we have shows that you are your functioning and that was pre- not disabled; scribed by your medical source. If you (3) The month in which you return do not have a medical source, we will to, or begin, full-time work with no decide whether there is treatment that significant medical restrictions, and is medically necessary that could have acknowledge that medical improve- been prescribed by a medical source.

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The treatment may include (but is not had good cause, we will consider fac- limited to)— tors such as the acceptable reasons for (i) Medical management; failure to follow prescribed treatment (ii) Psychological or psychosocial in § 416.930(c) and other factors similar counseling; to those describing good cause for (iii) Physical therapy; and missing deadlines in § 416.1411. (iv) Home therapy, such as admin- (5) If you do not have a representative istering oxygen or giving injections. payee. If you do not have a representa- (2) How we will consider whether medi- tive payee and we make your payments cally necessary treatment is available. directly to you, the provisions of this When we decide whether medically nec- paragraph do not apply to you. How- essary treatment is available, we will ever, we may still decide that you are consider such things as (but not lim- failing to follow prescribed treatment ited to)— under the provisions of § 416.930, if the (i) The location of an institution or requirements of that section are met. facility or place where treatment, services, or resources could be provided to [56 FR 5562, Feb. 11, 1991; 56 FR 13266, 13365, you in relationship to where you re- Apr. 1, 1991, as amended at 58 FR 47586, Sept. side; 9, 1993; 59 FR 1637, Jan. 12, 1994; 62 FR 6430, Feb. 11, 1997; 62 FR 13538, 13733, Mar. 21, 1997; (ii) The availability and cost of 65 FR 16815, Mar. 30, 2000; 65 FR 54790, Sept. transportation for you and your payee 11, 2000; 82 FR 5882, Jan. 18, 2017] to the place of treatment; (iii) Your general health, including § 416.995 If we make a determination your ability to travel for the treat- that your physical or mental im- ment; pairment(s) has ceased, did not (iv) The capacity of an institution or exist or is no longer disabling (Med- facility to accept you for appropriate ical Cessation Determination). treatment; If we make a determination that the (v) The cost of any necessary medica- physical or mental impairment(s) on tions or treatments that are not paid the basis of which disability or blind- for by Medicaid or another insurer or ness benefits were payable has ceased, source; and did not exist or is no longer disabling (vi) The availability of local commu- (a medical cessation determination), nity resources (e.g., clinics, charitable your benefits will stop. You will re- organizations, public assistance agen- ceive a written notice explaining this cies) that would provide free treatment determination and the month your or funds to cover treatment. benefits will stop. The written notice (3) When we will not require evidence of will also explain your right to appeal if treatment that is medically necessary and you disagree with our determination available. We will not require your rep- and your right to request that your dis- resentative payee to present evidence ability or blindness benefits be contin- that you are and have been receiving ued under § 416.996. The continued ben- treatment if we find that the condi- efit provisions of this section do not tion(s) that was the basis for providing apply to an initial determination on an you benefits is not amenable to treat- application for disability or blindness ment. benefits or to a determination that you (4) Removal of a payee who does not were disabled or blind only for a speci- provide evidence that a child is and has fied period of time. been receiving treatment that is medically necessary and available. If your rep- [53 FR 29023, Aug. 2, 1988] resentative payee refuses without good cause to provide evidence that you are § 416.996 Continued disability or blind- and have been receiving treatment that ness benefits pending appeal of a is medically necessary and available, medical cessation determination. we may, if it is in your best interests, (a) General. If we determine that you suspend payment of benefits to the rep- are not eligible for disability or blind- resentative payee, and pay benefits to ness benefits because the physical or another payee or to you. When we de- mental impairment(s) on the basis of cide whether your representative payee which such benefits were payable is

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found to have ceased, not to have ex- manded) to an administrative law isted, or to no longer be disabling, and judge for further action, we will ex- you appeal that determination, you plain your right to receive continued may choose to have your disability or benefits and ask you to complete a blindness benefits, including special statement indicating that you wish to cash benefits or special SSI eligibility have benefits continued pending the status under §§ 416.261 and 416.264, con- outcome of the reconsideration or ad- tinued pending reconsideration and/or ministrative law judge hearing. If you a hearing before an administrative law request reconsideration and/or hearing judge on the disability/blindness ces- but you do not want to receive contin- sation determination. If you appeal a ued benefits, we will ask you to com- medical cessation under both title II plete a statement declining continued and title XVI (a concurrent case), the benefits indicating that you do not title II claim will be handled in accord- want to have your benefits continued ance with title II regulations while the during the appeal. A separate election title XVI claim will be handled in ac- must be made at each level of appeal. cordance with the title XVI regula- (c) What you must do to receive contin- tions. ued benefits pending notice of our recon- (1) Benefits may be continued under sideration determination. (1) If you want this section only if the determination to receive continued benefits pending that your physical or mental impair- the outcome of your request for recon- ment(s) has ceased, has never existed, sideration, you must request reconsid- or is no longer disabling is made after eration and continuation of benefits no October 1984. later than 10 days after the date you (2) Continued benefits under this sec- receive the notice of our initial deter- tion will stop effective with the earlier mination that your physical or mental of: (i) The month before the month in impairment(s) has ceased, has never which an administrative law judge’s existed, or is no longer disabling. Re- hearing decision finds that your phys- consideration must be requested as ical or mental impairment(s) has provided in § 416.1409, and you must re- ceased, has never existed, or is no quest continued benefits using a state- longer disabling or the month before ment in accordance with paragraph (b) the month of a new administrative law of this section. judge decision (or final action is taken (2) If you fail to request reconsider- by the Appeals Council on the adminis- ation and continued benefits within the trative law judge’s recommended deci- 10-day period required by paragraph sion) if your case was sent back to an (c)(1) of this section, but later ask that administrative law judge for further we continue your benefits pending a re- action; or (ii) the month before the considered determination, we will use month in which no timely request for the rules in § 416.1411 to determine reconsideration or administrative law whether good cause exists for your fail- judge hearing is pending after notifica- ing to request benefit continuation tion of our initial or reconsideration within 10 days after receipt of the no- cessation determination. These bene- tice of the initial cessation determina- fits may be stopped or adjusted because tion. If you request continued benefits of certain events (such as, change in in- after the 10-day period, we will con- come or resources or your living ar- sider the request to be timely and will rangements) which may occur while pay continued benefits only if good you are receiving these continued ben- cause for delay is established. efits, in accordance with § 416.1336(b). (d) What you must do to receive contin- (b) Statement of choice. If you or an- ued benefits pending an administrative other party (see § 416.1432(a)) request law judge’s decision. (1) To receive con- reconsideration under § 416.1409 or a tinued benefits pending an administra- hearing before an administrative law tive law judge’s decision on our recon- judge in accordance with § 416.1433 on sideration determination, you must re- our determination that your physical quest a hearing and continuation of or mental impairment(s) has ceased, benefits no later than 10 days after the has never existed, or is no longer dis- date you receive the notice of our re- abling, or if your case is sent back (reconsideration determination that your

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physical or mental impairment(s) has still pending, unless you have com- ceased, has never existed, or is no pleted a trial work period and are en- longer disabling. A hearing must be re- gaging in substantial gainful activity. quested as provided in § 416.1433, and If you have completed a trial work pe- you must request continued benefits riod and previously received continued using a statement in accordance with benefits you may still be eligible for paragraph (b) of this section. special cash benefits under § 416.261 or (2) If you fail to request a hearing special SSI eligibility status under and continued benefits within the 10- § 416.264. (Effective July 1, 1987, a title day period required under paragraph XVI individual is no longer subject to a (d)(1) of this section, but you later ask trial work period or cessation based on that we continue your benefits pending engaging in substantial gainful activ- an administrative law judge’s decision, ity in order to be eligible for special we will use the rules as provided in benefits under § 416.261 or special status § 416.1411 to determine whether good under § 416.264.) If we determine that cause exists for your failing to request you no longer meet a requirement to benefit continuation within 10 days receive benefits, we will send you a after receipt of the reconsideration de- written notice. The written notice will termination. If you request continued explain why your continued benefits benefits after the 10-day period, we will will not be reinstated or will be for an consider the delayed request to be amount less than you received before timely and will pay continued benefits the prior administrative law judge’s de- only if good cause for delay is estab- cision. The notice will also explain lished. your right to reconsideration under (e) What you must do when your case is § 416.1407, if you disagree. If you request remanded to an administrative law judge. a reconsideration, you will have the If we send back (remand) your case to chance to explain why you believe your an administrative law judge for further benefits should be reinstated or should action under the rules provided in be at a higher amount. If the final deci- § 416.1477, and the administrative law sion on your appeal of your medical judge’s decision or dismissal order cessation is a favorable one, we will issued on your medical cessation ap- send you a written notice in which we peal is vacated and is no longer in ef- will advise you of any right to reenti- fect, you may be eligible for continued tlement to benefits including special benefits pending a new decision by the benefits under § 416.261 or special status administrative law judge or final ac- under § 416.264. If you disagree with our tion by the Appeals Council on the ad- determination on your appeal, you will ministrative law judge’s recommended have the right to appeal this decision. decision. (2) After we verify that you meet all (1) When your case is remanded to an the nonmedical requirements to re- administrative law judge, and you have ceive benefits as stated in paragraph elected to receive continued benefits, (e)(1) of this section, and if you pre- we will contact you to update our file viously elected to receive continued to verify that you continue to meet the benefits pending the administrative nonmedical requirements to receive law judge’s decision, we will start con- benefits based on disability or blind- tinued benefits again. We will send you ness. To determine your correct pay- a notice telling you this. You do not ment amount, we will ask you to pro- have to complete a request to have vide information about events such as these same benefits continued through changes in living arrangements, in- the month before the month the new come, or resources since our last con- decision or order of dismissal is issued tact with you. If you have returned to by the administrative law judge or work, we will request additional infor- through the month before the month mation about this work activity. Un- the Appeals Council takes final action less your earnings cause your income on the administrative law judge’s rec- to be too much to receive benefits, ommended decision. These continued your continued benefits will be paid benefits will begin again with the first while your appeal of the medical ces- month of nonpayment based on the sation of your disability/blindness is prior administrative law judge hearing

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decision or dismissal order. Our notice covery and waiver provisions of sub- explaining continued benefits will also part E of this part. tell you to report to us any changes or (2) Waiver of recovery of an overpay- events that affect your receipt of bene- ment resulting from continued benefits fits. to you may be considered as long as (3) When your case is remanded to an the cessation determination was ap- administrative law judge, and if you pealed in good faith. We will assume did not previously elect to have bene- that your appeal was made in good fits continued pending an administra- faith and, therefore, you have the right tive law judge decision, we will send to waiver consideration unless you fail you a notice telling you that if you to cooperate in connection with the ap- want to change that election, you must peal, e.g., if you fail (without good rea- request to do so no later than 10 days son) to give us medical or other evi- after you receive our notice. If you do dence we request, or to go for a phys- make this new election, and after we ical or mental examination when re- verify that you meet all the nonmed- quested, in connection with the appeal. ical requirements as explained in para- In determining whether you have good graph (e)(1) of this section, benefits cause for failure to cooperate and, will begin with the month of the Ap- thus, whether an appeal was made in peals Council remand order and will good faith, we will take into account continue as stated in paragraph (e)(2) any physical, mental, educational, or of this section. linguistic limitations (including any (4) If a court orders that your case be lack of facility with the English lan- sent back to us (remanded) and your guage) you may have which may have case is sent to an administrative law caused your failure to cooperate. judge for further action under the rules [53 FR 29023, Aug. 2, 1988; 53 FR 39015, Oct. 4, provided in § 416.1483, the administra- 1988, as amended at 59 FR 1637, Jan. 12, 1994] tive law judge’s decision or dismissal order on your medical cessation appeal § 416.998 If you become disabled by an- is vacated and is no longer in effect. other impairment(s). You may be eligible for continued ben- If a new severe impairment(s) begins efits pending a new decision by the ad- in or before the month in which your ministrative law judge or final action last impairment(s) ends, we will find by the Appeals Council on the adminis- that your disability is continuing. The trative law judge’s recommended deci- new impairment(s) need not be ex- sion. In these court-remanded cases pected to last 12 months or to result in reaching the administrative law judge, death, but it must be severe enough to we will follow the same rules provided keep you from doing substantial gain- in paragraph (e) (1), (2), and (3) of this ful activity, or severe enough so that section. you are still disabled under § 416.994, or, (f) What if your benefits are suspended, if you are a child, to result in marked reduced or terminated for other reasons. If and severe functional limitations. we determine that your payments [62 FR 6432, Feb. 11, 1997] should be reduced, suspended or terminated for reasons not connected with § 416.999 What is expedited reinstate- your medical condition (see subpart M ment? of Regulations No. 16) benefits may be The expedited reinstatement provi- continued under the procedure de- sion provides you another option for scribed in § 416.1336. regaining eligibility for benefits when (g) Responsibility to pay back continued we previously terminated your eligi- benefits. (1) If the final decision of the bility for disability benefits due to Secretary affirms the determination your work activity. The expedited rein- that you are not entitled to benefits, statement provision provides you the you will be asked to pay back any con- option of requesting that your prior tinued benefits you receive. However, eligibility for disability benefits be re- you will have the right to ask that you instated, rather than filing a new ap- not be required to pay back the bene- plication for a new period of eligibility. fits as described in the overpayment re- Since January 1, 2001, you can request

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to be reinstated to benefits if you stop (b) You are eligible for reinstatement doing substantial gainful activity with- if you are the spouse of an individual in 60 months of your prior termination. who can be reinstated under § 416.999a You must not be able to do substantial if— gainful activity because of your med- (1) You were previously an eligible ical condition. Your current impair- spouse of the individual; ment must be the same as or related to (2) You meet the requirements for your prior impairment and you must eligibility as explained in § 416.202 ex- be disabled. To determine if you are cept the requirement that you must disabled, we will use our medical im- file an application; and provement review standard that we use (3) You request reinstatement. in our continuing disability review (c) We will determine that you are process. The advantage of using the not able to do substantial gainful ac- medical improvement review standard tivity because of your medical condi- is that we will generally find that you tion, under paragraph (a)(4)(i) of this are disabled unless your impairment section, when: has improved so that you are able to (1) You certify under § 416.999b(e) that work or unless an exception under the you are unable to do substantial gain- medical improvement review standard ful activity because of your medical process applies. We explain the rules condition; for expedited reinstatement in (2) You are not able or become unable §§ 416.999a through 416.999d. to do substantial gainful activity in the month you file your request for re- [70 FR 57144, Sept. 30, 2005] instatement; and (3) We determine that you are dis- § 416.999a Who is eligible for expedited abled under paragraph (a)(4)(iii) of this reinstatement? section. (a) You can have your eligibility to benefits reinstated under expedited re- [70 FR 57144, Sept. 30, 2005, as amended at 81 instatement if— FR 71370, Oct. 17, 2016] (1) You were previously eligible for a § 416.999b How do I request reinstate- benefit based on disability or blindness ment? as explained in § 416.202; (a) You must make your request for (2) Your disability or blindness eligi- reinstatement in writing. bility referred to in paragraph (a)(1) of (b) You must have filed your request this section was terminated because of on or after January 1, 2001. earned income or a combination of (c) You must provide the information earned and unearned income; we request so that we can determine (3) You file your request for rein- whether you meet the eligibility re- statement timely under § 416.999b; and quirements listed in § 416.999a. (4) In the month you file your request (d) We must receive your request for reinstatement— within the consecutive 60-month period (i) You are not able or become unable that begins with the month in which to do substantial gainful activity be- your eligibility terminated due to cause of your medical condition as de- earned income, or a combination of termined under paragraph (c) of this earned and unearned income. If we re- section. ceive your request after the 60-month (ii) Your current impairment is the period, we can grant you an extension same as or related to the impairment if we determine you had good cause, that we used as the basis for your pre- under the standards explained in vious eligibility referred to in para- § 416.1411, for not filing the request graph (a)(2) of this section, timely. (iii) You are disabled or blind, as de- (e) You must certify that you are dis- termined under the medical improve- abled, that your current impairment(s) ment review standard in §§ 416.994 or is the same as or related to the impair- 416.994a, and ment(s) that we used as the basis for (iv) You meet the non-medical re- the eligibility you are requesting to be quirements for eligibility as explained reinstated, that you are unable to do in § 416.202. substantial gainful activity because of

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your medical condition, and that you 2003. Since Mr. K meets the other factors for meet the non-medical requirements for possible reinstatement (i.e., his prior eligi- eligibility for benefits. bility was terminated within the last 60 months because of his work activity) we [70 FR 57144, Sept. 30, 2005] start paying him provisional benefits beginning May 2004 while we determine whether § 416.999c How do we determine provi- he is disabled and whether his current im- sional benefits? pairment(s) is the same as or related to the (a) You may receive up to six con- impairment(s) that we used as the basis for the benefit that was terminated in January secutive months of provisional cash 2003. In July 2004 we determine that Mr. K benefits and Medicaid during the provi- cannot be reinstated because he is not dis- sional benefit period, while we deter- abled under the medical improvement review mine whether we can reinstate your standard; therefore we stop his provisional disability benefit eligibility under benefits. Mr. K does not request review of § 416.999a— the determination. In January 2005 Mr. K (1) We will pay you provisional bene- again requests reinstatement on the eligi- fits beginning with the month after bility that terminated in January 2003. Since this request again meets all the other factors you file your request for reinstatement for possible reinstatement mentioned above, under § 416.999a(a). and his request is still within 60 months (2) If you are an eligible spouse, you from January 2003, we will make a new de- can receive provisional benefits with termination on whether he is disabled and the month your spouse’s provisional whether his current impairment(s) is the benefits begin. same as or related to the impairment(s) that (3) If you do not have an eligible we used as the basis for the benefit that was spouse, we will pay you a monthly pro- terminated in January 2003. Since the Janu- ary 2005 request and the April 2004 request visional benefit amount equal to the both request reinstatement on the same ben- monthly amount that would be payable efit that terminated in January 2003, and to an eligible individual under §§ 416.401 since we already paid Mr. K provisional bene- through 416.435 with the same kind and fits based upon the April 2004 request, we amount of income as you have. will not pay additional provisional benefits (4) If you have an eligible spouse, we on the January 2005 request for reinstate- will pay you and your spouse a month- ment. ly provisional benefit amount equal to Example 2: Assume the same facts as shown the monthly amount that would be in Example 1 of this section, with the addition of these facts. We approve Mr. K’s Janu- payable to an eligible individual and ary 2005 request for reinstatement and start eligible spouse under § 416.401 through his reinstated benefits beginning February 416.435 with the same kind and amount 2005. Mr. K subsequently returns to work and of income as you and your spouse have. his benefits are again terminated due to his (5) Your provisional benefits will not work activity in January 2008. Mr. K again include state supplementary payments stops work and requests reinstatement in payable under §§ 416.2001 through January 2010. Since Mr. K meets the other 416.2176. factors for possible reinstatement (i.e., his (b) You cannot receive provisional prior eligibility was terminated within the last 60 months because of his work activity) cash benefits or Medicaid a second we start paying him provisional benefits be- time under this section when— ginning February 2010 while we determine (1) You request reinstatement under whether he is disabled and whether his cur- § 416.999a; rent impairment(s) is the same as or related (2) You previously received provi- to the impairment(s) that we used as the sional cash benefits or Medicaid under basis for the benefit that was terminated in this section based upon a prior request January 2008. for reinstatement filed under (c) We will not pay you a provisional § 416.999a(a); and benefit for a month where you are not (3) Your requests under paragraphs eligible for a payment under §§ 416.1322, (b)(1) and (b)(2) are for the same pre- 416.1323, 416.1325, 416.1327, 416.1329, vious disability eligibility referred to 416.1330, 416.1334, and 416.1339. in § 416.999a(a)(2) of this section. (d) We will not pay you a provisional (4) Examples: benefit for any month that is after the Example 1: Mr. K files a request for rein- earliest of either: the month we send statement in April 2004. His disability ben- you notice of our determination on efit had previously terminated in January your request for reinstatement; or, the

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sixth month following the month you month equals or exceeds the reinstated requested expedited reinstatement. benefit due, we will treat the difference (e) You are not eligible for provi- as an overpayment under § 416.536. sional benefits if— (c) Once you have been reinstated (1) Prior to starting your provisional under § 416.999a you cannot be rein- benefits we determine that you do not stated again until you have completed meet the requirements for reinstate- a 24-month initial reinstatement pe- ment under §§ 416.999a(a); or riod. Your initial reinstatement period (2) We determine that your state- begins with the month your reinstated ments on your request for reinstate- benefits begin under paragraph (a) of ment, made under § 416.999b(d)(2), are this section and ends when you have false. had 24 payable months of reinstated (f) Determinations we make regard- benefits. We consider you to have a ing your provisional benefits under payable month for the purposes of this paragraphs (a) through (e) of this sec- paragraph when you are due a cash tion are final and are not subject to ad- benefit of any amount for the month ministrative and judicial review under based upon our normal computation subpart N of part 416. and payment rules in § 416.401 through (g) If you were previously overpaid § 416.435 or if you are considered to be benefits under title II or title XVI of receiving SSI benefits in a month the Act, we will not recover the over- under section 1619(b) of the Social Se- payment from your provisional bene- curity Act. If your entire benefit pay- fits unless you give us permission. ment due you for a month is adjusted (h) If we determine you are not eligi- for recovery of an overpayment under ble to receive reinstated benefits, pro- §§ 416.570 and 416.571 or if the amount of visional benefits we have already paid the provisional benefit already paid you under this section that were made you for a month exceeds the amount of prior to the termination month under the reinstated benefit payable for that paragraph (d) of this section will not be month so that no additional payment subject to recovery as an overpayment is due, we will consider the month a unless we determine that you knew, or payable month. should have known, you did not meet (d) Your eligibility for reinstated the requirements for reinstatement in benefits ends with the month preceding § 416.999a. If we inadvertently pay you the earliest of the following months— provisional benefits when you are not (1) The month an applicable termi- entitled to them because we have al- nating event in §§ 416.1331 through ready made a determination described 416.1339 occurs; in paragraph (e) of this section, they (2) The third month following the will be subject to recover as an over- month in which your disability ceases; payment under subpart E of part 416. or [70 FR 57144, Sept. 30, 2005] (3) The month in which you die. (e) Determinations we make under § 416.999d How do we determine rein- this section are initial determinations stated benefits? under § 416.1402 and are subject to re- (a) If you meet the requirements for view under subpart N of part 416. reinstatement under § 416.999a(a), we (f) If we determine you are not eligi- will reinstate your benefits with the ble for reinstated benefits, we will con- month after the month you filed your sider your request filed under request for reinstatement. We cannot § 416.999a(a) your intent to claim bene- reinstate your eligibility for any fits under § 416.340. month prior to February 2001. (b) We will compute your reinstated [70 FR 57144, Sept. 30, 2005] benefit amount and determine benefits payable under the applicable para- Subpart J—Determinations of graphs in §§ 416.401 through 416.435. We Disability will reduce your reinstated benefit due in a month by a provisional benefit we AUTHORITY: Secs. 702(a)(5), 1614, 1631, and already paid you for that month. If 1633 of the Social Security Act (42 U.S.C. your provisional benefit paid for a 902(a)(5), 1382c, 1383, and 1383b).

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SOURCE: 46 FR 29211, May 29, 1981, unless ability determination function from a otherwise noted. State agency.

GENERAL PROVISIONS [46 FR 29211, May 29, 1981, as amended at 62 FR 38454, July 18, 1997; 71 FR 16461, Mar. 31, § 416.1001 Purpose and scope. 2006; 76 FR 24812, May 3, 2011] This subpart describes the standards § 416.1002 Definitions. of performance and administrative re- For purposes of this subpart: quirements and procedures for States Act means the Social Security Act, as making determinations of disability amended. for the Commissioner under title XVI Class or classes of cases means the cat- of the Act. It also establishes the Com- egories into which disability claims are missioner’s responsibilities in carrying divided according to their characteris- out the disability determination func- tics. tion. Commissioner means the Commis- (a) Sections 416.1001 through 416.1003 sioner of Social Security or his or her describe the purpose of the regulations authorized designee. and the meaning of terms frequently Compassionate allowance means a de- used in the regulations. They also termination or decision we make under briefly set forth the responsibilities of a process that identifies for expedited the Commissioner and the States cov- handling claims that involve impair- ered in detail in other sections. ments that invariably qualify under (b) Sections 416.1010 through 416.1018 the Listing of Impairments in appendix describe the Commissioner’s and the 1 to subpart P of part 404 of this chap- State’s responsibilities in performing ter based on minimal, but sufficient, the disability determination function. objective medical evidence. (c) Sections 416.1020 through 416.1033 Determination of disability or disability describe the administrative respon- determination means one or more of the sibilities and requirements of the following decisions: States. The corresponding role of the (a) Whether or not a person is under Commissioner is also set out. a disability; (d) Sections 416.1040 through 416.1050 (b) The date a person’s disability describe the performance accuracy and began; or processing time standards for meas- (c) The date a person’s disability uring State agency performance. ended. (e) Sections 416.1060 through 416.1061 Disability means disability or blindness describe when and what kind of assist- as defined in sections 1614(a) (2) and (3) ance the Commissioner will provide of the Act. State agencies to help them improve Disability determination function performance. means making determinations as to (f) Sections 416.1070 through 416.1075 disability or blindness and carrying out describe the level of performance below related administrative and other re- which the Commissioner will consider sponsibilities. a State agency to be substantially fail- Disability program means the Federal ing to make disability determinations program for providing supplemental se- consistent with the regulations and curity income benefits for the blind other written guidelines and the result- and disabled under title XVI of the Act, ing action the Commissioner will take. as amended. (g) Sections 416.1080 through 416.1083 Initial means the first level of dis- describe the rules for resolving disability or blindness adjudication. putes concerning fiscal issues and pro- Other written guidelines means writ- viding hearings when we propose to ten issuances such as Social Security find that a State is in substantial fail- Rulings and memoranda by the Com- ure. missioner of Social Security, the Dep- (h) Sections 416.1090 through 416.1094 uty Commissioner for Programs and describe when and what action the Policy, or the Associate Commissioner Commissioner will take and what ac- for Disability and the procedures, tion the State will be expected to take guides, and operating instructions in if the Commissioner assumes the dis- the Disability Insurance sections of the

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Program Operations Manual System and uniform administration of the dis- that are instructive, interpretive, ability program; clarifying, and/or administrative and (2) Provide training materials or in not designated as advisory or discre- some instances conduct or specify tionary. The purpose of including the training (see § 416.1022); foregoing material in the definition is (3) Provide funds to the State agency to assure uniform national application for the necessary cost of performing of program standards and service deliv- the disability determination function ery to the public. (see § 416.1026); Quick disability determination means (4) Monitor and evaluate the perform- an initial determination on a claim ance of the State agency under the es- that we have identified as one that re- tablished standards (see §§ 416.1044 and flects a high degree of probability that 416.1045); and you will be found disabled and where (5) Maintain liaison with the medical we expect that your allegations will be profession nationally and with national easily and quickly verified. organizations and agencies whose in- Regulations means regulations in this terests or activities may affect the dis- subpart issued under sections 1102, ability program. 1631(c) and 1633(a) of the Act, unless (c) Responsibilities of the State. The otherwise indicated. State will: State means any of the 50 States of (1) Provide management needed to the United States and the District of insure that the State agency carries Columbia. It includes the State agency. out the disability determination func- State agency means that agency of a tion so that disability determinations State which has been designated by the are made accurately and promptly; State to carry out the disability deter- (2) Provide an organizational struc- mination function. ture, adequate facilities, qualified per- We, us, and our refers to the Social sonnel, medical consultant services, Security Administration (SSA). designated quick disability determina- [46 FR 29211, May 29, 1981, as amended at 56 tion examiners (§§ 416.1019 and FR 11021, Mar. 14, 1991; 62 FR 38454, July 18, 416.1020(c)), and a quality assurance 1997; 72 FR 51178, Sept. 6, 2007; 75 FR 62683, function (§§ 416.1020 through 416.1024); Oct. 13, 2010] (3) Furnish reports and records relat- § 416.1003 Basic responsibilities for us ing to the administration of the dis- and the State. ability program (§ 416.1025); (4) Submit budgets (§ 416.1026); (a) General. We will work with the (5) Cooperate with audits (§ 416.1027); State to provide and maintain an effective system for processing claims of (6) Insure that all applicants for and those who apply for and who are receiv- recipients of disability benefits are ing benefits under the disability pro- treated equally and courteously; gram. We will provide program stand- (7) Be responsible for property used ards, leadership, and oversight. We do for disability program purposes not intend to become involved in the (§ 416.1028); State’s ongoing management of the (8) Take part in the research and program except as is necessary and in demonstration projects (§ 416.1029); accordance with these regulations. The (9) Coordinate with other agencies State will comply with our regulations (§ 416.1030); and other written guidelines. (10) Safeguard the records created by (b) Our responsibilities. We will: the State in performing the disability (1) Periodically review the regula- determination function (§ 416.1031); tions and other written guidelines to (11) Comply with other provisions of determine whether they insure effec- the Federal law and regulations that tive and uniform administration of the apply to the State in performing the disability program. To the extent fea- disability determination function; sible, we will consult with and take (12) Comply with other written guide- into consideration the experience of lines (§ 416.1033); the States in issuing regulations and (13) Maintain liaison with the med- guidelines necessary to insure effective ical profession and organizations that

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may facilitate performing the dis- the date and the conditions under ability determination function; and which the State may again make them. (14) Assist us in other ways that we determine may promote the objectives § 416.1013 Disability determinations of effective and uniform administra- the State makes. tion. (a) General rule. A State agency will [46 FR 29211, May 29, 1981, as amended at 72 make determinations of disability with FR 51178, Sept. 6, 2007] respect to all persons in the State except those individuals whose cases are RESPONSIBILITIES FOR PERFORMING THE in a class specifically excluded by our DISABILITY DETERMINATION FUNCTION written guidelines. A determination of disability made by the State is the de- § 416.1010 How a State notifies us that termination of the Commissioner, ex- it wishes to perform the disability determination function. cept as described in § 416.903(d)(1). (b) New classes of cases. Where any (a) Deemed notice. Any State that has new class or classes of cases arise rein effect as of June 1, 1981, an agree- quiring determinations of disability, ment with us to make disability deter- we will determine the conditions under minations will be deemed to have given which a State may choose not to make us notice that it wishes to perform the the disability determinations. We will disability determination function, in provide the State with the necessary lieu of continuing the agreement in ef- funding to do the additional work. fect after June 1, 1981. (b) Written notice. After June 1, 1981, a (c) Temporary transfer of classes of State not making disability determina- cases. We will make disability deter- tions that wishes to perform the dis- minations for classes of cases tempo- ability determination function under rarily transferred to us by the State these regulations must notify us in agency if the State agency asks us to writing. The notice must be from an of- do so and we agree. The State agency ficial authorized to act for the State will make written arrangements with for this purpose. The State will provide us which will specify the period of time an opinion from the State’s Attorney and the class or classes of cases we will General verifying the authority of the do. official who sent the notice to act for [46 FR 29211, May 29, 1981, as amended at 62 the State. FR 38455, July 18, 1997]

§ 416.1011 How we notify a State § 416.1014 Responsibilities for obtain- whether it may perform the dis- ing evidence to make disability de- ability determination function. terminations. (a) If a State notifies us in writing (a) We or the State agency will se- that it wishes to perform the disability cure from the claimant or other determination function, we will notify sources any evidence the State agency the State in writing whether or not it needs to make a disability determina- may perform the function. The State tion. When we secure the evidence, we will begin performing the disability de- will furnish it to the State agency for termination function beginning with use in making the disability deter- the month we and the State agree mination. upon. (b) At our request, the State agency (b) If we have previously found that a will obtain and furnish medical or State agency has substantially failed other evidence and provide assistance to make disability determinations in as may be necessary for us to carry out accordance with the law or these regu- our responsibility for making dis- lations and other written guidelines or ability determinations in those classes if the State has previously notified us of cases described in the written guide- in writing that it does not wish to lines for which the State agency does make disability determinations, the notice will advise the State whether not make the determination. the State agency may again make the [46 FR 29211, May 29, 1981, as amended at 79 disability determinations and, if so, FR 33683, June 12, 2014]

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§ 416.1015 Making disability deter- icine appropriate to the child’s impair- minations. ment(s) evaluates the case of the child. (a) When making a disability deter- (e) The State agency will certify each mination, the State agency will apply determination of disability to us on subpart I, part 416, of our regulations. forms we provide. (f) The State agency will furnish us (b) The State agency will make dis- with all the evidence it considered in ability determinations based only on making its determination. the medical and nonmedical evidence (g) The State agency will not be rein its files. sponsible for defending in court any de- (c) Disability determinations will be termination made, or any procedure for made by: making determinations, under these (1) A State agency medical or psycho- regulations. logical consultant and a State agency disability examiner; [52 FR 23928, Sept. 9, 1987, as amended at 56 (2) A State agency disability exam- FR 11021, Mar. 14, 1991; 58 FR 47587, Sept. 9, 1993; 61 FR 11136, Mar. 19, 1996; 62 FR 38455, iner alone when there is no medical July 18, 1997; 65 FR 34959, June 1, 2000; 75 FR evidence to be evaluated (i.e., no med- 62684, Oct. 13, 2010; 78 FR 66639, Nov. 6, 2013; ical evidence exists or we are unable, 79 FR 51243, Aug. 28, 2014; 80 FR 63093, Oct. 19, despite making every reasonable effort, 2015; 81 FR 73028, Oct. 24, 2016; 82 FR 5883, to obtain any medical evidence that Jan. 18, 2017] may exist) and the individual fails or refuses, without a good reason, to at- § 416.1016 Medical consultants and tend a consultative examination (see psychological consultants. § 416.918); (a) What is a medical consultant? A (3) A State agency disability exam- medical consultant is a member of a iner alone if you are not a child (a per- team that makes disability determina- son who has not attained age 18), and tions in a State agency (see § 416.1015), the claim is adjudicated under the or who is a member of a team that quick disability determination process makes disability determinations for us (see § 416.1019) or the compassionate al- when we make disability determina- lowance process (see § 416.1002), and the tions ourselves. The medical consult- initial or reconsidered determination is ant completes the medical portion of fully favorable to you. This paragraph the case review and any applicable re- (c)(3) will no longer be effective on De- sidual functional capacity assessment cember 28, 2018 unless we terminate it about all physical impairment(s) in a earlier by publication of a final rule in claim. the FEDERAL REGISTER; or (b) What qualifications must a medical (4) A State agency disability hearing consultant have? A medical consultant officer. is a licensed physician, as defined in § 416.902(a)(1). See § 416.1016 for the definition of medical or (c) What is a psychological consultant? psychological consultant and § 416.1415 for A psychological consultant is a mem- the definition of disability hearing officer. The State agency disability examiner and ber of a team that makes disability de- disability hearing officer must be qualified terminations in a State agency (see to interpret and evaluate medical reports § 416.1015), or who is a member of a and other evidence relating to the claimant’s team that makes disability determina- physical or mental impairments and as nections for us when we make disability essary to determine the capacities of the determinations ourselves. The psycho- claimant to perform substantial gainful ac- logical consultant completes the med- tivity. See § 416.972 for what we mean by sub- ical portion of the case review and any stantial gainful activity. applicable residual functional capacity (d) In making a determination under assessment about all mental impair- title XVI with respect to the disability ment(s) in a claim. When we are unable of a child to whom paragraph (d) of this to obtain the services of a qualified section does not apply, we will make psychiatrist or psychologist despite reasonable efforts to ensure that a making every reasonable effort (see qualified pediatrician or other indi- § 416.1017) in a claim involving a mental vidual who specializes in a field of med- impairment(s), a medical consultant

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will evaluate the mental impair- necessary reviews. When it does not ment(s). have sufficient resources to make the (d) What qualifications must a psycho- necessary reviews, the State agency logical consultant have? A psychological must attempt to obtain the resources consultant can be either a licensed psy- needed. If the State agency is unable to chiatrist or psychologist. We will only obtain additional physicians, psychia- consider a psychologist qualified to be trists, and psychologists because of low a psychological consultant if he or she: salary rates or fee schedules, it should (1) Is licensed or certified as a psy- attempt to raise the State agency’s chologist at the independent practice levels of compensation to meet the pre- level of psychology by the State in vailing rates for these services. If these which he or she practices; and efforts are unsuccessful, the State (2)(i) Possesses a doctorate degree in agency will seek assistance from us. psychology from a program in clinical We will assist the State agency as nec- psychology of an educational institu- essary. We will also monitor the State tion accredited by an organization rec- agency’s efforts and where the State ognized by the Council on Post-Sec- ondary Accreditation; or agency is unable to obtain the nec- (ii) Is listed in a national register of essary services, we will make every health service providers in psychology reasonable effort to provide the serv- which the Commissioner of Social Se- ices using Federal resources. curity deems appropriate; and (b) Federal resources may include the (3) Possesses 2 years of supervised use of Federal contracts for the serv- clinical experience as a psychologist in ices of qualified psychiatrists and psy- health service, at least 1 year of which chologists to review mental impair- is post-masters degree. ment cases. Where Federal resources (e) Cases involving both physical and are required to perform these reviews, mental impairments. In a case where which are a basic State agency respon- there is evidence of both physical and sibility, and where appropriate, the mental impairments, the medical con- State agency’s budget will be reduced sultant will evaluate the physical im- accordingly. pairments in accordance with para- (c) Where every reasonable effort is graph (a) of this section, and the psy- made to obtain the services of a quali- chological consultant will evaluate the fied psychiatrist or psychologist to re- mental impairment(s) in accordance view a mental impairment case, but with paragraph (c) of this section. the professional services are not ob- [82 FR 5883, Jan. 18, 2017] tained, a physician who is not a psychiatrist will review the mental im- § 416.1017 Reasonable efforts to obtain pairment case. For these purposes, review by a physician, psychiatrist, every reasonable effort to ensure that a and psychologist. qualified psychiatrist or psychologist (a) When the evidence of record indi- review mental impairment cases will cates the existence of a physical im- be considered to have been made only pairment, the State agency must make after efforts by both State and Federal every reasonable effort to ensure that a agencies as set forth in paragraphs (a) medical consultant completes the med- and (b) of this section are made. ical portion of the case review and any [52 FR 23928, Sept. 9, 1987, as amended at 82 applicable residual functional capacity FR 5883, Jan. 18, 2017] assessment. When the evidence of record indicates the existence of a § 416.1018 Notifying claimant of the mental impairment, the State agency disability determination. must make every reasonable effort to The State agency will prepare denial ensure that a psychological consultant notices in accordance with subpart N of completes the medical portion of the this part whenever it makes a dis- case review and any applicable residual ability determination which is fully or functional capacity assessment. The State agency must determine if addi- partially unfavorable to the claimant. tional physicians, psychiatrists, and [46 FR 29211, May 29, 1981, as amended at 75 psychologists are needed to make the FR 33169, June 11, 2010]

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QUICK DISABILITY DETERMINATIONS ADMINISTRATIVE RESPONSIBILITIES AND REQUIREMENTS § 416.1019 Quick disability determination process. § 416.1020 General administrative requirements. (a) If we identify a claim as one involving a high degree of probability (a) The State will provide the organi- that the individual is disabled, and we zational structure, qualified personnel, expect that the individual’s allegations medical consultant services, and a quality assurance function sufficient to will be easily and quickly verified, we ensure that disability determinations will refer the claim to the State agency are made accurately and promptly. We for consideration under the quick dis- may impose specific administrative re- ability determination process pursuant quirements in these areas and in those to this section and § 416.1020(c). under ‘‘Administrative Responsibilities (b) If we refer a claim to the State and Requirements’’ in order to estab- agency for a quick disability deter- lish uniform, national administrative mination, a designated quick disability practices or to correct the areas of de- determination examiner must do all of ficiencies which may later cause the the following: State to be substantially failing to (1) Subject to the provisions in para- comply with our regulations or other graph (c) of this section, make the dis- written guidelines. We will notify the ability determination after consulting State, in writing, of the administrative with a State agency medical or psycho- requirements being imposed and of any logical consultant if the State agency administrative deficiencies it is re- disability examiner determines con- quired to correct. We will allow the sultation is appropriate or if consulta- State 90 days from the date of this no- tion is required under § 416.926(c). The tice to make appropriate corrections. Once corrected, we will monitor the State agency may certify the disability State’s administrative practices for 180 determination forms to us without the days. If the State does not meet the re- signature of the medical or psycho- quirements or correct all of the defi- logical consultant. ciencies, or, if some of the deficiencies (2) Make the quick disability deter- recur, we may initiate procedures to mination based only on the medical determine if the State is substantially and nonmedical evidence in the file. failing to follow our regulations or (3) Subject to the provisions in para- other written guidelines. graph (c) of this section, make the (b) The State is responsible for mak- quick disability determination by ap- ing accurate and prompt disability de- plying the rules in subpart I of this terminations. part. (c) Each State agency will designate (c) If the quick disability determina- experienced disability examiners to tion examiner cannot make a deter- handle claims we refer to it under mination that is fully favorable, or if § 416.1019(a). there is an unresolved disagreement be- [46 FR 29211, May 29, 1981, as amended at 56 tween the disability examiner and the FR 11021, Mar. 14, 1991; 56 FR 13365, Apr. 1, medical or psychological consultant 1991; 72 FR 51178, Sept. 6, 2007] (except when a disability examiner § 416.1021 Personnel. makes the determination alone under § 416.1015(c)(3)), the State agency will (a) Equal Employment Opportunity. adjudicate the claim using the regu- The State will comply with all applica- larly applicable procedures in this sub- ble Federal statutes, executive orders part. and regulations concerned with equal employment opportunities. [72 FR 51178, Sept. 6, 2007, as amended at 75 (b) Selection, tenure, and compensation. FR 62684, Oct. 13, 2010] The State agency will, except as may be inconsistent with paragraph (a) of this section, adhere to applicable State approved personnel standards in the selection, tenure, and compensation of

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any individual employed in the dis- visits and other means, such as tele- ability program. communications, of contacting the (c) Travel. The State will make per- State agency to obtain information sonnel available to attend meetings or about its functions. We will contact workshops as may be sponsored or ap- the State agency and give reasonable proved by us for furthering the pur- prior notice of the times and purposes poses of the disability program. of any visits. (d) Restrictions. Subject to appropriate Federal funding, the State will, [46 FR 29211, May 29, 1981, as amended at 56 to the best of its ability, facilitate the FR 11022, Mar. 14, 1991] processing of disability claims by § 416.1024 Medical and other pur- avoiding personnel freezes, restrictions chased services. against overtime work, or curtailment of facilities or activities. The State will determine the rates of payment for purchasing medical or § 416.1022 Training. other services necessary to make deter- The State will insure that all em- minations of disability. The rates may ployees have an acceptable level of not exceed the highest rate paid by competence. We will provide training Federal or other agencies in the State and other instructional materials to fa- for the same or similar type of service. cilitate basic and advanced technical The State will maintain documenta- proficiency of disability staff in order tion to support the rates of payment it to insure uniformity and effectiveness uses. in the administration of the disability [46 FR 29211, May 29, 1981, as amended at 71 program. We will conduct or specify FR 16461, Mar. 31, 2006; 76 FR 24812, May 3, training, as appropriate but only if: 2011] (a) A State agency’s performance ap- proaches unacceptable levels or § 416.1025 Records and reports. (b) The material required for the (a) The State will establish and training is complex or the capacity of maintain the records and furnish the the State to deliver the training is in schedules, financial, cost, and other re- doubt and uniformity of the training is ports relating to the administration of essential. the disability programs as we may re- § 416.1023 Facilities. quire. (b) The State will permit us and the (a) Space, equipment, supplies, and Comptroller General of the United other services. Subject to appropriate States (including duly authorized rep- Federal funding, the State will provide resentatives) access to and the right to adequate space, equipment, supplies, examine records relating to the work and other services to facilitate making which the State performs under these accurate and prompt disability deter- regulations. These records will be re- minations. tained by the State for the periods of (b) Location of facilities. Subject to ap- time specified for retention of records propriate Federal funding, the State in the Federal Procurement Regula- will determine the location where the tions (41 CFR parts 1–20). disability determination function is to be performed so that disability deter- § 416.1026 Fiscal. minations are made accurately and promptly. (a) We will give the State funds, in (c) Access. The State will permit us advance or by way of reimbursement, access to the premises where the dis- for necessary costs in making disability determination function is per- ability determinations under these reg- formed and also where it is managed ulations. Necessary costs are direct as for the purposes of inspecting and ob- well as indirect costs as defined in 41 taining information about the work CFR part 1–15, subpart 1–15.7 of the and activities required by our regula- Federal Procurement Regulations Sys- tions and assuring compliance with tem for costs incurred before April 1, pertinent Federal statutes and regula- 1984; and 48 CFR part 31, subpart 31.6 of tions. Access includes personal onsite the Federal Acquisition Regulations

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System and Federal Management Cir- States receiving Federal assistance. If cular A–74–4 1 as amended or superseded the audit performed by the State meets for costs incurred after March 31, 1984. our program requirements, we will ac- (b) The State will submit estimates cept the findings and recommendations of anticipated costs in the form of a of the audit. The State will make every budget at the time and in the manner effort to act upon and resolve any we require. items questioned in the audit. (c) We will notify the State of the (2) Questioned items. Items questioned amount which will be made available as a result of an audit under the Single to it as well as what anticipated costs Audit Act of 1984 of a cross-cutting na- are being approved. ture will be resolved by the Depart- (d) The State may not incur or make ment of Health and Human Services, expenditures for items of cost not ap- Office of Grant and Contract Financial proved by us or in excess of the amount Management. A cross-cutting issue is we make available to the State. one that involves more than one Fed- (e) After the close of a period for eral awarding agency. Questioned which funds have been made available items affecting only the disability pro- to the State, the State will submit a gram will be resolved by SSA in accord report of its expenditures. Based on an with paragraph (b)(2) of this section. audit arranged by the State under Pub. (3) State appeal of audit determinations. L. 98–502, the Single Audit Act of 1984, The Office of Grant and Contract Fi- or by the Inspector General of the So- nancial Management will notify the cial Security Administration or based State of its determination on ques- on an audit or review by the Social Se- tioned cross-cutting items. If the State curity Administration (see § 416.1027), disagrees with that determination, it we will determine whether the expendi- may appeal in writing within 60 days of tures were consistent with cost prin- receiving the determination. State ap- ciples described in 41 CFR part 1–15, peals of a cross-cutting issue as a re- subpart 1–15.7 for costs incurred before sult of an audit under the Single Audit April 1, 1984; and 48 CFR part 31, sub- Act of 1984 will be made to the Depart- part 31.6 and Federal Management Cir- ment of Health and Human Services’ cular A–74–4 for costs incurred after Departmental Appeals Board. The rules March 31, 1984; and in other applicable for hearings and appeals are provided written guidelines in effect at the time in 45 CFR part 16. the expenditures were made or in- (b) Audits performed by the Commis- curred. sioner—(1) Generally. If the State does (f) Any monies paid to the State not perform an audit under the Single which are used for purposes not within Audit Act of 1984 or the audit per- the scope of these regulations will be formed is not satisfactory for disability paid back to the Treasury of the program purposes, the books of ac- United States. count and records in the State per- [46 FR 29211, May 29, 1981, as amended at 56 taining to the administration of the FR 11022, Mar. 14, 1991; 62 FR 38455, July 18, disability programs under the Act will 1997] be audited by the SSA’s Inspector Gen- eral or audited or reviewed by SSA as § 416.1027 Audits. appropriate. These audits or reviews (a) Audits performed by the State—(1) will be conducted to determine whether Generally. Audits of account and the expenditures were made for the in- records pertaining to the administra- tended purposes and in amounts nection of the disability program under essary for the proper and efficient ad- the Act, will be performed by the ministration of the disability pro- States in accordance with the Single grams. Audits or reviews will also be Audit Act of 1984 (Pub. L. 98–502) which made to inspect the work and activi- establishes audit requirements for ties required by the regulations to ensure compliance with pertinent Federal 1 The circular is available from the Office statutes and regulations. The State of Administration, Publications Unit, Rm. will make every effort to act upon and G–236, New Executive Office Bldg., Wash- resolve any items questioned in an ington, DC 20503. audit or review.

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(2) Questioned items. Expenditures of equipment by labeling and by inven- State agencies will be audited or re- tory and will credit the SSA account viewed, as appropriate, on the basis of with the fair market value of disposed cost principles and written guidelines property. In the event we assume the in effect at the time the expenditures disability determination function from were made or incurred. Both the State a State, ownership of all property and and the State agency will be informed equipment acquired with SSA funds and given a full explanation of any will be transferred to us effective on items questioned. They will be given the date the State is notified that we reasonable time to explain items ques- are assuming the disability determina- tioned. Any explanation furnished by tion function or we are notified that the State or State agency will be given the State is terminating the relation- full consideration before a final deter- ship. mination is made on the audit or review report. § 416.1029 Participation in research (3) State appeal of audit determinations. and demonstration projects. The appropriate Social Security Ad- ministration Regional Commissioner We will invite State participation in will notify the State of his or her de- federally funded research and dem- termination on the audit or review re- onstration projects to assess the effec- port. If the State disagrees with that tiveness of the disability program and determination, the State may request to ascertain the effect of program pol- reconsideration in writing within 60 icy changes. Where we determine that days of the date of the Regional Com- State participation is necessary for the missioner’s notice of the determina- project to be complete, for example, to tion. The written request may be made, provide national uniformity in a through the Associate Commissioner, claims process, State participation is Office of Disability, to the Commis- mandatory. sioner of Social Security, Room 900, Altmeyer Building, 6401 Security Bou- § 416.1030 Coordination with other levard, Baltimore, MD 21235. The Com- agencies. missioner will make a determination (a) The State will establish coopera- and notify the State of the decision in tive working relationships with other writing no later than 90 days from the agencies concerned with serving the date the Social Security Administra- disabled and, insofar as practicable, use tion receives the State’s appeal and all supporting documents. The decision by their services, facilities, and records the Commissioner on other than mone- to: tary disallowances will be final and (1) Assist the State in developing evi- binding upon the State. The decision dence and making determinations of by the Commissioner on monetary dis- disability; and allowances will be final and binding (2) Insure that referral of disabled or upon the State unless the State ap- blind persons for rehabilitation serv- peals the decision in writing to the De- ices will be carried out effectively. partment of Health and Human Serv- (b) The State may pay these agencies ices’ Departmental Appeals Board for the services, facilities, or records within 30 days after receiving the Com- they provide. The State will include missioner’s decision. See § 416.1083. these costs in its estimates of antici- [56 FR 11022, Mar. 14, 1991, as amended at 62 pated costs and reports of actual ex- FR 38455, July 18, 1997] penditures.

§ 416.1028 Property. § 416.1031 Confidentiality of information and records. The State will have title to equipment purchased for disability program The State will comply with the con- purposes. The State will be responsible fidentiality of information, including for maintaining all property it acquires the security of systems, and records re- or which we furnish to it for per- quirements described in 20 CFR part forming the disability determination 401 and pertinent written guidelines function. The State will identify the (see § 416.1033).

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§ 416.1032 Other Federal laws and reg- measure the performance of a State ulations. agency in two areas—processing time The State will comply with the pro- and quality of documentation and deci- visions of other Federal laws and regu- sions on claims. State agency compli- lations that directly affect its respon- ance is also judged by State agency ad- sibilities in carrying out the disability herence to other program require- determination function; for example, ments. Treasury Department regulations on [56 FR 11023, Mar. 14, 1991] letters of credit (31 CFR part 205). § 416.1041 Standards of performance. § 416.1033 Policies and operating instructions. (a) General. The performance stand- (a) We will provide the State agency ards include both a target level of per- with written guidelines necessary for it formance and a threshold level of per- to carry out its responsibilities in performance for the State agency. The forming the disability determination target level represents a level of per- function. formance that we and the States will (b) The State agency making deter- work to attain in the future. The minations of disability will comply threshold level is the minimum accept- with our written guidelines that are able level of performance. Performance not designated as advisory or discre- below the threshold level will be the tionary. (See § 416.1002 for what we basis for the Commissioner’s taking mean by written guidelines.) from the State agency partial or com- (c) A representative group of State plete responsibility for performing the agencies will be given an opportunity disability determination function. In- to participate in formulating disability termediate State agency goals are de- program policies that have an effect on signed to help each State agency move their role in carrying out the disability from its current performance levels to determination function. State agencies the target levels. will also be given an opportunity to (b) The target level. The target level is comment before changes are made in the optimum level of performance. written guidelines unless delay in There are three targets—one for com- issuing a change may impair service to the public. bined title II and title XVI initial performance accuracy, one for title II ini- [46 FR 29211, May 29, 1981, as amended at 56 tial processing time, and one for title FR 11023, Mar. 14, 1991] XVI initial processing time. PERFORMANCE STANDARDS (c) The threshold level. The threshold level is the minimum acceptable level § 416.1040 General. of performance. There are three thresh- The following sections provide the olds—one for combined title II and procedures and guidelines we use to de- title XVI initial performance accuracy, termine whether the State agency is one for title II initial processing time, substantially complying with our regu- and one for title XVI initial processing lations and other written guidelines, time. including meeting established national (d) Intermediate goals. Intermediate performance standards. We use per- goals are levels of performance be- formance standards to help assure ef- tween the threshold levels and the tar- fective and uniform administration of get levels established by our appro- our disability program and to measure priate Regional Commissioner after ne- whether the performance of the dis- gotiation with each State agency. The ability determination function by each intermediate goals are designed to help State agency is acceptable. Also, the the State agencies reach the target lev- standards are designed to improve els. Failure to meet these goals is not overall State agency performance in a cause for considering the State agen- the disability determination process cy to be substantially failing to comply and to ensure that benefits are made with the performance standards. How- available to all eligible persons in an ever, failure to meet the intermediate accurate and efficient manner. We goals may result in consultation and

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an offer of optional performance sup- the percentage of correct decisions is port depending on the availability of significantly higher than what is re- our resources. flected in the error rate established by [46 FR 29211, May 29, 1981, as amended at 56 SSA’s quality assurance system. FR 11023, Mar. 14, 1991; 62 FR 38455, July 18, (b) Target level. The State agency ini- 1997] tial performance accuracy target level for combined title II and title XVI § 416.1042 Processing time standards. cases is 97 percent with a cor- (a) General. Title II processing time responding decision accuracy rate of 99 refers to the average number of days percent. (including Saturdays, Sundays, and (c) Intermediate goals. These goals will holidays) it takes a State agency to be established annually by SSA’s re- process an initial disability claim from gional commissioner after negotiation the day the case folder is received in with the State and should be used as the State agency until the day it is re- stepping stones to progress towards our leased to us by the State agency. Title targeted level of performance. XVI processing time refers to the aver- (d) Threshold levels. The State agency age number of days, including Satur- initial performance accuracy threshold days, Sundays, and holidays, from the level for combined title II and title day of receipt of the initial disability XVI cases is 90.6 percent. claim in the State agency until systems input of a presumptive disability § 416.1044 How and when we deter- decision or the day the case folder is mine whether the processing time standards are met. released to us by the State agency, whichever is earlier. (a) How we determine processing times. (b) Target levels. The processing time For all initial title II cases, we cal- target levels are: culate the mean number of days, in- (1) 37 days for title II initial claims. cluding Saturdays, Sundays, and holi- (2) 43 days for title XVI initial days, from the day the case folder is re- claims. ceived in the State agency until the (c) Threshold levels. The processing day it is released to us by the State time threshold levels are: agency. For initial title XVI cases, we (1) 49.5 days for title II initial claims. calculate the mean number of days, in- (2) 57.9 days for title XVI initial cluding Saturdays, Sundays, and holi- claims. days, from the day the case folder is received in the State agency until the [46 FR 29211, May 29, 1981, as amended at 56 FR 11023, Mar. 14, 1991] day there is systems input of a presumptive disability decision or the day § 416.1043 Performance accuracy the case folder is released to us by the standard. State agency, whichever is earlier. (a) General. Performance accuracy re- (b) Frequency of review. Title II proc- fers to the percentage of cases that do essing times and title XVI processing not have to be returned to State agen- times are monitored separately on a cies for further development or correc- quarterly basis. The determination as tion of decisions based on evidence in to whether or not the processing time the files and as such represents the re- thresholds have been met is made at liability of State agency adjudication. the end of each quarter each year. The definition of performance accuracy Quarterly State-by-State mean proc- includes the measurement of factors essing times are compared with the that have a potential for affecting a de- threshold levels for both title II and cision, as well as the correctness of the title XVI. decision. For example, if a particular [46 FR 29211, May 29, 1981, as amended at 56 item of medical evidence should have FR 11023, Mar. 14, 1991] been in the file but was not included, even though its inclusion does not § 416.1045 How and when we deter- change the result in the case, that is a mine whether the performance ac- performance error. Performance accu- curacy standard is met. racy, therefore, is a higher standard (a) How we determine performance ac- than decisional accuracy. As a result, curacy. We determine a State agency’s

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performance accuracy rate on the basis § 416.1061 When we will provide per- of decision and documentation errors formance support. identified in our review of the sample (a) Optional support. We may offer, or cases. a State may request, performance sup- (b) Frequency of review. Title II and port at any time that the regular mon- title XVI initial performance accuracy itoring and review process reveals that are monitored together on a quarterly support could enhance performance. basis. The determinations as to wheth- The State does not have to be below er the performance accuracy threshold the initial performance accuracy rate has been met is made at the end of of 90.6 percent to receive performance each quarter each year. Quarterly support. Support will be offered, or State-by-State combined initial per- granted upon request, based on avail- formance accuracy rates are compared to the established threshold level. able resources. (b) Mandatory support. (1) We will § 416.1050 Action we will take if a provide a State agency with perform- State agency does not meet the ance support if regular monitoring and standards. review reveal that two of three thresh- If a State agency does not meet two old levels (one of which must be per- of the three established threshold lev- formance accuracy) are not met for els (one of which must be performance two consecutive calendar quarters. accuracy) for two or more consecutive (2) We may also decide to provide a calendar quarters, we will notify the State agency with mandatory perform- State agency in writing that it is not ance support if regular monitoring and meeting the standards. Following our review reveal that any one of the three notification, we will provide the State threshold levels is not met for two con- agency appropriate performance sup- secutive calendar quarters. Support port described in §§ 416.1060, 416.1061 and will be provided based on available re- 416.1062 for a period of up to 12 months. sources. [56 FR 11023, Mar. 14, 1991] (3) The threshold levels are: (i) Combined title II and title XVI PERFORMANCE MONITORING AND initial performance accuracy rate—90.6 SUPPORT percent, (ii) Title II initial processing time— § 416.1060 How we will monitor. 49.5 days, and We will regularly analyze State agen- (iii) Title XVI initial processing cy combined title II and title XVI ini- time—57.9 days. tial performance accuracy rate, title II [56 FR 11023, Mar. 14, 1991] initial processing time, and title XVI initial processing time. Within budg- § 416.1062 What support we will pro- eted resources, we will also routinely vide. conduct fiscal and administrative management reviews and special onsite re- Performance support may include, views. A fiscal and administrative but is not limited to, any or all of the management review is a fact-finding following: mission to review particular aspects of (a) An onsite review of cases proc- State agency operations. During these essed by the State agency emphasizing reviews we will also review the quality adherence to written guidelines. assurance function. This regular moni- (b) A request that necessary adminis- toring and review program will allow trative measures be implemented (e.g., us to determine the progress each filling staffing vacancies, using over- State is making and the type and ex- time, assisting with training activities, tent of performance support we will etc.). provide to help the State progress to- (c) Provisions for Federal personnel ward threshold, intermediate, and/or to perform onsite reviews, conduct target levels. training, or perform other functions [56 FR 11023, Mar. 14, 1991] needed to improve performance.

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(d) Provisions for fiscal aid to allow (2) Destroyed or delayed access to for overtime, temporary hiring of addi- significant records needed to make ac- tional staff, etc., above the authorized curate disability determinations; budget. (b) Strikes of State agency staff or [56 FR 11024, Mar. 14, 1991] other government or private personnel necessary to the performance of the SUBSTANTIAL FAILURE disability determination function; (c) Sudden and unanticipated work- § 416.1070 General. load changes which result from After a State agency falls below two changes in Federal law, regulations, or of three established threshold levels, written guidelines, systems modifica- one being performance accuracy, for tion or systems malfunctions, or rapid, two consecutive quarters, and after the unpredictable caseload growth for a 6- mandatory performance support pe- month period or longer. riod, we will give the State agency a 3- [56 FR 11024, Mar. 14, 1991] month adjustment period. During this 3-month period we will not require the § 416.1075 Finding of substantial fail- State agency to meet the threshold ure. levels. Following the adjustment pe- A finding of substantial failure with riod, if the State agency again falls below two of three threshold levels, one respect to a State may not be made un- being performance accuracy, in two less and until the State is afforded an consecutive quarters during the next 12 opportunity for a hearing. months, we will notify the State that HEARINGS AND APPEALS we propose to find that the State agency has substantially failed to comply § 416.1080 Notice of right to hearing on with our standards and advise it that it proposed finding of substantial fail- may request a hearing on that issue. ure. After giving the State notice and an opportunity for a hearing, if it is found If, following the mandatory perform- that a State agency has substantially ance support period and the 3-month failed to make disability determina- adjustment period, a State agency tions consistent with the Act, our regu- again falls below two of three threshold lations, or other written guidelines, we levels (one being performance accu- will assume partial or complete respon- racy) in two consecutive quarters in sibility for performing the disability the succeeding 12 months, we will no- determination function after we have tify the State in writing that we will complied with §§ 416.1090 and 416.1092. find that the State agency has substantially failed to meet our standards un- [56 FR 11024, Mar. 14, 1991] less the State submits a written request for a hearing with the Depart- § 416.1071 Good cause for not following the Act, our regulations, or ment of Health and Human Services’ other written guidelines. Departmental Appeals Board within 30 days after receiving the notice. The no- If a State has good cause for not fol- tice will identify the threshold levels lowing the Act, our regulations, or other written guidelines, we will not that were not met by the State agency, find that the State agency has substan- the period during which the thresholds tially failed to meet our standards. We were not met, and the accuracy and will determine if good cause exists. processing time levels attained by the Some of the factors relevant to good State agency during this period. If a cause are: hearing is not requested, the State (a) Disasters such as fire, flood, or agency will be found to have substan- civil disorder, that— tially failed to meet our standards, and (1) Require the diversion of signifi- we will implement our plans to assume cant personnel normally assigned to the disability determination function. the disability determination function, [56 FR 11024, Mar. 14, 1991] or

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§ 416.1081 Disputes on matters other § 416.1091 Assumption when State no than substantial failure. longer wishes to perform the disability determination function. Disputes concerning monetary disallowances will be resolved in pro- (a) Notice to the Commissioner. If a ceedings before the Department of State no longer wishes to perform the disability determination function, it Health and Human Services, Depart- will notify us in writing. The notice mental Appeals Board if the issue can- must be from an official authorized to not be resolved between us and the act for the State for this purpose. The State. Disputes other than monetary State will provide an opinion from the disallowances will be resolved through State’s Attorney General verifying the an appeal to the Commissioner of So- authority of the official who gave the cial Security, who will make the final notice. decision. (See § 416.1027.) (b) Effective date of assumption. The [56 FR 11024, Mar. 14, 1991] State agency will continue to perform whatever activities of the disability de- § 416.1082 Who conducts the hearings. termination function it is performing at the time the notice referred to in If a hearing is required, it will be paragraph (a) of this section is given conducted by the Department of Health for not less than 180 days or, if later, and Human Services’ Departmental Ap- until we have complied with the re- peals Board (the Board). quirements of § 416.1092. For example, if the State is not making disability de- [46 FR 29211, May 29, 1981, as amended at 62 FR 38455, July 18, 1997] terminations (because we previously assumed responsibility for making § 416.1083 Hearings and appeals proc- them) but is performing other activi- ess. ties related to the disability determination function at the time it gives The rules for hearings and appeals notice, the State will continue to do before the Board are provided in 45 these activities until the requirements CFR part 16. A notice under § 416.1080 of of this paragraph are met. Thereafter, this subpart will be considered a ‘‘final we will assume complete responsibility written decision’’ for purposes of Board for performing the disability deter- review. mination function. [46 FR 29211, May 29, 1981, as amended at 62 ASSUMPTION OF DISABILITY FR 38455, July 18, 1997] DETERMINATION FUNCTION § 416.1092 Protection of State employ- § 416.1090 Assumption when we make ees. a finding of substantial failure. (a) Hiring preference. We will develop (a) Notice to State. When we find that and initiate procedures to implement a substantial failure exists, we will no- plan to partially or completely assume tify the State in writing that we will the disability determination function assume responsibility for performing from the State agency under § 416.1090 the disability determination function or § 416.1091, as appropriate. Except for from the State agency, whether the as- the State agency’s administrator, dep- sumption will be partial or complete, uty administrator, or assistant admin- and the date on which the assumption istrator (or his equivalent), we will will be effective. give employees of the State agency (b) Effective date of assumption. The who are capable of performing duties in date of any partial or complete as- the disability determination function preference over any other persons in sumption of the disability determina- filling positions with us for which they tion function from a State agency may are qualified. We may also give a pref- not be earlier than 180 days after our erence in hiring to the State agency’s finding of substantial failure, and not administrator, deputy administrator, before compliance with the require- or assistant administrator (or his ments of § 416.1092. equivalent). We will establish a system for determining the hiring priority

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among the affected State agency em- sec. 211, Pub. L. 93–66, 87 Stat. 154 (42 U.S.C. ployees in those instances where we are 1382 note). not hiring all of them. SOURCE: 45 FR 65547, Oct. 3, 1980, unless (b) Determination by Secretary of otherwise noted. Labor. We will not assume responsibility for performing the disability de- GENERAL termination function from a State until the Secretary of Labor deter- § 416.1100 Income and SSI eligibility. mines that the State has made fair and You are eligible for supplemental se- equitable arrangements under applica- curity income (SSI) benefits if you are ble Federal, State and local law to pro- an aged, blind, or disabled person who tect the interests of employees who meets the requirements described in will be displaced from their employ- subpart B and who has limited income ment because of the assumption and and resources. Thus, the amount of in- who we will not hire. come you have is a major factor in de- § 416.1093 Limitation on State expendi- ciding whether you are eligible for SSI tures after notice. benefits and the amount of your benefit. We count income on a monthly The State agency may not, after it basis. Generally, the more income you receives the notice referred to in § 416.1090, or gives the notice referred to have the less your benefit will be. If in § 416.1091, make any new commit- you have too much income, you are not ments to spend funds allocated to it for eligible for a benefit. However, we do performing the disability determina- not count all of your income to deter- tion function without the approval of mine your eligibility and benefit the appropriate SSA regional commis- amount. We explain in the following sioner. The State will make every ef- sections how we treat your income for fort to close out as soon as possible all the SSI program. These rules apply to existing commitments that relate to the Federal benefit and to any optional performing the disability determina- State supplement paid by us on behalf tion function. of a State (§ 416.2025) except as noted in subpart T and in the Federal-State § 416.1094 Final accounting by the agreements with individual States. State. While this subpart explains how we The State will submit its final claims count income, subpart D of these regu- to us as soon as possible, but in no lations explains how we determine event later than 1 year from the effec- your benefits, including the provision tive date of our assumption of the dis- that we generally use countable inability determination function unless come in a prior month to determine we grant an extension of time. When how much your benefit amount will be the final claim(s) is submitted, a final for a month in which you are eligible accounting will be made by the State (§ 416.420). of any funds paid to the State under [50 FR 48573, Nov. 26, 1985] § 416.1026 which have not been spent or committed prior to the effective date § 416.1101 Definition of terms. of our assumption of the disability determination function. Disputes con- As used in this subpart— cerning final accounting issues which Calendar quarter means a period of cannot be resolved between the State three full calendar months beginning and us will be resolved in proceedings with January, April, July, or October. before the Grant Appeals Board as de- Child means someone who is not mar- scribed in 45 CFR part 416. ried, is not the head of a household, and is either under age 18 or is under Subpart K—Income age 22 and a student. (See § 416.1856) Couple means an eligible individual and his or her eligible spouse. AUTHORITY: Secs. 702(a)(5), 1602, 1611, 1612, 1613, 1614(f), 1621, 1631, and 1633 of the Social Current market value means the price Security Act (42 U.S.C. 902(a)(5), 1381a, 1382, of an item on the open market in your 1382a, 1382b, 1382c(f), 1382j, 1383, and 1383b); locality.

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Federal benefit rate means the month- program whose purpose is to provide ly payment rate for an eligible indi- medical care or medical services (in- vidual or couple. It is the figure from cluding vocational rehabilitation); which we substract countable income (4) In-kind assistance (except food or to find out how much your Federal SSI shelter) provided under a nongovern- benefit should be. The Federal benefit mental program whose purpose is to rate does not include the rate for any provide medical care or medical serv- State supplement paid by us on behalf ices; of a State. (5) Cash provided by any nongovern- Institution means an establishment mental medical care or medical serv- which makes available some treatment ices program or under a health insur- or services beyond food and shelter to ance policy (except cash to cover food four or more persons who are not re- or shelter) if the cash is either: lated to the proprietor. (See § 416.201) (i) Repayment for program-approved Spouse means someone who lives with services you have already paid for; or another person as that person’s hus- (ii) A payment restricted to the fu- band or wife. (See § 416.1806) ture purchase of a program-approved We, Us, or Our means the Social Se- service. curity Administration. Example: If you have paid for prescription You or Your means a person who is drugs and get the money back from your applying for, or already receiving, SSI health insurance, the money is not income. benefits. (6) Direct payment of your medical [45 FR 65547, Oct. 3, 1980, as amended at 50 FR insurance premiums by anyone on your 48573, Nov. 26, 1985; 51 FR 10616, Mar. 28, 1986; behalf. 60 FR 16375, Mar. 30, 1995] (7) Payments from the Department of Veterans Affairs resulting from un- § 416.1102 What is income? usual medical expenses. Income is anything you receive in (b) Social services. Social services are cash or in kind that you can use to not income if they are any of the fol- meet your needs for food and shelter. lowing: Sometimes income also includes more (1) Assistance provided in cash or in or less than you actually receive (see kind (but not received in return for a § 416.1110 and § 416.1123(b)). In-kind in- service you perform) under any Fed- come is not cash, but is actually food eral, State, or local government pro- or shelter, or something you can use to gram whose purpose is to provide social get one of these. services including vocational rehabili- [70 FR 6344, Feb. 7, 2005] tation (Example: Cash given you by the Department of Veterans Affairs to pur- § 416.1103 What is not income? chase aid and attendance); (2) In-kind assistance (except food or Some things you receive are not in- shelter) provided under a nongovern- come because you cannot use them as mental program whose purpose is to food or shelter, or use them to obtain provide social services; or food or shelter. In addition, what you (3) Cash provided by a nongovern- receive from the sale or exchange of mental social services program (except your own property is not income; it re- cash to cover food or shelter) if the mains a resource. The following are cash is either: some items that are not income: (i) Repayment for program-approved (a) Medical care and services. Medical services you already have paid for; or care and services are not income if (ii) A payment restricted to the fu- they are any of the following: ture purchase of a program-approved (1) Given to you free of charge or paid service. for directly to the provider by someone else; Example: If you are unable to do your own (2) Room and board you receive dur- household chores and a private social serving a medical confinement; ices agency provides you with cash to pay a (3) Assistance provided in cash or in homemaker the cash is not income. kind (including food or shelter) under a (c) Receipts from the sale, exchange, or Federal, State, or local government replacement of a resource. Receipts from

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the sale, exchange, or replacement of a Therefore, it is not in-kind income as defined resource are not income but are rein § 416.1102. sources that have changed their form. (h) Replacement of income you have al- This includes any cash or in-kind item ready received. If income is lost, de- that is provided to replace or repair a stroyed, or stolen and you receive a re- resource (see subpart L) that has been placement, the replacement is not in- lost, damaged, or stolen. Sections come. 416.1150 and 416.1151 discuss treatment of receipts to replace or repair a re- Example: If your paycheck is stolen and source following a major disaster or you get a replacement check, we count the following some other event causing first check as income. The replacement check is not income. damage or loss of a resource. (i) Weatherization assistance. Weather- Example: If you sell your automobile, the money you receive is not income; it is an- ization assistance (Examples: Insula- other form of a resource. tion, storm doors and windows) is not income. (d) Income tax refunds. Any amount (j) Receipt of certain noncash items. refunded on income taxes you have al- Any item you receive (except shelter as ready paid is not income. defined in § 416.1130 or food) which (e) Payments by credit life or credit dis- would be an excluded nonliquid re- ability insurance. Payments made under source (as described in subpart L of a credit life or credit disability insur- this part) if you kept it, is not income. ance policy on your behalf are not income. Example 1: A community takes up a collection to buy you a specially equipped van, Example: If a credit disability policy pays which is your only vehicle. The value of this off the mortgage on your home after you be- gift is not income because the van does not come disabled in an accident, we do not con- provide you with food or shelter and will be- sider either the payment or your increased come an excluded nonliquid resource under equity in the home to be income. § 416.1218 in the month following the month (f) Proceeds of a loan. Money you bor- of receipt. row or money you receive as repay- Example 2: You inherit a house which is ment of a loan is not income. However, your principal place of residence. The value of this inheritance is income because the interest you receive on money you house provides you with shelter and shelter have lent is income. Buying on credit is income. However, we value the house is treated as though you were bor- under the rule in § 416.1140. rowing money and what you purchase this way is not income. [45 FR 65547, Oct. 3, 1980, as amended at 49 FR 48038, Dec. 10, 1984; 57 FR 53850, Nov. 13, 1992; (g) Bills paid for you. Payment of your 59 FR 33907, July 1, 1994; 70 FR 6344, Feb. 7, bills by someone else directly to the 2005] supplier is not income. However, we count the value of anything you re- § 416.1104 Income we count. ceive because of the payment if it is in- We have described generally what in- kind income as defined in § 416.1102. come is and is not for SSI purposes Examples: If your daughter uses her own (§ 416.1103). There are different types of money to pay the grocer to provide you with income, earned and unearned, and we food, the payment itself is not your income have rules for counting each. The because you do not receive it. However, be- earned income rules are described in cause of your daughter’s payment, the grocer provides you with food; the food is in-kind §§ 416.1110 through 416.1112 and the un- income to you. Similarly, if you buy food on earned income rules are described in credit and your son later pays the bill, the §§ 416.1120 through 416.1124. One type of payment to the store is not income to you, unearned income is in-kind support and but the food is in-kind income to you. In this maintenance (food or shelter). The way example, if your son pays for the food in a we value it depends on your living ar- month after the month of purchase, we will rangement. These rules are described count the in-kind income to you in the in §§ 416.1130 through 416.1148 of this month in which he pays the bill. On the other hand, if your brother pays a lawn serv- part. In some situations we must con- ice to mow your grass, the payment is not sider the income of certain people with income to you because the mowing cannot be whom you live as available to you and used to meet your needs for food or shelter. part of your income. These rules are

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described in §§ 416.1160 through 416.1169. ship to which you belong. For taxable We use all of these rules to determine years beginning before January 1, 2001, the amount of your countable income— net earnings from self-employment the amount that is left after we sub- under the SSI program are the same tract what is not income or is not net earnings that we would count counted. under the social security retirement [45 FR 65547, Oct. 3, 1980, as amended at 65 FR insurance program and that you would 16815, Mar. 30, 2000; 70 FR 6345, Feb. 7, 2005] report on your Federal income tax return. (See § 404.1080 of this chapter.) EARNED INCOME For taxable years beginning on or after January 1, 2001, net earnings from self- § 416.1110 What is earned income. employment under the SSI program Earned income may be in cash or in will also include the earnings of statu- kind. We may include more of your tory employees. In addition, for SSI earned income than you actually re- purposes only, we consider statutory ceive. We include more than you actu- employees to be self-employed individ- ally receive if amounts are withheld uals. Statutory employees are agent or from earned income because of a gar- commission drivers, certain full-time nishment or to pay a debt or other life insurance salespersons, home work- legal obligation, or to make any other ers, and traveling or city salespersons. payments. Earned income consists of (See § 404.1008 of this chapter for a more the following types of payments: detailed description of these types of (a) Wages—(1) Wages paid in cash— employees). general. Wages are what you receive (c) Refunds of Federal income taxes and (before any deductions) for working as advance payments by employers made in someone else’s employee. Wages are accordance with the earned income credit the same for SSI purposes as for the so- provisions of the Internal Revenue Code. cial security retirement program’s Refunds on account of earned income earnings test. (See § 404.429(c) of this credits are payments made to you chapter.) Wages include salaries, com- under the provisions of section 32 of missions, bonuses, severance pay, and the Internal Revenue Code of 1986, as any other special payments received amended. These refunds may be greater because of your employment. than taxes you have paid. You may re- (2) Wages paid in cash to uniformed ceive earned income tax credit pay- service members. Wages paid in cash to ments along with any other Federal in- uniformed service members include come tax refund you receive because of basic pay, some types of special pay, overpayment of your income tax, (Fed- and some types of allowances. Allow- eral income tax refunds made on the ances for on-base housing or privatized basis of taxes you have already paid military housing are unearned income are not income to you as stated in in the form of in-kind support and § 416.1103(d).) Advance payments of maintenance. Cash allowances paid to earned income tax credits are made by uniformed service members for private your employer under the provisions of housing are wages. section 3507 of the same code. You can (3) Wages paid in kind. Wages may receive earned income tax credit pay- also include the value of food, clothing, ments only if you meet certain require- shelter, or other items provided instead ments of family composition and in- of cash. We refer to this type of income come limits. as in-kind earned income. However, if (d) Payments for services performed in a you are a domestic or agricultural sheltered workshop or work activities cen- worker, the law requires us to treat ter. Payments for services performed in your in-kind pay as unearned income. a sheltered workshop or work activi- (b) Net earnings from self-employment. ties center are what you receive for Net earnings from self-employment are participating in a program designed to your gross income from any trade or help you become self-supporting. business that you operate, less allow- (e) Certain royalties and honoraria. able deductions for that trade or busi- Royalties that are earned income are ness. Net earnings also include your payments to an individual in connec- share of profit or loss in any partner- tion with any publication of the work

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of the individual. (See § 416.1110(b) if up value is income to you. (See the ex- you receive a royalty as part of your ample in § 416.1123(c)). trade or business. See § 416.1121(c) if (e) Royalties and honoraria. We count you receive another type of royalty.) payments of royalties to you in con- Honoraria that are earned income are nection with any publication of your those portions of payments, such as an work, and honoraria, to the extent re- honorary payment, reward, or dona- ceived for services rendered, at the ear- tion, received in consideration of serv- liest of the following points: when you ices rendered for which no payment can receive them, when they are credited be enforced by law. (See § 416.1120 if you to your account, or when they are set receive another type of honorarium.) aside for your use. (See § 416.1111(b) if you receive royalties as part of your [45 FR 65547, Oct. 3, 1980, as amended at 48 FR 23179, May 24, 1983; 50 FR 48574, Nov. 26, 1985; trade or business.) 56 FR 3212, Jan. 29, 1991; 59 FR 43471, Aug. 24, [45 FR 65547, Oct. 3, 1980, as amended at 48 FR 1994; 75 FR 1273, Jan. 11, 2010; 75 FR 54287, 23179, May 24, 1983; 48 FR 30357, July 1, 1983; Sept. 7, 2010] 50 FR 48574, Nov. 26, 1985; 58 FR 63889, Dec. 3, 1993; 59 FR 43471, Aug. 24, 1994; 71 FR 45378, § 416.1111 How we count earned in- Aug. 9, 2006] come. (a) Wages. We count wages at the ear- § 416.1112 Earned income we do not liest of the following points: when you count. receive them or when they are credited (a) General. While we must know the to your account or set aside for your source and amount of all of your use. We determine wages for each earned income for SSI, we do not count month. We count wages for services all of it to determine your eligibility performed as a member of a uniformed and benefit amount. We first exclude service (as defined in § 404.1330 of this income as authorized by other Federal chapter) as received in the month in laws (see paragraph (b) of this section). which they are earned. Then we apply the other exclusions in (b) Net earnings from self-employment. the order listed in paragraph (c) of this We count net earnings from self-em- section to the rest of your income in ployment on a taxable year basis. How- the month. We never reduce your ever, we divide the total of these earn- earned income below zero or apply any ings equally among the months in the unused earned income exclusion to un- taxable year to get your earnings for earned income. each month. For example, if your net (b) Other Federal laws. Some Federal earnings for a taxable year are $2,400, laws other than the Social Security we consider that you received $200 in Act provide that we cannot count some each month. If you have net losses of your earned income for SSI pur- from self-employment, we divide them poses. We list the laws and exclusions over the taxable year in the same way, in the appendix to this subpart which and we deduct them only from your we update periodically. other earned income. (c) Other earned income we do not (c) Payments for services in a sheltered count. We do not count as earned in- workshop or activities center. We count come— payments you receive for services per- (1) Any refund of Federal income formed in a sheltered workshop or taxes you receive under section 32 of work activities center when you re- the Internal Revenue Code (relating to ceive them or when they are set aside earned income tax credit) and any pay- for your use. We determine the amount ment you receive from an employer of the payments for each calendar under section 3507 of the Internal Rev- quarter. enue Code (relating to advance pay- (d) In-kind earned income. We use the ment of earned income tax credit); current market value of in-kind earned (2) The first $30 of earned income re- income for SSI purposes. (See § 416.1101 ceived in a calendar quarter if you re- for a definition of current market ceive it infrequently or irregularly. We value.) If you receive an item that is consider income to be received infre- not fully paid for and are responsible quently if you receive it only once dur- for the unpaid balance, only the paid- ing a calendar quarter from a single

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source and you did not receive it in the pairment-related work expense exclu- month immediately preceding that sion, the exclusion applies for deter- month or in the month immediately mining your eligibility for all subse- subsequent to that month. We consider quent consecutive months for which income to be received irregularly if you are eligible for regular SSI bene- you cannot reasonably expect to re- fits, federally administered optional ceive it. State supplementary payments, special (3) If you are under age 22 and a stu- SSI cash benefits or special SSI eligi- dent who is regularly attending school bility status. If, in a subsequent as described in § 416.1861: month, you are not eligible for any of (i) For earned income beginning Janu- these benefits, you cannot reestablish ary 1, 2002, monthly and yearly max- your eligibility for Federal SSI bene- imum amounts that are the larger of: fits or federally administered optional (A) The monthly and yearly amounts State supplementary payments before for the previous year, or December 1, 1990, using the impair- (B) Monthly and yearly maximum ment-related work expense exclusion. amounts increased for changes in the (ii) For periods after November 30, cost-of-living, calculated in the same 1990, you may also use the impairment- manner as the Federal benefit rates de- related work expense exclusion to es- scribed in § 416.405, except that we will tablish initial eligibility and reeligi- use the calendar year 2001 amounts as bility following a month in which you the base amounts and will round the were not eligible for regular SSI bene- resulting amount to the next higher fits, a federally administered optional multiple of $10 where such amount is a State supplementary payment, special multiple of $5 but not of $10 and to the SSI cash benefits or special SSI eligi- nearest multiple of $10 in any other bility status. case. (7) One-half of remaining earned in- (ii) For earned income before January 1, come in a month; 2002, the amounts indicated in Table 1 (8) Earned income used to meet any of this section. expenses reasonably attributable to the earning of the income if you are blind TABLE 1 and under age 65 or if you receive SSI But not as a blind person for the month before Up to per more than For months month in a cal- you reach age 65. (We consider that you endar year ‘‘reach’’ a certain age on the day before that particular birthday.); In calendar years before 2001 .. $400 $1,620 In calendar year 2001 ...... 1,290 5,200 (9) Any earned income you receive and use to fulfill an approved plan to (4) Any portion of the $20 monthly achieve self-support if you are blind or exclusion in § 416.1124(c)(10) which has disabled and under age 65 or blind or not been excluded from your unearned disabled and received SSI as a blind or income in that same month; disabled person for the month before (5) $65 of earned income in a month; you reached age 65. See §§ 416.1180 (6) Earned income you use to pay im- through 416.1182 for an explanation of pairment-related work expenses de- plans to achieve self-support and for scribed in § 416.976, if you are disabled the rules on when this exclusion ap- (but not blind) and under age 65 or you plies; and are disabled (but not blind) and re- (10) Payments made to participants ceived SSI as a disabled individual (or in AmeriCorps State and National and received disability payments under a AmeriCorps National Civilian Commu- former State plan) for the month be- nity Corps (NCCC). Payments to par- fore you reached age 65. ticipants in AmeriCorps State and Na- (i) For periods prior to December 1, tional and AmeriCorps NCCC may be 1990, you must be able, however, to es- made in cash or in-kind and may be tablish your initial eligibility for Fed- made directly to the AmeriCorps par- eral benefits without the use of the im- ticipant or on the AmeriCorps partici- pairment-related work expense exclu- pant’s behalf. These payments include, sion. Once you establish your initial but are not limited to: Living allow- eligibility without the use of the im- ance payments, stipends, educational

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awards, and payments in lieu of edu- (d) Rents. Rents are payments you re- cational awards. ceive for the use of real or personal property such as land, housing, or ma- [45 FR 65547, Oct. 3, 1980, as amended at 48 FR 21943, May 16, 1983; 50 FR 48574, Nov. 26, 1985; chinery. We deduct from rental pay- 58 FR 63889, Dec. 3, 1993; 59 FR 41405, Aug. 12, ments your ordinary and necessary ex- 1994; 65 FR 82912, Dec. 29, 2000; 71 FR 45378, penses in the same taxable year. These Aug. 9, 2006; 71 FR 66866, Nov. 17, 2006; 75 FR include only those expenses necessary 54287, Sept. 7, 2010] for the production or collection of the rental income and they must be de- UNEARNED INCOME ducted when paid, not when they are incurred. Some examples of deductible § 416.1120 What is unearned income. expenses are interest on debts, State Unearned income is all income that and local taxes on real and personal is not earned income. We describe some property and on motor fuels, general of the types of unearned income in sales taxes, and expenses of managing § 416.1121. We consider all of these items or maintaining the property. (Sections as unearned income, whether you re- 163, 164, and 212 of the Internal Revenue ceive them in cash or in kind. Code of 1954 and related regulations explain this in more detail.) We do not § 416.1121 Types of unearned income. consider depreciation or depletion of Some types of unearned income are— property a deductible expense. (See (a) Annuities, pensions, and other peri- § 416.1110(b) for rules on rental income odic payments. This unearned income is that is earned from self-employment. usually related to prior work or serv- For example, you may be in the busi- ice. It includes, for example, private ness of renting properties.) pensions, social security benefits, dis- (e) Death benefits. We count payments ability benefits, veterans benefits, you get which were occasioned by the worker’s compensation, railroad retire- death of another person except for the ment annuities and unemployment in- amount of such payments that you surance benefits. spend on the deceased person’s last ill- (b) Alimony and support payments. For ness and burial expenses. Last illness SSI purposes, alimony and support and burial expenses include related payments are cash or in-kind contribu- hospital and medical expenses, funeral, tions to meet some or all of a person’s burial plot and interment expenses, needs for food or shelter. Support pay- and other related costs. ments may be made voluntarily or be- Example: If you receive $2,000 from your un- cause of a court order. Alimony (some- cle’s life insurance policy and you spend $900 times called maintenance) is an allow- on his last illness and burial expenses, the ance made by a court from the funds of balance, $1,100, is unearned income. If you one spouse to the other spouse in con- spend the entire $2,000 for the last illness and nection with a suit for separation or di- burial, there is no unearned income. vorce. (f) Prizes and awards. A prize is gen- (c) Dividends, interest, and certain roy- erally something you win in a contest, alties. Dividends and interest are re- lottery or game of chance. An award is turns on capital investments, such as usually something you receive as the stocks, bonds, or savings accounts. result of a decision by a court, board of Royalties are compensation paid to the arbitration, or the like. owner for the use of property, usually (g) Gifts and inheritances. A gift is copyrighted material or natural re- something you receive which is not resources such as mines, oil wells, or payment to you for goods or services timber tracts. Royalty compensation you provided and which is not given to may be expressed as a percentage of re- you because of a legal obligation on the ceipts from using the property or as an giver’s part. An inheritance is some- amount per unit produced. (See thing that comes to you as a result of § 416.1110(b) if you receive royalties as someone’s death. It can be in cash or in part of your trade or business and kind, including any right in real or per- § 416.1110(e) if you receive royalties in sonal property. Gifts and inheritances connection with the publication of occasioned by the death of another per- your work.) son, to the extent that they are used to

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pay the expenses of the deceased’s last the full monthly social security insurance illness and burial, as defined in para- benefit of $200 is included in Joe’s unearned graph (e) of this section, are not con- income. However, if Joe was receiving both sidered income. benefits when the overpayment of the social (h) Support and maintenance in kind. security insurance benefit occurred and we This is food, or shelter furnished to then included the overpaid amount as income, we will compute his SSI benefit on the you. Our rules for valuing this income basis of receiving $180 as a social security independ on your living arrangement. We surance benefit. This is because we recognize use one rule if you are living in the that we computed his SSI benefit on the household of a person who provides you basis of the higher amount when he was with both food and shelter. We use dif- overpaid. ferent rules for other situations where you receive food or shelter. We discuss (2) We also include more than you ac- all of the rules in §§ 416.1130 through tually receive if amounts are withheld 416.1147. from unearned income because of a garnishment, or to pay a debt or other [45 FR 65547, Oct. 3, 1980, as amended at 56 FR legal obligation, or to make any other 36000, July 30, 1991; 59 FR 43471, Aug. 24, 1994; payment such as payment of your 70 FR 6345, Feb. 7, 2005] Medicare premiums. § 416.1123 How we count unearned in- (3) We include less than you actually come. receive if part of the payment is for an (a) When we count unearned income. expense you had in getting the pay- We count unearned income at the ear- ment. For example, if you are paid for liest of the following points: when you damages you receive in an accident, we receive it or when it is credited to your subtract from the amount of the pay- account or set aside for your use. We ment your medical, legal, or other ex- determine your unearned income for penses connected with the accident. If each month. We describe exceptions to you receive a retroactive check from a the rule on how we count unearned in- benefit program other than SSI, legal come in paragraphs (d), (e) and (f) of fees connected with the claim are sub- this section. tracted. We do not subtract from any (b) Amount considered as income. We taxable unearned income the part you may include more or less of your un- have to use to pay personal income earned income than you actually re- taxes. The payment of taxes is not an ceive. expense you have in getting income. (1) We include more than you actu- (4) In certain situations, we may con- ally receive where another benefit pay- sider someone else’s income to be ment (such as a social security insur- available to you, whether or not it ac- ance benefit) (see § 416.1121) has been re- tually is. (For the rules on this process, duced to recover a previous overpay- called deeming, see §§ 416.1160 through ment. You are repaying a legal obliga- 416.1169.) tion through the withholding of por- (c) In-kind income. We use the current tions of your benefit amount, and the market value (defined in § 416.1101) of amount of the debt reduction is also part of your unearned income. Excep- in-kind unearned income to determine tion: We do not include more than you its value for SSI purposes. We describe actually receive if you received both some exceptions to this rule in SSI benefits and the other benefit at §§ 416.1131 through 416.1147. If you re- the time the overpayment of the other ceive an item that is not fully paid for benefit occurred and the overpaid and are responsible for the balance, amount was included in figuring your only the paid-up value is income to SSI benefit at that time. you. Example: Joe, an SSI beneficiary, is also Example: You are given a $1500 automobile entitled to social security insurance benefits but must pay the $1000 due on it. You are rein the amount of $200 per month. However, ceiving income of $500. because of a prior overpayment of his social security insurance benefits, $20 per month is (d) Retroactive monthly social security being withheld to recover the overpayment. benefits. We count retroactive monthly In figuring the amount of his SSI benefits, social security benefits according to

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the rule in paragraph (d)(1) of this sec- pendent, we do not count as your un- tion, unless the exception in paragraph earned income the amount paid to you (d)(2) of this section applies: because of the dependent. (1) Periods for which SSI payments (2) If you are a dependent of an indi- have been made. When you file an appli- vidual who receives a veterans benefit cation for social security benefits and and a portion of the benefit is attrib- retroactive monthly social security utable to you as a dependent, we count benefits are payable on that applica- the amount attributable to you as your tion for a period for which you also re- unearned cash income if— ceived SSI payments (including feder- (i) You reside with the individual ally-administered State supplementary who receives the veterans benefit, or payments), we count your retroactive (ii) You receive your own separate monthly social security benefits as un- payment from the Department of Vet- earned income received in that period. erans Affairs. Rather than reducing your SSI pay- (f) Uniformed service compensation. We ments in months prior to your receipt count compensation for services per- of a retroactive monthly social secu- formed as a member of a uniformed rity benefit, we will reduce the retro- service (as defined in § 404.1330 of this active social security benefits by an chapter) as received in the month in amount equal to the amount of SSI which it is earned. payments (including federally-adminis- (Reporting and recordkeeping requirements tered State supplementary payments) in paragraph (b) have been approved by the that we would not have paid to you if Office of Management and Budget under con- your social security benefits had been trol number 0960–0128) paid when regularly due rather than [45 FR 65547, Oct. 3, 1980, as amended at 47 FR retroactively (see § 404.408b(b)). If a bal- 4988, Feb. 3, 1982; 47 FR 13794, Apr. 1, 1982; 50 ance is due you from your retroactive FR 48574, Nov. 26, 1985; 55 FR 20599, May 18, social security benefits after this re- 1990; 56 FR 3212, Jan. 29, 1991; 59 FR 59364, duction, for SSI purposes we will not Nov. 17, 1994; 60 FR 8152, Feb. 10, 1995; 71 FR count the balance as unearned income 45378, Aug. 9, 2006] in a subsequent month in which you receive it. This is because your social se- § 416.1124 Unearned income we do not curity benefits were used to determine count. the amount of the reduction. This ex- (a) General. While we must know the ception to the unearned income count- source and amount of all of your un- ing rule does not apply to any monthly earned income for SSI, we do not count social security benefits for a period for all of it to determine your eligibility which you did not receive SSI. and benefit amount. We first exclude (2) Social security disability benefits income as authorized by other Federal where drug addiction or alcoholism is a laws (see paragraph (b) of this section). contributing factor material to the deter- Then we apply the other exclusions in mination of disability. If your retro- the order listed in paragraph (c) of this active social security benefits must be section to the rest of your unearned in- paid in installments because of the come in the month. We never reduce limitations on paying lump sum retro- your unearned income below zero or active benefits to disabled recipients apply any unused unearned income ex- whose drug addiction or alcoholism is a clusion to earned income except for the contributing factor material to the de- $20 general exclusion described in para- termination of disability as described graph (c)(12) of this section. in § 404.480, we will count the total of (b) Other Federal laws. Some Federal such retroactive social security bene- laws other than the Social Security fits as unearned income in the first Act provide that we cannot count some month such installments are paid, ex- of your unearned income for SSI pur- cept to the extent the rule in para- poses. We list the laws and the exclu- graph (d)(1) of this section would pro- sions in the appendix to this subpart vide that such benefits not be counted. which we update periodically. (e) Certain veterans benefits. (1) If you (c) Other unearned income we do not receive a veterans benefit that includes count. We do not count as unearned in- an amount paid to you because of a de- come—

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(1) Any public agency’s refund of (8) Payments for providing foster taxes on real property or food; care to an ineligible child who was (2) Assistance based on need which is placed in your home by a public or pri- wholly funded by a State or one of its vate nonprofit child placement or child political subdivisions. (For purposes of care agency; this rule, an Indian tribe is considered (9) Any interest earned on excluded a political subdivision of a State.) As- burial funds and any appreciation in sistance is based on need when it is the value of an excluded burial ar- provided under a program which uses rangement which are left to accumu- the amount of your income as one fac- late and become a part of the separate tor to determine your eligibility. As- burial fund. (See § 416.1231 for an expla- sistance based on need includes State nation of the exclusion of burial as- supplementation of Federal SSI bene- sets.) This exclusion from income ap- fits as defined in subpart T of this part plies to interest earned on burial funds but does not include payments under a or appreciation in the value of ex- Federal/State grant program such as cluded burial arrangements which Temporary Assistance for Needy Fami- occur beginning November 1, 1982, or lies under title IV–A of the Social Se- the date you first become eligible for curity Act; SSI benefits, if later; (3) Any portion of a grant, scholar- (10) Certain support and maintenance ship, fellowship, or gift used or set assistance as described in § 416.1157; aside for paying tuition, fees, or other (11) One-third of support payments necessary educational expenses. How- made to or for you by an absent parent ever, we do count any portion set aside if you are a child; or actually used for food or shelter; (4) Food which you or your spouse (12) The first $20 of any unearned in- raise if it is consumed by you or your come in a month other than income in household; the form of in-kind support and main- (5) Assistance received under the Dis- tenance received in the household of aster Relief and Emergency Assistance another (see § 416.1131) and income Act and assistance provided under any based on need. Income based on need is Federal statute because of a catas- a benefit that uses financial need as trophe which the President of the measured by your income as a factor to United States declares to be a major determine your eligibility. The $20 ex- disaster. See § 416.1150 for a more de- clusion does not apply to a benefit tailed discussion of this assistance, based on need that is totally or par- particularly the treatment of in-kind tially funded by the Federal govern- support and maintenance received as ment or by a nongovernmental agency. the result of a major disaster; However, assistance which is based on (6) The first $60 of unearned income need and funded wholly by a State or received in a calendar quarter if you one of its political subdivisions is ex- receive it infrequently or irregularly. cluded totally from income as de- We consider income to be received in- scribed in § 416.1124(c)(2). If you have frequently if you receive it only once less than $20 of unearned income in a during a calendar quarter from a single month and you have earned income in source and you did not receive it in the that month, we will use the rest of the month immediately preceding that $20 exclusion to reduce the amount of month or in the month immediately your countable earned income; subsequent to that month. We consider (13) Any unearned income you receive income to be received irregularly if and use to fulfill an approved plan to you cannot reasonably expect to re- achieve self-support if you are blind or ceive it. disabled and under age 65 or blind or (7) Alaska Longevity Bonus pay- disabled and received SSI as a blind or ments made to an individual who is a disabled person for the month before resident of Alaska and who, prior to you reached age 65. See §§ 416.1180 October 1, 1985: met the 25-year resi- through 416.1182 for an explanation of dency requirement for receipt of such plans to achieve self-support and for payments in effect prior to January 1, the rules on when this exclusion ap- 1983; and was eligible for SSI; plies;

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(14) The value of any assistance paid gifts converted to cash are considered with respect to a dwelling unit under— under income counting rules in the (i) The United States Housing Act of month of conversion; 1937; (22) Interest and dividend income (ii) The National Housing Act; from a countable resource or from a re- (iii) Section 101 of the Housing and source excluded under a Federal stat- Urban Development Act of 1965; ute other than section 1613(a) of the (iv) Title V of the Housing Act of Social Security Act; and 1949; or (23) AmeriCorps State and National (v) Section 202(h) of the Housing Act and AmeriCorps National Civilian of 1959; Community Corps cash or in-kind pay- (15) Any interest accrued on and left ments to AmeriCorps participants or to accumulate as part of the value of on AmeriCorps participants’ behalf. an excluded burial space purchase These include, but are not limited to: agreement. This exclusion from income Food and shelter, and clothing allow- applies to interest accrued on or after ances; April 1, 1990; (24) Any annuity paid by a State to a (16) The value of any commercial person (or his or her spouse) based on transportation ticket, for travel by you the State’s determination that the per- or your spouse among the 50 States, son is: the District of Columbia, the Common- (i) A veteran (as defined in 38 U.S.C. wealth of Puerto Rico, the Virgin Is- 101); and lands, Guam, American Samoa, and the (ii) Blind, disabled, or aged. Northern Mariana Islands, which is received as a gift by you or your spouse [45 FR 65547, Oct. 3, 1980, as amended at 47 FR and is not converted to cash. If such a 55213, Dec. 8, 1982; 48 FR 21943, May 16, 1983; ticket is converted to cash, the cash 48 FR 33258, July 21, 1983; 48 FR 57127, Dec. 28, you receive is income in the month you 1983; 50 FR 48574, Nov. 26, 1985; 51 FR 39523, receive the cash; Oct. 29, 1986; 54 FR 19164, May 4, 1989; 55 FR 28378, July 11, 1990; 57 FR 1384, Jan. 14, 1992; (17) Payments received by you from a 57 FR 53850, Nov. 13, 1992; 58 FR 63888, Dec. 3, fund established by a State to aid vic- 1993; 61 FR 1712, Jan. 23, 1996; 61 FR 49964, tims of crime; Sept. 24, 1996; 61 FR 67207, Dec. 20, 1996; 70 FR (18) Relocation assistance provided 6345, Feb. 7, 2005; 70 FR 41137, July 18, 2005; 71 you by a State or local government FR 45378, Aug. 9, 2006; 75 FR 7554, Feb. 22, that is comparable to assistance pro- 2010; 75 FR 54287, Sept. 7, 2010] vided under title II of the Uniform Re- location Assistance and Real Property IN-KIND SUPPORT AND MAINTENANCE Acquisition Policies Act of 1970 that is subject to the treatment required by § 416.1130 Introduction. section 216 of that Act; (a) General. Both earned income and (19) Special pay received from one of unearned income include items re- the uniformed services pursuant to 37 ceived in kind (§ 416.1102). Generally, we U.S.C. 310; value in-kind items at their current (20) Interest or other earnings on a market value and we apply the various dedicated account which is excluded exclusions for both earned and un- from resources. (See § 416.1247); earned income. However, we have spe- (21) Gifts from an organization as de- cial rules for valuing food or shelter scribed in section 501(c)(3) of the Inter- that is received as unearned income nal Revenue Code of 1986 which is ex- (in-kind support and maintenance). empt from taxation under section This section and the ones that follow 501(a) of such Code, to, or for the ben- discuss these rules. In these sections efit of, an individual who has not at- (§§ 416.1130 through 416.1148) we use the tained 18 years of age and who has a in-kind support and maintenance you life-threatening condition. We will ex- receive in the month as described in clude any in-kind gift that is not con- § 416.420 to determine your SSI benefit. verted to cash and cash gifts to the ex- We value the in-kind support and main- tent that the total gifts excluded pur- tenance using the Federal benefit rate suant to this paragraph do not exceed for the month in which you receive it. $2000 in any calendar year. In-kind Exception: For the first 2 months for

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which a cost-of-living adjustment ap- and maintenance which we must count. plies, we value in-kind support and The one-third reduction rule applies if maintenance you receive using the you are living in the household of a VTR or PMV based on the Federal ben- person who provides you with both food efit rate as increased by the cost-of-liv- and shelter (§§ 416.1131 through 416.1133). ing adjustment. The presumed value rule applies in all Example: Mr. Jones receives an SSI benefit other situations where you are receiv- which is computed by subtracting one-third ing countable in-kind support and from the Federal benefit rate. This one-third maintenance (§§ 416.1140 through represents the value of the income he re- 416.1145). If certain conditions exist, we ceives because he lives in the household of a son who provides both food and shelter (in- do not count in-kind support and main- kind support and maintenance). In January, tenance. These are discussed in we increase his SSI benefit because of a cost- §§ 416.1141 through 416.1145. of-living adjustment. We base his SSI payment for that month on the food and shelter [45 FR 65547, Oct. 3, 1980, as amended at 50 FR he received from his son two months earlier 48574, Nov. 26, 1985; 51 FR 13488, Apr. 21, 1986; in November. In determining the value of 60 FR 16375, Mar. 30, 1995; 63 FR 33546, June that food and shelter he received in Novem- 19, 1998; 70 FR 6345, Feb. 7, 2005; 75 FR 54287, ber, we use the Federal benefit rate for Janu- Sept. 7, 2010] ary. (b) How we define in-kind support and § 416.1131 The one-third reduction maintenance. In-kind support and main- rule. tenance means any food or shelter that (a) What the rule is. Instead of deter- is given to you or that you receive be- mining the actual dollar value of in- cause someone else pays for it. Shelter kind support and maintenance, we includes room, rent, mortgage pay- count one-third of the Federal benefit ments, real property taxes, heating rate as additional income if you (or fuel, gas, electricity, water, sewerage, you and your eligible spouse)— and garbage collection services. You (1) Live in another person’s house- are not receiving in-kind support and hold (see § 416.1132) for a full calendar maintenance in the form of room or month except for temporary absences rent if you are paying the amount (see § 416.1149), and charged under a business arrangement. (2) Receive both food and shelter A business arrangement exists when the amount of monthly rent required from the person in whose household to be paid equals the current market you are living. (If you do not receive rental value (see § 416.1101). Exception: both food and shelter from this person, In the States in the Seventh Circuit see § 416.1140.) (Illinois, Indiana, and Wisconsin), a (b) How we apply the one-third reduc- business arrangement exists when the tion rule. The one-third reduction ap- amount of monthly rent required to be plies in full or not at all. When you are paid equals or exceeds the presumed living in another person’s household, maximum value described in and the one-third reduction rule ap- § 416.1140(a)(1). In those States, if the plies, we do not apply any income ex- required amount of rent is less than clusions to the reduction amount. How- the presumed maximum value, we will ever, we do apply appropriate exclu- impute as in-kind support and mainte- sions to any other earned or unearned nance, the difference between the re- income you receive. If you have an eli- quired amount of rent and either the gible spouse we apply the rules de- presumed maximum value or the cur- scribed in § 416.1147. rent market value, whichever is less. In (c) If you receive other support and addition, cash payments to uniformed maintenance. If the one-third reduction service members as allowances for on- rule applies to you, we do not count base housing or privatized military any other in-kind support and mainte- housing are in-kind support and maintenance. nance you receive. (c) How we value in-kind support and [45 FR 65547, Oct. 3, 1980, as amended at 50 FR maintenance. Essentially, we have two 48574, Nov. 26, 1985] rules for valuing the in-kind support

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§ 416.1132 What we mean by ‘‘living in § 416.1133 What is a pro rata share of another person’s household’’. household operating expenses. (a) Household. For purposes of this (a) General. If you pay your pro rata subpart, we consider a household to be share toward monthly household oper- a personal place of residence. A com- ating expenses, you are living in your mercial establishment such as a hotel own household and are not receiving or boarding house is not a household in-kind support and maintenance from but a household can exist within a anyone else in the household. The one- commercial establishment. If you live third reduction, therefore, does not in a commercial establishment, we do apply to you. (If you are receiving food not automatically consider you to be a or shelter from someone outside the member of the household of the propri- household, we value it under the rule etor. You may, however, live in the in § 416.1140.) household of a roomer or boarder with- (b) How we determine a pro rata share. in the hotel or boarding house. An in- Your pro rata share of household oper- stitution is not a household and a ating expenses is the average monthly household cannot exist within an insti- household operating expenses (based on tution. (Institution is defined in a reasonable estimate if exact figures § 416.1101.) are not available) divided by the num- (b) Another person’s household. You ber of people in the household, regard- live in another person’s household if less of age. paragraph (c) of this section does not (c) Average household operating ex- apply and if the person who supplies penses. Household operating expenses the support and maintenance lives in are the household’s total monthly ex- the same household and is not— penditures for food, rent, mortgage, property taxes, heating fuel, gas, elec- (1) Your spouse (as defined in tricity, water, sewerage, and garbage § 416.1806); collection service. (The term does not (2) A minor child; or include the cost of these items if some- (3) An ineligible person (your spouse, one outside the household pays for parent, or essential person) whose in- them.) Generally, we average house- come may be deemed to you as de- hold operating expenses over the past scribed in §§ 416.1160 through 416.1169. 12 months to determine a pro rata (c) Your own household—not another share. person’s household. You are not living in another person’s household (you live [45 FR 65547, Oct. 3, 1980, as amended at 70 FR in your own household) if— 6345, Feb. 7, 2005] (1) You (or your spouse who lives § 416.1140 The presumed value rule. with you or any person whose income is deemed to you) have an ownership (a) How we apply the presumed value interest or a life estate interest in the rule. (1) When you receive in-kind sup- home; port and maintenance and the one- (2) You (or your spouse who lives third reduction rule does not apply, we with you or any person whose income use the presumed value rule. Instead of is deemed to you) are liable to the determining the actual dollar value of landlord for payment of any part of the any food or shelter you receive, we presume that it is worth a maximum rental charges; value. This maximum value is one- (3) You live in a noninstitutional third of your Federal benefit rate plus care situation as described in § 416.1143; the amount of the general income ex- (4) You pay at least a pro rata share clusion described in § 416.1124(c)(12). of household and operating expenses (2) The presumed value rule allows (see § 416.1133); or you to show that your in-kind support (5) All members of the household re- and maintenance is not equal to the ceive public income—maintenance pay- presumed value. We will not use the ments (§ 416.1142). presumed value if you show us that— [45 FR 65547, Oct. 3, 1980, as amended at 50 FR (i) The current market value of any 48574, Nov. 26, 1985] food or shelter you receive, minus any

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payment you make for them, is lower (4) For-profit institution where some- than the presumed value; or one else pays for your support and (ii) The actual amount someone else maintenance. If you or the institution pays for your food or shelter is lower pay for it, see § 416.1145. than the presumed value. (b) How we determine the amount of § 416.1142 If you live in a public assist- your unearned income under the pre- ance household. sumed value rule. (1) If you choose not (a) Definition. A public assistance to question the use of the presumed household is one in which every mem- value, or if the presumed value is less ber receives some kind of public in- than the actual value of the food or come-maintenance payments. These shelter you receive, we use the pre- are payments made under— sumed value to figure your unearned (1) Title IV–A of the Social Security income. Act (Temporary Assistance for Needy (2) If you show us, as provided in Families); paragraph (a)(2) of this section, that (2) Title XVI of the Social Security the presumed value is higher than the Act (SSI, including federally adminis- actual value of the food or shelter you tered State supplements and State ad- receive, we use the actual amount to ministered mandatory supplements); figure your unearned income. (3) The Refugee Act of 1980 (Those payments based on need); [45 FR 65547, Oct. 3, 1980, as amended at 50 FR 48575, Nov. 26, 1985; 58 FR 63888, Dec. 3, 1993; (4) The Disaster Relief and Emer- 70 FR 6345, Feb. 7, 2005] gency Assistance Act; (5) General assistance programs of § 416.1141 When the presumed value the Bureau of Indian Affairs; rule applies. (6) State or local government assist- The presumed value rule applies ance programs based on need (tax cred- whenever we must count in-kind sup- its or refunds are not assistance based port and maintenance as unearned in- on need); and come and the one-third reduction rule (7) U.S. Department of Veterans Af- does not apply. This means that the fairs programs (those payments based presumed value rule applies if you are on need). living— (b) How the presumed value rule ap- (a) In another person’s household (as plies. If you live in a public assistance described in § 416.1132(b)) but not re- household, we consider that you are ceiving both food and shelter from that not receiving in-kind support and person; maintenance from members of the (b) In your own household (as de- household. In this situation, we use the scribed in § 416.1132(c)). For exceptions, presumed value rule only if you receive see § 416.1142 if you are in a public as- food or shelter from someone outside sistance household and § 416.1143 if you the household. are in a noninstitutional care situa- [45 FR 65547, Oct. 3, 1980, as amended at 57 FR tion; 53850, Nov. 13, 1992; 70 FR 6345, Feb. 7, 2005; 70 (c) In a nonmedical institution in- FR 41137, July 18, 2005] cluding any— (1) Public nonmedical institution if § 416.1143 If you live in a noninstitu- you are there for less than a full cal- tional care situation. endar month; (a) Definitions. For purposes of this (2) Public or private nonprofit edu- subpart you live in a noninstitutional cational or vocational training care situation if all the following con- insitution; ditions exist: (3) Private nonprofit retirement (1) You are placed by a public or pri- home or similar institution where vate agency under a specific program there is an express obligation to pro- such as foster or family care; vide your full support and maintenance (2) The placing agency is responsible or where someone else pays for your for your care; support and maintenance. For excep- (3) You are in a private household tions, see § 416.1144; and (not an institution) which is licensed

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or approved by the placing agency to provide your full support and mainte- provide care; and nance or where someone else pays for (4) You, a public agency, or someone your support and maintenance. The else pays for your care. rule does not apply to the extent that— (b) How the presumed value rule ap- (1) The home, institution, or non- plies. You are not receiving in-kind profit organization does not have an support and maintenance and the pre- express obligation to provide your full sumed value rule does not apply if you support and maintenance; and pay the rate the placing agency estab- (2) The home, institution, or non- lishes. We consider this established profit organization receives no pay- rate to be the current market value for ment for your food or shelter, or re- the in-kind support and maintenance ceives payment from another nonprofit you are receiving. The presumed value organization. rule applies if you pay less than the es- [45 FR 65547, Oct. 3, 1980, as amended at 51 FR tablished rate and the difference is 34464, Sept. 29, 1986; 70 FR 6345, Feb. 7, 2005] paid by someone else other than a public or private agency providing social § 416.1145 How the presumed value services described in § 416.1103(b) or as- rule applies in a nonmedical for- sistance based on need described in profit institution. § 416.1124(c)(2). If you live in a nonmedical for-profit institution, we consider the amount ac- § 416.1144 If you live in a nonprofit re- cepted by that institution as payment tirement home or similar institu- in full to be the current market value tion. of whatever food or shelter the institu- (a) Definitions. For purposes of this tion provides. If you are paying or are section the following definitions apply: legally indebted for that amount, you (1) Nonprofit retirement home or similar are not receiving in-kind support and institution means a nongovernmental maintenance. We do not use the pre- institution as defined under § 416.1101, sumed value rule unless someone else which is, or is controlled by, a private pays for you. nonprofit organization and which does [45 FR 65547, Oct. 3, 1980, as amended at 70 FR not provide you with— 6345, Feb. 7, 2005] (i) Services which are (or could be) covered under Medicaid, or IN-KIND SUPPORT AND MAINTENANCE IN (ii) Education or vocational training. SPECIAL CIRCUMSTANCES (2) Nonprofit organization means a private organization which is tax exempt § 416.1147 How we value in-kind sup- under section 501(a) of the Internal port and maintenance for a couple. Revenue Code of 1954 and is of the kind (a) Both members of a couple live in an- described in section 501 (c) or (d) of other person’s household and receive food that code. and shelter from that person. When both (3) An express obligation to provide of you live in another person’s house- your full support and maintenance means hold throughout a month and receive there is either a legally enforceable food and shelter from that person, we written contract or set of membership apply the one-third reduction to the rules providing that the home, institu- Federal benefit rate for a couple tion, or organization— (§ 416.1131). (i) Will provide at least all of your (b) One member of a couple lives in an- food and shelter needs; and other person’s household and receives (ii) Does not require any current or food and shelter from that person and the future payment for that food and shel- other member of the couple is in a medical ter. (For purposes of this paragraph, a institution. (1) If one of you is living in lump sum prepayment for lifetime care the household of another person who is not a current payment.) provides you with both food and shel- (b) How the presumed value rule ap- ter, and the other is temporarily ab- plies. The presumed value rule applies sent from the household as provided in if you are living in a nonprofit retire- § 416.1149(c)(1) (in a medical institution ment home or similar institution that receives substantial Medicaid pay- where there is an express obligation to ments for his or her care (§ 416.211(b))),

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and is ineligible in the month for ei- medical institution at one-third of an ther benefit payable under § 416.212, we eligible individual’s Federal benefit compute your benefits as if you were rate, plus the amount of the general in- separately eligible individuals (see come exclusion (§ 416.1124(c)(12)), unless § 416.414(b)(3)). This begins with the you can show that their value is less as first full calendar month that one of described in § 416.1140(a)(2). The mem- you is in the medical institution. The ber of the couple in the medical insti- one living in another person’s house- tution cannot receive more than the hold is eligible at an eligible individ- reduced benefit described in ual’s Federal benefit rate and one-third § 416.414(b)(3)(i). of that rate is counted as income not (2) If one of you is subject to the pre- subject to any income exclusions. The sumed value rule and the other in the one in the medical institution cannot institution is eligible for one of the receive more than the reduced benefit benefits payable under § 416.212, we described in § 416.414(b)(3)(i). compute the benefits as a couple at the (2) If the one member of the couple in rate specified under § 416.412. However, the institution is eligible for one of the if the one in the institution remains in benefits payable under the § 416.212 pro- the institution after the period benefits visions, we compute benefits as a cou- based on § 416.212 can be paid, we will ple at the rate specified under § 416.412. compute benefits as if each member of However, if that one member remains the couple were separately eligible as in the institution for a full month after described in paragraph (d)(1) of this expiration of the period benefits based section. on § 416.212 can be paid, benefits will be computed as if each person were sepa- [60 FR 16375, Mar. 30, 1995, as amended at 61 rately eligible as described under para- FR 10279, Mar. 13, 1996; 70 FR 6345, Feb. 7, graph (c)(1) of this section. This begins 2005] with the first calendar month after expiration of the period benefits based on § 416.1147a Income rules in change-of- status situations involving in-kind § 416.212 can be paid. support and maintenance. (c) Both members of a couple are subject to the presumed value rule. If the pre- (a) General. This section explains the sumed value rule applies to both of rules for determining countable in- you, we value any food or shelter you come, including in-kind support and and your spouse receive at one-third of maintenance, when eligible individuals the Federal benefit rate for a couple become an eligible couple or when an plus the amount of the general income eligible couple becomes eligible indi- exclusion (§ 416.1124(c)(12)), unless you viduals. Generally, under retrospective can show that their value is less as de- monthly accounting, income in a prior scribed in § 416.1140(a)(2). month, including in-kind support and (d) One member of a couple is subject to maintenance, affects benefit amounts the presumed value rule and the other for a current month. The prior month member is in a medical institution. (1) If may be the first or second month prior one of you is subject to the presumed to the current month (as explained in value rule and the other is temporarily § 416.420(a)) and the rules in this section absent from the household as provided apply when a change-of-status becomes in § 416.1149(c)(1) (in a medical institu- effective between the prior month and tion that receives substantial Medicaid the current month. payments for his or her care (b) Eligible individuals become an eligi- (§ 416.211(b))), and is ineligible in that ble couple. If you and your spouse have month for either benefit payable under been eligible individuals and become an § 416.212, we compute your benefits as if eligible couple, we combine the earned both members of the couple are sepa- and unearned income each of you had rately eligible individuals (see as an eligible individual in the prior § 416.414(b)(3)). This begins with the month. If either or both of you received first full calendar month that one of in-kind support and maintenance, we you is in the medical institution (see include its value as income. This may § 416.211(b)). We value any food or shel- be one-third of the Federal benefit rate ter received by the one outside of the that applied in the prior month for one

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or both of you who lived in the house- (b) The presumed value rule and deem- hold of another. It may be the pre- ing of income. (1) If you live in the same sumed maximum value (one-third of household with someone whose income the Federal benefit rate plus $20 as ex- can be deemed to you (§§ 416.1160 plained in § 416.1140) for one or both of through 416.1169), or with a parent you as appropriate. It may also be a whose income is not deemed to you be- combination of the two if each of you cause of the provisions of § 416.1165(i), received income in one of these forms. any food or shelter that person pro- We also include income deemed to ei- vides is not income to you. However, if ther or both of you in the prior month. you receive any food or shelter from (c) Eligible couple becomes one or two another source, it is income and we eligible individuals. If you are an eligible value it under the presumed value rule individual in the current month but (§ 416.1140). We also apply the deeming were a member of an eligible couple in rules. the prior month, we determine your (2) If you are a child under age 18 who countable income in the prior month lives in the same household with an in- separately from that of your spouse. eligible parent whose income may be We determine the value of any in-kind deemed to you, and you are tempo- support and maintenance you and your rarily absent from the household to at- spouse received in the prior month tend school (§ 416.1167(b)), any food or using the rules contained in § 416.1147. shelter you receive at school is income For example, if both of you lived in the household of another and the one-third to you unless your parent purchases it. reduction applied, each of you would Unless otherwise excluded, we value have income equal to one-sixth of the this income under the presumed value Federal benefit rate fov a couple. Also, rule (§ 416.1140). We also apply the for example, if you received in-kind deeming rules to you (§ 416.1165). support and maintenance and the pre- [60 FR 361, Jan. 4, 1995, as amended at 70 FR sumed maximum value applied, you 6345, Feb. 7, 2005] would have income equal to one-sixth of the Federal benefit rate for a couple, TEMPORARY ABSENCE plus $10. We divide any other income you had as an eligible couple according § 416.1149 What is a temporary ab- to who owned the income. If ownership sence from your living arrange- of jointly owned income cannot be de- ment. termined, we allocate one-half of it to (a) General. A temporary absence you. may be due to employment, hos- [50 FR 48575, Nov. 26, 1985] pitalization, vacations, or visits. The length of time an absence can be tem- § 416.1148 If you have both in-kind porary varies depending on the reason support and maintenance and infor your absence. For purposes of val- come that is deemed to you. uing in-kind support and maintenance (a) The one-third reduction and deem- under §§ 416.1130 through 416.1148, we ing of income. If you live in the house- apply the rules in this section. In gen- hold of your spouse, parent, essential eral, we will find a temporary absence person, or sponsor whose income can be from your permanent living arrange- deemed to you, or the household of a ment if you (or you and your eligible parent whose income is not deemed to spouse)— you because of the provisions of (1) Become a resident of a public in- § 416.1165(i), the one-third reduction stitution, or a public or private med- does not apply to you. The rules on ical treatment facility where you oth- deeming income are in §§ 416.1160 erwise would be subject to the reduced through 416.1169. However, if you live in benefit rate described in § 416.414, and another person’s household as de- you are eligible for the benefits pay- scribed in § 416.1131, and someone whose able under § 416.212; or income can be deemed to you lives in (2) Were in your permanent living ar- the same household, we must apply rangement for at least 1 full calendar both the one-third reduction and the month prior to the absence and intend deeming rules to you. to, and do, return to your permanent

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living arrangement in the same cal- cility in the following month. In that endar month in which you (or you and case, we consider your absence to be your spouse) leave, or in the next temporary through the date of dis- month. charge. (b) Rules we apply during a temporary (2)(i) Generally, if you are a child absence. During a temporary absence, under age 22, you are temporarily ab- we continue to value your support and sent while you are away at school, re- maintenance the same way that we did gardless of how long you are away, if in your permanent living arrangement. you come home on some weekends, For example, if the one-third reduction lengthy holidays, and vacations (or for applies in your permanent living ar- extended visits as provided in school rangement, we continue to apply the regulations). same rule during a temporary absence. (ii) However, if you are a child under However, if you receive in-kind support age 18, and your permanent living ar- and maintenance only during a tem- rangement is with an ineligible parent porary absence we do not count it since or essential person (§ 416.222), we follow you are still responsible for maintain- the rules in § 416.1148(b)(2). When you ing your permanent quarters during reach age 18, or if you are under age 18 the absence. and deeming does not apply, we con- (c) Rules for temporary absence in cer- sider the circumstances of your perma- tain circumstances. (1)(i) If you enter a nent living arrangement to value any medical treatment facility where you in-kind support and maintenance you are eligible for the reduced benefits receive. payable under § 416.414 for full months in the facility, and you are not eligible [45 FR 65547, Oct. 3, 1980, as amended at 50 FR for either benefit payable under 48575, Nov. 26, 1985; 52 FR 8882, Mar. 20, 1987; § 416.212 (and you have not received 61 FR 10279, Mar. 13, 1996; 62 FR 1056, Jan. 8, such benefits during your current pe- 1997; 70 FR 6345, Feb. 7, 2005; 72 FR 50874, riod of confinement) and you intend to Sept. 5, 2007] return to your prior living arrange- DISASTERS ment, we consider this a temporary absence regardless of the length of your § 416.1150 How we treat income re- stay in the facility. We use the rules ceived because of a major disaster. that apply to your permanent living arrangement to value any food or shel- (a) General. The Disaster Relief and ter you receive during the month (for Emergency Assistance Act and other which reduced benefits under § 416.414 Federal statutes provide assistance to are not payable) you enter or leave the victims of major disasters. In this sec- facility. During any full calendar tion we describe when we do not count month you are in the medical treat- certain kinds of assistance you receive ment facility, you cannot receive more under these statutes. than the Federal benefit rate described (b) Support and maintenance. (1) We do in § 416.414(b)(1). We do not consider not count the value of support and food or shelter provided during a med- maintenance (in cash or in kind) re- ical confinement to be income. ceived from a Federal, State, or local (ii) If you enter a medical treatment government source, or from a disaster facility and you are eligible for either assistance organization, and the one- benefit payable under § 416.212, we also third reduction rule does not apply if— consider this a temporary absence from (i) You live in a household which you your permanent living arrangement. or you and another person maintain as We use the rules that apply to your your home when a catastrophe occurs permanent living arrangement to value in the area; any food or shelter you receive during (ii) The President of the United the month you enter the facility and States declares the catastrophe to be a throughout the period you are eligible major disaster for purposes of the Dis- for these benefits. We consider your ab- aster Relief and Emergency Assistance sence to be temporary through the last Act; month benefits under § 416.212 are paid (iii) You stop living in the home be- unless you are discharged from the fa- cause of the catastrophe and within 30

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days after the catastrophe you begin to (b) Interest on cash for repair or re- receive support and maintenance; and placement of a noncash resource. We do (iv) You receive the support and not count any interest earned on the maintenance while living in a residen- cash you receive for repair or replace- tial facility maintained by another ment of a noncash resource if the inter- person. est is earned within 9 months of the (2) We do not count the value of sup- date you receive the cash. We can ex- port and maintenance (in cash or in tend the 9-month period for up to an kind) received from any other source, additional 9 months if we find you have such as from a private household, and good cause for not repairing or replac- the one-third reduction rule does not ing the resource within the initial pe- apply for up to 18 months after you riod. Good cause exists, for example, if begin to receive it if— you show that circumstances beyond (i) You live in a household which you your control prevent the repair or re- or you and another person maintain as placement, or contracting for the re- your home when a catastrophe occurs pair or replacement, of the resource in the area; within the first 9-month period. (ii) The President of the United (c) Temporary replacement of a dam- States declares the catastrophe to be a aged or destroyed home. In determining major disaster for purposes of the Dis- the amount of in-kind support and aster Relief and Emergency Assistance maintenance you receive (§§ 416.1130 Act; through 416.1140), we do not count tem- (iii) You stop living in the home be- porary housing if— cause of the catastrophe and within 30 (1) Your excluded home is damaged or days after the catastrophe you begin to destroyed, and receive support and maintenance; and (2) You receive the temporary hous- (iv) You receive the support and ing only until your home is repaired or maintenance while living in a residen- replaced. tial facility (including a private household) maintained by another person. HOME ENERGY ASSISTANCE (c) Other assistance you receive. We do not consider other assistance to be in- § 416.1157 Support and maintenance come if you receive it under the Dis- assistance. aster Relief and Emergency Assistance (a) General. Section 2639 of Pub. L. 98– Act or under another Federal statute 369, effective October 1, 1984, amended because of a catastrophe which the section 1612(b)(13) to provide that cer- President declares to be a major dis- tain support and maintenance assist- aster or if you receive it from a State ance, which includes home energy as- or local government or from a disaster sistance, be excluded from countable assistance organization. For example, income for SSI purposes. This section you may receive payments to repair or discusses how we apply section replace your home or other property. 1612(b)(13). (d) Interest payments. We do not count (b) Definitions. For support and main- any interest earned on the assistance tenance assistance purposes— payments described in paragraph (c) of Appropriate State agency means the this section. agency designated by the chief execu- [57 FR 53850, Nov. 13, 1992] tive officer of the State to handle the State’s responsibilities as set out in § 416.1151 How we treat the repair or paragraph (c) of this section. replacement of lost, damaged, or Based on need means that the pro- stolen resources. vider of the assistance: (a) General rule. If a resource is lost, (1) Does not have an express obliga- damaged, or stolen, you may receive tion to provide the assistance; cash to repair or replace it or the re- (2) States that the aid is given for the source may be repaired or replaced for purpose of support or maintenance as- you. We do not count the cash or the sistance or for home energy assistance repair or replacement of the resource (e.g., vouchers for heating or cooling as your income. bills, storm doors); and

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(3) Provides the aid for an SSI claim- (iii) A municipal utility providing ant, a member of the household in home energy. which an SSI claimant lives or an SSI [51 FR 39523, Oct. 29, 1986; 51 FR 43709, Dec. 3, claimant’s ineligible spouse, parent, 1986, as amended at 53 FR 35808, Sept. 15, sponsor (or the sponsor’s spouse) of an 1988; 70 FR 6345, Feb. 7, 2005] alien, or essential person. Private nonprofit agency means a reli- DEEMING OF INCOME gious, charitable, educational, or other organization such as described in sec- § 416.1160 What is deeming of income? tion 501(c) of the Internal Revenue (a) General. We use the term deeming Code of 1954. (Actual tax exempt cer- to identify the process of considering tification by IRS is not necessary.) another person’s income to be your Rate-of-return entity means an entity own. When the deeming rules apply, it whose revenues are primarily received does not matter whether the income of from the entity’s charges to the public the other person is actually available for goods or services and such charges to you. We must apply these rules any- are based on rates regulated by a State way. There are four categories of indi- or Federal governmental body. viduals whose income may be deemed Support and maintenance assistance to you. means cash provided for the purpose of (1) Ineligible spouse. If you live in the meeting food or shelter needs or in- same household with your ineligible spouse, we look at your spouse’s in- kind support and maintenance as de- come to decide whether we must deem fined in § 416.1121(h). Support and main- some of it to you. We do this because tenance assistance includes home en- we expect your spouse to use some of ergy assistance. Home energy assist- his or her income to take care of some ance means any assistance related to of your needs. meeting the costs of heating or cooling (2) Ineligible parent. If you are a child a home. Home energy assistance in- to whom deeming rules apply (see cludes such items as payments for util- § 416.1165), we look at your ineligible ity service or bulk fuels; assistance in parent’s income to decide whether we kind such as portable heaters, fans, must deem some of it to be yours. If blankets, storm doors, or other items you live with both your parent and which help reduce the costs of heating your parent’s spouse (i.e., your step- and cooling such as conservation or parent), we also look at your step- weatherization materials and services; parent’s income to decide whether we etc. must deem some of it to be yours. We (c) What assistance we do not count as do this because we expect your parent income. We do not count as income cer- (and your stepparent, if living with you tain support and maintenance assist- and your parent) to use some of his or ance received on or after October 1, her income to take care of your needs. 1984, by you or your ineligible spouse, (3) Sponsor of an alien. If you are an parent, sponsor (or your sponsor’s alien who has a sponsor and you first spouse) if you are an alien, or an essen- apply for SSI benefits after September tial person. We also do not consider 30, 1980, we look at your sponsor’s in- certain support and maintenance as- come to decide whether we must deem sistance in determining a pro rata some of it to be yours. This rule applies share of household operating expenses for 3 years after you are admitted to under § 416.1133. We do not count that the United States for permanent resi- assistance which is certified in writing dence and regardless of whether you by the appropriate State agency to be live in the same household as your both based on need and— sponsor. We deem your sponsor’s in- (1) Provided in kind by a private non- come to you because your sponsor profit agency; or agreed to support you (signed an affi- (2) Provided in cash or in kind by— davit of support) as a condition of your (i) A supplier of home heating oil or admission to the United States. If two gas; deeming rules could apply to you be- (ii) A rate-of-return entity providing cause your sponsor is also your ineli- home energy; or gible spouse or parent who lives with

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you, we use the appropriate spouse-to- the same countable income that we spouse or parent-to-child deeming rules used in the preceding month to deter- instead of the sponsor-to-alien rules. If mine your benefit amount. you have a sponsor and also have an in- (iii) To determine the amount of your eligible spouse or parent who is not benefit in the current month, if there your sponsor and whose income can be are certain changes in your situation deemed to you, both rules apply. If which we list below, we use only your your sponsor is not your parent or own countable income in a prior spouse but is the ineligible spouse or month, excluding any income deemed parent of another SSI beneficiary, we to you in that month from an ineligible use the sponsor-to-alien deeming rules spouse or parent. These changes are for you and the appropriate spouse-to- the death of your spouse or parent, spouse or parent-to-child deeming rules your attainment of age 18, or your be- for the other SSI beneficiary. coming subject to the $30 Federal ben- (4) Essential person. If you live in the efit rate (§ 416.211(b)). same household with your essential (iv) To determine the amount of your person (as defined in § 416.222), we must benefit for the current month, we do look at that person’s income to decide not use income deemed from your es- whether we must deem some of it to sential person beginning with the you. We do this because we have in- month you can no longer qualify for creased your benefit to help meet the the essential person increment needs of your essential person. (§ 416.413). We use only your own count- (b) When we deem. We deem income to able income in a prior month to deter- determine whether you are eligible for mine the amount of your benefit for a benefit and to determine the amount the current month. of your benefit. However, we may con- (c) Steps in deeming. Although the sider this income in different months way we deem income varies depending for each purpose. upon whether you are an eligible indi- (1) Eligibility. We consider the income vidual, an eligible child, an alien with of your ineligible spouse, ineligible parent, sponsor or essential person in a sponsor, or an individual with an es- the current month to determine wheth- sential person, we follow several gen- er you are eligible for SSI benefits for eral steps to determine how much in- that month. come to deem. (2) Amount of benefit. We consider the (1) We determine how much earned income of your ineligible spouse, ineli- and unearned income your ineligible gible parent, sponsor, or essential per- spouse, ineligible parent, sponsor, or son in the second month prior to the essential person has, and we apply the current month to determine your ben- appropriate exclusions. (See efit amount for the current month. Ex- § 416.1161(a) for exclusions that apply to ceptions: an ineligible parent or spouse, and (i) We use the income from the first § 416.1161(b) for those that apply to an month you are initially eligible for essential person or to a sponsor.) payment of SSI benefits (see § 416.501) (2) Before we deem income to you to determine your benefit amount for from either your ineligible spouse or that month. In the following month ineligible parent, we allocate an (the second month you are eligible for amount for each ineligible child in the payment), we use the same countable household. (Allocations for ineligible income that we used in the preceding children are explained in §§ 416.1163(b) month to determine your benefit and 416.1165(b).) We also allocate an amount. amount for each eligible alien who is (ii) To determine your benefit subject to deeming from your ineligible amount for the first month you again spouse or parent as a sponsor. (Alloca- become eligible after you have been in- tions for eligible aliens are explained eligible for at least a month, we use in § 416.1163(c).) the same countable income that we use (3) We then follow the deeming rules to determine your eligibility for that which apply to you. month. In the following month (the (i) For deeming income from your in- second month of reeligibility), we use eligible spouse, see § 416.1163.

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(ii) For deeming income from your Essential person means someone who ineligible parent, see § 416.1165. was identified as essential to your wel- (iii) For deeming income from your fare under a State program that pre- ineligible spouse when you also have an ceded the SSI program. (See §§ 416.220 eligible child, see § 416.1166. through 416.223 for the rules on essen- (iv) For deeming income from your tial persons.) sponsor if you are an alien, see Ineligible child means your natural § 416.1166a. child or adopted child, or the natural (v) For deeming income from your es- or adopted child of your spouse, or the sential person, see § 416.1168. The rules natural or adopted child of your parent on when we stop deeming income from or of your parent’s spouse (as the term your essential person are in § 416.1169. child is defined in § 416.1101 and the (vi) For provisions on change in sta- term spouse is defined in § 416.1806), who tus involving couples see § 416.1163(f) lives in the same household with you, and for those involving parents see and is not eligible for SSI benefits. § 416.1165(g). Ineligible parent means a natural or adoptive parent, or the spouse (as de- (d) Definitions for deeming purposes. fined in § 416.1101) of a natural or adop- For deeming purposes— tive parent, who lives with you and is means Combat zone not eligible for SSI benefits. The in- (i) Any area the President of the come of ineligible parents affects your United States designates by Executive benefit only if you are a child under Order under 26 U.S.C. 112 as an area in age 18. which Armed Forces of the United Ineligible spouse means someone who States are or have engaged in combat; lives with you as your husband or wife (ii) A qualified hazardous duty area and is not eligible for SSI benefits. (QHDA) Congress designates be treated Sponsor means an individual (but not in the same manner as an area des- an organization such as the congrega- ignated by the President under 26 tion of a church or a service club, or an U.S.C. 112, provided the member of the employer who only guarantees employ- uniformed services serving in this area ment for an alien upon entry but does is entitled to special pay under 37 not sign an affadavit of support) who U.S.C. 310; or signs an affidavit of support agreeing (iii) An area where the Secretary of to support you as a condition of your Defense or his or her designated rep- admission as an alien for permanent resentative has certified that Armed residence in the United States. Forces members provide direct support for military operations in an area des- [52 FR 8882, Mar. 20, 1987, as amended at 54 FR 19164, May 4, 1989; 64 FR 31974, June 15, ignated by the President under 26 1999; 73 FR 28035, May 15, 2008; 75 FR 7554, U.S.C. 112 or a QHDA, provided the Feb. 22, 2010] member of the uniformed services serving in the area certified by the Sec- § 416.1161 Income of an ineligible retary of Defense or his or her des- spouse, ineligible parent, and essen- ignated representative is entitled to tial person for deeming purposes. special pay under 37 U.S.C. 310. The first step in deeming is deter- Date of admission to or date of entry mining how much income your ineli- into the United States means the date es- gible spouse, ineligible parent (if you tablished by the U.S. Citizenship and are a child), your sponsor (if you are an Immigration Services as the date the alien), or your essential person, has. alien is admitted for permanent resi- We do not always include all of their dence. income when we determine how much Dependent means the same thing as it income to deem. In this section we ex- does for Federal income tax purposes— plain the rules for determining how we mean someone for whom you are en- much of their income is subject to titled to take a deduction on your per- deeming. As part of the process of sonal income tax return. Exception: An deeming income from your ineligible alien and an alien’s spouse are not con- spouse or parent, we must determine sidered to be dependents of the alien’s the amount of income of any ineligible sponsor for the purposes of these rules. children in the household.

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(a) For an ineligible spouse or parent. under title XX of the Social Security We do not include any of the following Act) to provide you with chore, attend- types of income (see § 416.1102) of an in- ant or homemaker services; eligible spouse or parent: (17) Certain support and maintenance (1) Income excluded by Federal laws assistance as described in § 416.1157(c); other than the Social Security Act (18) Housing assistance as provided in (See the appendix to this subpart.) § 416.1124(c)(14); (2) Any public income-maintenance (19) The value of a commercial trans- payments (§ 416.1142(a)) your ineligible portation ticket as described in spouse or parent receives, and any in- § 416.1124(c)(16). However, if such a tick- come which was counted or excluded in et is converted to cash, the cash is in- figuring the amount of that payment; come in the month your spouse or par- (3) Any of the income of your ineli- ent receives the cash; gible spouse or parent that is used by a (20) Refunds of Federal income taxes public income-maintenance program and advances made by an employer re- (§ 416.1142(a)) to determine the amount lating to an earned income tax credit, of that program’s benefit to someone as provided in § 416.1112(c); else; (21) Payments from a fund estab- (4) Any portion of a grant, scholar- lished by a State to aid victims of ship, fellowship, or gift used or set crime (see § 416.1124(c)(17)); aside to pay tuition, fees or other nec- (22) Relocation assistance, as de- essary educational expenses; scribed in § 416.1124(c)(18); (5) Money received for providing fos- (23) Special pay received from one of ter care to an ineligible child; the uniformed services pursuant to 37 (6) The value of food stamps and the U.S.C. 310; value of Department of Agriculture do- (24) Impairment-related work ex- nated foods; penses, as described in 20 CFR 404.1576, (7) Food raised by your parent or incurred and paid by an ineligible spouse and consumed by members of spouse or parent, if the ineligible the household in which you live; spouse or parent receives disability (8) Tax refunds on income, real prop- benefits under title II of the Act; erty, or food purchased by the family; (25) Interest earned on excluded bur- (9) Income used to fulfill an approved ial funds and appreciation in the value plan for achieving self-support (see of excluded burial arrangements which §§ 416.1180 through 416.1182); are left to accumulate and become part (10) Income used to comply with the of separate burial funds, and interest terms of court-ordered support, or sup- accrued on and left to accumulate as port payments enforced under title IV- part of the value of agreements rep- D of the Act; resenting the purchase of excluded bur- (11) The value of in-kind support and ial spaces (see § 416.1124(c) (9) and (15)); maintenance; (26) Interest and dividend income (12) Alaska Longevity Bonus pay- from a countable resource or from a re- ments made to an individual who is a source excluded under a Federal stat- resident of Alaska and who, prior to ute other than section 1613(a) of the October 1, 1985: met the 25-year resi- Social Security Act; dency requirement for receipt of such (27) Earned income of a student as de- payments in effect prior to January 1, scribed in § 416.1112(c)(3); and 1983; and was eligible for SSI; (28) Any additional increment in pay, (13) Disaster assistance as described other than any increase in basic pay, in §§ 416.1150 and 416.1151; received while serving as a member of (14) Income received infrequently or the uniformed services, if— irregularly (see §§ 416.1112(c)(1) and (i) Your ineligible spouse or parent 416.1124(c)(6)); received the pay as a result of deploy- (15) Work expenses if the ineligible ment to or service in a combat zone; spouse or parent is blind; and (16) Income of your ineligible spouse (ii) Your ineligible spouse or parent or ineligible parent which was paid was not receiving the additional pay under a Federal, State, or local govern- immediately prior to deployment to or ment program (For example, payments service in a combat zone.

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(b) For an essential person or for a mentary payment) and Medicaid. Any sponsor of an alien. We include all the determination made under this section income (as defined in § 416.1102) of an may at any time be revised based on essential person or of a sponsor of an new information or changed cir- alien and of the spouse of the sponsor cumstances. (if the sponsor and spouse live in the (b) When special deeming rules apply: same household) except for support and (1) The Department will consider not maintenance assistance described in applying the usual deeming rules only § 416.1157(c), and income excluded under upon application by a State Medicaid Federal laws other than the Social Se- agency (requirement approved under curity Act. For information on these OMB No. 0960–0304) and on condition laws see the appendix to this subpart. that the agency must show: (c) For an ineligible child. Although we (i) Deeming would result in lack of do not deem any income to you from Medicaid eligibility for the individual. an ineligible child, we reduce his or her (ii) Medicaid eligibility would, pro- allocation if the ineligible child has in- spectively, result in savings to the come (see § 416.1163(b)(2)). For this pur- Medicaid program; and pose, we do not include any of the (iii) The quality of medical care nec- child’s income listed in paragraph (a) essary for the individual would be of this section. In addition, if the ineli- maintained under the arrangements gible child is a student (see § 416.1861), contemplated. we exclude his/her earned income sub- (2) The Department may also in par- ject to the amounts set in ticular cases require that additional § 416.1112(c)(3). facts be demonstrated, or that other (d) For an eligible alien. Although we criteria or standards be met, before it do not deem any income to you from determines not to apply the usual an eligible alien, if your ineligible deeming rules. spouse or ineligible parent is also a (c) Amount of income to be deemed. If sponsor of an eligible alien, we reduce the usual rules of deeming do not the alien’s allocation if he or she has apply, the Department will determine income (see § 416.1163(c)(2)). For this an amount, if any, to be deemed. purpose exclude any of the alien’s in- (d) Temporary effect of special deeming come listed in paragraph (a) of this sec- rules. This provision is temporary and tion. will be continued only through Decem- [45 FR 65547, Oct. 3, 1980, as amended at 46 FR ber 31, 1984. Determinations made 57276, Nov. 23, 1981; 48 FR 33259, July 21, 1983; under this section will nevertheless re- 50 FR 48576, Nov. 26, 1985; 51 FR 39523, Oct. 29, main in effect unless they are revised 1986; 52 FR 8883, Mar. 20, 1987; 52 FR 44971, based on changed circumstances (in- Nov. 24, 1987; 55 FR 28378, July 11, 1990; 58 FR cluding establishment in the State of a 63888, 63890, Dec. 3, 1993; 61 FR 1712, Jan. 23, Medicaid program of home and commu- 1996; 61 FR 49964, Sept. 24, 1996; 67 FR 11034, nity-based services or eligibility under Mar. 12, 2002; 71 FR 45378, Aug. 9, 2006; 71 FR a State plan provision) or new informa- 66866, Nov. 17, 2006; 75 FR 7554, Feb. 22, 2010] tion. § 416.1161a Income for deeming pur- [49 FR 5747, Feb. 15, 1984] poses where Medicaid eligibility is affected. § 416.1163 How we deem income to you (a) General. In many States, an indi- from your ineligible spouse. vidual who is eligible for SSI or a Fed- If you have an ineligible spouse who erally administered State optional sup- lives in the same household, we apply plementary payment is in turn eligible the deeming rules to your ineligible for Medicaid. Also, several other States spouse’s income in the following order. use SSI deeming rules in determining (a) Determining your ineligible spouse’s eligibility for Medicaid. In all of these income. We first determine how much States, in extraordinary cases, the De- earned and unearned income your ineli- partment will not apply the usual rules gible spouse has, using the appropriate on deeming of income where those exclusions in § 416.1161(a). rules would result in an individual’s (b) Allocations for ineligible children. being ineligible for SSI (or a Federally We then deduct an allocation for ineli- administered State optional supple- gible children in the household to help

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meet their needs. Exception: We do not balance from your ineligible spouse’s allocate for ineligible children who are earned income. receiving public income-maintenance (d) Determining your eligibility for SSI. payments (see § 416.1142(a)). (1) If the amount of your ineligible (1) The allocation for each ineligible spouse’s income that remains after ap- child is the difference between the Fed- propriate allocations is not more than eral benefit rate for an eligible couple the difference between the Federal ben- and the Federal benefit rate for an eli- efit rate for an eligible couple and the gible individual. The amount of the al- Federal benefit rate for an eligible in- location automatically increases when- dividual, there is no income to deem to ever the Federal benefit rate increases. you from your spouse. In this situa- The amount of the allocation that we tion, we subtract only your own count- use to determine the amount of a ben- able income from the Federal benefit efit for a current month is based on the rate for an individual to determine Federal benefit rate that applied in the whether you are eligible for SSI bene- second prior month unless one of the fits. exceptions in § 416.1160(b)(2) applies. (2) If the amount of your ineligible (2) Each ineligible child’s allocation spouse’s income that remains after ap- is reduced by the amount of his or her propriate allocations is more than the own income as described in § 416.1161(c). difference between the Federal benefit rate for an eligible couple and the Fed- (3) We first deduct the allocations eral benefit rate for an eligible indi- from your ineligible spouse’s unearned vidual, we treat you and your ineligible income. If your ineligible spouse does spouse as an eligible couple. We do this not have enough unearned income to by: cover the allocations we deduct the (i) Combining the remainder of your balance from your ineligible spouse’s spouse’s unearned income with your earned income. own unearned income and the remain- (c) Allocations for aliens sponsored by der of your spouse’s earned income your ineligible spouse. We also deduct an with your earned income; allocation for eligible aliens who have (ii) Applying all appropriate income been sponsored by and who have in- exclusions in §§ 416.1112 and 416.1124; come deemed from your ineligible and spouse. (iii) Subtracting the couple’s count- (1) The allocation for each alien who able income from the Federal benefit is sponsored by and who has income rate for an eligible couple. (See deemed from your ineligible spouse is § 416.2025(b) for determination of the the difference between the Federal ben- State supplementary payment efit rate for an eligible couple and the amount.) Federal benefit rate for an eligible in- (e) Determining your SSI benefit. (1) In dividual. The amount of the allocation determining your SSI benefit amount, automatically increases whenever the we follow the procedure in paragraphs Federal benefit rate increases. The (a) through (d) of this section. How- amount of the allocation that we use ever, we use your ineligible spouse’s in- to compute your benefit for a current come in the second month prior to the month is based on the Federal benefit current month. We vary this rule if any rate that applied in the second prior of the exceptions in § 416.1160(b)(2) ap- month (unless the current month is the plies (for example, if this is the first first or second month of eligibility or month you are eligible for payment of re-eligibility as explained in § 416.420(a) an SSI benefit or if you are again eligi- and (b) (2) and (3)). ble after at least a month of being in- (2) Each alien’s allocation is reduced eligible). In the first month of your eli- by the amount of his or her own in- gibility for payment (or re-eligibility), come as described in § 416.1161(d). we deem your ineligible spouse’s in- (3) We first deduct the allocations come in the current month to deter- from your ineligible spouse’s unearned mine both whether you are eligible for income. If your ineligible spouse does a benefit and the amount of your ben- not have enough unearned income to efit. In the second month, we deem cover the allocations, we deduct the your ineligible spouse’s income in that

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month to determine whether you are month following the month of death, eligible for a benefit but we deem your we use only your own countable in- ineligible spouse’s income in the first come in a prior month, excluding any month to determine the amount of income deemed to you in that month your benefit. from your ineligible spouse. (2) Your SSI benefit under the deem- (5) You become subject to the $30 Fed- ing rules cannot be higher than it eral benefit rate. If you become a resi- would be if deeming did not apply. dent of a medical care facility and the Therefore, your benefit is the lesser of $30 Federal benefit rate applies, we do the amount computed under the rules not deem your ineligible spouse’s in- in paragraph (d)(2) of this section or come to you to determine your eligi- the amount remaining after we sub- bility for SSI benefits beginning with tract only your own countable income the first month for which the $30 Fed- from an individual’s Federal benefit eral benefit rate applies. In deter- rate. mining your benefit amount beginning (f) Special rules for couples when a with the first month for which the $30 change in status occurs. We have special Federal benefit rate applies, we use rules to determine how to deem your only your own countable income in a spouse’s income to you when there is a prior month, excluding any income change in your situation. deemed to you in that month from (1) Ineligible spouse becomes eligible. If your ineligible spouse. your ineligible spouse becomes eligible (g) Examples. These examples show for SSI benefits, we treat both of you how we deem income from an ineligible as newly eligible. Therefore, your eligi- spouse to an eligible individual in cases bility and benefit amount for the first which do not involve any of the excep- month you are an eligible couple will tions in § 416.1160(b)(2). The income, the be based on your income in that income exclusions, and the allocations month. In the second month, your ben- are monthly amounts. The Federal efit amount will also be based on your benefit rates used are those effective income in the first month. January 1, 1986. (2) Spouses separate or divorce. If you separate from your ineligible spouse or Example 1. In September 1986, Mr. Todd, an your marriage to an ineligible spouse aged individual, lives with his ineligible ends by divorce, we do not deem your spouse, Mrs. Todd, and their ineligible child, ineligible spouse’s income to you to de- Mike. Mr. Todd has a Federal benefit rate of termine your eligibility for benefits be- $336 per month. Mrs. Todd receives $252 unearned income per month. She has no earned ginning with the first month following income and Mike has no income at all. Be- the event. If you remain eligible, we fore we deem any income, we allocate to determine your benefit amount by fol- Mike $168 (the difference between the Sep- lowing the rule in paragraph (e) of this tember Federal benefit rate for an eligible section provided deeming from your couple and the September Federal benefit spouse applied in the prior month. rate for an eligible individual). We subtract (3) Eligible individual begins living with the $168 allocation from Mrs. Todd’s $252 un- an ineligible spouse. If you begin to live earned income, leaving $84. Since Mrs. with your ineligible spouse, we deem Todd’s $84 remaining income is not more than $168, which is the difference between your ineligible spouse’s income to you the September Federal benefit rate for an el- in the first month thereafter to deter- igible couple and the September Federal ben- mine whether you continue to be eligi- efit rate for an eligible individual, we do not ble for SSI benefits. If you continue to deem any income to Mr. Todd. Instead, we be eligible, we follow the rule in compare only Mr. Todd’s own countable in- § 416.420(a) to determine your benefit come with the Federal benefit rate for an eli- amount. gible individual to determine whether he is (4) Ineligible spouse dies. If your ineli- eligible. If Mr. Todd’s own countable income gible spouse dies, we do not deem your is less than his Federal benefit rate, he is eligible. To determine the amount of his ben- spouse’s income to you to determine efit, we determine his countable income, in- your eligibility for SSI benefits begin- cluding any income deemed from Mrs. Todd, ning with the month following the in July and subtract this income from the month of death. In determining your appropriate Federal benefit rate for Sep- benefit amount beginning with the tember.

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Example 2. In September 1986, Mr. Jones, a Mr. Simon’s earned income from $405 to $237. disabled individual, lives with his ineligible Since $237 is more than $168 (the difference spouse, Mrs. Jones, and ineligible child, between the Federal benefit rate for an eligi- Christine. Mr. Jones and Christine have no ble couple and the rate for an eligible indi- income. Mrs. Jones has earned income of $401 vidual), we deem all of Mr. Simon’s remain- a month and unearned income of $252 a ing income to be available to Mr. and Mrs. month. Before we deem any income, we allo- Simon and compute the combined countable cate $168 to Christine. We take the $168 allo- income for the couple. We apply the $20 gen- cation from Mrs. Jones’ $252 unearned in- eral income exclusion to Mrs. Simon’s un- come, leaving $84 in unearned income. Since earned income, leaving $80. Then we apply Mrs. Jones’ total remaining income ($84 un- the general earned income exclusion ($65 plus earned plus $401 earned) is more than $168, one-half the remainder) to Mr. Simon’s $237 which is the difference between the Sep- earned income, leaving $86. This gives the tember Federal benefit rate for an eligible couple total income of $166 ($80 + $86.). The couple and the September Federal benefit $166 is less than the $504 Federal benefit rate rate for an eligible individual, we compute for a couple so Mrs. Simon would be eligible the combined countable income as we do for based on deeming. Since she is eligible, we a couple. We apply the $20 general income ex- determine the amount of her benefit based clusion to the unearned income, reducing it on her income (including any deemed from further to $64. We then apply the earned in- Mr. Simon) in July. For the way we deem come exclusion ($65 plus one-half the remain- Mr. Simon’s income to Mr. Ollie, see the der) to Mrs. Jones’ earned income of $401, rules in § 416.1166a. leaving $168. We combine the $64 countable unearned income and $168 countable earned [45 FR 65547, Oct. 3, 1980, as amended at 50 FR income, and compare it ($232) with the $504 48576, Nov. 26, 1985; 52 FR 8883, Mar. 20, 1987; September Federal benefit rate for a couple, 53 FR 25151, July 5, 1988; 54 FR 19164, May 4, and determine that Mr. Jones is eligible. 1989; 64 FR 31974, June 15, 1999] Since Mr. Jones is eligible, we determine the amount of his benefit by subtracting his § 416.1165 How we deem income to you countable income in July (including any from your ineligible parent(s). deemed from Mrs. Jones) from September’s Federal benefit rate for a couple. If you are a child living with your Example 3. In September 1986, Mr. Smith, a parents, we apply the deeming rules to disabled individual, lives with his ineligible you through the month in which you spouse, Mrs. Smith, who earns $201 per reach age 18. We follow the rules in month. Mr. Smith receives a pension (un- paragraphs (a) through (e) of this sec- earned income) of $100 a month. Since Mrs. tion to determine your eligibility. To Smith’s income is greater than $168, which is determine your benefit amount, we fol- the difference between the September Fed- eral benefit rate for an eligible couple and low the rules in paragraph (f) of this the September Federal benefit rate for an el- section. The rules in paragraph (g) of igible individual, we deem all of her income this section apply to changes in your to be available to both Mr. and Mrs. Smith family situation. Paragraph (i) of this and compute the combined countable income section discusses the conditions under for the couple. We apply the $20 general in- which we will not deem your ineligible come exclusion to Mr. Smith’s $100 unearned parents’ income to you if you are a dis- income, leaving $80. Then we apply the earned income exclusion ($65 plus one-half of abled child living with your parents. the remainder) to Mrs. Smith’s $201, leaving (a) Determining your ineligible parent’s $68. This gives the couple total countable in- income. We first determine how much come of $148. This is less than the $504 Sep- current monthly earned and unearned tember Federal benefit rate for a couple, so income your ineligible parents have, Mr. Smith is eligible based on deeming. using the appropriate exclusions in Since he is eligible, we determine the § 416.1161(a). amount of his benefit based on his income (including any deemed from Mrs. Smith) in (b) Allocations for ineligible children. July. We next deduct an allocation for each Example 4. In September 1986, Mr. Simon ineligible child in the household as de- has a disabled spouse, Mrs. Simon, and has scribed in § 416.1163(b). sponsored an eligible alien, Mr. Ollie. Mrs. (c) Allocations for aliens who are spon- Simon has monthly unearned income of $100 sored by and have income deemed from and Mr. Simon has earned income of $405. your ineligible parent. We also deduct an From Mr. Simon’s earned income we allocate to Mr. Ollie $168, which is the difference be- allocation for eligible aliens who have tween the Federal benefit rate for an eligible been sponsored by and have income couple and the rate for an eligible individual. deemed from your ineligible parent as Mr. Ollie has no other income. This reduces described in § 416.1163(c).

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(d) Allocations for your ineligible par- scribed in paragraph (e)(2) of this sec- ent(s). We next deduct allocations for tion. your parent(s). We do not deduct an al- (f) Determining your SSI benefit. In de- location for a parent who is receiving termining your SSI benefit amount, we public income-maintenance payments follow the procedure in paragraphs (a) (see § 416.1142(a)). The allocations are through (d) of this section. However, calculated as follows: we use your ineligible parents’ income (1) We first deduct $20 from the par- in the second month prior to the cur- ents’ combined unearned income, if rent month. We vary this rule if any of any. If they have less than $20 in un- the exceptions in § 416.1160(b)(2) applies earned income, we subtract the balance (for example, if this is the first month of the $20 from their combined earned you are eligible for payment of an SSI income. benefit or if you are again eligible after (2) Next, we subtract $65 plus one-half at least a month of being ineligible). In the remainder of their earned income. the first month of your eligibility for (3) We total the remaining earned payment (or re-eligibility) we deem and unearned income and subtract— your ineligible parents’ income in the (i) The Federal benefit rate for the current month to determine both month for a couple if both parents live whether you are eligible for a benefit with you; or and the amount of your benefit. In the (ii) The Federal benefit rate for the second month we deem your ineligible month for an individual if only one parents’ income in that month to de- parent lives with you. termine whether you are eligible for a (e)(1) When you are the only eligible benefit but we again use your count- child. If you are the only eligible child able income (including any that was in the household, we deem any of your deemed to you) in the first month to parents’ current monthly income that determine the amount of your benefit. remains to be your unearned income. (g) Special rules for a change in status. We combine it with your own unearned We have special rules to begin or stop income and apply the exclusions in deeming your ineligible parents’ in- § 416.1124 to determine your countable come to you when a change in your unearned income in the month. We add family situation occurs. this to any countable earned income (1) Ineligible parent becomes eligible. If you may have and subtract the total your ineligible parent becomes eligible from the Federal benefit rate for an infor SSI benefits, there will be no individual to determine whether you are come to deem from that parent to you eligible for benefits. to determine your eligibility for SSI (2) When you are not the only eligible benefits beginning with the month child. If your parents have more than your parent becomes eligible. However, one eligible child under age 18 in the to determine your benefit amount, we household, we divide the parental in- follow the rule in § 416.420. come to be deemed equally among (2) Eligible parent becomes ineligible. If those eligible children. your eligible parent becomes ineligible, (3) When one child’s income makes that we deem your parents’ income to you child ineligible. We do not deem more in the first month of the parents’ ineli- income to an eligible child than the gibility to determine whether you con- amount which, when combined with tinue to be eligible for SSI benefits. the child’s own income, reduces his or However, if you continue to be eligible, her SSI benefit to zero. (For purposes in order to determine your benefit of this paragraph, an SSI benefit in- amount, we follow the regular rule of cludes any federally administered counting your income in the second State supplement). If the share of pa- month prior to the current month. rental income that would be deemed to (3) Ineligible parent dies. If your ineli- a child makes that child ineligible (re- gible parent dies, we do not deem that duces the amount to zero) because that parent’s income to you to determine child has other countable income, we your eligibility for SSI benefits begin- deem any remaining parental income ning with the month following the to other eligible children under age 18 month of death. In determining your in the household in the manner de- benefit amount beginning with the

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month following the month of death, termining your benefit amount begin- we use only your own countable in- ning with the first month for which the come in a prior month, excluding any $30 Federal benefit rate applies, we income deemed to you in that month only use your own countable income in from your deceased ineligible parent a prior month, excluding any income (see § 416.1160(b)(2)(iii)). If you live with deemed to you in that month from two ineligible parents and one dies, we your ineligible parent. continue to deem income from the sur- (7) You attain age 18. In the month viving ineligible parent who is also following the month in which you at- your natural or adoptive parent. If you tain age 18 and thereafter, we do not live with a stepparent following the deem your ineligible parent’s income death of your natural or adoptive par- to you to determine your eligibility for ent, we do not deem income from the SSI benefits. In determining your ben- stepparent. efit amount beginning with the month (4) Ineligible parent and you no longer following your attainment of age 18, we live in the same household. If your ineli- only use your own countable income in gible parent and you no longer live in a prior month, excluding any income the same household, we do not deem deemed to you in that month from that parent’s income to you to deter- your ineligible parent (see mine your eligibility for SSI benefits § 416.1160(b)(2)(B)). Your income for the beginning with the first month fol- current and subsequent months must lowing the month in which one of you include any income in the form of cash leaves the household. We also will not or in-kind support and maintenance deem income to you from your parent’s provided by your parents. If you attain spouse (i.e., your stepparent) who re- age 18 and stop living in the same mains in the household with you if household with your ineligible parent, your natural or adoptive parent has these rules take precedence over para- permanently left the household. To de- graph (g)(4) of this section which re- termine your benefit amount if you quires continued use of deemed income continue to be eligible, we follow the in the benefit computation for 2 rule in § 416.420 of counting your in- months following the month you no come including deemed income from longer live in the same household. your parent and your parent’s spouse (h) Examples. These examples show (i.e., your stepparent) (if the stepparent how we deem an ineligible parent’s in- and parent lived in the household with come to an eligible child when none of you) in the second month prior to the the exceptions in § 416.1160(b)(2) applies. current month. The Federal benefit rates are those ef- (5) Ineligible parent and you begin living in the same household. If your ineli- fective January 1, 1992. gible parent and you begin living in the Example 1. Henry, a disabled child, lives same household, we consider that par- with his mother and father and a 12-year-old ent’s income to determine whether you ineligible brother. His mother receives a pen- continue to be eligible for SSI benefits sion (unearned income) of $365 per month and beginning with the month following his father earns $1,165 per month. Henry and the month of change. However (if you his brother have no income. First we deduct an allocation of $211 for Henry’s brother continue to be eligible), to determine from the unearned income. This leaves $154 your benefit amount, we follow the in unearned income. We reduce the remain- rule in § 416.420 of counting your ining unearned income further by the $20 gen- come in the second month prior to the eral income exclusion, leaving $134. We then current month. reduce the earned income of $1,165 by $65 (6) You become subject to the $30 Fed- leaving $1,100. Then we subtract one-half of eral benefit rate. If you become a resi- the remainder, leaving $550. To this we add dent of a medical treatment facility the remaining unearned income of $134 re- and the $30 Federal benefit rate ap- sulting in $684. From this, we subtract the parent allocation of $633 (the Federal benefit plies, we do not deem your ineligible rate for a couple) leaving $51 to be deemed as parent’s income to you to determine Henry’s unearned income. Henry has no your eligibility for SSI benefits begin- other income. We apply Henry’s $20 general ning with the first month for which the income exclusion which reduces his count- $30 Federal benefit rate applies. In de- able income to $31. Since that amount is less

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than the $422 Federal benefit rate for an indi- children with an excess allocation of $72 re- vidual, Henry is eligible. We determine his maining. We subtract the excess of $72 from benefit amount by subtracting his countable the parents’ total earned income leaving income (including deemed income) in a prior $1,453. We next subtract the combined gen- month from the Federal benefit rate for an eral income and earned income exclusions of individual for the current month. See $85 leaving a remainder of $1,368. We subtract § 416.420. one-half the remainder, leaving $684 from Example 2. James and Tony are disabled which we subtract the parents’ allocation of children who live with their mother. The $633. This results in $51 deemed to Jack. children have no income but their mother re- Jack has no other income, so we subtract the ceives $542 a month in unearned income. We general income exclusion of $20 from the reduce the unearned income by the $20 gen- deemed income leaving $31 as Jack’s count- eral income exclusion, leaving $522. We then able income. Since this is below the $422 Fed- subtract the amount we allocate for the eral benefit rate for an individual, Jack is el- mother’s needs, $422 (the Federal benefit rate igible. We determine his payment amount by for an individual). The amount remaining to subtracting his countable income (including be deemed to James and Tony is $100, which deemed income) in a prior month from the we divide equally between them resulting in Federal benefit rate for an individual for the $50 deemed unearned income to each child. current month. See § 416.420. We then apply the $20 general income exclusion, leaving each child with $30 countable (i) Disabled child under age 18. If you income. The $30 of unearned income is less are a disabled child under the age of 18 than the $422 Federal benefit rate for an indi- living with your parents, we will not vidual, so the children are eligible. We then deem your parents’ income to you if— determine each child’s benefit by subtracting his countable income (including (1) You previously received a reduced deemed income) in a prior month from the SSI benefit while a resident of a med- Federal benefit rate for an individual for the ical treatment facility, as described in current month. See § 416.420. § 416.414; Example 3. Mrs. Jones is the ineligible (2) You are eligible for medical as- mother of two disabled children, Beth and sistance under a Medicaid State home Linda, and has sponsored an eligible alien, Mr. Sean. Beth, Linda, and Mr. Sean have no care plan approved by the Secretary income; Mrs. Jones has unearned income of under the provisions of section 1915(c) $924 per month. We reduce the mother’s un- or authorized under section 1902(e)(3) of earned income by the $211 allocation for Mr. the Act; and Sean, leaving $713. We further reduce her in- (3) You would otherwise be ineligible come by the $20 general income exclusion, for a Federal SSI benefit because of the which leaves a balance of $693. Next, we subtract the amount we allocate for the moth- deeming of your parents’ income or re- er’s needs, $422 (the amount of the Federal sources. benefit rate for an individual). The balance [52 FR 8885, Mar. 20, 1987, as amended at 54 of $271 to be deemed is divided equally be- FR 19164, May 4, 1989; 57 FR 48562, Oct. 27, tween Beth and Linda. Each now has un- 1992; 60 FR 361, Jan. 4, 1995; 62 FR 1056, Jan. earned income of $135.50 from which we de- 8, 1997; 64 FR 31974, June 15, 1999; 72 FR 50874, duct the $20 general income exclusion, leav- Sept. 5, 2007; 73 FR 28036, May 15, 2008] ing each child with $115.50 countable income. Since this is less than the $422 Federal benefit rate for an individual, the girls are eligi- § 416.1166 How we deem income to you ble. We then determine each child’s benefit and your eligible child from your by subtracting her countable income (includ- ineligible spouse. ing deemed income) in a prior month from If you and your eligible child live in the Federal benefit rate for an individual for the same household with your ineli- the current month. See § 416.420. (For the gible spouse, we deem your ineligible way we deem the mother’s income to Mr. Sean, see examples No. 3 and No. 4 in spouse’s income first to you, and then § 416.1166a.) we deem any remainder to your eligi- Example 4. Jack, a disabled child, lives with ble child. For the purpose of this sec- his mother, father, and two brothers, none of tion, SSI benefits include any federally whom are eligible for SSI. Jack’s mother re- administered State supplement. We ceives a private pension of $350 per month then follow the rules in § 416.1165(e) to and his father works and earns $1,525 per determine the child’s eligibility for SSI month. We allocate a total of $422 for Jack’s benefits and in § 416.1165(f) to determine ineligible brothers and subtract this from the parents’ total unearned income of $350; the benefit amount. the parents’ unearned income is completely (a) Determining your ineligible spouse’s offset by the allocations for the ineligible income. We first determine how much

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earned and unearned income your ineli- as a couple. Because they have no unearned gible spouse has, using the appropriate income, we reduce the $605 by the $20 general exclusions in § 416.1161(a). income exclusion, and then by the earned in- (b) Allocations for ineligible children. come exclusion of $65 plus one-half the remainder. This leaves John and Mary with We next deduct an allocation for each $260 in countable income. The $260 countable ineligible child in the household as de- income is less than the $472 Federal benefit scribed in § 416.1163(b). rate for a couple, so Mary is eligible; there- (c) Allocations for aliens who are spon- fore, there is no income to be deemed to sored by and have income deemed from Peter. your ineligible spouse. We also deduct an Example 2. Al, a disabled individual, resides allocation for eligible aliens who have with his ineligible spouse, Dora, and their been sponsored by and have income disabled son, Jeff. Al and Jeff have no income, but Dora is employed and earns $1,065 deemed from your ineligible spouse as a month. Since Dora’s income is more than described in § 416.1163(c). $157, which is one-half of the Federal benefit (d) Determining your eligibility for SSI rate for an eligible individual, we treat the benefits and benefit amount. We then fol- entire $1,065 as earned income available to Al low the rules in § 416.1163(c) to find out and Dora as a couple. We reduce this income if any of your ineligible spouse’s cur- by the $20 general income exclusion and then rent monthly income is deemed to you by $65 plus one-half the remainder (earned and, if so, to determine countable in- income exclusion), leaving $490 in countable come for a couple. Next, we follow income. Al is ineligible because the couple’s $490 countable income exceeds the $472 Fed- paragraph (e) of this section to deter- eral benefit rate for a couple. Since Al is in- mine your child’s eligibility. However, eligible, we deem to Jeff $18, the amount of if none of your spouse’s income is income over and above the amount which deemed to you, none is deemed to your causes Al to be ineligible (the difference be- child. Whether or not your spouse’s in- tween the countable income and the Federal come is deemed to you in determining benefit rate for a couple). We treat the $18 your eligibility, we determine your deemed to Jeff as unearned income, and we benefit amount as explained in apply the $20 general income exclusion, re- § 416.1163(e). ducing Jeff’s countable income to zero. Jeff is eligible. (e) Determining your child’s eligibility and amount of benefits. (1) If you are eli- [45 FR 65547, Oct. 3, 1980, as amended at 50 FR gible for SSI benefits after your 48578, Nov. 26, 1985; 52 FR 8887, Mar. 20, 1987; spouse’s income has been deemed to 64 FR 31975, June 15, 1999] you, we do not deem any income to § 416.1166a How we deem income to your child. To determine the child’s you from your sponsor if you are an eligibility, we subtract the child’s own alien. countable income without deeming Before we deem your sponsor’s in- from the benefit rate for an individual. come to you if you are an alien, we de- (2) If you are not eligible for SSI ben- termine how much earned and un- efits after your ineligible spouse’s in- earned income your sponsor has under come has been deemed to you, we deem § 416.1161(b). We then deduct allocations to your eligible child any of your for the sponsor and the sponsor’s de- spouse’s income which was not used to pendents. This is an amount equal to reduce your SSI benefits to zero. the Federal benefit rate for an indi- (f) Examples. These examples show vidual for the sponsor (or for each how we deem income to an eligible in- sponsor even if two sponsors are mar- dividual and an eligible child in the ried to each other and living together) same household. The Federal benefit plus an amount equal to one-half the rates used are those effective January Federal benefit rate for an eligible in- 1, 1984. dividual for each dependent of the Example 1. Mary, a blind individual, lives sponsor. An ineligible dependent’s in- with her husband, John, and their disabled come is not subtracted from the spon- child, Peter. Mary and Peter have no income, sor’s dependent’s allocation. We deem but John is employed and earns $605 per the balance of the income to be your month. We determine Mary’s eligibility first. Since John’s income is more than $157, which unearned income. is one-half of the Federal benefit rate for an (a) If you are the only alien applying eligible individual, we treat the entire $605 for or already eligible for SSI benefits who as earned income available to John and Mary has income deemed to you from your

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sponsor. If you are the only alien who is monthly amounts. The Federal benefit applying for or already eligible for SSI rates are those effective January 1, benefits and who is sponsored by your 1986. sponsor, all the deemed income is your unearned income. Example 1. Mr. John, an alien who has no income, has been sponsored by Mr. Herbert (b) If you are not the only alien who is who has monthly earned income of $1,300 and applying for or already eligible for SSI unearned income of $70. Mr. Herbert’s wife benefits and who has income deemed from and three children have no income. We add your sponsor. If you and other aliens ap- Mr. Herbert’s earned and unearned income plying for or already eligible for SSI for a total of $1,370 and apply the allocations benefits are sponsored by the same for the sponsor and his dependents. Alloca- sponsor, we deem the income to each of tions total $1,008. These are made up of $336 you as though you were the only alien (the Federal benefit rate for an eligible individual) for the sponsor, plus $672 (one-half sponsored by that person. The income the Federal benefit rate for an eligible indi- deemed to you becomes your unearned vidual, $168 each) for Mr. Herbert’s wife and income. three children. The $1,008 is subtracted from (c) When you are an alien and income Mr. Herbert’s total income of $1,370 which is no longer deemed from your sponsor. If leaves $362 to be deemed to Mr. John as his you are an alien and have had your unearned income. Mr. John’s only exclusion sponsor’s income deemed to you, we is the $20 general income exclusion. Since stop deeming the income with the the $342 balance exceeds the $336 Federal benefit rate, Mr. John is ineligible. month in which the third anniversary Example 2. Mr. and Mrs. Smith are an alien of your admission into the United couple who have no income and who have States occurs. been sponsored by Mr. Hart. Mr. Hart has (d) When sponsor deeming rules do not earned income of $1,350 and his wife, Mrs. apply to you if you are an alien. If you Hart, who lives with him, has earned income are an alien, we do not apply the spon- of $150. Their two children have no income. sor deeming rules to you if— We combine Mr. and Mrs. Hart’s income (1) You are a refugee. You are a ref- ($1,350 + $150 = $1,500). We deduct the alloca- ugee admitted to the United States as tions of $336 for Mr. Hart (the Federal benefit rate for an individual) and $504 for Mrs. Hart the result of application of one of three and the two children ($168 or one-half the sections of the Immigration and Na- Federal benefit rate for an eligible individual tionality Act: (1) Section 203(a)(7), ef- for each), a total of $840. The allocations fective before April 1, 1980; (2) Section ($840) are deducted from the total $1,500 in- 207(c)(1), effective after March 31, 1980; come which leaves $660. This amount must or (3) Section 212(d)(5); be deemed independently to Mr. and Mrs. (2) You have been granted asylum. You Smith. Mr. and Mrs. Smith would qualify for have been granted political asylum by SSI benefits as a couple in the amount of $504 if no income had been deemed to them. the Attorney General of the United The $1,320 ($660 each to Mr. and Mrs. Smith) States; or deemed income is unearned income to Mr. (3) You become blind or disabled. If you and Mrs. Smith and is subject to the $20 gen- become blind or disabled as defined in eral income exclusion, leaving $1,300. This § 416.901 (at any age) after your admis- exceeds the couple’s rate of $504 so Mr. and sion to the United States, we do not Mrs. Smith are ineligible for SSI benefits. deem your sponsor’s income to you to Example 3. Mr. Bert and Mr. Davis are determine your eligibility for SSI ben- aliens sponsored by their sister Mrs. Jean, efits beginning with the month in who has earned income of $800. She also receives $250 as survivors’ benefits for her two which your disability or blindness be- minor children. We do not consider the $250 gins. However, to determine your ben- survivors’ benefits to be Mrs. Jean’s income efit payment, we follow the rule in because it is the children’s income. We ex- § 416.420 of counting your income in the clude $336 for Mrs. Jean (the Federal benefit second month prior to the current rate for an individual) plus $336 ($168, one- month. half the Federal benefit rate for an eligible (e) Examples. These examples show individual for each child), a total of $672. We how we deem a sponsor’s income to an subtract the $672 from Mrs. Jean’s income of $800, which leaves $128 to be deemed to Mr. eligible individual who is an alien when Bert and Mr. Davis. Each of the brothers is none of the exceptions in § 416.1160(b)(2) liable for rent in the boarding house (a com- applies. The income, income exclu- mercial establishment) where they live. sions, and the benefit rates are in Each lives in his own household, receives no

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in-kind support and maintenance, and is eli- ing in the same household as you, ab- gible for the Federal benefit rate of $336. The sent evidence to the contrary. If we de- $128 deemed income is deemed both to Mr. termine that during such an absence, Bert and to Mr. Davis. As a result, each has evidence indicates that your spouse or countable income of $108 ($128 minus the $20 general income exclusion). This is less than parent should no longer be considered $336, the Federal benefit rate for an indi- to be living in the same household as vidual, so that both are eligible for SSI. We you, then deeming will cease. When use their income in a prior month to deter- such evidence exists, we determine the mine their benefit payments. month in which your spouse or parent Example 4. The same situation applies as in should no longer be considered to be example 3 except that one of Mrs. Jean’s living in the same household as you children is disabled and eligible for SSI bene- and stop deeming his or her income and fits. The eligibility of the disabled child does not affect the amount of income deemed to resources beginning with the month Mr. Bert and Mr. Davis since the sponsor-to- following that month. alien and parent-to-child rules are applied Example: Tom is a child who receives SSI. independently. The child’s countable income In January 1996, Tom’s father leaves the is computed under the rules in § 416.1165. household due solely to an active duty as- [52 FR 8887, Mar. 20, 1987] signment as a member of the Armed Forces. Five months later in June 1996, while Tom’s § 416.1167 Temporary absences and father is still on an active duty assignment, deeming rules. Tom’s parents file for divorce. As a result, Tom’s father will not be returning to live in (a) General. During a temporary ab- Tom’s household. Therefore, Tom’s father sence, we continue to consider the ab- should no longer be considered to be living in sent person a member of the household. the same household with Tom. Beginning A temporary absence occurs when— July 1, 1996, deeming from Tom’s father will (1) You, your ineligible spouse, par- cease. ent, or an ineligible child leaves the [50 FR 48579, Nov. 26, 1985, as amended at 61 household but intends to and does re- FR 10280, Mar. 13, 1996; 62 FR 42411, Aug. 7, turn in the same month or the month 1997; 72 FR 50874, Sept. 5, 2007] immediately following; or (2) You enter a medical treatment fa- § 416.1168 How we deem income to you cility and are eligible for either benefit from your essential person. payable under § 416.212. We consider (a) Essential person’s income. If you your absence to be temporary through have an essential person, we deem all the last month benefits under § 416.212 of that person’s income (except any not were paid unless you were discharged counted because of other Federal stat- from the facility in the following utes as described in § 416.1161(b)) to be month. In that case, we consider your your own unearned income. If your es- absence to be temporary through the sential person is also your ineligible date of discharge. spouse, or if you are a child whose es- (b) Child away at school. If you are an sential person is your ineligible parent, eligible child who is away at school but we apply the essential person deeming comes home on some weekends or rules in this section. See § 416.1169 for lengthy holidays and if you are subject the rules that apply when an ineligible to the control of your parents, we con- spouse or parent ceases to be your es- sider you temporarily absent from your sential person. parents’ household. However, if you are (b) Determining your eligibility for an not subject to parental control, we do SSI benefit. We apply the exclusions to not consider your absence temporary which you are entitled under §§ 416.1112 and we do not deem parental income and 416.1124 to your earned income and (or resources) to you. Being subject to to your unearned income which in- parental control affects deeming to you cludes any income deemed from your only if you are away at school. essential person. After combining the (c) Active duty military service. If your remaining amounts of countable in- ineligible spouse or parent is absent come, we compare the total with the from the household due solely to a Federal benefit rate for a qualified in- duty assignment as a member of the dividual (see § 416.413) to determine Armed Forces on active duty, we con- whether you are eligible for an SSI tinue to consider that person to be liv- benefit.

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(c) Determining your SSI benefit results in the lower amount of count- amount. We determine your SSI benefit able income: amount in the same way that we deter- (1) The SSI income exclusions in mine your eligibility. However, in fol- §§ 416.1112 and 416.1124; or lowing the procedure in paragraphs (a) (2) The disregards that would have and (b) of this section we use your es- applied under the State plan for Octo- sential person’s income that we deemed ber 1972. to you in the second month prior to the (b) State plan. As used in this subpart, current month. Exception: Beginning with the month in which you no longer State plan for October 1972 means a have your essential person, we do not State plan for providing assistance to use any of the income deemed to you the blind under title X or XVI (AABD) from that essential person in a prior of the Social Security Act. That plan month to determine the amount of must have been approved under the your benefit (see § 416.1160(a)(3)(ii)(C)). provisions of 45 CFR chapter II as in ef- We use only your own countable in- fect for October 1972. come in a prior month. § 416.1171 When the alternative rules [45 FR 65547, Oct. 3, 1980, as amended at 50 FR apply. 48579, Nov. 26, 1985] (a) Eligibility for the alternative. We § 416.1169 When we stop deeming in- use the alternative income counting come from an essential person. rules for you if you meet all the fol- If including the income deemed to lowing conditions: you from your essential person causes (1) You were eligible for, and re- you to be ineligible for an SSI benefit, ceived, assistance for December 1973 you are no longer considered to have under a State plan for October 1972; that essential person whose income (2) You have continued to live in that makes you ineligible. To determine same State since December 1973; your eligibility for that month we de- (3) You were transferred to the SSI duct only your own countable income from your Federal benefit rate. How- rolls and received a benefit for January ever, other deeming rules may then 1974; and apply as follows: (4) You have not been ineligible for (a) Essential person is your spouse. If an SSI benefit for any period of more the person who was your essential per- than 6 consecutive months. (For pur- son is your ineligible spouse, we apply poses of this section, an SSI benefit the deeming rules in § 416.1163 begin- means a Federal benefit; it does not in- ning with the month that the income clude any State supplementation.) of your essential person is no longer (b) Living in the same State. For pur- deemed to you. poses of this section, you have contin- (b) Essential person is your parent. If ued to live in the same State since De- you are a child under age 18, and the cember 1973 unless you have left it at person who was your essential person any time with the intention of moving is your ineligible parent, we apply the to another State. If there is no evi- deeming rules in § 416.1165 beginning dence to the contrary, we assume with the month that the income of that— your essential person is no longer deemed to you. (1) If you leave the State for 90 calendar days or less, the absence is tem- [50 FR 48579, Nov. 26, 1985] porary and you still live in that State; and ALTERNATIVE INCOME COUNTING RULES FOR CERTAIN BLIND INDIVIDUALS (2) If you leave the State for more than 90 calendar days, you are no § 416.1170 General. longer living there. (a) What the alternative is. If you are blind and meet the requirements in § 416.1171, we use one of two rules to see how much countable income you have. We use whichever of the following rules

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RULES FOR HELPING BLIND AND DIS- Example 1: A Substantial Reduction Exists. ABLED INDIVIDUALS ACHIEVE SELF- Your SSI monthly payment amount is $101 SUPPORT and your PASS employment goal earnings will reduce your SSI payment by $90. We may consider that to be a substantial reduc- § 416.1180 General. tion. One of the objectives of the SSI pro- Example 2: A Substantial Reduction Exists. gram is to help blind or disabled per- You receive a title II benefit of $550 and an sons become self-supporting. If you are SSI payment of $73. Your PASS employment blind or disabled, we will pay you SSI goal will result in work over the SGA level that eliminates your title II benefit but in- benefits and will not count the part of creases your SSI payment by $90. We may your income (for example, your or a consider that a substantial reduction be- family member’s wages, title II bene- cause your work will eliminate your title II fits, or pension income) that you use or payment while only slightly increasing your set aside to use for expenses that we SSI payment. determine to be reasonable and nec- Example 3: A Substantial Reduction Does essary to fulfill an approved plan to Not Exist. Your SSI monthly payment amount is $603 and your PASS employment achieve self-support. (See goal earnings will reduce your SSI payment §§ 416.1112(c)(9) and 1124(c)(13).) You by $90. We may not consider that to be a sub- may develop a plan to achieve self-sup- stantial reduction. port on your own or with our help. As (8) Contain a beginning date and an appropriate, we will refer you to a ending date to meet your employment State rehabilitation agency or agency goal; for the blind for additional assistance (9) Give target dates for meeting in developing a plan. milestones towards your employment [45 FR 65547, Oct. 3, 1980, as amended at 51 FR goal; 10616, Mar. 28, 1986; 62 FR 59813, Nov. 5, 1997; (10) Show what expenses you will 71 FR 28264, May 16, 2006] have and how they are reasonable and necessary to meet your employment § 416.1181 What is a plan to achieve goal; self-support (PASS)? (11) Show what money you have and (a) A PASS must— will receive, how you will use or spend (1) Be designed especially for you; it to attain your employment goal, and (2) Be in writing; how you will meet your living ex- (3) Be approved by us (a change of penses; and plan must also be approved by us); (12) Show how the money you set (4) Have a specific employment goal aside under the plan will be kept sepa- that is feasible for you, that is, a goal rate from your other funds. that you have a reasonable likelihood (b) You must propose a reasonable of achieving; ending date for your PASS. If nec- (5) Have a plan to reach your employ- essary, we can help you establish an ment goal that is viable and finan- ending date, which may be different cially sustainable, that is, the plan— than the ending date you propose. Once (i) Sets forth steps that are attain- the ending date is set and you begin able in order to reach your goal, and your PASS, we may adjust or extend (ii) Shows that you will have enough the ending date of your PASS based on money to meet your living expenses progress towards your goal and earn- while setting aside income or resources ings level reached. to reach your goal; (c) If your employment goal is self- (6) Be limited to one employment employment, you must include a busi- goal; however, the employment goal ness plan that defines the business, may be modified and any changes re- provides a marketing strategy, details lated to the modification must be made financial data, outlines the operational to the plan; procedures, and describes the manage- (7) Show how the employment goal ment plan. will generate sufficient earnings to (d) Your progress will be reviewed at substantially reduce or eliminate your least annually to determine if you are dependence on SSI or eliminate your following the provisions of your plan. need for title II disability benefits; [71 FR 28264, May 16, 2006]

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§ 416.1182 When we begin to count the (d) Services, except for wages paid to resi- income excluded under the plan. dents who assist in providing congregate services such as meals and personal care, We will begin to count the earned provided a resident of an eligible housing and unearned income that would have project under a congregate services program been excluded under your plan in the under section 802 of the Cranston-Gonzales month in which any of the following National Affordable Housing Act, Public Law circumstances first exist: 101–625 (104 Stat. 4313, 42 U.S.C. 8011). (a) You fail to follow the conditions II. HOUSING AND UTILITIES of your plan; (b) You abandon your plan; (a) Assistance to prevent fuel cut-offs and to promote energy efficiency under the (c) You complete the time schedule Emergency Energy Conservation Services outlined in the plan; or Program or the Energy Crisis Assistance (d) You reach your goal as outlined Program as authorized by section 222(a)(5) of in the plan. the Economic Opportunity Act of 1964, as amended by section 5(d)(1) of Pub. L. No. 93– [45 FR 65547, Oct. 3, 1980, as amended at 50 FR 644 and section 5(a)(2) of Pub. L. 95–568 (88 48579, Nov. 26, 1985] Stat. 2294 as amended, 42 U.S.C. 2809(a)(5)). (b) Home energy assistance payments or APPENDIX TO SUBPART K OF PART 416— allowances under title XXVI of the Omnibus LIST OF TYPES OF INCOME EXCLUDED Budget Reconciliation Act of 1981, Public UNDER THE SSI PROGRAM AS PRO- Law 97–35, as amended (42 U.S.C. 8624(f)). VIDED BY FEDERAL LAWS OTHER NOTE: This exclusion applies to a sponsor’s THAN THE SOCIAL SECURITY ACT income only if the alien is living in the hous- Many Federal statutes in addition to the ing unit for which the sponsor receives the Social Security Act provide assistance or home energy assistance payments or allow- benefits for individuals and specify that the ances. assistance or benefit will not be considered (c) Value of any assistance paid with rein deciding eligibility for SSI. We have listed spect to a dwelling unit under— these statutes in this appendix and have (1) The United States Housing Act of 1937; placed them in categories according to the (2) The National Housing Act; kind of income or assistance they provide. (3) Section 101 of the Housing and Urban The list gives the name of the Federal stat- Development Act of 1965; or ute (where possible), the public law number, (4) Title V of the Housing Act of 1949. and the citation. Each item briefly describes NOTE: This exclusion applies to a sponsor’s what the statute provides that will not re- income only if the alien is living in the hous- duce or eliminate an SSI payment. More de- ing unit for which the sponsor receives the tailed information is available from a social housing assistance. security office or by reference to the statutes. (d) Payments for relocating, made to per- We update this list periodically. However, sons displaced by Federal or federally as- when new Federal statutes of this kind are sisted programs which acquire real property, enacted, or existing statutes are changed, we under section 216 of Pub. L. 91–646, the Uni- apply the law currently in effect, even before form Relocation Assistance and Real Prop- this appendix is updated. erty Acquisition Policies Act of 1970 (84 Stat. 1902, 42 U.S.C. 4636). I. FOOD III. EDUCATION AND EMPLOYMENT (a) Value of food coupons under the Food Stamp Act of 1977, section 1301 of Pub. L. 95– (a) Grants or loans to undergraduate stu- 113 (91 Stat. 968, 7 U.S.C. 2017(b)). dents made or insured under programs ad- (b) Value of federally donated foods dis- ministered by the Secretary of Education tributed under section 32 of Pub. L. 74–320 (49 under section 507 of the Higher Education Stat. 774) or section 416 of the Agriculture Amendments of 1968, Pub. L. 90–575 (82 Stat. Act of 1949 (63 Stat. 1058, 7 CFR 250.6(e)(9)). 1063). (c) Value of free or reduced price food for (b) Any wages, allowances, or reimburse- women and children under the— ment for transportation and attendant care (1) Child Nutrition Act of 1966, section 11(b) costs, unless excepted on a case-by-case of Pub. L. 89–642 (80 Stat. 889, 42 U.S.C. basis, when received by an eligible handi- 1780(b)) and section 17 of that Act as added capped individual employed in a project by Pub. L. 92–433 (86 Stat. 729, 42 U.S.C. 1786); under title VI of the Rehabilitation Act of and 1973 as added by title II of Pub. L. 95–602 (92 (2) National School Lunch Act, section Stat. 2992, 29 U.S.C. 795(b)(c)). 13(h)(3), as amended by section 3 of Pub. L. (c) Student financial assistance for attend- 90–302 (82 Stat. 119, 42 U.S.C. 1761(h)(3)). ance costs received from a program funded in

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whole or in part under title IV of the Higher tion on stock; a partnership interest; land or Education Act of 1965, as amended, or under an interest in land, including land or an in- Bureau of Indian Affairs student assistance terest in land received from a Native Cor- programs if it is made available for tuition poration as a dividend or distribution on and fees normally assessed a student car- stock; and an interest in a settlement trust. rying the same academic workload, as deter- This exclusion is pursuant to section 15 of mined by the institution, including costs for the Alaska Native Claims Settlement Act rental or purchase of any equipment, mate- Amendments of 1987, Public Law 100–241 (101 rials, or supplies required of all students in Stat. 1812, 43 U.S.C. 1626(c)), effective Feb- the same course of study and an allowance ruary 3, 1988. for books, supplies, transportation, and mis- NOTE: This exclusion does not apply in cellaneous personal expenses for a student deeming income from sponsors to aliens. attending the institution on at least a half- time basis, as determined by the institution, (4) Up to $2,000 per year received by Indians under section 14(27) of Public Law 100–50, the that is derived from individual interests in Higher Education Technical Amendments trust or restricted lands under section 13736 Act of 1987 (20 U.S.C. 1087uu). of Public Law 103–66 (107 Stat. 663, 25 U.S.C. 1408, as amended). IV. NATIVE AMERICANS (b) Payments to Members of Specific Indian (a) Types of Payments Excluded Without Re- Tribes and Groups— gard to Specific Tribes or Groups— (1) Per capita payments to members of the (1) Indian judgment funds that are held in Red Lake Band of Chippewa Indians from the trust by the Secretary of the Interior or dis- proceeds of the sale of timber and lumber on tributed per capita pursuant to a plan pre- the Red Lake Reservation under section 3 of pared by the Secretary of the Interior and Public Law 85–794 (72 Stat. 958). not disapproved by a joint resolution of the (2) Per capita distribution payments by the Congress under Public Law 93–134 as amend- Blackfeet and Gros Ventre tribal governed by section 4 of Public Law 97–458 (96 Stat. ments to members which resulted from judg- 2513, 25 U.S.C. 1408). Indian judgment funds ment funds to the tribes under section 4 of include interest and investment income ac- Public Law 92–254 (86 Stat. 65) and under sec- crued while such funds are so held in trust. tion 6 of Public Law 97–408 (96 Stat. 2036). This exclusion extends to initial purchases (3) Settlement fund payments and the made with Indian judgment funds. This ex- availability of such funds to members of the clusion does not apply to sales or conver- Hopi and Navajo Tribes under section 22 of sions of initial purchases or to subsequent Public Law 93–531 (88 Stat. 1722) as amended purchases. by Public Law 96–305 (94 Stat. 929). NOTE: This exclusion applies to the income NOTE: This exclusion applies to the income of sponsors of aliens only if the alien lives in of sponsors of aliens only if the alien lives in the sponsor’s household. the sponsor’s household. (2) All funds held in trust by the Secretary (4) Judgment funds distributed per capita of the Interior for an Indian tribe and dis- to, or held in trust for, members of the Sac tributed per capita to a member of that tribe and Fox Indian Nation, and the availability are excluded from income under Public Law of such funds under section 6 of Public Law 98–64 (97 Stat. 365, 25 U.S.C. 117b). Funds held 94–189 (89 Stat. 1094). by Alaska Native Regional and Village Cor- NOTE: This exclusion applies to the income porations (ANRVC) are not held in trust by of sponsors of aliens only if the alien lives in the Secretary of the Interior and therefore the sponsor’s household. ANRVC dividend distributions are not excluded from countable income under this ex- (5) Judgment funds distributed per capita clusion. For ANRVC dividend distributions, to, or held in trust for, members of the see paragraph IV.(a)(3) of this appendix. Grand River Band of Ottawa Indians, and the availability of such funds under section 6 of NOTE: This exclusion applies to the income Public Law 94–540 (90 Stat. 2504). of sponsors of aliens only if the alien lives in the sponsor’s household. NOTE: This exclusion applies to the income of sponsors of aliens only if the alien lives in (3) Distributions received by an individual the sponsor’s household. Alaska Native or descendant of an Alaska Native from an Alaska Native Regional and (6) Any judgment funds distributed per Village Corporation pursuant to the Alaska capita to members of the Confederated Native Claims Settlement Act, as follows: Tribes and Bands of the Yakima Indian Na- cash, including cash dividends on stock re- tion or the Apache Tribe of the Mescalero ceived from a Native Corporation, to the ex- Reservation under section 2 of Public Law tent that it does not, in the aggregate, ex- 95–433 (92 Stat. 1047, 25 U.S.C. 609c–1). ceed $2,000 per individual each year; stock, (7) Any judgment funds distributed per including stock issued or distributed by a capita or made available for programs for Native Corporation as a dividend or distribu- members of the Delaware Tribe of Indians

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and the absentee Delaware Tribe of Western NOTE: This exclusion applies to the income Oklahoma under section 8 of Public Law 96– of sponsors of aliens only if the alien lives in 318 (94 Stat. 971). the sponsor’s household. (8) All funds and distributions to members (17) Judgment funds distributed to the Red of the Passamaquoddy Tribe, the Penobscot Lake Band of Chippewa Indians under sec- Nation, and the Houlton Band of Maliseet In- tion 3 of Public Law 98–123 (97 Stat. 816). dians under the Maine Indian Claims Settle- (18) Funds distributed per capita or family ment Act, and the availability of such funds interest payments for members of the Assini- under section 9 of Public Law 96–420 (94 Stat. boine Tribe of Fort Belknap Indian Commu- 1795, 25 U.S.C. 1728(c)). nity of Montana and the Assiniboine Tribe of NOTE: This exclusion applies to the income the Fort Peck Indian Reservation of Mon- of sponsors of aliens only if the alien lives in tana under section 5 of Public Law 98–124 (97 the sponsor’s household. Stat. 818). (19) Distributions of judgment funds and (9) Any distributions of judgment funds to income derived therefrom to members of the members of the San Carlos Apache Indian Shoalwater Bay Indian Tribe under section 5 Tribe of Arizona under section 7 of Public of Public Law 98–432 (98 Stat. 1672). Law 93–134 (87 Stat. 468) and Public Law 97– (20) All distributions to heirs of certain de- 95 (95 Stat. 1206). ceased Indians under section 8 of the Old Age Assistance Claims Settlement Act, Public NOTE: This exclusion applies to the income Law 98–500 (98 Stat. 2319). of sponsors of aliens only if the alien lives in the sponsor’s household. NOTE: This exclusion applies to the income of sponsors of aliens only if the alien lives in (10) Any distribution of judgment funds to the sponsor’s household. members of the Wyandot Tribe of Indians of Oklahoma under section 6 of Public Law 97– (21) Judgment funds distributed per capita 371 (96 Stat. 1814). or made available for any tribal program for (11) Distributions of judgment funds to members of the Wyandotte Tribe of Okla- members of the Shawnee Tribe of Indians homa and the Absentee Wyandottes under (Absentee Shawnee Tribe of Oklahoma, the section 106 of Public Law 98–602 (98 Stat. 3151). Eastern Shawnee Tribe of Oklahoma and the (22) Per capita and dividend payment dis- Cherokee Band of Shawnee descendants) tributions of judgment funds to members of under section 7 of Public Law 97–372 (96 Stat. the Santee Sioux Tribe of Nebraska, the 1816). Flandreau Santee Sioux Tribe, the Prairie (12) Judgment funds distributed per capita Island Sioux, Lower Sioux, and Shakopee or made available for programs for members Mdewakanton Sioux Communities of Min- of the Miami Tribe of Oklahoma and the nesota under section 8 of Public Law 99–130 Miami Indians of Indiana under section 7 of (99 Stat. 552) and section 7 of Public Law 93– Public Law 97–376 (96 Stat. 1829). 134 (87 Stat. 468), as amended by Public Law (13) Distributions of judgment funds to 97–458 (96 Stat. 2513; 25 U.S.C. 1407). members of the Clallam Tribe of Indians of (23) Funds distributed per capita or held in the State of Washington (Port Gamble In- trust for members of the Chippewas of Lake dian Community, Lower Elwha Tribal Com- Superior and the Chippewas of the Mis- munity and the Jamestown Band of Clallam sissippi under section 6 of Public Law 99–146 Indians) under section 6 of Public Law 97–402 (99 Stat. 782). (96 Stat. 2021). (24) Distributions of claims settlement (14) Judgment funds distributed per capita funds to members of the White Earth Band of or made available for programs for members Chippewa Indians as allottees, or their heirs, of the Pembina Chippewa Indians (Turtle under section 16 of Public Law 99–264 (100 Mountain Band of Chippewa Indians, Chip- Stat. 70). pewa Cree Tribe of Rocky Boy’s Reservation, (25) Payments or distributions of judgment Minnesota Chippewa Tribe, Little Shell Band funds, and the availability of any amount for of the Chippewa Indians of Montana, and the such payments or distributions, to members nonmember Pembina descendants) under sec- of the Saginaw Chippewa Indian Tribe of tion 9 of Public Law 97–403 (96 Stat. 2025). Michigan under section 6 of Public Law 99– (15) Per capita distributions of judgment 346 (100 Stat. 677). funds to members of the Assiniboine Tribe of Fort Belknap Indian Community and the NOTE: This exclusion applies to the income Papago Tribe of Arizona under sections 6 and of sponsors of aliens only if the alien lives in 8(d) of Public Law 97–408 (96 Stat. 2036, 2038). the sponsor’s household. (16) Up to $2,000 of per capita distributions (26) Judgment funds distributed per capita of judgment funds to members of the Confed- or held in trust for members of the Chip- erated Tribes of the Warm Springs Reserva- pewas of Lake Superior and the Chippewas of tion under section 4 of Public Law 97–436 (96 the Mississippi under section 4 of Public Law Stat. 2284). 99–377 (100 Stat. 805).

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(27) Judgment funds distributed to mem- NOTE: This exclusion does not apply in bers of the Cow Creek Band of Umpqua Tribe deeming income from sponsors to aliens. of Indians under section 4 of Public Law 100– (34) Per capita distributions of settlement 139 (101 Stat. 822). funds under section 102 of the Fallon Paiute (28) Per capita payments of claims settle- Shoshone Indian Tribes Water Rights Settle- ment funds to members of the Coushatta ment Act of 1990, Public Law 101–618 (104 Tribe of Louisiana under section 2 of Public Stat. 3289) and section 7 of Public Law 93–134 Law 100–411 (102 Stat. 1097) and section 7 of (87 Stat. 468), as amended by Public Law 97– Public Law 93–134 (87 Stat. 468), as amended 458 (96 Stat. 2513; 25 U.S.C. 1407). by Public Law 97–458 (96 Stat. 2513; 25 U.S.C. (35) Settlement funds, assets, income, pay- 1407). ments, or distributions from Trust Funds to NOTE: This exclusion applies to the income members of the Catawba Indian Tribe of of sponsors of aliens only if the alien lives in South Carolina under section 11(m) of Public the sponsor’s household. Law 103–116 (107 Stat. 1133). (36) Settlement funds held in trust (includ- (29) Funds distributed per capita for mem- ing interest and investment income accruing bers of the Hoopa Valley Indian Tribe and on such funds) for, and payments made to, the Yurok Indian Tribe under sections 4, 6 members of the Confederated Tribes of the and 7 of Public Law 100–580 (102 Stat. 2929, Colville Reservation under section 7(b) of 2930, 2931) and section 3 of Public Law 98–64 Public Law 103–436 (108 Stat. 4579). (97 Stat. 365; 25 U.S.C. 117b). NOTE: This exclusion applies to the income NOTE: This exclusion applies to the income of sponsors of aliens only if the alien lives in of sponsors of aliens only if the alien lives in the sponsor’s household. the sponsor’s household. (37) Judgment funds distributed under sec- (30) Judgment funds held in trust by the tion 111 of the Michigan Indian Land Claims United States, including interest and invest- Settlement Act, (Pub. L. 105–143, 111 Stat. ment income accruing on such funds, and 2665). judgment funds made available for programs (38) Judgment funds distributed under sec- or distributed to members of the Wisconsin tion 4 of the Cowlitz Indian Tribe Distribu- Band of Potawatomi (Hannahville Indian tion of Judgment Funds Act, (Pub. L. 108–222, Community and Forest County Potawatomi) 118 Stat. 624). (c) Receipts from Lands Held in Trust for Cer- under section 503 of Public Law 100–581 (102 tain Tribes or Groups— Stat. 2945). (1) Receipts from land held in trust by the NOTE: This exclusion applies to the income Federal government and distributed to mem- of sponsors of aliens only if the alien lives in bers of certain Indian tribes under section 6 the sponsor’s household. of Public Law 94–114 (89 Stat. 579, 25 U.S.C. 459e). (31) All funds, assets, and income from the trust fund transferred to the members of the NOTE: This exclusion applies to the income Puyallup Tribe under section 10 of the Puy- of sponsors of aliens only if the alien lives in allup Tribe of Indians Settlement Act of 1989, the sponsor’s household. Public Law 101–41 (103 Stat. 88, 25 U.S.C. (2) Receipts derived from trust lands 1773h(c)). awarded to the Pueblo of Santa Ana and dis- NOTE: This exclusion does not apply in tributed to members of that tribe under sec- deeming income from sponsors to aliens. tion 6 of Public Law 95–498 (92 Stat. 1677). (3) Receipts derived from trust lands (32) Judgment funds distributed per capita, awarded to the Pueblo of Zia of New Mexico or held in trust, or made available for pro- and distributed to members of that tribe grams, for members of the Seminole Nation under section 6 of Public Law 95–499 (92 Stat. of Oklahoma, the Seminole Tribe of Florida, 1680). the Miccosukee Tribe of Indians of Florida and the independent Seminole Indians of V. OTHER Florida under section 8 of Public Law 101–277 (a) Compensation provided to volunteers (104 Stat. 145). by the Corporation for National and Commu- NOTE: This exclusion applies to the income nity Service (CNCS), unless determined by of sponsors of aliens only if the alien lives in the CNCS to constitute the minimum wage the sponsor’s household. in effect under the Fair Labor Standards Act of 1938 (29 U.S.C. 201 et seq.), or applicable (33) Payments, funds, distributions, or in- State law, pursuant to 42 U.S.C. 5044(f)(1). come derived from them to members of the NOTE: This exclusion does not apply to the Seneca Nation of New York under section income of sponsors of aliens. 8(b) of the Seneca Nation Settlement Act of 1990, Public Law 101–503 (104 Stat. 1297, 25 (b) Any assistance to an individual (other U.S.C. 1774f). than wages or salaries) under the Older

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Americans Act of 1965, as amended by sec- of the Veterans Benefits and Health Care Im- tion 102(h)(1) of Pub. L. 95–478 (92 Stat. 1515, provement Act of 2000 (Pub. L. 106–419 (38 42 U.S.C. 3020a). U.S.C. 1833(c)). (c) Amounts paid as restitution to certain (m) Payments of the refundable child tax individuals of Japanese ancestry and Aleuts credit made under section 24 of the Internal for losses suffered as a result of evacuation, Revenue Code of 1986, pursuant to section 203 relocation, and internment during World of the Economic Growth and Tax Relief Rec- War II, under the Civil Liberties Act of 1988 onciliation Act of 2001, Public Law 107–16 (115 and the Aleutian and Pribilof Islands Res- Stat. 49, 26 U.S.C. 24 note). titution Act, sections 105(f) and 206(d) of (n) Assistance provided for flood mitiga- Public Law 100–383 (50 U.S.C. App. 1989 b and tion activities as provided under section 1324 c). of the National Flood Insurance Act of 1968, (d) Payments made on or after January 1, pursuant to section 1 of Public Law 109–64 1989, from the Agent Orange Settlement (119 Stat. 1997, 42 U.S.C. 4031). Fund or any other fund established pursuant (o) Payments made to individuals under to the settlement in the In Re Agent Orange the Energy Employees Occupational Illness product liability litigation, M.D.L. No. 381 Compensation Program Act of 2000, pursuant (E.D.N.Y.) under Public Law 101–201 (103 to section 1 [Div. C, Title XXXVI section Stat. 1795) and section 10405 of Public Law 3646] of Public Law 106–398 (114 Stat. 1654A– 101–239 (103 Stat. 2489). 510, 42 U.S.C. 7385e). (e) Payments made under section 6 of the Radiation Exposure Compensation Act, Pub- [45 FR 65547, Oct. 3, 1980, as amended at 52 FR lic Law 101–426 (104 Stat. 925, 42 U.S.C. 2210). 8888, Mar. 20, 1987; 57 FR 53851, Nov. 13, 1992; (f) The value of any child care provided or 57 FR 55088, Nov. 24, 1992; 59 FR 8538, Feb. 23, arranged (or any payment for such care or 1994; 62 FR 30982, June 6, 1997; 70 FR 41137, reimbursement for costs incurred for such July 18, 2005; 75 FR 1273, Jan. 11, 2010] care) under the Child Care and Development Block Grant Act, as amended by section 8(b) Subpart L—Resources and of Public Law 102–586 (106 Stat. 5035). (g) Payments made to individuals because Exclusions of their status as victims of Nazi persecution excluded pursuant to section 1(a) of the Vic- AUTHORITY: Secs. 702(a)(5), 1602, 1611, 1612, tims of Nazi Persecution Act of 1994, Public 1613, 1614(f), 1621, 1631, and 1633 of the Social Law 103–286 (108 Stat. 1450). Security Act (42 U.S.C. 902(a)(5), 1381a, 1382, (h) Any matching funds from a demonstra- 1382a, 1382b, 1382c(f), 1382j, 1383, and 1383b); tion project authorized by the Community sec. 211, Pub. L. 93–66, 87 Stat. 154 (42 U.S.C. Opportunities, Accountability, and Training 1382 note). and Educational Services Act of 1998 (Pub. L. 105–285) and any interest earned on these SOURCE: 40 FR 48915, Oct. 20, 1975, unless matching funds in an Individual Develop- otherwise noted. ment Account, pursuant to section 415 of Pub. L. 105–285 (112 Stat. 2771). § 416.1201 Resources; general. (i) Any earnings, Temporary Assistance for (a) Resources; defined. For purposes of Needy Families matching funds, and interest this subpart L, resources means cash or in an Individual Development Account, pursuant to section 103 of the Personal Respon- other liquid assets or any real or per- sibility and Work Opportunity Reconcili- sonal property that an individual (or ation Act of 1996 (Pub. L. 104–193, 42 U.S.C. spouse, if any) owns and could convert 604(h)(4)). to cash to be used for his or her support (j) Payments made to individuals who were and maintenance. captured and interned by the Democratic Re- (1) If the individual has the right, au- public of Vietnam as a result of participation thority or power to liquidate the prop- in certain military operations, pursuant to erty or his or her share of the property, section 606 of the Departments of Labor, Health and Human Services and Education it is considered a resource. If a prop- and Related Agencies Appropriations Act of erty right cannot be liquidated, the 1996 (Pub. L. 105–78). property will not be considered a re- (k) Payments made to certain Vietnam source of the individual (or spouse). veterans’ children with spina bifida, pursu- (2) Support and maintenance assistant to section 421 of the Departments of Vet- ance not counted as income under erans Affairs and Housing and Urban Devel- § 416.1157(c) will not be considered a re- opment, and Independent Agencies Appro- source. priations Act of 1997 (Pub. L. 104–204, 38 U.S.C. 1805(a)). (3) Except for cash reimbursement of (l) Payments made to the children of medical or social services expenses al- women Vietnam veterans who suffer from ready paid for by the individual, cash certain birth defects, pursuant to section 401 received for medical or social services

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that is not income under § 416.1103 (a) evaluated according to the individual’s or (b), or a retroactive cash payment equity in the resources. (See § 416.1208 which is income that is excluded from for the treatment of funds held in indi- deeming under § 416.1161(a)(16), is not a vidual and joint financial institution resource for the calendar month fol- accounts.) lowing the month of its receipt. How- (c) Nonliquid resources. (1) Nonliquid ever, cash retained until the first mo- resources are property which is not ment of the second calendar month fol- cash and which cannot be converted to lowing its receipt is a resource at that cash within 20 days excluding certain time. nonwork days as explained in (i) For purposes of this provision, a § 416.120(d). Examples of resources that retroactive cash payment is one that is are ordinarily nonliquid are loan agree- paid after the month in which it was ments, household goods, automobiles, due. trucks, tractors, boats, machinery, (ii) This provision applies only to the livestock, buildings and land. Non- unspent portion of those cash pay- liquid resources are evaluated accord- ments identified in this paragraph ing to their equity value except as oth- (a)(3). Once the cash from such pay- erwise provided. (See § 416.1218 for ments is spent, this provision does not treatment of automobiles.) apply to items purchased with the (2) For purposes of this subpart L, the money, even if the period described equity value of an item is defined as: above has not expired. (i) The price that item can reason- (iii) Unspent money from those cash ably be expected to sell for on the open payments identified in this paragraph market in the particular geographic (a)(3) must be identifiable from other area involved; minus resources for this provision to apply. (ii) Any encumbrances. The money may be commingled with [40 FR 48915, Oct. 20, 1975, as amended at 44 other funds, but if this is done in such FR 43266, July 24, 1979; 48 FR 33259, July 21, a fashion that an amount from such 1983; 52 FR 4283, Feb. 11, 1987; 52 FR 16845, payments can no longer be separately May 6, 1987; 53 FR 23231, June 21, 1988; 56 FR identified, that amount will count to- 36001, July 30, 1991; 57 FR 35461, Aug. 10, 1992; ward the resource limit described in 57 FR 55089, Nov. 24, 1992; 59 FR 27988, May 31, § 416.1205. 1994] (4) Death benefits, including gifts and inheritances, received by an individual, § 416.1202 Deeming of resources. to the extent that they are not income (a) Married individual. In the case of in accordance with paragraphs (e) and an individual who is living with a per- (g) of § 416.1121 because they are to be son not eligible under this part and spent on costs resulting from the last who is considered to be the husband or illness and burial of the deceased, are wife of such individual under the cri- not resources for the calendar month teria in §§ 416.1802 through 416.1835 of following the month of receipt. How- this part, such individual’s resources ever, such death benefits retained until shall be deemed to include any re- the first moment of the second cal- sources, not otherwise excluded under endar month following their receipt are this subpart, of such spouse whether or resources at that time. not such resources are available to (b) Liquid resources. Liquid resources such individual. In addition to the ex- are cash or other property which can clusions listed in § 416.1210, we also ex- be converted to cash within 20 days, exclude the following items: cluding certain nonwork days as ex- (1) Pension funds that the ineligible plained in § 416.120(d). Examples of re- spouse may have. Pension funds are de- sources that are ordinarily liquid are fined as funds held in individual retire- stocks, bonds, mutual fund shares, ment accounts (IRA), as described by promissory notes, mortgages, life in- the Internal Revenue Code, or in work- surance policies, financial institution related pension plans (including such accounts (including savings, checking, plans for self-employed persons, some- and time deposits, also known as cer- times referred to as Keogh plans); tificates of deposit) and similar items. (2) For 9 months beginning with the Liquid resources, other than cash, are month following the month of receipt,

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the unspent portion of any retroactive (ii) For 9 months beginning with the payment of special pay an ineligible month following the month of receipt, spouse received from one of the uni- the unspent portion of any retroactive formed services pursuant to 37 U.S.C. payment of special pay an ineligible 310; and parent (or stepparent) received from (3) For 9 months beginning with the one of the uniformed services pursuant month following the month of receipt, to 37 U.S.C. 310; and the unspent portion of any retroactive (iii) For 9 months beginning with the payment of family separation allow- month following the month of receipt, ance an ineligible spouse received from the unspent portion of any retroactive one of the uniformed services pursuant payment of family separation allow- to 37 U.S.C. 427 as a result of deploy- ance an ineligible parent (or step- ment to or service in a combat zone (as parent) received from one of the uni- defined in § 416.1160(d)). formed services pursuant to 37 U.S.C. (b) Child—(1) General. In the case of a 427 as a result of deployment to or child (as defined in § 416.1856) who is service in a combat zone (as defined in under age 18, we will deem to that child § 416.1160(d)). any resources, not otherwise excluded (2) Disabled child under age 18. In the under this subpart, of his or her ineli- case of a disabled child under age 18 gible parent who is living in the same who is living in the same household household with him or her (as de- with his or her parents, the deeming scribed in § 416.1851). We also will deem provisions of paragraph (b)(1) of this to the child the resources of his or her section shall not apply if such child— ineligible stepparent. As used in this (i) Previously received a reduced SSI section, the term ‘‘parent’’ means the benefit while a resident of a medical natural or adoptive parent of a child, treatment facility, as described in and the term ‘‘stepparent’’ means the § 416.414; spouse (as defined in § 416.1806) of such (ii) Is eligible for medical assistance natural or adoptive parent who is liv- under a Medicaid State home care plan ing in the same household with the approved by the Secretary under the child and parent. We will deem to a provisions of section 1915(c) or author- child the resources of his or her parent ized under section 1902(e)(3) of the Act; and stepparent whether or not those and resources are available to him or her. (iii) Would otherwise be ineligible be- We will deem to a child the resources cause of the deeming of his or her par- of his or her parent and stepparent ents’ resources or income. only to the extent that those resources (c) Applicability. When used in this exceed the resource limits described in subpart L, the term individual refers to § 416.1205. (If the child is living with an eligible aged, blind, or disabled per- only one parent, we apply the resource son, and also includes a person whose limit for an individual. If the child is resources are deemed to be the re- living with both parents, or the child is sources of such individual (as provided living with one parent and a step- in paragraphs (a) and (b) of this sec- parent, we apply the resource limit for tion). an individual and spouse.) We will not deem to a child the resources of his or [40 FR 48915, Oct. 20, 1975, as amended at 50 FR 38982, Sept. 26, 1985; 52 FR 8888, Mar. 20, her parent or stepparent if the child is 1987; 52 FR 29841, Aug. 12, 1987; 52 FR 32240, excepted from deeming under para- Aug. 26, 1987; 60 FR 361, Jan. 4, 1995; 62 FR graph (b)(2) of this section. In addition 1056, Jan. 8, 1997; 65 FR 16815, Mar. 30, 2000; 72 to the exclusions listed in § 416.1210, we FR 50875, Sept. 5, 2007; 73 FR 28036, May 15, also exclude the following items: 2008; 75 FR 7554, Feb. 22, 2010] (i) Pension funds of an ineligible parent (or stepparent). Pension funds are § 416.1203 Deeming of resources of an defined as funds held in IRAs, as de- essential person. scribed by the Internal Revenue Code, In the case of a qualified individual or in work-related pension plans (in- (as defined in § 416.221) whose payment cluding such plans for self-employed standard has been increased because of persons, sometimes referred to as the presence of an essential person (as Keogh plans); defined in § 416.222), the resources of

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such qualified individual shall be curity Act, as applicable to the re- deemed to include all the resources of sources of sponsors deemed to aliens, such essential person with the excep- see the appendix to subpart K of part tion of the resources explained in 416. We next allocate for the sponsor or §§ 416.1210(t) and 416.1249. If such quali- for the sponsor and spouse (if living to- fied individual would not meet the re- gether). (The amount of the allocation source criteria for eligibility (as de- is the applicable resource limit defined in §§ 416.1205 and 416.1260) because scribed in § 416.1205 for an eligible indi- of the deemed resources, then the pay- vidual and an individual and spouse.) ment standard increase because of the essential person will be nullified and (b) An alien sponsored by more than the provision of this section will not one sponsor. The resources of an alien apply; essential person status is lost who has been sponsored by more than permanently. However, if such essen- one person are deemed to include the tial person is an ineligible spouse of a resources of each sponsor. qualified individual or a parent (or (c) More than one alien sponsored by spouse of a parent) of a qualified indi- one individual. If more than one alien is vidual who is a child under age 21, then sponsored by one individual the deemed the resources of such person will be resources are deemed to each alien as if deemed to such qualified individual in he or she were the only one sponsored accordance with the provision in by the individual. § 416.1202. (d) Alien has a sponsor and a parent or [39 FR 33797, Sept. 20, 1974, as amended at 51 a spouse with deemable resources. Re- FR 10616, Mar. 28, 1986; 70 FR 41138, July 18, sources may be deemed to an alien 2005] from both a sponsor and a spouse or parent (if the alien is a child) provided § 416.1204 Deeming of resources of the that the sponsor and the spouse or par- sponsor of an alien. ent are not the same person and the The resources of an alien who first conditions for each rule are met. applies for SSI benefits after Sep- (e) Alien’s sponsor is also the alien’s in- tember 30, 1980, are deemed to include eligible spouse or parent. If the sponsor the resources of the alien’s sponsor for is also the alien’s ineligible spouse or 3 years after the alien’s date of admis- parent who lives in the same house- sion into the United States. The date of admission is the date established by the hold, the spouse-to-spouse or parent-to- U.S. Citizenship and Immigration Serv- child deeming rules apply instead of ices as the date the alien is admitted the sponsor-to-alien deeming rules. If for permanent residence. The resources the spouse or parent deeming rules of the sponsor’s spouse are included if cease to apply, the sponsor deeming the sponsor and spouse live in the same rules will begin to apply. The spouse or household. Deeming of these resources parent rules may cease to apply if an applies regardless of whether the alien alien child reaches age 18 or if either and sponsor live in the same household the sponsor who is the ineligible spouse and regardless of whether the resources or parent, or the alien moves to a sepa- are actually available to the alien. For rate household. rules that apply in specific situations, (f) Alien’s sponsor also is the ineligible see § 416.1166a(d). spouse or parent of another SSI bene- (a) Exclusions from the sponsor’s re- ficiary. If the sponsor is also the ineli- sources. Before we deem a sponsor’s re- gible spouse or ineligible parent of an sources to an alien, we exclude the SSI beneficiary other than the alien, same kinds of resources that are ex- the sponsor’s resources are deemed to cluded from the resources of an indi- the alien under the rules in paragraph vidual eligible for SSI benefits. The ap- (a), and to the eligible spouse or child plicable exclusions from resources are under the rules in §§ 416.1202, 1205, 1234, explained in §§ 416.1210 (paragraphs (a) 1236, and 1237. through (i), (k), and (m) through (t)) through 416.1239 and §§ 416.1247 through [52 FR 8888, Mar. 20, 1987, as amended at 61 416.1249. For resources excluded by Fed- FR 1712, Jan. 23, 1996; 70 FR 41138, July 18, eral statutes other than the Social Se- 2005; 73 FR 28036, May 15, 2008]

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§ 416.1204a Deeming of resources not they are excluded as of the first where Medicaid eligibility is af- moment of the month. fected. (b) Increase in value of resources. If, Section 416.1161a of this part de- during a month, a resource increases in scribes certain circumstances affecting value or an individual acquires an addi- Medicaid eligibility in which the De- tional resource or replaces an excluded partment will not deem family income resource with one that is not excluded, to an individual. The Department will the increase in the value of the re- follow the same standards, procedures, sources is counted as of the first mo- and limitations set forth in that sec- ment of the next month tion with respect to deeming of re- (c) Decrease in value of resources. If, sources. during a month, a resource decreases in [49 FR 5747, Feb. 15, 1984] value or an individual spends a resource or replaces a resource that is § 416.1205 Limitation on resources. not excluded with one that is excluded, (a) Individual with no eligible spouse. the decrease in the value of the re- An aged, blind, or disabled individual sources is counted as of the first mo- with no spouse is eligible for benefits ment of the next month. under title XVI of the Act if his or her (d) Treatment of items under income nonexcludable resources do not exceed and resource counting rules. Items re- $1,500 prior to January 1, 1985, and all ceived in cash or in kind during a other eligibility requirements are met. month are evaluated first under the in- An individual who is living with an income counting rules and, if retained eligible spouse is eligible for benefits until the first moment of the following under title XVI of the Act if his or her month, are subject to the rules for nonexcludable resources, including the counting resources at that time. resources of the spouse, do not exceed (e) Receipts from the sale, exchange, or $2,250 prior to January 1, 1985, and all replacement of a resource. If an indi- other eligibility requirements are met. vidual sells, exchanges or replaces a re- (b) Individual with an eligible spouse. source, the receipts are not income. An aged, blind, or disabled individual They are still considered to be a re- who has an eligible spouse is eligible source. This rule includes resources for benefits under title XVI of the Act that have never been counted as such if their nonexcludable resources do not because they were sold, exchanged or exceed $2,250 prior to January 1, 1985, and all other eligibility requirements replaced in the month in which they are met. were received. See § 416.1246 for the rule (c) Effective January 1, 1985 and later. on resources disposed of for less than The resources limits and effective fair market value (including those dis- dates for January 1, 1985 and later are posed of during the month of receipt). as follows: Example: Miss L., a disabled individual, receives a $350 unemployment insurance ben- Individual Effective date Individual and spouse efit on January 10, 1986. The benefit is unearned income to Miss L. when she receives Jan. 1, 1985 ...... $1,600 $2,400 it. On January 14, Miss L. uses the $350 pay- Jan. 1, 1986 ...... 1,700 $2,550 ment to purchase shares of stock. Miss L. Jan. 1, 1987 ...... 1,800 $2,700 has exchanged one item (cash) for another Jan. 1, 1988 ...... 1,900 $2,850 item (stock). The $350 payment is never Jan. 1, 1989 ...... 2,000 $3,000 counted as a resource to Miss L. because she exchanged it in the same month she received [50 FR 38982, Sept. 26, 1985] it. The stock is not income; it is a different form of a resource exchanged for the cash. § 416.1207 Resources determinations. Since a resource is not countable until the (a) General. Resources determinations first moment of the month following its receipt, the stock is not a countable resource are made as of the first moment of the to Miss L. until February 1. month. A resource determination is based on what assets an individual has, [52 FR 4283, Feb. 11, 1987] what their values are, and whether or

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§ 416.1208 How funds held in financial tablish that some or all of the funds in institution accounts are counted. a jointly-held account do not belong to (a) General. Funds held in a financial him or her. Successful rebuttal estab- institution account (including savings, lishes that the individual does not own checking, and time deposits, also some or all of the funds. The effect of known as certificates of deposit) are an successful rebuttal may be retroactive individual’s resource if the individual as well as prospective. owns the account and can use the funds Example: The recipient’s first month of eli- for his or her support and maintenance. gibility is January 1993. In May 1993 the re- We determine whether an individual cipient successfully establishes that none of owns the account and can use the funds the funds in a 5-year-old jointly-held account for his or her support and maintenance belong to her. We do not count any of the by looking at how the individual holds funds as resources for the months of January the account. This is reflected in the 1993 and continuing. way the account is titled. (4) Procedure for rebuttal. To rebut an (b) Individually-held account. If an in- ownership presumption as described in dividual is designated as sole owner by paragraph (c)(1) or (c)(2) of this section, the account title and can withdraw the individual must: funds and use them for his or her sup- (i) Submit his/her statement, along port and maintenance, all of the funds, with corroborating statements from regardless of their source, are that in- other account holders, regarding who dividual’s resource. For as long as owns the funds in the joint account, these conditions are met, we presume why there is a joint account, who has that the individual owns 100 percent of made deposits to and withdrawals from the funds in the account. This pre- the account, and how withdrawals have sumption is non-rebuttable. been spent; (c) Jointly-held account—(1) Account (ii) Submit account records showing holders include one or more SSI claimants deposits, withdrawals, and interest (if or recipients. If there is only one SSI any) in the months for which owner- claimant or recipient account holder ship of funds is at issue; and on a jointly held account, we presume (iii) Correct the account title to show that all of the funds in the account be- that the individual is no longer a co- long to that individual. If there is more owner if the individual owns none of than one claimant or recipient account the funds; or, if the individual owns holder, we presume that all the funds only a portion of the funds, separate in the account belong to those individ- the funds owned by the other account uals in equal shares. holder(s) from his/her own funds and (2) Account holders include one or more correct the account title on the indi- deemors. If none of the account holders vidual’s own funds to show they are is a claimant or recipient, we presume solely-owned by the individual. that all of the funds in a jointly-held account belong to the deemor(s), in [59 FR 27989, May 31, 1994] equal shares if there is more than one deemor. A deemor is a person whose in- § 416.1210 Exclusions from resources; come and resources are required to be general. considered when determining eligi- In determining the resources of an bility and computing the SSI benefit individual (and spouse, if any), the fol- for an eligible individual (see §§ 416.1160 lowing items shall be excluded: and 416.1202). (a) The home (including the land ap- (3) Right to rebut presumption of owner- pertaining thereto) to the extent its ship. If the claimant, recipient, or value does not exceed the amount set deemor objects or disagrees with an forth in § 416.1212; ownership presumption as described in (b) Household goods and personal ef- paragraph (c)(1) or (c)(2) of this section, fects as defined in § 416.1216; we give the individual the opportunity (c) An automobile, if used for trans- to rebut the presumption. Rebuttal is a portation, as provided in § 416.1218; procedure as described in paragraph (d) Property of a trade or business (c)(4) of this section, which permits an which is essential to the means of self- individual to furnish evidence and es- support as provided in § 416.1222;

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(e) Nonbusiness property which is es- (w) Any annuity paid by a State to a sential to the means of self-support as person (or his or her spouse) based on provided in § 416.1224; the State’s determination that the per- (f) Resources of a blind or disabled in- son is: dividual which are necessary to fulfill (1) A veteran (as defined in 38 U.S.C. an approved plan for achieving self- 101); and support as provided in § 416.1226; (2) Blind, disabled, or aged. (g) Stock in regional or village cor- [40 FR 48915, Oct. 20, 1975, as amended at 41 porations held by natives of Alaska FR 13338, Mar. 30, 1976; 44 FR 15664, Mar. 15, during the twenty-year period in which 1979; 48 FR 57127, Dec. 28, 1983; 51 FR 34464, the stock is inalienable pursuant to the Sept. 29, 1986; 55 FR 28378, July 11, 1990; 58 FR Alaska Native Claims Settlement Act 63890, Dec. 3, 1993; 59 FR 8538, Feb. 23, 1994; 61 (see § 416.1228); FR 1712, Jan. 23, 1996; 61 FR 67207, Dec. 20, (h) Life insurance owned by an indi- 1996; 70 FR 6345, Feb. 7, 2005; 70 FR 41138, July 18, 2005; 71 FR 45378, Aug. 9, 2006; 75 FR 1273, vidual (and spouse, if any) to the ex- Jan. 11, 2010; 75 FR 54287, Sept. 7, 2010] tent provided in § 416.1230; (i) Restricted allotted Indian lands as § 416.1212 Exclusion of the home. provided in § 416.1234; (a) Defined. A home is any property (j) Payments or benefits provided in which an individual (and spouse, if under a Federal statute other than any) has an ownership interest and title XVI of the Social Security Act which serves as the individual’s prin- where exclusion is required by such cipal place of residence. This property statute; includes the shelter in which an indi- (k) Disaster relief assistance as pro- vidual resides, the land on which the vided in § 416.1237; shelter is located and related out- (l) Burial spaces and certain funds up buildings. to $1,500 for burial expenses as provided (b) Home not counted. We do not count in § 416.1231; a home regardless of its value. How- (m) Title XVI or title II retroactive ever, see §§ 416.1220 through 416.1224 payments as provided in § 416.1233; when there is an income-producing (n) Housing assistance as provided in property located on the home property § 416.1238; that does not qualify under the home (o) Refunds of Federal income taxes exclusion. and advances made by an employer re- (c) If an individual changes principal lating to an earned income tax credit, place of residence. If an individual (and as provided in § 416.1235; spouse, if any) moves out of his or her (p) Payments received as compensa- home without the intent to return, the tion for expenses incurred or losses suf- home becomes a countable resource be- fered as a result of a crime as provided cause it is no longer the individual’s in § 416.1229; principal place of residence. If an indi- (q) Relocation assistance from a vidual leaves his or her home to live in State or local government as provided an institution, we still consider the in § 416.1239; home to be the individual’s principal (r) Dedicated financial institution ac- place of residence, irrespective of the counts as provided in § 416.1247; individual’s intent to return, as long as (s) Gifts to children under age 18 with a spouse or dependent relative of the life-threatening conditions as provided eligible individual continues to live in § 416.1248; there. The individual’s equity in the (t) Restitution of title II, title VIII or former home becomes a countable re- title XVI benefits because of misuse by source effective with the first day of certain representative payees as pro- the month following the month it is no vided in § 416.1249; longer his or her principal place of resi- (u) Any portion of a grant, scholar- dence. ship, fellowship, or gift used or set (d) If an individual leaves the principal aside for paying tuition, fees, or other place of residence due to domestic abuse. necessary educational expenses as pro- If an individual moves out of his or her vided in § 416.1250; home without the intent to return, but (v) Payment of a refundable child tax is fleeing the home as a victim of do- credit, as provided in § 416.1235; and mestic abuse, we will not count the

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home as a resource in determining the individual purchases a replacement individual’s eligibility to receive, or home after the expiration of the 3- continue to receive, SSI payments. In month period, the note becomes an ex- that situation, we will consider the cluded resource the month following home to be the individual’s principal the month of purchase of the replace- place of residence until such time as ment home provided that all other pro- the individual establishes a new prin- ceeds are fully and timely reinvested as cipal place of residence or otherwise explained in paragraph (g) of this sec- takes action rendering the home no tion. longer excludable. (g) Failure to reinvest proceeds timely. (e) Proceeds from the sale of an ex- (1) If the proceeds (e.g., installment cluded home. (1) The proceeds from the amounts constituting payment against sale of a home which is excluded from the principal) from the sale of an ex- the individual’s resources will also be cluded home under a promissory note excluded from resources to the extent or similar installment sales contract they are intended to be used and are, in are not reinvested fully and timely fact, used to purchase another home, (within 3 months of receipt) in a re- which is similarly excluded, within 3 placement home, as of the first mo- months of the date of receipt of the ment of the month following receipt of proceeds. the payment, the individual’s count- (2) The value of a promissory note or able resources will include: similar installment sales contract con- (i) The value of the note; and stitutes a ‘‘proceed’’ which can be ex- (ii) That portion of the proceeds, re- cluded from resources if— tained by the individual, which was not (i) The note results from the sale of timely reinvested an individual’s home as described in (2) The note remains a countable re- § 416.1212(a); source until the first moment of the (ii) Within 3 months of receipt (exe- month following the receipt of pro- cution) of the note, the individual pur- ceeds that are fully and timely rein- chases a replacement home as de- vested in the replacement home. Fail- scribed in § 416.1212(a) (see paragraph (f) ure to reinvest proceeds for a period of of this section for an exception); and time does not permanently preclude (iii) All note-generated proceeds are exclusion of the promissory note or in- reinvested in the replacement home stallment sales contract. However, pre- within 3 months of receipt (see para- viously received proceeds that were not graph (g) of this section for an excep- timely reinvested remain countable re- tion). sources to the extent they are retained. (3) In addition to excluding the value of the note itself, other proceeds from Example 1. On July 10, an SSI recipient received his quarterly payment of $200 from the sale of the former home are ex- the buyer of his former home under an included resources if they are used with- stallment sales contract. As of October 31, in 3 months of receipt to make pay- the recipient has used only $150 of the July ment on the replacement home. Such payment in connection with the purchase of proceeds, which consist of the down- a new home. The exclusion of the unused $50 payment and that portion of any in- (and of the installment contract itself) is re- stallment amount constituting pay- voked back to July 10. As a result, the $50 ment against the principal, represent a and the value of the contract as of August 1, are included in a revised determination of re- conversion of a resource. sources for August and subsequent months. (f) Failure to purchase another ex- Example 2. On April 10, an SSI recipient re- cluded home timely. If the individual ceived a payment of $250 from the buyer of does not purchase a replacement home his former home under an installment sales within the 3-month period specified in contract. On May 3, he reinvested $200 of the paragraph (e)(2)(ii) of this section, the payment in the purchase of a new home. On value of a promissory note or similar May 10, the recipient received another $250 installment sales contract received payment, and reinvested the full amount on June 3. As of July 31, since the recipient has from the sale of an excluded home is a used only $200 of the April payment in con- countable resource effective with the nection with the purchase of the new home, first moment of the month following the exclusion of the unused $50 (and of the the month the note is executed. If the installment contract itself) is revoked back

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to April 10. As a result, the $50 and the value that were acquired or are held for their of the contract as of May 1 are includable re- value or as an investment because we sources. Since the recipient fully and timely do not consider these to be personal ef- reinvested the May payment, the install- fects. Such items can include but are ment contract and the payment are again excludable resources as of June 1. However, the not limited to: Gems, jewelry that is $50 left over from the previous payment re- not worn or held for family signifi- mains a countable resource. cance, or collectibles. Such items will be subject to the limits in § 416.1205. (h) Interest payments. If interest is received as part of an installment pay- [70 FR 6345, Feb. 7, 2005] ment resulting from the sale of an excluded home under a promissory note § 416.1218 Exclusion of the automobile. or similar installment sales contract, (a) Automobile; defined. As used in the interest payments do not represent this section, the term automobile in- conversion of a resource. The interest cludes, in addition to passenger cars, is income under the provisions of other vehicles used to provide nec- §§ 416.1102, 416.1120, and 416.1121(c). essary transportation. [50 FR 42686, Oct. 22, 1985, as amended at 51 (b) Limitation on automobiles. In deter- FR 7437, Mar. 4, 1986; 59 FR 43285, Aug. 23, mining the resources of an individual 1994; 75 FR 1273, Jan. 11, 2010] (and spouse, if any), automobiles are excluded or counted as follows: § 416.1216 Exclusion of household (1) Total exclusion. One automobile is goods and personal effects. totally excluded regardless of value if (a) Household goods. (1) We do not it is used for transportation for the in- count household goods as a resource to dividual or a member of the individ- an individual (and spouse, if any) if ual’s household. they are: (2) Other automobiles. Any other auto- (i) Items of personal property, found mobiles are considered to be nonliquid in or near the home, that are used on a resources. Your equity in the other regular basis; or automobiles is counted as a resource. (ii) Items needed by the householder (See § 416.1201(c).) for maintenance, use and occupancy of [40 FR 48915, Oct. 20, 1975, as amended at 44 the premises as a home. FR 43266, July 24, 1979; 50 FR 42687, Oct. 22, (2) Such items include but are not 1985; 70 FR 6345, Feb. 7, 2005] limited to: Furniture, appliances, electronic equipment such as personal § 416.1220 Property essential to self- computers and television sets, carpets, support; general. cooking and eating utensils, and When counting the value of resources dishes. an individual (and spouse, if any) has, (b) Personal effects. (1) We do not the value of property essential to self- count personal effects as resources to support is not counted, within certain an individual (and spouse, if any) if limits. There are different rules for they are: considering this property depending on (i) Items of personal property ordi- whether it is income-producing or not. narily worn or carried by the indi- Property essential to self-support can vidual; or include real and personal property (for (ii) Articles otherwise having an inti- example, land, buildings, equipment mate relation to the individual. and supplies, motor vehicles, and tools, (2) Such items include but are not etc.) used in a trade or business (as de- limited to: Personal jewelry including fined in § 404.1066 of part 404), nonbusi- wedding and engagement rings, per- ness income-producing property sonal care items, prosthetic devices, (houses or apartments for rent, land and educational or recreational items other than home property, etc.) and such as books or musical instruments. property used to produce goods or serv- We also do not count as resources ices essential to an individual’s daily items of cultural or religious signifi- activities. Liquid resources other than cance to an individual and items re- those used as part of a trade or busi- quired because of an individual’s im- ness are not property essential to self- pairment. However, we do count items support. If the individual’s principal

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place of residence qualifies under the for property essential to self-support and her home exclusion, it is not considered in net income after expenses ($400) is greater evaluating property essential to self- than 6 percent of her equity, her income-producing property is excluded from countable support. resources. The home is not considered in any [50 FR 42687, Oct. 22, 1985] way in valuing property essential to self-support. § 416.1222 How income-producing Example 2. Charlotte operates a farm. She property essential to self-support is owns 3 acres of land on which her home is lo- counted. cated. She also owns 10 acres of farm land not connected to her home. There are 2 tool (a) General. When deciding the value sheds and 2 animal shelters located on the 10 of property used in a trade or business acres. She has various pieces of farm equip- or nonbusiness income-producing ac- ment that are necessary for her farming activity, only the individual’s equity in tivities. We exclude the house and the 3 acres the property is counted. We will ex- under the home exclusion (see § 416.1212). clude as essential to self-support up to However, we look at the other 10 acres of land, the buildings and equipment separately $6,000 of an individual’s equity in in- to see if her total equity in them is no more come-producing property if it produces than $6,000 and if the annual rate of return is a net annual income to the individual 6 percent of her equity. In this case, the 10 of at least 6 percent of the excluded eq- acres and buildings are valued at $4,000 and uity. If the individual’s equity is great- the few items of farm equipment and other er than $6,000, we count only the inventory are valued at $1,500. Charlotte amount that exceeds $6,000 toward the sells produce which nets her more than 6 per- allowable resource limit specified in cent for this year. The 10 acres and other items are excluded as essential to her self- § 416.1205 if the net annual income re- support and they continue to be excluded as quirement of 6 percent is met on the long as she meets the 6-percent annual re- excluded equity. If the activity pro- turn requirement and the equity value of the duces less than a 6-percent return due 10 acres and other items remains less than to circumstances beyond the individ- $6,000. ual’s control (for example, crop failure, Example 3. Henry has an automobile repair illness, etc.), and there is a reasonable business valued at $5,000. There are no debts expectation that the individual’s activ- on the property and bills are paid monthly. For the past 4 years the business has just ity will again produce a 6-percent re- broken even. Since Henry’s income from the turn, the property is also excluded. If business is less then 6 percent of his equity, the individual owns more than one the entire $5,000 is counted as his resources. piece of property and each produces in- Since this exceeds the resources limit as de- come, each is looked at to see if the 6- scribed in § 416.1205, he is not eligible for SSI percent rule is met and then the benefits. amounts of the individual’s equity in (b) Exception. Property that rep- all of those properties producing 6 per- resents the authority granted by a gov- cent are totaled to see if the total eq- ernmental agency to engage in an in- uity is $6,000 or less. The equity in come-producing activity is excluded as those properties that do not meet the property essential to self-support if it 6-percent rule is counted toward the al- is: lowable resource limit specified in (1) Used in a trade or business or non- § 416.1205. If the individual’s total eq- business income-producing activity; or uity in the properties producing 6-per- (2) Not used due to circumstances be- cent income is over the $6,000 equity yond the individual’s control, e.g., ill- limit, the amount of equity exceeding ness, and there is a reasonable expecta- $6,000 is counted as a resource toward tion that the use will resume. the allowable resource limit. Example: John owns a commercial fishing Example 1. Sharon has a small business in permit granted by the State Commerce Com- her home making hand-woven rugs. The mission, a boat, and fishing tackle. The boat looms and other equipment used in the busi- and tackle have an equity value of $6,500. ness have a current market value of $7,000. Last year, John earned $2,000 from his fish- The value of her equity is $5,500 since she ing business. The value of the fishing permit owes $1,500 on the looms. Sharon’s net earn- is not determined because the permit is ex- ings from self-employment is $400. Since cluded under the exception. The boat and Sharon’s equity in the looms and other tackle are producing in excess of a 6 percent equipment ($5,500) is under the $6,000 limit return on the excluded equity value, so they

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are excluded under the general rule (see § 416.1226 What is a plan to achieve paragraph (a) of this section) up to $6,000. self-support (PASS)? The $500 excess value is counted toward the resource limit as described in § 416.1205. (a) A PASS must— (1) Be designed especially for you; [50 FR 42687, Oct. 22, 1985] (2) Be in writing; (3) Be approved by us (a change of § 416.1224 How nonbusiness property plan must also be approved by us); used to produce goods or services (4) Have a specific employment goal essential to self-support is counted. that is feasible for you, that is, a goal Nonbusiness property is considered that you have a reasonable likelihood to be essential for an individual’s (and of achieving; spouse, if any) self-support if it is used (5) Have a plan to reach your employ- to produce goods or services necessary ment goal that is viable and finan- for his or her daily activities. This type cially sustainable, that is, the plan— of property includes real property such (i) Sets forth steps that are attain- as land which is used to produce vege- able in order to reach your goal, and tables or livestock only for personal (ii) Shows that you will have enough consumption in the individual’s house- money to meet your living expenses hold (for example, corn, tomatoes, while setting aside income or resources chicken, cattle). This type of property to reach your goal; also includes personal property nec- (6) Be limited to one employment essary to perform daily functions ex- goal; however, the employment goal clusive of passenger cars, trucks, boats, may be modified and any changes related to the modification must be made or other special vehicles. (See § 416.1218 to the plan; for a discussion on how automobiles (7) Show how the employment goal are counted.) Property used to produce will generate sufficient earnings to goods or services or property necessary substantially reduce your dependence to perform daily functions is excluded on SSI or eliminate your need for title if the individual’s equity in the prop- II disability benefits; erty does not exceed $6,000. Personal property which is required by the indi- Example 1: A Substantial Reduction Exists. vidual’s employer for work is not Your SSI monthly payment amount is $101 and your PASS employment goal earnings counted, regardless of value, while the will reduce your SSI payment by $90. We individual is employed. Examples of may consider that to be a substantial reduc- this type of personal property include tion. tools, safety equipment, uniforms and Example 2: A Substantial Reduction Exists. similar items. You receive a title II benefit of $550 and an SSI payment of $73. Your PASS employment Example: Bill owns a small unimproved lot goal will result in work over the SGA level several blocks from his home. He uses the that eliminates your title II benefit but in- lot, which is valued at $4,800, to grow vegeta- creases your SSI payment by $90. We may bles and fruit only for his own consumption. consider that a substantial reduction be- Since his equity in the property is less than cause your work will eliminate your title II $6,000, the property is excluded as necessary payment while only slightly increasing your to self-support. SSI payment. Example 3: A Substantial Reduction Does [50 FR 42687, Oct. 22, 1985] Not Exist. Your SSI monthly payment amount is $603 and your PASS employment § 416.1225 An approved plan to achieve goal earnings will reduce your SSI payment self-support; general. by $90. We may not consider that to be a substantial reduction. If you are blind or disabled, we will pay you SSI benefits and will not count (8) Contain a beginning date and an resources that you use or set aside to ending date to meet your employment use for expenses that we determine to goal; be reasonable and necessary to fulfill (9) Give target dates for meeting an approved plan to achieve self-sup- milestones towards your employment goal; port. (10) Show what expenses you will [71 FR 28265, May 16, 2006] have and how they are reasonable and

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necessary to meet your employment 8(c) of the Alaska Native Claims Set- goal; tlement Act (43 U.S.C. 1606, 1607). The (11) Show what resources you have 20-year period of inalienability termi- and will receive, how you will use them nates on January 1, 1992. to attain your employment goal, and (b) As used in this section, native of how you will meet your living ex- Alaska has the same meaning as that penses; and contained in section 3(b) of the Alaska (12) Show how the resources you set Native Claims Settlement Act (43 aside under the plan will be kept sepa- U.S.C. 1602(b)). rate from your other resources. (b) You must propose a reasonable § 416.1229 Exclusion of payments re- ending date for your PASS. If nec- ceived as compensation for ex- essary, we can help you establish an penses incurred or losses suffered as a result of a crime. ending date, which may be different than the ending date you propose. Once (a) In determining the resources of an the ending date is set and you begin individual (and spouse, if any), any your PASS, we may adjust or extend amount received from a fund estab- the ending date of your PASS based on lished by a State to aid victims of progress towards your goal and earn- crime is excluded from resources for a ings level reached. period of 9 months beginning with the (c) If your employment goal is self- month following the month of receipt. employment, you must include a busi- (b) To be excluded from resources ness plan that defines the business, under this section, the individual (or provides a marketing strategy, details spouse) must demonstrate that any financial data, outlines the operational amount received was compensation for procedures, and describes the manage- expenses incurred or losses suffered as ment plan. the result of a crime. (d) Your progress will be reviewed at [61 FR 1712, Jan. 23, 1996] least annually to determine if you are following the provisions of your plan. § 416.1230 Exclusion of life insurance. [71 FR 28265, May 16, 2006] (a) General. In determining the resources of an individual (and spouse, if § 416.1227 When the resources ex- any), life insurance owned by the indi- cluded under a plan to achieve self- vidual (and spouse, if any) will be con- support begin to count. sidered to the extent of its cash sur- The resources that were excluded render value. If, however, the total face under the individual’s plan will begin value of all life insurance policies on to be counted as of the first day of the any person does not exceed $1,500, no month following the month in which part of the cash surrender value of such any of these circumstances occur: life insurance will be taken into ac- (a) Failing to follow the conditions of count in determining the resources of the plan: the individual (and spouse, if any). In (b) Abandoning the plan; determining the face value of life in- (c) Completing the time schedule surance on the individual (and spouse, outlined in the plan; or if any), term insurance and burial in- (d) Reaching the goal as outlined in surance will not be taken into account. the plan. (b) Definitions—(1) Life insurance. Life [50 FR 42688, Oct. 22, 1985] insurance is a contract under which the insurer agrees to pay a specified § 416.1228 Exclusion of Alaskan na- amount upon the death of the insured. tives’ stock in regional or village (2) Insurer. The insurer is the com- corporations. pany or association which contracts (a) In determining the resources of a with the owner of the insurance. native of Alaska (and spouse, if any) (3) Insured. The insured is the person there will be excluded from resources, upon whose life insurance is effected. shares of stock held in a regional or (4) Owner. The owner is the person village corporation during the period of who has the right to change the policy. 20 years in which such stock is inalien- This is normally the person who pays able, as provided by sections 7(h) and the premiums.

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(5) Term insurance. Term insurance is individual under an installment sales a form of life insurance having no cash agreement or other similar device surrender value and generally fur- under which the individual does not nishing insurance protection for only a currently own nor currently have the specified or limited period of time. right to use the space, nor is the seller (6) Face value. Face value is the basic currently obligated to provide the death benefit of the policy exclusive of space, until the purchase amount is dividend additions or additional paid in full. amounts payable because of accidental (4) Immediate family defined. For pur- death or under other special provisions. poses of this section immediate family (7) Cash surrender value. Cash sur- means an individual’s minor and adult render value is the amount which the children, including adopted children insurer will pay (usually to the owner) and step-children; an individual’s upon cancellation of the policy before brothers, sisters, parents, adoptive par- death of the insured or before maturity ents, and the spouses of those individ- of the policy. uals. Neither dependency nor living-in- (8) Burial insurance. Burial insurance the-same-household will be a factor in is insurance whose terms specifically determining whether a person is an im- provide that the proceeds can be used mediate family member. only to pay the burial expenses of the (b) Funds set aside for burial expenses— insured. (1) Exclusion. In determining the re- § 416.1231 Burial spaces and certain sources of an individual (and spouse, if funds set aside for burial expenses. any) there shall be excluded an amount not in excess of $1,500 each of funds spe- (a) Burial spaces—(1) General. In de- cifically set aside for the burial ex- termining the resources of an indi- penses of the individual or the individ- vidual, the value of burial spaces for ual’s spouse. This exclusion applies the individual, the individual’s spouse only if the funds set aside for burial ex- or any member of the individual’s im- penses are kept separate from all other mediate family will be excluded from resources not intended for burial of the resources. individual (or spouse) and are clearly (2) Burial spaces defined. For purposes of this section ‘‘burial spaces’’ include designated as set aside for the individ- burial plots, gravesites, crypts, ual’s (or spouse’s) burial expenses. If mausoleums, urns, niches and other excluded burial funds are mixed with customary and traditional repositories resources not intended for burial, the for the deceased’s bodily remains pro- exclusion will not apply to any portion vided such spaces are owned by the in- of the funds. This exclusion is in addi- dividual or are held for his or her use. tion to the burial space exclusion. Additionally, the term includes nec- (2) Exception for parental deeming situ- essary and reasonable improvements or ations. If an individual is an eligible additions to or upon such burial spaces child, the burial funds (up to $1,500) including, but not limited to, vaults, that are set aside for the burial ar- headstones, markers, plaques, or burial rangements of the eligible child’s ineli- containers and arrangements for open- gible parent or parent’s spouse will not ing and closing the gravesite for burial be counted in determining the re- of the deceased. sources of such eligible child. (3) An agreement representing the pur- (3) Burial funds defined. For purposes chase of a burial space. The value of an of this section ‘‘burial funds’’ are rev- agreement representing the purchase of ocable burial contracts, burial trusts, a burial space, including any accumu- other burial arrangements (including lated interest, will be excluded from re- amounts paid on installment sales con- sources. We do not consider a burial tracts for burial spaces), cash, ac- space ‘‘held for’’ an individual under an counts, or other financial instruments agreement unless the individual cur- with a definite cash value clearly des- rently owns and is currently entitled ignated for the individual’s (or to the use of the space under that spouse’s, if any) burial expenses and agreement. For example, we will not kept separate from nonburial-related consider a burial space ‘‘held for’’ an assets. Property other than listed in

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this definition will not be considered igible spouse) will be reduced by an ‘‘burial funds.’’ amount equal to the amount of ex- (4) Recipients currently receiving SSI cluded burial funds used for another benefits. Recipients currently eligible purpose. This penalty for use of ex- as of July 11, 1990, who have had burial cluded burial funds for a purpose other funds excluded which do not meet all of than the burial arrangements of the in- the requirements of paragraphs (b) (1) dividual (or spouse) will apply only if, and (3) of this section must convert or as of the first moment of the month of separate such funds to meet these re- use, the individual would have had requirements unless there is an impedi- sources in excess of the limit specified ment to such conversion or separation; in § 416.1205 without application of the i.e., a circumstance beyond an individ- exclusion. ual’s control which makes conversion/ (9) Extension of burial fund exclusion separation impossible or impracticable. during suspension. The exclusion of bur- For so long as such an impediment or ial funds and accumulated interest and circumstance exists, the burial funds appreciation will continue to apply will be excluded if the individual re- throughout a period of suspension as mains otherwise continuously eligible described in § 416.1320, so long as the infor the exclusion. dividual’s eligibility has not been ter- (5) Reductions. Each person’s (as de- minated as described in §§ 416.1331 scribed in §§ 416.1231(b)(1) and through 416.1335. 416.1231(b)(2)) $1,500 exclusion must be [48 FR 57127, Dec. 28, 1983, as amended at 55 reduced by: FR 28377, July 11, 1990; 57 FR 1384, Jan. 14, (i) The face value of insurance poli- 1992] cies on the life of an individual owned by the individual or spouse (if any) if § 416.1232 Replacement of lost, dam- the cash surrender value of those poli- aged, or stolen excluded resources. cies has been excluded from resources (a) Cash (including any interest as provided in § 416.1230; and earned on the cash) or in-kind replace- (ii) Amounts in an irrevocable trust ment received from any source for pur- (or other irrevocable arrangement) poses of repairing or replacing an ex- available to meet the burial expenses. cluded resource (as defined in § 416.1210) (6) Irrevocable trust or other irrevocable that is lost, damaged, or stolen is ex- arrangement. Funds in an irrevocable cluded as a resource. This exclusion ap- trust or other irrevocable arrangement plies if the cash (and the interest) is which are available for burial are funds used to repair or replace the excluded which are held in an irrevocable burial resource within 9 months of the date contract, an irrevocable burial trust, the individual received the cash. Any or an amount in an irrevocable trust of the cash (and interest) that is not which is specifically identified as avail- used to repair or replace the excluded able for burial expenses. resource will be counted as a resource (7) Increase in value of burial funds. In- beginning with the month after the 9- terest earned on excluded burial funds month period expires. and appreciation in the value of ex- (b) The initial 9-month time period cluded burial arrangements which will be extended for a reasonable period occur beginning November 1, 1982, or up to an additional 9 months where we the date of first SSI eligibility, which- find the individual had good cause for ever is later, are excluded from re- not replacing or repairing the resource. sources if left to accumulate and be- An individual will be found to have come part of the separate burial fund. good cause when circumstances beyond (8) Burial funds used for some other his or her control prevented the repair purpose. (i) Excluded burial funds must or replacement or the contracting for be used solely for that purpose. the repair or replacement of the re- (ii) If any excluded funds are used for source. The 9-month extension can a purpose other than the burial ar- only be granted if the individual in- rangements of the individual or the intends to use the cash or in-kind re- dividual’s spouse for whom the funds placement items to repair or replace were set aside, future SSI benefits of the lost, stolen, or damaged excluded the individual (or the individual and el- resource in addition to having good

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cause for not having done so. If good whose resources are subject to deeming cause is found for an individual, any under this subpart. unused cash (and interest) is counted (b) Retroactive payments. For purposes as a resource beginning with the month of this exclusion, a retroactive pay- after the good cause extension period ment is one that is paid after the expires. Exception: For victims of Hurri- month in which it was due. A title XVI cane Andrew only, the extension period retroactive payment includes any ret- for good cause may be extended for up roactive amount of federally adminis- to an additional 12 months beyond the tered State supplementation. 9-month extension when we find that (c) Limitation on exclusion. This exclu- the individual had good cause for not sion applies only to any unspent por- replacing or repairing an excluded re- tion of retroactive payments made source within the 9-month extension. under title II or XVI. Once the money (c) The time period described in para- from the retroactive payment is spent, graph (b) of this section (except the this exclusion does not apply to items time period for individuals granted an purchased with the money, even if the additional extension under the Hurri- 6-month or 9-month period, whichever cane Andrew provision) may be ex- is applicable (see paragraph (a) of this tended for a reasonable period up to an section), has not expired. However, additional 12 months in the case of a other exclusions may be applicable. As catastrophe which is declared to be a long as the funds from the retroactive major disaster by the President of the payment are not spent, they are ex- United States if the excluded resource cluded for the full 6-month or 9-month is geographically located within the period, whichever is applicable. disaster area as defined by the Presi- (d) Funds must be identifiable. Unspent dential order; the individual intends to money from a retroactive payment repair or replace the excluded resource; must be identifiable from other re- and, the individual demonstrates good sources for this exclusion to apply. The cause why he or she has not been able money may be commingled with other to repair or replace the excluded refunds but, if this is done in such a fash- source within the 18-month period. ion that the retroactive amount can no (d) Where an extension of the time longer be separately identified, that period is made for good cause and the amount will count toward the resource individual changes his or her intent to limit described in § 416.1205. repair or replace the excluded resource, (e) Written notice. We will give each funds previously held for replacement recipient a written notice of the exclu- or repair will be counted as a resource sion limitation when we make the ret- effective with the month that the indi- roactive payment. vidual reports this change of intent. [51 FR 34464, Sept. 29, 1986, as amended at 54 [44 FR 15662, Mar. 15, 1979, as amended at 50 FR 19164, May 4, 1989; 70 FR 41138, July 18, FR 48579, Nov. 26, 1985; 61 FR 5944, Feb. 15, 2005] 1996] § 416.1234 Exclusion of Indian lands. § 416.1233 Exclusion of certain underpayments from resources. In determining the resources of an individual (and spouse, if any) who is of (a) General. In determining the re- Indian descent from a federally recog- sources of an eligible individual (and nized Indian tribe, we will exclude any spouse, if any), we will exclude, for 9 interest of the individual (or spouse, if months following the month of receipt, any) in land which is held in trust by the unspent portion of any title II or the United States for an individual In- title XVI retroactive payment received dian or tribe, or which is held by an in- on or after March 2, 2004. Exception: We dividual Indian or tribe and which can will exclude for 6 months following the only be sold, transferred, or otherwise month of receipt the unspent portion of disposed of with the approval of other any title II or title XVI retroactive individuals, his or her tribe, or an payment received before March 2, 2004. agency of the Federal Government. This exclusion also applies to such payments received by any other person [59 FR 8538, Feb. 23, 1994]

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§ 416.1235 Exclusion of certain pay- Law 93–134, as amended by Public Law ments related to tax credits. 97–458 (25 U.S.C. 1407). Indian judgment (a) In determining the resources of an funds include interest and investment individual (and spouse, if any), we ex- income accrued while the funds are so clude for the 9 months following the held in trust. This exclusion extends to month of receipt the following funds initial purchases made with Indian received on or after March 2, 2004, the judgment funds. This exclusion will not unspent portion of: apply to proceeds from sales or conver- (1) Any payment of a refundable cred- sions of initial purchases or to subse- it pursuant to section 32 of the Internal quent purchases. Revenue Code (relating to the earned (4) The value of the coupon allotment income tax credit); in excess of the amount paid for the (2) Any payment from an employer coupons under the Food Stamp Act of under section 3507 of the Internal Rev- 1964 (78 Stat. 705, as amended, 7 U.S.C. enue Code (relating to advance pay- 2016(c)). ment of the earned income tax credit); (5) The value of assistance to chil- or dren under the National School Lunch (3) Any payment of a refundable cred- Act (60 Stat. 230, 42 U.S.C. 1751 et seq.) it pursuant to section 24 of the Internal as amended by Pub. L. 90–302 (82 Stat. Revenue Code (relating to the child tax 117, 42 U.S.C. 1761(h)(3)). credit). (6) The value of assistance to children under the Child Nutrition Act of (b) Any unspent funds described in 1966 (80 Stat. 889, 42 U.S.C. 1780(b)). paragraph (a) of this section that are (7) Any grant or loan to any under- retained until the first moment of the graduate student for educational pur- tenth month following their receipt are poses made or insured under any pro- countable as resources at that time. gram administered by the Commis- (c) Exception: For any payments de- sioner of Education as provided by sec- scribed in paragraph (a) of this section tion 507 of the Higher Education received before March 2, 2004, we will Amendments of 1968, Pub. L. 90–575 (82 exclude for the month following the Stat. 1063). month of receipt the unspent portion of (8) Incentive allowances received any such payment. under title I of the Comprehensive Em- [75 FR 1273, Jan. 11, 2010] ployment and Training Act of 1973 (87 Stat. 849, 29 U.S.C. 821(a)). § 416.1236 Exclusions from resources; (9) Compensation provided to volun- provided by other statutes. teers by the Corporation for National (a) For the purpose of § 416.1210(j), and Community Service (CNCS), unless payments or benefits provided under a determined by the CNCS to constitute Federal statute other than title XVI of the minimum wage in effect under the the Social Security Act where exclu- Fair Labor Standards Act of 1938 (29 sion from resources is required by such U.S.C. 201 et seq.), or applicable State statute include: law, pursuant to 42 U.S.C. 5044(f)(1). (1) Payments made under title II of (10) Distributions received by an indi- the Uniform Relocation Assistance and vidual Alaska Native or descendant of Real Property Acquisition Policies Act an Alaska Native from an Alaska Na- of 1970 (84 Stat. 1902, 42 U.S.C. 4636). tive Regional and Village Corporation (2) Payments made to Native Ameri- pursuant to the Alaska Native Claims cans as listed in paragraphs (b) and (c) Settlement Act, as follows: cash, in- of section IV of the appendix to subpart cluding cash dividends on stock re- K of part 416, as provided by Federal ceived from a Native Corporation, is statutes other than the Social Security disregarded to the extent that it does Act. not, in the aggregate, exceed $2,000 per (3) Indian judgment funds held in individual each year (the $2,000 limit is trust by the Secretary of the Interior applied separately each year, and cash or distributed per capita pursuant to a distributions up to $2,000 which an indi- plan prepared by the Secretary of the vidual received in a prior year and re- Interior and not disapproved by a joint tained into subsequent years will not resolution of the Congress under Public be counted as resources in those years);

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stock, including stock issued or dis- cation Technical Amendments Act of tributed by a Native Corporation as a 1987 (20 U.S.C. 1087uu), or under Bureau dividend or distribution on stock; a of Indian Affairs student assistance partnership interest; land or an inter- programs. est in land, including land or an inter- (15) Amounts paid as restitution to est in land received from a Native Cor- certain individuals of Japanese ances- poration as a dividend or distribution try and Aleuts under the Civil Lib- on stock; and an interest in a settle- erties Act of 1988 and the Aleutian and ment trust. This exclusion is pursuant Pribilof Islands Restitution Act, sec- to the exclusion under section 15 of the tions 105(f) and 206(d) of Public Law Alaska Native Claims Settlement Act 100–383 (50 U.S.C. app. 1989 b and c). Amendments of 1987, Public Law 100– (16) Payments made on or after Janu- 241 (43 U.S.C. 1626(c)), effective Feb- ary 1, 1989, from the Agent Orange Set- ruary 3, 1988. tlement Fund or any other fund estab- (11) Value of Federally donated foods lished pursuant to the settlement in distributed pursuant to section 32 of the In Re Agent Orange product liabil- Pub. L. 74–320 or section 416 of the Ag- ity litigation, M.D.L. No. 381 (E.D.N.Y.) riculture Act of 1949 (7 CFR 250.6(e)(9) under Public Law 101–201 (103 Stat. as authorized by 5 U.S.C. 301). 1795) and section 10405 of Public Law (12) All funds held in trust by the 101–239 (103 Stat. 2489). Secretary of the Interior for an Indian (17) Payments made under section 6 tribe and distributed per capita to a of the Radiation Exposure Compensa- member of that tribe under Public Law tion Act, Public Law 101–426 (104 Stat. 98–64. Funds held by Alaska Native Re- 925, 42 U.S.C. 2210). gional and Village Corporations (18) Payments made to individuals (ANRVC) are not held in trust by the because of their status as victims of Secretary of the Interior and therefore Nazi persecution excluded pursuant to ANRVC dividend distributions are not section 1(a) of the Victims of Nazi Per- excluded from resources under this ex- secution Act of 1994, Public Law 103–286 clusion. For the treatment of ANRVC (108 Stat. 1450). dividend distributions, see paragraph (19) Any matching funds and interest (a)(10) of this section. earned on matching funds from a dem- (13) Home energy assistance pay- onstration project authorized by Public ments or allowances under the Low-In- Law 105–285 that are retained in an In- come Home Energy Assistance Act of dividual Development Account, pursu- 1981, as added by title XXVI of the Om- ant to section 415 of Public Law 105–285 nibus Budget Reconciliation Act of (112 Stat. 2771). 1981, Public Law 97–35 (42 U.S.C. (20) Any earnings, Temporary Assist- 8624(f)). ance for Needy Families matching (14) Student financial assistance for funds, and accrued interest retained in attendance costs received from a pro- an Individual Development Account, gram funded in whole or in part under pursuant to section 103 of Public Law title IV of the Higher Education Act of 104–193 (42 U.S.C. 604(h)(4)). 1965, as amended, or under Bureau of (21) Payments made to individuals Indian Affairs student assistance pro- who were captured and interned by the grams if it is made available for tui- Democratic Republic of Vietnam as a tion and fees normally assessed a stu- result of participation in certain mili- dent carrying the same academic work- tary operations, pursuant to section 606 load, as determined by the institution, of Public Law 105–78 and section 657 of including costs for rental or purchase Public Law 104–201 (110 Stat. 2584). of any equipment, materials, or sup- (22) Payments made to certain Viet- plies required of all students in the nam veterans’ children with spina same course of study; and an allowance bifida, pursuant to section 421 of Public for books, supplies, transportation, and Law 104–204 (38 U.S.C. 1805(d)). miscellaneous personal expenses for a (23) Payments made to the children student attending the institution on at of women Vietnam veterans who suffer least a half-time basis, as determined from certain birth defects, pursuant to by the institution, under section 14(27) section 401 of Public Law 106–419, (38 of Public Law 100–50, the Higher Edu- U.S.C. 1833(c)).

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(24) Assistance provided for flood sources for a period of 9 months begin- mitigation activities under section 1324 ning with the month following the of the National Flood Insurance Act of month of receipt. 1968, pursuant to section 1 of Public [61 FR 1712, Jan. 23, 1996] Law 109–64 (119 Stat. 1997, 42 U.S.C. 4031). § 416.1240 Disposition of resources. (25) Payments made to individuals under the Energy Employees Occupa- (a) Where the resources of an indi- tional Illness Compensation Program vidual (and spouse, if any) are deter- Act of 2000, pursuant to section 1, app. mined to exceed the limitations pre- [Div. C. Title XXXVI section 3646] of scribed in § 416.1205, such individual Public Law 106–398 (114 Stat. 1654A–510, (and spouse, if any) shall not be eligible 42 U.S.C. 7385e). for payment except under the condi- (b) In order for payments and bene- tions provided in this section. Payment fits listed in paragraph (a) to be ex- will be made to an individual (and cluded from resources, such funds must spouse, if any) if the individual agrees be segregated and not commingled with in writing to: other countable resources so that the (1) Dispose of, at current market excludable funds are identifiable. value, the nonliquid resources (as defined in § 416.1201(c)) in excess of the [41 FR 13338, Mar. 30, 1976, as amended at 42 limitations prescribed in § 416.1205 FR 44221, Sept. 2, 1977; 42 FR 54945, Oct. 12, 1977; 43 FR 45555, Oct. 3, 1978; 57 FR 53851, within the time period specified in Nov. 13, 1992; 57 FR 55089, Nov. 24, 1992; 59 FR § 416.1242; and 8538, Feb. 23, 1994; 62 FR 30983, June 6, 1997; 70 (2) Repay any overpayments (as de- FR 41138, July 18, 2005; 75 FR 1274, Jan. 11, fined in § 416.1244) with the proceeds of 2010] such disposition. (b) Payment made for the period dur- § 416.1237 Assistance received on ac- ing which the resources are being dis- count of major disaster. posed of will be conditioned upon the (a) Assistance received under the Dis- disposition of those resources as pre- aster Relief and Emergency Assistance scribed in paragraphs (a)(1) and (a)(2) of Act or other assistance provided under this section. Any payments so made a Federal statute because of a catas- are (at the time of disposition) consid- trophe which is declared to be a major ered overpayments to the extent they disaster by the President of the United would not have been paid had the dis- States or comparable assistance re- position occurred at the beginning of ceived from a State or local govern- the period for which such payments ment, or from a disaster assistance or- were made. ganization, is excluded in determining (c) If an individual fails to dispose of countable resources under § 416.1210. the resources as prescribed in para- (b) Interest earned on the assistance graphs (a)(1) and (a)(2) of this section, is excluded from resources. regardless of the efforts he or she [57 FR 53852, Nov. 13, 1992] makes to dispose of them, the resources will be counted at their current § 416.1238 Exclusion of certain housing market value and the individual will be assistance. ineligible due to excess resources. We The value of any assistance paid with will use the original estimate of cur- respect to a dwelling under the stat- rent market value unless the indi- utes listed in § 416.1124(c)(14) is excluded vidual submits evidence establishing a from resources. lower value (e.g., an estimate from a disinterested knowledgeable source). [55 FR 28378, July 11, 1990] [75 FR 1274, Jan. 11, 2010] § 416.1239 Exclusion of State or local relocation assistance payments. § 416.1242 Time limits for disposing of In determining the resources of an resources. individual (or spouse, if any), reloca- (a) In order for payment conditioned tion assistance provided by a State or on the disposition of nonliquid re- local government (as described in sources to be made, the individual § 416.1124(c)(18)) is excluded from re- must agree in writing to dispose of real

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property within 9 months and personal § 416.1244 Treatment of proceeds from property within 3 months. The time pe- disposition of resources. riod for disposal of property begins on (a) Upon disposition of the resources, the date we accept the individual’s the net proceeds to the individual from signed written agreement to dispose of the sale are considered available to the property. If we receive a signed repay that portion of the payments agreement on or after the date we have that would not have been made had the determined that the individual meets disposition occurred at the beginning the eligibility requirements described of the period for which payment was in § 416.202 of this part, with the excep- made. tion of the resource requirements de- (b) The net proceeds from disposition scribed in this subpart, our acceptance will normally be the sales price less of the written agreement will occur on any encumbrance on the resource and the date the individual receives our the expenses of sale such as transfer written notice that the agreement is in taxes, fees, advertising costs, etc. effect. If we receive a signed agreement where, however, a resource has been prior to the date we determine that all sold (or otherwise transferred) by an nonresource requirements are met, our individual to a friend or relative for acceptance of the written agreement less than its current market value, the will not occur until the date the indi- net proceeds will be the current mar- vidual receives our written notice that ket value less costs of sale and encum- all nonresource requirements are met brance. and that the agreement is in effect. (c) After deducting any amount nec- When the written notice is mailed to essary to raise the individual’s (and the individual, we assume that the no- spouse’s, if any) resources to the appli- tice was received 5 days after the date cable limits described in § 416.1205, as of shown on the notice unless the indi- the beginning of the disposition period, vidual shows us that he or she did not the balance of the net proceeds will be receive it within the 5-day period. used to recover the payments made to (b) The 3-month time period for dis- the individual (and spouse, if any). Any position of personal property will be remaining proceeds are considered liq- extended an additional 3 months where uid resources. it is found that the individual had (d) The overpayment to be recovered ‘‘good cause’’ for failing to dispose of is equal to the balance of the net pro- the resources within the original time ceeds (as described in paragraph (c) of period. The rules on the valuation of this section) or the total payments real property not disposed of within 9 made to the individual (and spouse, if months are described in § 416.1245(b). any) for the period of disposition, (c) An individual will be found to whichever is less. have ‘‘good cause’’ for failing to dis- [40 FR 48915, Oct. 20, 1975, as amended at 50 pose of a resource if, despite reasonable FR 38982, Sept. 28, 1985] and diligent effort on his part, he was prevented by circumstances beyond his § 416.1245 Exceptions to required dis- control from disposing of the resource. position of real property. (d) In determining whether the ap- (a) Loss of housing for joint owner. Ex- propriate time limits discussed in para- cess real property which would be a re- graphs (a) and (b) of this section have source under § 416.1201 is not a count- elapsed, no month will be counted for able resource for conditional benefit which an individual’s benefits have purposes when: it is jointly owned; and been suspended as described in sale of the property by an individual § 416.1320, provided that the reason for would cause the other owner undue the suspension is unrelated to the re- hardship due to loss of housing. Undue quirements in § 416.1245(b) and that the hardship would result when the prop- individual’s eligibility has not been erty serves as the principal place of terminated as defined in §§ 416.1331 residence for one (or more) of the other through 416.1335. owners, sale of the property would re- [40 FR 48915, Oct. 20, 1975, as amended at 53 sult in loss of that residence, and no FR 13257, Apr. 22, 1988; 55 FR 10419, Mar. 21, other housing would be readily avail- 1990; 58 FR 60105, Nov. 15, 1993] able for the displaced other owner (e.g.,

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the other owner does not own another (A) List the property with an agent; house that is legally available for occu- or pancy). However, if undue hardship (B) Begin to advertise it in at least ceases to exist, its value will be in- one of the appropriate local media, cluded in countable resources as de- place a ‘‘For Sale’’ sign on the property scribed in § 416.1207. (if permitted), begin to conduct ‘‘open (b) Reasonable efforts to sell. (1) Excess houses’’ or otherwise show the property real property is not included in count- to interested parties on a continuous able resources for so long as the indi- basis, and attempt any other appro- vidual’s reasonable efforts to sell it priate methods of sale; and have been unsuccessful. The basis for (iii) The individual accepts any rea- determining whether efforts to sell are reasonable, as well as unsuccessful, sonable offer to buy and has the burden will be a 9-month disposal period de- of demonstrating that an offer was re- scribed in § 416.1242. If it is determined jected because it was not reasonable. If that reasonable efforts to sell have the individual receives an offer that is been unsuccessful, further SSI pay- at least two-thirds of the latest esti- ments will not be conditioned on the mate of current market value, the indi- disposition of the property and only vidual must present evidence to estab- the benefits paid during the 9-month lish that the offer was unreasonable disposal period will be subject to recov- and was rejected. ery. In order to be eligible for pay- (4) An individual will be found to ments after the conditional benefits have ‘‘good cause’’ for failing to make period, the individual must continue to reasonable efforts to sell under para- make reasonable efforts to sell. graph (b)(3) of this section if he or she (2) A conditional benefits period in- was prevented by circumstances be- volving excess real property begins as yond his or her control from taking the described at § 416.1242(a). The condi- steps specified in paragraph (b)(3) (i) tional benefits period ends at the ear- through (ii) of this section. liest of the following times: (5) An individual who has received (i) Sale of the property; conditional benefits through the expi- (ii) Lack of continued reasonable ef- ration of the 9 month disposal period forts to sell; and whose benefits have been sus- (iii) The individual’s written request for cancellation of the agreement; pended as described at § 416.1320 for rea- (iv) Countable resources, even with- sons unrelated to the property ex- out the conditional exclusion, fall cluded under the conditional benefits below the applicable limit (e.g., liquid agreement, but whose eligibility has resources have been depleted); or not been terminated as defined at (v) The 9-month disposal period has §§ 416.1331 through 416.1335, can con- expired. tinue to have the excess real property (3) Reasonable efforts to sell property not included in countable resources consist of taking all necessary steps to upon reinstatement of SSI payments if sell it in the geographic area covered reasonable efforts to sell the property by the media serving the area in which resume within 1 week of reinstatement. the property is located, unless the indi- Such an individual will not have to go vidual has good cause for not taking through a subsequent conditional bene- these steps. More specifically, making fits period. However, the individual a reasonable effort to sell means that: whose eligibility has been terminated (i) Except for gaps of no more than 1 as defined at §§ 416.1331 through 416.1335 week, an individual must attempt to and who subsequently reapplies would sell the property by listing it with a be subject to a new conditional benefits real estate agent or by undertaking to period if there is still excess real prop- sell it himself; erty. (ii) Within 30 days of receiving notice that we have accepted the individual’s [55 FR 10419, Mar. 21, 1990, as amended at 62 signed written agreement to dispose of FR 30983, June 6, 1997; 64 FR 31975, June 15, the property, and absent good cause for 1999] not doing so, the individual must:

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§ 416.1246 Disposal of resources at less a legal debt owed by the eligible indi- than fair market value. vidual in exchange for the asset is con- (a) General. (1) An individual (or eligi- sidered compensation. ble spouse) who gives away or sells a (d)(1) Uncompensated value—General. nonexcluded resource for less than fair The uncompensated value is the fair market value for the purpose of estab- market value of a resource at the time lishing SSI or Medicaid eligibility will of transfer minus the amount of com- be charged with the difference between pensation received by the individual the fair market value of the resource (or eligible spouse) in exchange for the and the amount of compensation re- resource. However, if the transferred ceived. The difference is referred to as resource was partially excluded, we uncompensated value and is counted will not count uncompensated value in toward the resource limit (see an amount greater than the countable § 416.1205) for a period of 24 months value of the resources at the time of from the date of transfer. transfer. (2) If the transferred resource (asset) (2) Suspension of counting as a resource is returned to the individual, the un- the uncompensated value where necessary compensated value is no longer count- to avoid undue hardship. We will sus- ed as of the date of return. If the trans- pend counting as a resource the uncom- ferred asset is cash, the uncompensated pensated value of the transferred asset value is reduced as of the date of re- for any month in the 24-month period if turn by the amount of cash that is re- such counting will result in undue turned. No income will be charged as a hardship. We will resume counting the result of such returns. The returned uncompensated value as a resource for asset will be evaluated as a resource any month of the 24-month period in according to the rules described in which counting will not result in undue §§ 416.1201 through 416.1230 as of the hardship. We will treat as part of the first day of the following month. 24-month period any months during (3) If the individual receives addi- which we suspend the counting of un- tional compensation in the form of compensated value. cash for the transferred asset the un- (3) When undue hardship exists. Undue compensated value is reduced, as of the hardship exists when: date the additional cash compensation (i) An individual alleges that failure is received, by the amount of that addi- to receive SSI benefits would deprive tional compensation. the individual of food or shelter; and (b) Fair market value. Fair market (ii) The applicable Federal benefit value is equal to the current market rate (plus the federally-administered value of a resource at the time of State supplementary payment level) transfer or contract of sale, if earlier. exceeds the sum of: The individual’s See § 416.1101 for definition of current monthly countable and excludable in- market value. come and monthly countable and ex- (c) Compensation. The compensation cludable liquid resources. for a resource includes all money, real (e) Presumption that resource was or personal property, food, shelter, or transferred to establish SSI or Medicaid services received by the individual (or eligibility. Transfer of a resource for eligible spouse) at or after the time of less than fair market value is presumed transfer in exchange for the resource if to have been made for the purpose of the compensation was provided pursu- establishing SSI or Medicaid eligibility ant to a binding (legally enforceable) unless the individual (or eligible agreement in effect at the time of spouse) furnishes convincing evidence transfer. Compensation also includes that the resource was transferred ex- all money, real or personal property, clusively for some other reason. Con- food, shelter, or services received prior vincing evidence may be pertinent doc- to the actual transfer if they were pro- umentary or non-documentary evi- vided pursuant to a binding (legally en- dence which shows, for example, that forceable) agreement whereby the eli- the transfer was ordered by a court, or gible individual would transfer the re- that at the time of transfer the indi- source or otherwise pay for such items. vidual could not have anticipated be- In addition, payment or assumption of coming eligible due to the existence of

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other circumstances which would have § 416.1248 Exclusion of gifts to chil- precluded eligibility. The burden of re- dren with life-threatening condi- butting the presumption that a re- tions. source was transferred to establish SSI In determining the resources of an or Medicaid eligibility rests with the individual who has not attained 18 individual (or eligible spouse). years of age and who has a life-threat- (f) Applicability. This section applies ening condition, we will exclude any only to transfers of resources that oc- gifts from an organization described in curred before July 1, 1988. Paragraphs section 501(c)(3) of the Internal Rev- (d)(2) and (d)(3) of this section, regard- enue Code of 1986 which is exempt from ing undue hardship, are effective for taxation under section 501(a) of such such transfers on or after April 1, 1988. Code. We will exclude any in-kind gift that is not converted to cash and cash [48 FR 40885, Sept. 12, 1983, as amended at 50 gifts to the extent that the total gifts FR 38982, Sept. 26, 1985; 53 FR 13257, Apr. 22, excluded pursuant to this paragraph do 1988; 55 FR 10419, Mar. 21, 1990] not exceed $2000 in any calendar year. In-kind gifts converted to cash are con- § 416.1247 Exclusion of a dedicated ac- sidered under income counting rules in count in a financial institution. the month of conversion. (a) General. In determining the re- [70 FR 41139, July 18, 2005] sources of an individual (or spouse, if any), the funds in a dedicated account § 416.1249 Exclusion of payments rein a financial institution established ceived as restitution for misuse of and maintained in accordance with benefits by a representative payee. § 416.640(e) will be excluded from re- In determining the resources of an sources. This exclusion applies only to individual (and spouse, if any), the benefits which must or may be depos- unspent portion of any payment re- ited in such an account, as specified in ceived by the individual as restitution § 416.546, and accrued interest or other for title II, title VIII or title XVI bene- earnings on these benefits. If these fits misused by a representative payee funds are commingled with any other under § 404.2041, § 408.641 or § 416.641, refunds (other than accumulated earn- spectively, is excluded for 9 months fol- ings or interest) this exclusion will not lowing the month of receipt. apply to any portion of the funds in the [70 FR 41139, July 18, 2005] dedicated account. (b) Exclusion during a period of suspen- § 416.1250 How we count grants, schol- sion or termination—(1) Suspension. The arships, fellowships or gifts. exclusion of funds in a dedicated ac- (a) When we determine your re- count and interest and other earnings sources (or your spouse’s, if any), we thereon continues to apply during a pe- will exclude for 9 months any portion riod of suspension due to ineligibility of any grant, scholarship, fellowship, as described in § 416.1320, administra- or gift that you use or set aside to pay tive suspension, or a period of eligi- the cost of tuition, fees, or other nec- bility for which no payment is due, so essary educational expenses at any long as the individual’s eligibility has educational institution, including vo- not been terminated as described in cational or technical institutions. The §§ 416.1331 through 416.1335. 9 months begin the month after the month you receive the educational as- (2) Termination. Once an individual’s sistance. eligibility has been terminated, any (b)(1) We will count as a resource any funds previously excluded under para- portion of a grant, scholarship, fellow- graph (a) of this section may not be ex- ship, or gift you (or your spouse, if cluded if the individual establishes a any) did not use or set aside to pay tui- subsequent period of eligibility by fil- tion, fees, or other necessary edu- ing a new application. cational expenses. We will count such [61 FR 67207, Dec. 20, 1996] portion of a grant, scholarship, fellowship or gift as a resource in the month following the month of receipt.

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(2) If you use any of the funds that only; it does not include any State sup- were set aside for tuition, fees, or other plementation. necessary educational expenses for an- (b) For purposes of this section, an other purpose within the 9-month ex- individual will cease to reside continu- clusion period, we will count such por- ously in a State if he leaves the State tion of the funds used for another pur- with the present intention to abandon pose as income in the month you use his home there. In the absence of evi- them. dence to the contrary, (3) If any portion of the funds are no (1) If an individual leaves the State longer set aside for paying tuition, for a period of 90 calendar days or less, fees, or other necessary educational ex- his absence from the State will be con- penses within the 9-month exclusion sidered temporary and he will be con- period, we will count the portion of the sidered to continue to reside in such funds no longer set aside as income in State; and the month when they are no longer set (2) If an individual leaves the State aside for paying tuition, fees, or other for a period in excess of 90 calendar necessary educational expenses. We days, he will no longer be considered to will consider any remaining funds that reside continuously in such State. are no longer set aside or used to pay tuition, fees, or other educational ex- (c) State plan; defined. As used in this penses as a resource in the month fol- subpart, an approved State plan as in ef- lowing the month we count them as in- fect in October 1972 and State plan for come. October 1972 means a State plan as ap- (4) We will count any portion of proved under the provisions of 45 CFR grants, scholarships, fellowships, or Ch. II as in effect in October 1972. gifts remaining unspent after the 9- [41 FR 47424, Oct. 29, 1976, as amended at 52 month exclusion period as a resource FR 29841, Aug. 12, 1987] beginning with the 10th month after you received the educational assist- § 416.1261 Application of special re- ance. source provision. [71 FR 45378, Aug. 9, 2006] In determining the resources of an individual (and spouse, if any) who § 416.1260 Special resource provision meets the conditions specified in for recipients under a State plan. § 416.1260(a), either the State plan re- (a) General. In the case of any indi- source limit and exclusions (as speci- vidual (or individual and spouse, as the fied in § 416.1260) or the resource limit case may be) who for the month of De- (as specified in § 416.1205) and exclu- cember 1973 was a recipient of aid or sions (as specified in § 416.1210), which- assistance under a State plan approved ever is most advantageous to the indi- under title I, X, XIV, or XVI, of the Act vidual (and spouse, if any) will be used. (see § 416.121), the resources of such individual (or individual and spouse, as § 416.1262 Special resource provision the case may be) shall be deemed not applicable in cases involving essen- to exceed the amount specified in tial persons. § 416.1205 during any period that the re- (a) Essential persons continuously meet sources of such individual (or indi- criteria of eligibility. In determining the vidual and spouse, as the case may be) resources of an individual (and spouse, do not exceed the maximum amount of if any) who meet the conditions speci- resources specified in such State plan fied in § 416.1260 and whose payment as in effect in October 1972, provided standard is increased because such in- that such individual: dividual has in his home an essential (1) Has, since December 1973, resided person (as defined in § 416.222), either continuously in the State under whose the State plan resource limit and ex- plan he was eligible for the month of clusions (as specified in § 416.1260) ap- December 1973; and plicable to cases in which the needs of (2) Has not, since December 1973, been an essential person are taken into ac- ineligible for an SSI benefit for a pe- count in determining the individual’s riod exceeding 6 consecutive months. needs, or the resource limit as specified An SSI benefit means a Federal benefit in § 416.1205 and exclusions as specified

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in § 416.1210, whichever is most advan- Subpart M—Suspensions and tageous to the individual (and spouse), Terminations will be used. (b) Essential person fails to meet criteria AUTHORITY: Secs. 702(a)(5), 1129A, 1611–1614, of eligibility. If for any month after De- 1619, and 1631 of the Social Security Act (42 cember 1973 a person fails to meet the U.S.C. 902(a)(5), 1320a–8a, 1382–1382c, 1382h, criteria for an essential person as spec- and 1383). ified in § 416.222, in determining the re- SOURCE: 40 FR 1510, Jan. 8, 1975, unless oth- sources of an individual (and spouse, if erwise noted. any) either the State plan resource limit and criteria as specified in § 416.1320 Suspensions; general. § 416.1260 applicable to the individual or (a) When suspension is proper. Suspen- individual and spouse, as the case may sion of benefit payments is required be, or the resource limit as specified in when a recipient is alive but no longer § 416.1205 and exclusions as specified in meets the requirements of eligibility § 416.1210, whichever is most advan- under title XVI of the Act (see subpart tageous to the individual (and spouse), B of this part) and termination in ac- will be used. cordance with §§ 416.1331 through [39 FR 33797, Sept. 20, 1974, as amended at 51 416.1335 does not apply. (This subpart FR 10616, Mar. 28, 1986] does not cover suspension of payments for administrative reasons, as, for ex- § 416.1264 Spouse ineligible under a ample, when mail is returned as un- State plan in December 1973. deliverable by the Postal Service and the Administration does not have a In the case of an individual who valid mailing address for a recipient or meets the conditions specified in when the representative payee dies and § 416.1260 but whose spouse does not a search is underway for a substitute meet such conditions, whichever of the representative payee.) following is most advantageous for the (b) Effect of suspension. (1) When pay- individual (and spouse, if any) will be ments are correctly suspended due to applied: the ineligibility of a recipient, pay- (a) The resource limitation and ex- ments shall not be resumed until the clusions for an individual as in effect individual again meets all require- under the approved State plan for Oc- ments for eligibility except the filing tober 1972, or of a new application. Such recipient, (b) The resource limitation (as speci- upon requesting reinstatement, shall fied in § 416.1205) and exclusions (as be required to submit such evidence as specified in § 416.1210) for an individual may be necessary (except evidence of and eligible spouse or an individual liv- age, disability, or blindness) to estab- ing with an ineligible spouse. lish that he or she again meets all requirements for eligibility under this § 416.1266 Individual under special re- part. Payments to such recipient shall source provision dies after Decem- be reinstated effective with the first ber 1973. day such recipient meets all require- Where only one person, either the eli- ments for eligibility except the filing gible individual or the eligible spouse, of a new application. meets the conditions specified in (2) A month of ineligibility for pur- § 416.1260 and that person dies after De- poses of determining when to prorate cember 1973, the State plan resource the SSI benefit payment for a subse- limitation and exclusions will not be quent month, is a month for which the applied to determine the amount of re- individual is ineligible for any Federal sources of the surviving individual. The SSI benefit and any federally adminis- resource limitation (as specified in tered State supplementation. § 416.1205) and exclusions (as specified (c) Actions which are not suspensions. in § 416.1210) will be applied for the now Payments are not ‘‘suspended,’’ but the eligible individual beginning with the claim is disallowed, when it is found month such person is considered the el- that: igible individual as defined in subpart (1) The claimant was notified in ac- A of this part. cordance with § 416.210(c) at or about

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the time he filed application and before ment amount, or if you cancel the per- he received payment of a benefit that mission, you cannot be eligible for SSI he should file a claim for a payment of payments (see § 416.207) and we will stop the type discussed in § 416.1330 and such your payments. Also, if anyone whose claimant has failed, without good income and resources we consider as cause (see § 416.210(e)(2)), to take all ap- being available to you (see §§ 416.1160, propriate steps within 30 days after re- 416.1202, 416.1203 and 416.1204) doesn’t ceipt of such notice to file and pros- give us permission to contact any fi- ecute an application for such payment; nancial institution and request any fi- (2) Upon initial application, payment nancial records about that person when of benefits was conditioned upon dis- we think it is necessary to determine posal of specified resources which ex- your SSI eligibility or payment ceeded the permitted amount and the amount, or that person cancels the per- claimant did not comply with the mission, you cannot be eligible for SSI agreed-upon conditions; payments and we will stop your pay- (3) Payment was made to an indi- ments. We will not find you ineligible vidual faced with a financial emer- and/or stop your payments if the per- gency who was later found to have been son whose income and resources we not eligible for payment; or consider as being available to you fails (4) Payment was made to an indi- to give or continue permission and vidual presumed to be disabled and good cause, as discussed in § 416.207(h), such disability is not established. exists. (d) Exception. Even though conditions (b) We will suspend your payments described in paragraph (a) of this sec- starting with the month after the tion apply because your impairment is month in which we notify you in writ- no longer disabling or you are no ing that: longer blind under § 416.986(a)(1), (a)(2) or (b), we will not suspend your bene- (1) You failed to give us permission fits for this reason if— to contact any financial institution (1) You are participating in an appro- and request any financial records about priate program of vocational rehabili- you, or tation services, employment services, (2) The person(s) whose income and or other support services, as described resources we consider as being avail- in § 416.1338(c) and (d); able to you failed to give us such per- (2) You began participating in the mission. program before the date your disability (c) If you are otherwise eligible, we or blindness ended; and will start your benefits in the month (3) We have determined under following the month in which: § 416.1338(e) that your completion of the (1) You give us permission to contact program, or your continuation in the any financial institution and request program for a specified period of time, any financial records about you, or will increase the likelihood that you (2) The person(s) whose income and will not have to return to the dis- resources we consider as being availability or blindness benefit rolls. able to you gives us such permission. [40 FR 1510, Jan. 8, 1975, and 47 FR 31544, July [68 FR 53509, Sept. 11, 2003] 21, 1982; 47 FR 52693, Nov. 23, 1982, as amended at 51 FR 13494, Apr. 21, 1986; 51 FR 17618, May § 416.1322 Suspension due to failure to 14, 1986; 56 FR 55453, Oct. 28, 1991. Redesig- comply with request for informa- nated at 68 FR 53509, Sept. 11, 2003; 70 FR tion. 36508, June 24, 2005] (a) Suspension of benefit payments is § 416.1321 Suspension for not giving us required effective with the month fol- permission to contact financial in- lowing the month in which it is deter- stitutions. mined in accordance with § 416.714(b) (a) If you don’t give us permission to that the individual is ineligible for contact any financial institution and payment due to his or her failure to request any financial records about comply with our request for necessary you when we think it is necessary to information. When we have informa- determine your SSI eligibility or pay- tion to establish that benefit payments

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are again payable, the benefit pay- are reinstated will not be prorated ments will be reinstated for any pre- under § 416.421. vious month for which the individual [40 FR 1510, Jan. 8, 1975, as amended at 51 FR continued to meet the eligibility re- 13494, Apr. 21, 1986; 65 FR 16815, Mar. 30, 2000] quirements of § 416.202. If the reason that an individual’s benefits were sus- § 416.1324 Suspension due to excess re- pended was failure to comply with our sources. request for information, the payments (a) Effective date. Except as specified for the months that benefits are rein- in §§ 416.1240 through 416.1242, suspen- stated will not be prorated under sion of benefit payments because of ex- § 416.421. cess resources is required effective (b) A suspension of payment for fail- with the month in which: ure to comply with our request for in- (1) Ineligibility exists because countable resources are in excess of: formation will not apply with respect (i) The resource limits prescribed in to any month for which a determina- § 416.1205 for an individual and an indi- tion as to eligibility for or amount of vidual and spouse, or payment can be made based on infor- (ii) In the case of an eligible indi- mation on record, whether or not fur- vidual (and eligible spouse, if any) who nished by an individual specified in for the month of December 1973 was a § 416.704(a). Where it is determined that recipient of aid or assistance under a the information of record does not per- State plan approved under title I, X, mit a determination with respect to XIV, or XVI of the Act, the maximum eligibility for or amount of payment, amount of resources specified in such notice of a suspension of payment due State plan as in effect for October 1972, to a recipient’s failure to comply with if greater than the amounts specified a request for information will be sent in § 416.1205, as applicable; or in accordance with §§ 416.1336 and (2) After eligibility has been estab- 416.1404. lished, payment of benefits was conditioned upon disposal of specified re- [51 FR 13494, Apr. 21, 1986] sources, which exceeded the permitted amount and the claimant did not com- § 416.1323 Suspension due to excess in- ply with the agreed upon conditions. come. (3) The amount of an individual’s or (a) Effective date. Suspension of pay- couple’s countable resources is deter- ments due to ineligibility for benefits mined as of the first moment of each because of excess income is effective calendar quarter. with the first month in which ‘‘count- (b) Resumption of payments. If benefits able income’’ (see §§ 416.1100 through are otherwise payable, they will be re- 416.1124 of this part) equals or exceeds sumed effective with the start of the month after the month in which a re- the amount of benefits otherwise pay- cipient’s countable resources no longer able for such month (see subpart D of exceed the limit that applies. If the this part). This rule applies regardless reason that a recipient’s benefits were of the month in which the income is re- suspended was excess resources, the ceived. payment for the first month that bene- (b) Resumption of payments. If benefits fits are reinstated will not be prorated are otherwise payable, they will be re- under § 416.421. sumed effective with the first month in [40 FR 1510, Jan. 8, 1975, as amended at 50 FR which a recipient’s monthly countable 38982, Sept. 26, 1985; 51 FR 13494, Apr. 21, 1986] income becomes less than the applicable Federal benefit rate (or the sum of § 416.1325 Suspension due to status as that rate and the level for any feder- a resident of a public institution. ally administered State supplementary (a) Except as provided in § 416.211 (b) payment) for that month. If the reason and (c), a recipient is ineligible for ben- that a recipient’s benefits were sus- efits for the first full calendar month pended was excess income, the pay- in which he or she is a resident of a ment for the first month that benefits public institution (as defined in § 416.201) throughout the calendar

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month (as defined in § 416.211(a)), and § 416.1327 Suspension due to absence payments are suspended effective with from the United States. such first full month. Such ineligi- (a) Suspension effective date. A recipi- bility continues for so long as such in- ent is not eligible for SSI benefits if he dividual remains a resident of a public is outside the United States for a full institution. calendar month. For purposes of this (b) Resumption of payments. If benefits paragraph— are otherwise payable, they will be re- (1) United States means the 50 States, sumed effective with the earliest day of the District of Columbia, and the the month in which a recipient is no Northern Mariana Islands: longer a resident of a public institu- (2) Day means a full 24–hour day; and tion. See § 416.421. A transfer from one (3) In determining whether a recipi- public institution to another or a tem- ent has been outside the United States porary absence from the institution for a full calendar month, it must be lasting 14 days or less, however, will established whether the recipient is not change his or her status as a resi- outside the United States for 30 con- dent, and the suspension will continue. secutive days or more. If yes, he or she [51 FR 13494, Apr. 21, 1986] will be treated as remaining outside the United States until he or she has § 416.1326 Suspension for failure to returned to and remained in the United comply with treatment for drug ad- States for a period of 30 consecutive diction or alcoholism. days. When a recipient has been out- (a) Basis for suspension. If you are dis- side the United States, the first period abled and drug addiction or alcoholism of 30 consecutive days of absence is is a contributing factor material to the counted beginning with the day after determination of disability as de- the day the recipient departs from the scribed in § 416.935, we will refer you to United States and ending with the day appropriate treatment as defined in before the day on which he or she re- § 416.937. You will not be an eligible in- turns to the United States. When a re- dividual and we will suspend your bene- cipient has returned to the United fits if you do not comply with the States, the second period of 30 consecu- terms, conditions and requirements of tive days starts on the day the indi- treatment prescribed by the institution vidual returned and ends on the 30th or facility. (See § 416.940 which explains day of continuous presence in the how we evaluate compliance with United States. Benefits will be sus- treatment.) pended effective with the first full cal- (b) Date of suspension. We will sus- endar month in which a recipient is pend your benefits for a period starting outside the United States. with the first month after we notify (b) Resumption of payments after ab- you in writing that you failed to com- sence from the United States. If benefits ply with prescribed treatment. are otherwise payable they will be re- (c) Resumption of benefits. If you are sumed— complying with prescribed treatment (1) Effective with the day following and are otherwise eligible for benefits, the 30th day of continuous presence in we will resume benefits effective with the United States after the recipient’s the first day of the month after you return if the absence was for 30 con- demonstrate and maintain compliance secutive days or more. (2) Effective with the day the recipi- with appropriate treatment for these ent returned to the United States, if periods— the absence from the United States was (1) 2 consecutive months for the first for a full calendar month, but for less determination of noncompliance; than 30 consecutive days (this can (2) 3 consecutive months for the sec- occur only for the calendar month of ond determination of noncompliance; February). and (3) 6 consecutive months for the third Example 1: Mike left the United States on and all subsequent determinations of March 1 and returned on April 1. Counting noncompliance. March 2 through March 31, he was outside the United States for 30 consecutive days; [60 FR 8152, Feb. 10, 1995] thus he is also deemed to be outside the

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United States for 30 additional consecutive retirement, or disability benefit, in- days. Therefore, for April 1 through April 30, cluding veterans’ compensation, old- he is deemed to be outside the United States age, survivors, and disability insurance and not eligible for the calendar month of April. Payments start effective May 1. benefit, railroad retirement annuity or Example 2: Mary left the United States on pension, or unemployment insurance April 15 and returned on July 1. Counting benefit. Benefit payments are sus- April 16 through June 30, she was actually pended due to such ineligibility effec- outside the United States and not eligible for tive with the month in which the re- the calendar months of May and June. Since she was absent for more than 30 consecutive cipient was notified in writing of the days, she is deemed to be outside the United requirement that he or she file and States for 30 additional consecutive days. take all appropriate steps to receive Therefore, for July 1 through July 30, she is the other benefits. See § 416.210(e). deemed to be outside the United States and (b) Resumption of payment. If benefits not eligible for payment until July 31. are otherwise payable, they will be re- [51 FR 13494, Apr. 21, 1986; 51 FR 17332, May sumed effective with the earliest day of 12, 1986] the month on which the recipient takes § 416.1329 Suspension due to loss of the necessary steps to obtain the other United States residency, United benefits. See § 416.421. States citizenship, or status as an alien lawfully admitted for perma- [51 FR 13495, Apr. 21, 1986] nent residence or otherwise permanently residing in the United States § 416.1331 Termination of your dis- under color of law. ability or blindness payments. (a) A recipient ceases to be an eligi- (a) General. The last month for which ble individual or eligible spouse, under we can pay you benefits based on dis- section 1614(a)(1)(B) of the Act, when he ability or blindness is the second or she ceases to meet the requirement month after the month in which your of § 416.202(b) with respect to United disability or blindness ends. (See States residency, United States citi- §§ 416.987(e), 416.994(b)(6) and 416.994a(g) zenship, or status as an alien lawfully for when disability ends, and § 416.986 admitted for permanent residence or for when blindness ends.) See § 416.1338 otherwise permanently residing in the for an exception to this rule if you are United States under color of law. Pay- participating in an appropriate pro- ments are suspended effective with the gram of vocational rehabilitation serv- first month after the last month in ices, employment services, or other which a recipient meets the require- support services. You must meet the ments of § 416.202(b). income, resources, and other eligibility (b) Resumption of payments. If benefits requirements to receive any of the ben- are otherwise payable, they will be resumed effective with the earliest day of efits referred to in this paragraph. We the month on which the recipient again will also stop payment of your benefits meets both the residence and citizen- if you have not cooperated with us in ship or lawfully admitted alien or color getting information about your dis- of law requirements. See § 416.421. ability or blindness. (b) After we make a determination that [51 FR 13495, Apr. 21, 1986] you are not now disabled or blind. If we § 416.1330 Suspension due to failure to determine that you do not meet the apply for and obtain other benefits. disability or blindness requirements of (a) Suspension effective date. A recipi- the law, we will send you an advance ent ceases to be an eligible individual written notice telling you why we be- or eligible spouse when, in the absence lieve you are not disabled or blind and of a showing of incapacity to do so, or when your benefits should stop. The other good cause, he or she fails within notice will explain your right to appeal 30 days after notice from the Social Se- if you disagree with our determination. curity Administration of probable eli- You may still appeal our determina- gibility, to take all appropriate steps tion that you are not now disabled or to apply for and, if eligible, to obtain blind even though your payments are payments such as an annuity, pension,

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continuing because of your participa- § 416.1332 Termination of benefit for tion in an appropriate program of voca- disabled individual: Exception. tional rehabilitation services, employ- Special SSI cash benefits (see ment services, or other support serv- § 416.261) will be payable for the period ices. You may also appeal a determina- beginning January 1, 1981, and ending tion that your completion of, or con- June 30, 1987 if you meet eligibility re- tinuation for a specified period of time quirements in § 416.262. These require- in, an appropriate program of voca- ments apply if you, as a disabled recipi- tional rehabilitation services, employ- ent, are no longer eligible for regular ment services, or other support serv- SSI benefits because you demonstrate ices will not increase the likelihood that you are able to engage in SGA. that you will not have to return to the disability or blindness benefit rolls [47 FR 15325, Apr. 9, 1982, as amended at 50 and, therefore, you are not eligible to FR 46763, Nov. 13, 1985] continue to receive benefits. § 416.1333 Termination at the request (c) When benefits terminate due to 12 of the recipient. consecutive suspension months for failure to comply with treatment for drug addic- A recipient, his legal guardian, or his tion or alcoholism. If you are disabled representative payee, may terminate and drug addiction or alcoholism is a his eligibility for benefits under this contributing factor material to the depart by filing a written request for ter- termination of disability as described mination which shows an under- in § 416.935, your benefits will terminate standing that such termination may after 12 consecutive months of suspen- extend to other benefits resulting from sion for noncompliance with treatment eligibility under this part. In the case requirements as described in § 416.1326. of a representative payee there must (d) When benefits terminate due to pay- also be a showing which establishes ment of 36 months of benefits based on that no hardship would result if an eli- disability when drug addiction or alco- gible recipient were not covered by the holism is a contributing factor material to supplemental security income pro- the determination of disability. If you are gram. When such a request is filed, the disabled and drug addiction or alco- recipient ceases to be an eligible indi- holism is a contributing factor mate- vidual, or eligible spouse, effective rial to the determination of disability with the month following the month as described in § 416.935, your benefits the request is filed with the Social Se- will terminate after you receive a total curity Administration unless the re- of 36 months of SSI benefits. The 36- cipient specifies some other month. month limit is no longer effective for However, the Social Security Adminis- benefits for months beginning after tration will not effectuate the request September 2004. for any month for which payment has (e) Months we count in determining the been or will be made unless there is re- 36 months of benefits when drug addiction payment, or assurance of repayment, of or alcoholism is a contributing factor ma- any amounts paid for those months terial to the determination of disability. (e.g., from special payments which Beginning March 1995, we will count all would be payable for such months months for which you were paid an SSI under section 228 of the Act). When the benefit, a federally-administered State Social Security Administration effec- supplement, a special SSI cash benefit, tuates a termination of eligibility at or you were in special SSI eligibility the request of the recipient, his legal status, toward the 36 months described guardian, or his representative payee, in paragraph (d) of this section. Months notice of the determination will be for which you were not eligible for ben- sent in accordance with § 416.1404, and efits will not count toward the 36 eligibility, once terminated, can be re- months. established, except as provided by § 416.1408, only upon the filing of a new [49 FR 22274, May 29, 1984, as amended at 60 application. FR 8152, Feb. 10, 1995; 65 FR 42792, July 11, 2000; 70 FR 36508, June 24, 2005] [42 FR 39100, Aug. 2, 1977]

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§ 416.1334 Termination due to death of payment level (subject to the effects of recipient. intervening events on the payment Eligibility for benefits ends with the which are not appealed within 10 days month in which the recipient dies. Pay- of receipt of a required advance notice ments are terminated effective with or which do not require advance notice, the month after the month of death. e.g., an increase in the benefit amount) until a decision on such initial appeal § 416.1335 Termination due to contin- is issued, unless the individual specifi- uous suspension. cally waives in writing his right to We will terminate your eligibility for continuation of payment at the pre- benefits following 12 consecutive viously established level in accordance months of benefit suspension for any with paragraph (c) of this section. (See reason beginning with the first month § 416.1337 for exceptions to the continu- you were no longer eligible for regular ation of payment level.) Where the re- SSI cash benefits, federally-adminis- quest for the appropriate appellate re- tered State supplementation, special view is filed more than 10 days after SSI cash benefits described in § 416.262, or special SSI eligibility status de- the notice is received but within the 60- scribed in § 416.265. We will count the day period specified in § 416.1413 or 12-month suspension period from the § 416.1425 of this part, there shall be no start of the first month that you are no right to continuation or reinstatement longer eligible for SSI benefits (see of payment at the previously estab- § 416.1320(a)) or the start of the month lished level unless good cause is estab- after the month your special SSI eligi- lished under the criteria specified in bility status described in § 416.265 § 416.1411 of this part for failure to ap- ended. This termination is effective peal within 10 days after receipt of the with the start of the 13th month after notice. For purposes of this paragraph, the suspension began. the date of receipt of the notice of in- [60 FR 8153, Feb. 10, 1995, as amended at 64 tent to suspend, reduce, or terminate FR 31975, June 15, 1999] payments shall be presumed to be 5 days after the date on the face of such § 416.1336 Notice of intended action af- notice, unless there is a reasonable fecting recipient’s payment status. showing to the contrary. (a) Advance written notice requirement. (c) Waiver of right to continued pay- Advance written notice of intent to ment. Notwithstanding any other provi- discontinue payment because of an sions of this section, the recipient, in event requiring suspension, reduction order to avoid the possibility of an (see subpart D of this part), or termi- overpayment of benefits, may waive nation of payments shall be given in all continuation of payment at the pre- cases, prior to effectuation of the ac- viously established level (subject to in- tion, except where the Social Security Administration has factual informa- tervening events which would have in- tion confirming the death of the recipi- creased the benefit for the month in ent, e.g., as enumerated in § 404.704(b) which the incorrect payment was of this chapter, or a report by a sur- made, in which case the higher amount viving spouse, a legal guardian, a par- shall be paid), after having received a ent or other close relative, or a land- full explanation of his rights. The re- lord. quest for waiver of continuation of (b) Continuation of payment pending payment shall be in writing, state that an appeal. The written notice of intent waiver action is being initiated solely to suspend, reduce, or terminate pay- at the recipient’s request, and state ments shall allow 60 days after the date that the recipient understands his of receipt of the notice for the recipi- right to receive continued payment at ent to request the appropriate appel- the previously established level. late review (see subpart N of this part). If appeal is filed within 10 days after [43 FR 18170, Apr. 28, 1978, as amended at 65 the individual’s receipt of the notice, FR 16815, Mar. 30, 2000] the payment shall be continued or reinstated at the previously established

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§ 416.1337 Exceptions to the continu- tion applicable to the recipient’s pay- ation of previously established payment category, as set forth in para- ment level. graph (b)(4) of this section, the Social (a) Multiple payments exception. (1) Security Administration shall deter- Where it is determined that a recipient mine the correct payment amount and, is receiving two or more regular as soon as practicable thereafter, send monthly payments in one month, the the recipient an advance written notice Social Security Administration shall of intent to make subsequent payment determine the correct payment amount in that amount. Payment for the fol- and, as soon as practicable thereafter, lowing month shall be made in the cor- send the recipient an advance written rect amount, except as provided in notice of intent to make subsequent paragraph (b)(3) of this section. payment in that amount. Payment for (2) The advance notice shall explain: the following month shall be made in (i) That an erroneous monthly pay- the correct amount, except as provided ment which exceeds the dollar limita- in paragraph (a)(3) of this section. tion applicable to the recipient’s pay- (2) The advance notice shall explain: ment category was made in the one or (i) That multiple payments were more months identified in the notice; made in the one or more months iden- (ii) The correct amount of monthly tified in the notice; benefits that the recipient is eligible to (ii) The correct amount of monthly receive; and benefits that the recipient is eligible to (iii) The recipient’s appeal rights. receive; and (3) If an appeal is filed within 10 days (iii) The recipient’s appeal rights. after receipt of the written notice of (3) If an appeal is filed within 10 days the intent (see § 416.1474 for criteria as after receipt of the written notice of to good cause for failure to file a time- intent, the highest of the two or more ly appeal), the amount of payment to check amounts, or the correct amount be continued, pending decision on ap- if higher (subject to the dollar limita- peal, shall be determined as follows: tion provisions), shall be continued (i) Recipient in payment status. Where until a decision on such initial level of the recipient is in payment status, the appeal is issued. See § 416.1474 for cri- payment shall be in the amount the re- teria as to good cause for failure to file cipient received in the month imme- a timely appeal. For purposes of this diately preceding the month the dollar paragraph, the date of receipt of the limitation was first exceeded (subject notice of intent shall be presumed to be to intervening events which would 5 days after the date on the face of have increased the benefit for the such notice, unless there is a reason- month in which the incorrect payment able showing to the contrary. was made, in which case the higher (4) The fact that a recipient is receiv- amount shall be paid). ing multiple payments is established if (ii) Recipient in nonpayment status. If the records of the Social Security Ad- the recipient’s benefits were suspended ministration show that: in the month immediately preceding (i) Two or more checks are being sent the month the dollar limitation was to an individual under the same name first exceeded, the payment shall be or a common logical spelling variation based on that amount which should of the name; have been paid in the month in which (ii) The social security number is the the incorrect payment was made. How- same or a pseudo number appears; ever, if the individual’s benefits had (iii) The checks are being sent to the been correctly suspended as provided in same address; §§ 416.1320 through 416.1330 or § 416.1339 (iv) The sex code for such individual and they should have remained sus- is the same; and pended but a benefit that exceeded the (v) The date of birth for such indi- dollar limitation was paid, no further vidual is the same. payment shall be made to him or her at (b) Dollar limitation exception. (1) this time and notice of the planned ac- Where it is determined that a recipient tion shall not contain any provision re- is receiving an erroneous monthly pay- garding continuation of payment pend- ment which exceeds the dollar limita- ing appeal.

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For purposes of this paragraph, the (1) You are participating in an appro- date of receipt of the notice of planned priate program of vocational rehabili- action shall be presumed to be 5 days tation services, employment services, after the date on the face of such no- or other support services, as described tice, unless there is a reasonable show- in paragraphs (c) and (d) of this sec- ing to the contrary. tion; (4) The payment categories and dol- (2) You began participating in the lar limitations are as follows: program before the date your disability or blindness ended; and PAYMENT CATEGORY AND DOLLAR LIMITATION (3) We have determined under para- (i) Federal supplemental security income ben- graph (e) of this section that your com- efit only—$200. pletion of the program, or your con- Recipients whose records indicate eligi- tinuation in the program for a specified bility for Federal supplemental security income benefits for the month before the period of time, will increase the likeli- month the dollar limitation was first exceed- hood that you will not have to return ed. to the disability or blindness benefit (ii) Federal supplemental security income ben- rolls. efit and optional supplementation, or optional (b) When will we stop your benefits? We supplementation only—$700 generally will stop your benefits with Recipients whose records indicate they were eligible for Federal supplemental secu- the earliest of these months— rity income benefits plus federally-adminis- (1) The month in which you complete tered optional supplementation, or eligible the program; or for federally-administered optional sup- (2) The month in which you stop par- plementation only, for the month before the ticipating in the program for any rea- month the dollar limitation was first exceed- son (see paragraph (d) of this section ed. (iii) Federal supplemental security income for what we mean by ‘‘participating’’ benefit and mandatory or other supplemen- in the program); or tation, or mandatory supplementation only— (3) The month in which we determine $2,000 under paragraph (e) of this section that Recipients whose records show eligibility your continuing participation in the for Federal supplemental security income program will no longer increase the benefits and federally-administered mandatory supplementation or essential person in- likelihood that you will not have to re- crement for the month before the month the turn to the disability or blindness ben- dollar limitation was first exceeded. This efit rolls. category also includes those eligible for fed- Exception to paragraph (b): In no case erally-administered mandatory supplemen- will we stop your benefits with a tation only and those eligible for Federal supplemental security income benefits plus month earlier than the second month an essential person increment and federally- after the month your disability or administered optional supplementation. blindness ends, provided that you are [43 FR 18170, Apr. 28, 1978, as amended at 65 otherwise eligible for benefits through FR 40495, June 30, 2000] such month. (c) What is an appropriate program of § 416.1338 If you are participating in vocational rehabilitation services, employ- an appropriate program of voca- ment services, or other support services? tional rehabilitation services, em- An appropriate program of vocational ployment services, or other support services. rehabilitation services, employment services, or other support services (a) When may your benefits based on means— disability or blindness be continued? Your (1) A program that is carried out benefits based on disability or blindness may be continued after your im- under an individual work plan with an pairment is no longer disabling, you employment network under the Ticket are no longer blind as determined to Work and Self-Sufficiency Program under § 416.986(a)(1), (a)(2) or (b), or under part 411 of this chapter; your disability has ended as deter- (2) A program that is carried out mined under § 416.987(b) and (e)(1) in an under an individualized plan for em- age-18 redetermination, if— ployment with—

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(i) A State vocational rehabilitation (2) If you are a student age 18 agency (i.e., a State agency admin- through 21 receiving services under an istering or supervising the administra- individualized education program de- tion of a State plan approved under scribed in paragraph (c)(4) of this sec- title I of the Rehabilitation Act of 1973, tion, you are participating in your pro- as amended (29 U.S.C. 720–751)) under 34 gram when you are taking part in the CFR part 361; or activities and services outlined in your (ii) An organization administering a program or plan. Vocational Rehabilitation Services (3) You are participating in your pro- Project for American Indians with Dis- gram under paragraph (d)(1) or (2) of abilities authorized under section 121 of this section during temporary inter- part C of title I of the Rehabilitation ruptions in your program. For an inter- Act of 1973, as amended (29 U.S.C. 741); (3) A program of vocational rehabili- ruption to be considered temporary, tation services, employment services, you must resume taking part in the ac- or other support services that is car- tivities and services outlined in your ried out under a similar, individualized plan or program, as appropriate, no written employment plan with— more than three months after the (i) An agency of the Federal govern- month the interruption occurred. ment (for example, the Department of (e) How will we determine whether or Veterans Affairs); not your completion of the program, or (ii) A one-stop delivery system or your continuation in the program for a specialized one-stop center described in specified period of time, will increase the section 134(c) of the Workforce Invest- likelihood that you will not have to return ment Act of 1998 (29 U.S.C. 2864(c)); or to the disability or blindness benefit rolls? (iii) Another provider of services ap- (1) We will determine that your com- proved by us; providers we may ap- pletion of the program, or your con- prove include, but are not limited to— tinuation in the program for a specified (A) A public or private organizations period of time, will increase the likeli- with expertise in the delivery or co- hood that you will not have to return ordination of vocational rehabilitation to the disability or blindness benefit services, employment services, or other rolls if your completion of or your con- support services; or tinuation in the program will provide (B) A public, private or parochial you with— school that provides or coordinates a program of vocational rehabilitation (i) Work experience (see § 416.965) so services, employment services, or other that you would more likely be able to support services carried out under an do past relevant work (see § 416.960(b)), individualized program or plan; despite a possible future reduction in (4) An individualized education pro- your residual functional capacity (see gram developed under policies and pro- § 416.945); or cedures approved by the Secretary of (ii) Education (see § 416.964) and/or Education for assistance to States for skilled or semi-skilled work experience the education of individuals with dis- (see § 416.968) so that you would more abilities under the Individuals with likely be able to adjust to other work Disabilities Education Act, as amended that exists in the national economy (20 U.S.C. 1400 et seq.); you must be age (see § 416.960(c)), despite a possible fu- 18 through age 21 for this provision to ture reduction in your residual func- apply. tional capacity (see § 416.945). (d) When are you participating in the (2) If you are a student age 18 program? (1) You are participating in a through age 21 participating in an indi- program described in paragraph (c)(1), vidualized education program described (c)(2) or (c)(3) of this section when you in paragraph (c)(4) of this section, we are taking part in the activities and will find that your completion of or services outlined in your individual continuation in the program will in- work plan, your individualized plan for employment, or your similar individ- crease the likelihood that you will not ualized written employment plan, as have to return to the disability or appropriate. blindness benefit rolls.

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(3) If you are receiving transition (B) Is fleeing, or has fled, to avoid services after having completed an in- custody or confinement after convic- dividualized education program as de- tion as described in paragraph (a)(2) of scribed in paragraph (e)(2) of this sec- this section; tion, we will determine that the transi- (C) Is violating, or has violated, a tion services will increase the likeli- condition of his or her probation or pa- hood that you will not have to return role as described in paragraph (a)(3) of to the disability benefit rolls if they this section; or meet the requirements in paragraph (ii) The first month during which the (e)(1) of this section. individual fled to avoid such prosecu- [70 FR 36508, June 24, 2005] tion, fled to avoid such custody or confinement after conviction, or violated a § 416.1339 Suspension due to flight to condition of his or her probation or pa- avoid criminal prosecution or cus- role, if indicated in such warrant or tody or confinement after convic- order, or in a decision by a court or tion, or due to violation of proba- other appropriate tribunal. tion or parole. (2) An individual will not be consid- (a) Basis for suspension. An individual ered to be ineligible for SSI benefits is ineligible for SSI benefits for any and benefit payments will not be sus- month during which he or she is— pended under this section for any (1) Fleeing to avoid prosecution for a month prior to August 1996. crime, or an attempt to commit a (c) Resumption of payments. If benefits crime, which is a felony under the laws are otherwise payable, they will be re- of the place from which the individual sumed effective with the first month flees (or which, in the case of the State throughout which the individual is de- of New Jersey, is a high misdemeanor termined to be no longer fleeing to under the laws of that State); or avoid such prosecution, fleeing to avoid (2) Fleeing to avoid custody or con- such custody or confinement after confinement after conviction for a crime, viction, or violating a condition of his or an attempt to commit a crime, or her probation or parole. which is a felony under the laws of the place from which the individual flees [65 FR 40495, June 30, 2000] (or which, in the case of the State of New Jersey, is a high misdemeanor § 416.1340 Penalty for making false or misleading statements or with- under the laws of that State); or holding information. (3) Violating a condition of probation or parole imposed under Federal or (a) Why would SSA penalize me? You State law. will be subject to a penalty if: (b) Suspension effective date. (1) Sus- (1) You make, or cause to be made, a pension of benefit payments because an statement or representation of a mate- individual is a fugitive as described in rial fact, for use in determining any paragraph (a)(1) or (a)(2) of this section initial or continuing right to, or the or a probation or parole violator as de- amount of, monthly insurance benefits scribed in paragraph (a)(3) of this sec- under title II or benefits or payments tion is effective with the first day of under title XVI, that you know or whichever of the following months is should know is false or misleading; or earlier— (2) You make a statement or rep- (i) The month in which a warrant or resentation of a material fact for use order for the individual’s arrest or ap- as described in paragraph (a)(1) of this prehension, an order requiring the indi- section with knowing disregard for the vidual’s appearance before a court or truth; or other appropriate tribunal (e.g., a pa- (3) You omit from a statement or rep- role board), or similar order is issued resentation made for use as described by a court or other duly authorized tri- in paragraph (a)(1) of this section, or bunal on the basis of an appropriate otherwise withhold disclosure (for ex- finding that the individual— ample, fail to come forward to notify (A) Is fleeing, or has fled, to avoid us) of, a fact which you know or should prosecution as described in paragraph know is material to the determination (a)(1) of this section; of any initial or continuing right to, or

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the amount of, monthly insurance ben- picion. Our decision to penalize you efits under title II or benefits or pay- will be documented with the basis and ments under title XVI, if you know, or rationale for that decision. In deter- should know, that the statement or mining whether you knowingly made a representation with such omission is false or misleading statement or omit- false or misleading or that the with- ted or failed to report a material fact holding of such disclosure is mis- so as to justify imposition of the pen- leading. alty, we will consider all evidence in (b) What is the penalty? The penalty is the record, including any physical, ineligibility for cash benefits under mental, educational, or linguistic limi- title XVI (including State supple- tations (including any lack of facility mentary payments made by SSA ac- with the English language) which you cording to § 416.2005) and nonpayment may have had at the time. In deter- of any benefits under title II that we mining whether you acted knowingly, would otherwise pay you. we will also consider the significance (c) How long will the penalty last? The of the false or misleading statement or penalty will last— omission or failure to disclose in terms (1) Six consecutive months the first of its likely impact on your benefits. time we penalize you; (f) What should I do if I disagree with (2) Twelve consecutive months the SSA’s initial determination to penalize second time we penalize you; and me? If you disagree with our initial de- (3) Twenty-four consecutive months termination to impose a penalty, you the third or subsequent time we penal- have the right to request reconsider- ize you. ation of the penalty decision as ex- (d) Will this penalty affect any of my plained in § 416.1407. We will give you a other government benefits? If we penalize chance to present your case, including you, the penalty will apply only to the opportunity for a face-to-face con- your eligibility for benefits under ti- ference. If you request reconsideration tles II and XVI (including State supple- of our initial determination to penalize mentary payments made by us accord- you, you have the choice of a case re- ing to § 416.2005). The penalty will not view, informal conference, or formal affect— conference, as described in § 416.1413(a) (1) Your eligibility for benefits that through (c). If you disagree with our you would otherwise be eligible for reconsidered determination you have under titles XVIII and XIX but for the the right to follow the normal adminis- imposition of the penalty; and trative and judicial review process by (2) The eligibility or amount of bene- requesting a hearing before an adminis- fits payable under titles II or XVI to trative law judge, Appeals Council re- another person. For example, if you view and Federal court, review as ex- and your spouse are receiving title XVI plained in § 416.1400. benefits, those benefit payments to (g) When will the penalty period begin your spouse based on the benefit rate and end? Subject to the additional lim- for a couple will not be affected be- itations noted in paragraphs (g)(1) and cause of the penalty. Your spouse will (g)(2) of this section, the penalty period receive one half of the couple rate. will begin the first day of the month (e) How will SSA make its decision to for which you would otherwise receive penalize me? In order to impose a pen- payment of benefits under title II or alty on you, we must find that you title XVI were it not for imposition of knowingly (knew or should have known the penalty. Once a sanction begins, it or acted with knowing disregard for will run continuously even if payments the truth) made a false or misleading are intermittent. If more than one pen- statement or omitted or failed to re- alty has been imposed, but they have port a material fact if you knew, or not yet run, the penalties will not run should have known, that the omission concurrently. or failure to disclose was misleading. (1) If you do not request reconsider- We will base our decision to penalize ation of our initial determination to you on the evidence and the reasonable penalize you, the penalty period will inferences that can be drawn from that begin no earlier than the first day of evidence, not on speculation or sus- the second month following the month

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in which the time limit for requesting The administrative review process con- reconsideration ends. The penalty pe- sists of several steps, which usually riod will end on the last day of the must be requested within certain time final month of the penalty period. For periods and in the following order: example, if the time period for request- (1) Initial determination. This is a de- ing reconsideration ends on January 10, termination we make about your eligi- a 6-month period of nonpayment begins bility or your continuing eligibility for on March 1 if you would otherwise be benefits or about any other matter, as eligible to receive benefits for that discussed in § 416.1402, that gives you a month, and ends on August 31. right to further review. (2) If you request reconsideration of (2) Reconsideration. If you are dissat- our initial determination to penalize isfied with an initial determination, you and the reconsidered determina- you may ask us to reconsider it. tion does not change our original deci- (3) Hearing before an administrative sion to penalize you, the penalty period law judge. If you are dissatisfied with will begin no earlier than the first day the reconsideration determination, you of the second month following the may request a hearing before an ad- month we notify you of our reconsid- ministrative law judge. ered determination. The penalty period (4) Appeals Council review. If you are will end on the last day of the final dissatisfied with the decision of the ad- month of the penalty period. For exam- ministrative law judge, you may re- ple, if we notify you of our reconsid- quest that the Appeals Council review ered determination on August 31, 2001, the decision. and you are not otherwise eligible for (5) Federal court review. When you payment of benefits at that time, but have completed the steps of the admin- would again be eligible to receive pay- istrative review process listed in para- ment of benefits on October 1, 2003, a 6- graphs (a)(1) through (a)(4) of this sec- month period of nonpayment would tion, we will have made our final deci- begin on October 1, 2003 and end on sion. If you are dissatisfied with our March 31, 2004. final decision, you may request judicial review by filing an action in a Federal [65 FR 42286, July 10, 2000, as amended at 71 FR 61409, Oct. 18, 2006] district court. (6) Expedited appeals process. At some time after your initial determination Subpart N—Determinations, Ad- has been reviewed, if you have no dis- ministrative Review Process, pute with our findings of fact and our and Reopening of Determina- application and interpretation of the tions and Decisions controlling laws, but you believe that a part of the law is unconstitutional, you AUTHORITY: Secs. 702(a)(5), 1631, and 1633 of may use the expedited appeals process. the Social Security Act (42 U.S.C. 902(a)(5), This process permits you to go directly 1383, and 1383b); sec. 202, Pub. L. 108–203, 118 to a Federal district court so that the Stat. 509 (42 U.S.C. 902 note). constitutional issue may be resolved. SOURCE: 45 FR 52096, Aug. 5, 1980, unless (b) Nature of the administrative review otherwise noted. process. In making a determination or decision in your case, we conduct the INTRODUCTION, DEFINITIONS, AND INITIAL administrative review process in an in- DETERMINATIONS formal, non-adversarial manner. Sub- ject to certain timeframes at the hear- § 416.1400 Introduction. ing level (see § 416.1435) and the limita- (a) Explanation of the administrative tions on Appeals Council consideration review process. This subpart explains of additional evidence (see § 416.1470), the procedures we follow in deter- we will consider at each step of the re- mining your rights under title XVI of view process any information you the Social Security Act. The regula- present as well as all the information tions describe the process of adminis- in our records. You may present the in- trative review and explain your right formation yourself or have someone to judicial review after you have taken represent you, including an attorney. If all the necessary administrative steps. you are dissatisfied with our decision

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in the review process, but do not take § 416.1402 Administrative actions that the next step within the stated time are initial determinations. period, you will lose your right to fur- Initial determinations are the deter- ther administrative review and your minations we make that are subject to right to judicial review, unless you can administrative and judicial review. We show us that there was good cause for will base our initial determination on your failure to make a timely request the preponderance of the evidence. We for review. will state the important facts and give the reasons for our conclusions in the [45 FR 52096, Aug. 5, 1980, as amended at 51 FR 305, Jan. 3, 1986; 52 FR 4004, Feb. 9, 1987; initial determination. Initial deter- 80 FR 14838, Mar. 20, 2015; 81 FR 90995, Dec. 16, minations regarding supplemental se- 2016] curity income benefits include, but are not limited to, determinations about— § 416.1401 Definitions. (a) Your eligibility for, or the amount of, your supplemental security As used in this subpart: income benefits or your special SSI Date you receive notice means 5 days cash benefits under § 416.262, except ac- after the date on the notice, unless you tions solely involving transitions to show us that you did not receive it eligibility between these types of bene- within the 5-day period. fits (see §§ 416.1403 (a)(13) and (a)(14)). Decision means the decision made by (b) Suspension, reduction, or termi- an administrative law judge or the Ap- nation of your SSI benefits or special peals Council. SSI cash benefits (see §§ 416.261 and Determination means the initial deter- 416.262) or suspension or termination of mination or the reconsidered deter- your special SSI eligibility status (see mination. §§ 416.264 through 416.269); Mass change means a State-initiated (c) Whether an overpayment of bene- change in the level(s) of federally ad- fits must be repaid to us; ministered State supplementary pay- (d) Whether the payment of your ben- ments applicable to all recipients of efits will be made, on your behalf, to a such payments, or to categories of such representative payee; recipients, due, for example, to State (e) Who will act as your payee if we legislative or executive action. determine that representative payment Preponderance of the evidence means will be made; such relevant evidence that as a whole (f) Imposing penalties for failing to shows that the existence of the fact to report important information; be proven is more likely than not. (g) Your drug addiction or alco- Remand means to return a case for holism; further review. (h) Whether you are eligible for special SSI eligibility status under Substantial evidence means such rel- § 416.265; evant evidence as a reasonable mind (i) Your disability; might accept as adequate to support a (j) Whether your completion of, or conclusion. continuation for a specified period of Vacate means to set aside a previous time in, an appropriate program of vo- action. cational rehabilitation services, em- Waive means to give up a right know- ployment services, or other support ingly and voluntarily. services will increase the likelihood We, us, or our refers to the Social Se- that you will not have to return to the curity Administration. disability or blindness benefit rolls, You or your refers to any person or and thus, whether your benefits may be the eligible spouse of any person claim- continued even though you are not dis- ing or receiving supplemental security abled or blind; income benefits. (k) Whether or not you have a disabling impairment as defined in [45 FR 52096, Aug. 5, 1980, as amended at 59 § 416.911; FR 43038, Aug. 22, 1994; 73 FR 76944, Dec. 18, (l) How much and to whom benefits 2008] due a deceased individual will be paid;

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(m) A claim for benefits under (10) Denying your request to readju- § 416.351 based on alleged misinforma- dicate your claim and apply an Acqui- tion; escence Ruling; (n) Our calculation of the amount of (11) Determining whether an organi- change in your federally administered zation may collect a fee from you for State supplementary payment amount expenses it incurs in serving as your (i.e., a reduction, suspension, or termi- representative payee (see § 416.640a); nation) which results from a mass (12) Declining under § 416.351(f) to change, as defined in § 416.1401; and make a determination on a claim for (o) Whether we were negligent in in- benefits based on alleged misinforma- vestigating or monitoring or failing to tion because one or more of the condi- investigate or monitor your represent- tions specified in § 416.351(f) are not ative payee, which resulted in the mis- met; use of benefits by your representative (13) Transition to eligibility for spe- payee. cial SSI cash benefits (§ 416.262) in a [45 FR 52096, Aug. 5, 1980, as amended at 47 month immediately following a month FR 15325, Apr. 9, 1982; 49 FR 22275, May 29, for which you were eligible for regular 1984; 58 FR 52913, Oct. 13, 1993; 59 FR 41405, SSI benefits; Aug. 12, 1994; 59 FR 43039, Aug. 22, 1994; 59 FR (14) Transition to eligibility for reg- 44928, Aug. 31, 1994; 60 FR 8153, Feb. 10, 1995; ular SSI benefits in a month imme- 60 FR 14215, Mar. 15, 1995; 69 FR 60240, Oct. 7, diately following a month for which 2004; 70 FR 36509, June 24, 2005; 73 FR 76944, Dec. 18, 2008] you were eligible for special SSI cash benefits (§ 416.262); § 416.1403 Administrative actions that (15) The determination to reduce, are not initial determinations. suspend, or terminate your federally (a) Administrative actions that are administered State supplementary not initial determinations may be re- payments due to a State-initiated mass viewed by us, but they are not subject change, as defined in § 416.1401, in the to the administrative review process levels of such payments, except as pro- provided by this subpart and they are vided in § 416.1402(n); not subject to judicial review. These (16) Termination of Federal adminis- actions include, but are not limited to, tration of State supplementary pay- an action about— ments; (1) Presumptive disability or pre- (17) Findings on whether we can col- sumptive blindness; lect an overpayment by using the Fed- (2) An emergency advance payment eral income tax refund offset proce- (as defined in § 416.520(b)); dure. (see § 416.583); (3) Denial of a request to be made a (18) Determining whether we will representative payee; refer information about your overpay- (4) Denial of a request to use the ex- ment to a consumer reporting agency pedited appeals process; (see §§ 416.590 and 422.305 of this chap- (5) Denial of a request to reopen a deter); termination or a decision; (19) Determining whether we will (6) The fee that may be charged or re- refer your overpayment to the Depart- ceived by a person who has represented ment of the Treasury for collection by you in connection with a proceeding offset against Federal payments due before us; you (see §§ 416.590 and 422.310 of this (7) Refusing to recognize, disquali- chapter); fying, or suspending a person from act- (20) Determining whether we will ing as your representative in a pro- order your employer to withhold from ceeding before us (see §§ 416.1505 and your disposable pay to collect an over- 416.1545); payment you received under title XVI (8) Denying your request to extend of the Social Security Act (see part 422, the time period for requesting review subpart E, of this chapter); of a determination or a decision; (21) Determining when provisional (9) Determining whether (and the benefits are payable, the amount of the amount of) travel expenses incurred provisional benefit payable, and when are reimbursable in connection with provisional benefits terminate (see proceedings before us; § 416.999c);

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(22) Determining whether to select will not mail a notice if the bene- your claim for the quick disability de- ficiary’s entitlement to benefits has termination process under § 416.1019; ended because of his or her death. (23) The removal of your claim from (b) If our initial determination is the quick disability determination that we must suspend, reduce or termi- process under § 416.1019; nate your benefits, the notice will also (24) Starting or discontinuing a con- tell you that you have a right to a re- tinuing disability review; consideration before the determination (25) Issuing a receipt in response to takes effect (see § 416.1336). your report of a change in your earned income; and [45 FR 52096, Aug. 5, 1980, as amended at 51 (26) Determining whether a non-at- FR 305, Jan. 3, 1986; 72 FR 51179, Sept. 6, 2007] torney representative is eligible to re- § 416.1405 Effect of an initial deter- ceive direct fee payment as described mination. in § 416.1517 of this part. (b) We send some notices of actions An initial determination is binding that are not initial determinations: unless you request a reconsideration (1) If you receive an emergency ad- within the stated time period, or we re- vance payment; presumptive disability vise the initial determination. or presumptive blindness payment, or [51 FR 305, Jan. 3, 1986] provisional payment, we will provide a notice explaining the nature and condi- § 416.1406 Testing modifications to the tions of the payments. disability determination proce- (2) If you receive presumptive dis- dures. ability or presumptive blindness pay- (a) Applicability and scope. Notwith- ments, or provisional payments, we standing any other provision in this shall send you a notice when those pay- part or part 422 of this chapter, we are ments are exhausted. establishing the procedures set out in (3) If there is a termination of Fed- this section to test modifications to eral administration of State supple- our disability determination process. mentary payments. These modifications will enable us to [45 FR 52096, Aug. 5, 1980, as amended at 51 test, either individually or in one or FR 8809, Mar. 14, 1986; 55 FR 1020, Jan. 11, more combinations, the effect of: hav- 1990; 55 FR 4423, Feb. 8, 1990; 57 FR 23058, ing disability claim managers assume June 1, 1992; 59 FR 41405, Aug. 12, 1994; 59 FR primary responsibility for processing 43039, Aug. 22, 1994; 59 FR 44928, Aug. 31, 1994; an application for SSI payments based 62 FR 49440, Sept. 22, 1997; 66 FR 67081, Dec. on disability; providing persons who 28, 2001; 68 FR 74184, Dec. 23, 2003; 70 FR 57146, Sept. 30, 2005; 71 FR 16461, Mar. 31, 2006; 71 FR have applied for benefits based on dis- 66859, 66867, Nov. 17, 2006; 72 FR 51178, Sept. 6, ability with the opportunity for an 2007; 76 FR 45194, July 28, 2011; 76 FR 80247, interview with a decisionmaker when Dec. 23, 2011; 80 FR 400, Jan. 6, 2015] the decisionmaker finds that the evidence in the file is insufficient to make § 416.1404 Notice of the initial deter- a fully favorable determination or re- mination. quires an initial determination denying (a) We will mail a written notice of the claim; having a single decision- our initial determination to you at maker make the initial determination your last known address. The written with assistance from medical consult- notice will explain in simple and clear ants, where appropriate; and elimi- language what we have determined and nating the reconsideration step in the the reasons for and the effect of our de- administrative review process and hav- termination. If our determination ining a claimant who is dissatisfied with volves a determination of disability the initial determination request a that is in whole or in part unfavorable hearing before an administrative law to you, our written notice also will judge. The model procedures we test contain in understandable language a will be designed to provide us with instatement of the case setting forth the formation regarding the effect of these evidence on which our determination is procedural modifications and enable us based. The notice also will inform you to decide whether and to what degree of your right to reconsideration. We the disability determination process

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would be improved if they were imple- tion forms we use to have the State mented on a national level. agency certify the determination of (b) Procedures for cases included in the disability to us (see § 416.1015). How- tests. Prior to commencing each test or ever, before an initial determination is group of tests in selected site(s), we made in any case where there is evi- will publish a notice in the FEDERAL dence which indicates the existence of REGISTER. The notice will describe a mental impairment, the decision- which model or combinations of models maker will make every reasonable ef- we intend to test, where the specific fort to ensure that a qualified psychia- test site(s) will be, and the duration of trist or psychologist has completed the the test(s). The individuals who par- medical portion of the case review and ticipate in the test(s) will be randomly any applicable residual functional ca- assigned to a test group in each site pacity assessment pursuant to our ex- where the tests are conducted. Para- isting procedures (see § 416.1017). Simi- graph (b) (1) through (4) of this section larly, in making an initial determina- lists descriptions of each model. tion with respect to the disability of a (1) In the disability claim manager child under age 18 claiming SSI pay- model, when you file an application for ments based on disability, the decision- SSI payments based on disability, a maker will make reasonable efforts to disability claim manager will assume ensure that a qualified pediatrician, or primary responsibility for the proc- other individual who specializes in a essing of your claim. The disability field of medicine appropriate to the claim manager will be the focal point child’s impairment(s), evaluates the for your contacts with us during the claim of such child (see § 416.903(f)). In claims intake process and until an ini- some instances the decisionmaker may tial determination on your claim is be the disability claim manager de- made. The disability claim manager scribed in paragraph (b)(1) of this sec- will explain the SSI disability program tion. When the decisionmaker is a to you, including the definition of dis- State agency employee, a team of indi- ability and how we determine whether viduals that includes a Federal em- you meet all the requirements for SSI ployee will determine whether the payments based on disability. The dis- other conditions of eligibility for SSI ability claim manager will explain payments are met. what you will be asked to do through- (3) In the predecision interview out the claims process and how you can model, if the decisionmaker(s) finds obtain information or assistance that the evidence in your file is insuffi- through him or her. The disability cient to make a fully favorable deter- claim manager will also provide you mination or requires an initial deter- with information regarding your right mination denying your claim, a to representation, and he or she will predecision notice will be mailed to provide you with appropriate referral you. The notice will tell you that, be- sources for representation. The dis- fore the decisionmaker(s) makes an ability claim manager may be either a initial determination about whether State agency employee or a Federal you are disabled, you may request a employee. In some instances, the dis- predecision interview with the deci- ability claim manager may be assisted sionmaker(s). The notice will also tell by other individuals. you that you may also submit addi- (2) In the single decisionmaker tional evidence. You must request a model, the decisionmaker will make predecision interview within 10 days the disability determination and may after the date you receive the also determine whether the other con- predecision notice. You must also sub- ditions of eligibility for SSI payments mit any additional evidence within 10 based on disability are met. The deci- days after the date you receive the sionmaker will make the disability de- predecision notice. If you request a termination after any appropriate con- predecision interview, the decision- sultation with a medical or psycho- maker(s) will conduct the predecision logical consultant. The medical or psy- interview in person, by video- chological consultant will not be re- conference, or by telephone as the deci- quired to sign the disability determina- sionmaker(s) determines is appropriate

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under the circumstances. If you make a may request a hearing before an ad- late request for a predecision inter- ministrative law judge. view, or submit additional evidence [60 FR 20028, Apr. 24, 1995, as amended at 73 late, but show in writing that you had FR 2416, Jan. 15, 2008; 76 FR 24812, May 3, good cause under the standards in 2011; 82 FR 5883, Jan. 18, 2017] § 416.1411 for missing the deadline, the decisionmaker(s) will extend the dead- RECONSIDERATION line. If you do not request the § 416.1407 Reconsideration—general. predecision interview or if you do not appear for a scheduled predecision Reconsideration is the first step in the administrative review process that interview and do not submit additional we provide if you are dissatisfied with evidence, or if you do not respond to the initial determination. If you are our attempts to communicate with dissatisfied with our reconsideration you, the decisionmaker(s) will make an determination, you may request a initial determination based upon the hearing before an administrative law evidence in your file. If you identify judge. additional evidence during the predecision interview, which was pre- [51 FR 305, Jan. 3, 1986] viously not available, the decision- § 416.1408 Parties to a reconsideration. maker(s) will advise you to submit the (a) Who may request a reconsideration. evidence. If you are unable to do so, If you are dissatisfied with the initial the decisionmaker(s) may assist you in determination, you may request that obtaining it. The decisionmaker(s) also we reconsider it. In addition, a person will advise you of the specific time- who shows in writing that his or her frames you have for submitting any ad- rights may be adversely affected by the ditional evidence identified during the initial determination may request a re- predecision interview. If you have no consideration. treating source(s) (see § 416.902), or your (b) Who are parties to a reconsider- treating source(s) is unable or unwill- ation. After a request for the reconsid- ing to provide the necessary evidence, eration, you and any person who shows or there is a conflict in the evidence in writing that his or her rights are ad- that cannot be resolved through evi- versely affected by the initial deter- dence from your treating source(s), the mination will be parties to the recon- decisionmaker(s) may arrange a consideration. sultative examination or resolve con- § 416.1409 How to request reconsider- flicts according to existing procedures ation. (see § 416.919a). If you attend the (a) We shall reconsider an initial de- predecision interview, or do not attend termination if you or any other party the predecision interview but you sub- to the reconsideration files a written mit additional evidence, the decision- request at one of our offices within 60 maker(s) will make an initial deter- days after the date you receive notice mination based on the evidence in your of the initial determination (or within file, including the additional evidence the extended time period if we extend you submit or the evidence obtained as the time as provided in paragraph (b) of a result of the predecision notice or this section). interview, or both. (b) Extension of time to request a recon- (4) In the reconsideration elimination sideration. If you want a reconsider- model, we will modify the disability ation of the initial determination but determination process by eliminating do not request one in time, you may the reconsideration step of the admin- ask us for more time to request a re- istrative review process. If you receive consideration. Your request for an ex- an initial determination on your claim tension of time must be in writing and for SSI payments based on disability, it must give the reasons why the re- and you are dissatisfied with the deter- quest for reconsideration was not filed mination, we will notify you that you within the stated time period. If you show us that you had good cause for missing the deadline, we will extend

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the time period. To determine whether not reach us until after the time period good cause exists, we use the standards had expired. explained in § 416.1411. (9) Unusual or unavoidable circumstances exist, including the cir- § 416.1411 Good cause for missing the cumstances described in paragraph deadline to request review. (a)(4) of this section, which show that (a) In determining whether you have you could not have known of the need shown that you have good cause for to file timely, or which prevented you missing a deadline to request review we from filing timely. consider— (1) What circumstances kept you [45 FR 52096, Aug. 5, 1980, as amended at 59 FR 1637, Jan. 12, 1994] from making the request on time; (2) Whether our action misled you; § 416.1413 Reconsideration proce- (3) Whether you did not understand dures. the requirements of the Act resulting from amendments to the Act, other If you request reconsideration, we legislation, or court decisions; and will give you a chance to present your (4) Whether you had any physical, case. How you can present your case mental, educational, or linguistic limi- depends upon the issue involved and tations (including any lack of facility whether you are asking us to recon- with the English language) which pre- sider an initial determination on an ap- vented you from filing a timely request plication or an initial determination or from understanding or knowing on a suspension, reduction or termi- about the need to file a timely request nation of benefits. The methods of re- for review. consideration include the following: (b) Examples of circumstances where (a) Case review. We will give you and good cause may exist include, but are the other parties to the reconsider- not limited to, the following situa- ation an opportunity to review the evi- tions: dence in our files and then to present (1) You were seriously ill and were oral and written evidence to us. We prevented from contacting us in per- will then make a decision based on all son, in writing, or through a friend, of this evidence. The official who re- relative, or other person. views the case will make the reconsid- (2) There was a death or serious ill- ered determination. ness in your immediate family. (b) Informal conference. In addition to (3) Important records were destroyed following the procedures of a case re- or damaged by fire or other accidental view, an informal conference allows cause. you and the other parties to the recon- (4) You were trying very hard to find sideration an opportunity to present necessary information to support your witnesses. A summary record of this claim but did not find the information proceeding will become part of the case within the stated time periods. record. The official who conducts the (5) You asked us for additional infor- informal conference will make the re- mation explaining our action within considered determination. the time limit, and within 60 days of (c) Formal conference. In addition to receiving the explanation you re- following the procedures of an informal quested reconsideration or a hearing, conference, a formal conference allows or within 30 days of receiving the ex- you and the other parties to a reconsid- planation you requested Appeals Coun- eration an opportunity to request us to cil review or filed a civil suit. subpoena adverse witnesses and rel- (6) We gave you incorrect or incom- evant documents and to cross-examine plete information about when and how adverse witnesses. A summary record to request administrative review or to of this proceeding will become a part of file a civil suit. the case record. The official who con- (7) You did not receive notice of the ducts the formal conference will make initial determination or decision. the reconsidered determination. (8) You sent the request to another (d) Disability hearing. If you have been Government agency in good faith with- receiving supplemental security in- in the time limit and the request did come benefits because you are blind or

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disabled and you request reconsider- § 416.1413c Arrangement for con- ation of an initial or revised deter- ferences. mination that, based on medical fac- (a) As soon as we receive a request tors, you are not now blind or disabled, for a formal or informal conference, we we will give you and the other parties shall set the time, date and place for to the reconsideration an opportunity the conference. for a disability hearing. (See §§ 416.1414 (b) We shall send you and any other through 416.1418.) parties to the reconsideration a written notice about the conference (either [45 FR 52096, Aug. 5, 1980, as amended at 51 by mailing it to your last known ad- FR 305, Jan. 3, 1986] dress or by personally serving you with § 416.1413a Reconsiderations of initial it) at least 10 days before the con- determinations on applications. ference. However, we may hold the conference sooner if we all agree. We will The method of reconsideration we not send written notice of the time, will use when you appeal an initial de- date, and place of the conference if you termination on your application for waive your right to receive it. benefits depends on the issue involved (c) We shall schedule the conference in your case. within 15 days after you request it, but, (a) Nonmedical issues. If you challenge at our discretion or at your request, we our finding on a nonmedical issue, we will delay the conference if we think shall offer you a case review or an in- the delay will ensure that the con- formal conference, and will reach our ference is conducted efficiently and reconsidered determination on the properly. basis of the review you select. (d) We shall hold the conference at (b) Medical issues. If you challenge one of our offices, by telephone or in our finding on a medical issue (even if person, whichever you prefer. We will you received payments because we pre- hold the conference elsewhere in per- sumed you were blind or disabled), we son if you show circumstances that shall reach our reconsidered deter- make this arrangement reasonably necessary. mination on the basis of a case review. [45 FR 52096, Aug. 5, 1980. Redesignated at 51 [45 FR 52096, Aug. 5, 1980. Redesignated at 51 FR 305, Jan. 3, 1986] FR 305, Jan. 3, 1986] § 416.1414 Disability hearing—general. § 416.1413b Reconsideration procedures for post-eligiblity claims. (a) Availability. We will provide you with an opportunity for a disability If you are eligible for supplemental hearing if: security income benefits and we notify (1) You have been receiving supple- you that we are going to suspend, re- mental security income benefits based duce or terminate your benefits, you on a medical impairment that renders can appeal our determination within 60 you blind or disabled; days of the date you receive our notice. (2) We have made an initial or revised The 60-day period may be extended if determination based on medical factors you have good cause for an extension of that you are not blind or disabled be- time under the conditions stated in cause your impairment: § 416.1411(b). If you appeal a suspension, (i) Has ceased; reduction, or termination of benefits, (ii) Did not exist; or the method of reconsideration we will (iii) Is no longer disabling; and use depends on the issue in your case. (3) You make a timely request for re- If the issue in your case is that you are consideration of the initial or revised no longer blind or disabled for medical determination. reasons, you will receive an oppor- (b) Scope. The disability hearing will tunity for a disability hearing. If any address only the initial or revised de- other issue is involved, you have the termination, based on medical factors, choice of a case review, informal con- that you are not now blind or disabled. Any other issues you raise in connec- ference or formal conference. tion with your request for reconsider- [51 FR 305, Jan. 3, 1986] ation will be reviewed in accordance

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with the reconsideration procedures de- (b) State agency hearing officers—(1) scribed in § 416.1413 (a) through (c). Appointment of State agency hearing offi- (c) Time and place—(1) General. Either cers. If a State agency made the initial the State agency or the Associate Com- or revised determination that you are missioner for Disability Determina- appealing, the disability hearing offi- tions or his or her delegate, as appro- cer who conducts your disability hear- priate, will set the time and place of ing may be appointed by a State agen- your disability hearing. We will send cy. If the disability hearing officer is you a notice of the time and place of appointed by a State agency, that indi- your disability hearing at least 20 days vidual will be employed by an adjudica- before the date of the hearing. You tory unit of the State agency other may be expected to travel to your dis- than the adjudicatory unit which made ability hearing. (See §§ 416.1495–416.1499 the determination you are appealing. regarding reimbursement for travel ex- (2) State agency defined. For purposes penses.) of this subpart, State agency means the (2) Change of time or place. If you are adjudicatory component in the State unable to travel or have some other which issues disability determinations. reason why you cannot attend your dis- (c) Federal hearing officers. The disability hearing at the scheduled time ability hearing officer who conducts or place, you should request at the ear- your disability hearing will be ap- liest possible date that the time or pointed by the Associate Commissioner place of your hearing be changed. We for Disability Determinations or his or will change the time or place if there is her delegate if: good cause for doing so under the (1) A component of our office other standards in § 416.1436 (c) and (d). than a State agency made the deter- (d) Combined issues. If a disability mination you are appealing; or hearing is available to you under para- (2) The State agency does not appoint graph (a) of this section, and you file a a disability hearing officer to conduct new application for benefits while your your disability hearing under para- request for reconsideration is still graph (b) of this section. pending, we may combine the issues on [51 FR 305, Jan. 3, 1986, as amended at 71 FR both claims for the purpose of the dis- 10432, Mar. 1, 2006] ability hearing and issue a combined initial/reconsidered determination § 416.1416 Disability hearing—proce- which is binding with respect to the dures. common issues on both claims. (a) General. The disability hearing (e) Definition. For purposes of the will enable you to introduce evidence provisions regarding disability hear- and present your views to a disability ings (§§ 416.1414 through 416.1418) we, us, hearing officer if you are dissatisfied or our means the Social Security Ad- with an initial or revised determina- ministration or the State agency. tion, based on medical factors, that [51 FR 305, Jan. 3, 1986, as amended at 51 FR you are not now blind or disabled, as 8809, Mar. 14, 1986; 71 FR 10432, Mar. 1, 2006] described in § 416.1414(a)(2). (b) Your procedural rights. We will ad- § 416.1415 Disability hearing—dis- vise you that you have the following ability hearing officers. procedural rights in connection with (a) General. Your disability hearing the disability hearing process: will be conducted by a disability hear- (1) You may request that we assist ing officer who was not involved in you in obtaining pertinent evidence for making the determination you are ap- your disability hearing and, if nec- pealing. The disability hearing officer essary, that we issue a subpoena to will be an experienced disability exam- compel the production of certain evi- iner, regardless of whether he or she is dence or testimony. We will follow sub- appointed by a State agency or by the poena procedures similar to those de- Associate Commissioner for Disability scribed in § 416.1450(d) for the adminis- Determinations or his or her delegate, trative law judge hearing process; as described in paragraphs (b) and (c) of (2) You may have a representative at this section. the hearing appointed under subpart O

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of this part, or you may represent may allow up to 15 days after your dis- yourself; ability hearing for receipt of evidence (3) You or your representative may which is not available at the hearing, review the evidence in your case file, if: either on the date of your hearing or at (1) The disability hearing officer de- an earlier time at your request, and termines that the evidence has a direct present additional evidence; bearing on the outcome of the hearing; (4) You may present witnesses and and question any witnesses at the hearing; (2) The evidence could not have been and obtained before the hearing. (5) You may waive your right to ap- (f) Opportunity to review and comment pear at the hearing. If you do not ap- on evidence obtained or developed by us pear at the hearing, the disability after the hearing. If, for any reason, ad- hearing officer will prepare and issue a ditional evidence is obtained or devel- written reconsidered determination oped by us after your disability hear- based on the information in your case ing, and all evidence taken together file. can be used to support a reconsidered (c) Case preparation. After you redetermination that is unfavorable to quest reconsideration, your case file you with regard to the medical factors will be reviewed and prepared for the of eligibility, we will notify you, in hearing. This review will be conducted writing, and give you an opportunity to in the component of our office (includ- review and comment on the additional ing a State agency) that made the ini- evidence. You will be given 10 days tial or revised determination, by per- from the date you receive our notice to sonnel who were not involved in mak- submit your comments (in writing or, ing the initial or revised determina- in appropriate cases, by telephone), un- tion. Any new evidence you submit in less there is good cause for granting connection with your request for re- you additional time, as illustrated by consideration will be included in this the examples in § 416.1411(b). Your com- review. If necessary, further develop- ments will be considered before a re- ment of evidence, including arrange- considered determination is issued. If ments for medical examinations, will you believe that it is necessary to have be undertaken by this component. further opportunity for a hearing with After the case file is prepared for the respect to the additional evidence, a hearing, it will be forwarded by this supplementary hearing may be sched- component to the disability hearing of- uled at your request. Otherwise, we ficer for a hearing. If necessary, the will ask for your written comments on case file may be sent back to this com- the additional evidence, or, in appro- ponent at any time prior to the priate cases, for your telephone com- issuance of the reconsidered deter- ments. mination for additional development. Under paragraph (d) of this section, [51 FR 306, Jan. 3, 1986] this component has the authority to issue a favorable reconsidered deter- § 416.1417 Disability hearing—dis- mination at any time in its develop- ability hearing officer’s reconsidered determination. ment process. (d) Favorable reconsidered determina- (a) General. The disability hearing of- tion without a hearing. If the evidence ficer who conducts your disability in your case file supports a finding that hearing will prepare and will issue a you are now blind or disabled, either written reconsidered determination, the component that prepares your case unless: for hearing under paragraph (c) or the (1) The disability hearing officer disability hearing officer will issue a sends the case back for additional de- written favorable reconsidered deter- velopment by the component that pre- mination, even if a disability hearing pared the case for the hearing, and that has not yet been held. component issues a favorable deter- (e) Opportunity to submit additional mination, as permitted by § 416.1416(c); evidence after the hearing. At your re- (2) It is determined that you are en- quest, the disability hearing officer gaging in substantial gainful activity

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and that you are therefore not dis- sociate Commissioner or his or her delegate abled; or to be deficient, it will be changed as de- (3) The reconsidered determination scribed in paragraph (b) of this section. prepared by the disability hearing offi- (b) Methods of correcting deficiencies in cer is reviewed under § 416.1418. the disability hearing officer’s reconsid- (b) Content. The disability hearing of- ered determination. If the reconsidered ficer’s reconsidered determination will determination prepared by the dis- give the findings of fact and the rea- ability hearing officer is found by the sons for the reconsidered determina- Associate Commissioner for Disability tion. The disability hearing officer Determinations or his or her delegate must base the reconsidered determina- to be deficient, the Associate Commis- tion on the preponderance of the evi- sioner or his or her delegate will take dence offered at the disability hearing appropriate action to assure that the or otherwise included in your case file. deficiency is corrected before a recon- (c) Notice. We will mail you and the sidered determination is issued. The other parties a notice of reconsidered action taken by the Associate Commis- determination in accordance with sioner or his or her delegate will take § 416.1422. one of two forms: (d) Effect. The disability hearing offi- (1) The Associate Commissioner or cer’s reconsidered determination, or, if his or her delegate may return the case it is changed under § 416.1418, the recon- file either to the component respon- sidered determination that is issued by sible for preparing the case for hearing the Associate Commissioner for Dis- or to the disability hearing officer, for ability Determinations or his or her appropriate further action; or delegate, is binding in accordance with (2) The Associate Commissioner or § 416.1421, subject to the exceptions his or her delegate may issue a written specified in that section. reconsidered determination which cor- rects the deficiency. [51 FR 306, Jan. 3, 1986, as amended at 71 FR 10432, Mar. 1, 2006; 73 FR 76944, Dec. 18, 2008] (c) Further action on your case if it is sent back by the Associate Commissioner § 416.1418 Disability hearing—review for Disability Determinations or his or her of the disability hearing officer’s re- delegate either to the component that pre- considered determination before it pared your case for hearing or to the dis- is issued. ability hearing officer. If the Associate (a) General. The Associate Commis- Commissioner for Disability Deter- sioner for Disability Determinations or minations or his or her delegate sends his or her delegate may select a sample your case back either to the compo- of disability hearing officers’ reconsid- nent responsible for preparing the case ered determinations, before they are for hearing or to the disability hearing issued, and review any such case to de- officer for appropriate further action, termine its correctness on any grounds as provided in paragraph (b)(1) of this he or she deems appropriate. The Asso- section, any additional proceedings in ciate Commissioner or his or her dele- your case will be governed by the dis- gate shall review any case within the ability hearing procedures described in sample if: § 416.1416(f) or if your case is returned (1) There appears to be an abuse of to the disability hearing officer and an discretion by the hearing officer; unfavorable determination is indi- (2) There is an error of law; or cated, a supplementary hearing may be (3) The action, findings or conclu- scheduled for you before a reconsidered sions of the disability hearing officer determination is reached in your case. are not supported by substantial evi- (d) Opportunity to comment before the dence. Associate Commissioner for Disability De- terminations or his or her delegate issues NOTE TO PARAGRAPH (a): If the review indi- a reconsidered determination that is unfa- cates that the reconsidered determination vorable to you. If the Associate Com- prepared by the disability hearing officer is correct, it will be dated and issued imme- missioner for Disability Determina- diately upon completion of the review. If the tions or his or her delegate proposes to reconsidered determination prepared by the issue a reconsidered determination as disability hearing officer is found by the As- described in paragraph (b)(2) of this

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section, and that reconsidered deter- § 416.1421 Effect of a reconsidered de- mination is unfavorable to you, he or termination. she will send you a copy of the pro- The reconsidered determination is posed reconsidered determination with binding unless— an explanation of the reasons for it, (a) You or any other party to the re- and will give you an opportunity to consideration requests a hearing before submit written comments before it is an administrative law judge within the issued. At your request, you will also stated time period and a decision is be given an opportunity to inspect the made; pertinent materials in your case file, (b) The expedited appeals process is including the reconsidered determina- used; or tion prepared by the disability hearing (c) The reconsidered determination is officer, before submitting your com- revised. ments. You will be given 10 days from the date you receive the Associate [51 FR 307, Jan. 3, 1986] Commissioner’s notice of proposed action to submit your written comments, § 416.1422 Notice of a reconsidered determination. unless additional time is necessary to provide access to the pertinent file ma- We shall mail a written notice of the terials or there is good cause for pro- reconsidered determination to the par- viding more time, as illustrated by the ties at their last known address. We examples in § 416.1411(b). The Associate shall state the specific reasons for the Commissioner or his or her delegate determination and tell you and any will consider your comments before other parties of the right to a hearing. taking any further action on your case. If it is appropriate, we will also tell you and any other parties how to use [71 FR 10432, Mar. 1, 2006] the expedited appeals process. § 416.1419 Notice of another person’s [45 FR 52096, Aug. 5, 1980. Redesignated at 51 request for reconsideration. FR 306, Jan. 3, 1986]

If any other person files a request for EXPEDITED APPEALS PROCESS reconsideration of the initial determination in your case, we shall notify § 416.1423 Expedited appeals process— you at your last known address before general. we reconsider the initial determina- By using the expedited appeals proc- tion. We shall also give you an oppor- ess you may go directly to a Federal tunity to present any evidence you district court without first completing think helpful to the reconsidered deter- the administrative review process that mination. is generally required before the court [45 FR 52096, Aug. 5, 1980. Redesignated at 51 will hear your case. FR 306, Jan. 3, 1986] § 416.1424 When the expedited appeals § 416.1420 Reconsidered determina- process may be used. tion. You may use the expedited appeals After you or another person requests process if all of the following require- a reconsideration, we will review the ments are met: evidence we considered in making the (a) We have made an initial and a re- initial determination and any other considered determination; an adminis- evidence we receive. We will make our trative law judge has made a hearing determination based on the preponder- decision; or Appeals Council review has ance of the evidence. The person who been requested, but a final decision has makes the reconsidered determination not been issued. will have had no prior involvement (b) You are a party to the reconsid- with the initial determination. ered determination or the hearing decision. [73 FR 76945, Dec. 18, 2008] (c) You have submitted a written request for the expedited appeals process.

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(d) You have claimed, and we agree, agreement must be signed by you, by that the only factor preventing a favor- every other party to the determination able determination or decision is a pro- or decision, and by our authorized rep- vision in the law that you believe is resentative. The agreement must pro- unconstitutional. vide that— (e) If you are not the only party, all (a) The facts in your claim are not in parties to the determination or deci- dispute; sion agree to request the expedited ap- (b) The sole issue in dispute is wheth- peals process. er a provision of the Act that applies to your case is unconstitutional; § 416.1425 How to request expedited (c) Except for your belief that a pro- appeals process. vision of the Act is unconstitutional, (a) Time of filing request. You may re- you agree with our interpretation of quest the expedited appeals process— the law; (1) Within 60 days after the date you (d) If the provision of the Act that receive notice of the reconsidered de- you believe is unconstitutional were termination (or within the extended not applied to your case, your claim time period if we extend the time as would be allowed; and provided in paragraph (c) of this sec- (e) Our determination or the decision tion); is final for the purpose of seeking judi- (2) At any time after you have filed a cial review. timely request for a hearing but before you receive notice of the administra- § 416.1427 Effect of expedited appeals tive law judge’s decision; process agreement. (3) Within 60 days after the date you After an expedited appeals process receive a notice of the administrative agreement is signed, you will not need law judge’s decision or dismissal (or to complete the remaining steps of the within the extended time period if we administrative review process. Instead, extend the time as provided in para- you may file an action in a Federal dis- graph (c) of this section); or trict court within 60 days after the (4) At any time after you have filed a date you receive notice (a signed copy timely request for Appeals Council re- of the agreement will be mailed to you view, but before you receive notice of and will constitute notice) that the the Appeals Council’s action. agreement has been signed by our au- (b) Place of filing request. You may file thorized representative. a written request for the expedited ap- [45 FR 52096, Aug. 5, 1980, as amended at 49 peals process at one of our offices. FR 46370, Nov. 26, 1984] (c) Extension of time to request expedited appeals process. If you want to use § 416.1428 Expedited appeals process the expedited appeals process but do request that does not result in not request it within the stated time agreement. period, you may ask for more time to If you do not meet all of the require- submit your request. Your request for ments necessary to use the expedited an extension of time must be in writing appeals process, we shall tell you that and it must give the reasons why the your request to use this process is de- request for the expedited appeals proc- nied and that your request will be con- ess was not filed within the stated time sidered as a request for a hearing, or period. If you show that you had good Appeals Council review, whichever is cause for missing the deadline, the appropriate. time period will be extended. To determine whether good cause exists, we use HEARING BEFORE AN ADMINISTRATIVE the standards explained in § 416.1411. LAW JUDGE

§ 416.1426 Agreement in expedited ap- § 416.1429 Hearing before an adminis- peals process. trative law judge-general. If you meet all the requirements nec- If you are dissatisfied with one of the essary for the use of the expedited ap- determinations or decisions listed in peals process, our authorized represent- § 416.1430, you may request a hearing. ative shall prepare an agreement. The The Deputy Commissioner for Hearings

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Operations, or his or her delegate, will § 416.1432 Parties to a hearing before appoint an administrative law judge to an administrative law judge. conduct the hearing. If circumstances (a) Who may request a hearing. You warrant, the Deputy Commissioner for may request a hearing if a hearing is Hearings Operations, or his or her dele- available under § 416.1430. In addition, a gate, may assign your case to another person who shows in writing that his or administrative law judge. In general, her rights may be adversely affected by we will schedule you to appear by video the decision may request a hearing. teleconferencing or in person. When we (b) Who are parties to a hearing. After determine whether you will appear by a request for a hearing is made, you, video teleconferencing or in person, we the other parties to the initial, recon- consider the factors described in sidered, or revised determination, and § 416.1436(c)(1)(i) through (iii), and in any other person who shows in writing the limited circumstances described in that his or her rights may be adversely § 416.1436(c)(2), we will schedule you to affected by the hearing, are parties to appear by telephone. You may submit the hearing. In addition, any other per- new evidence (subject to the provisions son may be made a party to the hear- of § 416.1435), examine the evidence used ing if his or her rights may be ad- in making the determination or deci- versely affected by the decision, and we sion under review, and present and notify the person to appear at the hear- question witnesses. The administrative ing or to present evidence supporting law judge who conducts the hearing his or her interest. may ask you questions. He or she will issue a decision based on the prepon- [45 FR 52096, Aug. 5, 1980, as amended at 51 derance of the evidence in the hearing FR 307, Jan. 3, 1986; 75 FR 39160, July 8, 2010] record. If you waive your right to ap- § 416.1433 How to request a hearing pear at the hearing, the administrative before an administrative law judge. law judge will make a decision based on the preponderance of the evidence (a) Written request. You may request a that is in the file and, subject to the hearing by filing a written request. provisions of § 416.1435, any new evi- You should include in your request— dence that may have been submitted (1) Your name and social security for consideration. number; (2) The name and social security [84 FR 69306, Dec. 18, 2019] number of your spouse, if any; (3) The reasons you disagree with the § 416.1430 Availability of a hearing be- previous determination or decision; fore an administrative law judge. (4) A statement of additional evi- (a) You or another party may request dence to be submitted and the date you a hearing before an administrative law will submit it; and judge if we have made— (5) The name and address of any des- (1) A reconsidered determination; ignated representative. (2) A reconsideration of a revised de- (b) When and where to file. The re- termination of an initial or reconsid- quest must be filed at one of our offices ered determination that involves a sus- within 60 days after the date you re- pension, reduction or termination of ceive notice of the previous determina- benefits; tion or decision (or within the extended (3) A revised initial determination or time period if we extend the time as revised reconsidered determination provided in paragraph (c) of this sec- that does not involve a suspension, re- tion). duction or termination of benefits; or (c) Extension of time to request a hear- (4) A revised decision based on evi- ing. If you have a right to a hearing but dence not included in the record on do not request one in time, you may which the prior decision was based. ask for more time to make your re- (b) We will hold a hearing only if you quest. The request for an extension of or another party to the hearing file a time must be in writing and it must written request for a hearing. give the reasons why the request for a [45 FR 52096, Aug. 5, 1980, as amended at 51 hearing was not filed within the stated FR 307, Jan. 3, 1986; 73 FR 2416, Jan. 15, 2008; time period. You may file your request 76 FR 24812, May 3, 2011] for an extension of time at one of our

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offices. If you show that you had good (iv) You actively and diligently cause for missing the deadline, the sought evidence from a source and the time period will be extended. To deter- evidence was not received or was re- mine whether good cause exists, we use ceived less than 5 business days prior the standards explained in § 416.1411. to the hearing. (c) Claims Not Based on an Application [45 FR 52096, Aug. 5, 1980, as amended at 51 FR 307, Jan. 3, 1986] For Benefits. Notwithstanding the requirements in paragraphs (a)–(b) of this § 416.1435 Submitting written evidence section, for claims that are not based to an administrative law judge. on an application for benefits, the evi- (a) When you submit your request for dentiary requirement to inform us hearing, you should also submit infor- about or submit evidence no later than mation or evidence as required by 5 business days before the date of the § 416.912 or any summary of the evi- scheduled hearing will not apply if our dence to the administrative law judge. other regulations allow you to submit Each party must make every effort to evidence after the date of an adminis- ensure that the administrative law trative law judge decision. judge receives all of the evidence and [81 FR 90994, Dec. 16, 2016 must inform us about or submit any written evidence, as required in § 416.1436 Time and place for a hear- § 416.912, no later than 5 business days ing before an administrative law before the date of the scheduled hear- judge. ing. If you do not comply with this re- (a) General. We set the time and place quirement, the administrative law for any hearing. We may change the judge may decline to consider or obtain time and place, if it is necessary. After the evidence unless the circumstances sending you reasonable notice of the described in paragraph (b) of this sec- proposed action, the administrative tion apply. law judge may adjourn or postpone the (b) If you have evidence required hearing or reopen it to receive addi- under § 416.912 but you have missed the tional evidence any time before he or deadline described in paragraph (a) of she notifies you of a hearing decision. this section, the administrative law (b) Where we hold hearings. We hold judge will accept the evidence if he or hearings in the 50 States, the District she has not yet issued a decision and of Columbia, American Samoa, Guam, you did not inform us about or submit the Northern Mariana Islands, the the evidence before the deadline be- Commonwealth of Puerto Rico, and the cause: United States Virgin Islands. The (1) Our action misled you; ‘‘place’’ of the hearing is the hearing (2) You had a physical, mental, edu- office or other site(s) at which you and cational, or linguistic limitation(s) any other parties to the hearing are lo- that prevented you from informing us cated when you make your appear- about or submitting the evidence ear- ance(s) before the administrative law lier; or judge by video teleconferencing, in per- (3) Some other unusual, unexpected, son or, when the circumstances de- or unavoidable circumstance beyond scribed in paragraph (c)(2) of this sec- your control prevented you from in- tion exist, by telephone. forming us about or submitting the (c) Determining manner of hearing to evidence earlier. Examples include, but schedule. We will generally schedule are not limited to: you or any other party to the hearing (i) You were seriously ill, and your to appear either by video teleconfer- illness prevented you from contacting encing or in person. us in person, in writing, or through a (1) When we determine whether you friend, relative, or other person; will appear by video teleconferencing (ii) There was a death or serious ill- or in person, we consider the following ness in your immediate family; factors: (iii) Important records were de- (i) The availability of video tele- stroyed or damaged by fire or other ac- conferencing equipment to conduct the cidental cause; or appearance;

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(ii) Whether use of video teleconfer- days after the date you receive the no- encing to conduct the appearance tice. If you notify us within that time would be less efficient than conducting period and your residence does not the appearance in person; and change while your request for hearing (iii) Any facts in your particular case is pending, we will set your hearing for that provide a good reason to schedule a time and place at which you may your appearance by video teleconfer- make your appearance before the ad- encing or in person. ministrative law judge in person. (2) Subject to paragraph (c)(3) of this (1) Notwithstanding any objections section, we will schedule you or any you may have to appearing by video other party to the hearing to appear by teleconferencing, if you change your telephone when we find an appearance residence while your request for hear- by video teleconferencing or in person ing is pending, we may determine how is not possible or other extraordinary you will appear, including by video circumstances prevent you from ap- teleconferencing, as provided in para- pearing by video teleconferencing or in graph (c)(1) of this section. For us to person. consider your change of residence when (3) If you are incarcerated and video we schedule your hearing, you must teleconferencing is not available, we submit evidence verifying your new will schedule your appearance by tele- residence. phone, unless we find that there are (2) If you notify us that you object to facts in your particular case that pro- appearing by video teleconferencing vide a good reason to schedule your ap- more than 30 days after the date you pearance in person, if allowed by the receive our notice, we will extend the place of confinement, or by video tele- time period if you show you had good conferencing or in person upon your re- cause for missing the deadline. To de- lease. termine whether good cause exists for (4) We will generally direct any per- extending the deadline, we use the son we call as a witness, other than standards explained in § 416.1411. you or any other party to the hearing, including a medical expert or a voca- (e) Objecting to the time or place of the tional expert, to appear by telephone hearing. (1) If you wish to object to the or by video teleconferencing. Witnesses time or place of the hearing, you must: you call will appear at the hearing pur- (i) Notify us in writing at the earliest suant to § 416.1450(e). If they are unable possible opportunity, but not later to appear with you in the same manner than 5 days before the date set for the as you, we will generally direct them hearing or 30 days after receiving no- to appear by video teleconferencing or tice of the hearing, whichever is ear- by telephone. We will consider direct- lier; and ing witnesses to appear in person only (ii) State the reason(s) for your ob- when: jection and state the time or place you (i) Telephone or video teleconfer- want the hearing to be held. If the ad- encing equipment is not available to ministrative law judge finds you have conduct the appearance; good cause, as determined under para- (ii) We determine that use of tele- graph (e) of this section, we will change phone or video teleconferencing equip- the time or place of the hearing. ment would be less efficient than con- (2) If you notify us that you object to ducting the appearance in person; or the time or place of hearing less than 5 (iii) We find that there are facts in days before the date set for the hearing your particular case that provide a or, if earlier, more than 30 days after good reason to schedule this individ- receiving notice of the hearing, we will ual’s appearance in person. consider this objection only if you (d) Objecting to appearing by video tele- show you had good cause for missing conferencing. Prior to scheduling your the deadline. To determine whether hearing, we will notify you that we good cause exists for missing this dead- may schedule you to appear by video line, we use the standards explained in teleconferencing. If you object to ap- § 416.1411. pearing by video teleconferencing, you (f) Good cause for changing the time or must notify us in writing within 30 place. The administrative law judge

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will determine whether good cause ex- unavailable to attend the scheduled ists for changing the time or place of hearing and the evidence cannot be your scheduled hearing. If the adminis- otherwise obtained; trative law judge finds that good cause (v) Transportation is not readily exists, we will set the time or place of available for you to travel to the hear- the new hearing. A finding that good ing; or cause exists to reschedule the time or (vi) You are unrepresented, and you place of your hearing will generally not are unable to respond to the notice of change the assignment of the adminis- hearing because of any physical, men- trative law judge or how you or an- tal, educational, or linguistic limita- other party will appear at the hearing, tions (including any lack of facility unless we determine a change will pro- with the English language) which you mote efficiency in our hearing process. may have. (1) The administrative law judge will [84 FR 69307, Dec. 18, 2019] find good cause to change the time or place of your hearing if he or she deter- § 416.1437 Protecting the safety of the mines that, based on the evidence: public and our employees in our (i) A serious physical or mental con- hearing process. dition or incapacitating injury makes (a) Notwithstanding any other provi- it impossible for you or your represent- sion in this part or part 422 of this ative to travel to the hearing, or a chapter, we are establishing the proce- death in the family occurs; or dures set out in this section to ensure (ii) Severe weather conditions make the safety of the public and our em- it impossible for you or your represent- ployees in our hearing process. ative to travel to the hearing. (b)(1) At the request of any hearing (2) In determining whether good office employee, the Hearing Office cause exists in circumstances other Chief Administrative Law Judge will than those set out in paragraph (f)(1) of determine, after consultation with the this section, the administrative law presiding administrative law judge, judge will consider your reason(s) for whether a claimant or other individual requesting the change, the facts sup- poses a reasonable threat to the safety porting it, and the impact of the proof our employees or other participants posed change on the efficient adminis- in the hearing. The Hearing Office tration of the hearing process. Factors Chief Administrative Law Judge will affecting the impact of the change in- find that a claimant or other indi- clude, but are not limited to, the effect vidual poses a threat to the safety of on the processing of other scheduled our employees or other participants in hearings, delays that might occur in the hearing when he or she determines rescheduling your hearing, and wheth- that the individual has made a threat er we previously granted you any and there is a reasonable likelihood changes in the time or place of your that the claimant or other individual hearing. Examples of such other cir- could act on the threat or when evi- cumstances that you might give for re- dence suggests that a claimant or questing a change in the time or place other individual poses a threat. In of the hearing include, but are not lim- making a finding under this paragraph, ited to, the following: the Hearing Office Chief Administra- (i) You unsuccessfully attempted to tive Law Judge will consider all rel- obtain a representative and need addi- evant evidence, including any informational time to secure representation; tion we have in the claimant’s record (ii) Your representative was ap- and any information we have regarding pointed within 30 days of the scheduled the claimant’s or other individual’s hearing and needs additional time to past conduct. prepare for the hearing; (2) If the Hearing Office Chief Admin- (iii) Your representative has a prior istrative Law Judge determines that commitment to be in court or at an- the claimant or other individual poses other administrative hearing on the a reasonable threat to the safety of our date scheduled for the hearing; employees or other participants in the (iv) A witness who will testify to hearing, the Hearing Office Chief Ad- facts material to your case would be ministrative Law Judge will either:

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(i) Require the presence of a security ten evidence that is not already in the guard at the hearing; or record no later than 5 business days be- (ii) Require that the hearing be con- fore the date of the scheduled hearing, ducted by video teleconference or by unless you show that your cir- telephone. cumstances meet the conditions de- (c) If we have banned a claimant from scribed in § 416.1435(b); and any of our facilities, we will provide (7) Any other information about the the claimant with the opportunity for scheduling and conduct of your hear- a hearing that will be conducted by ing. telephone. (c) Acknowledging the notice of hear- (d) The actions of the Hearing Office ing. The notice of hearing will ask you Chief Administrative Law Judge taken to return a form to let us know that under this section are final and not you received the notice. If you or your subject to further review. representative do not acknowledge re- [76 FR 13508, Mar. 14, 2011, as amended at 77 ceipt of the notice of hearing, we will FR 10658, Feb. 23, 2012] attempt to contact you for an explanation. If you tell us that you did not § 416.1438 Notice of a hearing before receive the notice of hearing, an an administrative law judge. amended notice will be sent to you by (a) Issuing the notice. After we set the certified mail. time and place of the hearing, we will (d) Amended notice of hearing or notice mail notice of the hearing to you at of supplemental hearing. If we need to your last known address, or give the send you an amended notice of hearing, notice to you by personal service, un- we will mail or serve the notice at less you have indicated in writing that least 20 days before the date of the you do not wish to receive this notice. hearing. Similarly, if we schedule a We will mail or serve the notice at supplemental hearing, after the initial least 75 days before the date of the hearing was continued by the assigned hearing. administrative law judge, we will mail (b) Notice information. The notice of or serve a notice of hearing at least 20 hearing will tell you: days before the date of the hearing. (1) The specific issues to be decided [68 FR 5220, Feb. 3, 2003, as amended at 75 FR in your case; 39161, July 8, 2010; 78 FR 29628, May 21, 2013; (2) That you may designate a person 79 FR 35934, June 25, 2014; 81 FR 90995, Dec. to represent you during the pro- 16, 2016; 84 FR 69308, Dec. 18, 2019] ceedings; (3) How to request that we change the § 416.1439 Objections to the issues. time or place of your hearing; If you object to the issues to be de- (4) That your hearing may be dis- cided at the hearing, you must notify missed if neither you nor the person the administrative law judge in writing you designate to act as your represent- at the earliest possible opportunity, ative appears at your scheduled hear- but no later than 5 business days before ing without good reason under the date set for the hearing, unless you § 416.1457; show that your circumstances meet the (5) Whether your appearance or that conditions described in § 416.1435(b). of any other party or witness is sched- You must state the reason(s) for your uled to be made by video teleconfer- objection(s). The administrative law encing, in person, or, when the cir- judge will make a decision on your ob- cumstances described in § 416.1436(c)(2) jection(s) either at the hearing or in exist, by telephone. If we have sched- writing before the hearing. uled you to appear by video teleconferencing, the notice of hearing will tell [81 FR 90995, Dec. 16, 2016 you that the scheduled place for the hearing is a video teleconferencing site § 416.1440 Disqualification of the ad- and explain what it means to appear at ministrative law judge. your hearing by video teleconfer- An administrative law judge shall encing; not conduct a hearing if he or she is (6) That you must make every effort prejudiced or partial with respect to to inform us about or submit all writ- any party or has any interest in the

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matter pending for decision. If you ob- will mail a written notice of the reject to the administrative law judge vised determination to all parties at who will conduct the hearing, you their last known addresses. We will must notify the administrative law state the basis for the revised deter- judge at your earliest opportunity. The mination and advise all parties of the administrative law judge shall consider effect of the revised determination on your objections and shall decide wheth- the request for a hearing. er to proceed with the hearing or with- (d) Effect of a fully favorable revised draw. If he or she withdraws, the Asso- determination. If the revised determina- ciate Commissioner for Hearings and tion is fully favorable to you, we will Appeals, or his or her delegate, will ap- tell you in the notice that an adminis- point another administrative law judge trative law judge will dismiss the re- to conduct the hearing. If the adminis- quest for a hearing. We will also tell trative law judge does not withdraw, you that you or another party to the you may, after the hearing, present hearing may request that the adminis- your objections to the Appeals Council trative law judge vacate the dismissal as reasons why the hearing decision and reinstate the request for a hearing should be revised or a new hearing held if you or another party to the hearing before another administrative law disagrees with the revised determina- judge. tion for any reason. If you wish to make this request, you must do so in § 416.1441 Prehearing case review. writing and send it to us within 60 days (a) General. After a hearing is re- of the date you receive notice of the quested but before it is held, we may, dismissal. If the request is timely, an for the purposes of a prehearing case administrative law judge will vacate review, forward the case to the compo- the dismissal, reinstate the request for nent of our office (including a State a hearing, and offer you and all parties agency) that issued the determination an opportunity for a hearing. The ad- being reviewed. That component will ministrative law judge will extend the decide whether it should revise the de- time limit if you show that you had termination based on the preponder- good cause for missing the deadline. ance of the evidence. A revised deter- The administrative law judge will use mination may be fully or partially fa- the standards in § 416.1411 to determine vorable to you. A prehearing case re- whether you had good cause. view will not delay the scheduling of a (e) Effect of a partially favorable rehearing unless you agree to continue vised determination. If the revised deter- the review and delay the hearing. If the mination is partially favorable to you, prehearing case review is not com- we will tell you in the notice what was pleted before the date of the hearing, not favorable. We will also tell you the case will be sent to the administra- that an administrative law judge will tive law judge unless a favorable re- hold the hearing you requested unless vised determination is in process or you and all other parties to the hearing you and the other parties to the hear- agree in writing to dismiss the request ing agree in writing to delay the hear- for a hearing. An administrative law ing until the review is completed. judge will dismiss the request for a (b) When a prehearing case review may hearing if we receive the written state- be conducted. We may conduct a pre- ment(s) agreeing to dismiss the request hearing case review if— for a hearing before an administrative (1) Additional evidence is submitted; law judge mails a notice of his or her (2) There is an indication that addi- hearing decision. tional evidence is available; [45 FR 52096, Aug. 5, 1980, as amended at 73 (3) There is a change in the law or FR 76945, Dec. 18, 2008; 75 FR 33169, June 11, regulation; or 2010; 76 FR 65370, Oct. 21, 2011] (4) There is an error in the file or some other indication that the prior § 416.1442 Prehearing proceedings and determination may be revised. decisions by attorney advisors. (c) Notice of a prehearing revised deter- (a) General. After a hearing is re- mination. If we revise the determina- quested but before it is held, an attor- tion in a prehearing case review, we ney advisor may conduct prehearing

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proceedings as set out in paragraph (c) must do so in writing and send it to us of this section. If after the completion within 60 days of the date he or she re- of these proceedings we can make a de- ceives notice of the decision. The ad- cision that is fully favorable to you ministrative law judge will extend the and all other parties based on the pre- time limit if the requestor shows good ponderance of the evidence, an attor- cause for missing the deadline. The ad- ney advisor, instead of an administra- ministrative law judge will use the tive law judge, may issue the decision. standards in § 416.1411 to determine The conduct of the prehearing pro- whether there is good cause. If the re- ceedings by the attorney advisor will quest is timely, an administrative law not delay the scheduling of a hearing. judge will reinstate the request for a If the prehearing proceedings are not hearing and offer all parties an oppor- completed before the date of the hear- tunity for a hearing. ing, the case will be sent to the administrative law judge unless a fully favor- (e) Effect of an attorney advisor’s deci- able decision is in process or you and sion. An attorney advisor’s decision all other parties to the hearing agree under this section is binding unless— in writing to delay the hearing until (1) You or another party to the hear- the proceedings are completed. ing submits a timely request that an (b) When prehearing proceedings may administrative law judge reinstate the be conducted by an attorney advisor. An request for a hearing under paragraph attorney advisor may conduct pre- (d) of this section; hearing proceedings if you have filed a (2) The Appeals Council reviews the claim for SSI benefits based on dis- decision on its own motion pursuant to ability and— § 416.1469 as explained in paragraph (1) New and material evidence is sub- (f)(3) of this section; or mitted; (3) The decision of the attorney advi- (2) There is an indication that addi- sor is revised under the procedures ex- tional evidence is available; plained in § 416.1487. (3) There is a change in the law or (f) Ancillary provisions. For the pur- regulations; or poses of the procedures authorized by (4) There is an error in the file or this section, the regulations of part 416 some other indication that a fully fa- shall apply to— vorable decision may be issued. (c) Nature of the prehearing pro- (1) Authorize an attorney advisor to ceedings that may be conducted by an at- exercise the functions performed by an torney advisor. As part of the pre- administrative law judge under hearing proceedings, the attorney advi- §§ 416.913a, 416.920a, 416.926, and 416.946. sor, in addition to reviewing the exist- (2) Define the term ‘‘decision’’ to ining record, may— clude a decision made by an attorney (1) Request additional evidence that advisor, as well as the decisions identi- may be relevant to the claim, includ- fied in § 416.1401; and ing medical evidence; and (3) Make the decision of an attorney (2) If necessary to clarify the record advisor under paragraph (d) of this sec- for the purpose of determining if a tion subject to review by the Appeals fully favorable decision is warranted, Council if the Appeals Council decides schedule a conference with the parties. to review the decision of the attorney (d) Notice of a decision by an attorney advisor anytime within 60 days after advisor. If an attorney advisor issues a the date of the decision under § 416.1469. fully favorable decision under this section, we will mail a written notice of [60 FR 34132, June 30, 1995, as amended at 63 the decision to all parties at their last FR 35516, June 30, 1998; 64 FR 13678, Mar. 22, known addresses. We will state the 1999; 64 FR 51894, Sept. 27, 1999; 65 FR 16815, Mar. 30, 2000; 72 FR 44765, Aug. 9, 2007; 73 FR basis for the decision and advise all 76945, Dec. 18, 2008; 74 FR 33328, July 13, 2009; parties that they may request that an 76 FR 18384, Apr. 4, 2011; 76 FR 65371, Oct. 21, administrative law judge reinstate the 2011; 78 FR 45460, July 29, 2013; 80 FR 31991, request for a hearing if they disagree June 5, 2015; 82 FR 5884, Jan. 18, 2017; 83 FR with the decision for any reason. Any 712, Jan. 8, 2018; 83 FR 28993, June 22, 2018; 83 party who wants to make this request FR 40453, Aug. 15, 2018]

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§ 416.1443 Responsibilities of the adju- you are under a disability as defined in dication officer. §§ 416.905 and 416.906 is at issue, the ad- (a)(1) General. Under the procedures judication officer will conduct an set out in this section we will test interview with you. The interview may modifications to the procedures we fol- take place in person, by telephone, or low when you file a request for a hear- by videoconference, as the adjudication ing before an administrative law judge officer determines is appropriate under in connection with a claim for benefits the circumstances of your case. If you based on disability where the question file a request for an extension of time of whether you are under a disability to request a hearing in accordance with as defined in §§ 416.905 and 416.906 is at § 416.1433(c), the adjudication officer issue. These modifications will enable may develop information on, and may us to test the effect of having an adju- decide where the adjudication officer dication officer be your primary point issues a fully favorable decision to you of contact after you file a hearing re- that you had good cause for missing quest and before you have a hearing the deadline for requesting a hearing. with an administrative law judge. The To determine whether you had good tests may be conducted alone, or in cause for missing the deadline, the ad- combination with the tests of the judication officer will use the stand- modifications to the disability deter- ards contained in § 416.1411. mination procedures which we conduct (2) Representation. The adjudication under § 416.1406. The adjudication offi- officer will provide you with informa- cer, working with you and your rep- tion regarding the hearing process, in- resentative, if any, will identify issues cluding your right to representation. in dispute, develop evidence, conduct As may be appropriate, the adjudica- informal conferences, and conduct any tion officer will provide you with refer- other prehearing proceeding as may be ral sources for representation, and give necessary. The adjudication officer has you copies of necessary documents to the authority to make a decision fully facilitate the appointment of a rep- favorable to you if the evidence so war- resentative. If you have a representa- rants. If the adjudication officer does tive, the adjudication officer will con- not make a decision on your claim, duct an informal conference with the your hearing request will be assigned representative, in person or by tele- to an administrative law judge for fur- phone, to identify the issues in dispute ther proceedings. and prepare proposed written agree- (2) Procedures for cases included in the ments for the approval of the adminis- tests. Prior to commencing tests of the trative law judge regarding those adjudication officer position in se- issues which are not in dispute and lected site(s), we will publish a notice those issues proposed for the hearing. in the FEDERAL REGISTER. The notice If you decide to proceed without rep- will describe where the specific test resentation, the adjudication officer site(s) will be and the duration of the may hold an informal conference with test(s). We will also state whether the you. If you obtain representation after tests of the adjudication officer posi- the adjudication officer has concluded tion in each site will be conducted that your case is ready for a hearing, alone, or in combination with the tests the administrative law judge will re- of the modifications to the disability turn your case to the adjudication offi- determination procedures which we cer who will conduct an informal con- conduct under § 416.1406. The individ- ference with you and your representa- uals who participate in the test(s) will tive. be assigned randomly to a test group in (3) Evidence. You, or your representa- each site where the tests are con- tive, may submit, or may be asked to ducted. obtain and submit, additional evidence (b)(1) Prehearing procedures conducted to the adjudication officer. As the adju- by an Adjudication Officer. When you dication officer determines is appro- file a request for a hearing before an priate under the circumstances of your administrative law judge in connection case, the adjudication officer may refer with a claim for benefits based on dis- the claim for further medical or voca- ability where the question of whether tional evidence.

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(4) Referral for a hearing. The adju- judication officer may also evaluate dication officer will refer the claim to the severity of your mental impair- the administrative law judge for fur- ments in the same manner that an ad- ther proceedings when the development ministrative law judge is authorized to of evidence is complete, and you or do so under § 416.920a. The adjudication your representative agree that a hear- officer’s decision will be based on the ing is ready to be held. If you or your evidence which is included in the representative are unable to agree with record and, subject to paragraph (c)(2) the adjudication officer that the devel- of this section, will complete the ac- opment of evidence is complete, the ad- tions that will be taken on your re- judication officer will note your dis- quest for hearing. A copy of the deci- agreement and refer the claim to the sion will be mailed to all parties at administrative law judge for further their last known address. We will tell proceedings. At this point, the admin- you in the notice that the administra- istrative law judge conducts all further tive law judge will not hold a hearing hearing proceedings, including sched- unless a party to the hearing requests uling and holding a hearing, (§ 416.1436), that the hearing proceed. A request to considering any additional evidence or proceed with the hearing must be made arguments submitted (§§ 416.1435, in writing within 30 days after the date 416.1444, 416.1449, 416.1450), and issuing a the notice of the decision of the adju- decision or dismissal of your request dication officer is mailed. for a hearing, as may be appropriate (2) Effect of a decision by an adjudica- (§§ 416.1448, 416.1453, 416.1457). In addition officer. A decision by an adjudication, if the administrative law judge tion officer which is fully favorable to determines on or before the date of you under this section, and notifica- your hearing that the development of tion thereof, completes the administra- evidence is not complete, the adminis- tive action on your request for hearing trative law judge may return the claim and is binding on all parties to the to the adjudication officer to complete hearing and not subject to further re- the development of the evidence and view, unless— for such other action as necessary. (i) You or another party requests (c)(1) Fully favorable decisions issued that the hearing continue, as provided by an adjudication officer. If, after a in paragraph (c)(1) of this section; hearing is requested but before it is (ii) The Appeals Council decides to held, the adjudication officer decides review the decision on its own motion that the evidence in your case war- under the authority provided in rants a decision which is fully favor- § 416.1469; able to you, the adjudication officer (iii) The decision is revised under the may issue such a decision. For pur- procedures explained in §§ 416.1487 poses of the tests authorized under this through 416.1489; or section, the adjudication officer’s deci- (iv) In a case remanded by a Federal sion shall be considered to be a deci- court, the Appeals Council assumes ju- sion as defined in § 416.1401. If the adju- risdiction under the procedures in dication officer issues a decision under § 416.1484. this section, it will be in writing and (3) Fee for a representative’s services. will give the findings of fact and the The adjudication officer may authorize reasons for the decision. The adjudica- a fee for your representative’s services tion officer will evaluate the issues rel- if the adjudication officer makes a de- evant to determining whether or not cision on your claim that is fully favor- you are disabled in accordance with the able to you, and you are represented. provisions of the Social Security Act, The actions of, and any fee authoriza- the rules in this part and part 422 of tion made by, the adjudication officer this chapter and applicable Social Se- with respect to representation will be curity Rulings. For cases in which the made in accordance with the provisions adjudication officer issues a decision, of subpart O of this part. he or she may determine your residual (d) Who may be an adjudication officer. functional capacity in the same man- The adjudication officer described in ner that an administrative law judge is this section may be an employee of the authorized to do so in § 416.946. The ad- Social Security Administration or a

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State agency that makes disability de- a claim that is within the jurisdiction terminations for us. of a State agency under a Federal- State agreement concerning the deter- [60 FR 47476, Sept. 13, 1995, as amended at 75 FR 33169, June 11, 2010] mination of disability. (2) Notice of a new issue. The adminis- ADMINISTRATIVE LAW JUDGE HEARING trative law judge shall notify you and PROCEDURES any other party if he or she will consider any new issue. Notice of the time § 416.1444 Administrative law judge and place of the hearing on any new hearing procedures—general. issues will be given in the manner de- A hearing is open to the parties and scribed in § 416.1438, unless you have in- to other persons the administrative dicated in writing that you do not wish law judge considers necessary and to receive the notice. proper. At the hearing, the administrative law judge looks fully into the [45 FR 52096, Aug. 5, 1980, as amended at 51 issues, questions you and the other FR 307, Jan. 3, 1986] witnesses, and, subject to the provi- § 416.1448 Deciding a case without an sions of § 416.1435: Accepts as evidence oral hearing before an administra- any documents that are material to tive law judge. the issues; may stop the hearing temporarily and continue it at a later date (a) Decision fully favorable. If the evi- if he or she finds that there is material dence in the hearing record supports a evidence missing at the hearing; and finding in favor of you and all the par- may reopen the hearing at any time be- ties on every issue, the administrative fore he or she mails a notice of the de- law judge may issue a hearing decision cision in order to receive new and ma- based on a preponderance of the evi- terial evidence. The administrative law dence without holding an oral hearing. judge may decide when the evidence The notice of the decision will state will be presented and when the issues that you have the right to an oral hear- will be discussed. ing and to examine the evidence on which the administrative law judge [81 FR 90995, Dec. 16, 2016 based the decision. § 416.1446 Issues before an administra- (b) Parties do not wish to appear. (1) tive law judge. The administrative law judge may decide a case on the record and not con- (a) General. The issues before the ad- duct an oral hearing if— ministrative law judge include all the issues brought out in the initial, recon- (i) You and all the parties indicate in sidered or revised determination that writing that you do not wish to appear were not decided entirely in your favor. before the administrative law judge at However, if evidence presented before an oral hearing; or or during the hearing causes the ad- (ii) You live outside the United ministrative law judge to question a States, you do not inform us that you fully favorable determination, he or wish to appear, and there are no other she will notify you and will consider it parties who wish to appear. an issue at the hearing. (2) When an oral hearing is not held, (b) New issues—(1) General. The ad- the administrative law judge shall ministrative law judge may consider a make a record of the material evi- new issue at the hearing if he or she dence. The record will include the ap- notifies you and all the parties about plications, written statements, certifi- the new issue any time after receiving cates, reports, affidavits, and other the hearing request and before mailing documents which were used in making notice of the hearing decision. The ad- the determination under review and ministrative law judge or any party any additional evidence you or any may raise a new issue; an issue may be other party to the hearing present in raised even though it arose after the writing. The decision of the adminis- request for a hearing and even though trative law judge must be based on this it has not been considered in an initial record. or reconsidered determination. How- (c) Case remanded for a revised deter- ever, it may not be raised if it involves mination. (1) The administrative law

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judge may remand a case to the appro- when the conditions in § 416.1436(c)(2) priate component of our office for a re- exist, by telephone. vised determination if there is reason (b) Waiver of the right to appear. You to believe that the revised determina- may send the administrative law judge tion would be fully favorable to you. a waiver or a written statement indi- This could happen if the administrative cating that you do not wish to appear law judge receives new and material at the hearing. You may withdraw this evidence or if there is a change in the waiver any time before a notice of the law that permits the favorable deter- hearing decision is mailed to you. Even mination. if all of the parties waive their right to (2) Unless you request the remand appear at a hearing, we may notify the administrative law judge shall no- them of a time and a place for an oral tify you that your case has been rehearing, if the administrative law manded and tell you that if you object, judge believes that a personal appear- you must notify him or her of your ob- ance and testimony by you or any jections within 10 days of the date the other party is necessary to decide the case is remanded or we will assume case. that you agree to the remand. If you (c) Subject to the object to the remand, the administra- Admissible evidence. tive law judge will consider the objec- provisions of § 416.1435, the administration and rule on it in writing. tive law judge may receive any evidence at the hearing that he or she be- [45 FR 52096, Aug. 5, 1980, as amended at 51 lieves is material to the issues, even FR 307, Jan. 3, 1986; 73 FR 76945, Dec. 18, 2008; though the evidence would not be ad- 75 FR 33169, June 11, 2010; 76 FR 65371, Oct. 21, missible in court under the rules of evi- 2011] dence used by the court. § 416.1449 Presenting written state- (d) Subpoenas. (1) When it is reason- ments and oral arguments. ably necessary for the full presentation You or a person you designate to act of a case, an administrative law judge as your representative may appear be- or a member of the Appeals Council fore the administrative law judge to may, on his or her own initiative or at state your case, present a written sum- the request of a party, issue subpoenas mary of your case, or enter written for the appearance and testimony of statements about the facts and law ma- witnesses and for the production of terial to your case in the record. If pre- books, records, correspondence, papers, senting written statements prior to or other documents that are material hearing, you must provide a copy of to an issue at the hearing. your written statements for each party (2) Parties to a hearing who wish to no later than 5 business days before the subpoena documents or witnesses must date set for the hearing, unless you file a written request for the issuance show that your circumstances meet the of a subpoena with the administrative conditions described in § 416.1435(b). law judge or at one of our offices at [81 FR 90996, Dec. 16, 2016] least 10 business days before the hearing date, unless you show that your § 416.1450 Presenting evidence at a circumstances meet the conditions de- hearing before an administrative scribed in § 416.1435(b). The written re- law judge. quest must give the names of the wit- (a) The right to appear and present evi- nesses or documents to be produced; dence. Any party to a hearing has a describe the address or location of the right to appear before the administra- witnesses or documents with sufficient tive law judge, either by video tele- detail to find them; state the impor- conferencing, in person, or, when the tant facts that the witness or docu- conditions in § 416.1436(c)(2) exist, by ment is expected to prove; and indicate telephone, to present evidence and to why these facts could not be proven state his or her position. A party may without issuing a subpoena. also make his or her appearance by (3) We will pay the cost of issuing the means of a designated representative, subpoena. who may make the appearance by (4) We will pay subpoenaed witnesses video teleconferencing, in person, or, the same fees and mileage they would

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receive if they had been subpoenaed by tive law judge relies for the decision a Federal district court. must be contained in the record, either (e) Witnesses at a hearing. Witnesses directly or by appropriate reference. you call may appear at a hearing with The official record will include the ap- you in the same manner in which you plications, written statements, certifi- are scheduled to appear. If they are un- cates, reports, affidavits, medical able to appear with you in the same records, and other documents that manner as you, they may appear as were used in making the decision under prescribed in § 416.1436(c)(4). Witnesses review and any additional evidence or called by the administrative law judge written statements that the adminis- will appear in the manner prescribed in trative law judge admits into the § 416.1436(c)(4). They will testify under record under §§ 416.1429 and 416.1435. All oath or affirmation unless the adminis- exhibits introduced as evidence must trative law judge finds an important reason to excuse them from taking an be marked for identification and incor- oath or affirmation. The administra- porated into the record. The official tive law judge may ask the witness any record of your claim will contain all of questions material to the issues and the marked exhibits and a verbatim re- will allow the parties or their des- cording of all testimony offered at the ignated representatives to do so. hearing. It also will include any prior (f) Collateral estoppel—issues previously initial determinations or decisions on decided. An issue at your hearing may your claim. be a fact that has already been decided [81 FR 90996, Dec. 16, 2016 in one of our previous determinations or decisions in a claim involving the § 416.1452 Consolidated hearings be- same parties, but arising under a dif- fore an administrative law judge. ferent title of the Act or under the Federal Coal Mine Health and Safety (a) General. (1) A consolidated hear- Act. If this happens, the administrative ing may be held if— law judge will not consider the issue (i) You have requested a hearing to again, but will accept the factual find- decide your eligibility for supple- ing made in the previous determination mental security income benefits and or decision unless there are reasons to you have also requested a hearing to believe that it was wrong. decide your rights under another law [45 FR 52096, Aug. 5, 1980, as amended at 51 we administer; and FR 307, Jan. 3, 1986; 68 FR 5221, Feb. 3, 2003; (ii) One or more of the issues to be 75 FR 39161, July 8, 2010; 78 FR 29628, May 21, considered at the hearing you re- 2013; 81 FR 90996, Dec. 16, 2016; 84 FR 69308, quested are the same issues that are in- Dec. 18, 2019] volved in another claim you have pending before us. § 416.1451 Official record. (2) If the administrative law judge (a) Hearing recording. All hearings decides to hold the hearing on both will be recorded. The hearing recording claims, he or she decides both claims, will be prepared as a typed copy of the even if we have not yet made an initial proceedings if— or reconsidered determination on the (1) The case is sent to the Appeals other claim. Council without a decision or with a recommended decision by the adminis- (b) Record, evidence, and decision. trative law judge; There will be a single record at a con- (2) You seek judicial review of your solidated hearing. This means that the case by filing an action in a Federal evidence introduced in one case be- district court within the stated time comes evidence in the other(s). The ad- period, unless we request the court to ministrative law judge may make ei- remand the case; or ther a separate or consolidated deci- (3) An administrative law judge or sion. the Appeals Council asks for a written [45 FR 52096, Aug. 5, 1980, as amended at 51 record of the proceedings. FR 308, Jan. 3, 1986] (b) Contents of the official record. All evidence upon which the administra-

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§ 416.1453 The decision of an adminis- (2) Good cause for extending the time trative law judge. period may be found under the fol- (a) General. The administrative law lowing circumstances: judge shall issue a written decision (i) Delay caused by you or by your rep- which gives the findings of fact and the resentative’s action. The time period for reasons for the decision. The adminis- decision in this instance may be ex- trative law judge must base the deci- tended by the total number of days of sion on the preponderance of the evi- the delays. The delays include delays dence offered at the hearing or other- in submitting evidence, briefs, or other wise included in the record. The admin- statements, postponements or adjourn- istrative law judge shall mail a copy of ments made at your request, and any the decision to all the parties at their other delays caused by you or your rep- last known address. The Appeals Coun- resentative. cil may also receive a copy of the deci- (ii) Other delays. The time period for sion. decision may be extended where delays (b) Fully favorable oral decision entered occur through no fault of the Commis- into the record at the hearing. The ad- sioner. In this instance, the decision ministrative law judge may enter a will be issued as soon as practicable. fully favorable oral decision based on (d) Recommended decision. Although the preponderance of the evidence into an administrative law judge will usu- the record of the hearing proceedings. ally make a decision, the administra- If the administrative law judge enters tive law judge may send the case to the a fully favorable oral decision into the Appeals Council with a recommended record of the hearing proceedings, the decision based on a preponderance of administrative law judge may issue a the evidence when appropriate. The ad- written decision that incorporates the ministrative law judge will mail a copy oral decision by reference. The admin- of the recommended decision to the istrative law judge may use this proce- parties at their last known addresses dure only in those categories of cases and send the recommended decision to that we identify in advance. The ad- the Appeals Council. ministrative law judge may only use [45 FR 52096, Aug. 5, 1980, as amended at 51 this procedure in those cases where the FR 308, Jan. 3, 1986; 54 FR 37793, Sept. 13, administrative law judge determines 1989; 62 FR 38455, July 18, 1997; 69 FR 61597, that no changes are required in the Oct. 20, 2004; 73 FR 76945, Dec. 18, 2008; 75 FR findings of fact or the reasons for the 33169, June 11, 2010] decision as stated at the hearing. If a fully favorable decision is entered into § 416.1455 The effect of an administra- the record at the hearing, the adminis- tive law judge’s decision. trative law judge will also include in The decision of the administrative the record, as an exhibit entered into law judge is binding on all parties to the record at the hearing, a document the hearing unless— that sets forth the key data, findings of (a) You or another party request a re- fact, and narrative rationale for the de- view of the decision by the Appeals cision. If the decision incorporates by Council within the stated time period, reference the findings and the reasons and the Appeals Council reviews your stated in an oral decision at the hear- case; ing, the parties shall also be provided, (b) You or another party requests a upon written request, a record of the review of the decision by the Appeals oral decision. Council within the stated time period, (c) Time for the administrative law the Appeals Council denies your re- judge’s decision. (1) The administrative quest for review, and you seek judicial law judge must issue the hearing deci- review of your case by filing an action sion no later than 90 days after the rein a Federal district court; quest for hearing is filed, unless— (c) The decision is revised by an ad- (i) The matter to be decided is wheth- ministrative law judge or the Appeals er you are disabled; or Council under the procedures explained (ii) There is good cause for extending in § 416.1487; the time period because of unavoidable (d) The expedited appeals process is circumstances. used;

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(e) The decision is a recommended the hearing and within 10 days after decision directed to the Appeals Coun- the administrative law judge mails you cil; or a notice asking why you did not ap- (f) In a case remanded by a Federal pear, you do not give a good reason for court, the Appeals Council assumes ju- the failure to appear. risdiction under the procedures in (2) In determining good cause or good § 416.1484. reason under this paragraph, we will [45 FR 52096, Aug. 5, 1980, as amended at 51 consider any physical, mental, edu- FR 308, Jan. 3, 1986; 54 FR 37793, Sept. 13, cational, or linguistic limitations (in- 1989] cluding any lack of facility with the English language) which you may have. § 416.1456 Removal of a hearing re- (c) The administrative law judge de- quest from an administrative law judge to the Appeals Council. cides that there is cause to dismiss a hearing request entirely or to refuse to If you have requested a hearing and consider any one or more of the issues the request is pending before an admin- because— istrative law judge, the Appeals Coun- (1) The doctrine of res judicata applies cil may assume responsibility for hold- in that we have made a previous deter- ing a hearing by requesting that the mination or decision under this sub- administrative law judge send the part about your rights on the same hearing request to it. If the Appeals facts and on the same issue or issues, Council holds a hearing, it shall con- and this previous determination or deduct the hearing according to the rules cision has become final by either ad- for hearings before an administrative ministrative or judicial action; law judge. Notice shall be mailed to all (2) The person requesting a hearing parties at their last known address has no right to it under § 416.1430; telling them that the Appeals Council has assumed responsibility for the (3) You did not request a hearing case. within the stated time period and we have not extended the time for request- [45 FR 52096, Aug. 5, 1980, as amended at 51 ing a hearing under § 416.1433(c); or FR 308, Jan. 3, 1986] (4) You die, there are no other par- § 416.1457 Dismissal of a request for a ties, and we have no information to hearing before an administrative show that you may have a survivor law judge. who may be paid benefits due to you An administrative law judge may dis- under § 416.542(b) and who wishes to miss a request for a hearing under any pursue the request for hearing, or that of the following conditions: you authorized interim assistance re- (a) At any time before notice of the imbursement to a State pursuant to hearing decision is mailed, you or the section 1631(g) of the Act. The adminis- party or parties that requested the trative law judge, however, will vacate hearing ask to withdraw the request. a dismissal of the hearing request if, This request may be submitted in writ- within 60 days after the date of the dis- ing to the administrative law judge or missal: made orally at the hearing. (i) A person claiming to be your sur- (b)(1)(i) Neither you nor the person vivor, who may be paid benefits due to you designate to act as your represent- you under § 416.542(b), submits a writ- ative appears at the time and place set ten request for a hearing, and shows for the hearing and you have been noti- that a decision on the issues that were fied before the time set for the hearing to be considered at the hearing may ad- that your request for a hearing may be versely affect him or her; or dismissed without further notice if you (ii) We receive information showing did not appear at the time and place of that you authorized interim assistance hearing, and good cause has not been reimbursement to a State pursuant to found by the administrative law judge section 1631(g) of the Act. for your failure to appear; or [45 FR 52096, Aug. 5, 1980, as amended at 50 (ii) Neither you nor the person you FR 21439, May 24, 1985; 51 FR 308, Jan. 3, 1986; designate to act as your representative 58 FR 52913, Oct. 13, 1993; 59 FR 1637, Jan. 12, appears at the time and place set for 1994]

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§ 416.1458 Notice of dismissal of a re- § 416.1461 Prehearing and posthearing quest for a hearing before an ad- conferences. ministrative law judge. The administrative law judge may We shall mail a written notice of the decide on his or her own, or at the re- dismissal of the hearing request to all quest of any party to the hearing, to parties at their last known address. hold a prehearing or posthearing con- The notice will state that there is a ference to facilitate the hearing or the right to request that the Appeals Coun- hearing decision. The administrative cil vacate the dismissal action. law judge shall tell the parties of the [45 FR 52096, Aug. 5, 1980, as amended at 51 time, place and purpose of the con- FR 308, Jan. 3, 1986] ference at least seven days before the conference date, unless the parties § 416.1459 Effect of dismissal of a re- have indicated in writing that they do quest for a hearing before an ad- not wish to receive a written notice of ministrative law judge. the conference. At the conference, the The dismissal of a request for a hear- administrative law judge may consider ing is binding, unless it is vacated by matters in addition to those stated in an administrative law judge or the Ap- the notice, if the parties consent in peals Council. writing. A record of the conference will [45 FR 52096, Aug. 5, 1980, as amended at 51 be made. The administrative law judge FR 308, Jan. 3, 1986] shall issue an order stating all agreements and actions resulting from the § 416.1460 Vacating a dismissal of a re- conference. If the parties do not object, quest for a hearing before an ad- the agreements and actions become ministrative law judge. part of the hearing record and are bind- (a) Except as provided in paragraph ing on all parties. (b) of this section, an administrative law judge or the Appeals Council may § 416.1465 [Reserved] vacate a dismissal of a request for a hearing if you request that we vacate APPEALS COUNCIL REVIEW the dismissal. If you or another party wish to make this request, you must do § 416.1466 Testing elimination of the so within 60 days of the date you re- request for Appeals Council review. ceive notice of the dismissal, and you (a) Applicability and scope. Notwith- must state why our dismissal of your standing any other provision in this request for a hearing was erroneous. part or part 422 of this chapter, we are The administrative law judge or Ap- establishing the procedures set out in peals Council will inform you in writ- this section to test elimination of the ing of the action taken on your re- request for review by the Appeals quest. The Appeals Council may also Council. These procedures will apply in vacate a dismissal of a request for a randomly selected cases in which we hearing on its own motion. If the Ap- have tested a combination of model peals Council decides to vacate a dis- procedures for modifying the disability missal on its own motion, it will do so claim process as authorized under within 60 days of the date we mail the §§ 416.1406 and 416.1443, and in which an notice of dismissal and will inform you administrative law judge has issued a in writing that it vacated the dis- decision (not including a recommended missal. decision) that is less than fully favor- (b) If you wish to proceed with a able to you. hearing after you received a fully fa- (b) Effect of an administrative law vorable revised determination under judge’s decision. In a case to which the the prehearing case review process in procedures of this section apply, the § 416.1441, you must follow the proce- decision of an administrative law judge dures in § 416.1441(d) to request that an will be binding on all the parties to the administrative law judge vacate his or hearing unless— her order dismissing your request for a (1) You or another party file an ac- hearing. tion concerning the decision in Federal [76 FR 65371, Oct. 21, 2011] district court;

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(2) The Appeals Council decides to re- peals Council review by filing a written view the decision on its own motion request. You should submit any evi- under the authority provided in dence you wish to have considered by § 416.1469, and it issues a notice an- the Appeals Council with your request nouncing its decision to review the for review, and the Appeals Council case on its own motion no later than will consider the evidence in accord- the day before the filing date of a civil ance with § 416.1470. You may file your action establishing the jurisdiction of a request at one of our offices within 60 Federal district court; or days after the date you receive notice (3) The decision is revised by the ad- of the hearing decision or dismissal (or ministrative law judge or the Appeals within the extended time period if we Council under the procedures explained extend the time as provided in para- in § 416.1487. graph (b) of this section). (c) Notice of the decision of an adminis- (b) Extension of time to request review. trative law judge. The notice of decision You or any party to a hearing decision the administrative law judge issues in may ask that the time for filing a re- a case processed under this section will quest for the review be extended. The advise you and any other parties to the request for an extension of time must decision that you may file an action in be in writing. It must be filed with the a Federal district court within 60 days Appeals Council, and it must give the after the date you receive notice of the reasons why the request for review was decision. not filed within the stated time period. (d) Extension of time to file action in If you show that you had good cause Federal district court. Any party having for missing the deadline, the time pe- a right to file a civil action under this riod will be extended. To determine section may request that the time for whether good cause exists, we use the filing an action in Federal district standards explained in § 416.1411. court be extended. The request must be [45 FR 52096, Aug. 5, 1980, as amended at 81 in writing and it must give the reasons FR 90996, Dec. 16, 2016] why the action was not filed within the stated time period. The request must § 416.1469 Appeals Council initiates re- be filed with the Appeals Council. If view. you show that you had good cause for (a) General. Anytime within 60 days missing the deadline, the time period after the date of a decision or dismissal will be extended. To determine whether that is subject to review under this sec- good cause exists, we will use the tion, the Appeals Council may decide standards in § 416.1411. on its own motion to review the action [62 FR 49603, Sept. 23, 1997, as amended at 75 that was taken in your case. We may FR 33169, June 11, 2010] refer your case to the Appeals Council for it to consider reviewing under this § 416.1467 Appeals Council review— authority. general. (b) Identification of cases. We will If you or any other party is dissatis- identify a case for referral to the Ap- fied with the hearing decision or with peals Council for possible review under the dismissal of a hearing request, you its own-motion authority before we ef- may request that the Appeals Council fectuate a decision in the case. We will review that action. The Appeals Coun- identify cases for referral to the Ap- cil may deny or dismiss the request for peals Council through random and se- review, or it may grant the request and lective sampling techniques, which we either issue a decision or remand the may use in association with examina- case to an administrative law judge. tion of the cases identified by sam- The Appeals Council shall notify the pling. We will also identify cases for re- parties at their last known address of ferral to the Appeals Council through the action it takes. the evaluation of cases we conduct in order to effectuate decisions. § 416.1468 How to request Appeals (1) Random and selective sampling and Council review. case examinations. We may use random (a) Time and place to request Appeals and selective sampling to identify Council review. You may request Ap- cases involving any type of action (i.e.,

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fully or partially favorable decisions, to review a case is established by its unfavorable decisions, or dismissals) issuance of the notice of review. If it is and any type of benefits (i.e., benefits unable to decide within the applicable based on disability and benefits not 60-day period whether to review a deci- based on disability). We will use selec- sion or dismissal, the Appeals Council tive sampling to identify cases that ex- may consider the case to determine if hibit problematic issues or fact pat- the decision or dismissal should be re- terns that increase the likelihood of opened pursuant to §§ 416.1487 and error. Neither our random sampling 416.1488. If the Appeals Council decides procedures nor our selective sampling to review a decision on its own motion procedures will identify cases based on or to reopen a decision as provided in the identity of the decisionmaker or §§ 416.1487 and 416.1488, the notice of re- the identity of the office issuing the view or the notice of reopening issued decision. We may examine cases that by the Appeals Council will advise, have been identified through random or where appropriate, that interim bene- selective sampling to refine the identi- fits will be payable if a final decision fication of cases that may meet the cri- has not been issued within 110 days teria for review by the Appeals Coun- after the date of the decision that is re- cil. viewed or reopened, and that any in- (2) Identification as a result of the ef- terim benefits paid will not be consid- fectuation process. We may refer a case ered overpayments unless the benefits requiring effectuation to the Appeals are fraudulently obtained. Council if, in the view of the effec- [63 FR 36571, July 7, 1998, as amended at 75 tuating component, the decision can- FR 33169, June 11, 2010] not be effectuated because it contains a clerical error affecting the outcome of § 416.1470 Cases the Appeals Council the claim; the decision is clearly incon- will review. sistent with the Social Security Act, (a) The Appeals Council will review a the regulations, or a published ruling; case if— or the decision is unclear regarding a (1) There appears to be an abuse of matter that affects the claim’s out- discretion by the administrative law come. judge; (c) Referral of cases. We will make re- (2) There is an error of law; ferrals that occur as the result of a (3) The action, findings or conclu- case examination or the effectuation sions of the administrative law judge process in writing. The written referral are not supported by substantial evi- based on the results of such a case ex- dence; amination or the effectuation process (4) There is a broad policy or proce- will state the referring component’s dural issue that may affect the general reasons for believing that the Appeals public interest; or Council should review the case on its (5) Subject to paragraph (b) of this own motion. Referrals that result from section, the Appeals Council receives selective sampling without a case ex- additional evidence that is new, mate- amination may be accompanied by a rial, and relates to the period on or be- written statement identifying the fore the date of the hearing decision, issue(s) or fact pattern that caused the and there is a reasonable probability referral. Referrals that result from ran- that the additional evidence would dom sampling without a case examina- change the outcome of the decision. tion will only identify the case as a (b) In reviewing decisions other than random sample case. those based on an application for bene- (d) Appeals Council’s action. If the Ap- fits, the Appeals Council will consider peals Council decides to review a deci- the evidence in the administrative law sion or dismissal on its own motion, it judge hearing record and any addi- will mail a notice of review to all the tional evidence it believes is material parties as provided in § 416.1473. The to an issue being considered. However, Appeals Council will include with that in reviewing decisions based on an ap- notice a copy of any written referral it plication for benefits, the Appeals has received under paragraph (c) of this Council will only consider additional section. The Appeals Council’s decision evidence under paragraph (a)(5) of this

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section if you show good cause for not § 416.1471 Dismissal by Appeals Coun- informing us about or submitting the cil. evidence as described in § 416.1435 be- The Appeals Council will dismiss cause: your request for review if you did not (1) Our action misled you; file your request within the stated pe- (2) You had a physical, mental, edu- riod of time and the time for filing has cational, or linguistic limitation(s) not been extended. The Appeals Coun- that prevented you from informing us cil may also dismiss any proceedings about or submitting the evidence ear- before it if— lier; or (a) You and any other party to the (3) Some other unusual, unexpected, proceedings files a written request for or unavoidable circumstance beyond dismissal; or your control prevented you from in- (b) You die, there are no other par- forming us about or submitting the ties, and we have no information to evidence earlier. Examples include, but show that you may have a survivor are not limited to: who may be paid benefits due to you (i) You were seriously ill, and your under § 416.542(b) and who wishes to illness prevented you from contacting pursue the request for review, or that us in person, in writing, or through a you authorized interim assistance re- friend, relative, or other person; imbursement to a State pursuant to (ii) There was a death or serious ill- section 1631(g) of the Act. The Appeals ness in your immediate family; Council, however, will vacate a dis- (iii) Important records were de- missal of the request for review if, stroyed or damaged by fire or other ac- within 60 days after the date of the dis- cidental cause; missal: (iv) You actively and diligently (1) A person claiming to be your sur- sought evidence from a source and the vivor, who may be paid benefits due to evidence was not received or was re- you under § 416.542(b), submits a writ- ceived less than 5 business days prior ten request for review, and shows that to the hearing; or a decision on the issues that were to be considered on review may adversely af- (v) You received a hearing level deci- fect him or her; or sion on the record and the Appeals (2) We receive information showing Council reviewed your decision. that you authorized interim assistance (c) If you submit additional evidence reimbursement to a State pursuant to that does not relate to the period on or section 1631(g) of the Act. before the date of the administrative law judge hearing decision as required [45 FR 52096, Aug. 5, 1980, as amended at 58 in paragraph (a)(5) of this section, or FR 52914, Oct. 13, 1993] the Appeals Council does not find you § 416.1472 Effect of dismissal of re- had good cause for missing the deadline quest for Appeals Council review. to submit the evidence in § 416.1435, the Appeals Council will send you a notice The dismissal of a request for Ap- that explains why it did not accept the peals Council review is binding and not additional evidence and advises you of subject to further review. your right to file a new application. § 416.1473 Notice of Appeals Council The notice will also advise you that if review. you file a new application within 60 When the Appeals Council decides to days after the date of the Appeals review a case, it shall mail a notice to Council’s notice, your request for re- all parties at their last known address view will constitute a written state- stating the reasons for the review and ment indicating an intent to claim the issues to be considered. benefits under § 416.340. If you file a new application within 60 days of the § 416.1474 Obtaining evidence from Appeals Council’s notice, we will use Appeals Council. the date you requested Appeals Council You may request and receive copies review as the filing date for your new or a statement of the documents or application. other written evidence upon which the [81 FR 90996, Dec. 16, 2016] hearing decision or dismissal was based

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and a copy or summary of the tran- tional action by the administrative law script of oral evidence. However, you judge is required. will be asked to pay the costs of pro- (b) Action by administrative law judge viding these copies unless there is a on remand. The administrative law good reason why you should not pay. judge shall take any action that is ordered by the Appeals Council and may § 416.1475 Filing briefs with the Ap- take any additional action that is not peals Council. inconsistent with the Appeals Council’s Upon request, the Appeals Council remand order. shall give you and all other parties a (c) Notice when case is returned with a reasonable opportunity to file briefs or recommended decision. When the admin- other written statements about the istrative law judge sends a case to the facts and law relevant to the case. A Appeals Council with a recommended copy of each brief or statement should decision, a notice is mailed to the par- be filed for each party. ties at their last known address. The notice tells them that the case has § 416.1476 Procedures before Appeals been sent to the Appeals Council, ex- Council on review. plains the rules for filing briefs or (a) Limitation of issues. The Appeals other written statements with the Ap- Council may limit the issues it con- peals Council, and includes a copy of siders if it notifies you and the other the recommended decision. parties of the issues it will review. (d) Filing briefs with and obtaining evidence from the Appeals Council. (1) You (b) Oral argument. You may request may file briefs or other written state- to appear before the Appeals Council to ments about the facts and law relevant present oral argument. The Appeals to your case with the Appeals Council Council will grant your request if it de- within 20 days of the date that the rec- cides that your case raises an impor- ommended decision is mailed to you. tant question of law or policy or that Any party may ask the Appeals Coun- oral argument would help to reach a cil for additional time to file briefs or proper decision. If your request to ap- statements. The Appeals Council will pear is granted, the Appeals Council extend this period, as appropriate, if will tell you the time and place of the you show that you had good cause for oral argument at least 10 business days missing the deadline. before the scheduled date. You will ap- (2) All other rules for filing briefs pear before the Appeals Council by with and obtaining evidence from the video teleconferencing or in person, or, Appeals Council follow the procedures when the circumstances described in explained in this subpart. § 416.1436(c)(2) exist, we may schedule (e) Procedures before the Appeals Coun- you to appear by telephone. The Ap- cil. (1) The Appeals Council after re- peals Council will determine whether ceiving a recommended decision will any other person relevant to the pro- conduct its proceedings and issue its ceeding will appear by video teleconfer- decision according to the procedures encing, telephone, or in person as based explained in this subpart. on the circumstances described in (2) If the Appeals Council believes § 416.1436(c)(4). that more evidence is required, it may [81 FR 90996, Dec. 16, 2016, as amended at 84 again remand the case to an adminis- FR 69308, Dec. 18, 2019] trative law judge for further inquiry into the issues, rehearing, receipt of § 416.1477 Case remanded by Appeals evidence, and another decision or rec- Council. ommended decision. However, if the (a) When the Appeals Council may re- Appeals Council decides that it can get mand a case. The Appeals Council may the additional evidence more quickly, remand a case to an administrative law it will take appropriate action. judge so that he or she may hold a hearing and issue a decision or a rec- § 416.1479 Decision of Appeals Council. ommended decision. The Appeals Coun- After it has reviewed all the evidence cil may also remand a case in which in the administrative law judge hear- additional evidence is needed or addi- ing record and any additional evidence

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received, subject to the limitations on COURT REMAND CASES Appeals Council consideration of additional evidence in § 416.1470, the Ap- § 416.1483 Case remanded by a Federal peals Council will make a decision or court. remand the case to an administrative When a Federal court remands a case law judge. The Appeals Council may af- to the Commissioner for further con- firm, modify or reverse the administra- sideration, the Appeals Council, acting tive law judge hearing decision or it on behalf of the Commissioner, may may adopt, modify or reject a rec- make a decision, or it may remand the ommended decision. If the Appeals case to an administrative law judge Council issues its own decision, it will with instructions to take action and base its decision on the preponderance issue a decision or return the case to of the evidence. A copy of the Appeals the Appeals Council with a rec- Council’s decision will be mailed to the ommended decision. If the case is re- parties at their last known address. manded by the Appeals Council, the procedures explained in § 416.1477 will [52 FR 4005, Feb. 9, 1987, as amended at 73 FR be followed. Any issues relating to 76945, Dec. 18, 2008; 81 FR 90994, Dec. 16, 2016] your claim may be considered by the administrative law judge whether or § 416.1481 Effect of Appeals Council’s not they were raised in the administra- decision or denial of review. tive proceedings leading to the final The Appeals Council may deny a par- decision in your case. ty’s request for review or it may decide [54 FR 37793, Sept. 13, 1989, as amended at 62 to review a case and make a decision. FR 38455, July 18, 1997] The Appeals Council’s decision, or the decision of the administrative law § 416.1484 Appeals Council review of judge if the request for review is de- administrative law judge decision nied, is binding unless you or another in a case remanded by a Federal party file an action in Federal district court. court, or the decision is revised. You (a) General. In accordance with may file an action in a Federal district § 416.1483, when a case is remanded by a court within 60 days after the date you Federal court for further consider- receive notice of the Appeals Council’s ation, the decision of the administra- action. tive law judge will become the final decision of the Commissioner after re- § 416.1482 Extension of time to file ac- mand on your case unless the Appeals tion in Federal district court. Council assumes jurisdiction of the Any party to the Appeals Council’s case. The Appeals Council may assume decision or denial of review, or to an jurisdiction based on written excep- expedited appeals process agreement, tions to the decision of the administra- may request that the time for filing an tive law judge which you file with the action in a Federal district court be ex- Appeals Council or based on its author- tended. The request must be in writing ity pursuant to paragraph (c) of this and it must give the reasons why the section. If the Appeals Council assumes action was not filed within the stated jurisdiction of your case, any issues relating to your claim may be considered time period. The request must be filed by the Appeals Council whether or not with the Appeals Council, or if it con- they were raised in the administrative cerns an expedited appeals process proceedings leading to the final deci- agreement, with one of our offices. If sion in your case or subsequently con- you show that you had good cause for sidered by the administrative law judge missing the deadline, the time period in the administrative proceedings fol- will be extended. To determine whether lowing the court’s remand order. The good cause exists, we use the standards Appeals Council will either make a explained in § 416.1411. new, independent decision based on the preponderance of the evidence in the record that will be the final decision of the Commissioner after remand, or it

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will remand the case to an administra- (c) Appeals Council assumes jurisdiction tive law judge for further proceedings. without exceptions being filed. Any time (b) You file exceptions disagreeing with within 60 days after the date of the de- the decision of the administrative law cision of the administrative law judge, judge. (1) If you disagree with the deci- the Appeals Council may decide to as- sion of the administrative law judge, in sume jurisdiction of your case even whole or in part, you may file excep- though no written exceptions have tions to the decision with the Appeals been filed. Notice of this action will be Council. Exceptions may be filed by mailed to all parties at their last submitting a written statement to the known address. You will be provided Appeals Council setting forth your rea- with the opportunity to file briefs or sons for disagreeing with the decision other written statements with the Ap- of the administrative law judge. The peals Council about the facts and law exceptions must be filed within 30 days relevant to your case. After the Ap- of the date you receive the decision of peals Council receives the briefs or the administrative law judge or an ex- other written statements, or the time tension of time in which to submit ex- allowed (usually 30 days) for submit- ceptions must be requested in writing ting them has expired, the Appeals within the 30-day period. A timely re- Council will either issue a final deci- quest for a 30-day extension will be sion of the Commissioner based on the granted by the Appeals Council. A re- preponderance of the evidence affirm- quest for an extension of more than 30 ing, modifying, or reversing the deci- days should include a statement of rea- sion of the administrative law judge, or sons as to why you need the additional remand the case to an administrative time. law judge for further proceedings, in- (2) If written exceptions are timely cluding a new decision. filed, the Appeals Council will consider (d) Exceptions are not filed and the Ap- your reasons for disagreeing with the peals Council does not otherwise assume decision of the administrative law jurisdiction. If no exceptions are filed judge and all the issues presented by and the Appeals Council does not as- your case. If the Appeals Council con- sume jurisdiction of your case, the de- cludes that there is no reason to cision of the administrative law judge change the decision of the administra- becomes the final decision of the Com- tive law judge, it will issue a notice to missioner after remand. you addressing your exceptions and ex- [54 FR 37793, Sept. 13, 1989, as amended at 62 plaining why no change in the decision FR 38455, July 18, 1997; 73 FR 76945, Dec. 18, of the administrative law judge is war- 2008] ranted. In this instance, the decision of the administrative law judge is the § 416.1485 Application of circuit court final decision of the Commissioner law. after remand. The procedures which follow apply to (3) When you file written exceptions administrative determinations or deci- to the decision of the administrative sions on claims involving the applica- law judge, the Appeals Council may as- tion of circuit court law. sume jurisdiction at any time, even (a) General. We will apply a holding after the 60-day time period which ap- in a United States Court of Appeals de- plies when you do not file exceptions. If cision that we determine conflicts with the Appeals Council assumes jurisdic- our interpretation of a provision of the tion, it will make a new, independent Social Security Act or regulations un- decision based on the preponderance of less the Government seeks further judi- the evidence in the entire record af- cial review of that decision or we re- firming, modifying, or reversing the litigate the issue presented in the deci- decision of the administrative law sion in accordance with paragraphs (c) judge, or it will remand the case to an and (d) of this section. We will apply administrative law judge for further the holding to claims at all levels of proceedings, including a new decision. the administrative review process The new decision of the Appeals Coun- within the applicable circuit unless the cil is the final decision of the Commis- holding, by its nature, applies only at sioner after remand. certain levels of adjudication.

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(b) Issuance of an Acquiescence Ruling. with the Acquiescence Ruling at the When we determine that a United level at which it was last adjudicated. States Court of Appeals holding con- Any readjudication will be limited to flicts with our interpretation of a pro- consideration of the issue(s) covered by vision of the Social Security Act or the Acquiescence Ruling and any new regulations and the Government does determination or decision on readjudi- not seek further judicial review or is cation will be subject to administra- unsuccessful on further review, we will tive and judicial review in accordance issue a Social Security Acquiescence with this subpart. Our denial of a re- Ruling. The Acquiescence Ruling will quest for readjudication will not be describe the administrative case and subject to further administrative or ju- the court decision, identify the issue(s) dicial review. If you file a request for involved, and explain how we will apply readjudication within the 60-day appeal the holding, including, as necessary, how the holding relates to other deci- period and we deny that request, we sions within the applicable circuit. shall extend the time to file an appeal These Acquiescence Rulings will gen- on the merits of the claim to 60 days erally be effective on the date of their after the date that we deny the request publication in the FEDERAL REGISTER for readjudication. and will apply to all determinations, (3) After we receive a precedential redeterminations, and decisions made circuit court decision and determine on or after that date unless an Acquies- that an Acquiescence Ruling may be cence Ruling is rescinded as stated in required, we will begin to identify paragraph (e) of this section. The proc- those claims that are pending before us ess we will use when issuing an Acqui- within the circuit and that might be escence Ruling follows: subject to readjudication if an Acquies- (1) We will release an Acquiescence cence Ruling is subsequently issued. Ruling for publication in the FEDERAL When an Acquiescence Ruling is pub- REGISTER for any precedential circuit lished, we will send a notice to those court decision that we determine con- individuals whose cases we have identi- tains a holding that conflicts with our fied which may be affected by the Ac- interpretation of a provision of the So- quiescence Ruling. The notice will pro- cial Security Act or regulations no vide information about the Acquies- later than 120 days from the receipt of cence Ruling and the right to request the court’s decision. This timeframe readjudication under that Acquies- will not apply when we decide to seek cence Ruling, as described in paragraph further judicial review of the circuit court decision or when coordination (b)(2) of this section. It is not necessary with the Department of Justice and/or for an individual to receive a notice in other Federal agencies makes this order to request application of an Ac- timeframe no longer feasible. quiescence Ruling to his or her claim, (2) If we make a determination or de- as described in paragraph (b)(2) of this cision on your claim between the date section. of a circuit court decision and the date (c) Relitigation of court’s holding after we publish an Acquiescence Ruling, publication of an Acquiescence Ruling. you may request application of the After we have published an Acquies- published Acquiescence Ruling to the cence Ruling to reflect a holding of a prior determination or decision. You United States Court of Appeals on an must demonstrate that application of issue, we may decide under certain con- the Acquiescence Ruling could change ditions to relitigate that issue within the prior determination or decision in the same circuit. We may relitigate your case. You may demonstrate this only when the conditions specified in by submitting a statement that cites paragraphs (c)(2) and (3) of this section the Acquiescence Ruling or the holding are met, and, in general, one of the or portion of a circuit court decision events specified in paragraph (c)(1) of which could change the prior deter- this section occurs. mination or decision in your case. If (1) Activating events: you can so demonstrate, we will re- adjudicate the claim in accordance

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(i) An action by both Houses of Con- any subsequent decision of the circuit gress indicates that a circuit court de- court or the Supreme Court can be im- cision on which an Acquiescence Rul- plemented quickly and efficiently, we ing was based was decided inconsist- will maintain a listing of all claimants ently with congressional intent, such who receive this notice and will pro- as may be expressed in a joint resolu- vide them with the relief ordered by tion, an appropriations restriction, or the court. enactment of legislation which affects (e) Rescission of an Acquiescence Rul- a closely analogous body of law; ing. We will rescind as obsolete an Ac- (ii) A statement in a majority opin- quiescence Ruling and apply our inter- ion of the same circuit indicates that pretation of the Social Security Act or the court might no longer follow its regulations by publishing a notice in previous decision if a particular issue the FEDERAL REGISTER when any of the were presented again; following events occurs: (iii) Subsequent circuit court prece- (1) The Supreme Court overrules or dent in other circuits supports our in- limits a circuit court holding that was terpretation of the Social Security Act the basis of an Acquiescence Ruling; or regulations on the issue(s) in question; or (2) A circuit court overrules or limits (iv) A subsequent Supreme Court de- itself on an issue that was the basis of cision presents a reasonable legal basis an Acquiescence Ruling; for questioning a circuit court holding (3) A Federal law is enacted that re- upon which we base an Acquiescence moves the basis for the holding in a de- Ruling. cision of a circuit court that was the (2) The General Counsel of the Social subject of an Acquiescence Ruling; or Security Administration, after con- (4) We subsequently clarify, modify sulting with the Department of Jus- or revoke the regulation or ruling that tice, concurs that relitigation of an was the subject of a circuit court hold- issue and application of our interpreta- ing that we determined conflicts with tion of the Social Security Act or regu- our interpretation of the Social Secu- lations to selected claims in the ad- rity Act or regulations, or we subse- ministrative review process within the quently publish a new regulation(s) ad- circuit would be appropriate. dressing an issue(s) not previously in- (3) We publish a notice in the FED- cluded in our regulations when that ERAL REGISTER that we intend to reliti- issue(s) was the subject of a circuit gate an Acquiescence Ruling issue and court holding that conflicted with our that we will apply our interpretation of interpretation of the Social Security the Social Security Act or regulations Act or regulations and that holding within the circuit to claims in the ad- was not compelled by the statute or ministrative review process selected Constitution. for relitigation. The notice will explain why we made this decision. [63 FR 24933, May 6, 1998] (d) Notice of relitigation. When we decide to relitigate an issue, we will pro- REOPENING AND REVISING vide a notice explaining our action to DETERMINATIONS AND DECISIONS all affected claimants. In adjudicating § 416.1487 Reopening and revising de- claims subject to relitigation, decision- terminations and decisions. makers throughout the SSA administrative review process will apply our (a) General. Generally, if you are dis- interpretation of the Social Security satisfied with a determination or deci- Act and regulations, but will also state sion made in the administrative review in written determinations or decisions process, but do not request further re- how the claims would have been de- view within the stated time period, you cided under the circuit standard. lose your right to further review and Claims not subject to relitigation will that determination or decision be- continue to be decided under the Ac- comes final. However, a determination quiescence Ruling in accordance with or a decision made in your case which the circuit standard. So that affected is otherwise final and binding may be claimants can be readily identified and reopened and revised by us.

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(b) Procedure for reopening and revi- § 416.1491 Late completion of timely sion. We may reopen a final determina- investigation. tion or decision on our own initiative, We may revise a determination or de- or you may ask that a final determina- cision after the applicable time period tion or a decision to which you were a in § 416.1488(a) or § 416.1488(b) expires if party be reopened. In either instance, if we begin an investigation into whether we reopen the determination or deci- to revise the determination or decision sion, we may revise that determination before the applicable time period ex- or decision. The conditions under pires. We may begin the investigation which we may reopen a previous deter- either based on a request by you or by mination or decision, either on our own an action on our part. The investiga- initiative or at your request, are ex- tion is a process of gathering facts plained in § 416.1488. after a determination or decision has been reopened to determine if a revi- [59 FR 8535, Feb. 23, 1994] sion of the determination or decision is applicable. § 416.1488 Conditions for reopening. (a) If we have diligently pursued the A determination, revised determina- investigation to its conclusion, we may tion, decision, or revised decision may revise the determination or decision. be reopened— The revision may be favorable or unfavorable to you. ‘‘Diligently pursued’’ (a) Within 12 months of the date of means that in light of the facts and cir- the notice of the initial determination, cumstances of a particular case, the for any reason; necessary action was undertaken and (b) Within two years of the date of carried out as promptly as the cir- the notice of the initial determination cumstances permitted. Diligent pursuit if we find good cause, as defined in will be presumed to have been met if § 416.1489, to reopen the case; or we conclude the investigation and if (c) At any time if it was obtained by necessary, revise the determination or fraud or similar fault. In determining decision within 6 months from the date whether a determination or decision we began the investigation. was obtained by fraud or similar fault, (b) If we have not diligently pursued we will take into account any physical, the investigation to its conclusion, we mental, educational, or linguistic limi- will revise the determination or deci- tations (including any lack of facility sion if a revision is applicable and if it with the English language) which you will be favorable to you. We will not re- may have had at the time. vise the determination or decision if it will be unfavorable to you. [45 FR 52096, Aug. 5, 1980, as amended at 59 [49 FR 46370, Nov. 26, 1984; 49 FR 48036, Dec. FR 1637, Jan. 12, 1994] 10, 1984]

§ 416.1489 Good cause for reopening. § 416.1492 Notice of revised determina- (a) We will find that there is good tion or decision. cause to reopen a determination or de- (a) When a determination or decision cision if— is revised, notice of the revision will be (1) New and material evidence is fur- mailed to the parties at their last nished; known address. The notice will state (2) A clerical error was made; or the basis for the revised determination (3) The evidence that was considered or decision and the effect of the revi- in making the determination or decision. The notice will also inform the parties of the right to further review. sion clearly shows on its face that an (b) If a determination is revised and error was made. the revised determination requires that (b) We will not find good cause to re- your benefits be suspended, reduced, or open your case if the only reason for terminated, the notice will inform you reopening is a change of legal interpre- of your right to continued payment tation or administrative ruling upon (see § 416.1336 and the exceptions set which the determination or decision out in § 416.1337) and of your right of re- was made. consideration.

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(c) If a determination is revised and known address a notice of the reopen- the revised determination does not re- ing. quire that your benefits be suspended, [45 FR 52096, Aug. 5, 1980, as amended at 51 reduced, or terminated, the notice will FR 308, Jan. 3, 1986] inform you of your right to a hearing before an administrative law judge. § 416.1493 Effect of revised determina- (d) If a reconsidered determination tion or decision. that you are blind or disabled, based on A revised determination or decision medical factors, is reopened for the is binding unless— purpose of being revised, you will be (a) You or a party to the revised de- notified, in writing, of the proposed re- termination file a written request for a vision and of your right to request that reconsideration or a hearing; a disability hearing be held before a re- (b) You or another party to the revised reconsidered determination is vised decision file, as appropriate, a re- issued. If a revised reconsidered deter- quest for review by the Appeals Council mination is issued, you may request a or a hearing; hearing before an administrative law (c) The Appeals Council reviews the judge. revised decision; or (e) If an administrative law judge or (d) The revised determination or de- the Appeals Council proposes to revise cision is further revised. a decision, and the revision would be based on evidence not included in the § 416.1494 Time and place to request record on which the prior decision was further review or a hearing on re- based, you and any other parties to the vised determination or decision. decision will be notified, in writing, of You or another party to the revised the proposed action and of your right determination or decision may request, to request that a hearing be held before as appropriate, further review or a any further action is taken. If a revised hearing on the revision by filing a re- decision is issued by an administrative quest in writing at one of our offices law judge, you and any other party within 60 days after the date you re- may request that it be reviewed by the ceive notice of the revision. Further re- Appeals Council, or the Appeals Coun- view or a hearing will be held on the cil may review the decision on its own revision according to the rules of this initiative. subpart. (f) If an administrative law judge or the Appeals Council proposes to revise PAYMENT OF CERTAIN TRAVEL EXPENSES a decision, and the revision would be based only on evidence included in the § 416.1495 Payment of certain travel record on which the prior decision was expenses—general. based, you and any other parties to the When you file a claim for supple- decision will be notified, in writing, of mental security income (SSI) benefits, the proposed action. If a revised deci- you may incur certain travel expenses sion is issued by an administrative law in pursuing your claim. Sections judge, you and any other party may re- 416.1496 through 416.1499 explain who quest that it be reviewed by the Ap- may be reimbursed for travel expenses, peals Council, or the Appeals Council the types of travel expenses that are may review the decision on its own ini- reimbursable, and when and how to tiative. claim reimbursement. Generally, the (g) An administrative law judge may, agency that requests you to travel will in connection with a valid request for a be the agency that reimburses you. No hearing, propose to reopen an issue later than when it notifies you of the other than the issue on which the reexamination or hearing described in quest for a hearing was based. The ad- § 416.1496(a), that agency will give you ministrative law judge will follow the information about the right to travel time limits for reopenings set out in reimbursement, the right to advance § 416.1488. The administrative law judge payment and how to request it, the shall mail to the parties at their last rules on means of travel and unusual

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travel costs, and the need to submit re- (i) Space is not available in less- ceipts. than-first-class accommodations on any scheduled flights in time to accom- [51 FR 8810, Mar. 14, 1986] plish the purpose of the travel; § 416.1496 Who may be reimbursed. (ii) First-class accommodations are (a) The following individuals may be necessary because you, your represent- reimbursed for certain travel ex- ative, or reasonably necessary witness penses— is so handicapped or otherwise im- (1) You, when you attend medical ex- paired that other accommodations are aminations upon request in connection not practical and the impairment is with disability determinations; these substantiated by competent medical are medical examinations requested by authority; the State agency or by us when addi- (iii) Less-than-first-class accom- tional medical evidence is necessary to modations on foreign carriers do not make a disability determination (also provide adequate sanitation or health referred to as consultative examina- standards; or tions, see § 416.917); (iv) The use of first-class accom- (2) You, your representative (see modations would result in an overall § 416.1505 (a) and (b)), and all unsubpoe- savings to the government based on naed witnesses we or the State agency economic considerations, such as the determines to be reasonably necessary avoidance of additional subsistence who attend disability hearings; and costs that would be incurred while (3) You, your representative, and all awaiting availability of less-than-first- unsubpoenaed witnesses we determine class accommodations. to be reasonably necessary who attend (b) Unusual travel costs may be reim- hearings on any claim for SSI benefits bursed but must be authorized in ad- before an administrative law judge. vance and in writing by us or the ap- (b) Sections 416.1495 through 416.1499 propriate State official, as applicable, do not apply to subpoenaed witnesses. unless they are unexpected or unavoid- They are reimbursed under §§ 416.1450(d) able; we or the State agency must de- and 416.1416(b)(1). termine their reasonableness and necessity and must approve them before [51 FR 8810, Mar. 14, 1986] payment can be made. Unusual expenses that may be covered in connec- § 416.1498 What travel expenses are reimbursable. tion with travel include, but are not limited to— Reimbursable travel expenses include (1) Ambulance services; the ordinary expenses of public or private transportation as well as unusual (2) Attendant services; costs due to special circumstances. (3) Meals; (a) Reimbursement for ordinary trav- (4) Lodging; and el expenses is limited— (5) Taxicabs. (1) To the cost of travel by the most (c) If we reimburse you for travel, we economical and expeditious means of apply the rules in §§ 416.1496 through transportation available and appro- 416.1499 and the same rates and condi- priate to the individual’s condition of tions of payment that govern travel ex- health as determined by the State penses for Federal employees as au- agency or by us, considering the avail- thorized under 41 CFR chapter 301. If a able means in the following order— State agency reimburses you, the reim- (i) Common carrier (air, rail, or bus); bursement rates shall be determined by (ii) Privately owned vehicles; the rules in §§ 416.1496 through 416.1499 (iii) Commercially rented vehicles and that agency’s rules and regulations and other special conveyances; and may differ from one agency to an- (2) If air travel is necessary, to the other and also may differ from the Fed- coach fare for air travel between the eral reimbursement rates. specified travel points involved unless (1) When public transportation is first-class air travel is authorized in used, reimbursement will be made for advance by the State agency or by the the actual costs incurred, subject to Secretary in instances when— the restrictions in paragraph (a)(2) of

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this section on reimbursement for (i) The geographic area of the office first-class air travel. having jurisdiction over the hearing (2) When travel is by a privately means, as appropriate— owned vehicle, reimbursement will be (A) The designated geographic serv- made at the current Federal or State ice area of the State agency adjudica- mileage rate specified for that geo- tory unit having responsibility for pro- graphic location plus the actual costs viding the disability hearing; of tolls and parking, if travel by a pri- (B) If a Federal disability hearing of- vately owned vehicle is determined ap- ficer holds the disability hearing, the geographic area of the State (as de- propriate under paragraph (a)(1) of this fined in § 416.120(c)(9)) in which the section. Otherwise, the amount of re- claimant resides or, if the claimant is imbursement for travel by privately not a resident of a State, in which the owned vehicle cannot exceed the total hearing officer holds the disability cost of the most economical public hearing; or transportation for travel between the (C) The designated geographic service same two points. ‘‘Total cost’’ includes area of the Office of Hearings and Ap- the cost for all the authorized travelers peals hearing office having responsi- who travel in the same privately owned bility for providing the hearing before vehicle. Advance approval of travel by an administrative law judge. privately owned vehicle is not required (ii) We or the State agency determine (but could give you assurance of its ap- the maximum amount allowable for proval). travel by a representative based on the (3) Sometimes your health condition distance to the hearing site from the dictates a mode of transportation dif- farthest point within the appropriate ferent from most economical and expe- geographic area. In determining the ditious. In order for your health to re- maximum amount allowable for travel quire a mode of transportation other between these two points, we or the than common carrier or passenger car, State agency apply the rules in para- you must be so handicapped or other- graphs (a) through (c) of this section wise impaired as to require special and the limitations in paragraph (d) (1) transportation arrangements and the and (4) of this section. If the distance condition must be substantiated by between these two points does not ex- competent medical authority. ceed 75 miles, we or the State agency will not reimburse any of your rep- (d) For travel to a hearing— resentative’s travel expenses. (1) Reimbursement is limited to trav- (4) If a change in the location of the el within the U.S. For this purpose, the hearing is made at your request from U.S. includes the U.S. as defined in the location we or the State agency se- § 416.120(c)(10). lected to one farther from your resi- (2) When the travel is performed after dence or office, neither your additional September 30, 1981, we or the State travel expenses nor the additional trav- agency will reimburse you, your rep- el expenses of your representative and resentative, or an unsubpoenaed wit- witnesses will be reimbursed. ness only if the distance from the person’s residence or office (whichever he [51 FR 8810, Mar. 14, 1986, as amended at 59 FR 8532, Feb. 23, 1994] or she travels from) to the hearing site exceeds 75 miles. § 416.1499 When and how to claim re- (3) For travel expenses incurred on or imbursement. after April 1, 1991, the amount of reim- (a)(1) Generally, you will be reimbursement under this section for travel bursed for your expenses after your by your representative to attend a dis- trip. However, travel advances may be ability hearing or a hearing before an authorized if you request prepayment administrative law judge shall not ex- and show that the requested advance is ceed the maximum amount allowable reasonable and necessary. under this section for travel to the (2) You must submit to us or the hearing site from any point within the State agency, as appropriate, an geographic area of the office having ju- itemized list of what you spent and risdiction over the hearing. supporting receipts to be reimbursed.

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(3) Arrangements for special means of (d) Our rules that representatives transportation and related unusual must follow; and costs may be made only if we or the (e) What happens to a representative State agency authorizes the costs in who breaks the rules. writing in advance of travel, unless the costs are unexpected or unavoidable. If § 416.1503 Definitions. they are unexpected or unavoidable we As used in this subpart: or the State agency must determine Date we notify him or her means 5 days their reasonableness and necessity and after the date on the notice, unless the must approve them before payment recipient shows us that he or she did may be made. not receive it within the 5-day period. (4) If you receive prepayment, you Eligible non-attorney means a non-at- must, within 20 days after your trip, torney representative who we deter- provide to us or the State agency, as mine is qualified to receive direct pay- appropriate, an itemized list of your ment of his or her fee under actual travel costs and submit sup- § 416.1517(a). porting receipts. We or the State agen- Entity means any business, firm, or cy will require you to pay back any other association, including but not balance of the advanced amount that limited to partnerships, corporations, exceeds any approved travel expenses for-profit organizations, and not-for- within 20 days after you are notified of profit organizations. the amount of that balance. (State Federal agency refers to any author- agencies may have their own time lim- ity of the Executive branch of the Gov- its in place of the 20-day periods in the ernment of the United States. preceding two sentences.) Federal program refers to any pro- (b) You may claim reimbursable gram established by an Act of Congress travel expenses incurred by your rep- or administered in whole or in part by resentative for which you have been a Federal agency. billed by your representative, except Legal guardian or court-appointed rep- that if your representative makes a resentative means a court-appointed claim for them to us or the State, he or person, committee, or conservator who she will be reimbursed directly. is responsible for taking care of and managing the property and rights of an (Approved by the Office of Management and individual who is considered incapable Budget under control number 0960–0434) of managing his or her own affairs. [51 FR 8810, Mar. 14, 1986, as amended at 51 Past-due benefits means the total FR 44983, Dec. 16, 1986] amount of payments under title XVI of the Act, the Supplemental Security In- Subpart O—Representation of come (SSI) program, including any Parties Federally administered State payments, that has accumulated to you and your spouse because of a favorable AUTHORITY: Secs. 702(a)(5), 1127, and 1631(d) of the Social Security Act (42 U.S.C. administrative or judicial determina- 902(a)(5), 1320a–6, and 1383(d)). tion or decision, up to but not including the month the determination or de- SOURCE: 45 FR 52106, Aug. 5, 1980, unless cision is made. For purposes of calcu- otherwise noted. lating fees for representation, we first determine the SSI past-due benefits be- § 416.1500 Introduction. fore any applicable reduction for reim- You may appoint someone to rep- bursement to a State (or political sub- resent you in any of your dealings with division) for interim assistance reim- us. This subpart explains, among other bursement, and before any applicable things— reduction under section 1127 of the Act (a) Who may be your representative (for receipt of benefits for the same pe- and what his or her qualifications must riod under title II). We then reduce be; that figure by the amount of any re- (b) How you appoint a representative; duction of title II or title XVI benefits (c) The payment of fees to a rep- that was required by section 1127. We resentative; do this whether the actual offset, as

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provided under section 1127, reduced (3) Is not prohibited by any law from the title II or title XVI benefits. Past- acting as a representative; and due benefits do not include: (4) Is generally known to have a good (1) Continued benefits paid pursuant character and reputation. Persons to § 416.996 of this part; lacking good character and reputation, (2) Continued benefits paid pursuant include, but are not limited to, persons to § 416.1336(b) of this part; or who have a final conviction of a felony (3) Interim benefits paid pursuant to (as defined by § 404.1506(c) of this chap- section 1631(a)(8) of the Act. ter), or any crime involving moral tur- Representational services means serv- pitude, dishonesty, false statement, ices performed for a claimant in con- misrepresentations, deceit, or theft. nection with any claim the claimant (c) We may refuse to recognize the has before us, any asserted right the person you choose to represent you if claimant may have for an initial or re- the person does not meet the require- considered determination, and any de- ments in this section. We will notify cision or action by an administrative you and the person you attempted to law judge or the Appeals Council. appoint as your representative if we do Representative means an attorney who not recognize the person as a rep- meets all of the requirements of resentative. § 416.1505(a), or a person other than an attorney who meets all of the require- [45 FR 52106, Aug. 5, 1980, as amended at 76 FR 80247, Dec. 23, 2011; 83 FR 30857, July 2, ments of § 416.1505(b), and whom you 2018] appoint to represent you in dealings with us. § 416.1506 Notification of options for We, our, or us refers to the Social Se- obtaining attorney representation. curity Administration (SSA). If you are not represented by an at- You or your refers to any person or torney and we make a determination the eligible spouse of any person claim- or decision that is subject to the ad- ing or receiving supplemental security ministrative review process provided income benefits. under subpart N of this part and it does [45 FR 52106, Aug. 5, 1980, as amended at 62 not grant all of the benefits or other FR 38455, July 18, 1997; 72 FR 16725, Apr. 5, relief you requested or it adversely af- 2007; 74 FR 48384, Sept. 23, 2009; 76 FR 45194, fects any eligibility to benefits that we July 28, 2011; 76 FR 80247, Dec. 23, 2011] have established or may establish for you, we will include with the notice of § 416.1505 Who may be your representative. that determination or decision information about your options for obtain- (a) You may appoint as your rep- ing an attorney to represent you in resentative in dealings with us any at- dealing with us. We will also tell you torney in good standing who— that a legal services organization may (1) Has the right to practice law be- provide you with legal representation fore a court of a State, Territory, Dis- free of charge if you satisfy the quali- trict, or island possession of the United fying requirements applicable to that States, or before the Supreme Court or organization. a lower Federal court of the United States; [58 FR 64886, Dec. 10, 1993] (2) Is not disqualified or suspended from acting as a representative in deal- § 416.1507 Appointing a representative. ings with us; and We will recognize a person as your (3) Is not prohibited by any law from representative if the following things acting as a representative. are done: (b) You may appoint any person who (a) You sign a written notice stating is not an attorney to be your represent- that you want the person to be your ative in dealings with us if the person— representative in dealings with us. (1) Is capable of giving valuable help (b) That person signs the notice, to you in connection with your claim; agreeing to be your representative, if (2) Is not disqualified or suspended the person is not an attorney. An at- from acting as a representative in deal- torney does not have to sign a notice of ings with us; appointment.

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(c) The notice is filed at one of our receive direct payment of his or her fee offices if you have initially filed a out of your past-due benefits if he or claim or requested reconsideration; she: with an administrative law judge if you (1) Completes and submits to us an have requested a hearing; or with the application as described in paragraph Appeals Council if you have requested (b) of this section; a review of the administrative law (2) Pays the application fee as de- judge’s decision. scribed in paragraph (c) of this section; (3) Demonstrates that he or she pos- § 416.1510 Authority of a representa- sesses: tive. (i) A bachelor’s degree from an ac- (a) What a representative may do. Your credited institution of higher learning; representative may, on your behalf— or (1) Obtain information about your (ii) At least four years of relevant claim to the same extent that you are professional experience and either a able to do; high school diploma or a General Edu- (2) Submit evidence; cational Development certificate; (3) Make statements about facts and (4) Passes our criminal background law; and investigation (including checks of our (4) Make any request or give any no- administrative records), and attests tice about the proceedings before us. under penalty of perjury that he or she: (b) What a representative may not do. A (i) Has not been suspended or dis- representative may not sign an appli- qualified from practice before us and is cation on behalf of a claimant for not suspended or disbarred from the rights or benefits under title XVI of practice of law in any jurisdiction; the Act unless authorized to do so (ii) Has not had a judgment or lien under § 416.315. assessed against him or her by a civil court for malpractice or fraud; § 416.1513 Mandatory use of electronic (iii) Has not had a felony conviction; services. and A representative must conduct busi- (iv) Has not misrepresented informa- ness with us electronically at the times tion provided on his or her application and in the manner we prescribe on or supporting materials for the applica- matters for which the representative tion; requests direct fee payment. (See (5) Takes and passes a written exam- § 416.1540(b)(4)). ination we administer; [76 FR 56109, Sept. 12, 2011] (6) Provides proof of and maintains continuous liability insurance cov- § 416.1515 Notice or request to a rep- erage that is underwritten by an entity resentative. that is legally permitted to provide (a) We shall send your representa- professional liability insurance in the tive— States in which the representative con- (1) Notice and a copy of any adminis- ducts business. The policy must in- trative action, determination, or deci- clude coverage for malpractice claims sion; and against the representative and be in an (2) Requests for information or evi- amount we prescribe; and dence. (7) Completes and provides proof that (b) A notice or request sent to your he or she has completed all continuing representative will have the same force education courses that we prescribe by and effect as if it had been sent to you. the deadline we prescribe. (b) Application. An applicant must § 416.1517 Direct payment of fees to el- timely submit his or her completed ap- igible non-attorney representatives. plication form during an application (a) Criteria for eligibility. An indi- period that we prescribe. The applica- vidual who is a licensed attorney or tion must be postmarked by the last who is suspended or disbarred from the day of the application period. If an ap- practice of law in any jurisdiction may plicant timely submits the application not be an eligible non-attorney. A non- fee and a defective application, we will attorney representative is eligible to give the applicant 10 calendar days

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after the date we notify him or her of relevant supporting documentation to the defect to correct the application. us within 10 calendar days after the (c) Application fee. An applicant must date we notify him or her of our find- timely submit his or her application ing. fee during the application period. We (3) A representative may not file a will set the fee annually. protest for reasons other than those (1) We will refund the fee if: listed in paragraph (d)(1) of this sec- (i) We do not administer an examination. If a representative files a protest tion, and an applicant was unable to for reasons other than those listed in take the rescheduled examination; or paragraph (d)(1) of this section, we will (ii) Circumstances beyond the appli- not process the protest and will imple- cant’s control that could not have been ment our finding as if no protest had reasonably anticipated and planned for been filed. Our finding in response to prevent an applicant from taking a the protest is final and not subject to scheduled examination. further review. (2) We will not refund the fee if: (e) Ineligibility and suspension. (1) If (i) An applicant took and failed the an applicant does not protest, in ac- examination; or cordance with paragraph (d)(2) of this (ii) An applicant failed to arrive on section, our finding about the criteria time for the examination because of in paragraphs (a)(3) or (a)(4) of this sec- circumstances within the applicant’s tion, the applicant will be either ineli- control that could have been antici- gible to take the written examination pated and planned for. for which he or she applied or ineligible (d) Protest procedures. (1) We may find to receive direct fee payment if the ap- that a non-attorney representative is plicant already took and passed the ex- ineligible to receive direct fee payment amination prior to our finding. If an at any time because he or she fails to applicant protests in accordance with meet any of the criteria in paragraph paragraph (d)(2) of this section and we (a) of this section. A non-attorney rep- uphold our finding, the applicant will resentative whom we find to be ineli- be either ineligible to take the written gible for direct fee payment may pro- examination for which he or she ap- test our finding only if we based it on plied or ineligible to receive direct fee the representative’s failure to: payment if the applicant already took (i) Attest on the application or pro- and passed the examination prior to vide sufficient documentation that he our finding. or she possesses the required education (2) If an eligible non-attorney rep- or equivalent qualifications, as de- resentative does not protest, in accord- scribed in paragraph (a)(3) of this sec- ance with paragraph (d)(2) of this section; tion, our finding about the criteria in (ii) Meet at all times the criminal paragraphs (a)(3) or (a)(4) of this sec- background investigation criteria, as tion, the non-attorney representative described in paragraph (a)(4) of this will be ineligible to receive direct fee section; payment beginning with the month (iii) Provide proof that he or she has after the month the protest period maintained continuous liability insur- ends. If the eligible non-attorney rep- ance coverage, as described in para- resentative protests in accordance with graph (a)(6) of this section, after we paragraph (d)(2) of this section and we previously determined the representa- uphold our finding, the non-attorney tive was eligible to receive direct fee representative will be ineligible to repayment; or ceive direct fee payment beginning (iv) Complete continuing education with the month after the month we up- courses or provide documentation of hold our finding. the required continuing education (3) If an eligible non-attorney rep- courses, as described in paragraph resentative does not protest, in accord- (a)(7) of this section. ance with paragraph (d)(2) of this sec- (2) A non-attorney representative tion, our finding about the criteria in who wants to protest our finding under paragraph (a)(6) of this section, the paragraph (d)(1) of this section must non-attorney representative will be in- file a protest in writing and provide all eligible to receive direct fee payment

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for 6 full calendar months beginning (1) Did not meet the initial criteria with the month after the month the for eligibility in paragraph (a)(1), (2), protest period ends. If the eligible non- (3), or (5) of this section in a prior ap- attorney representative protests in ac- plication period; or cordance with paragraph (d)(2) of this (2) Failed to timely correct a defec- section and we uphold our finding, the tive application in a prior application non-attorney representative will be in- period as described in paragraph (b) of eligible to receive direct fee payment this section. for 6 full calendar months beginning with the month after the month we up- [76 FR 45194, July 28, 2011, as amended at 80 FR 400, Jan. 6, 2015] hold our finding. In either case, the non-attorney representative may pro- § 416.1520 Fee for a representative’s vide us with documentation that he or services. she has acquired and maintains the required liability insurance coverage de- (a) General. A representative may scribed in paragraph (a)(6) of this sec- charge and receive a fee for his or her tion, no earlier than the sixth month of services as a representative only as the ineligibility. The non-attorney rep- provided in paragraph (b) of this sec- resentative will again be eligible to re- tion. ceive direct fee payment beginning in (b) Charging and receiving a fee. (1) the first month after the month we The representative must file a written find that we have received sufficient request with us before he or she may documentation that the non-attorney charge or receive a fee for his or her representative meets the requirements services. of paragraph (a)(6) of this section. (2) We decide the amount of the fee, (4) If an eligible non-attorney rep- if any, a representative may charge or resentative does not protest, in accord- receive. ance with paragraph (d)(2) of this sec- (3) Subject to paragraph (e) of this tion, our finding about the criteria in section, a representative must not paragraph (a)(7) of this section, the charge or receive any fee unless we non-attorney representative will be in- have authorized it, and a representa- eligible to receive direct fee payment tive must not charge or receive any fee for 6 full calendar months beginning that is more than the amount we au- with the month after the month the thorize. protest period ends. If the eligible non- (4) If your representative is an attor- attorney representative protests in ac- ney or an eligible non-attorney, and cordance with paragraph (d)(2) of this you are entitled to past-due benefits, section and we uphold our finding, the we will pay the authorized fee, or a non-attorney will be ineligible to re- part of the authorized fee, directly to ceive direct fee payment for 6 full cal- the attorney or eligible non-attorney endar months beginning with the out of the past-due benefits, subject to month after the month we uphold our the limitations described in finding. In either case, the non-attor- § 416.1530(b)(1). If the representative is a ney representative may provide us with non-attorney who is ineligible to re- documentation that he or she has sat- ceive direct fee payment, we assume no isfied the criteria in paragraph (a)(7) of responsibility for the payment of any this section at any time. The non-at- fee that we have authorized. torney representative will again be eli- (c) Notice of fee determination. We gible to receive direct fee payment be- shall mail to both you and your rep- ginning in the first month after the resentative at your last known address month we find that we have received a written notice of what we decide sufficient documentation, but not ear- about the fee. We shall state in the no- lier than the month following the end tice— of the 6 month ineligibility period. (1) The amount of the fee that is au- (f) Reapplying. A representative may thorized; reapply to become eligible to receive (2) How we made that decision; direct fee payment under paragraph (a) (3) Whether we are responsible for of this section during any subsequent paying the fee from past-due benefits; application period if he or she: and

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(4) That within 30 days of the date of based on a revised determination if the the notice, either you or your rep- request for administrative review was resentative may request us to review not filed on time. the fee determination. (e) When we do not need to authorize a (d) Review of fee determination—(1) Re- fee. We do not need to authorize a fee quest filed on time. We will review the when: decision we made about a fee if either (1) An entity or a Federal, State, you or your representative files a writ- county, or city government agency ten request for the review at one of our pays from its funds the representative offices within 30 days after the date of fees and expenses and both of the fol- the notice of the fee determination. Ei- lowing conditions apply: ther you or your representative, who- (i) You are not liable to pay a fee or ever requests the review, shall mail a any expenses, or any part thereof, di- copy of the request to the other person. rectly or indirectly, to the representa- An authorized official of the Social Se- tive or someone else; and curity Administration who did not (ii) The representative submits to us take part in the fee determination a writing in the form and manner we being questioned will review the deter- prescribe waiving the right to charge mination. This determination is not and collect a fee and any expenses from subject to further review. The official you directly or indirectly, in whole or shall mail a written notice of the deci- in part; or sion made on review both to you and to (2) A court authorizes a fee for your your representative at your last known representative based on the representa- address. tive’s actions as your legal guardian or (2) Request not filed on time. (i) If you a court-appointed representative. or your representative requests a review of the decision we made about a [45 FR 52106, Aug. 5, 1980, as amended at 72 fee, but does so more than 30 days after FR 16725, Apr. 5, 2007; 74 FR 48384, Sept. 23, the date of the notice of the fee deter- 2009; 76 FR 45195, July 28, 2011] mination, whoever makes the request § 416.1525 Request for approval of a shall state in writing why it was not fee. filed within the 30-day period. We will review the determination if we decide (a) Filing a request. In order for your that there was good cause for not filing representative to obtain approval of a the request on time. fee for services he or she performed in (ii) Some examples of good cause fol- dealings with us, he or she shall file a low: written request with one of our offices. (A) Either you or your representative This should be done after the pro- was seriously ill and the illness pre- ceedings in which he or she was a rep- vented you or your representative from resentative are completed. The request contacting us in person or in writing. must contain— (B) There was a death or serious ill- (1) The dates the representative’s ness in your family or in the family of services began and ended; your representative. (2) A list of the services he or she (C) Material records were destroyed gave and the amount of time he or she by fire or other accidental cause. spent on each type of service; (D) We gave you or your representa- (3) The amount of the fee he or she tive incorrect or incomplete informa- wants to charge for the services; tion about the right to request review. (4) The amount of fee the representa- (E) You or your representative did tive wants to request or charge for his not timely receive notice of the fee de- or her services in the same matter be- termination. fore any State or Federal court; (F) You or your representative sent (5) The amount of and a list of any the request to another government expenses the representative incurred agency in good faith within the 30-day for which he or she has been paid or ex- period, and the request did not reach us pects to be paid; until after the period had ended. (6) A description of the special quali- (3) Payment of fees. We assume no re- fications which enabled the representa- sponsibility for the payment of a fee tive, if he or she is not an attorney, to

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give valuable help to you in connection the representative charges any fee for with your claim; and those services, he or she must file the (7) A statement showing that the rep- request and furnish all of the informa- resentative sent a copy of the request tion required by § 416.1525. for approval of a fee to you. (b) Attorney fee allowed by a Federal (b) Evaluating a request for approval of court. If a Federal court in any pro- a fee. (1) When we evaluate a represent- ceeding under title XVI of the Act ative’s request for approval of a fee, we makes a judgment in favor of the consider the purpose of the supple- claimant who was represented before mental security income program, the court by an attorney, and the which is to assure a minimum level of court, under section 1631(d)(2) of the income for the beneficiaries of the pro- Act, allows to the attorney as part of gram, together with— its judgment a fee not in excess of 25 (i) The extent and type of services percent of the total of past-due benefits the representative performed; to which the claimant is eligible by (ii) The complexity of the case; reason of the judgment, we may pay (iii) The level of skill and com- the attorney the amount of the fee out petence required of the representative of, but not in addition to, the amount in giving the services; of the past-due benefits payable. We (iv) The amount of time the rep- will not pay directly any other fee your resentative spent on the case; representative may request. (v) The results the representative achieved; [72 FR 16725, Apr. 5, 2007] (vi) The level of review to which the § 416.1530 Payment of fees. claim was taken and the level of the review at which the representative be- (a) Fees allowed by a Federal court. We came your representative; and will pay an attorney representative out (vii) The amount of fee the represent- of your past-due benefits the amount of ative requests for his or her services, the fee allowed by a Federal court in a including any amount authorized or re- proceeding under title XVI of the Act. quested before, but not including the The payment we make to the attorney amount of any expenses he or she in- is subject to the limitations described curred. in paragraph (b)(1) of this section. (2) Although we consider the amount (b) Fees we may authorize—(1) Attor- of benefits, if any, that are payable, we neys and eligible non-attorneys. Except do not base the amount of fee we au- as provided in paragraph (c) of this sec- thorize on the amount of the benefit tion, if we make a determination or de- alone, but on a consideration of all the cision in your favor and you were rep- factors listed in this section. The bene- resented by an attorney or an eligible fits payable in any claim are deter- non-attorney, and as a result of the de- mined by specific provisions of law and termination or decision you have past- are unrelated to the efforts of the rep- due benefits, we will pay the represent- resentative. We may authorize a fee ative out of the past-due benefits, the even if no benefits are payable. smallest of the amounts in paragraphs (b)(1)(i) through (iii) of this section, § 416.1528 Proceedings before a State less the amount of the assessment de- or Federal court. scribed in paragraph (d) of this section. (a) Representation of a party in court (i) Twenty-five percent of the total of proceedings. We shall not consider any the past-due benefits, as determined service the representative gave you in before any payment to a State (or po- any proceeding before a State or Fed- litical subdivision) to reimburse the eral court to be services as a represent- State (or political subdivision) for in- ative in dealings with us. However, if terim assistance furnished you, as de- the representative also has given serv- scribed in § 416.525 of this part, and re- ice to you in the same connection in duced by the amount of any reduction any dealings with us, he or she must in benefits under this title or title II specify what, if any, portion of the fee pursuant to section 1127 of the Act; he or she wants to charge is for serv- (ii) The amount of past-due benefits ices performed in dealings with us. If remaining after we pay to a State (or

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political subdivision) an amount suffi- we pay a fee directly to a representa- cient to reimburse the State (or polit- tive from past-due benefits, we impose ical subdivision) for interim assistance an assessment on the representative. furnished you, as described in § 416.525 (2) The amount of the assessment is of this part, and after any applicable equal to the lesser of: reductions under section 1127 of the (i) The product we obtain by multi- Act; or plying the amount of the fee we are (iii) The amount of the fee that we paying to the representative by the set. percentage rate the Commissioner of (2) Non-attorneys ineligible for direct Social Security determines is nec- payment. If the representative is a non- essary to achieve full recovery of the attorney who is ineligible to receive di- costs of determining and paying fees rect payment of his or her fee, we as- directly to representatives, but not in sume no responsibility for the payment excess of 6.3 percent; and of any fee that we authorized. We will (ii) The maximum assessment not deduct the fee from your past-due amount. The maximum assessment benefits. amount was initially set at $75, but by (c) Time limit for filing request for ap- law is adjusted annually to reflect the proval of fee to obtain direct payment. (1) increase in the cost of living. (See To receive direct fee payment from §§ 404.270 through 404.277 for an expla- your past-due benefits, a representa- nation of how the cost-of-living adjust- tive who is an attorney or an eligible ment is computed.) If the adjusted non-attorney should file a request for amount is not a multiple of $1, we approval of a fee, or written notice of round down the amount to the next the intent to file a request, at one of lower $1, but the amount will not be our offices, or electronically at the less than $75. We will announce any in- times and in the manner that we pre- crease in the maximum assessment scribe if we give notice that such a amount, and explain how that increase method is available, within 60 days of was determined in the FEDERAL REG- the date we mail the notice of the fa- ISTER. vorable determination or decision. (3) We collect the assessment by sub- (2)(i) If no request is filed within 60 tracting it from the amount of the fee days of the date the notice of the favor- to be paid to the representative. The able determination is mailed, we will representative who is subject to an as- mail a written notice to you and your sessment may not, directly or indi- representative at your last known ad- rectly, request or otherwise obtain re- dresses. The notice will inform you and imbursement of the assessment from the representative that unless the rep- you. resentative files, within 20 days from (e) Effective dates for extension of di- the date of the notice, a written re- rect payment of fee to attorneys. The pro- quest for approval of a fee under visions of this subpart authorizing the § 416.1525, or a written request for an direct payment of fees to attorneys and extension of time, we will pay all the the withholding of title XVI benefits past-due benefits to you. for that purpose, apply in claims for (ii) The representative must send you benefits with respect to which the a copy of any request made to us for an agreement for representation is en- extension of time. If the request is not tered into before March 1, 2010. filed within 20 days of the date of the [72 FR 16726, Apr. 5, 2007, as amended at 76 notice, or by the last day of any exten- FR 45195, July 28, 2011] sion we approved, we will pay to you all past-due benefits remaining after § 416.1535 [Reserved] we reimburse the State for any interim assistance you received. We must ap- § 416.1540 Rules of conduct and stand- prove any fee the representative ards of responsibility for represent- charges after that time, but the collec- atives. tion of any approved fee is a matter be- (a) Purpose and scope. (1) All attor- tween you and the representative. neys or other persons acting on behalf (d) Assessment when we pay a fee di- of a party seeking a statutory right or rectly to a representative. (1) Whenever benefit must, in their dealings with us,

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faithfully execute their duties as tail the evidence we need when we con- agents and fiduciaries of a party. A sider vocational factors. representative must provide competent (3) Conduct his or her dealings in a assistance to the claimant and recog- manner that furthers the efficient, fair, nize our authority to lawfully admin- and orderly conduct of the administra- ister the process. The following provi- tive decision-making process, including sions set forth certain affirmative du- duties to: ties and prohibited actions that will (i) Provide competent representation govern the relationship between the to a claimant. Competent representa- representative and us, including mat- tion requires the knowledge, skill, ters involving our administrative pro- thoroughness, and preparation reason- cedures and fee collections. ably necessary for the representation. (2) All representatives must be forth- A representative must know the sig- right in their dealings with us and with nificant issue(s) in a claim, have rea- the claimant and must comport themselves with due regard for the non- sonable and adequate familiarity with adversarial nature of the proceedings the evidence in the case, and have a by complying with our rules and stand- working knowledge of the applicable ards, which are intended to ensure or- provisions of the Social Security Act, derly and fair presentation of evidence as amended, the regulations, the Social and argument. Security Rulings, and any other appli- (b) Affirmative duties. A representa- cable provisions of law. tive must, in conformity with the regu- (ii) Act with reasonable diligence and lations setting forth our existing du- promptness in representing a claimant. ties and responsibilities and those of This includes providing prompt and re- claimants (see § 416.912 in disability and sponsive answers to our requests for in- blindness claims): formation pertinent to processing of (1) Act with reasonable promptness the claim. to help obtain the information or evi- (iii) When requested, provide us, in a dence that the claimant must submit manner we specify, potential dates and under our regulations, and forward the times that the representative will be information or evidence to us for con- available for a hearing. We will inform sideration as soon as practicable. the representative how many potential (2) Assist the claimant in complying, dates and times we require to coordi- as soon as practicable, with our re- nate the hearing schedule. quests for information or evidence at (iv) Only withdraw representation at any stage of the administrative deci- a time and in a manner that does not sionmaking process in his or her claim. disrupt the processing or adjudication In disability and blindness claims, this of a claim and that provides the claim- includes the obligation pursuant to ant adequate time to find new rep- § 416.912(c) to assist the claimant in providing, upon our request, evidence resentation, if desired. A representa- about: tive should not withdraw after we set (i) The claimant’s medical source(s); the time and place for the hearing (see § 416.1436) unless the representative can (ii) The claimant’s age; show that a withdrawal is necessary (iii) The claimant’s education and due to extraordinary circumstances, as training; we determine on a case-by-case basis. (iv) The claimant’s work experience; (v) Maintain prompt and timely com- (v) The claimant’s daily activities munication with the claimant, which both before and after the date the claimant alleges that he or she became includes, but is not limited to, reason- disabled; ably informing the claimant of all mat- (vi) The claimant’s efforts to work; ters concerning the representation, and consulting with the claimant on an on- (vii) Any other factors showing how going basis during the entire represen- the claimant’s impairment(s) affects tational period, and promptly respond- his or her ability to work. In §§ 416.960 ing to a claimant’s reasonable requests through 416.969a, we discuss in more de- for information. When we evaluate

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whether a representative has main- resentative will immediately disclose tained prompt and timely communica- the disqualification to us. tion with the claimant, we will con- (9) Disclose to us whether the rep- sider the difficulty the representative resentative has been removed from has in locating a particular claimant practice or suspended by a professional (e.g., because the claimant is homeless) licensing authority for reasons that re- and the representative’s efforts to keep flect on the person’s character, integ- that claimant informed. rity, judgment, reliability, or fitness to (4) Conduct business with us elec- serve as a fiduciary. If the removal or tronically at the times and in the man- suspension occurs after the appoint- ner we prescribe on matters for which ment of the representative, the rep- the representative requests direct fee resentative will immediately disclose payment. (See § 416.1513). the removal or suspension to us. (5) Disclose in writing, at the time a (10) Ensure that all of the representa- medical or vocational opinion is sub- tive’s employees, assistants, partners, mitted to us or as soon as the rep- contractors, or any person assisting resentative is aware of the submission the representative on claims for which to us, if: the representative has been appointed, (i) The representative’s employee or comply with these rules of conduct and any individual contracting with the standards of responsibility for rep- representative drafted, prepared, or resentatives, when the representative issued the medical or vocational opin- has managerial or supervisory author- ion; or ity over these individuals or otherwise (ii) The representative referred or has responsibility to oversee their suggested that the claimant seek an work. This includes a duty to take reexamination from, treatment by, or medial action when: the assistance of, the individual pro- (i) The representative’s employees, viding opinion evidence. assistants, partners, contractors or (6) Disclose to us immediately if the other individuals’ conduct violates representative discovers that his or her these rules of conduct and standards of services are or were used by the claim- responsibility; and ant to commit fraud against us. (ii) The representative has reason to (7) Disclose to us whether the rep- believe a violation of these rules of resentative is or has been disbarred or conduct and standards of responsibility suspended from any bar or court to occurred or will occur. which he or she was previously admit- (c) Prohibited actions. A representa- ted to practice, including instances in tive must not: which a bar or court took administra- (1) In any manner or by any means tive action to disbar or suspend the threaten, coerce, intimidate, deceive or representative in lieu of disciplinary knowingly mislead a claimant, or pro- proceedings (e.g., acceptance of vol- spective claimant or beneficiary, re- untary resignation pending discipli- garding benefits or other rights under nary action). If the disbarment or sus- the Act. This prohibition includes mis- pension occurs after the appointment leading a claimant, or prospective of the representative, the representa- claimant or beneficiary, about the rep- tive will immediately disclose the dis- resentative’s services and qualifica- barment or suspension to us. tions. (8) Disclose to us whether the rep- (2) Knowingly charge, collect or re- resentative is or has been disqualified tain, or make any arrangement to from participating in or appearing be- charge, collect or retain, from any fore any Federal program or agency, source, directly or indirectly, any fee including instances in which a Federal for representational services in viola- program or agency took administrative tion of applicable law or regulation. action to disqualify the representative This prohibition includes soliciting any in lieu of disciplinary proceedings (e.g., gift or any other item of value, other acceptance of voluntary resignation than what is authorized by law. pending disciplinary action). If the dis- (3) Make or present, or participate in qualification occurs after the appoint- the making or presentation of, false or ment of the representative, the rep- misleading oral or written statements,

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evidence, assertions, or representations known that the information was mis- about a material fact or law con- leading and the facts would constitute cerning a matter within our jurisdic- a misrepresentation; and tion, in matters where the representa- (C) Communicating with agency staff tive knows or should have known that or adjudicators outside the normal those statements, evidence, assertions course of business or other prescribed or representations are false or mis- procedures in an attempt to inappro- leading. priately influence the processing or (4) Through his or her own actions or outcome of a claim(s). omissions, unreasonably delay or cause (8) Violate any section of the Act for to be delayed, without good cause (see which a criminal or civil monetary § 416.1411(b)), the processing of a claim penalty is prescribed. at any stage of the administrative deci- (9) Refuse to comply with any of our sion-making process. rules or regulations. (5) Divulge, without the claimant’s (10) Suggest, assist, or direct another consent, except as may be authorized person to violate our rules or regula- by regulations prescribed by us or as tions. otherwise provided by Federal law, any (11) Advise any claimant or bene- information we furnish or disclose ficiary not to comply with any of our about a claim or prospective claim. rules or regulations. (6) Attempt to influence, directly or (12) Knowingly assist a person whom indirectly, the outcome of a decision, we suspended or disqualified to provide determination, or other administrative representational services in a pro- action by any means prohibited by law, ceeding under title XVI of the Act, or or offering or granting a loan, gift, en- to exercise the authority of a rep- tertainment, or anything of value to a resentative described in § 416.1510. presiding official, agency employee, or (13) Fail to comply with our sanc- witness who is or may reasonably be tion(s) decision. expected to be involved in the adminis- (14) Fail to oversee the representa- trative decision-making process, ex- tive’s employees, assistants, partners, cept as reimbursement for legitimately contractors, or any other person assist- incurred expenses or lawful compensa- ing the representative on claims for tion for the services of an expert wit- which the representative has been ap- ness retained on a non-contingency pointed when the representative has basis to provide evidence. managerial or supervisory authority (7) Engage in actions or behavior over these individuals or otherwise has prejudicial to the fair and orderly con- responsibility to oversee their work. duct of administrative proceedings, in- [63 FR 41417, Aug. 4, 1998, as amended at 76 cluding but not limited to: FR 56109, Sept. 12, 2011; 76 FR 80247, Dec. 23, (i) Repeated absences from or per- 2011; 80 FR 14838, Mar. 20, 2015; 83 FR 30857, sistent tardiness at scheduled pro- July 2, 2018] ceedings without good cause (see § 416.1411(b)); § 416.1545 Violations of our require- (ii) Behavior that has the effect of ments, rules, or standards. improperly disrupting proceedings or When we have evidence that a rep- obstructing the adjudicative process, resentative fails to meet our qualifica- including but not limited to: tion requirements or has violated the (A) Directing threatening or intimi- rules governing dealings with us, we dating language, gestures, or actions at may begin proceedings to suspend or a presiding official, witness, con- disqualify that individual from acting tractor, or agency employee; in a representational capacity before (B) Providing misleading information us. We may file charges seeking such or misrepresenting facts that affect sanctions when we have evidence that how we process a claim, including, but a representative: not limited to, information relating to (a) Does not meet the qualifying re- the claimant’s work activity or the quirements described in § 416.1505; claimant’s place of residence or mail- (b) Has violated the affirmative du- ing address in matters where the rep- ties or engaged in the prohibited ac- resentative knows or should have tions set forth in § 416.1540;

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(c) Has been convicted of a violation cordance with paragraph (d) of this sec- under section 1631(d) of the Act; tion), he or she does not have the right (d) Has been, by reason of mis- to present evidence, except as may be conduct, disbarred or suspended from provided in § 416.1565(g). any bar or court to which he or she was [45 FR 52106, Aug. 5, 1980, as amended at 56 previously admitted to practice (see FR 24132, May 29, 1991; 62 FR 38455, July 18, § 416.1570(a)); 1997; 63 FR 41418, Aug. 4, 1998; 71 FR 2878, Jan. (e) Has been, by reason of mis- 18, 2006; 76 FR 80247, Dec. 23, 2011; 83 FR 30858, conduct, disqualified from partici- July 2, 2018] pating in or appearing before any Fed- eral program or agency (see § 416.1555 Withdrawing charges § 416.1570(a)); or against a representative. (f) Who, as a non-attorney, has been The General Counsel or other dele- removed from practice or suspended by gated official may withdraw charges a professional licensing authority for against a representative. We will with- reasons that reflect on the person’s draw charges if the representative files character, integrity, judgment, reli- an answer, or we obtain evidence, that ability, or fitness to serve as a fidu- satisfies us that we should not suspend ciary. or disqualify the representative from acting as a representative. When we [63 FR 41418, Aug. 4, 1998, as amended at 71 consider withdrawing charges brought FR 2877, Jan. 18, 2006; 83 FR 30858, July 2, 2018] under § 416.1545(d) through (f) based on the representative’s assertion that, be- § 416.1550 Notice of charges against a fore or after our filing of charges, the representative. representative has been reinstated to (a) The General Counsel or other del- practice by the court, bar, or Federal egated official will prepare a notice program or Federal agency that sus- containing a statement of charges that pended, disbarred, or disqualified the constitutes the basis for the proceeding representative, the General Counsel or against the representative. other delegated official will determine (b) We will send this notice to the whether such reinstatement occurred, representative either by certified or whether it remains in effect, and whether he or she is reasonably satis- registered mail, to his or her last fied that the representative will in the known address, or by personal delivery. future act in accordance with the pro- (c) We will advise the representative visions of section 206(a) of the Act and to file an answer, within 14 business our rules and regulations. If the rep- days from the date of the notice, or resentative proves that reinstatement from the date the notice was delivered occurred and remains in effect and the personally, stating why he or she General Counsel or other delegated of- should not be suspended or disqualified ficial is so satisfied, the General Coun- from acting as a representative in deal- sel or other delegated official will ings with us. withdraw those charges. The action of (d) The General Counsel or other del- the General Counsel or other delegated egated official may extend the 14-day official regarding withdrawal of period specified in paragraph (c) of this charges is solely that of the General section for good cause in accordance Counsel or other delegated official and with § 416.1411. is not reviewable, or subject to consid- (e) The representative must— eration in decisions made under (1) Answer the notice in writing §§ 416.1570 and 416.1590. If we withdraw under oath (or affirmation); and the charges, we will notify the rep- (2) File the answer with the Social resentative by mail at the representa- Security Administration, at the ad- tive’s last known address. dress specified on the notice, within the 14-day time period specified in [83 FR 30859, July 2, 2018] paragraph (c) of this section. (f) If the representative does not file § 416.1565 Hearing on charges. an answer within the 14-day time pe- (a) Holding the hearing. If the General riod specified in paragraph (c) of this Counsel or other delegated official does section (or the period extended in ac- not take action to withdraw the

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charges within 15 days after the date manner. To determine whether good on which the representative filed an cause exists for extending the deadline, answer, we will hold a hearing and we use the standards explained in make a decision on the charges. § 416.1411. (b) Hearing officer. (1) The Deputy (2) The hearing officer may adjourn Commissioner for the Office of Hear- or postpone the hearing. ings Operations or other delegated offi- (3) Subject to the limitations in para- cial will assign an administrative law graph (g)(2) of this section, the hearing judge, designated to act as a hearing officer may reopen the hearing for the officer, to hold a hearing on the receipt of additional evidence at any charges. time before mailing notice of the deci- (2) No hearing officer shall hold a sion. hearing in a case in which he or she is (4) The hearing officer shall give the prejudiced or partial about any party, representative and the other party to or has any interest in the matter. the hearing reasonable notice of any (3) If the representative or any party change in the time or place for the to the hearing objects to the hearing hearing, or of an adjournment or re- officer who has been named to hold the opening of the hearing. hearing, we must be notified at the ear- (e) Parties. The representative liest opportunity. The hearing officer against whom charges have been made shall consider the objection(s) and ei- is a party to the hearing. The General ther proceed with the hearing or with- Counsel or other delegated official will draw from it. (4) If the hearing officer withdraws also be a party to the hearing. from the hearing, another one will be (f) Subpoenas. (1) The representative named. or the other party to the hearing may (5) If the hearing officer does not request the hearing officer to issue a withdraw, the representative or any subpoena for the attendance and testi- other person objecting may, after the mony of witnesses and for the produc- hearing, present his or her objections tion of books, records, correspondence, to the Appeals Council explaining why papers, or other documents that are he or she believes the hearing officer’s material to any matter being consid- decision should be revised or a new ered at the hearing. The hearing officer hearing held by another administrative may, on his or her own, initiative, law judge designated to act as a hear- issue subpoenas for the same purposes ing officer. when the action is reasonably nec- (c) Time and place of hearing. The essary for the full presentation of the hearing officer shall mail the parties a facts. written notice of the hearing at their (2) The representative or the other last known addresses, at least 14 cal- party who wants a subpoena issued endar days before the date set for the shall file a written request with the hearing. The notice will inform the hearing officer. This must be done at parties whether the appearance of the least 5 days before the date set for the parties or any witnesses will be in per- hearing. The request must name the son, by video teleconferencing, or by documents to be produced, and describe telephone. The notice will also include the address or location in enough de- requirements and instructions for fil- tail to permit the witnesses or docu- ing motions, requesting witnesses, and ments to be found. entering exhibits. (3) The representative or the other (d) Change of time and place for hear- party who wants a subpoena issued ing. (1) The hearing officer may change shall state in the request for a sub- the time and place for the hearing, ei- poena the material facts that he or she ther on his or her own initiative, or at expects to establish by the witness or the request of the representative or the document, and why the facts could not other party to the hearing. The hearing be established by the use of other evi- officer will not consider objections to dence which could be obtained without the manner of appearance of parties or use of a subpoena. witnesses, unless the party shows good (4) We will pay the cost of the cause not to appear in the prescribed issuance and the fees and mileage of

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any witness subpoenaed, as provided in by either party about whether any section 205(d) of the Act. question is proper. (g) Conduct of the hearing. (1) The rep- (j) Oral and written summation. (1) The resentative or the other party may file hearing officer shall give the represent- a motion for decision on the basis of ative and the other party a reasonable the record prior to the hearing. The time to present oral summation and to hearing officer will give the represent- file briefs or other written statements ative and the other party a reasonable about proposed findings of fact and amount of time to submit any evidence conclusions of law if the parties re- and to file briefs or other written quest it. statements as to fact and law prior to (2) The party that files briefs or other deciding the motion. If the hearing of- written statements shall provide ficer concludes that there is no genuine enough copies so that they may be dispute as to any material fact and the made available to any other party to movant is entitled to a decision as a the hearing who requests a copy. matter of law, the hearing officer may (k) Record of hearing. In all cases, the grant the motion and issue a decision hearing officer shall have a complete in accordance with the provisions of record of the proceedings at the hear- § 416.1570. ing made. (2) If the representative did not file (l) Representation. The representative, an answer to the charges, he or she has as the person charged, may appear in no right to present evidence at the person and may be represented by an hearing. The hearing officer may make attorney or other representative. The or recommend a decision on the basis General Counsel or other delegated of- of the record, or permit the representa- ficial will be represented by one or tive to present a statement about the more attorneys from the Office of the sufficiency of the evidence or the valid- General Counsel. (m) Failure to appear. If the rep- ity of the proceedings upon which the resentative or the other party to the suspension or disqualification, if it oc- hearing fails to appear after being noti- curred, would be based. fied of the time and place, the hearing (3) The hearing officer will make the officer may hold the hearing anyway so hearing open to the representative, to that the party present may offer evi- the other party, and to any persons the dence to sustain or rebut the charges. hearing officer or the parties consider The hearing officer shall give the party necessary or proper. The hearing offi- who failed to appear an opportunity to cer will inquire fully into the matters show good cause for failure to appear. being considered, hear the testimony of If the party fails to show good cause, witnesses, and accept any documents he or she is considered to have waived that are material. the right to be present at the hearing. (4) The hearing officer has the right If the party shows good cause, the to decide the order in which the evi- hearing officer may hold a supple- dence and the allegations will be pre- mental hearing. sented and the conduct of the hearing. (n) Dismissal of charges. The hearing (h) Evidence. The hearing officer may officer may dismiss the charges in the accept evidence at the hearing, even event of the death of the representa- though it is not admissible under the tive. rules of evidence that apply to Federal (o) Cost of transcript. If the represent- court procedure. ative or the other party to a hearing (i) Witnesses. Witnesses who testify at requests a copy of the transcript of the the hearing shall do so under oath or hearing, the hearing officer will have it affirmation. Either the representative prepared and sent to the party upon or a person representing him or her payment of the cost, unless the pay- may question the witnesses. The other ment is waived for good cause. party and that party’s representative [45 FR 52106, Aug. 5, 1980, as amended at 56 must also be allowed to question the FR 24132, May 29, 1991; 62 FR 38455, July 18, witnesses. The hearing officer may also 1997; 63 FR 41418, Aug. 4, 1998; 71 FR 2878, Jan. ask questions as considered necessary, 18, 2006; 76 FR 80248, Dec. 23, 2011; 83 FR 30859, and shall rule upon any objection made July 2, 2018]

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§ 416.1570 Decision by hearing officer. instated under § 416.1599. Disqualifica- (a) General. (1) After the close of the tion is the sole sanction available if hearing, the hearing officer will issue a the charges have been sustained be- decision or certify the case to the Ap- cause the representative has been dis- peals Council. The decision must be in barred or suspended from any court or writing, will contain findings of fact bar to which the representative was and conclusions of law, and be based previously admitted to practice or dis- upon the evidence of record. qualified from participating in or ap- (2) In deciding whether a person has pearing before any Federal program or been, by reason of misconduct, dis- Federal agency, or because the rep- barred or suspended by a court or bar, resentative has collected or received, or disqualified from participating in or and retains, a fee for representational appearing before any Federal program services in excess of the amount au- or Federal agency, the hearing officer thorized. will consider the reasons for the disbar- (4) The hearing officer shall mail a ment, suspension, or disqualification copy of the decision to the parties at action. If the action was taken for sole- their last known addresses. The notice ly administrative reasons (e.g., failure will inform the parties of the right to to pay dues or to complete continuing request the Appeals Council to review legal education requirements), that the decision. will not disqualify the person from act- (b) Effect of hearing officer’s decision. ing as a representative before us. How- (1) The hearing officer’s decision is ever, this exception to disqualification final and binding unless reversed or does not apply if the administrative ac- modified by the Appeals Council upon tion was taken in lieu of disciplinary review. proceedings (e.g., acceptance of a vol- (2) If the final decision is that a per- untary resignation pending discipli- son is disqualified from being a rep- nary action). Although the hearing of- resentative in dealings with us, he or ficer will consider whether the disbar- she will not be permitted to represent ment, suspension, or disqualification anyone in dealings with us until au- action is based on misconduct when de- thorized to do so under the provisions ciding whether a person should be dis- of § 416.1599. qualified from acting as a representa- (3) If the final decision is that a per- tive before us, the hearing officer will son is suspended for a specified period not re-examine or revise the factual or of time from being a representative in legal conclusions that led to the dis- dealings with us, he or she will not be barment, suspension, or disqualifica- permitted to represent anyone in deal- tion. For purposes of determining ings with us during the period of sus- whether a person has been, by reason of pension unless authorized to do so misconduct, disqualified from partici- under the provisions of § 416.1599. pating in or appearing before any Fed- [45 FR 52106, Aug. 5, 1980, as amended at 56 eral program or Federal agency, dis- FR 24132, May 29, 1991; 71 FR 2878, Jan. 18, qualified refers to any action that pro- 2006; 76 FR 80248, Dec. 23, 2011] hibits a person from participating in or appearing before any Federal program § 416.1575 Requesting review of the or Federal agency, regardless of how hearing officer’s decision. long the prohibition lasts or the spe- (a) General. After the hearing officer cific terminology used. issues a decision, either the representa- (3) If the hearing officer finds that tive or the other party to the hearing the charges against the representative may ask the Appeals Council to review have been sustained, he or she will ei- the decision. ther— (b) Time and place of filing request for (i) Suspend the representative for a review. The party requesting review specified period of not less than 1 year, will file the request for review in writ- nor more than 5 years, from the date of ing with the Appeals Council within 14 the decision; or business days from the date the hear- (ii) Disqualify the representative ing officer mailed the notice. The party from acting as a representative in deal- requesting review will certify that a ings with us until he or she may be re- copy of the request for review and of

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any documents that are submitted cil finds the evidence offered is mate- have been mailed to the opposing rial to an issue it is considering, it may party. consider that evidence, as described in paragraph (b) of this section. [45 FR 52106, Aug. 5, 1980, as amended at 83 FR 30859, July 2, 2018] (b) Individual charged filed an answer. (1) When the Appeals Council finds that § 416.1576 Assignment of request for additional evidence material to the review of the hearing officer’s deci- charges is available, and the individual sion. charged filed an answer to the charges, Upon receipt of a request for review the Appeals Council will allow the of the hearing officer’s decision, the party with the information to submit matter will be assigned to a panel con- the additional evidence. sisting of three members of the Appeals (2) Before the Appeals Council admits Council none of whom shall be the additional evidence into the record, it Chair of the Appeals Council. The panel will mail a notice to the parties, in- shall jointly consider and rule by ma- forming them that evidence about cer- jority opinion on the request for review tain issues was submitted. The Appeals of the hearing officer’s decision, in- Council will give each party a reason- cluding a determination to dismiss the able opportunity to comment on the request for review. Matters other than evidence and to present other evidence a final disposition of the request for re- that is material to an issue it is consid- view may be disposed of by the member ering. designated chair of the panel. (3) The Appeals Council will determine whether the additional evidence [56 FR 24132, May 29, 1991] warrants a new review by a hearing of- § 416.1580 Appeals Council’s review of ficer or whether the Appeals Council hearing officer’s decision. will consider the additional evidence as part of its review of the case. (a) Upon request, the Appeals Council (c) Individual charged did not file an will give the parties a reasonable time answer. If the representative did not to file briefs or other written state- file an answer to the charges, the rep- ments as to fact and law, and to re- resentative may not introduce evidence quest to appear before the Appeals that was not considered at the hearing. Council to present oral argument. When oral argument is requested with- [83 FR 30859, July 2, 2018] in the time designated by the Appeals Council, the Appeals Council will grant § 416.1590 Appeals Council’s decision. the request for oral argument and de- (a) The Appeals Council will base its termine whether the parties will ap- decision upon the evidence in the hear- pear at the oral argument in person, by ing record and any other evidence it video teleconferencing, or by tele- may permit on review. The Appeals phone. If oral argument is not re- Council will affirm the hearing offi- quested within the time designated by cer’s decision if the action, findings, the Appeals Council, the Appeals Coun- and conclusions are supported by sub- cil may deny the request. stantial evidence. If the hearing offi- (b) If a party files a brief or other cer’s decision is not supported by sub- written statement with the Appeals stantial evidence, the Appeals Council Council, he or she shall send a copy to will either: the opposing party and certify that the (1) Reverse or modify the hearing of- copy has been sent. ficer’s decision; or [45 FR 52106, Aug. 5, 1980, as amended at 83 (2) Return a case to the hearing offi- FR 30859, July 2, 2018] cer for further proceedings. (b) The Appeals Council, in changing § 416.1585 Evidence permitted on re- a hearing officer’s decision to suspend view. a representative for a specified period, (a) General. Generally, the Appeals shall in no event reduce the period of Council will not consider evidence in suspension to less than 1 year. In modi- addition to that introduced at the fying a hearing officer’s decision to dis- hearing. However, if the Appeals Coun- qualify a representative, the Appeals

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Council shall in no event impose a pe- does not extend the time for good riod of suspension of less than 1 year. cause. Further, the Appeals Council shall in [45 FR 52106, Aug. 5, 1980, as amended at 84 no event impose a suspension when dis- FR 51367, Sept. 30, 2019] qualification is the sole sanction available in accordance with § 416.1597 Reinstatement after suspen- § 416.1570(a)(3)(ii). sion—period of suspension expired. (c) If the Appeals Council affirms or We shall automatically allow a per- changes a hearing officer’s decision, son to serve again as a representative the period of suspension or the dis- in dealings with us at the end of any qualification is effective from the date suspension. of the Appeals Council’s decision. (d) If the hearing officer did not im- § 416.1599 Reinstatement after suspen- pose a period of suspension or a dis- sion or disqualification—period of qualification, and the Appeals Council suspension not expired. decides to impose one or the other, the (a) After more than one year has suspension or disqualification is effec- passed, a person who has been sus- tive from the date of the Appeals Coun- pended or disqualified may ask the Ap- cil’s decision. peals Council for permission to serve as (e) The Appeals Council shall make a representative again. The Appeals its decision in writing and shall mail a Council will assign and process a re- copy of the decision to the parties at quest for reinstatement using the same their last known addresses. general procedures described in (f) The Appeals Council may des- § 416.1576. ignate and publish certain final deci- (b) The suspended or disqualified per- sions as precedent for other actions son must submit any evidence the per- brought under its representative con- son wishes to have considered along duct provisions. Prior to making a de- with the request to be allowed to serve cision public, we will remove or redact as a representative again. personally identifiable information (c) The General Counsel or other del- from the decision. egated official, upon notification of receipt of the request, will have 30 days [45 FR 52106, Aug. 5, 1980, as amended at 56 in which to present a written report of FR 24133, May 29, 1991; 71 FR 2878, Jan. 18, any experiences with the suspended or 2006; 83 FR 30860, July 2, 2018] disqualified person subsequent to that person’s suspension or disqualification. § 416.1595 When the Appeals Council will dismiss a request for review. The Appeals Council will make available to the suspended or disqualified The Appeals Council may dismiss a person a copy of the report. request for the review of any pro- (d)(1) The Appeals Council shall not ceeding to suspend or disqualify a rep- grant the request unless it is reason- resentative in any of the following cir- ably satisfied that the person will in cumstances: the future act according to the provi- (a) Upon request of party. The Appeals sions of section 206(a) of the Act, and Council may dismiss a request for re- to our rules and regulations. view upon written request of the party (2) If a person was disqualified be- or parties who filed the request, if cause he or she had been disbarred, sus- there is no other party who objects to pended, or removed from practice for the dismissal. the reasons described in § 416.1545(d) (b) Death of party. The Appeals Coun- through (f), the Appeals Council will cil may dismiss a request for review in grant a request for reinstatement as a the event of the death of the represent- representative only if the criterion in ative. paragraph (d)(1) of this section is met (c) Request for review not timely filed. and the disqualified person shows that The Appeals Council will dismiss a re- he or she has been admitted (or request for review if a party failed to file admitted) to and is in good standing a request for review within the 14 busi- with the court, bar, Federal program or ness day time period set forth in agency, or other governmental or pro- § 404.1775(b) and the Appeals Council fessional licensing authority from

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which he or she had been disbarred, permanently in the United States. In suspended, or removed from practice. this subpart, we tell you what kinds of (3) If a person was disqualified be- evidence show that you are a resident cause the person had been disqualified of the United States (see § 416.1603) from participating in or appearing be- and— fore a Federal program or Federal (a) A citizen or a national of the agency, the Appeals Council will grant United States (see § 416.1610); the request for reinstatement only if (b) An alien lawfully admitted for the criterion in paragraph (d)(1) of this permanent residence in the United section is met and the disqualified per- States (see § 416.1615); or son shows that the person is now quali- (c) An alien permanently residing in fied to participate in or appear before the United States under color of law that Federal program or Federal agen- (see § 416.1618). cy. (4) If the person was disqualified as a § 416.1601 Definitions and terms used result of collecting or receiving, and in this subpart. retaining, a fee for representational We or Us means the Social Security services in excess of the amount au- Administration. thorized, the Appeals Council will You or Your means the person who grant the request only if the criterion applies for or receives SSI benefits or in paragraph (d)(1) of this section is the person for whom an application is met and the disqualified person shows filed. that full restitution has been made. (e) The Appeals Council will mail a § 416.1603 How to prove you are a resi- notice of its decision on the request for dent of the United States. reinstatement to the suspended or disqualified person. It will also mail a (a) What you should give us. Your copy to the General Counsel or other home address in the United States may delegated official. be sufficient to establish that you are a (f) If the Appeals Council decides not resident. However, if we have any rea- to grant the request, it will not con- son to question that you are a resident sider another request before the end of of the United States we will ask for 3 years from the date of the notice of evidence. You can prove you are a resi- the previous denial. dent of the United States by giving us papers or documents showing that you [45 FR 52106, Aug. 5, 1980, as amended at 56 live in the United States such as— FR 24133, May 29, 1991; 62 FR 38455, July 18, (1) Property, income, or other tax 1997; 63 FR 41418, Aug. 4, 1998; 71 FR 2878, Jan. 18, 2006; 76 FR 80248, Dec. 23, 2011; 83 FR 30860, forms or receipts; July 2, 2018] (2) Utility bills, leases or rent payment records; Subpart P—Residence and (3) Documents that show you participate in a social services program in the Citizenship United States; or (4) Other records or documents that AUTHORITY: Secs. 702(a)(5), 1614 (a)(1)(B) show you live in the United States. and (e), and 1631 of the Social Security Act (42 U.S.C. 902(a)(5), 1382c (a)(1)(B) and (e), and (b) What ‘‘resident of the United 1383); 8 U.S.C. 1254a; sec. 502, Pub. L. 94–241, States’’ means. We use the term resident 90 Stat. 268 (48 U.S.C. 1681 note). of the United States to mean a person who has established an actual dwelling SOURCE: 47 FR 3106, Jan. 22, 1982, unless otherwise noted. place within the geographical limits of the United States with the intent to § 416.1600 Introduction. continue to live in the United States. You are eligible for supplemental se- (c) What ‘‘United States’’ means. We curity income (SSI) benefits if you use the term United States in this sec- meet the requirements in subpart B. tion to mean the 50 States, the District Among these are requirements that of Columbia, and the Northern Mariana you must be a resident of the United Islands. States and either a citizen, a national, [47 FR 3106, Jan. 22, 1982, as amended at 62 or an alien with a lawful right to reside FR 59813, Nov. 5, 1997]

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§ 416.1610 How to prove you are a cit- (i) Your identification card issued by izen or a national of the United the Trust Territory of the Pacific Is- States. lands and a public or religious record of (a) What you should give us. You can age which shows you were born in this prove that you are a citizen or a na- territory; tional of the United States by giving (ii) Your voter’s registration card; us— (iii) A Chammoro Family Record (1) A certified copy of your birth cer- showing your birth in the Trust Terri- tificate which shows that you were tory of the Pacific Islands; or born in the United States; (iv) Your naturalization certificate. (c) What to do if you cannot give us the (2) A certified copy of a religious information listed in paragraph (a) or (b). record of your birth or baptism, re- If you cannot give us any of the docu- corded in the United States within 3 ments listed in paragraph (a) or (b), we months of your birth, which shows you may find you to be a citizen or a na- were born in the United States; tional of the United States if you— (3) Your naturalization certificate; (1) Explain why you cannot give us (4) Your United States passport; any of the documents; and (5) Your certificate of citizenship; (2) Give us any information you have (6) An identification card for use of which shows or results in proof that resident citizens in the United States you are a citizen or a national of the (Immigration and Naturalization Serv- United States. The kind of information ice Form I–197); or we are most concerned about shows— (7) An identification card for use of (i) The date and place of your birth in resident citizens of the United States the United States; by both or naturalization of parents (ii) That you have voted or are other- (INS Form I–179). wise known to be a citizen or national (b) How to prove you are an interim cit- of the United States; or izen of the United States if you live in the (iii) The relationship to you and the Northern Mariana Islands. As a resident citizenship of any person through of the Northern Mariana Islands you whom you obtain citizenship. must meet certain conditions to prove (d) What ‘‘United States’’ means. We you are an interim citizen of the use the term United States in this sec- United States. You must prove that tion to mean the 50 States, the District you were domiciled in the Northern of Columbia, Puerto Rico, Guam, the Mariana Islands as required by section Virgin Islands of the United States, 8 of the Schedule of Transitional Mat- American Samoa, Swain’s Island, and ters of the Constitution of the North- the Northern Mariana Islands. ern Mariana Islands, or that you were [47 FR 3106, Jan. 22, 1982, as amended at 62 born there after March 6, 1977. By FR 59813, Nov. 5, 1997] ‘‘domiciled’’ we mean that you maintained a residence with the intention of § 416.1615 How to prove you are law- continuing that residence for an unlim- fully admitted for permanent resi- ited or indefinite period, and that you dence in the United States. intended to return to that residence (a) What you should give us. You can whenever absent, even for an extended prove that you are lawfully admitted period. You must also give us proof of for permanent residence in the United your citizenship if you are a citizen of States by giving us— the Trust Territory of the Pacific Is- (1) An Alien Registration Receipt lands of which the Marianas are a part. Card issued by the Immigration and (1) You can prove you were domiciled Naturalization Service (INS) in accord- in the Northern Mariana Islands by ance with that Agency’s current regu- giving us— lations; (i) Statements of civil authorities; or (2) A reentry permit; (ii) Receipts or other evidence that (3) An alien identification card issued show you were domiciled there. by the government of the Northern (2) You can prove that you are a cit- Mariana Islands showing that you are izen of the Trust Territory of the Pa- admitted to the Northern Mariana Is- cific Islands by giving us— lands for permanent residence; or

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(4) INS Form I–688 which shows that nently residing in the United States you have been granted lawful tem- under color of law are listed below. porary resident status under section None of the categories includes appli- 210 or section 210A of the Immigration cants for an Immigration and Natu- and Nationality Act. ralization status other than those ap- (b) What to do if you cannot give us the plicants listed in paragraph (b)(6) of information listed in paragraph (a). If this section or those covered under you cannot give us any of the docu- paragraph (b)(17) of this section. None ments listed in paragraph (a), we may of the categories allows SSI eligibility find you to be lawfully admitted for for nonimmigrants; for example, stu- permanent residence in the United dents or visitors. Also listed are the States if you— most common documents that the Im- (1) Explain why you cannot give us migration and Naturalization Service any of the documents; and provides to aliens in these categories: (2) Give us any information you have (1) Aliens admitted to the United which shows or results in proof that States pursuant to 8 U.S.C. 1153(a)(7), you are lawfully admitted for perma- (section 203(a)(7) of the Immigration nent residence in the United States. and Nationality Act). We ask for INS (c) What ‘‘United States’’ means. We Form I–94 endorsed ‘‘Refugee-Condi- use the term United States in this sec- tional Entry’’; tion to mean the 50 States, the District (2) Aliens paroled into the United of Columbia, and the Northern Mariana States pursuant to 8 U.S.C. 1182(d)(5) Islands. (section 212(d)(5) of the Immigration (Approved by the Office of Management and and Nationality Act) including Cuban/ Budget under control number 0960–0451) Haitian Entrants. We ask for INS Form [47 FR 3106, Jan. 22, 1982, as amended at 52 I–94 with the notation that the alien FR 21943, June 10, 1987; 56 FR 55075, Oct. 24, was paroled pursuant to section 1991; 61 FR 56134, Oct. 31, 1996] 212(d)(5) of the Immigration and Na- tionality Act. For Cuban/Haitian En- § 416.1618 When you are considered trants, we ask for INS Form I–94 permanently residing in the United stamped ‘‘Cuban/Haitian Entrant (Sta- States under color of law. tus Pending) reviewable January 15, (a) General. We will consider you to 1981. Employment authorized until be permanently residing in the United January 15, 1981.’’ (Although the forms States under color of law and you may bear this notation, Cuban/Haitian En- be eligible for SSI benefits if you are trants are admitted under section an alien residing in the United States 212(d)(5) of the Immigration and Na- with the knowledge and permission of tionality Act.); the Immigration and Naturalization (3) Aliens residing in the United Service and that agency does not con- States pursuant to an indefinite stay of template enforcing your departure. The deportation. We ask for an Immigra- Immigration and Naturalization Serv- tion and Naturalization Service letter ice does not contemplate enforcing with this information or INS Form I–94 your departure if it is the policy or with such a notation; practice of that agency not to enforce (4) Aliens residing in the United the departure of aliens in the same cat- States pursuant to an indefinite vol- egory or if from all the facts and cir- untary departure. We ask for an Immi- cumstances in your case it appears gration and Naturalization Service let- that the Immigration and Naturaliza- ter or INS Form I–94 showing that a tion Service is otherwise permitting voluntary departure has been granted you to reside in the United States infor an indefinite time period; definitely. We make these decisions by (5) Aliens on whose behalf an imme- verifying your status with the Immi- diate relative petition has been ap- gration and Naturalization Service fol- proved and their families covered by lowing the rules contained in para- the petition, who are entitled to vol- graphs (b) through (e) of this section. untary departure (under 8 CFR (b) Categories of aliens who are perma- 242.5(a)(2)(vi)) and whose departure the nently residing in the United States under Immigration and Naturalization Serv- color of law. Aliens who are perma- ice does not contemplate enforcing. We

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ask for a copy of INS Form I–94 or I–210 suant to section 242 of the Immigration letter showing that status; and Nationality Act (8 U.S.C. 1252(d)). (6) Aliens who have filed applications We ask for INS Form I–220B; for adjustment of status pursuant to (13) Aliens who have entered and con- section 245 of the Immigration and Na- tinuously resided in the United States tionality Act (8 U.S.C. 1255) that the since before January 1, 1972 (or any Immigration and Naturalization Serv- date established by section 249 of the ice has accepted as ‘‘properly filed’’ Immigration and Nationality Act, 8 (within the meaning of 8 CFR 245.2(a) U.S.C. 1259). We ask for any proof es- (1) or (2)) and whose departure the Im- tablishing this entry and continuous migration and Naturalization Service residence; does not contemplate enforcing. We (14) Aliens granted suspension of de- ask for INS Form I–181 or a passport portation pursuant to section 244 of the properly endorsed; Immigration and Nationality Act (8 (7) Aliens granted stays of deporta- U.S.C. 1254) and whose departure the tion by court order, statute or regula- Immigration and Naturalization Serv- tion, or by individual determination of ice does not contemplate enforcing. We the Immigration and Naturalization ask for an order from the immigration Service pursuant to section 106 of the judge; Immigration and Nationality Act (8 (15) Aliens whose deportation has U.S.C. 1105a) or relevant Immigration been withheld pursuant to section and Naturalization Service instruc- 243(h) of the Immigration and Nation- tions, whose departure that agency ality Act (8 U.S.C. 1253(h)). We ask for does not contemplate enforcing. We an order from an immigration judge ask for INS Form I–94 or a letter from showing that deportation has been the Immigration and Naturalization withheld; Service, or copy of a court order estab- (16) Aliens granted lawful temporary lishing the alien’s status; resident status pursuant to section (8) Aliens granted asylum pursuant 245A of the Immigration and Nation- to section 208 of the Immigration and ality Act (8 U.S.C. 1255a). We ask for Nationality Act (8 U.S.C. 1158). We ask INS form I–688 showing that status; or for INS Form I–94 and a letter establishing this status; (17) Any other aliens living in the (9) Aliens admitted as refugees pursu- United States with the knowledge and ant to section 207 of the Immigration permission of the Immigration and and Nationality Act (8 U.S.C. 1157) or Naturalization Service and whose de- section 203(a)(7) of the Immigration parture that agency does not con- and Nationality Act (8 U.S.C. template enforcing. 1153(a)(7)). We ask for INS Form I–94 (c) How to prove you are in a category properly endorsed; listed in paragraph (b) of this section. (10) Aliens granted voluntary depar- You must give us proof that you are in ture pursuant to section 242(b) of the one of the categories in paragraph (b) Immigration and Nationality Act (8 of this section. You may give us— U.S.C. 1252(b)) or 8 CFR 242.5 whose de- (1) Any of the documents listed in parture the Immigration and Natu- paragraph (b) of this section; or ralization Service does not con- (2) Other information which shows template enforcing. We ask for INS that you are in one of the categories Form I–94 or I–210 bearing a departure listed in paragraph (b) of this section. date; (d) We must contact the Immigration (11) Aliens granted deferred action and Naturalization Service. (1) We must status pursuant to Immigration and contact the Immigration and Natu- Naturalization Service Operations In- ralization Service to verify the infor- struction 103.1(a)(ii) prior to June 15, mation you give us to prove you are 1984 or 242.1(a)(22) issued June 15, 1984 permanently residing in the United and later. We ask for INS Form I–210 or States under color of law. a letter showing that departure has (2) If you give us any of the docu- been deferred; ments listed in paragraphs (b) (1), (2), (12) Aliens residing in the United (3), (4), (8), (9), (11), (12), (13), (15), or (16) States under orders of supervision pur- of this section, we will pay you benefits

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if you meet all other eligibility re- contemplate enforcing your departure, quirements. We will contact the Immi- we will continue your benefits. How- gration and Naturalization Service to ever, if we learn that your document is verify that the document you give us is not currently valid or that the Immi- currently valid. gration and Naturalization Service (3) If you give us any of the docu- does contemplate enforcing your depar- ments listed in paragraphs (b) (5), (6), ture, we will suspend your benefits (7), (10), or (14) of this section, or docu- under § 416.1320. ments that indicate that you meet (iii) If you have a document that paragraph (b)(17) of this section, or any shows you have an Immigration and other information to prove you are per- Naturalization Service status valid for manently residing in the United States less than 1 year, or if your document under color of law, we will contact the has no expiration date, or if you have Immigration and Naturalization Serv- no document, we will not pay you bene- ice to verify that the document or fits until the Immigration and Natu- other information is currently valid. ralization Service confirms that your We must also get information from the document is currently valid and we get Immigration and Naturalization Serv- information from that agency that in- ice as to whether that agency con- dicates whether it contemplates en- templates enforcing your departure. forcing your departure. If that agency We will apply the following rules: does not contemplate enforcing your (i) If you have a document that shows departure, we will pay you benefits if that you have an Immigration and Nat- you meet all other eligibility require- uralization Service status that is valid ments. for an indefinite period we will assume (iv) If at any time after you begin re- that the Immigration and Naturaliza- ceiving benefits we receive information tion Service does not contemplate en- from the Immigration and Naturaliza- forcing your departure. Therefore, we tion Service which indicates that the will pay you benefits if you meet all Immigration and Naturalization Serv- other eligibility requirements. If, based ice contemplates enforcing your depar- on the information we get from the Im- ture, we will suspend your benefits migration and Naturalization Service, under § 416.1320 and any benefits you we find that your document is cur- have received after the date that the rently valid, we will consider this suffi- Immigration and Naturalization Serv- cient proof that the Immigration and ice began contemplating enforcing de- Naturalization Service does not con- parture will be overpayments under template enforcing your departure. We subpart E of this part. will continue your benefits. However, if (e) What ‘‘United States’’ means. We we find that your document is not cur- use the term United States in this sec- rently valid, we will suspend your ben- tion to mean the 50 States, the District efits under § 416.1320. of Columbia, and the Northern Mariana (ii) If you have a document that ap- Islands. pears currently valid and shows you have an Immigration and Naturaliza- (Approved by the Office of Management and tion Service status for at least 1 year, Budget under control number 0960–0451) or that shows the Immigration and [52 FR 21943, June 10, 1987, as amended at 56 Naturalization Service is allowing you FR 55075, Oct. 24, 1991; 56 FR 61287, Dec. 2, to remain in the United States for a 1991] specified period due to conditions in your home country, we will assume § 416.1619 When you cannot be consid- that the Immigration and Naturaliza- ered permanently residing in the tion Service does not contemplate en- United States under color of law. forcing your departure. Therefore, we We will not consider you to be per- will pay you benefits if you meet all manently residing in the United States other eligibility requirements. If, based under color of law and you are not eli- on the information we get from the Im- gible for SSI benefits during a period in migration and Naturalization Service, which you have been granted tem- we learn that your document is cur- porary protected status by the Immi- rently valid and that agency does not gration and Naturalization Service

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under section 244A of the Immigration tional rehabilitation services. If you and Nationality Act. are under age 16, we will refer you to [58 FR 41182, Aug. 3, 1993] an agency administering services under the Maternal and Child Health Services Subpart Q—Referral of Persons Eli- (Title V) Block Grant Act. (b) When we refer. We will make this gible for Supplemental Secu- referral when we find you eligible for rity Income to Other Agen- benefits or at any other time that we cies find you might be helped by vocational rehabilitation services. AUTHORITY: Secs. 702(a)(5), 1611(e)(3), 1615, and 1631 of the Social Security Act (42 U.S.C. [45 FR 70859, Oct. 27, 1980, as amended at 48 902(a)(5), 1382(e)(3), 1382d, and 1383). FR 6297, Feb. 23, 1983]

SOURCE: 45 FR 70859, Oct. 27, 1980, unless REFERRAL FOR TREATMENT OF otherwise noted. ALCOHOLISM OR DRUG ADDICTION GENERAL § 416.1720 Whom we refer. § 416.1701 Scope of subpart. We will refer you to an approved fa- This subpart describes whom we refer cility for treatment of your alcoholism to agencies for (a) vocational rehabili- or drug addiction if— tation services or (b) treatment for al- (a) You are disabled; coholism or drug addiction. The pur- (b) You are not blind; pose of these services or treatments is (c) You are not 65 years old or older; to restore your ability to work. This and subpart also describes the conditions (d) Alcoholism or drug addiction is a under which you can refuse treatment contributing factor to your disability. after we have referred you. If these conditions are not met, this subpart § 416.1725 Effect of your failure to describes how your benefits are af- comply with treatment require- fected when you refuse treatment. ments for your drug addiction or alcoholism. [45 FR 70859, Oct. 27, 1980, as amended at 68 FR 40124, July 7, 2003] (a) Suspension of benefits. Your eligibility for benefits will be suspended be- § 416.1705 Definitions. ginning with the first month after we As used in this subpart— notify you in writing that we have de- Vocational rehabilitation services refers termined that you have failed to com- to services provided blind or disabled ply with the treatment requirements persons under the State plan approved for your drug addiction or alcoholism under the Rehabilitation Act of 1973 as defined in § 416.940. Your benefits (see 45 CFR 401.120ff for requirements will be suspended and reinstated in ac- of these State plans). cordance with the provisions in We or us refers to either the Social § 416.1326. Security Administration or the State (b) Termination of benefits. If your agency making the disability or blind- benefits are suspended for 12 consecu- ness determination. tive months for failure to comply with You or your refers to the person who treatment in accordance with § 416.1326, applies for or receives benefits or the your eligibility for disability benefits person for whom an application is filed. will be terminated in accordance with § 416.1331. REFERRAL FOR VOCATIONAL REHABILITATION SERVICES [60 FR 8153, Feb. 10, 1995] § 416.1710 Whom we refer and when. Subpart R—Relationship (a) Whom we refer. If you are 16 years of age or older and under 65 years old, AUTHORITY: Secs. 702(a)(5), 1612(b), 1614(b), and receiving supplemental security (c), and (d), and 1631(d)(1) and (e) of the So- income (SSI) benefits, we will refer you cial Security Act (42 U.S.C. 902(a)(5), 1382a(b), to the State agency providing voca- 1382c(b), (c), and (d) and 1383(d)(1) and (e)).

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SOURCE: 45 FR 71795, Oct. 30, 1980, unless applied for or has been receiving SSI otherwise noted. Redesignated at 46 FR 29211, benefits. May 29, 1981; 46 FR 42063, Aug. 19, 1981. [45 FR 71795, Oct. 30, 1980. Redesignated at 46 § 416.1801 Introduction. FR 29211, May 29, 1981; 46 FR 42063, Aug. 19, 1981, as amended at 60 FR 16376, Mar. 30, 1995; (a) What is in this subpart. This sub- 64 FR 31975, June 15, 1999; 65 FR 16815, Mar. part contains the basic rules for decid- 30, 2000] ing for SSI purposes whether a person is considered married and, if so, to WHO IS CONSIDERED YOUR SPOUSE whom; whether a person is considered a child; and whether a person is consid- § 416.1802 Effects of marriage on eligi- ered another person’s parent. It tells bility and amount of benefits. what information and evidence we need (a) If you have an ineligible spouse—(1) to decide these facts. Counting income. If you apply for or re- (b) Related subparts. Subpart D dis- ceive SSI benefits, and you are married cusses how to determine the amount of to someone who is not eligible for SSI a person’s benefits; subpart G discusses benefits and are living in the same what changes in a person’s situation he household as that person, we may or she must report to us; subpart K dis- count part of that person’s income as cusses how we count income; and sub- yours. Counting part of that person’s part L discusses how we count re- income as yours may reduce the sources (money and property). The amount of your benefits or even make questions of whether a person is mar- you ineligible. Section 416.410 discusses ried, to whom a person is married, the amount of benefits and § 416.1163 ex- whether a person is a child, and who is plains how we count income for an in- a person’s parent must be answered in dividual with an ineligible spouse. order to know which rules in subparts (2) Counting resources. If you are mar- D, G, K, and L apply. ried to someone who is not eligible for (c) Definitions. In this subpart— SSI benefits and are living in the same Eligible spouse means a person— household as that person, we will count (1) Who is eligible for SSI, the value of that person’s resources (money and property), minus certain (2) Whom we consider the spouse of exclusions, as yours when we deter- another person who is eligible for SSI, mine your eligibility. Section and 416.1202(a) gives a more detailed state- (3) Who was living in the same house- ment of how we count resources and hold with that person on— § 416.1205(a) gives the limit of resources (i) The first day of the month fol- allowed for eligibility of a person with lowing the date the application is filed an ineligible spouse. (for the initial month of eligibility for (b) If you have an eligible spouse—(1) payment based on that application); Counting income. If you apply for or re- (ii) The date a request for reinstate- ceive SSI benefits and have an eligible ment of eligibility is filed (for the spouse as defined in § 416.1801(c), we will month of such request); or count your combined income and cal- (iii) The first day of the month, for culated the benefit amount for you as a all other months. An individual is con- couple. Section 416.412 gives a detailed sidered to be living with an eligible statement of the amount of benefits spouse during temporary absences as and subpart K of this part explains how defined in § 416.1149 and while receiving we count income for an eligible couple. continued benefits under section (2) Counting resources. If you have an 1611(e)(1) (E) or (G) of the Act. eligible spouse as defined in Spouse means a person’s husband or § 416.1801(c), we will count the value of wife under the rules of §§ 416.1806 your combined resources (money and through 416.1835 of this part. property), minus certain exclusions, We and us mean the Social Security and use the couple’s resource limit Administration. when we determine your eligibility. You means a person who has applied Section 416.1205(b) gives a detailed for or has been receiving SSI benefits, statement of the resource limit for an or a person for whom someone else has eligible couple.

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(c) If you are married, we do not con- (b) if more than one person would sider you a child. The rules for counting qualify as your husband or wife under income and resources are different for paragraph (a) of this section, we will children than for adults. (Section consider the person you are presently 416.1851 discusses the effects of being living with to be your spouse for SSI considered a child on eligibility and purposes. amount of benefits.) Regardless of your age, if you are married we do not con- [60 FR 16376, Mar. 30, 1995] sider you to be a child. § 416.1816 Information we need con- (d)(1) General rule: Benefits depend on cerning marriage when you apply whether you are married or not mar- for SSI. ried at the beginning of each month. If When you apply for SSI benefits, we you get married, even on the first day will ask whether you are married. If of a month we will treat you as single until the next month. If your marriage you are married, we will ask whether ends, even on the first day of a month, you are living with your spouse. If you we will treat you as married until the are unmarried or you are married but next month. not living with your spouse, we will ask whether you are living in the same (2) Exception: If you both meet eligi- household with anyone of the opposite bility requirements after your date of marriage or after your marriage ends. If, in sex who is not related to you. If you the month that you marry, each of you are, we will ask whether you and that first meets all eligibility requirements person lead other people to believe that after the date of your marriage, we will you are husband and wife. treat you as an eligible couple for that month. If, in the month that your mar- § 416.1821 Showing that you are married when you apply for SSI. riage ends, each of you first meets all eligibility requirements after the date (a) General rule: Proof is unnecessary. your marriage ends, we will treat you If you tell us you are married we will as eligible individuals. (See subparts D consider you married unless we have and E regarding how your benefits will information to the contrary. We will be prorated.) also consider you married, on the basis of your statement, if you say you are [45 FR 71795, Oct. 30, 1980. Redesignated at 46 living with an unrelated person of the FR 29211, May 29, 1981; 46 FR 42063, Aug. 19, 1981, and amended at 51 FR 13495, Apr. 21, opposite sex and you both lead people 1986; 60 FR 16376, Mar. 30, 1995] to believe you are married. However, if we have information contrary to what § 416.1806 Whether you are married you tell us, we will ask for evidence as and who is your spouse. described in paragraph (c). (a) We will consider someone to be (b) Exception: If you are a child to your spouse (and therefore consider whom parental deeming rules apply. If you to be married) for SSI purposes if— you are a child to whom the parental (1) You are legally married under the deeming rules apply and we receive in- laws of the State where your and his or formation from you or others that you her permanent home is (or was when are married, we will ask for evidence of you lived together); your marriage. The rules on deeming (2) We have decided that either of you parental income are in §§ 416.1165 and is entitled to husband’s or wife’s Social 416.1166. The rules on deeming of paren- Security insurance benefits as the tal resources are in § 416.1202. spouse of the other (this decision will (c) Evidence of marriage. If paragraph not affect your SSI benefits for any (a) or (b) of this section indicates that month before it is made); or you must show us evidence that you (3) You and an unrelated person of are married, you must show us your the opposite sex are living together in marriage certificate (which can be the the same household at or after the original certificate, a certified copy of time you apply for SSI benefits, and the public record of marriage, or a cer- you both lead people to believe that tified copy of the church record) if you you are husband and wife. can. If you cannot, you must tell us

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why not and give us whatever evidence ning of whichever of these months you can. comes first— (a) The calendar month after the [45 FR 71795, Oct. 30, 1980. Redesignated at 46 month you stopped living with your el- FR 29211, May 29, 1981; 46 FR 42063, Aug. 19, 1981, and amended at 52 FR 8889, Mar. 20, igible spouse, or 1987] (b) The calendar month after the month in which your marriage ends. § 416.1826 Showing that you are not [45 FR 71795, Oct. 30, 1980. Redesignated at 46 married when you apply for SSI. FR 29211, May 29, 1981; 46 FR 42063, Aug. 19, (a) General rule: Proof is unnecessary. 1981, as amended at 60 FR 16376, Mar. 30, 1995] If you do not live with an unrelated person of the opposite sex and you say § 416.1832 When we consider your marriage ended. that you are not married, we will generally accept your statement unless we We consider your marriage ended have information to the contrary. when— (b) Exception: If you are under age 22 (a) Your spouse dies; and have been married. If you are under (b) Your divorce or annulment be- age 22 and have been married, to prove comes final; that your marriage has ended you must (c) We decide that either of you is not show us the decree of divorce or annul- a spouse of the other for purposes of ment or the death certificate if you husband’s or wife’s social security in- can. If you cannot, you must tell us surance benefits, if we considered you why not and give us whatever evidence married only because of § 416.1806(a)(2); you can. or (d) You and your spouse stop living (c) Exception: If you are living with an together, if we considered you married unrelated person of the opposite sex. (1) If only because of § 416.1806(a)(3). you are living with an unrelated person of the opposite sex, you and the person [45 FR 71795, Oct. 30, 1980. Redesignated at 46 you are living with must explain to us FR 29211, May 29, 1981; 46 FR 42063, Aug. 19, what your relationship is and answer 1981, as amended at 60 FR 16376, Mar. 30, 1995] questions such as the following: § 416.1835 Information we need about (i) What names are the two of you separation or end of marriage after known by? you become eligible for SSI. (ii) Do you introduce yourselves as (a) If you and your spouse stop living husband and wife? If not, how are you together. If you and your spouse stop introduced? living together, you must promptly re- (iii) What names are used on mail for port that fact to us, so that we can de- each of you? cide whether there has been a change (iv) Who owns or rents the place that affects either person’s benefits. where you live? You must also answer questions such (v) Do any deeds, leases, time pay- as the following. If you cannot answer ment papers, tax papers, or any other our questions you must tell us why not papers show you as husband and wife? and give us whatever information you (2) We will consider you married to can. the person you live with unless the in- (1) When did you stop living to- formation we have, including the an- gether? swers to the questions in paragraph (2) Do you expect to live together (c)(1) of this section, all considered to- again? gether, show that the two of you do not (3) If so, when? lead people to believe that you are each (4) Where is your husband or wife liv- other’s husband and wife. ing? (5) Is either of you living with some- § 416.1830 When we stop considering one else as husband and wife? you and your spouse an eligible (b) Evidence of end of marriage—(1) couple. Death. We will accept your statement We will stop considering you and that your husband or wife died unless your spouse an eligible couple, even if we have information to the contrary. If you both remain eligible, at the begin- we have contrary information, you

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must show us the death certificate if exception to the rules on deeming your you can. If you cannot, you must tell parent’s resources to be yours. us why not and give us whatever evi- [45 FR 71795, Oct. 30, 1980. Redesignated at 46 dence you can. FR 29211, May 29, 1981; 46 FR 42063, Aug. 19, (2) Divorce or annulment. If your mar- 1981, and amended at 52 FR 8889, Mar. 20, riage ends by divorce or annulment, 1987; 73 FR 28036, May 15, 2008] you must show us the decree of divorce or annulment if you can. If you cannot, § 416.1856 Who is considered a child. you must tell us why not and give us We consider you to be a child if— whatever evidence you can. (a)(1) You are under 18 years old; or (3) Other reason. If your marriage (2) You are under 22 years old and ends for reasons other than death, di- you are a student regularly attending vorce, or annulment, you must give us school or college or training that is de- any information we ask you to give us signed to prepare you for a paying job; about the end of the marriage. If you (b) You are not married; and cannot, you must explain why you can- (c) You are not the head of a house- not. We will consider all of the relevant hold. information to decide if and when your marriage ends. § 416.1861 Deciding whether you are a child: Are you a student? WHO IS CONSIDERED A CHILD (a) Are you a student? You are a student regularly attending school or col- § 416.1851 Effects of being considered lege or training that is designed to pre- a child. pare you for a paying job if you are en- If we consider you to be a child for rolled for one or more courses of study SSI purposes, the rules in this section and you attend class— apply when we determine your eligi- (1) In a college or university for at bility for SSI and the amount of your least 8 hours a week under a semester SSI benefits. or quarter system; (a) If we consider you to be a student, (2) In grades 7–12 for at least 12 hours we will not count all of your earned in- a week; come when we determine your SSI eli- (3) In a course of training to prepare gibility and benefit amount. Section you for a paying job, and you are at- 416.1110 tells what we mean by earned tending that training for at least 15 income. Section 416.1112(c)(2) tells how hours a week if the training involves much of your earned income we will shop practice or 12 hours a week if it not count. does not involve shop practice (this kind of training includes anti-poverty (b) If you have a parent who does not programs, such as the Job Corps, and live with you but who pays money to government-supported courses in self- help support you, we will not count improvement); or one-third of that money when we count (4) Less than the amount of time your income. Section 416.1124(c)(9) dis- given in paragraph (a) (1), (2), or (3) of cusses this rule. this section for reasons you cannot (c) If you are under age 18 and live control, such as illness, if the cir- with your parent(s) who is not eligible cumstances justify your reduced credit for SSI benefits, we consider (deem) load or attendance. part of his or her income and resources (b) If you are instructed at home. You to be your own. If you are under age 18 may be a student regularly attending and live with both your parent and school if you are instructed at home in your parent’s spouse (stepparent) and grades 7–12 in accordance with a home neither is eligible for SSI benefits, we school law of the State or other juris- consider (deem) part of their income diction in which you reside and for at and resources to be your own. Sections least 12 hours a week. 416.1165 and 416.1166 explain the rules (c) If you have to stay home. You may and the exception to the rules on deem- be a student regularly attending ing your parent’s income to be yours, school, college, or training to prepare and § 416.1202 explains the rules and the you for a paying job if—

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(1) You have to stay home because of (iii) The name and address of the your disability; school or college you attend or the (2) You are studying at home a agency training you; and course or courses given by a school (iv) The name and telephone number (grades 7–12), college, university, or of someone at the school, college, or government agency; and agency who can tell us more about (3) A home visitor or tutor directs your courses, in case we need informa- your study or training. tion you cannot give us. (d) When you are not in school—(1) [45 FR 71795, Oct. 30, 1980. Redesignated at 46 When school is out. We will consider you FR 29211, May 29, 1981; 46 FR 42063, Aug. 19, to be a student regularly attending 1981, as amended at 71 FR 66867, Nov. 17, 2006] school, college, or training to prepare you for a paying job even when classes § 416.1866 Deciding whether you are a are out if you actually attend regularly child: Are you the head of a house- just before the time classes are out and hold? you— (a) Meaning of head of household. You (i) Tell us that you intend to resume are the head of a household if you have attending regularly when school opens left your parental home on a perma- again; or nent basis and you are responsible for (ii) Actually do resume attending the day-to-day decisions on the oper- regularly when school opens again. ation of your own household. If you (2) Other times. Your counselor or live with your parent(s) or stepparents, teacher may believe you need to stay we will ordinarily assume you are not out of class for a short time during the the head of a household. However, we course or between courses to enable will consider you to be the head of a you to continue your study or training. household if for some reason (such as That will not stop us from considering your parent’s illness) you are the one you to be a student regularly attending who makes the day-to-day decisions. school, college, or training to prepare You need not have someone living with you for a paying job if you are in— you to be the head of a household. (i) A course designed to prepare dis- (b) If you share decision-making equal- abled people for work; or ly. If you live with one or more people (ii) A course to prepare you for a job and everyone has an equal voice in the that is specially set up for people who decision-making (for example, a group cannot work at ordinary jobs. of students who share off-campus hous- (e) Last month of school. We will con- ing), that group is not a household. sider you to be a student regularly at- Each person who has left the parental tending school, college, or training to home on a permanent basis is the head prepare you for a paying job for the of his or her own household. month in which you complete or stop your course of study or training. WHO IS CONSIDERED A STUDENT FOR (f) When we need evidence that you are PURPOSES OF THE STUDENT EARNED a student. We need evidence that you INCOME EXCLUSION are a student if you are 18 years old or older but under age 22, because we will § 416.1870 Effect of being considered a not consider you to be a child unless student. we consider you to be a student. If we consider you to be a student, we (g) What evidence we need. If we need will not count all of your earned in- evidence that you are a student, you come when we determine your SSI eli- must— gibility and benefit amount. If you are (1) Show us any paper you have that an ineligible spouse or ineligible parent shows you are a student in a school, for deeming purposes and we consider college, or training program, such as a you to be a student, we will not count student identification card or tuition all of your income when we determine receipt; and how much of your income to deem. (2) Tell us— Section 416.1110 explains what we mean (i) What courses you are taking; by earned income. Section 416.1112(c)(3) (ii) How many hours a week you explains how much of your earned in- spend in classes; come we will not count. Section

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416.1161(a)(27) explains how the student us any other evidence that would help earned income exclusion applies to to show whether or not the person is deemors. your parent or stepparent. [71 FR 66867, Nov. 17, 2006] Subpart S—Interim Assistance § 416.1872 Who is considered a student. Provisions We consider you to be a student if you are under 22 years old and you reg- AUTHORITY: Secs. 702(a)(5) and 1631 of the ularly attend school or college or Social Security Act (42 U.S.C. 902(a)(5) and training that is designed to prepare 1383). you for a paying job as described in SOURCE: 46 FR 47449, Sept. 27, 1981, unless § 416.1861(a) through (e). otherwise noted. [71 FR 66867, Nov. 17, 2006] INTRODUCTION § 416.1874 When we need evidence that you are a student. § 416.1901 Scope of subpart S. We need evidence that you are a stu- (a) General. This subpart explains dent if you are under age 22 and you ex- that we may withhold your SSI benefit pect to earn over $65 in any month. and/or State supplementary payments Section 416.1861(g) explains what evi- and send them to the State (or a polit- dence we need. ical subdivision of the State) as repayment for interim assistance it gave you [71 FR 66867, Nov. 17, 2006] while your application for SSI was WHO IS CONSIDERED YOUR PARENT pending, or while your SSI benefits were suspended or terminated if you § 416.1876 Effects a parent (or parents) are subsequently found to have been el- can have on the child’s benefits. igible for such benefits. Before we will Section 416.1851 (b) and (c) tells what do this, the State must have entered effects a parent’s income and resources into an interim assistance agreement can have on his or her child’s benefits. with us authorizing such reimbursement, and you must have given written § 416.1881 Deciding whether someone authorization for us to repay the State is your parent or stepparent. (or a political subdivision of the State). (a) We consider your parent to be— (b) Organization of this subpart. We (1) Your natural mother or father; or have organized this subpart as follows: (2) A person who legally adopted you. (1) Definitions. Section 416.1902 con- (b) We consider your stepparent to be tains definitions of terms used in this the present husband or wife of your subpart. natural or adoptive parent. A person is (2) Authorizations. Sections 416.1904 not your stepparent if your natural or through 416.1908 give the rules that adoptive parent, to whom your step- apply to your written authorization. parent was married, has died, or if your (3) Interim assistance agreements. Sec- parent and stepparent have been dition 416.1910 gives the requirements for vorced or their marriage has been an- interim assistance agreements between nulled. us and the State. (c) Necessary evidence. We will accept (4) Appeals. Sections 416.1920 through your statement on whether or not 416.1922 describe your appeal rights in someone is your parent or stepparent the State and in SSA. unless we have information to the contrary. If we have contrary information, [46 FR 47449, Sept. 27, 1981, as amended at 56 you must show us, if you can, one or FR 19262, Apr. 26, 1991] more of the following kinds of evidence that would help to prove whether or § 416.1902 Definitions. not the person is your parent or step- For purposes of this subpart— parent: Certificate of birth, baptism, Authorization means your written marriage, or death, or decree of adop- permission, in a form legally accept- tion, divorce, or annulment. If you can- able to us and to the State from which not, you must tell us why not and show you received interim assistance, for us

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to withhold the appropriate SSI benefit You or Your means someone who has payment and send it to the State. applied for or is already receiving SSI Interim assistance means assistance benefits. the State gives you, including pay- [46 FR 47449, Sept. 28, 1981; 46 FR 50947, Oct. ments made on your behalf to pro- 16, 1981, as amended at 56 FR 19262, Apr. 26, viders of goods or services, to meet 1991; 56 FR 25446, June 4, 1991; 62 FR 38455, your basic needs, beginning with the July 18, 1997; 64 FR 31975, June 15, 1999] first month for which you are eligible for payment of SSI benefits and ending AUTHORIZATIONS with, and including, the month your § 416.1904 Authorization to withhold SSI payments begin, or assistance the SSI benefits. State gives you beginning with the day We may withhold your SSI benefit for which your eligibility for SSI bene- payment and send it to the State to fits is reinstated after a period of sus- repay the State for the interim assist- pension or termination and ending ance it gave to you, if— with, and including, the month the (a) We have an interim assistance Commissioner makes the first payment agreement with the State at the time of benefits following the suspension or your authorization goes into effect; termination if it is determined subse- and quently that you were eligible for bene- (b) Your authorization is in effect at fits during that period. It does not in- the time we make the SSI benefit pay- clude assistance the State gives to or ment. for any other person. If the State has prepared and cannot stop delivery of § 416.1906 When your authorization is its last assistance payment to you in effect. when it receives your SSI benefit pay- Your authorization for us to withhold ment from us, that assistance payment your SSI benefit payment, to repay the is included as interim assistance to be State for interim assistance the State reimbursed. Interim assistance does gives you, is effective when we receive not include assistance payments fi- it, or (if our agreement with the State nanced wholly or partly with Federal allows) when we receive notice from funds. the State that it has received your au- SSI benefit payment means your Fed- thorization. It remains in effect until— eral benefit and any State supple- (a) We make the first SSI benefit mentary payment made by us to you payment on your initial application for on behalf of a State (see subpart T of benefits or, in the case of an authoriza- this part) which is due you at the time tion effective for a period of suspense we make the first payment of benefits or termination, until the initial pay- or when your benefits are reinstated ment following the termination or sus- after suspension or termination. Ad- pension of your benefits. vance payment, as defined in § 416.520, (b) We make a final determination on payment based upon presumptive dis- your claim (if your SSI claim is denied, ability or presumptive blindness, as de- the denial is the final determination, fined in § 416.931, or certain payments unless you file a timely appeal as de- made under the administrative imme- scribed in subpart N of this part); diate payment procedure, are not con- (c) You and the State agree to termi- sidered SSI benefit payments for in- nate your authorization; or terim assistance purposes. (d) If earlier than the event in para- State for purposes of an interim as- graph (a), (b), or (c) of this section, the sistance agreement, means a State of date (if any) specified in your author- the United States, the District of Co- ization. lumbia, or the Northern Mariana Is- [46 FR 47449, Sept. 27, 1981, as amended at 56 lands. For all other purposes (for exam- FR 19262, Apr. 26, 1991] ple, payment, appeals, notices) State also means a political subdivision of § 416.1908 When we need another au- any of these. thorization. We, Us, or Our means the Social Se- Once an event described in § 416.1906 curity Administration. occurs, your authorization is no longer

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effective. If you reapply for SSI bene- APPEALS fits, or the authorization has expired, the State must obtain a new authoriza- § 416.1920 Your appeal rights in the tion from you in order for us to repay State. the State for interim assistance it Under its interim assistance agree- gives you. ment with us, the State must agree to give you an opportunity for a hearing INTERIM ASSISTANCE AGREEMENTS if you disagree with the State’s actions regarding repayment of interim assist- § 416.1910 Requirements for interim ance. For example, you are entitled to assistance agreement. a hearing by the State if you disagree An interim assistance agreement with the State regarding the amount of must be in effect between us and the the repayment the State keeps or the State if we are to repay the State for amount of any excess the State pays to interim assistance. The following re- you. You are not entitled to a Federal quirements must be part of the agree- hearing on the State’s actions regard- ment: ing repayment of interim assistance. (a) SSA to repay the State. We must agree to repay the State for interim as- § 416.1922 Your appeal rights in SSA. sistance it gives you. Repayment to If you disagree with the total amount the State takes priority over any un- of money we have withheld and sent to derpayments due you (see §§ 416.525 and the State for the interim assistance it 416.542). gave to you, you have a right to appeal (b) State to pay any excess repayment to us, as described in subpart N of this to you. The State must agree that, if part. we repay it an amount greater than the amount of interim assistance it gave to Subpart T—State Supplementation you, the State will— (1) Pay the excess amount to you no Provisions; Agreement; Payments later than 10 working days from the date the State receives repayment AUTHORITY: Secs. 702(a)(5), 1616, 1618, and from us; or 1631 of the Social Security Act (42 U.S.C. 902(a)(5), 1382e, 1382g, and 1383); sec. 212, Pub. (2) Refund the excess amount to us L. 93–66, 87 Stat. 155 (42 U.S.C. 1382 note); sec. for disposition under the rules in sub- 8(a), (b)(1)–(b)(3), Pub. L. 93–233, 87 Stat. 956 (7 part E of the this part on payment of U.S.C. 612c note, 1431 note and 42 U.S.C. 1382e benefits if the State cannot pay it to note); secs. 1(a)–(c) and 2(a), 2(b)(1), 2(b)(2), you (for example, you die or you move Pub. L. 93–335, 88 Stat. 291 (42 U.S.C. 1382 and the State cannot locate you). note, 1382e note). (c) State to notify you. The State must SOURCE: 40 FR 7640, Feb. 21, 1975, unless agree to give you written notice ex- otherwise noted. plaining— (1) How much we have repaid the § 416.2001 State supplementary pay- State for interim assistance it gave ments; general. you; (a) State supplementary payments; de- (2) The excess amount, if any, due fined. State supplementary payments you; and are any payments made by a State or (3) That it will give you an oppor- one of its political subdivisions (includ- tunity for a hearing if you disagree ing any such payments for which reim- with State’s actions regarding repay- bursement is available from the Social ment of interim assistance. Security Administration pursuant to (d) Duration of the agreement. We and Pub. L. 94–23, as amended) to a recipi- the State must agree to the length of ent of supplemental security income time that the agreement will remain in benefits (or to an individual who would effect. be eligible for such benefits except for (e) State to comply with other regula- income), if the payments are made: tions. The State must agree to comply (1) In supplementation of the Federal with any other regulations that we find supplemental security income benefits; necessary to administer the interim as- i.e., as a complement to the Federal sistance provisions. benefit amount, thereby increasing the

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amount of income available to the re- § 416.2001(c) may enter into an adminis- cipient to meet his needs; and tration agreement with SSA under (2) Regularly, on a periodic recurring, which SSA will make the mandatory or routine basis of at least once a quar- minimum supplementary payments on ter; and behalf of such State. An agreement (3) In cash, which may be actual cur- under § 416.2001(c) and an administra- rency or any negotiable instrument, tion agreement under this paragraph convertible into cash upon demand; may be consolidated into one agree- and ment. (4) In an amount based on the need or (b) Agreement—mandatory and optional income of an individual or couple. payments. Subject to the provisions of (b) State; defined. For purposes of this paragraph (d) of this section, any State subpart, State means a State of the may enter into an agreement with SSA United States or the District of Colum- under which the State will provide bia. both mandatory and optional State (c) Mandatory minimum supplementary supplementary payments and elect payments. In order for a State to be eli- Federal administration of such State gible for payments pursuant to title supplementary payment programs. If XIX of the Act with respect to expendi- SSA agrees to administer such State’s tures for any quarter beginning after optional supplementary payments, the December 1973, such State must have State must also have SSA administer in effect an agreement with the Com- its mandatory minimum supple- missioner under which such State will mentary payments unless the State is provide to aged, blind, and disabled in- able to provide sufficient justification dividuals (as defined in § 416.202) resid- for exemption from this requirement. ing in the State who were recipients of (c) Administration—combination. Any aid or assistance for December 1973 as State may enter into an agreement defined in § 416.121, under such State’s with SSA under which the State will plan approved under title I, X, XIV, or provide mandatory minimum supple- XVI of the Act, mandatory minimum mentary payments and elect Federal supplementary payments beginning in administration of such payments while January 1974 in an amount determined providing optional State supple- in accordance with § 416.2050 in order to mentary payments which it shall ad- maintain their income levels of Decem- minister itself. If the State chooses to ber 1973. (See §§ 416.2065 and 416.2070.) administer such payment itself, it may (d) Supplementary payments for recipi- establish its own criteria for deter- ents of special SSI cash benefits. A State mining eligibility requirements as well which makes supplementary payments as the amounts. (regardless of whether they are manda- (d) Conditions of administration agree- tory or optional and whether the payment. The State and SSA may, subject ments are federally administered), has to the provisions of this subpart, enter the option of making those payments into a written agreement, in such form to individuals who receive cash bene- and containing such provisions not in- fits under section 1619(a) of the Act (see consistent with this part as are found § 416.261), or who would be eligible to necessary by SSA, under which SSA receive cash benefits except for their will administer the State supple- income. mentary payments on behalf of a State [40 FR 7640, Feb. 21, 1975, as amended at 43 (or political subdivision). Under such FR 48995, Oct. 20, 1978; 45 FR 54748, July 18, an agreement between SSA and a 1980; 47 FR 15326, Apr. 9, 1982; 62 FR 38455, State, specific Federal and State re- July 18, 1997] sponsibilities for administration and fiscal responsibilities will be stipu- § 416.2005 Administration agreements lated. The regulations in effect for the with SSA. supplemental security income program (a) Agreement-mandatory only. Subject shall be applicable in the Federal ad- to the provisions of paragraph (d) of ministration of State supplementary this section, any State having an payments except as may otherwise be agreement with the Social Security provided in this subpart as found by Administration (SSA) under SSA to be necessary for the effective

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and efficient administration of both (viii) For fiscal year 2001, $8.10; the basic Federal benefit and the State (ix) For fiscal year 2002, $8.50; and supplementary payment. If the State (x) For fiscal year 2003 and each suc- elects options available under this sub- ceeding fiscal year— part (specified in §§ 416.2015–416.2035), (A) The applicable rate in the pre- such options must be specified in the ceding fiscal year, increased by the administration agreement. percentage, if any, by which the Con- [40 FR 7640, Feb. 21, 1975, as amended at 62 sumer Price Index for the month of FR 312, Jan. 3, 1997] June of the calendar year of the increase exceeds the Consumer Price § 416.2010 Essentials of the administra- Index for the month of June of the cal- tion agreements. endar year preceding the calendar year (a) Payments. Any agreement between of the increase, and rounded to the SSA and a State made pursuant to nearest whole cent; or § 416.2005 must provide that, if for op- (B) Such different rate as the Com- tional supplementation, such State missioner determines is appropriate for supplementary payments are made to the State taking into account the com- all individuals and/or couples who are: plexity of administering the State’s (1) Receiving (or at the option of the supplementary payment program. State would, but for the amount of (2) SSA shall charge a State an addi- their income, be eligible to receive) tional services fee if, at the request of supplemental security income benefits the State, SSA agrees to provide the under title XVI of the Social Security State with additional services beyond Act, and the level customarily provided in the (2) Within the variations and cat- administration of State supplementary egories (as defined in § 416.2030) for payments. The additional services fee which the State (or political subdivi- shall be in an amount that SSA deter- sion) wishes to provide a supple- mines is necessary to cover all costs, mentary payment, and including indirect costs, incurred by (3) Residing, subject to the provisions the Federal Government in furnishing of § 416.2035(a), in such State (or polit- the additional services. SSA is not re- ical subdivision thereof). quired to perform any additional serv- (b) Administrative costs. (1) SSA shall ices requested by a State and may, at assess each State that had elected Fed- its sole discretion, refuse to perform eral administration of optional and/or those additional services. An addi- mandatory State supplementary pay- tional services fee charged a State may ments an administration fee for admin- be a one-time charge or, if the fur- istering those payments. The adminis- nished services result in ongoing costs tration fee is assessed and paid month- to the Federal Government, a monthly ly and is derived by multiplying the or less frequent charge to the State for number of State supplementary pay- providing such services. ments made by SSA on behalf of a (c) Agreement period. The agreement State for any month in a fiscal year by period for a State which has elected the applicable dollar rate for the fiscal Federal administration of its supple- year. The number of supplementary mentary payments will extend for one payments made by SSA in a month is year from the date the agreement was the total number of checks issued, and signed unless otherwise designated. direct deposits made, to recipients in The agreement will be automatically that month, that are composed in renewed for a period of one year unless whole or in part of State supple- either the State or SSA gives written mentary funds. The dollar rates are as notice not to renew, at least 90 days be- follows: fore the beginning of the new period. (i) For fiscal year 1994, $1.67; For a State to elect Federal adminis- (ii) For fiscal year 1995, $3.33; tration, it must notify SSA of its in- (iii) For fiscal year 1996, $5.00; tent to enter into an agreement, fur- (iv) For fiscal year 1997, $5.00; nishing the necessary payment speci- (v) For fiscal year 1998, $6.20; fications, at least 120 days before the (vi) For fiscal year 1999, $7.60; first day of the month for which it (vii) For fiscal year 2000, $7.80; wishes Federal administration to

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begin, and have executed such agree- come level shall not be lowered by such ment at least 30 days before such day. changes. (d) Modification or termination. The [40 FR 7640, Feb. 21, 1975, as amended at 62 agreement may be modified at any FR 313, Jan. 3, 1997; 63 FR 33849, June 22, 1998] time by mutual consent. The State or SSA may terminate the agreement § 416.2015 Establishing eligibility. upon 90 days written notice to the (a) Applications. Any person who other party, provided the effective date meets the application requirements of of the termination is the last day of a subpart C of this part is deemed to quarter. However, the State may ter- have filed an application for any feder- minate the agreement upon 45 days ally administered State supplemen- written notice to SSA where: (1) The tation for which he may be eligible un- State does not wish to comply with a less supplementation has been waived regulation promulgated by SSA subse- pursuant to § 416.2047. However, a sup- quent to the execution of the agree- plemental statement will be required ment; and (2) the State provides such where additional information is nec- written notice within 30 days of the ef- essary to establish eligibility or to defective date of the regulation. The Sec- termine the correct payment amount. retary is not precluded from termi- (b) Evidentiary requirements. The evi- nating the agreement in less than 90 dentiary requirements and develop- days where he finds that a State has mental procedures of this part are ap- failed to materially comply with the plicable with respect to federally ad- provisions of paragraph (f) of this sec- ministered State supplementary pay- tion or § 416.2090. ments. (e) Mandatory minimum State sup- (c) Determination. Where not incon- plementation. Any administration sistent with the provisions of this sub- agreement between SSA and a State part, eligibility for and the amount of under which SSA will make such the State supplementary payment will State’s mandatory minimum State be determined pursuant to the provi- supplementary payments shall provide sions of subparts A through Q of this that the State will: part. (1) Certify income and payment amount. (d) Categories; aged, blind, disabled. An Certify to SSA the names of each indi- applicant will be deemed to have filed vidual who, for December 1973 was eli- for the State supplementary payment gible for and a recipient of aid or as- amount provided for the category sistance in the form of money pay- under which his application for a Fed- ments under a plan of such State ap- eral supplemental security income ben- proved under title I, X, XIV, or XVI of efit is filed. As in the Federal supple- the Act (§ 416.121), together with the mental security income program, an amount of such aid or assistance pay- individual who establishes eligibility able to each such individual and the as a blind or disabled individual, and amount of such individual’s other in- continually remains on the rolls, will come (as defined in § 416.2050(b)(2)), and continue to be considered blind or dis- (2) Additional data. Provide SSA with abled after he attains age 65. such additional data at such times as (e) Concurrent categories. (1) In States SSA may reasonably require in order where the supplementary payment pro- to properly, economically, and effi- vided for the aged category is higher ciently carry out such administration than for the blind or disabled category aged individuals will be paid the State agreement. This shall include required supplement on the basis of age. information on changes in countable (2) If the administration agreement income as well as changes in special pursuant to § 416.2005(b) provides for needs and circumstances that would re- higher supplementary payments to the sult in a decrease in the mandatory in- blind or disabled than to the aged cat- come level being maintained by the egory, then, at the option of the State, State, unless the State has specified in the agreement may provide that indi- the agreement that the minimum in- viduals who are age 65 or over at time

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of application and who are blind or dis- (i) Aged and the other blind, or abled may elect to receive such higher (ii) Aged and the other disabled, or supplementary payments. (iii) Blind and the other disabled.

§ 416.2020 Federally administered sup- [40 FR 7640, Feb. 21, 1975, as amended at 50 plementary payments. FR 48579, Nov. 26, 1985] (a) Payment procedures. A federally § 416.2025 Optional supplementation: administered State supplementary Countable income. payment will be made on a monthly (a) Earned and unearned income. No basis and will be included in the same less than the amounts of earned or un- check as a Federal benefit that is pay- earned income which were excluded in able. A State supplementary payment determining eligibility for or amount shall be for the same month as the Fed- of a title XVI supplemental security in- eral benefit. come benefit must be excludable by a (b) Maximum amount. There is no re- State in the Federal-State agreement striction on the amount of a State sup- for purposes of determining eligibility plementary payment that the Federal for or amount of the State supple- Government will administer on behalf mentary payment. of a State. (b) Effect of countable income on pay- (c) Minimum amount. The Federal ment amounts. Countable income of an el- Government will not administer op- igible individual or eligible couple is tional State supplementary payments determined in the same manner as such in amounts less than $1 per month. income is determined under the title Hence, optional supplementary pay- XVI supplemental security income pro- ment amounts of less than $1 will be gram. Countable income will affect the raised to a dollar. amount of the State supplementary (d) Optional supplementation: nine cat- payments as follows: egories possible. A State may elect Fed- (1) As provided in § 416.420, countable eral administration of its supple- income will first be deducted from the mentary payments for up to nine cat- Federal benefit rate applicable to an egories, depending on the assistance ti- eligible individual or eligible couple. In tles in effect in that State in January the case of an eligible individual living 1972 (i.e., title I, X, XIV, or XVI). It can with an ineligible spouse with income have no more than two categories (one (the deeming provisions of § 416.1163 for individuals and one for couples) for apply), the Federal benefit rate from each title in effect for January 1972: which countable income will be de- (1) Since a State with a title XVI pro- ducted is the Federal benefit rate ap- gram had just the one title in effect, it plicable to an eligible couple, except can supplement only to two categories, that an eligible individual’s payment the individual (aged, blind, or dis- amount may not exceed the amount he abled), the couple (both of whom are or she would have received if he or she aged, blind, or disabled). were not subject to the deeming provi- (2) Other States could supplement up sions (§ 416.1163(e)(2)). to nine categories, depending on the (2) If countable income is equal to or plans they had in effect. Six of these less than the amount of the Federal categories would be for: benefit rate, the full amount of the (i) Aged Individual, State supplementary payment as speci- (ii) Aged Couple, fied in the Federal agreement will be (iii) Blind Individual, made. (iv) Blind Couple, (3) If countable income exceeds the (v) Disabled Individual, amount of the Federal benefit rate, the (vi) Disabled Couple. State supplementary benefit will be re- (3) In addition to those enumerated duced by the amount of such excess. In in paragraph (d)(2) of this section, the case of an eligible individual living there are three additional couple cat- with an ineligible spouse with income egories for which a State may elect to (the deeming methodology of § 416.1163 provide a federally administered sup- applies), the State supplementary pay- plement. These categories are created ment rate from which the excess in- when one individual in the couple is: come will be deducted is the higher of

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the State supplementary rates for an each category the State elects to ineligible couple or an eligible indi- clude in its federally administered sup- vidual, except that an eligible individ- plement. These categorical variations ual’s payment amount may not exceed of payment levels must be specified in the amount he or she would have re- the agreement between the Commis- ceived if he or she were not subject to sioner and the State. If any State has the deeming provisions (see in effect for July 1974 an agreement § 416.1163(e)(2)). For purposes of deter- which provides for variations in addi- mining the State supplementary couple tion to those specified in this section, rate, the ineligible spouse is considered the State may, at its option, continue to be in the same category as the eligi- such variations but only for periods ble individual. ending before July 1, 1976. (4) No State supplementary payment (1) Geographical variations. A State will be made where countable income may elect to include two different geo- is equal to or exceeds the sum of the graphical variations. A third may be Federal benefit rate and the State sup- elected if adequate justification, e.g., plementary payment rate. substantial differences in living costs, (c) Effect of additional income exclu- can be demonstrated. All such vari- sions on payment amounts. A State has ations must be readily identifiable by the option of excluding amounts of county or ZIP code or other readily earned and unearned income in addi- identifiable factor. tion to the amounts it is required to (2) Living arrangements. In addition, a exclude under paragraph (a) of this sec- State may elect up to six variations in tion in determining a person’s eligi- recognition of the different needs bility for State supplementary pay- which result from various living ar- ments. Such additional income exclu- rangements. If a State elects six pay- sions affect the amount of the State ment level variations based on dif- supplementary payments as follows: ferences in living arrangements, one of (1) Countable income (as determined these six variations must apply only to under the Federal eligibility rules) will individuals in Medicaid facilities, that first be deducted from the Federal ben- is, facilities receiving title XIX pay- efit rate applicable to an eligible indi- ments with respect to such persons for vidual or eligible couple. the cost of their care (see (2) Such countable income is then re- § 416.211(b)(1)). In any event, States are duced by the amount of the additional limited to one payment level variation income exclusion specified by the for residents of Medicaid facilities. State. Types of other living arrangements for (3) If the remaining countable income which payment variations may be al- is equal to or less than the amount of lowed include arrangements such as: the Federal benefit rate, the full (i) Living alone; amount of the State supplementary (ii) Living with an ineligible spouse; payment will be made. (iii) Personal care facility; or, (4) If the remaining countable income (iv) Domiciliary or congregate care exceeds the amount of the Federal ben- facility. efit rate, the State supplementary pay- (b) Relationship to actual cost dif- ment will be reduced by the amount of ferences. Under the agreement, vari- such excess. ations in State supplementary pay- (Secs. 1102, 1614(f), 1616(a), 1631, Social Secu- ment levels will be permitted for each rity Act, as amended, 49 Stat. 647, as amend- living arrangement the State elects. ed, 86 Stat. 1473, 1474(a), and 1475 (42 U.S.C. These differences must be based on ra- 1302, 1382c(f), 1382e(a), 1383)) tional distinctions between both the [40 FR 7640, Feb. 21, 1975, as amended at 43 types of living arrangements and the FR 39570, Sept. 6, 1978; 53 FR 25151, July 5, costs of those arrangements. 1988] (c) Effective month of State supplementary payment category. The State § 416.2030 Optional supplementation: supplementary payment category Variations in payments. which applies in the current month (a) Payment level. The level of State will be used to determine the State supplementary payments may vary for payment level in that month. This rule

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applies even if the countable income in (a) Inmate of public institution. A per- a prior month is used to determine the son who is a resident in a public insti- amount of State supplementary pay- tution for a month, is ineligible for a ment. Federal benefit for that month under the provision of § 416.211(a), and does [40 FR 7640, Feb. 21, 1975, as amended at 50 FR 48579, Nov. 26, 1985; 56 FR 41455, Aug. 21, not meet the requirements for any of 1991; 62 FR 38455, July 18, 1997] the exceptions in § 416.211 (b), (c), or (d), or § 416.212, also shall be ineligible for a § 416.2035 Optional supplementation: federally administered State supple- Additional State options. mentary payment for that month. (a) Residency requirement. A State or (b) Ineligible persons. No person who is political subdivision may impose, as a ineligible for a Federal benefit for any condition of eligibility, a residency re- month under sections 1611(e)(1)(A), (2), quirement which excludes from eligi- (3), or (f) of the Act (failure to file; re- bility for State supplementary pay- fuses treatment for drug addiction or ment any individual who has resided in alcoholism; outside the United States) such State (or political subdivision or other reasons (other than the thereof) for less than a minimum pe- amount of income) shall be eligible for riod prescribed by the State. Any such such State supplementation for such residency requirement will be specified month. in the agreement. (c) Recipient eligible for benefits under (b) Lien and relative responsibility. A § 416.212. A recipient who is institu- State which elects Federal administra- tionalized and is eligible for either ben- tion of its supplementary payments efit payable under § 416.212 for a month may place a lien upon property of an or months may also receive federally individual as a consequence of the re- administered State supplementation ceipt of such payments or may require for that month. Additionally, a recipi- that a relative of the individual con- ent who would be eligible for benefits tribute to a reasonable extent to the under § 416.212 but for countable income support of the individual, providing it which reduces his or her Federal SSI is stated in the agreement that: benefit to zero, may still be eligible to (1) The Commissioner has determined receive federally administered State that the specific State laws and their supplementation. enforcement are consistent with the [40 FR 7640, Feb. 21, 1975, as amended at 56 supplemental security income program FR 41455, Aug. 21, 1991; 61 FR 10280, Mar. 13, purpose of providing unencumbered 1996; 68 FR 40124, July 7, 2003] cash payments to recipients; and § 416.2045 Overpayments and under- (2) The Federal Government is not in- payments; federally administered volved in the administration of such supplementation. laws and will not vary the State supplementary payment amount it makes (a) Overpayments. Upon determina- to comply with such laws; and tion that an overpayment has been made, adjustments will be made (3) Neither the basic Federal benefit against future federally administered nor any part of the State supple- State supplementary payments for mentary payment financed by Federal which the person is entitled. Rules and funds will be subject to the liens or en- requirements (see §§ 416.550 through cumbrances of such laws. 416.586) in effect for recovery (or waiv- [40 FR 7640, Feb. 21, 1975, as amended at 62 er) of supplemental security income FR 38455, July 18, 1997] benefit overpayments shall also apply to the recovery (or waiver) of federally § 416.2040 Limitations on eligibility. administered State supplementary Notwithstanding any other provision overpaid amounts. If the overpaid per- of this subpart, the eligibility of an in- son’s entitlement to the State supple- dividual (or couple) for optional State mentary payments is terminated prior supplementary payments administered to recoupment of the overpaid State by the Federal Government in accord- supplementary payment amount, and ance with this subpart shall be limited the overpayment cannot be recovered as follows: from a Federal benefit payable under

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this part, the person’s record will be § 416.2050 Mandatory minimum State annotated (specifying the amount of supplementation. the overpayment) to permit (a) Determining the amount. The recoupment if the person becomes re- amount of a mandatory State supple- entitled to supplementary payments of mentary payment in the case of any el- such State or to a Federal benefit igible individual or couple for any under this part. month is equal to: (b) Underpayments. Upon determina- (1) The amount by which such indi- tion that an underpayment of State vidual or couple’s December 1973 in- supplementary payments is due and come (as defined in paragraph (b) of payable, the underpaid amount shall be this section) exceeds the amount of paid to the underpaid claimant di- such individual or couple’s title XVI rectly, or his representative. If the un- benefit plus other income which would have been used by such State in com- derpaid person dies before receiving the puting the assistance payable under underpaid amount of State supple- the State’s approved plan for such mentary payment the underpaid month; or amount shall be paid to the claimant’s (2) Such greater amount as the State eligible spouse. If the deceased claim- may specify. ant has no eligible spouse, no payment (b) December 1973 income. ‘‘December of the underpaid amount shall be made. 1973 income’’ means an amount equal (See §§ 416.538 through 416.543.) to the aggregate of: (1) Money payments. The amount of [40 FR 7640, Feb. 21, 1975, as amended at 65 FR 16815, Mar. 30, 2000] the aid or assistance in the form of money payments (as defined in 45 CFR § 416.2047 Waiver of State supple- 234.11(a)) which an individual would mentary payments. have received (including any part of such amount which is attributable to (a) Waiver request in writing. Any per- meeting special needs or special cir- son who is eligible to receive State sup- cumstances) under a State plan ap- plementary payments or who would be proved under title I, X, XIV, or XVI of eligible to receive such State supple- the Act in accordance with the terms mentary payments may waive his right and conditions of such plan relating to to receive such payments if such per- eligibility for and amount of such aid son makes a written request for waiver or assistance payable thereunder which of State supplementary payments. Any were in effect for the month of June such request made at time of applica- 1973 together with the bonus value of tion for the Federal benefit shall be ef- food stamps for January 1972 if for such fective immediately. Any such request month such individual resides in a filed after the application is filed shall State which SSA has determined pro- be effective the month the request is vides supplementary payments the received in a social security office, or level of which has been found by SSA earlier if the recipient refunds to the pursuant to section 8 of Pub. L. 93–233 Social Security Administration the (87 Stat. 956) to have been specifically amount of any supplementary pay- increased so as to include the bonus ment(s) made to him for the subject pe- value of food stamps, and riod. (2) Income. The amount of the income of such individual other than aid or as- (b) Revocation of waiver. Any indi- sistance, received by such individual in vidual who has waived State supple- December 1973, remaining after appli- mentary payments may revoke such cation of all appropriate income exclu- waiver at any time by making a writ- sions and used in computation of the ten request to any social security of- amount of aid or assistance, minus any fice. The revocation will be effective such income which did not result, but the month in which it is filed. The date which if properly reported, would have such request is received in a social se- resulted in a reduction in the amount curity office or the postmarked date, if of such aid or assistance. Income, the written request was mailed, will be which because a State paid less than the filing date, whichever is earlier. 100% of its standard of need, did not

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cause a reduction in the amount of aid (c) Not entitled to a Federal payment. or assistance is included. During any month in which such indi- (c) Special needs or circumstances. Spe- vidual was ineligible to receive supple- cial needs or circumstances include mental income benefits under title XVI needs of essential persons (as defined in of the Social Security Act by reason of § 416.222), special allowances for hous- the provisions of section 1611(e) (1)(A), ing, and such other situations for (2) or (3), 1611(f), or 1615(c) of such Act; which money payments to or for an eli- or gible individual were made under a (d) Month of change in residence. Dur- State plan approved under title I, X, ing any full month such individual is XIV, or XVI of the Act as in effect for not a resident of such State. June 1973. (d) Optional supplement payable. A re- § 416.2065 Mandatory minimum State cipient meeting the requirements of supplementation: Agreement paragraph (a) of this section who would deemed. otherwise qualify for a payment under a State’s program of optional State A State shall be deemed to have en- supplementation (provided for by tered into an agreement with the Com- § 416.2010) which is greater than the missioner under which such State shall amount required by paragraph (a) of provide mandatory minimum supple- this section, shall be paid such greater mentary payments if such State has amount. entered into an agreement with the Commissioner under section 1616 of the [40 FR 7640, Feb. 21, 1975, as amended at 51 FR 10616, Mar. 14, 1986; 62 FR 313, Jan. 3, 1997] Act under which: (a) Other eligible individuals. Supple- § 416.2055 Mandatory minimum sup- mentary payments are made to individ- plementation reduced. uals other than those aged, blind, and If for any month after December 1973 disabled individuals who were eligible there is a change with respect to any to receive aid or assistance in the form special need or special circumstance of money payments for the month of which, if such change had existed in December 1973 under a State plan ap- December 1973, would have caused a re- proved under title I, X, XIV, or XVI of duction in the amount of such individ- the Act, under terms and conditions of ual’s aid or assistance payment, then, such plan in effect for June 1973, and for such month and for each month (b) Minimum requirements. Supple- thereafter, the amount of the manda- mentary payments which meet the tory minimum supplement payable to mandatory minimum requirements of such individual may, at the option of this subpart are payable to all aged, the State, be reduced in accordance blind, or disabled individuals who were with the terms and conditions of the eligible to receive aid or assistance in State’s plan approved under title I, X, XIV, or XVI of the Act in effect for the the form of money payments for the month of June 1973. month of December 1973 under a State plan approved under title I, X, XIV, or § 416.2060 Mandatory minimum sup- XVI of the Act, under terms and condi- plementary payments not applications of such plan in effect for June ble. 1973. An individual eligible for mandatory [40 FR 7640, Feb. 21, 1975, as amended at 62 minimum supplementary payments FR 38455, July 18, 1997] from a State beginning in January 1974 shall not be eligible for such payments: § 416.2070 Mandatory supplemen- (a) Month after the month of death. Be- tation: State compliance not appli- ginning with the month after the cable. month in which the individual dies; or (b) Not aged, blind, or disabled. Begin- The requirement that a State must ning with the first month after the have in effect an agreement with the month in which such individual ceases Commissioner whereby such State to be an aged, blind, or disabled indi- shall provide individual aged, blind, vidual (as defined in § 416.202); or and disabled recipients residing in the

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State mandatory minimum supple- State’s supplementary payments shall mentary payments beginning in Janu- transfer to SSA: ary 1974 shall not be applicable in the (i) An amount of funds equal to case of any State where: SSA’s estimate of State supplementary (a) State constitution. The State con- payments for any month which shall be stitution limits expenditures that may made by SSA on behalf of such State; be paid as public assistance to, or on and behalf of, any needy person to an (ii) An amount of funds equal to amount that does not exceed the SSA’s estimate of administration fees amount of State public assistance pay- for any such month determined in the ments that are matched by Federal manner described in § 416.2010(b)(1); and funds under title I, IV, X, XIV, XVI or (iii) If applicable, an amount of funds XIX of the Social Security Act making equal to SSA’s determination of the it impossible for such State to enter costs incurred by the Federal govern- into and commence carrying out (on ment in furnishing additional services January 1, 1974) such agreement with for the State as described in the Commissioner, and § 416.2010(b)(2). (b) Attorney General decision. The At- (2) In order for SSA to make State torney General (or other appropriate supplementary payments on behalf of a State official) has, prior to July 1, 1973, State for any month as provided by the made a finding that the State constitu- agreement, the estimated amount of tion of such State contains limitations State funds referred to in paragraph which prevent such State from making (a)(1)(i) of this section, necessary to supplementary payments of the type make those payments for the month, described in section 1616 of the Act. together with the estimated amount of [40 FR 7640, Feb. 21, 1975, as amended at 62 administration fees referred to in para- FR 38455, July 18, 1997] graph (a)(1)(ii) of this section, for that month, must be on deposit with SSA on § 416.2075 Monitoring of mandatory the State supplementary payment minimum supplementary payments. transfer date, which is the fifth Federal (a) Access to records. Any State enter- business day following the day in the ing into an agreement with the Com- month that the regularly recurring missioner whereby such State will pro- monthly supplemental security income vide mandatory minimum supple- payments are issued. The additional mentary payments in accordance with services fee referred to in paragraph § 416.2001(c) shall agree that the Com- (a)(1)(iii) of this section shall be on de- missioner shall have access to and the posit with SSA on the date specified by right to examine any directly pertinent SSA. The amount of State funds paid books, documents, papers, and records to SSA for State supplementary pay- of the State involving transactions re- ments and the amount paid for admin- lated to this agreement. istration fees will be adjusted as nec- (b) Additional data. Any State enter- essary to maintain the balance with ing into an agreement in accordance State supplementary payments paid with § 416.2005 shall provide the Com- out by SSA on behalf of the State, and missioner with such additional data at administration fees owed to SSA, re- such times as the Commissioner may spectively. reasonably require in order to properly, (b) Accounting of State funds. (1) As economically, and efficiently be as- soon as feasible, after the end of each sessed of such State’s compliance with calendar month, SSA will provide the such State agreements. State with a statement showing, cumu- [40 FR 7640, Feb. 21, 1975, as amended at 62 latively, the total amounts paid by FR 38455, July 18, 1997] SSA on behalf of the State during the current Federal fiscal year; the fees § 416.2090 State funds transferred for charged by SSA to administer such supplementary payments. supplementary payments; any addi- (a) Payment transfer and adjustment. tional services fees charged the State; (1) Any State which has entered into the State’s total liability therefore; an agreement with SSA which provides and the end-of-month balance of the for Federal administration of such State’s cash on deposit with SSA.

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(2) SSA shall provide an accounting (1) Section 416.2095(b) indicates when of State funds received as State supple- the pass-along rules apply to State sup- mentary payments, administration plementary payments. fees, and additional services fees, with- (2) Section 416.2096 describes the in three calendar months following the basic pass-along rules. The States must termination of an agreement under have an agreement to ‘‘pass-along’’ in- § 416.2005. creases in Federal SSI benefits. A (3) Adjustments will be made because State passes along an increase when it of State funds due and payable or maintains (rather than decreases) the amounts of State funds recovered for levels of all its supplementary pay- calendar months for which the agreements after a Federal benefit increase ment was in effect. Interest will be in- has occurred. Generally, a pass-along curred by SSA and the States with re- of the increase permits recipients to spect to the adjustment and account- receive an additional amount in coming of State supplementary payments bined benefits equal to the Federal funds in accordance with applicable benefit increase. Except for the supple- laws and regulations of the United mentary payment level made to resi- States Department of the Treasury. dents of Medicaid facilities (see (c) State audit. Any State entering § 416.2096(d)), a State can decrease one into an agreement with SSA which pro- or more of its payment levels if it vides for Federal administration of the meets an annual total expenditures State’s supplementary payments has test. the right to an audit (at State expense) (3) Section 416.2097 explains the re- of the payments made by SSA on be- quired combined supplementary/SSI half of such State. The Secretary and payment level. the State shall mutually agree upon a (4) Section 416.2098 explains how to satisfactory audit arrangement to compute the March 1983, December verify that supplementary payments 1981, and December 1976 supplementary paid by SSA on behalf of the State payment levels. were made in accordance with the terms of the administration agreement (5) Section 416.2099 discusses what in- under § 416.2005. Resolution of audit formation a State must provide to the findings shall be made in accordance Commissioner concerning its sup- with the provisions of the State’s plementation programs so that the agreement with SSA. Commissioner can determine whether (d) Advance payment and adjustment the State is in compliance. That sec- not applicable. The provisions of para- tion also discusses the basis for find- graphs (a) and (b) of this section shall ings of noncompliance and what will not apply with respect to any State occur if a State is found out of compli- supplementary payment for which re- ance. imbursement is available from the So- (b) When the pass-along provisions cial and Rehabilitation Service pursu- apply. (1) The pass-along requirements ant to the Indochina Migration and apply to all States (and the District of Refugee Assistance Act of 1975 (Pub. L. Columbia) that make supplementary 94–23; 89 Stat. 87), as amended, since payments on or after June 30, 1977, and such amounts are not considered to be wish to participate in the Medicaid State supplementary payments. program. (2) The pass-along requirements [40 FR 7640, Feb. 21, 1975, as amended at 41 FR 36018, Aug. 26, 1976; 62 FR 313, Jan. 3, 1997] apply to both optional State supplementary payments of the type de- § 416.2095 Pass-along of Federal ben- scribed in § 416.2001(a) and mandatory efit increases. minimum State supplementary pay- (a) General. This section and the four ments as described in § 416.2001(c), sections that follow describe the rules whether or not these State supple- for passing along increases in the Fed- mentary payments are Federally ad- eral SSI benefit to recipients of State ministered. supplementary payments.

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(3) The requirements apply to State in March 1983, increased by any subse- supplementary payments both for re- quent SSI benefit increases, except as cipients who receive Federal SSI bene- provided in § 416.2097(b) and § 416.2097(c). fits and those who, because of count- (2) We will find that the State has able income, receive only a State sup- met the requirements of paragraph plementary payment. (a)(1) of this section if the State has (4) The requirements apply to State the appropriate agreement in effect supplementary payments for recipients and complies with the conditions in ei- eligible for a State supplementary pay- ther paragraph (b) or (c) of this section. ment on or after June 30, 1977. We will consider a State to have made (5) Supplementary payments made by supplementary payments on or after a State include payments made by a June 30, 1977, unless the State furnishes political subdivision (including Indian us satisfactory evidence to the con- tribes) where— trary. (i) The payment levels are set by the (b) Meeting the pass-along require- State; and ments—supplementary payment levels. (ii) The payments are funded in The provisions of this paragraph do not whole or in part by the State. apply to the supplementary payment [52 FR 36241, Sept. 28, 1987, as amended at 54 level for residents of Medicaid facilities FR 19165, May 4, 1989; 62 FR 38455, July 18, (see paragraph (d) of this section). 1997] (1) We will consider a State to have met the requirements for maintaining § 416.2096 Basic pass-along rules. its supplementary payment levels (de- (a) State agreements to maintain sup- scribed in § 416.2098) for a particular plementary payment levels. (1) In order month or months after March 1983 if to be eligible to receive Medicaid reim- the combined supplementary/SSI pay- bursement, any State that makes sup- ment levels have not been reduced plementary payments, other than pay- below the levels in effect in March 1983 ments to residents of Medicaid facili- (or if a State first made supplementary ties where Medicaid pays more than 50 payments after March 1983, the com- percent of the cost of their care (see bined supplementary/SSI payment lev- paragraph (d) of this section for defini- els in effect the first month the State tion of Medicaid facility and § 416.414 made supplementary payments), infor discussion of the reduced SSI ben- creased by any subsequent Federal SSI efit amount payable to residents of benefit increases, except as provided in Medicaid facilities), on or after June § 416.2097(b) and § 416.2097(c). We will 30, 1977, must have in effect an agree- consider a State to have met the re- ment with the Commissioner. In this quirements for maintaining its supple- agreement— mentary payment levels for a par- (i) The State must agree to continue ticular month or months between June to make the supplementary payments; 1977 and April 1983 if the supple- (ii) For months from July 1977 mentary payment levels have not been through March 1983, the State must reduced below the levels in effect in agree to maintain the supplementary December 1976 (or if a State first made payments at levels at least equal to the supplementary payments after Decem- December 1976 levels (or, if a State first ber 1976, the levels in effect the first makes supplementary payments after month the State made supplementary December 1976, the levels for the first payments, or in certain cases described month the State makes supplementary in paragraph (b)(2) of this section, the payments). For months in the period levels in effect in December 1981.) July 1, 1982 through March 31, 1983, a (2) We will also consider a State to State may elect to maintain the levels have met the requirements for main- described in paragraph (b)(2) of this taining its supplementary payment section; and levels for a particular month or (iii) For months after March 1983, the months in the period July 1, 1982, State must agree to maintain supple- through March 31, 1983, if the State had mentary payments at least sufficient met the requirements of paragraph (c) to maintain the combined supple- of this section for a particular month mentary/SSI payment levels in effect or months in the 12-month period July

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1, 1981 through June 30, 1982, and, with creases the total expenditures required respect to any month in the period for that period by an amount at least July 1, 1982 through March 31, 1983, the equal to the amount of the shortfall in State maintained the payment levels the relevant 12-month period. The in- in effect in December 1981. creased amount up to the amount need- (3) If a State reduced any of its sup- ed to correct the shortfall shall be plementary payment levels for a month deemed to be an expenditure in the rel- or months within any 12-month period evant 12-month period, for pass-along beginning with the effective date of a purposes only. (See paragraph (c)(5) of Federal benefit increase, we will con- this section.) sider the State to have met the re- (3)(i) Exception for the 6-month pe- quirement to maintain its supple- riod from July 1, 1983 through Decem- mentary payment levels if— ber 31, 1983: We will consider the State (i) Within 12 months after the rel- to have met the total-expenditures re- evant 12-month period, the State requirement for the 6-month period July stores the levels retroactively; and 1, 1983 through December 31, 1983, if— (ii) The State makes a single retro- (A) Total expenditures for State sup- active benefit payment to each of the plementary payments for the period beneficiaries eligible for the retro- July 1, 1983 through December 31, 1983, active payment. equal or exceed the total of such ex- (c) Meeting the passalong requirement— penditures for the period July l, 1982 total expenditures. Exception— The pro- through December 31, 1982; visions of this paragraph do not apply (B) Total expenditures for State sup- to the supplementary payment level plementary payments for the period for residents of Medicaid facilities (see January 1, 1983 through December 31, paragraph (d) of this section). 1983, equal or exceed the total of such (1) If a State does not meet the condi- expenditures for the period January 1, tions in paragraph (b) of this section, 1982 through December 31, 1982; or we will consider a State to have met (C) Total expenditures for State sup- the requirement for maintaining supplementary payments for the period plementary payment levels for a par- July 1, 1983 through December 31, 1983 ticular month or months if total State equal or exceed one-half of the total of expenditures for supplementary pay- such expenditures for the period July 1, ments in the 12-month period within 1982 through June 30, 1983. The provi- which the month or months fall, begin- sions of paragraphs (c)(4) and (c)(5) of ning on the effective date of a Federal this section and of § 416.2099 (b), (c), and SSI benefit increase, are at least equal (d) shall apply to this 6-month period to the total State expenditures for sup- in the same manner as they apply to plementary payments in the 12-month the 12-month periods referred to there- period immediately before the Federal in. SSI benefit increase provided that the (ii) Exception for the 12-month period State was in compliance for such pre- ending June 30, 1981: If a State did not ceding 12-month period. The combined meet the conditions in paragraph (b) of Federal/State payment level for those this section, we will consider a State to persons receiving a mandatory min- have met the maintenance-of-supple- imum State supplementary payment mentary-payment-levels requirement can be no lower than the recipient’s for this 12-month period if the State’s total income for December 1973 as de- expenditures for supplementary pay- fined in section 212(a)(3)(B) of Pub. L. ments in that period were at least 93–66. equal to its expenditures for such pay- (2) If total State expenditures in the ments for the 12-month period ending relevant 12-month period are less than June 30, 1977 (or, if the State made no the total expenditures in the preceding supplementary payments in that pe- 12-month period (a ‘‘shortfall’’), we also riod, the expenditures for the first 12- will consider a State to have met the month period ending June 30 in which requirement for maintaining supple- the State made such payments); if a mentary payment levels for the rel- State made additional State supple- evant 12-month period if in the fol- mentary payments during the period lowing 12-month period the State in- July 1, 1981 through June 30, 1982, in

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order to make up a shortfall in the 12- active supplementary payments that month period ending June 30, 1981 (de- are required to be made under the Sul- termined by a comparison with the pre- livan v. Zebley, 493 U.S. 521 (1990) class ceding 12-month period) which later re- action. sulted in an excess payment (deter- (d) Payments to residents to Medicaid mined by comparison with the 12- facilities. A Medicaid facility is a med- month period July 1, 1976 through June ical care facility where Medicaid pays 30, 1977) we will credit the State with more than 50 percent of the cost of a the amount of the excess payments if person’s care. In order to be eligible to the State so requests. This credit will receive Medicaid reimbursement, any be applied to any shortfall(s) in total State that has a supplementary pay- expenditures (should one exist) in any ment level for residents of Medicaid fa- period(s) ending on or before December cilities on or after October 1, 1987, must 31, 1986. have in effect an agreement with the (4) Total State expenditures for sup- Commissioner to maintain such supple- plementary payments are the State’s mentary payment level at least equal total payments for both mandatory to the October 1987 level (or if a State minimum and optional State supple- first makes such supplementary pay- mentary payments in the appropriate ments after October 1, 1987, but before 12-month period less any amounts July 1, 1988, the level for the first deemed to be expenditures for another month the State makes such supple- 12-month period under paragraph (c)(2) mentary payments). of this section, less the amount of any [52 FR 36241, Sept. 28, 1987, as amended at 54 payments recovered and other adjust- FR 19165, May 4, 1989; 56 FR 55453, Oct. 28, ments made in that period. Total State 1991; 62 FR 30984, June 6, 1997; 62 FR 38455, expenditures do not include State ad- July 18, 1997; 65 FR 16815, Mar. 30, 2000] ministrative expenses, interim assistance payments, vendor payments, or § 416.2097 Combined supplementary/ payments made under other Federal SSI payment levels. programs, such as titles IV, XIX, or XX (a) Other than the level for residents of the Social Security Act. of Medicaid facilities (see paragraph (d) (5) Adjustments in total State sup- of this section), the combined supple- plementary payments made after the mentary/SSI payment level for each expiration of the relevant 12-month pe- payment category that must be pro- riod for purposes of meeting total vided in any month after March 1983 State expenditures under paragraph (c) (or if a State first made supplementary of this section shall be considered a payments after March 1983, the com- State expenditure in the relevant 12- bined supplementary SSI payment lev- month period only for purposes of the els in effect the first month the State pass-along requirement. For purposes made supplementary payments) in of § 416.2090 of this part, which discusses order for a State to meet the require- the rules for limitation on fiscal liabil- ment of the first sentence of ity of States (hold harmless), these ret- § 416.2096(b) is the sum of— roactive adjustments are State expend- (1) The SSI Federal benefit rate itures when made and shall be counted (FBR) for March 1983 for a recipient as a State expenditure in the fiscal with no countable income; year in which the adjustments are (2) That portion of the July 1983 ben- made. efit increase computed in accordance (6) To determine whether a State’s with paragraph (b) of this section; expenditures for supplementary pay- (3) The full amount of all SSI benefit ments in the 12-month period begin- increases after July 1983; and ning on the effective date of any in- (4) The State supplementary pay- crease in the level of SSI benefits are ment level for March 1983 as deter- not less than the State’s expenditures mined under § 416.2098. for the payments in the preceding 12- (b) The monthly FBR’s were in- month period, in computing the State’s creased in July 1983 by $20 for an eligi- expenditures, we disregard, pursuant to ble individual and $30 for an eligible a one-time election of the State, all ex- couple, and the monthly increment for penditures by the State for the retro- essential persons was increased by $10

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in lieu of the expected cost-of-living creased by $5 for an individual/$10 for a adjustment which was delayed until couple effective July 1, 1988. January 1984. However, in computing [52 FR 36242, Sept. 28, 1987, as amended at 54 the required combined supplementary/ FR 19165, May 4, 1989; 54 FR 23018, May 30, SSI payment levels for the purpose of 1989] determining pass-along compliance, we use only the amounts by which the § 416.2098 Supplementary payment levels. FBR’s and the essential person increment would have increased had there (a) General. For the purpose of deter- been a cost-of-living adjustment in mining the combined supplementary/ July 1983 (a 3.5 percent increase would SSI payment levels described in have occurred). These amounts are § 416.2097(a) (i.e., the levels that must be provided in any month after March $9.70 for an eligible individual, $14.60 1983), the supplementary payment for an eligible couple and $4.50 for an level, except for the level for residents essential person. of Medicaid facilities (see § 416.2097(d)), (c) For the 24-month period January for each payment category must be no 1, 1984, through December 31, 1985, a less than the total State payment for State will not be found out of compli- March 1983 for that payment category ance with respect to its payment levels that a State provided an eligible indi- if in the period January 1, 1986, through vidual (or couple) with no countable in- December 31, 1986, its supplementary come in excess of the FBR for March payment levels are not less than its 1983. For States that did not make sup- supplementary payment levels in effect plementary payments in March 1983, in December 1976 increased by the per- the supplementary payment level for centage by which the FBR has in- each payment category must be no less creased after December 1976 and before than the total State payment for the February 1986. The FBR for an indi- first month after March 1983 in which a vidual in December 1976 was $167.80. State makes supplementary payments. The FBR for an individual in effect on (b) Calculation of the required manda- January 31, 1986, was $336.00, an in- tory minimum State supplementary pay- crease of 100.24 percent over the De- ment level. (1) Except for States december 1976 FBR. In order for a State scribed in paragraph (b)(2) of this sec- to take advantage of this provision for tion, the mandatory minimum State supplementary payment level for the 24-month period January 1, 1984, March 1983 is a recipient’s December through December 31, 1985, the State 1973 income, as defined in section supplementary payment levels in effect 212(a)(3)(B) of Pub. L. 93–66, plus any for calendar year 1986 must be at least State increases prior to April 1983, less 100.24 percent higher than the State any reductions made at any time after supplementary payment levels in effect December 1973 due to changes in spe- in December 1976. This provision does cial needs or circumstances, less the not apply to State supplementary pay- March 1983 FBR. The amount deter- ments to recipients in Federal living mined under the previous sentence arrangement ‘‘D’’ (residents of a med- shall continue for April, May, and June ical facility where title XIX pays more 1983. For July 1983 and later the than 50 percent of the costs). amount calculated in the first sentence (d) The combined supplementary/SSI shall continue except that it may be payment level which must be main- reduced by the amount of the July 1983 tained for residents of Medicaid facili- Federal increase that was not related ties is the State supplement payable on to the cost of living (i.e., $10.30), so long October 1, 1987, or if no such payments as that reduction does not cause the were made on October 1, 1987, the sup- mandatory minimum State supple- plementary payment amount made in mentary level to fall below that re- the first month that a supplementary quired by section 212(a)(3)(A) of Pub. L. payment was made after October 1987 93–66. (2) Section 1618(c) of the Act per- but before July 1, 1988, plus the Federal mitted any State that had satisfied the benefit rate in effect in October 1987 in- requirements of section 1618 of the Act

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by the total-expenditures method for be reduced by the amount of the July the 12-month period July 1, 1981, 1983 Federal increase that was not re- through June 30, 1982, and that elected lated to the cost of living (i.e., $10.30). to change and meet the section 1618 re- If the State varied its payment levels quirements by the maintenance-of-pay- for different groups of recipients (e.g., ment-levels method for the period July paid recipients different amounts based 1, 1982, through June 30, 1983, to do so on eligibility categories, geographic by paying benefits at levels no lower areas, living arrangements, or marital than the levels of such payments in ef- status), each variation represents a fect for December 1981. However, a re- separate supplementary payment level. cipient’s December 1981 total income (d) Calculation of the required optional (December 1981 mandatory minimum State supplementary payment level for in- State supplement plus the FBR) could dividually budgeted grant amounts. The not be less than the recipient’s total optional State supplementary payment income for December 1973 as defined in level for individually budgeted grant section 212(a)(3)(B) of Pub. L. 93–66. For amounts for March 1983 is the amount a State that elected the option in the that the State budgeted for March 1983 preceding two sentences, the manda- in excess of the March 1983 FBR for an tory minimum State supplementary eligible individual (or couple) having payment level for March 1983 is a re- the same needs and no countable in- cipient’s December 1981 total income come. The amount determined under (but not less than the total income for the previous sentence shall continue December 1973 as defined by section for April, May, and June 1983. For July 212(a)(3)(B) of Pub. L. 93–66) plus any 1983 and later the amount calculated in State increases after December 1981 the first sentence shall continue except and prior to April 1983, less any reduc- that it may be reduced by the amount tions made at any time after December of the July 1983 Federal increase that 1981 due to changes in special needs or was not related to the cost of living circumstances, less the March 1983 (i.e., $10.30). FBR. The amount determined under (e) Optional State supplementary pay- the previous sentence shall continue ment level for per diem based grant for April, May, and June 1983. For July amounts. (1) The optional State supple- 1983 and later, the amount calculated mentary payment level for March 1983 under the preceding sentence defining for per diem grant amounts is the total the required March 1983 mandatory dollar amount that the State paid to minimum State supplementary pay- an eligible individual (or couple) with ment level would continue except that no countable income at rates in effect it may be reduced by the amount of the for March 1983 (number of days in the July 1983 Federal increase that was not calendar month multiplied by the related to the cost of living (i.e., $10.30), March 1983 per diem rate plus any so long as that reduction does not March 1983 personal needs allowance) cause the mandatory minimum State in excess of the March 1983 FBR. supplementary level to fall below that Example: required by section 212(a)(3)(A) of Pub. March L. 93–66. 1983: (c) Calculation of the required optional $15.40 Per diem rate. State supplementary payment level for × 31 Days in month. flat grant amounts. The optional State 477.40 supplementary payment level for 477.40 March 1983 for flat grant amounts is + 42.00 Personal needs allowance. the total amount that an eligible indi- 519.40 vidual (or couple) with no countable in- 519.40 Combined State supplementary/SSI pay- come received for March 1983 in excess ment. of the FBR for March 1983. The amount ¥284.30 March 1983 FBR. determined under the previous sentence shall continue for April, May, 235.10 State supplementary payment level. and June 1983. For July 1983 and later (2) The optional State supplementary the amount calculated in the first sen- payment level for months subsequent tence shall continue except that it may to March 1983 for per diem grant

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amounts is the total dollar amount egories described in paragraphs (a) that the State paid to an individual (or through (e) of this section substitute couple) with no countable income at ‘‘December 1976’’ for ‘‘March 1983’’ and rates in effect in March 1983 (number of ‘‘January 1977’’ for ‘‘April 1983’’ when- days in the calendar month multiplied ever they appear in these paragraphs by the March 1983 per diem rate plus only. any March 1983 personal needs allow- (g) Alternative required optional State ance) in excess of the March 1983 FBR supplementary payment level for July 1982 for an individual (or couple) with no through March 1983. States which were countable income increased by all FBR in compliance solely under the total- increases subsequent to March 1983 expenditures test for the 12-month pe- with the exception of the July 1, 1983 riod ending June 30, 1982, had the op- increase. For the July 1, 1983 increase tion of substituting December 1981 for to the FBR, a State need pass-along December 1976 and switching to the only that portion of the increase which maintenance-of-payment-levels test for represented the increase in the cost of July 1982 through March 1983 (see living adjustment (3.5 percent). § 416.2096(b)(2)). If this situation applies, Example: NOTE: Example assumes the State determine the December 1981 State passed along only $9.70 of the $20.00 increase supplementary payment levels for cat- in the FBR effective July 1, 1983. egories described in paragraphs (a) The March 1983 combined supplementary/ through (e) of this section by sub- SSI payment level for a 31-day month was stituting ‘‘December 1981’’ for ‘‘March $519.40. 1983’’ and ‘‘January 1982’’ for ‘‘April July 1983 1983’’ whenever they appear in these level: $519.40 March 1983 combined payment. paragraphs only. + 9.70 July 1983 COLA-equivalent. [52 FR 36243, Sept. 28, 1987; 53 FR 4135, Feb. 529.10 Required July 1983 combined payment 12, 1988, as amended at 54 FR 19165, May 4, level. 1989; 54 FR 23018, May 30, 1989] 529.10 Required July 1983 combined payment level. ¥304.30 July 1983 FBR. § 416.2099 Compliance with pass-along. (a) Information regarding compliance. 224.80 Required State Supplementary payment level. Any State required to enter into a 529.10 Required July 1983 combined payment pass-along agreement with the Com- level. missioner shall provide appropriate and ¥ 42.00 Personal needs allowance. timely information to demonstrate to 487.10 the Commissioner’s satisfaction that 487.10 the State is meeting the pass-along re- + 31 Days in month. quirements. The information shall in- 15.71 Per diem rate. clude, where relevant— The required July 1983 combined supple- (1) The State’s December 1976 supplementary/SSI payment level for a 31-day mentary payment levels, any subse- month was $529.10. This amount is equal to quent supplementary payment levels, the March 1983 combined payment amount and any change in State eligibility re- for a 31-day month plus the July 1983 COLA- quirements. If the State made no sup- equivalent ($519.40 + $9.70). plementary payments in December (f) Required optional State supple- 1976, it shall provide such information mentary payment level for months prior to about the first month in which it April 1983. In determining pass-along makes supplementary payments; compliance under the maintenance-of- (2) The State’s March 1983 supple- payment-levels test for months from mentary payment levels, any subse- July 1977 through March 1983, we used quent supplementary payment levels, December 1976 (or December 1981 under and any changes in State eligibility re- the circumstances described in para- quirements; graph (g) of this section) as the stand- (3) The total State expenditures for ard month for determining the required supplementary payments in the 12- State supplementary payment level. To month period beginning July 1976 determine the December 1976 State through June 1977, in each subsequent supplementary payment levels for cat- 12-month period, and in any other 12-

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month period beginning on the effec- ment was not in effect. If a State first tive date of a Federal SSI benefit in- makes supplementary payments begin- crease. The State shall also submit ad- ning with a month after June 1977, in- vance estimates of its total supple- eligibility shall apply to any calendar mentary payments in each 12-month quarter beginning after the calendar period covered by the agreement; quarter in which the State first makes (4) The total State expenditures for payments. supplementary payments in the 6- (d) Notices to States about potential month periods July 1, 1982 through De- noncompliance. Within 90 days after the cember 31, 1982 and July 1, 1983 through end of the relevant 12-month period, December 31, 1983; and the Commissioner shall send a notice (5) The State supplementary pay- to any State that has not maintained ment level payable to residents of Med- its supplementary payment levels and icaid facilities (see § 416.2096(d)) on Oc- that appears not to have maintained tober 1, 1987 (or, if a State first makes its total expenditures during the pe- such supplementary payments after riod. The notice will advise the State October 1, 1987, but before July 1, 1988, of the available methods of compliance the level for the month the State first and the time within which corrective makes such supplementary payments). action must be taken (see The State shall also report all changes §§ 416.2096(b)(3) and 416.2096(c)(2)) in in such payment levels. order to avoid a determination of non- (b) Records. Except where the Com- compliance. If the State fails to take missioner administers the State sup- the corrective action, the Commis- plementary payments, the State shall sioner shall make a timely determina- maintain records about its supple- tion of noncompliance. mentary payment levels and total 12- month (or 6-month where applicable) (Approved by the Office of Management and Budget under control number 0960–0240) expenditures for supplementary payments and permit inspection and audit [52 FR 36244, Sept. 28, 1987, as amended at 54 by the Commissioner or someone des- FR 19165, May 4, 1989; 62 FR 38455, July 18, ignated by the Commissioner. 1997] (c) Noncompliance by the States. Any State that makes supplementary pay- Subpart U—Medicaid Eligibility ments on or after June 30, 1977, and Determinations does not have a pass-along agreement with the Commissioner in effect, shall AUTHORITY: Secs. 702(a)(5), 1106, 1631(d)(1), be determined by the Commissioner to and 1634 of the Social Security Act (42 U.S.C. be ineligible for payments under title 902(a)(5), 1306, 1383(d)(1), and 1383c). XIX of the Act. A State does not have an agreement in effect if it has not en- SOURCE: 53 FR 12941, Apr. 20, 1988, unless tered into an agreement or has not otherwise noted. complied with the terms of the agree- § 416.2101 Introduction. ment. Ineligibility shall apply to total expenditures for any calendar quarter (a) What is in this subpart. This sub- beginning after June 30, 1977, for which part describes the agreements we make a State has not entered into an agree- with States under which we determine ment. A State that enters into an the Medicaid eligibility of individuals agreement but does not maintain its who receive Supplemental Security In- payment levels or meet the total-ex- come (SSI) benefits. It includes a gen- penditures test in a particular 12- eral description of the services we will month or transitional 6-month period, provide under these agreements and shall be determined by the Commis- the costs to the States for the services. sioner not to have an agreement in ef- (b) Related regulations. The com- fect for any month that the State did prehensive regulations on eligibility not meet the pass-along requirements for the Medicaid program, adminis- during that particular period. The tered by the Health Care Financing Ad- State shall then be ineligible for title ministration, are in part 435 of title 42 XIX payments for any calendar quarter of the Code of Federal Regulations. containing a month for which an agree- (c) Definitions. In this subpart—

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SSI benefits means Federal SSI bene- quirements that are mandated by Fed- fits, including special SSI cash benefits eral law. When we determine that a under section 1619(a) of the Social Se- person is eligible for Medicaid in ac- curity Act. In addition, we consider a cordance with § 416.2111 or that we are person who has special SSI eligibility not making the determination, we no- status under section 1619(b) of the So- tify the State of that fact. cial Security Act to be receiving SSI benefits. § 416.2130 Effect of the agreement and State Medicaid Plan means a State’s responsibilities of States. medical assistance plan which the Sec- (a) An agreement under this subpart retary has approved under title XIX of does not change— the Act for Federal payment of a share (1) The provisions of a State’s Med- of the State’s medical assistance ex- icaid plan; penses. (2) The conditions under which the State supplementary payments means Secretary will approve a State’s Med- supplementary payments we admin- icaid plan; or ister for a State under subpart T of this (3) A State’s responsibilities under part. the State Medicaid plan. We, us, or our refers to the Social Se- (b) Following are examples of func- curity Administration. tions we will not agree to carry out for the State: § 416.2111 Conditions for our agreeing (1) Stationing of our employees at to make Medicaid eligibility deter- hospitals or nursing homes to take minations. Medicaid applications; We will agree to make Medicaid eligi- (2) Determining whether a person is bility determinations for a State only eligible for Medicaid for any period be- if the State’s Medicaid eligibility re- fore he or she applied for SSI benefits; quirements for recipients of SSI bene- (3) Giving approval for emergency fits and for recipients of State supple- medical care under Medicaid before a mentary payments are the same as the determination has been made on requirements for receiving SSI benefits whether a person is eligible for SSI and the requirements for receiving benefits; State supplementary payments, respec- (4) Setting up or running a State’s tively. Exceptions: We may agree to system for requiring a person to pay make Medicaid eligibility determina- part of the cost of services he or she re- tions— ceives under Medicaid; or (a) For one, two, or all of the three (5) Giving identification cards to peo- categories of people (i.e., aged, blind, ple to show that they are eligible for and disabled) who receive SSI benefits Medicaid. or State supplementary payments; or (b) Even though the State’s Medicaid § 416.2140 Liability for erroneous Med- eligibility requirements for recipients icaid eligibility determinations. of SSI benefits or of State supple- If the State suffers any financial loss, mentary payments, or both, differ from directly or indirectly, through using the requirements for SSI or State sup- any information we provide under an plementary payments, or both, in ways agreement described in this subpart, mandated by Federal law. we will not be responsible for that loss. However, if we erroneously tell a State § 416.2116 Medicaid eligibility deter- that a person is eligible for Medicaid minations. and the State therefore makes erro- If a State requests, we may agree, neous Medicaid payments, the State under the conditions in this subpart, to will be paid the Federal share of those make Medicaid eligibility determina- payments under the Medicaid program tions on behalf of the State. Under as if they were correct. these agreements, we make the Med- icaid determinations when determina- § 416.2145 Services other than Med- tions or redeterminations are nec- icaid determinations. essary for SSI purposes. Our deter- We will agree under authority of sec- minations may include non-SSI re- tion 1106 of the Act and 31 U.S.C. 6505

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to provide services other than Medicaid tions is charged in the following man- determinations to help the State ad- ner: minister its Medicaid program. We will (1) If providing basic SSI application do this only if we determine it is the information causes us additional cost, most efficient and economical way to the State must pay our full additional accomplish the State’s purpose and cost. does not interfere with administration (2) The State must pay our full addi- of the SSI program. The services can be tional cost caused by providing any in- part of a Medicaid eligibility deter- formation that we collect for Medicaid mination agreement or a separate purposes and for statistical or other agreement. Under either agreement we studies and any other services. will— (a) Give the State basic information § 416.2166 Changing the agreement. relevant to Medicaid eligibility from The State and we can agree in writ- individuals’ applications for SSI bene- ing to change the agreement at any fits; time. (b) Give the State answers to certain purely Medicaid-related questions (in § 416.2171 Duration of agreement. addition to any that may be necessary An agreement under this subpart is under § 416.2111(b)), such as whether the automatically renewed for 1 year at SSI applicant has any unpaid medical the end of the term stated in the agree- expenses for the current month or the ment and again at the end of each 1- previous 3 calendar months; year renewal term, unless— (c) Conduct statistical or other stud- (a) The State and we agree in writing ies for the State; and to end it at any time; (d) Provide other services the State (b) Either the State or we end it at and we agree on. any time without the other’s consent by giving written notice at least 90 § 416.2161 Charges to States. days before the end of a term, or 120 days before any other ending date se- (a) States with Medicaid eligibility de- lected by whoever wants to end the termination agreement. A State with agreement; or which we have an agreement to make (c)(1) The State fails to pay our costs Medicaid eligibility determinations is as agreed; charged in the following manner: (2) We notify the State in writing, at (1) If making Medicaid determina- least 30 days before the ending date we tions and providing basic SSI applica- select, why we intend to end the agree- tion information for a State causes us ment; and additional cost, the State must pay (3) The State does not give a good half of that additional cost. ‘‘Addi- reason for keeping the agreement in tional cost’’ in this section means cost force beyond the ending date we se- in addition to costs we would have had lected. If the State does provide a good anyway in administering the SSI pro- reason, the termination will be post- gram. poned or the agreement will be kept in (2) The State must pay half our addi- force until the end of the term. tional cost caused by providing any information that we collect for Medicaid § 416.2176 Disagreements between a purposes and by any other services di- State and us. rectly related to making Medicaid eli- (a) If a State with which we have an gibility determinations. agreement under this subpart and we (3) The State must pay our full addi- are unable to agree about any question tional cost for statistical or other stud- of performance under the agreement, ies and any other services that are not the State may appeal the question to directly related to making Medicaid the Commissioner of Social Security. eligibility determinations. The Commissioner or his or her des- (b) States without Medicaid eligibility ignee will, within 90 days after receiv- determination agreement. A State with ing the State’s appeal, give the State which we do not have an agreement to either a written decision or a written make Medicaid eligibility determina- explanation of why a decision cannot

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be made within 90 days, what is needed of a continuous 9-month period of sub- before a decision can be made, and stantial gainful activity (SGA) as spec- when a decision is expected to be made. ified in §§ 416.2210 through 416.2211; or (b) The Commissioner’s decision will (b) The individual continues to re- be the final decision of the Social Secu- ceive disability or blindness benefits, rity Administration. even though his or her disability or blindness has ceased, under section [53 FR 12941, Apr. 20, 1988, as amended at 62 FR 38456, July 18, 1997] 1631(a)(6) of the Act because of his or her continued participation in an approved VR program which we have de- Subpart V—Payments for termined will increase the likelihood Vocational Rehabilitation Services that he or she will not return to the disability or blindness rolls (see AUTHORITY: Secs. 702(a)(5), 1615, 1631(d)(1) § 416.2212). and (e), and 1633(a) of the Social Security Act (42 U.S.C. 902(a)(5), 1382d, 1383(d)(1) and [68 FR 40124, July 7, 2003, as amended at 83 (e), and 1383b(a)). FR 62460, Dec. 4, 2018] SOURCE: 48 FR 6297, Feb. 10, 1983, unless § 416.2202 Purpose and scope. otherwise noted. This subpart describes the rules GENERAL PROVISIONS under which the Commissioner will pay the State VR agencies for VR services. § 416.2201 General. Payment will be provided for VR serv- In general, sections 1615(d) and (e) of ices provided on behalf of disabled or the Social Security Act (the Act) au- blind individuals under one or more of thorize payment from the general fund the provisions discussed in § 416.2201. for the reasonable and necessary costs (a) Sections 416.2201 through 416.2203 of vocational rehabilitation (VR) serv- describe the purpose of these regula- ices provided certain disabled or blind tions and the meaning of terms we fre- individuals who are eligible for supple- quently use in them. mental security income (SSI) benefits, (b) Section 416.2204 explains how special SSI eligibility status, or feder- State VR agencies may participate in ally administered State supplementary the payment program under this sub- payments. In this subpart, such bene- part. fits, status, or payments are referred to (c) [Reserved] as disability or blindness benefits (see (d) Sections 416.2208 through 416.2209 § 416.2203). Subject to the provisions of describe the requirements and condi- this subpart, payment may be made for tions under which we will pay a State VR services provided an individual dur- VR agency under this subpart. ing a month(s) for which the individual (e) Sections 416.2210 through 416.2211 is eligible for disability or blindness describe when an individual has com- benefits, including the continuation of pleted a continuous period of SGA and such benefits under section 1631(a)(6) of when VR services will be considered to the Act, or for which the individual’s have contributed to that period. disability or blindness benefits are sus- (f) Section 416.2212 describes when pended (see § 416.2215). Paragraphs (a) payment will be made to a VR agency and (b) of this section describe the because an individual’s disability or cases in which the State VR agencies blindness benefits are continued based can be paid for the VR services pro- on his or her participation in a VR provided such an individual under this gram which we have determined will subpart. The purpose of sections 1615(d) increase the likelihood that he or she and (e) of the Act is to make VR serv- will not return to the disability rolls. ices more readily available to disabled (g) Sections 416.2214 through 416.2215 or blind individuals and ensure that describe services for which payment savings accrue to the general fund. will be made. Payment will be made for VR services (h) Section 416.2216 describes the fil- provided on behalf of such an indi- ing deadlines for claims for payment vidual in cases where— for VR services. (a) The furnishing of the VR services (i) Section 416.2217 describes the pay- results in the individual’s completion ment conditions.

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(j) [Reserved] in deciding a recipient’s continuing eli- (k) Section 416.2219 describes how we gibility for benefits. will make payment to State VR agen- Place the recipient into an extended cies for rehabilitation services. evaluation process means that the State (l) Sections 416.2220 and 416.2221 de- VR agency determines that an ex- scribe the audits and the prepayment tended evaluation of the individual’s and postpayment validation reviews we VR potential is necessary to determine will conduct. whether the individual is eligible for (m) Section 416.2222 discusses con- VR services and places the individual fidentiality of information and records. into an extended evaluation status. (n) Section 416.2223 provides for the SGA means substantial gainful activ- applicability of other Federal laws and ity performed by an individual as de- regulations. fined in §§ 416.971 through 416.975 of this (o) Section 416.2227 provides for the subpart or § 404.1584 of this chapter. resolution of disputes. Special SSI eligibility status refers to the special status described in §§ 416.264 [48 FR 6297, Feb. 10, 1983, as amended at 55 through 416.269 relating to eligibility FR 8456, Mar. 8, 1990; 59 FR 11916, Mar. 15, for Medicaid. 1994; 62 FR 38456, July 18, 1997; 68 FR 40124, July 7, 2003; 83 FR 62460, Dec. 4, 2018] State means any of the 50 States of the United States, the District of Co- § 416.2203 Definitions. lumbia, or the Northern Mariana Is- lands. It includes the State VR agency. For purposes of this subpart: Vocational rehabilitation services has Accept the recipient as a client for VR the meaning assigned to it under title services means that the State VR agen- I of the Rehabilitation Act of 1973. cy determines that the individual is el- VR agency means an agency of the igible for VR services and places the in- State which has been designated by the dividual into an active caseload status State to provide vocational rehabilita- for development of an individualized tion services under title I of the Reha- written rehabilitation program. bilitation Act of 1973. Act means the Social Security Act, as We, us, and our refer to the Social Se- amended. curity Administration (SSA). Blindness means ‘‘blindness’’ as defined in section 1614(a)(2) of the Act. [48 FR 6297, Feb. 10, 1983, as amended at 55 Commissioner means the Commis- FR 8456, Mar. 8, 1990; 55 FR 19423, May 9, 1990; 59 FR 1637, Jan. 12, 1994; 59 FR 11916, Mar. 15, sioner of Social Security or the Com- 1994; 61 FR 31026, June 19, 1996; 62 FR 38456, missioner’s designee. July 18, 1997; 68 FR 40125, July 7, 2003; 83 FR Disability means ‘‘disability’’ as de- 62460, Dec. 4, 2018] fined in section 1614(a)(3) of the Act. Disability or blindness benefits, as de- § 416.2204 Participation by State VR fined for this subpart only, refers to agencies. regular SSI benefits under section 1611 (a) General. In order to participate in of the Act (see § 416.202), special SSI the payment program under this sub- cash benefits under section 1619(a) of part through its VR agency(ies), a the Act (see § 416.261), special SSI eligi- State must have a plan which meets bility status under section 1619(b) of the requirements of title I of the Reha- the Act (see § 416.264), and/or a federally bilitation Act of 1973, as amended. administered State supplementary (b) Participation by States. (1) The op- payment under section 1616 of the Act portunity to participate through its or section 212(b) of Public Law 93–66 VR agency(ies) with respect to disabled (see § 416.2001), for which an individual or blind recipients in the State will be is eligible based on disability or blind- offered first to the State in accordance ness, as appropriate. with paragraph (c) of this section, un- Medical recovery for purposes of this less the State has notified us in ad- subpart is established when a disabled vance under paragraph (e)(1) of this or blind recipient’s eligibility ceases section of its decision not to partici- for any medical reason (other than pate or to limit such participation. death). The determination of medical (2) A State with one or more ap- recovery is made by the Commissioner proved VR agencies may choose to

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limit participation of those agencies to completion of the evaluation of its de- a certain class(es) of disabled or blind cision whether or not to accept the re- recipients. For example, a State with cipient as a client for VR services. If separate VR agencies for the blind and we receive a notice of a decision by the disabled may choose to limit participa- State VR agency to accept the recipi- tion to the VR agency for the blind. In ent as a client for VR services fol- such a case, we would give the State, lowing the completion of the extended through its VR agency for the blind, evaluation, the State may continue to the opportunity to participate with re- participate with respect to such recipi- spect to blind recipients in the State in ent. accordance with paragraph (d) of this (d) Opportunity for limited participa- section. A State that chooses to limit tion through State VR agencies. If a participation of its VR agency(ies) State has decided under paragraph must notify us in advance under para- (e)(1) of this section to limit participa- graph (e)(1) of this section of its deci- tion of its VR agency(ies) to a certain sion to limit such participation. class(es) of disabled or blind recipients (c) Opportunity for participation in the State, we will give the State the through State VR agencies. (1) Unless a opportunity to participate with respect State has decided not to participate or to such class(es) of disabled or blind re- to limit participation, we will give the cipients by referring such recipients State the opportunity to participate first to the State VR agency(ies) for through its VR agency(ies) with re- necessary VR services. The State, spect to disabled or blind recipients in through its VR agency(ies), may par- the State by referring such recipients ticipate with respect to any recipient first to the State VR agency(ies) for so referred by accepting the recipient necessary VR services. A State, through its VR agency(ies), may par- as a client for VR services or placing ticipate with respect to any recipient the recipient into an extended evalua- so referred by accepting the recipient tion process and notifying us under as a client for VR services or placing paragraph (c)(2) of this section of such the recipient into an extended evalua- acceptance or placement. tion process and notifying us under (e) Decision of a State not to participate paragraph (c)(2) of this section of such or to limit participation. (1) A State may acceptance or placement. choose not to participate through its (2)(i) In order for the State to partici- VR agency(ies) with respect to any dis- pate with respect to a disabled or blind abled or blind recipients in the State, recipient whom we referred to a State or it may choose to limit participation VR agency, the State VR agency must of its VR agency(ies) to a certain notify the appropriate Regional Com- class(es) of disabled or blind recipients missioner (SSA) in writing or through in the State. A State which decides not electronic notification of its decision to participate or to limit participation either to accept the recipient as a cli- must provide advance written notice of ent for VR services or to place the re- that decision to the appropriate Re- cipient into an extended evaluation gional Commissioner (SSA). Unless a process. The notice must be received by State specifies a later month, a deci- the appropriate Regional Commis- sion not to participate or to limit par- sioner (SSA) no later than the close of ticipation will be effective beginning the fourth month following the month with the third month following the in which we referred the recipient to month in which the notice of the deci- the State VR agency. sion is received by the appropriate Re- (ii) In any case in which a State VR gional Commissioner (SSA). The notice agency notifies the appropriate Re- of the State decision must be sub- gional Commissioner (SSA) in writing mitted by an official authorized to act within the stated time period under for the State for this purpose. A State paragraph (c)(2)(i) of this section of its must provide to the appropriate Re- decision to place the recipient into an gional Commissioner (SSA) an opinion extended evaluation process, the State from the State’s Attorney General, VR agency also must notify that Re- verifying the authority of the official gional Commissioner in writing upon who sent the notice to act for the

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State. This opinion will not be nec- (e) The individual must meet one of essary if the notice is signed by the the VR payment provisions specified in Governor of the State. § 416.2201; (2) [Reserved] (f) The State VR agency must main- (3) A State which has decided not to tain, and provide as we may require, participate or to limit participation adequate documentation of all services may participate later through its VR and costs for all disabled or blind re- agency(ies) in accordance with para- cipients with respect to whom a State graph (c) of this section. A State that VR agency could potentially request decides to resume participation under payment for services and costs under paragraph (c) of this section must pro- this subpart; and vide advance written notice of that de- (g) The amount to be paid must be cision to the appropriate Regional reasonable and necessary and be in Commissioner (SSA). A decision of a compliance with the cost guidelines State to resume participation under specified in § 416.2217. paragraph (c) of this section will be ef- [48 FR 6297, Feb. 10, 1983, as amended at 55 fective beginning with the third month FR 8456, Mar. 8, 1990; 59 FR 11918, Mar. 15, following the month in which the no- 1994; 83 FR 62460, Dec. 4, 2018] tice of the decision is received by the appropriate Regional Commissioner § 416.2209 Responsibility for making payment decisions. (SSA) or, if later, with a month specified by the State. The notice of the The Commissioner will decide: State decision must be submitted by an (a) Whether a continuous period of 9 official authorized to act for the State months of SGA has been completed; as explained in paragraph (e)(1) of this (b) Whether a disability or blindness section. recipient whose disability or blindness has ceased should continue to receive [59 FR 11917, Mar. 15, 1994, as amended at 83 benefits under section 1631(a)(6) of the FR 62460, Dec. 4, 2018] Social Security Act for a month after October 1984 or, in the case of a blind- § 416.2206 [Reserved] ness recipient, for a month after March PAYMENT PROVISIONS 1988, based on his or her continued participation in a VR program; § 416.2208 Requirements for payment. (c) If and when medical recovery has occurred; (a) The State VR agency must file a (d) Whether documentation of VR claim for payment in each individual services and expenditures is adequate; case within the time periods specified (e) If payment is to be based on com- in § 416.2216; pletion of a continuous 9-month period (b) The claim for payment must be in of SGA, whether the VR services con- a form prescribed by us and contain the tributed to the continuous period of following information: SGA; (1) A description of each service pro- (f) Whether a VR service is a service vided; described in § 416.2214; and (2) When the service was provided; (g) What VR costs were reasonable and and necessary and will be paid. (3) The cost of the service; [55 FR 8456, Mar. 8, 1990, as amended at 59 FR (c) The VR services for which pay- 11918, Mar. 15, 1994; 61 FR 31026, June 19, 1996; ment is being requested must have 68 FR 40125, July 7, 2003] been provided during the period specified in § 416.2215; § 416.2210 What we mean by ‘‘SGA’’ (d) The VR services for which pay- and by ‘‘a continuous period of 9 ment is being requested must have months’’. been provided under a State plan for (a) What we mean by ‘‘SGA’’. In deter- VR services approved under title I of mining whether an individual’s work is the Rehabilitation Act of 1973, as SGA, we will follow the rules in amended, and must be services that are §§ 416.972 through 416.975. We will follow described in § 416.2214; these same rules for individuals who

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are statutorily blind, but we will evalu- continuous period or medical recovery ate the earnings in accordance with the (if medical recovery occurred before rules in § 404.1584(d) of this chapter. completion of a continuous period) (b) What we mean by ‘‘a continuous pe- would not have occurred without the riod of 9 months’’. A continuous period services provided. In applying the cri- of 9 months ordinarily means a period teria below, we will consider services of 9 consecutive calendar months. Ex- described in § 416.2214 that were initi- ception: When an individual does not ated, coordinated or provided, includ- perform SGA in 9 consecutive calendar ing services before October 1, 1981. months, he or she will be considered to (a) Continuous period without medical have done so if— recovery. If an individual who has com- (1) The individual performs 9 months pleted a ‘‘continuous period’’ of SGA of SGA within 10 consecutive months has not medically recovered as of the and has monthly earnings that meet or date of completion of the period, the exceed the guidelines in § 416.974(b)(2), determination as to whether VR serv- or § 404.1584(d) of this chapter if the in- ices contributed will depend on wheth- dividual is statutorily blind, or er the continuous period began one (2) The individual performs at least 9 year or less after VR services ended or months of SGA within 12 consecutive more than one year after VR services months, and the reason for not per- ended. forming SGA in 2 or 3 of those months (1) One year or less. Any VR services was due to circumstances beyond his or which significantly motivated or as- her control and unrelated to the im- sisted the individual in returning to, or pairment (e.g., the employer closed continuing in, SGA will be considered down for 3 months). to have contributed to the continuous (c) What work we consider. In deter- period. mining if a continuous period of SGA (2) More than one year. (i) If the con- has been completed, all of an individ- tinuous period was preceded by transi- ual’s work activity may be evaluated tional work activity (employment or for purposes of this section, including self-employment which gradually work performed before October 1, 1981, evolved, with or without periodic inter- during a trial work period, and after ruption, into SGA), and that work ac- eligibility for disability or blindness tivity began less than a year after VR payments ended. We will ordinarily services ended, any VR services which consider only the first 9 months of SGA significantly motivated or assisted the that occurs. The exception will be if an individual in returning to, or con- individual who completed 9 months of tinuing in, SGA will be considered to SGA later stops performing SGA, re- have contributed to the continuous pe- ceived VR services and then performs riod. SGA for a 9-month period. See § 416.2215 (ii) If the continuous period was not for the use of the continuous period in preceded by transitional work activity determining payment for VR services. that began less than a year after VR [48 FR 6297, Feb. 10, 1983, as amended at 55 services ended, VR services will be con- FR 8457, Mar. 8, 1990] sidered to have contributed to the continuous period only if it is reasonable § 416.2211 Criteria for determining to conclude that the work activity when VR services will be consid- which constitutes a continuous period ered to have contributed to a con- could not have occurred without the tinuous period of 9 months. VR services (e.g., training). The State VR agency may be paid for (b) Continuous period with medical re- VR services if such services contribute covery occurring before completion. (1) If to the individual’s performance of a an individual medically recovers before continuous 9-month period of SGA. The a continuous period has been com- following criteria apply to individuals pleted, VR services under paragraph (a) who received more than just evaluation of this section will not be payable un- services. If a State VR agency claims less some VR services contributed to payment for services to an individual the medical recovery. VR services will who received only evaluation services, be considered to have contributed to it must establish that the individual’s the medical recovery if—

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(i) The individualized written reha- agency in accordance with title I of the bilitation program (IWRP), included Rehabilitation Act of 1973, as amended, medical services; and subject to the limitations and condi- (ii) The medical recovery occurred, tions in this subpart. VR services for at least in part, because of these med- which payment may be made under ical services. (For example, the individ- this subpart include only those services ual’s medical recovery was based on described in paragraph (b) of this sec- improvement in a back condition tion which are— which, at least in part, stemmed from (1) Necessary to determine an indi- surgery initiated, coordinated or pro- vidual’s eligibility for VR services or vided under an IWRP). the nature and scope of the services to (2) In some instances, the State VR be provided; or agency will not have provided, initi- (2) Provided by a State VR agency ated, or coordinated medical services. under an IWRP, but only if the services If this happens, payment for VR serv- could reasonably be expected to moti- ices may still be possible under para- vate or assist the individual in return- graph (a) of this section if: ing to, or continuing in, SGA. (i) The medical recovery was not expected by us; and (b) Specific services. Payment may be (ii) The individual’s impairment is made under this subpart only for the determined by us to be of such a nature following VR services: that any medical services provided (1) An assessment for determining an would not ordinarily have resulted in, individual’s eligibility for VR services or contributed to, the medical ces- and vocational rehabilitation needs by sation. qualified personnel, including, if appropriate, an assessment by personnel [48 FR 6297, Feb. 10, 1983, as amended at 59 skilled in rehabilitation technology, FR 11918, Mar. 15, 1994; 83 FR 62460, Dec. 4, and which includes determining— 2018] (i) The nature and extent of the phys- § 416.2212 Payment for VR services in ical or mental impairment(s) and the a case where an individual con- resultant impact on the individual’s tinues to receive disability or blind- employability; ness benefits based on participation (ii) The likelihood that an individual in an approved VR program. will benefit from vocational rehabilita- Section 1631(a)(6) of the Act contains tion services in terms of employability; the criteria we will use in determining and if an individual whose disability or (iii) An employment goal consistent blindness has ceased should continue to with the capacities of the individual receive disability or blindness benefits and employment opportunities; because of his or her continued partici- (2) Counseling and guidance, includ- pation in an approved VR program. A ing personal adjustment counseling, VR agency can be paid for the cost of and those referrals and other services VR services provided to an individual if necessary to help an individual secure the individual was receiving benefits needed services from other agencies; based on this provision in a month(s) (3) Physical and mental restoration after October 1984 or, in the case of a services necessary to correct or sub- blindness recipient, in a month(s) after stantially modify a physical or mental March 1988. If this requirement is met, condition which is stable or slowly pro- a VR agency can be paid for the costs gressive and which constitutes an im- of VR services provided within the pe- pediment to suitable employment at or riod specified in § 416.2215, subject to above the SGA level; the other payment and administrative (4) Vocational and other training provisions of this subpart. services, including personal and voca- [83 FR 62461, Dec. 4, 2018] tional adjustment, books, tools, and other training materials, except that § 416.2214 Services for which payment training or training services in institu- may be made. tions of higher education will be cov- (a) General. Payment may be made ered under this section only if max- for VR services provided by a State VR imum efforts have been made by the

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State VR agency to secure grant as- section 1631(a)(6) of the Act (see sistance in whole or in part from other § 416.2212); or sources; (ii) The disability or blindness bene- (5) Maintenance expenses that are fits of the individual are suspended due extra living expenses over and above to his or her ineligibility for the bene- the individual’s normal living expenses fits (see subpart M of this part con- and that are incurred solely because of cerning suspension for ineligibility); and while the individual is partici- and pating in the VR program and that are (3) Before completion of a continuous necessary in order for the individual to 9-month period of SGA or termination benefit from other necessary VR serv- of disability or blindness benefits, ices; whichever occurs first (see subpart M (6) Travel and related expenses nec- of this part concerning termination of essary to transport an individual for benefits). purpose of enabling the individual’s (b) If an individual who is receiving participation in other necessary VR services; disability or blindness benefits under (7) Services to family members of a this part, or whose benefits under this disabled or blind individual only if nec- part are suspended, also is entitled to essary to the successful vocational re- disability benefits under part 404 of habilitation of that individual; this chapter, the determination as to (8) Interpreter services and note-tak- when services must have been provided ing services for an individual who is may be made under this section or deaf and tactile interpreting for an in- § 404.2115 of this chapter, whichever is dividual who is deaf and blind; advantageous to the State VR agency (9) Reader services, rehabilitation that is participating in both VR pro- teaching services, note-taking services, grams. and orientation and mobility services [61 FR 31026, June 19, 1996, as amended at 83 for an individual who is blind; FR 62461, Dec. 4, 2018] (10) Telecommunications, sensory, and other technological aids and de- § 416.2216 When claims for payment vices; for VR services must be made (fil- (11) Work-related placement services ing deadlines). to secure suitable employment; The State VR agency must file a (12) Post-employment services nec- claim for payment in each individual essary to maintain, regain or advance case within the following time periods: into suitable employment at or above the SGA level; (a) A claim for payment for VR serv- (13) Occupational licenses, tools, ices based on the completion of a con- equipment, initial stocks, and supplies; tinuous 9-month period of SGA must be (14) Rehabilitation technology serv- filed within 12 months after the month ices; and in which the continuous 9-month pe- (15) Other goods and services that can riod of SGA is completed. reasonably be expected to motivate or (b) A claim for payment for VR serv- assist the individual in returning to, or ices provided to an individual whose continuing in, SGA. disability or blindness benefits were continued after disability or blindness [59 FR 11919, Mar. 15, 1994, as amended at 83 FR 62461, Dec. 4, 2018] has ceased because of that individual’s continued participation in a VR pro- § 416.2215 When services must have gram must be filed as follows: been provided. (1) If a written notice requesting that (a) In order for the VR agency to be a claim be filed was sent to the State paid, the services must have been pro- VR agency, a claim must be filed with- vided— in 90 days following the month in (1) After September 30, 1981; which VR services end, or if later, (2) During a month(s) for which— within 90 days after receipt of the no- (i) The individual is eligible for dis- tice. ability or blindness benefits or con- (2) If no written notice was sent to tinues to receive such benefits under the State VR agency, a claim must be

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filed within 12 months after the month VR agency requests payment under in which VR services end. this subpart. Such certification must [55 FR 8457, Mar. 8, 1990, as amended at 61 FR be signed by the State’s chief financial 31026, June 19, 1996; 68 FR 40125, July 7, 2003; official or the head of the VR agency. 83 FR 62461, Dec. 4, 2018] Each certification must specify the basis upon which it is made, e.g., a re- § 416.2217 What costs will be paid. cent audit by an authorized State, Fed- In accordance with section 1615(d) eral or private auditor (or other inde- and (e) of the Social Security Act, the pendent compliance review) and the Commissioner will pay the State VR date of such audit (or compliance re- agency for the VR services described in view). We may request the State VR § 416.2214 which were provided during agency to submit to us a copy(ies) of the period described in § 416.2215 and its specific written cost-containment which meet the criteria in § 416.2211 or policies and procedures (e.g., any § 416.2212, but subject to the following guidelines and fee schedules for a given limitations: year), if we determine that such addi- (a) The cost must have been incurred by the State VR agency; tional information is necessary to en- (b) The cost must not have been paid sure compliance with the requirements or be payable from some other source. of this subpart. The State VR agency For this purpose, State VR agencies shall provide such information when will be required to seek payment or requested by us. services from other sources in accord- (d) The total payment in each case, ance with the ‘‘similar benefit’’ provi- including any prior payments related sions under 34 CFR part 361, including to earlier continuous 9-month periods making maximum efforts to secure of SGA made under this subpart, must grant assistance in whole or part from not be so high as to preclude a ‘‘net other sources for training or training saving’’ to the general funds (a ‘‘net services in institutions of higher edu- saving’’ is the difference between the cation. estimated savings to the general fund, (c)(1) The cost must be reasonable if payments for disability or blindness and necessary, in that it complies with remain reduced or eventually termi- the written cost-containment policies nate, and the total amount we pay to of the State VR agency. A cost which the State VR agency); complies with these policies will be (e) Any payment to the State VR considered necessary only if the cost is agency for either direct or indirect VR for a VR service described in § 416.2214. The State VR agency must maintain expenses must be consistent with the and use these cost-containment poli- cost principles described in OMB Cir- cies, including any reasonable and ap- cular No. A–87, as revised; propriate fee schedules, to govern the (f) Payment for VR services or costs costs incurred for all VR services, in- may be made under more than one of cluding the rates of payment for all the VR payment provisions described purchased services, for which payment in §§ 416.2211 and 416.2212 of this subpart will be requested under this subpart. and similar provisions in §§ 404.2111 and For the purpose of this subpart, the 404.2112 of subpart V of part 404. How- written cost-containment policies must ever, payment will not be made more provide guidelines designed to ensure— than once for the same VR service or (i) The lowest reasonable cost for cost; and such services; and (g) Payment will be made for admin- (ii) Sufficient flexibility so as to istrative costs and for counseling and allow for an individual’s needs. placement costs. This payment may be (2) The State VR agency shall submit on a formula basis, or on an actual cost to us before the end of the first cal- basis, whichever the State VR agency endar quarter of each year a written statement certifying that cost-containment policies are in effect and are ad- hered to in procuring and providing goods and services for which the State

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prefers. The formula will be nego- notice of the determination. The Com- tiated. The payment will also be sub- missioner will make a determination ject to the preceding limitations. and notify the State VR agency of that decision in writing, usually, no later [48 FR 6297, Feb. 10, 1983. Redesignated and amended at 55 FR 8457, 8458, Mar. 8, 1990; 55 than 45 days from the date of the ap- FR 14916, Apr. 19, 1990; 59 FR 11919, Mar. 15, peal. The decision by the Commis- 1994; 61 FR 31027, June 19, 1996; 62 FR 38456, sioner will be final and conclusive un- July 18, 1997; 68 FR 40125, July 7, 2003; 83 FR less the State VR agency appeals that 62461, Dec. 4, 2018] decision in writing in accordance with 45 CFR part 16 to the Department of ADMINISTRATIVE PROVISIONS Health and Human Services’ Depart- mental Appeals Board within 30 days § 416.2218 [Reserved] after receiving it. § 416.2219 Method of payment. [83 FR 62462, Dec. 4, 2018] Payment to the State VR agencies pursuant to this subpart will be made § 416.2221 Validation reviews. either by advancement of funds or by (a) General. We will conduct a valida- payment for services provided (with tion review of a sample of the claims necessary adjustments for any over- for payment filed by each State VR payments and underpayments), as de- agency. We will conduct some of these cided by the Commissioner. reviews on a prepayment basis and some on a postpayment basis. We may [83 FR 62462, Dec. 4, 2018] review a specific claim, a sample of the claims, or all the claims filed by any § 416.2220 Audits. State VR agency, if we determine that (a) General. The State shall permit us such review is necessary to ensure and the Comptroller General of the compliance with the requirements of United States (including duly author- this subpart. For each claim selected ized representatives) access to and the for review, the State VR agency must right to examine records relating to submit such records of the VR services the services and costs for which pay- and costs for which payment has been ment was requested or made under requested or made under this subpart, these regulations. These records shall or copies of such records, as we may re- be retained by the State for the periods quire to ensure that the services and of time specified for retention of costs meet the requirements for pay- records in the Federal Acquisition Reg- ment. For claims for cases described in ulations (48 CFR part 4, subpart 4.7). § 416.2201(a), a clear explanation or ex- (b) Audit basis. Auditing will be based isting documentation which demon cost principles and written guide- onstrates how the service contributed lines in effect at the time services were to the individual’s performance of a provided and costs were incurred. The continuous 9-month period of SGA State VR agency will be informed and must be provided. For claims for cases given a full explanation of any ques- described in § 416.2201(b) or (c), a clear tioned items. They will be given a rea- explanation or existing documentation sonable time to explain questioned which demonstrates how the service items. Any explanation furnished by was reasonably expected to motivate or the State VR agency will be given full assist the individual to return to or consideration before a final determina- continue in SGA must be provided. If tion is made on questioned items in the we find in any prepayment validation audit report. review that the scope or content of the (c) Appeal of audit determinations. The information is inadequate, we will re- appropriate SSA Regional Commis- quest additional information and will sioner will notify the State VR agency withhold payment until adequate infor- in writing of his or her final determina- mation has been provided. The State tion on the audit report. If the State VR agency shall permit us (including VR agency disagrees with that deter- duly authorized representatives) access mination, it may request reconsider- to, and the right to examine, any ation in writing within 60 days after re- records relating to such services and ceiving the Regional Commissioner’s costs. Any review performed under this

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section will not be considered an audit § 416.2227 Resolution of disputes. for purposes of this subpart. (a) Disputes on the amount to be paid. (b) Purpose. The primary purpose of The appropriate SSA official will no- these reviews is— tify the State VR agency in writing of (1) To ensure that the VR services his or her determination concerning and costs meet the requirements for the amount to be paid. If the State VR payment under this subpart; agency disagrees with that determina- (2) To assess the validity of our docu- tion, the State VR agency may request mentation requirements; and reconsideration in writing within 60 (3) To assess the need for additional days after receiving the notice of de- validation reviews or additional docu- termination. The Commissioner will mentation requirements for any State make a determination and notify the VR agency to ensure compliance with State VR agency of that decision in the requirements under this subpart. writing, usually, no later than 45 days (c) Determinations. In any validation from the date of the State VR agency’s review, we will determine whether the appeal. The decision by the Commis- VR services and costs meet the require- sioner will be final and conclusive upon ments for payment and determine the the State VR agency unless the State amount of payment. We will notify in VR agency appeals that decision in writing the State VR agency of our de- writing in accordance with 45 CFR part termination. If we find in any 16 to the Department of Health and postpayment validation review that Human Services’ Departmental Ap- more or less than the correct amount peals Board within 30 days after receiv- of payment was made for a claim, we ing the Commissioner’s decision. will determine that an overpayment or (b) Disputes on whether there was a underpayment has occurred and will continuous period of SGA and whether notify the State VR agency that we VR services contributed to a continuous will make the appropriate adjustment. period of SGA. The rules in paragraph (d) Appeals. If the State VR agency (a) of this section will apply, except disagrees with our determination under that the Commissioner’s decision will this section, it may appeal that deter- be final and conclusive. There is no mination in accordance with § 416.2227. right of appeal to the Departmental For purposes of this section, an appeal Appeals Board. must be filed within 60 days after re- (c) Disputes on determinations made by ceiving the notice of our determina- the Commissioner which affect a disabled tion. or blind beneficiary’s rights to benefits. Determinations made by the Commis- [59 FR 11920, Mar. 15, 1994, as amended at sioner which affect an individual’s 62462, Dec. 4, 2018] right to benefits (e.g., determinations that disability or blindness benefits § 416.2222 Confidentiality of informa- should be terminated, denied, sus- tion and records. pended, continued or begun at a dif- The State shall comply with the pro- ferent date than alleged) cannot be ap- visions for confidentiality of informa- pealed by a State VR agency. Because tion, including the security of systems, these determinations are an integral and records requirements described in part of the disability or blindness bene- 20 CFR part 401 and pertinent written fits claims process, they can only be guidelines (see § 416.2223). appealed by the beneficiary or appli- [83 FR 62462, Dec. 4, 2018] cant whose rights are affected or by his or her authorized representative. How- § 416.2223 Other Federal laws and reg- ever, if an appeal of an unfavorable de- ulations. termination is made by the individual and is successful, the new determina- Each State VR agency shall comply tion would also apply for purposes of with the provisions of other Federal this subpart. While a VR agency can- laws and regulations that directly af- not appeal a determination made by fect its responsibilities in carrying out the Commissioner which affects a bene- the vocational rehabilitation function. ficiary’s or applicant’s rights, the VR [83 FR 62462, Dec. 4, 2018] agency can furnish any evidence it may

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have which would support a revision of 418.1215 What is a significant reduction in a determination. your income? 418.1220 What is not a significant reduction [48 FR 6297, Feb. 10, 1983, as amended at 55 in your income? FR 8458, Mar. 8, 1990; 62 FR 38456, July 18, 418.1225 Which more recent tax year will we 1997; 83 FR 62462, Dec. 4, 2018] use? 418.1230 What is the effective date of an income-related monthly adjustment PART 418—MEDICARE SUBSIDIES amount initial determination that is based on a more recent tax year? Subpart A [Reserved] 418.1235 When will we stop using your more recent tax year’s modified adjusted gross Subpart B—Medicare Part B Income- income to determine your income-re- Related Monthly Adjustment Amount lated monthly adjustment amount? 418.1240 Should you notify us if the informa- INTRODUCTION, GENERAL PROVISIONS, AND tion you gave us about your modified ad- DEFINITIONS justed gross income for the more recent Sec. tax year changes? 418.1001 What is this subpart about? 418.1245 What will happen if you notify us 418.1005 Purpose and administration. that your modified adjusted gross income 418.1010 Definitions. for the more recent tax year changes? 418.1250 What evidence will you need to sup- DETERMINATION OF THE INCOME-RELATED port your request that we use a more re- MONTHLY ADJUSTMENT AMOUNT cent tax year? 418.1255 What kind of major life-changing 418.1101 What is the income-related month- event evidence will you need to support ly adjustment amount? your request for us to use a more recent 418.1105 What is the threshold? tax year? 418.1110 What is the effective date of our 418.1260 What major life-changing event evi- initial determination about your income- dence will we not accept? related monthly adjustment amount? 418.1265 What kind of significant modified 418.1115 What are the modified adjusted adjusted gross income reduction evidence gross income ranges? will you need to support your request? 418.1120 How do we determine your income- 418.1270 What modified adjusted gross in- related monthly adjustment amount? come evidence will we not accept? 418.1125 How will the income-related monthly adjustment amount affect your total DETERMINATIONS AND THE ADMINISTRATIVE Medicare Part B premium? REVIEW PROCESS 418.1130 [Reserved] 418.1301 What is an initial determination re- 418.1135 What modified adjusted gross in- garding your income-related monthly ad- come information will we use to deter- justment amount? mine your income-related monthly ad- 418.1305 What is not an initial determina- justment amount? tion regarding your income-related 418.1140 What will happen if the modified monthly adjustment amount? adjusted gross income information from 418.1310 When may you request that we IRS is different from the modified ad- make a new initial determination? justed gross income information we used 418.1315 How will we notify you and what in- to determine your income-related formation will we provide about our ini- monthly adjustment amount? tial determination? 418.1145 How do we determine your income- 418.1320 What is the effect of an initial de- related monthly adjustment amount if termination? IRS does not provide information about 418.1322 How will a Medicare prescription your modified adjusted gross income? drug coverage income-related monthly 418.1150 When will we use your amended tax adjustment amount determination for return filed with IRS? the effective year affect your Medicare Part B? DETERMINATIONS USING A MORE RECENT TAX 418.1325 When may you request a reconsid- YEAR’S MODIFIED ADJUSTED GROSS INCOME eration? 418.1201 When will we determine your in- 418.1330 Can you request a reconsideration come-related monthly adjustment when you believe the IRS information we amount based on the modified adjusted used is incorrect? gross income information that you pro- 418.1335 What should you do if our initial vide for a more recent tax year? determination is based on modified ad- 418.1205 What is a major life-changing justed gross income information you be- event? lieve to be incorrect? 418.1210 What is not a major life-changing 418.1340 What are the rules for our adminis- event? trative review process?

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