[Federal Register Volume 62, Number 28 (Tuesday, February 11, 1997)]
[Rules and Regulations]
[Pages 6408-6432]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-3317]
[[Page 6407]]
_______________________________________________________________________
Part IV
Social Security Administration
_______________________________________________________________________
20 CFR Parts 404 and 416
Supplemental Security Income; Determining Disability for a Child Under
Age 18; Interim Final Rules With Request for Comments
Federal Register / Vol. 62, No. 28 / Tuesday, February 11, 1997 /
Rules and Regulations
[[Page 6408]]
SOCIAL SECURITY ADMINISTRATION
20 CFR Parts 404 and 416
[Regulations Nos. 4 and 16]
RIN 0960-AE57
Supplemental Security Income; Determining Disability for a Child
Under Age 18; Interim Final Rules With Request for Comments
AGENCY: Social Security Administration.
ACTION: Interim final rules with request for comments.
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SUMMARY: These rules implement the childhood disability provisions of
sections 211 and 212 of Public Law 104-193, the Personal Responsibility
and Work Opportunity Reconciliation Act of 1996 that provide a new
definition of disability for children (i.e., individuals under age 18),
mandate changes to the evaluation process for children's disability
claims and continuing disability reviews (CDRs), and require that
disability redeterminations be performed for 18-year-olds eligible as
children in the month before they attain age 18.
DATES: These rules are effective beginning April 14, 1997. To be sure
that your comments are considered, we must receive them no later than
April 14, 1997.
ADDRESSES: Comments should be submitted in writing to the Commissioner
of Social Security, P.O. Box 1585, Baltimore, MD 21235; sent by telefax
to (410) 966-2830; sent by E-mail to regulations@ssa.gov''; or
delivered to the Division of Regulations and Rulings, Social Security
Administration, 3-B-1 Operations Building, 6401 Security Boulevard,
Baltimore, MD 21235, between 8:00 a.m. and 4:30 p.m. on regular
business days. Comments may be inspected during these same hours by
making arrangements with the contact person shown below.
FOR FURTHER INFORMATION CONTACT:
Daniel T. Bridgewater, Legal Assistant, Division of Regulations and
Rulings, Social Security Administration, 6401 Security Boulevard,
Baltimore, MD 21235, (410) 965-3298 for information about these rules.
For information on eligibility or claiming benefits, call our national
toll-free number, 1-800-772-1213.
SUPPLEMENTARY INFORMATION:
History
Prior to the enactment of Public Law 104-193 on August 22, 1996,
the Act defined childhood disability in relation to the definition of
disability for adults. The definition of disability for adults in
section 1614(a)(3) of the Act is an inability ``to engage in any
substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death
or which has lasted or can be expected to last for a continuous period
of not less than twelve months.'' Prior to August 22, 1996, the
definition of disability for children (i.e., individuals under the age
of 18) was contained in a parenthetical statement at the end of section
1614(a)(3)(A): A child was considered disabled for purposes of
eligibility for SSI if he or she ``* * * suffer[ed] from any medically
determinable physical or mental impairment of comparable severity'' to
an impairment(s) that would make an adult disabled.
Social Security Administration (SSA) regulations at 20 CFR 416.920
set out a five-step sequential evaluation process for determining the
disability of adults:
1. Whether the adult is engaging in substantial gainful activity;
2. Whether, in the absence of substantial gainful activity, the
individual's medically determinable impairment or combination of
impairments is ``severe;''
3. Whether, if the impairment(s) is severe, it meets or medically
equals the severity of a listing in the Listing of Impairments in
appendix 1 of subpart P of 20 CFR part 404 (the Listing);
4. Whether, if the impairment(s) is severe but does not meet or
equal the severity of a listing, the individual retains the capacity to
do his or her past relevant work, considering his or her residual
functional capacity; and
5. Whether, if past relevant work is precluded, the individual
retains the capacity to do any other kind of work which exists in
significant numbers in the national economy, considering the
individual's residual functional capacity and the vocational factors of
age, education and work experience.
Until 1990, if a child was not engaging in substantial gainful
activity and his or her impairment(s) met the statutory duration
requirement, a child's claim for SSI benefits based on disability was
decided based on whether or not the child's impairment(s) met or
equaled the severity of a listing, as in the third step of the process
for adults. We did not provide additional evaluation steps for children
as we did for adults because it was inappropriate to apply the
vocational rules we used for adults whose impairments do not meet or
equal the severity of a listed impairment to childhood claims.
Sullivan v. Zebley
On February 20, 1990, in the case of Sullivan v. Zebley, 493 U.S.
521 (1990), the Supreme Court decided that the ``listings-only''
approach SSA had used to deny claims for SSI benefits based on
childhood disability did not carry out the ``comparable severity''
standard in title XVI of the Act. This was because the listings did not
provide for an assessment of a child's overall functional impairment.
The Court held that, under the comparable severity standard, children
claiming SSI benefits based on disability were entitled to an
assessment as part of the disability determination process, comparable
to adults who have impairments that do not meet or equal the severity
of a listing and who receive such an individualized assessment. The
Court found that, whereas adults who are not found to be disabled under
the Listing still have the opportunity to show that they are disabled
at the last step of the sequential evaluation process, no similar
opportunity existed for children. The Court concluded that, although
the vocational analysis we use in claims filed by adults is
inapplicable to claims for SSI benefits based on disability filed by
children, this does not mean that a functional analysis could not be
applied to children's claims.
The Court also addressed various aspects of the way in which we
employed the Listing in evaluating childhood disability claims. The
Court stated that the policies for establishing whether a child's
impairment(s) was equivalent in severity to a listed impairment
``exclude[d] claimants who have unlisted impairments or combinations of
impairments that do not fulfill all the criteria for any one listed
impairment.'' The Court was also concerned that all claimants be given
an opportunity for an assessment of their functional limitations,
including the effects of their symptoms, in establishing medical
equivalence.
The Childhood Rules That Resulted From Zebley
As a result of the Zebley decision, we revised the rules we used to
evaluate childhood disability claims under SSI. The rules were first
published in the Federal Register on February 11, 1991 (56 FR 5534) as
a final rule with a request for comments. Following consideration of
public comments, we published a final rule in the Federal Register on
September 9, 1993 (58 FR 47532).
In Sec. 416.924(a) of the prior rules, we defined the term
``comparable severity'' in terms of the impact of an impairment
[[Page 6409]]
or a combination of impairments on a child's ability to function
independently, appropriately, and effectively in an age-appropriate
manner. The rules also provided that each child whose impairment(s) did
not meet or medically or functionally equal the requirements for any
listing would have an ``individualized functional assessment'' (IFA),
an evaluation of the impact of the child's impairment(s) on his or her
overall ability to function independently, appropriately, and
effectively in an age-appropriate manner.
In fact, the rules provided three steps at which we would consider
a child's functioning. At each of these steps, we considered the impact
of all of the child's medically determinable impairments on his or her
functioning and considered all relevant evidence, including the effects
of the individual's symptoms and the side effects of medication. We
considered the nature of the impairment(s), the child's age, the
child's ability to be tested given his or her age, the child's ability
to perform age-appropriate daily activities, and other relevant
factors.
First, we added a ``severe impairment'' step for children to
parallel step 2 of the adult sequential evaluation process. At this
step, the threshold for further evaluation was whether a child had more
than a slight abnormality or a combination of slight abnormalities that
caused more than minimal limitation in a child's ability to function
independently, appropriately, and effectively in an age-appropriate
manner.
Second, at step 3 of the sequential evaluation process, we expanded
the rules for determining equivalence to the Listing. The new
``functional equivalence'' rule was intended, among other things, to
address the Supreme Court's concerns about our use of the Listing in
childhood cases. Functional equivalence provided that, if a child's
impairment(s) did not meet or medically equal the severity of any
listed impairment, we would assess the child's functional limitations
and compare those limitations with the disabling functional
consequences of any listed impairment, without regard to whether the
listed impairment chosen for comparison was medically ``related'' to
the child's impairment(s); for example, functional equivalence permits
comparison of the functional limitations caused by a physical
impairment with the functional limitations establishing disability in
the mental disorders listings.
Last, for those children whose impairments were not of listing-
level severity, the rules resulting from the Zebley decision included
an entirely new fourth step in the sequential evaluation process for
children. At this step, we used the IFA to assess whether a child's
severe impairment(s), while not of listing-level severity, was
nonetheless of ``comparable severity'' to an impairment(s) that would
disable an adult.
The IFA addressed the functional impact of a child's impairment(s)
in broad areas of functioning, which we called domains and behaviors,
such as cognition, communication, and motor abilities. These domains
and behaviors were intended to encompass and reflect all the things
that a child may do at any particular age, and were, therefore,
intended to include all of a child's functioning.
If an IFA showed that a child's impairment(s) substantially reduced
his or her ability to function independently, appropriately, and
effectively in an age-appropriate manner, and the impairment(s) met the
duration requirement, we found the impairment(s) to be of comparable
severity to an impairment that would result in disability in an adult,
and the child would, therefore, be considered disabled. If the
impairment(s) did not substantially reduce the child's ability to
function independently, appropriately, and effectively in an age-
appropriate manner, or if it did not meet the duration requirement, we
found the child was not disabled. For most children, the rules provided
examples of how ``marked'' and ``moderate'' limitations in the domains
and behaviors would indicate whether there was a substantial reduction
in functioning; for example, ``moderate'' limitations in three domains
would generally, though not invariably, result in a finding of
disability.
Summary of the Childhood Disability Provisions of Public Law 104-
193
Public Law 104-193 provides a new statutory definition of
disability for children claiming SSI benefits and directs us to make
significant changes in the way we evaluate childhood disability claims.
Under the new law, a child's impairment or combination of impairments
must cause more serious impairment-related limitations than the old law
and our prior regulations required.
Section 211(a) of Public Law 104-193 amended section 1614(a)(3) of
the Act to provide a definition of disability for children separate
from that for adults. The ``comparable severity'' criterion in the Act
was repealed and replaced with the following definition:
(C)(i) An individual under the age of 18 shall be considered
disabled for the purposes of this title if that individual has a
medically determinable physical or mental impairment, which results
in marked and severe functional limitations, and which can be
expected to result in death or which has lasted or can be expected
to last for a continuous period of not less than 12 months.
(ii) Notwithstanding clause (i), no individual under the age of
18 who engages in substantial gainful activity (determined in
accordance with regulations prescribed pursuant to subparagraph (E))
may be considered to be disabled.
The conference report that accompanied Public Law 104-193 further
explained:
The conferees intend that only needy children with severe
disabilities be eligible for SSI, and the Listing of Impairments and
other current disability determination regulations as modified by
these provisions properly reflect the severity of disability
contemplated by the new statutory definition. In those areas of the
Listing that involve domains of functioning, the conferees expect no
less than two marked limitations as the standard for qualification.
The conferees are also aware that SSA uses the term ``severe'' to
often mean ``other than minor'' in an initial screening procedure
for disability determination and in other places. The conferees,
however, use the term ``severe'' in its common sense meaning.
H.R. Conf. Rep. No. 725, 104th Cong., 2d Sess. 328 (1996),
reprinted in 1996 U.S. Code, Cong. and Ad. News 2649, 2716. The House
report contains similar language. See H.R. Rep. No. 651, 104th Cong.,
2d Sess. 1385 (1996), reprinted in 1996 U.S. Code, Cong. and Ad. News
2183, 2444.
Further provisions concerning childhood disability adjudication are
summarized below with references to the relevant sections of Public Law
104-193.
The Commissioner was directed to remove references to
maladaptive behavior in the personal/behavioral domain from listings
112.00C2 and 112.02B2c(2) of the childhood mental disorders listings
(Section 211(b) (1)).
The Commissioner was directed to discontinue the IFA for
children in 20 CFR 416.924d and 416.924e (Section 211(b) (2)).
Within 1 year after the date of enactment, we must
redetermine the eligibility of individuals under the age of 18 who were
eligible for SSI based on disability as of August 22, 1996, and whose
eligibility may terminate by reason of the new law. The cases are to be
redetermined using the eligibility criteria for new applicants. The
medical improvement review standard in section 1614(a) (4) of the Act
and 20 CFR 416.994a, used in CDRs, shall not apply
[[Page 6410]]
to these redeterminations (Section 211(d) (2)).
The medical improvement review standard for determining
continuing eligibility for children was revised to conform to the new
definition of disability for children (Section 211(c)).
Not less frequently than once every 3 years, we must
conduct a CDR for any childhood disability recipient eligible by reason
of an impairment(s) which is likely to improve. At the option of the
Commissioner, we may also perform a CDR with respect to those
individuals under age 18 whose impairments are unlikely to improve
(Section 212(a)).
We must redetermine the eligibility of individuals who
were eligible for SSI based on disability in the month before the month
in which they attained age 18 using the rules for determining initial
eligibility for adults. We will do the redetermination during the 1-
year period beginning on the individual's 18th birthday. The medical
improvement review standard used in CDRs does not apply to these
redeterminations (Section 212(b)).
We must conduct a CDR not later than 12 months after the
birth of the child for any child whose low birth weight is a
contributing factor material to our determination that the child was
disabled (Section 212(c)).
At the time of a CDR, a child's representative payee shall
present evidence that the child is and has been receiving treatment to
the extent considered medically necessary and available for the
disabling impairment. If a payee refuses without good cause to provide
such evidence, we may select another representative payee, or pay
benefits directly to the child, if we determine that it is appropriate
and in the best interests of the child (Section 212(a)).
These rules implement all of the provisions of sections 211 and 212
of Public Law 104-193, with the exception of section 211(d)(2). Because
Public Law 104-193 repealed the ``comparable severity'' disability
standard for children, and eliminated use of the IFA, step 4 of our
prior sequential evaluation process (the comparable severity step) has
been removed. To be found disabled under these rules, an individual
under age 18 must have ``marked and severe functional limitations,''
which means that his or her impairment or combination of impairments
must meet, or medically equal or functionally equal, the severity of a
listed impairment.
Summary of Specific Revisions
These interim final rules revise our prior rules for deciding
initial eligibility and continuing eligibility for children claiming
SSI benefits based on disability. They also provide rules for
redetermining the eligibility of individuals who attain age 18 and who
were eligible for SSI based on disability in the month before the month
in which they attained age 18.
The major changes to the rules are explained below. In addition, we
have added, removed, and revised language throughout subpart I of 20
CFR part 416 to remove references to the ``comparable severity''
standard and our prior regulatory definition of disability interpreting
that standard. Since these are only conforming changes to comply with
the new law, we have not summarized each of them in this summary.
These rules do not address every aspect of the evaluation of
disability of children and of individuals who have attained age 18.
They implement primarily those changes required by Public Law 104-193.
Therefore, they must be read in the context of all our other relevant
rules for determining disability.
Appendix 1 to Subpart P of Part 404--Listings 112.00C and 112.02B2
Public Law 104-193 mandates removal of references to ``maladaptive
behaviors'' in listings 112.00C2 and 112.02B2c(2) in the childhood
mental disorders section of the Listing of Impairments. Listing 112.00C
explains the severity criteria we use to evaluate a mental impairment
in most of our childhood mental disorder listings. These severity
criteria are often referred to as the ``paragraph B'' criteria because
they are found in paragraph B of most of the listings to which they
apply. Listing 112.02B2c(2) was a particular paragraph B criterion for
persistent, serious maladaptive behaviors in children aged 3 to 18.
Pursuant to Public Law 104-193, we have removed all references to
``maladaptive behaviors'' in listing 112.00C and deleted all of prior
listing 112.02B2c(2); we have also redesignated the ``personal/
behavioral'' area as the area of ``personal function.'' For this
reason, we also removed the reference to ``activities of daily living''
from former listing 112.02B2c(1), which we now designate as listing
112.02B2c because it is the only paragraph remaining.
The area of personal function now pertains only to self-care; that
is, the ability to help oneself and to cooperate with others in taking
care of personal needs, health, and safety (e.g., feeding, dressing,
toileting, bathing, following medication regimes, and following safety
precautions). Further, we have clarified the description of the social
area of functioning to make it clearer that many impairment-related
behavioral problems (including those previously considered in the prior
personal/behavioral area) are likely to have their most significant
effects on a child's social functioning.
In addition, we revised the fourth area of function from
``concentration, persistence, and pace'' to ``concentration,
persistence, or pace.'' This is a technical correction to conform the
language of this section to the rules in listings 112.00C3 and
112.02B2d, which have always read ``deficiencies of concentration,
persistence, or pace.'' We made a corresponding change in listing
112.00C4, which also used the word ``and.'' We also made several
clarifications in listing 112.00C2b. The changes are not substantive
and are only intended to parallel the adult mental listing 12.00C2 with
appropriate language for children.
Section 416.635 Responsibilities of a Representative Payee.
We revised this section to provide that, in cases in which the
beneficiary is an individual under age 18 (including cases in which the
beneficiary is an individual whose low birth weight is a contributing
factor material to our determination that the individual is disabled),
the representative payee is responsible for ensuring that the
beneficiary is and has been receiving treatment to the extent
considered medically necessary and available for the condition that was
the basis for providing benefits.
Section 416.902 General Definitions and Terms for This Subpart
We have added four new definitions. First, we explain that a
disability redetermination (see Sec. 416.987) is a redetermination of
eligibility based on disability using the rules for new applicants
appropriate to the individual's age, except the rules pertaining to
performance of substantial gainful activity. Second, we explain that
the term impairment(s) means ``a medically determinable physical or
mental impairment or a combination of medically determinable physical
or mental impairments.''
Third, we explain that the term marked and severe functional
limitations, when used as a phrase, means the standard of disability in
the Act for children claiming SSI benefits, and is a level of severity
that meets or medically or functionally equals the requirements of a
listing. We explain that the separate words Marked and severe are also
terms used throughout
[[Page 6411]]
this subpart, but the meanings of these words in the phrase marked and
severe functional limitations is not the same as their meanings when
used separately. The meaning of the phrase marked and severe functional
limitations derives directly from the legislative history of Public Law
104-193, quoted in the ``Summary of the Childhood Disability Provisions
of Public Law 104-193,'' above. Since the meanings of the separate
terms marked and severe predate enactment of Public Law 104-193, they
are touched on in this section to minimize any confusion from the new
law's use of the same words, used in combination with a different
meaning. Finally, we define Commissioner to mean the Commissioner of
Social Security.
Section 416.906 Basic Definition of Disability for Children
We have revised this section to replace the prior ``comparable
severity'' standard with the new ``marked and severe functional
limitations'' standard for childhood disability. We also added the
statutory provision that an individual under age 18 who files a new
claim and who is engaging in substantial gainful activity will not be
considered disabled. For clarity, we added language specifying our
longstanding policy that we consider the effects of combined
impairments in assessing whether a child is disabled.
Section 416.911 Definition of Disabling Impairment
Under the Act and our regulations, individuals who file new
applications for benefits based on disability and who are engaging in
substantial gainful activity are found not disabled. However, after a
disabled individual is eligible for SSI, the Act and our regulations
permit some individuals to try to work without losing eligibility. A
recipient of SSI benefits who begins or returns to work despite a
``disabling impairment'' may be found eligible for special SSI cash
benefits and for special SSI eligibility status under Secs. 416.260 ff.
of our regulations.
Section 416.911 provides the definition of the term ``disabling
impairment'' for such cases. We have redesignated all but the last
sentence of prior Sec. 416.911, which was applicable only to adults, as
paragraph (a)(1), and added a paragraph (b)(1) to define ``disabling
impairment'' for children. Final paragraph (a)(2) takes account of the
new rules in Sec. 416.987 for the disability redeterminations required
by section 212(b) of Public Law 104-193. Consistent with this section
of the new law, the rules explain that, for disability redetermination
cases of individuals who are age 18, and who were eligible for SSI
benefits based on a disability for the month before the month in which
they attained age 18, a disabling impairment is one that meets the
criteria for initial eligibility set forth in Secs. 416.920(c) through
(f) for adults. This is because the new law specifies that these
disability redeterminations shall apply the eligibility criteria for
new applicants, and not the medical improvement review standard
provisions of section 1614(a)(4) of the Act applicable to CDRs.
However, step 1 of the sequential evaluation process for new claims
(the substantial gainful activity step) will not apply. For individuals
affected by this provision who have a disabling impairment, and who are
working, we will apply the rules in Secs. 416.260 ff. We redesignated
as paragraph (c) the last sentence of prior Sec. 416.911, which
provides that earnings are not considered in deeming whether a
recipient has a disabling impairment(s), because it applies to both
adults and children.
Section 416.919n Informing the Examining Physician or Psychologist of
Examination Scheduling, Report Content, and Signature Requirements
We have amended Sec. 416.919n(c)(6), which concerns the opinion of
a consulting physician or psychologist about an individual's ability to
function despite his or her impairment(s), to add a discussion specific
to childhood cases to make it clear that the provision applies to both
adults and children.
Section 416.924 How We Determine Disability for Children
We have extensively revised this section, which provides the
sequential evaluation process for childhood disability claims, to
conform to the provisions of Public law 104-193.
We have deleted former paragraphs (a) and (f). Prior paragraph (a)
defined comparable severity and prior paragraph (f) discussed the IFA.
We redesignated prior paragraphs (b) through (e) as (a) through (d),
and revised them as explained below. We added a new paragraph (e) to
explain what we will do when children become adults (i.e., they attain
age 18) after they file their applications for SSI benefits based on
disability but before we make a determination or decision. We
redesignated prior paragraph (g) as paragraph (f), but it is otherwise
unchanged. Also, we added a new paragraph (g).
In final Sec. 416.924, the new sequential evaluation process for
determining initial eligibility is:
1. Whether the child is engaging in substantial gainful activity;
2. If not, whether the child has a medically determinable
impairment or combination of impairments that is severe; and
3. If the child's impairment(s) is severe, whether it meets or
medically equals the requirements of a listing, or whether the
functional limitations caused by the impairment(s) are the same as the
disabling functional limitations of any listing and, therefore,
functionally equivalent to such listing.
As in the prior sequential evaluation process, we will follow the
steps in order. If a determination or decision can be made at a step,
we will stop; if not, we will proceed to the next step.
New Sec. 416.924(a), ``Steps in evaluating disability,'' retains
basic guidance from prior Sec. 416.924(b) that is unaffected by the new
law. It continues to provide that we will consider all relevant
evidence in a child's case record, that we will consider all
impairments for which we have evidence and their combined effects, and
that we will evaluate any limitations in a child's functioning that
result from a child's symptoms, including pain. We have removed the
reference to the prior IFA step and made minor revisions to reflect the
new statutory standard and the new sequence of evaluation. Because
meeting or equaling the severity of a listing is now the last step of
the sequence, we have emphasized the importance of the step by
specifying that a child will be disabled if his or her impairment(s)
meets, medically equals, or functionally equals the severity of any
listing. We also changed references to the ``ability to function'' to
``functioning'' in order to conform to the new statutory definition of
disability, which is now expressed in terms of ``marked and severe
functional limitations.''
Final paragraphs (b) through (d) provide more detail on the
sequential evaluation steps outlined in paragraph (a). Final paragraph
(b), ``If you are working,'' is the same as prior paragraph (c). A
child who files a new application, and who is engaging in substantial
gainful activity, will be found not disabled as required by the
statute. Final paragraph (c), ``You must have a severe impairment(s),''
is substantively the same as prior paragraph (d), but revised to
reflect the new law. At step two of the sequential process, we will
continue to evaluate whether a child has a ``severe'' impairment or
combination of impairments. We now provide that if a child has a slight
abnormality or a combination of slight abnormalities that
[[Page 6412]]
causes no more than minimal functional limitations, we will find that
the child does not have a severe impairment and, therefore, is not
disabled. The phrase ``minimal functional limitations'' replaces the
phrase from our prior rules ``minimal limitation in your ability to
function, independently, appropriately, and effectively in an age-
appropriate manner,'' which, as noted above, was derived from the prior
statutory definition of disability.
Final paragraph (d) ``Your impairment(s) must meet, medically
equal, or functionally equal in severity a listed impairment in
appendix 1,'' explains that an impairment(s) causes marked and severe
functional limitations if it meets, medically equals or functionally
equals the severity of a listed impairment. Thus, if a child's
impairment(s) meets, medically equals, or functionally equals in
severity a listing (and meets the duration requirement), we will find
the child disabled. If a child's impairment(s) does not meet or
medically equal or functionally equal in severity any listing, or does
not meet the duration requirement, we will find the child not disabled.
We have removed the language from prior paragraph (e) that said a
child's claim would not be denied because his or her impairment(s) was
not of listing-level severity.
We added a new paragraph (e), ``If you attain age 18 after you file
your disability application but before we make a determination or
decision,'' to explain what we will do in such cases. We will use the
rules for determining disability in adults when an individual whom we
found disabled prior to attaining age 18 attains age 18. (We have
always used the adult disability rules beginning at age 18 when we find
that an individual was not disabled prior to attaining age 18 to see if
the individual became disabled at a later date.) Therefore, final
paragraph (e) explains that, for the period during which the individual
is under age 18, we will use the disability rules in Sec. 416.924, but
for the period starting with the day the individual attains age 18, we
will use the disability rules for adults filing new claims in
Sec. 416.920.
Except for redesignating prior paragraph (g) as final paragraph
(f), ``Basic considerations,'' has not been changed. We will continue
to consider all relevant medical and nonmedical evidence in a child's
case record.
Finally, we have added a new paragraph (g) to explain that, when we
make an initial or reconsidered determination whether you are disabled
or when we make an initial determination about whether your disability
continues under section 416.994a, we will complete a standard form,
Form SSA-538, Childhood Disability Evaluation Form. The new form is
designed to guide our adjudicators through the new sequential
evaluation process and emphasizes the requirements for establishing
functional equivalence. In new paragraph (g), we also explain that
disability hearing officers, administrative law judges, and the
administrative appeals judges on the Appeals Council (when the Appeals
Council makes a decision) will not complete the form. This is because
these adjudicators issue decisions with detailed rationales and
findings that will already reflect the steps of the new sequential
evaluation process.
Section 416.924a Age as a Factor of Evaluation in Childhood Disability
Most of the guidance in our prior rules on consideration of age in
childhood disability cases has not been changed by Public Law 104-193.
We have revised this section to conform to the ``marked and severe
functional limitations'' disability standard. As under our prior rules,
we will consider the child's age in determining whether he or she has a
severe impairment(s). When evaluating whether the impairment(s) meets,
medically equals, or functionally equals the severity of a listing, we
will consider the child's age if the listing we consider uses age
categories. We have deleted prior paragraphs (a)(4) and (b), which
addressed issues related to the IFA.
We redesignated prior paragraph (c), ``Correcting chronological age
of premature infants,'' and prior paragraph (d), ``Age and the impact
of severe impairments on younger children and older adolescents,'' as
final paragraphs (b) and (c) and made changes to conform to the new
definition of disability; we deleted prior paragraph (d)(4)(ii) because
it was based on the prior ``comparable severity'' standard.
Section 416.924b Functioning in Children
This section discusses some of the terms we use to describe or
evaluate functioning in children, including age-appropriate activities,
developmental milestones, activities of daily living, and work-related
activities. We retained the discussions of these terms with appropriate
conforming changes. We also clarified the explanations of the last
three terms, which were described in our prior rules as ``the most
important indicators of functional limitations'' in, respectively,
infants up to attainment of age 3, children aged 3 to attainment of age
16, and older adolescents aged 16 to attainment of age 18. In the
interim final rules, we describe these functions as being ``most
important as indicators of functional limitations,'' because the
emphasis should be on whatever age groups for which these indicators of
functional limitations are most appropriate.
Although we deleted prior paragraph (b)(5) because it described the
domains and behaviors used in performing an IFA under our prior rules,
consideration of functional limitations remains an integral part of the
childhood disability evaluation process. For example, final
Sec. 416.926a describes areas of functioning we will consider when we
evaluate whether a child's impairment(s) is functionally equivalent in
severity to a listing.
Section 416.924c Other Factors We Will Consider
As under our prior rules, when we evaluate whether a child's
impairment(s) is disabling, we will consider all relevant factors, such
as the effects of medications, the setting in which the child lives,
the child's need for assistive devices, and the child's functioning in
school. However, as throughout these interim final rules, we have
revised this section to conform to the statutory ``marked and severe
functional limitations'' standard.
Section 416.924d Individualized Functional Assessment for Children
Section 416.924e Guidelines for Determining Disability Using the
Individualized Functional Assessment
We deleted both of these sections as required by section 211(b)(2)
of Public Law 104-193.
Section 416.925 Listing of Impairments in Appendix 1 of Subpart P of
Part 404 of This Chapter
We have revised paragraph (a) of this section, ``Purpose of the
Listing of Impairments,'' to explain that, for children, the Listing of
Impairments describes impairments that are considered severe enough to
result in marked and severe functional limitations. We revised
paragraph (b)(2), which explains the purpose of the childhood listings
in part B of the Listing, to explain that the level of severity of the
impairments listed in part B is intended to be the same as that
expressed in the functional severity criteria of the childhood mental
disorders listings (see 112.01 ff.). Therefore, in general, a child's
impairment(s) is of ``listing-level severity'' if it results in marked
limitations in two broad areas of functioning, or extreme limitations
in
[[Page 6413]]
one such area. However, we also explain that when we decide whether a
child's impairment(s) meets the requirements for any listed impairment,
we will decide that the impairment is of ``listing-level severity''
even if it does not result in marked limitations in two broad areas of
functioning, or extreme limitations in one such area, if the listing
that we apply does not require such limitations to establish that an
impairment(s) is disabling. We also explain that we define the terms
``marked'' and ``extreme'' as they apply to children in Sec. 416.926a.
Section 416.926 Medical Equivalence for Adults and Children
In these interim final rules, we moved the rules for deciding
whether a child's impairment(s) is medically equivalent in severity to
any listing into the same section as the rules for deciding medical
equivalence of impairments in adults, reserving Sec. 416.926a for
functional equivalence. To make this clear, we revised the heading of
final Sec. 416.926 to reflect the inclusion of children. We also
revised final paragraph (a), ``How medical equivalence is determined,''
by replacing the explanation of how we determine medical equivalence
with provisions from prior Sec. 416.926a. We also incorporated and
revised the last sentence of prior Sec. 416.926a(a), explaining that we
consider all relevant evidence in the case record when we decide the
issue of medical equivalence because it remains applicable to both
adults and children.
We decided to use the provisions of former Sec. 416.926a(b) to
explain our rules for determining medical equivalence for both adults
and children. This is not a substantive change, but a clearer statement
of our longstanding policy on medical equivalence than was previously
included in prior Sec. 416.926(a), as it was clarified for children in
prior Sec. 416.926a(b). This merely allows us to address only once in
our regulations the policy of medical equivalence, which is and always
has been the same for adults and children. (Although some of the text
of Sec. 416.929(a) will differ from the text of Sec. 404.1526(a), both
sections, which are in chapter III of title 20 of the Code of Federal
Regulations, will continue to provide the same substantive rules.)
We have also added a new paragraph (d), ``Responsibility for
determining medical equivalence,'' to address our longstanding policy
of who is responsible for determining medical equivalence for adults
and children.
Section 416.926a Functional Equivalence for Children
Although Public Law 104-193 discontinued the use of the IFA, the
legislation nevertheless emphasized that we were still to continue
evaluating the functioning of children in our disability assessments,
as shown by the news statutory definition of disability, ``marked and
severe functional limitations.''
Moreover, in the legislative history, the conferees stated:
* * * Where appropriate, the conferees remind SSA of the importance
of the use of functional equivalence disability determination
procedures.
* * * [T]he conferees do not intend to suggest by this definition of
childhood disability that every child need be especially evaluated
for functional limitations, or that this definition creates a
supposition for any such examination. * * * Nonetheless, the
conferees do not intend to limit the use of functional information,
if reflecting sufficient severity and is otherwise appropriate.
H.R. Conf. Rep. No. 725, 104th Cong, 2d Sess. 328 (1996), reprinted
in 1996 U.S. Code, Cong. and Ad. News 2649, 2716. The House Report also
contained similar language about the importance of functional
information. See H.R. Rep. No. 651, 104th Cong., 2d Sess. 1385-1386
(1996), reprinted in 1996 U.S. Code, Cong. and Ad. News 2183, 2444-
2445.
Thus, even though it eliminated the IFA, Congress directed us to
continue to evaluate a child's functional limitations where
appropriate, albeit using a higher level of severity than under the
former IFA. Congress also explicitly endorsed our functional
equivalence policy as a means for evaluating impairments that would not
meet or medically equal any of our listings and without which some
needy children with severe disabilities would not be eligible.
Therefore, we are retaining our prior policies on determining
functional equivalence. Because the changes made by Public Law 104-193
make the functional equivalence provision that last point of
adjudication in a child's claim and, therefore, critical to the outcome
of many cases, we are also clarifying these rules.
When we published the prior rules in the Federal Register on
September 9, 1993, we chose not to adopt a number of public comments
about our policy of ``functional equivalence.'' Some commenters on the
1993 rules thought that, because the functional equivalence policy was
unfamiliar, it was important that we provide as much detail as possible
in the regulations so that all adjudicators would understand and apply
the new rules in the same way. Several commenters also said that
Sec. 416.926a should explain the ``thought processes'' an adjudicator
could employ to make a finding of functional equivalence; otherwise,
the policy of functional equivalence might be under-utilized. One
suggestion was that we incorporate into the rules the more detailed
instructions in our operating manuals and training guides. One
commenter suggested that we provide separate headings for medical
equivalence and functional equivalence to highlight their differences
and the novelty of the functional equivalence policy.
Although we did not adopt the comments in 1993, we have made
changes in these rules that respond to some of the earlier concerns of
1993 to reflect the increased importance of the functional equivalence
policy under the new law.
First, as noted in the explanation of Sec. 416.926, we have
separated the discussion of medical equivalence for children from the
discussion of functional equivalence for children. We have also
incorporated some of the more detailed explanations from our operating
manuals regarding the application of functional equivalence.
Final paragraph (a), ``General,'' and final paragraph (b), ``How we
determine functional equivalence,'' now include, in reorganized form,
the rules for functional equivalence previously in Sec. 416.926a(a) and
(b)(3). As already indicated, we moved prior (b)(1) and (b)(2), which
explained medical equivalence, to Sec. 416.926. Because of the
reorganization, we deleted the second sentence from prior paragraph
(b)(3) (``If you have more than one impairment, we will consider the
combined effects of all your impairments on your overall
functioning.'') because it would have been redundant.
In final paragraph (b), we also included some of the more detailed
guidelines concerning functional equivalence that commenters on the
1993 childhood disability rules requested that we include in the
regulations, and that we believe are necessitated by the new definition
of disability. This paragraph explains that there are several methods
for determining functional equivalence, and that we may use any one of
them to determine whether an impairment is functionally equivalent in
severity to a listing. Subparagraphs then explain the various methods
that we may employ to determine functional equivalence. We explain that
there is no set order in which we must apply these methods and that,
when we find that an
[[Page 6414]]
impairment(s) is functionally equivalent to a listed impairment, we
will use any method that is appropriate to, or best describes, a
child's impairment(s) and functional limitations. However, we explain
that will consider all of the methods before we decide that an
impairment(s) is not functionally equivalent in severity to any listed
impairment and refer to final Sec. 416.924(g), which explains how we
will use the new Childhood Disability Evaluation Form, Form SSA-538, at
the initial and reconsideration levels.
In (b)(1), we explain the first method we may use. An impairment(s)
may be functionally equivalent in severity to a listed impairment
because of extreme limitations in one specific function, such as
walking or talking, or based on a combination or more than one, but
less medically severe, specific functional limitations, such as walking
and talking. In (b)(2), we explain that an impairment(s) may be
functionally equivalent to a listed impairment if it causes functional
limitations in broad areas of development or functioning (e.g., in
motor or social functioning) that are equivalent in severity to the
disabling functional limitations in listing 112.12 or listing 112.02.
(The areas of functioning in which an impairment(s) may be evaluate are
discussed in paragraph (c), described below.) In (b)(3), we explain
that an impairment(s) may be functionally equivalent to a listed
impairment if it is chronic and characterized by frequent episodes of
illness or attacks, or by exacerbations and remissions. In such cases,
we may compare a child's functional limitations to those in any listing
for a chronic impairment with similar episodic criteria. In (b)(4), we
explain that an impairment(s) may be functionally equivalent to a
listed impairment if it requires treatment over a long period of time
(at least a year) and the treatment itself (e.g., multiple surgeries)
causes marked and severe functional limitations, or if the combined
effects of limitations caused by ongoing treatment and limitations
caused by the impairment(s) result in marked and severe functional
limitations.
In final paragraph (c), ``Board areas of development or
functioning,'' we explain that listing 112.12, for infants (especially
infants who are too young to test) and listing 112.02 are the listings
we will use for comparison when we use this method of functional
equivalence. However, when we determine functional equivalence based on
broad functional limitations, we will evaluate the functional effects
of an impairment(s) in several areas of development or functioning
specified in this paragraph of Sec. 416.926a instead of referring to
the listings themselves. We also explain that we describe the areas of
functioning in general terms in (c)(4) and in more detail for specific
age groups in (c)(5). If we find ``marked limitations'' in two areas of
development or functioning, or ``extreme limitations'' in one area, we
will find that an impairment(s) is functionally equivalent to listing
112.12 or listing 112.02. Even though the listings we use for reference
are mental disorder listings, this evaluation may be done for a
physical impairment(s) or for a combination of physical and mental
impairments. We define the terms ``marked limitations'' and ``extreme
limitations'' in (c)(3).
In (c)(1), we explain how we use the areas of development or
functioning: We consider the extent of functional limitations in the
areas affected by an impairment(s) and how limitations in one area
affect development or functioning in other areas. Thus, when a physical
impairment(s) produces global limitations (i.e., limitations in the
motor area and at least one other area), those limitations must be
evaluated in all relevant areas. We also make reference to new areas of
motor development and functioning we have added to ensure appropriate
consideration of physical impairments.
In (c)(2), ``Other considerations,'' we explain that we will
consider all information in the case record that will help us determine
the effect of an impairment(s) on a child's physical and mental
functioning. We will consider the nature of the impairment(s), the
child's age, the child's ability to be tested given his or her age, the
child's need for help from others (and whether such need is age-
appropriate), and other relevant factors.
In (c)(3), we define the terms ``marked'' and ``extreme''
limitations. The definitions are not new, but are based on longstanding
policy in the regulations and interpretations we have used in our
internal instructions and training. In (c)(4) and (c)(5), we describe
the areas of development or functioning that may be addressed in a
determination of functional equivalence, including the new areas of
motor development and motor functioning and the revised ``personal''
area of functioning. The descriptions are based on our prior
descriptions and changes mandated by Public Law 104-193, and contain
several clarifications based on our experience evaluating functional
equivalence in children since 1991.
Final paragraph (d), ``Examples of impairments that are
functionally equivalent in severity to a listed impairment,'' is
substantively the same as prior paragraph (d), ``Examples of
impairments of children that are functionally equivalent to the
listings.'' We made minor editorial changes for clarity and, as
throughout the rules, to conform the language to the changes in the
law. We also updated examples (1) and (11) to remove examples of
cardiovascular impairments that are now listed impairments and,
therefore, no longer examples of equivalence. We changed example (4) to
delete reference to a ``marked inability to stand and walk'' because
the limitation described is actually ``extreme.'' We changed example
(5) to show how the area of motor functioning may be used. We also
clarified the primary purpose of example (10), which is primarily for
children who are too young to test and for whom a diagnosis and other
medical findings may be difficult to specify.
Section 416.927 Evaluating Medical Opinions About Your Impairment(s)
or Disability
We have added a description of the ``marked and severe functional
limitations'' standard for children to paragraph (a), ``General,''
which already included a description of the disability standard for
adults.
Section 416.929 How We Evaluate Symptoms, Including Pain
Throughout this section, we have replaced references to a child's
ability to ``function independently, appropriately, and effectively in
an age-appropriate manner'' with references to the child's
``functioning.'' The rules for evaluating a child's symptoms are
otherwise unchanged by the new law.
Section 416.930 Need To Follow Prescribed Treatment
This section explains that, in order to receive benefits, an
individual must follow treatment prescribed by his or her physician if
the treatment can restore his or her ability to work; i.e., if the
treatment could end the individual's disability. We have added parallel
language explaining that a child must follow prescribed treatment if
the treatment can reduce his or her functional limitations so that they
are no longer ``marked and severe.''
Section 416.987 Disability Redeterminations for Individuals Who Attain
Age 18
This section is new. It provides rules for disability
redeterminations
[[Page 6415]]
mandated by section 212(b) of Public Law 104-193.
In paragraphs (a)(1) and (a)(2), we explain that Public Law 104-193
requires these redeterminations and that, when we do these disability
redeterminations, we generally will use the rules for adults filing new
claims, not the rules we use for CDRs.
In paragraph (a)(3) we explain that we will notify individuals
before we begin a disability redetermination. In paragraph (a)(4) we
explain that we will notify the individual in writing of the results of
the redetermination and explain the individual's rights in connection
with our notice of disability redetermination.
Paragraph (b) concerns a group of recipients who are subject to
disability redeterminations under section 212(b) of the new law:
individuals who became eligible by reason of disability prior to
attaining age 18, and who were eligible for SSI benefits based on
disability for the month before the month in which they attained age
18. Paragraphs (b)(1) through (b)(7) of this section provide that,
during the 1-year period beginning on the individual's eighteenth
birthday, we will redetermine the eligibility of these individuals
using the rules in Secs. 416.920 (c) through (f), and not the rules in
Sec. 416.920(b) or Sec. 416.994; i.e., we will decide whether an
individual is disabled using the rules for adults filing new claims,
except the rule that says an individual engaging in substantial gainful
activity will be found not disabled. If an individual age 18 or older
has a ``disabling impairment'' as defined in Sec. 416.911 and is
working, we will apply the rules for special SSI eligibility in
Secs. 416.920ff. We also provide that eligibility will end if we find
that the individual is not disabled and describe the month in which we
may find an individual not disabled. Finally, we explain that, if we
find an individual is not disabled, the last month for which benefits
can be paid is the second month after the month in which the individual
was determined not to be disabled.
Section 416.990 When and How Often We Will Conduct a Continuing
Disability Review
In paragraph (b), ``When we will conduct a continuing disability
review,'' we have added a new paragraph (b)(11), mandated by Public Law
104-193. The new paragraph provides that we will do a CDR by a child's
first birthday if the child's low birth weight is a contributing factor
material to the determination that the child is disabled; i.e., whether
we would have found the child disabled if we had not considered the
child's low birth weight.
In paragraph (c), ``Definitions,'' we have revised the definition
of a permanent impairment, medical improvement not expected, to explain
that for a child, such an impairment is one that is unlikely to improve
to the point that the child's functional limitations will no longer be
marked and severe.
Section 416.994a How We Will Determine Whether Your Disability
Continues or Ends, and Whether You Are and Have Been Receiving
Treatment That Is Medically Necessary and Available, Disabled Children
We revised this section extensively to comport with provisions in
Public Law 104-193 in two ways:
To revise the medical improvement review standard (MIRS)
used in conducting a CDR, and
To add rules that, at the time of a CDR, a child's
representative payee must show evidence that the child is and has been
receiving treatment that is medically necessary and available for the
condition that was the basis for providing SSI benefits.
The new evaluation sequence for applying the medical improvement
review standard in a CDR is:
1. Has there been medical improvement in the impairment(s) on which
eligibility was based? If there has been no medical improvement, we
will find that the child is still disabled, unless certain exceptions
apply.
2. If there has been medical improvement, does the impairment(s)
the child had at the time of our most recent favorable medical
determination or decision still meet, medically equal, or functionally
equal the severity of the listing that it met or equalled at the time
of the prior determination or decision? If that impairment(s) still
meets or equals the severity of that listed impairment as it was
written at that time, we will find the child still disabled, unless
certain exceptions apply.
3. If that impairment(s) does not still meet or equal the severity
of that listed impairment as it was written at that time, is the child
now disabled, taking into consideration all current impairments.
Because the childhood disability standard is no longer linked to
the adult standard of inability to work, there is no longer a step to
assess whether any medical improvement is ``related to the ability to
work.''
In paragraph (a)(1), we changed the outline of the sequential
evaluation process for CDRs in childhood disability cases to reflect
the new sequence of evaluation. The sequence outlined in paragraph
(a)(1) and discussed in more detail in paragraphs (b)(1) through (b)(3)
differs significantly from the sequence under our prior rules. In our
prior rules, the first step of the CDR evaluation process for children
required consideration of whether the child's impairment(s) met, or was
equivalent in severity to, a listing. However, the new statutory
definition of disability for children--``marked and severe functional
limitations''--means a level of severity that meets or is medically or
functionally equivalent in severity to the severity of a listing. Thus,
if we were first to consider whether the child's impairment(s) is of
listing-level severity, we would also be deciding whether that
impairment(s) is disabling. In those instances in which the
impairment(s) is found neither to meet nor to be equivalent in severity
to any listing, we believe it would be difficult for an adjudicator to
then fairly consider the issue of medical improvement, because the
adjudicator would already have concluded that the child is not
disabled. Section 1614(a)(4)(B) of the Act states that, with some
exceptions, disability can be found to have ceased only if there is
``substantial evidence which demonstrates that there has been medical
improvement * * * and that [the] impairment or combination of
impairments no longer results in marked and severe functional
limitations.''
Thus, to ensure proper consideration of the issue of medical
improvement, we have placed that issue first in the sequence. If there
has been no medical improvement, we will generally find that the child
is still disabled. There are exceptions to this rule, set forth in
final paragraphs (e) and (f) of this section and discussed below.
Under our prior rules, pursuant to the MIRS provisions in the Act
at that time, if there had been medical improvement, we considered
whether the improvement was related to the ability to work (which we
defined for childhood cases as meaning the medical improvement resulted
in an increase in ability to function independently, appropriately, and
effectively in an age-appropriate manner.) However, the MIRS as revised
by Public Law 104-193 contains no provision for a ``related to the
ability to work'' step for children and, thus, limits the application
of this provision to individuals age 18 or over. Accordingly, we have
deleted that step from our rules (paragraph (d) of our prior rules).
If there has been medical improvement, the next step under these
[[Page 6416]]
rules (discussed in detail in paragraph (b)(2)) is to consider whether
the impairment(s) that we considered at the time of our most recent
favorable determination or decision still meets, or is still equivalent
in severity to, the listing that it met or was equivalent in severity
to at that time, as that listing then appeared, even if that listing
has since been revised or removed from the Listing. If that
impairment(s) would still meet or equal in severity that listing, we
will find the child still disabled, subject to certain exceptions
discussed in paragraphs (e) and (f) of this section and discussed
below.
If that impairment(s) would not now meet or equal in severity that
listing, we will then consider whether the child is currently disabled,
taking into account all current impairments, including any the child
did not have or that we did not consider at the time of our most recent
favorable determination or decision.
At this step (discussed in detail in paragraph (b)(3)), we first
consider whether the child has a severe impairment or combination of
impairments considering all current impairments. If the child does not,
we will find the child not disabled. If so, we then consider whether
the child's current impairment(s) meets, or is medically equivalent or
functionally equivalent in severity to, any listing in the Listing of
Impairments. If so, the child continues to be disabled; if not, the
child is not disabled.
We will not always follow these steps in order. In final paragraph
(b), we added language explaining that we may skip steps in the
sequence if it is clear this would lead to a more prompt finding that
disability continues. We will not skip any steps unless it is clear
that a continuance will result. For example, we might not consider the
issue of medical improvement if it is obvious on the face of the
evidence that a current impairment meets the severity of a listed
impairment.
Final paragraph (c) discussed what we mean by ``medical
improvement''; i.e., any decrease in the severity of the medical
impairment(s) which was present at the time of our most recent
favorable determination or decision. This paragraph is largely the same
under our prior rules, but we have added language to make it clear that
we will disregard minor changes in the individual's signs, symptoms,
and laboratory findings that obviously do not represent medical
improvement and could not result in a finding that the individual's
disability has ended. This is a longstanding procedure we have used in
cases in which there is technically medical improvement because there
is some very slight improvement in a sign, symptom, or laboratory
finding (e.g., a change in IQ from 61 to 62) but it is clear that the
outcome will not change.
Final paragraph (d), largely unchanged from prior paragraph (e),
explains what we will do if we cannot find the prior file. First, we
will determine whether the child is currently disabled. If not, we will
decide whether to attempt reconstruction of those portions of the
missing file that were relevant to our most recent favorable
determination or decision, so as to allow a decision whether there has
been medical improvement since that time. If we do not or cannot
reconstruct the file, we will not find medical improvement.
Paragraph (e) concerns ``the first group of exceptions to medical
improvement.'' The law provides limited situations in which disability
can be found to have ended even though medical improvement has not
occurred, if the child's impairment(s) no longer results in marked and
severe functional limitations. Two of the exceptions in our prior
rules--the ``advances in medical or vocational therapy or technology''
exception and the ``vocational therapy'' exception--have been limited
by Public Law 104-193 to individuals who have attained age 18. The
third exception is still applicable: A child's disability may be found
to have ceased if substantial evidence shows that, based on new or
improved diagnostic techniques or evaluations, the child's
impairment(s) is not as disabling as it was considered to be at the
time of the most recent favorable determination or decision. We have
revised this exception to conform to the new definition of disability
for children.
Final paragraph (f), largely unchanged from prior paragraph (g),
concerns ``the second group of exceptions to medical improvement.''
These exceptions include such issues as fraud and failure to cooperate
in obtaining evidence. If one of these exceptions applies, we may find
that disability ceases without finding medical improvement or that the
child is currently disabled. We have revised the language concerning
these exceptions to conform to the new definition of disability for
children.
Final paragraph (g) (prior paragraph (h)) concerns the month we
will find a child no longer disabled. We revised the language slightly
to conform to the new definition of disability for children.
Final paragraph (h) (prior paragraph, (i)) provides that, before we
stop benefits, we will provide an opportunity for an appeal, and gives
a reference to the rules on appeals; it is unchanged from our prior
rules.
Final paragraph (i) is new; it implements provisions in Public Law
104-193 requiring that, if a child has a representative payee, that
payee must present evidence at the time of a CDR showing that the child
is and has been receiving treatment to the extent considered medically
necessary and available for the condition(s) that was the basis for
providing SSI benefits, unless we determine such evidence would be
inappropriate or unnecessary, considering the nature of the child's
impairment(s). If the payee refuses without good cause to provide
evidence, and it is in the best interests of the child, we will
determine if another payee should be selected or if the child should
receive benefits directly.
In paragraph (i)(1), we explain that ``medically necessary''
treatment means treatment that is expected to improve or restore the
individual's functioning and that was prescribed by a ``treating
source'' as defined in Sec. 416.902. If the child does not have a
treating source, we will decide whether there is medically necessary
treatment that could have been prescribed by a treating source. In
paragraph (i)(2), we list some factors we will consider in evaluating
whether medically necessary treatment is available; e.g., the location
of institutions or facilities that could provide treatment, the
availability and cost of transportation to such places, the
availability of local community resources that would provide free
treatment.
In paragraph (i)(3), we explain that we will not require a payee to
show proof of treatment if we decide that the disabling impairment(s)
is not amenable to treatment. In paragraph (i)(4), we explain that if
the representative payee refuses without good cause to provide evidence
of treatment, we will, if it is in the child's best interests, remove
the payee and determine if another payee should be selected or if the
child should receive benefits directly. We further explain that when we
consider whether a representative payee had good cause, we will
consider factors such as the acceptable reasons for failure to follow
prescribed treatment in Sec. 416.930(c) and other factors similar to
those describing good cause for missing deadlines in Sec. 416.1411.
Finally, in paragraph (i)(5) we explain that the requirements of
paragraph (i) do not apply to a child who is receiving SSI payments
directly. This is because the treatment provision in Public Law 104-193
applies only to children who have representative payees. However, we
have also included a reminder that the failure-to-follow-prescribed-
treatment rules in Sec. 416.930 continue to apply to
[[Page 6417]]
children who do not have representative payees.
Other Changes
Sections that have been changed only so that their language will
conform to the new definition of disability for children, or to provide
references to new or revised rules, include listings sections 103.00,
104.00, 112.00, and 114.00, and Secs. 416.901, 416.912, 416.913, and
416.919a.
Electronic Version
The electronic file of this document is available on the Federal
Bulletin Board (FBB) at 9:00 A.M. on the date of publication in the
Federal Register. To download the file, modem dial (202) 512-1387. The
FBB instructions will explain how to download the file and the fee.
This file is in WordPerfect and will remain on the FBB during the
comment period.
Regulatory Procedures
Pursuant to section 702(a)(5) of the Act, 42 U.S.C. 902(a)(5), the
Social Security Administration follows the Administrative Procedure Act
(APA) rulemaking procedures specified in 5 U.S.C. 553 in the
development of its regulations. The APA provides exceptions to its
Notice of Proposed Rulemaking (NPRM) procedures when an agency finds
that there is good cause for dispensing with such procedures on the
basis that they are impracticable, unnecessary, or contrary to the
public interest. In the case of these interim final rules, we have
determined that under 5 U.S.C. 553(b)(B), good cause exists for waiving
the NPRM procedures.
Public Law 104-193 was signed into law on August 22, 1996. Sections
211 and 212 of the law were effective upon enactment (or with respect
to benefits for months beginning on or after enactment) without regard
to whether regulations have been issued. In addition, section 215
requires the Commissioner to issue regulations necessary to carry out
the amendments made by sections 211 and 212, which are the subject of
these interim final rules, within 3 months after the date of enactment.
Accordingly, to issue these rules as an NPRM would have delayed
issuance of final rules until well past 3 months after enactment.
In light of the Congressional mandate that we issue regulations
needed to carry out these statutory provisions as expeditiously as
possible (see H.R. Rep. No. 651, 104th Cong., 2d Sess. 1392 (1996),
reprinted in 1996 U.S. Code, Cong. and Ad. News 2183, 2451), we believe
good cause exists for waiver of the NPRM procedures under the APA since
issuance of proposed rules would be impracticable and contrary to
Congressional intent. In light of the short statutory deadline in which
to prescribe regulations under section 215 of Public Law 104-193, we
find that use of the NPRM process is impracticable. Moreover, some of
the changes in these rules are technical ones to conform our rules to
the new definition of disability for children. The technical changes
made by these rules are minor and do not represent discretionary
policy. Accordingly, we find that prior notice and comment are
unnecessary with respect to these rules. However, even though we are
issuing these rules as interim final regulations, we are requesting
public comments and will issue revised rules if necessary.
Executive Order 12866
These interim final rules reflect and implement the disability
provisions of sections 211 and 212 of Public law 104-193. This is a
major rule as defined in section 251 of Public Law 104-121, 5 U.S.C.
804. The Office of Management and Budget (OMB) has reviewed these
interim final rules and determined that they meet the criteria for a
significant regulatory action under Executive Order 12866. Therefore,
we prepared and submitted to OMB, separately from these interim final
rules, an assessment of the potential costs and benefits of this
regulatory action. This assessment is available for review by members
of the public.
The potential costs and benefits for the policies reflected in
these interim final rules follow:
Program Savings
It is estimated that due to the legislation there would be reduced
program outlays resulting in the following savings (in millions of
dollars) to the SSI program (over $4.7 billion total in a 6-year
period):
----------------------------------------------------------------------------------------------------------------
FY1997 FY1998 FY1999 FY2000 FY2001 FY2002 Total
----------------------------------------------------------------------------------------------------------------
-$120.......... -$715 -$945 -$1,075 -$905 -$1,010 -$4,775
----------------------------------------------------------------------------------------------------------------
This is the amount we expect to spend (in millions of dollars) on
SSI childhood disability benefits:
----------------------------------------------------------------------------------------------------------------
FY1997 FY1998 FY1999 FY2000 FY2001 FY2002 Total
----------------------------------------------------------------------------------------------------------------
$5,425......... $5,285 $5,475 $6,300 $5,715 $6,505 $34,705
----------------------------------------------------------------------------------------------------------------
Note: Annual numbers may not add to total due to rounding.
It is also estimated that there will be reduced Medicaid program
outlays (Federal share) resulting in the following savings (in millions
of dollars) over a 6-year period:
----------------------------------------------------------------------------------------------------------------
FY1997 FY1998 FY1999 FY2000 FY2001 FY2002 Total
----------------------------------------------------------------------------------------------------------------
-10............ -85 -110 -125 -125 -135 -590
----------------------------------------------------------------------------------------------------------------
There will also be reduced Medicaid program outlays for States.
Administrative Costs and Savings
The administrative cost of conducting the medical redeterminations
of the children who might be affected by the new childhood disability
standards is expected to be $185 million in FY 1997 and $130 million in
FY 1998. For this regulation, the administrative cost of redetermining
disability in SSI childhood recipients is assumed to be same as the
cost of a full medical CDR for these individuals, including the
additional appellate costs.
From FYs 1999-2002, the ongoing Federal workyear savings are from
fewer recipients on the rolls, i.e., from those children currently
receiving benefits who will be terminated and from those children who
will be denied under the
[[Page 6418]]
stricter standards. There will be net savings of approximately $12
million annually beginning with FY99. These savings will result from
fewer income and resource redeterminations, representative payee
actions, and maintenance of the rolls activities. The ongoing State
workyear costs are for additional hearings, as well as medical reviews
from additional reconsiderations, resulting from the stricter childhood
disability standard.
Estimated administrative costs ($ in millions, rounded to the
nearest $5 million) and workyears (rounded to the nearest 50) are:
----------------------------------------------------------------------------------------------------------------
FY1997 FY1998 FY1999 FY2000 FY2001 FY2002 Total
----------------------------------------------------------------------------------------------------------------
.......................... $185 $130 -$10 -$10 -$10 -$10 $265
-----------------------------------------------------------------------------------
(6) Workyears
-----------------------------------------------------------------------------------
Federal..................... 900 650 -250 -250 -250 -250 550
State....................... 1,200 1,250 150 150 150 150 3,050
-----------------------------------------------------------------------------------
Total................... 2,100 1,900 -100 -100 -100 -100 3,550
----------------------------------------------------------------------------------------------------------------
Note: Annual numbers may not add to total due to rounding.
Reductions in SSI Recipients (in thousands):
We expect benefit eligibility for a total of 135,000 of those
children receiving benefits at date of enactment will be terminated as
a result of these changes in the law. The following figures show the
estimated annual effect of the legislation on projected numbers of
recipients of Federal SSI benefits:
----------------------------------------------------------------------------------------------------------------
FY1997 FY1998 FY1999 FY2000 FY2001 FY2002
----------------------------------------------------------------------------------------------------------------
Current recipients.................................. -10 -95 -110 -95 -80 -70
New awards.......................................... -10 -35 -50 -70 -80 -90
-----------------------------------------------------------
Total........................................... -20 -130 -160 -165 -160 -160
----------------------------------------------------------------------------------------------------------------
With the reductions in SSI recipients shown above, we estimate the
average number of disabled children (in thousands) in payment status
after implementation of these interim final rules will be:
----------------------------------------------------------------------------------------------------------------
FY1997 FY1998 FY1999 FY2000 FY2001 FY2002
----------------------------------------------------------------------------------------------------------------
1,010............ 950 955 990 1,015 1,040
----------------------------------------------------------------------------------------------------------------
Note: Annual numbers may not add to total due to rounding.
Regulatory Flexibility Act
We certify that these interim final rules will not have a
significant economic impact on a substantial number of small entities
since this rule affects only individuals. Therefore, a regulatory
flexibility analysis as provided in Public Law 96-354, the Regulatory
Flexibility Act, as amended by Public Law 104-121 is not required.
Paperwork Reduction Act
These interim final rules contain a new information collection
requirement in Part 416, section 416.924(g). As required by 44 U.S.C.
3507, as amended by section 2 of the Paperwork Reduction Act of 1995,
we have requested under emergency procedures, and OMB has approved,
under OMB #0960-0568, the information collection requirements contained
in section 416.924(g).
(Catalog of Federal Domestic Assistance: Program Nos. 96.001 Social
Security-Disability Insurance; 96.006 Supplemental Security Income.)
List of Subjects
20 CFR Part 404
Administrative practice and procedure, Blind, Disability benefits,
Old-Age, Survivors, and Disability Insurance, Reporting and
recordkeeping requirements, Social Security.
20 CFR Part 416
Administrative practice and procedure, Aged, Blind, Disability
benefits, Public assistance programs, Reporting and recordkeeping
requirements, Supplemental Security Income (SSI).
Dated: February 5, 1997.
Shirley S. Chater,
Commissioner of Social Security.
For the reasons set out in the preamble, 20 CFR chapter III is
amended as follows:
PART 404--FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE
(1950- )
Subpart P--[Amended]
1. The authority citation for subpart P of part 404 is revised to
read as follows:
Authority: Secs. 202, 205(a), (b), and (d)-(h), 216(i), 221(a)
and (i), 222(c), 223, 225, and 702(a)(5) of the Social Security Act
(42 U.S.C. 402, 405(a), (b), and (d)-(h), 416(i), 421(a) and (i),
422(c), 423, 425, and 902(a)(5)); sec. 211(b), Pub. L. 104-193, 110
Stat. 2105, 2189.
Appendix 1 to Subpart P--[Amended]
2. Part B of Appendix 1 (Listing of Impairments) of subpart P to
part 404 is amended by revising the third sentence of the second
undesignated paragraph of 103.00A, the fourth undesignated paragraph of
103.00A, the fourth sentence of the fifth undesignated paragraph of
104.00A, the sixth undesignated paragraph of 104.00A, the last sentence
of the last undesignated paragraph of 104.00C, the first three
sentences of the eighth undesignated paragraph of 112.00A, the third
sentence of the first paragraph of
[[Page 6419]]
112.00C, the first sentence of 112.00C2. introductory text 112.00C2.b.,
112.00C2.c., the heading of 112.00C2.d., 112.00C4 and the undesignated
paragraph under it, and 112.02B2.c. introductory text to read as
follows:
Appendix 1 to Subpart P--Listing of Impairments
* * * * *
Part B
* * * * *
103.00 Respiratory System
A. * * *
* * * * *
* * * Even if a child does not show that his or her impairment
meets the criteria of these listings, the child may have an
impairment(s) that is medically or functionally equivalent in severity
to one of the listed impairments. * * *
* * * * *
It must be remembered that these listings are only examples of
common respiratory disorders that are severe enough to find a child
disabled. When a child has a medically determinable impairment that is
not listed, an impairment that does not meet the requirements of a
listing, or a combination of impairments no one of which meets the
requirements of a listing, we will make a determination whether the
child's impairment(s) is medically or functionally equivalent in
severity to the criteria of a listing. (See Secs. 404.1526, 416.926,
and 416.926a.)
* * * * *
104.00 Cardiovascular System
A. Introduction
* * * * *
* * * Even though a child who does not receive treatment may not be
able to show an impairment that meets the criteria of these listings,
the child may have an impairment(s) that is medically or functionally
equivalent in severity to one of the listed impairments.
Indeed, it must be remembered that these listings are only examples
of common cardiovascular disorders that are severe enough to find a
child disabled. When a child has a medically determinable impairment
that is not listed, an impairment that does not meet the requirements
of a listing, or a combination of impairments no one of which meets the
requirements of a listing, we will make a determination whether the
child's impairment(s) is medically or functionally equivalent in
severity to the criteria of a listing. (See Secs. 404.1526, 416.926,
and 416.926a.)
* * * * *
C. Treatment and Relationship Status
* * * * *
* * * (See Sec. 404.1594 or Sec. 416.994a, as appropriate, for our
rules on medical improvement and whether an individual is no longer
disabled.)
112.00 Mental Disorders
A. * * *
* * * * *
It must be remembered that these listings are only examples of
common mental disorders that are severe enough to find a child
disabled. When a child has a medically determinable impairment that is
not listed, an impairment that does not meet the requirements of a
listing, or a combination of impairments no one of which meets the
requirements of a listing, we will make a determination whether the
child's impairment(s) is medically or functionally equivalent in
severity to the criteria of a listing. (See Secs. 404.1526, 416.926,
and 416.926a.) * * *
* * * * *
C. * * * The functional areas that we consider are: Motor function;
cognitive/communicative function; social function; personal function;
and concentration, persistence, or pace. * * *
1. * * *
2. Preschool children (age 3 to attainment of age 6). For the age
groups including preschool children through adolescence, the functional
areas used to measure severity are: (a) Cognitive/communicative
function, (b) social function, (c) personal function, and (d)
deficiencies of concentration, persistence, or pace resulting in
frequent failure to complete tasks in a timely manner. * * *
a. * * *
b. Social function. Social functioning refers to a child's capacity
to form and maintain relationships with parents, other adults, and
peers. Social functioning includes the ability to get along with others
(e.g., family members, neighborhood friends, classmates, teachers).
Impaired social functioning may be caused by inappropriate externalized
actions (e.g., running away, physical aggression--but not self-
injurious actions, which are evaluated in the personal area of
functioning), or inappropriate internalized actions (e.g., social
isolation, avoidance of interpersonal activities, mutism). Its severity
must be documented in terms of intensity, frequency, and duration, and
shown to be beyond what might be reasonably expected for age. Strength
in social functioning may be documented by such things as the child's
ability to respond to and initiate social interaction with others, to
sustain relationships, and to participate in group activities.
Cooperative behaviors, consideration for others, awareness of others'
feelings, and social maturity, appropriate to a child's age, also need
to be considered. Social functioning in play and school may involve
interactions with adults, including responding appropriately to persons
in authority (e.g., teachers, coaches) or cooperative behaviors
involving other children. Social functioning is observed not only at
home but also in preschool programs.
c. Personal function. Personal functioning in preschool children
pertains to self-care; i.e., personal needs, health, and safety
(feeding, dressing, toileting, bathing; maintaining personal hygiene,
proper nutrition, sleep, health habits; adhering to medication or
therapy regimens; following safety precautions). Development of self-
care skills is measured in terms of the child's increasing ability to
help himself/herself and to cooperate with others in taking care of
these needs. Impaired ability in this area is manifested by failure to
develop such skills, failure to use them, or self-injurious actions.
This function may be documented by a standardized test of adaptive
behavior or by a careful description of the full range of self-care
activities. These activities are often observed not only at home but
also in preschool programs.
d. Concentration, persistence, or pace. * * *
* * * * *
4. Adolescents (age 12 to attainment of age 18). Functional
criteria parallel to those for primary school children (cognitive/
communicative; social; personal; and concentration, persistence, or
pace) are the measure of severity for this age group. Testing
instruments appropriate to adolescents should be used where indicated.
Comparable findings of disruption of social function must consider the
capacity to form appropriate, stable, and lasting relationships. If
information is available about cooperative working relationships in
school or at part-time or full-time work, or about the ability to work
as a member of a group, it should be considered when assessing the
child's social functioning. Markedly impoverished social contact,
isolation, withdrawal, and inappropriate or bizarre behavior under the
stress of socializing with others also constitute comparable findings.
(Note that self-injurious actions are evaluated in the personal area of
functioning.)
a. Personal functioning in adolescents pertains to self-care. It is
measured in
[[Page 6420]]
the same terms as for younger children, the focus, however, being on
the adolescent's ability to take care of his or her own personal needs,
health, and safety without assistance. Impaired ability in this area is
manifested by failure to take care of these needs or by self-injurious
actions. This function may be documented by a standardized test of
adaptive behavior or by careful descriptions of the full range of self-
care activities.
b. In adolescents, the intent of the functional criterion described
in paragraph B2d is the same as in primary school children, However,
other evidence of this functional impairment may also be available,
such as from evidence of the child's performance in wok or work-like
settings.
* * * * *
112.01 Category of Impairments, Mental
112.02 Organic Mental Disorders:
* * * * *
B. * * *
* * * * *
2. * * *
c. Marked impairment in age-appropriate personal functioning,
documented by history and medical findings (including consideration of
information from parents or other individuals who have knowledge of the
child, when such information is needed and available) and including, if
necessary, appropriate standardized tests; or
* * * * *
3. Part B of Appendix 1 (Listing of Impairments) of subpart P to
part 404 is amended by revising 114.00D6 and removing the last sentence
of the second undesignated paragraph under 114.00D6.
114.00 Immune System
* * * * *
D. * * *
6. Evaluation of HIV infection in children. The criteria in 114.08
do not describe the full spectrum of diseases or conditions manifested
by children with HIV infection. As in any case, consideration must be
given to whether a child's impairment(s) meets, medically equals, or
functionally equals the severity of any other listing in appendix 1 of
subpart P; e.g., a neoplastic disorder listed in 113.00ff. (See
Secs. 404.1526, 416.926, and 416.926a.) Although 114.08 includes cross-
references to other listings for the more common manifestations of HIV
infection, additional listings may also apply.
* * * * *
PART 416--SUPPLEMENTAL SECURITY INCOME FOR THE AGED, BLIND, AND
DISABLED
Subpart F--[Amended]
4. The authority citation for subpart F of part 416 continues to
read as follows:
Authority: Secs. 702(a)(5), 1631(a)(2) and (d)(1) of the Social
Security Act (42 U.S.C. 902(a)(5) and 1383(a)(2) and (d)(1)).
5. Section 416.635 is amended by revising paragraphs (c) and (d)
and adding paragraph (e) to read as follows:
Sec. 416.635 Responsibilities of a representative payee.
* * * * *
(c) Submit to us, upon our request, a written report accounting for
the benefits received;
(d) Notify us of any change in his or her circumstances that would
affect performance of the payee responsibilities; and
(e) In cases in which the beneficiary is an individual under age 18
(including cases in which the beneficiary is an individual whose low
birth weight is a contributing factor material to our determination
that the individual is disabled), ensure that the beneficiary is and
has been receiving treatment to the extent considered medically
necessary and available for the condition that was the basis for
providing benefits (See Sec. 416.994a(i).)
Subpart I--[Amended]
6. The authority citation for subpart I of part 416 continues to
read as follows:
Authority: Secs. 702(a)(5), 1611, 1614, 1619, 1631(a), (c), and
(d)(1), and 1633 of the Social Security Act (42 U.S.C. 902(a)(5),
1382, 1382c, 1382h, 1383(a), (c), and (d)(1), and 1383b); secs. 4(c)
and 5, 6(c)-(e), 14(a) and 15, Pub. L. 98-460, 98 Stat. 1794, 1801,
1802, and 1808 (42 U.S.C. 421 note, 423 note, 1382h note).
7. Section 416.901 is amended by revising paragraphs (e), (f)(2),
and (f)(6) as follows:
Sec. 416.901 Scope of subpart.
* * * * *
(e) Our general rules on evaluating disability for children filing
new applications are stated in Sec. 416.924.
(f) * * *
* * * * *
(2) What we mean by the terms medical equivalence and functional
equivalence and how we determine medical equivalence (and functional
equivalence if you are a child);
* * * * *
(6) The effect on your benefits if you fail to follow treatment
that is expected to restore your ability to work or, if you are a
child, to reduce your functional limitations to the point that they are
no longer marked and severe, and how we apply the rule in Sec. 416.930.
* * * * *
7. Section 416.902 is amended by adding four new definitions
between the definitions for ``Child'' and ``Medical sources'' to read
as follows:
Sec. 416.902 General definitions and terms for this subpart.
* * * * *
Commissioner means the Commissioner of Social Security.
Disability redetermination means a redetermination of your
eligibility based on disability using the rules for new applicants
appropriate to your age, except the rules pertaining to performance of
substantial gainful activity. For individuals who are working and for
whom a disability redetermination is required, we will apply the rules
in Secs. 416.260 ff. In conducting a disability redetermination, we
will not use the rules for determining whether disability continues set
forth in Sec. 416.994 or Sec. 416.994a. (See Sec. 416.987.)
Impairment(s) means a medically determinable physical or mental
impairment or a combination of medically determinable physical or
mental impairments.
Marked and severe functional limitations, when used as a phrase,
means the standard of disability in the Social Security Act for
children claiming SSI benefits based on disability and is a level of
severity that meets or medically or functionally equals the severity of
a listing in the Listing of Impairments in appendix 1 of subpart P of
part 404 (the Listing). See Secs. 416.906, 416.924, and 416.926a. The
words ``marked'' and ``severe'' are also separate terms used throughout
this subpart to describe measures of functional limitations; the term
``marked'' is also used in the listings. See Secs. 416.924 and
416.926a. The meaning of the words ``marked'' and ``severe'' when used
as part of the term Marked and severe functional limitations is not the
same as the meaning of the separate terms ``marked'' and ``severe''
used elsewhere in 20 CFR 404 and 416. (See Secs. 416.924(c) and
416.926a(c).)
* * * * *
8. Section 416.906 is revised to read as follows:
[[Page 6421]]
Sec. 416.906 Basic definition of disability for children.
If you are under age 18, we will consider you disabled if you have
a medically determinable physical or mental impairment or combination
of impairments that causes marked and severe functional limitations,
and that can be expected to cause death or that has lasted or can be
expected to last for a continuous period of not less than 12 months.
Notwithstanding the preceding sentence, if you file a new application
for benefits and you are engaging in substantial gainful activity, we
will not consider you disabled. We discuss our rules for determining
disability in children who file new applications in Secs. 416.924
through 416.924c and Secs. 416.925 through 416.926a.
9. Section 416.911 is revised to read as follows:
Sec. 416.911 Definition of disabling impairment.
(a) If you are an adult:
(1) A disabling impairment is an impairment (or combination of
impairments) which, of itself, is so severe that it meets or equals a
set of criteria in the Listing of Impairments in appendix 1 of subpart
P of part 404 of this chapter or which, when considered with your age,
education and work experience, would result in a finding that you are
disabled under Sec. 416.994, unless the disability redetermination
rules in Sec. 416.987(b) apply to you.
(2) If the disability redetermination rules in Sec. 416.987 apply
to you, a disabling impairment is an impairment or combination of
impairments that meets the requirements in Secs. 416.920(c) through
(f).
(b) If you are a child, a disabling impairment is an impairment (or
combination of impairments) that causes marked and severe functional
limitations. This means that the impairment or combination of
impairments:
(1) Must meet or medically or functionally equal the requirements
of a listing in the Listing of Impairments in appendix 1 of subpart P
of part 404 of this chapter, or
(2) Would result in a finding that you are disabled under
Sec. 416.994a.
(c) In determining whether you have a disabling impairment,
earnings are not considered.
10. Section 416.912 is amended by revising paragraphs (a) and
(c)(6) to read as follows:
Sec. 416.912 Evidence of your impairment.
(a) General. In general, you have to prove to us that you are blind
or disabled. This means that you must furnish medical and other
evidence that we can use to reach conclusions about your medical
impairment(s). If material to the determination whether you are blind
or disabled, medical and other evidence must be furnished about the
effects of your impairment(s) on your ability to work, or if you are a
child, on your functioning, on a sustained basis. We will consider only
impairment(s) you say you have or about which we receive evidence.
* * * * *
(c) * * *
(6) Any other factors showing how your impairment(s) affects your
ability to work, or, if you are a child, your functioning. In
Secs. 416.960 through 416.969, we discuss in more detail the evidence
we need when we consider vocational factors.
* * * * *
11. Section 416.913 is amended by revising paragraph (c)(3) to read
as follows:
Sec. 416.913 Medical evidence of your impairment.
* * * * *
(c) * * *
(3) If you are a child, the medical source's opinion about your
functional limitations in learning, motor functioning, performing self-
care activities, communicating, socializing, and completing tasks (and,
if you are a newborn or young infant from birth to age 1,
responsiveness to stimuli).
* * * * *
12. Section 416.919a is amended by revising paragraph (b)(5) to
read as follows:
Sec. 416.919a When we will purchase a consultative examination and how
we will use it.
* * * * *
(b) * * *
(5) There is an indication of a change in your condition that is
likely to affect your ability to work, or, if you are a child, your
functioning, but the current severity of your impairment is not
established.
13. Section 416.919n is amended by revising the fifth sentence of
paragraph (b) and paragraph (c)(6) to read as follows:
Sec. 416.919n Informing the examining physician or psychologist of
examination scheduling, report content, and signature requirements.
* * * * *
(b) * * * The medical report must be complete enough to help us
determine the nature, severity, and duration of the impairment, and
your residual functional capacity (if you are an adult) or your
functioning (if you are a child). * * *
(c) * * *
(6) A statement about what you can still d0 despite your
impairment(s), unless the claim is based on statutory blindness. If you
are an adult, this statement should describe the opinion of the
consultative physician or psychologist about your ability, despite your
impairment(s), to do work-related activities such as sitting, standing,
walking, lifting, carrying, handling objects, hearing, speaking, and
traveling; and, in cases of mental impairment(s), the opinion of the
consultative physician or psychologist about your ability to
understand, to carry out and remember instructions, and to respond
appropriately to supervision, coworkers and work pressures in a work
setting. If you are a child, this statement should describe the opinion
of the consultative physician or psychologist about your functional
limitations in learning, motor functioning, performing self-care
activities, communicating, socializing, and completing tasks (and, if
you are a newborn or young infant from birth to age 1, responsiveness
to stimuli); and
* * * * *
14. Section 416.924 is amended by removing paragraphs (a) and (f),
redesignating paragraphs (b) through (e) as (a) through (d), adding new
paragraphs (e) and (g), redesignating prior paragraph (g) as paragraph
(f), and by revising newly designated paragraphs (a), (c), and (d) to
read as follows:
Sec. 416.924 How we determine disability for children.
(a) Steps in evaluating disability. We consider all relevant
evidence in your case record when we make a determination or decision
whether you are disabled. If you allege more than one impairment, we
will evaluate all the impairments for which we have evidence. Thus, we
will consider the combined effects of all your impairments upon your
overall health and functioning. We will also evaluate any limitations
in your functioning that result from your symptoms, including pain (see
Sec. 416.929). When you file a new application for benefits, we use the
evaluation process set forth in (b) through (d) of this section. We
follow a set order to determine whether you are disabled. If you are
doing substantial gainful activity, we will determine that you are not
disabled and not review your claim further. If you are not doing
substantial gainful activity, we will consider your physical or mental
impairment(s) first to see if you have an impairment or combination of
[[Page 6422]]
impairments that is severe. If your impairment(s) is not severe, we
will determine that you are not disabled and not review your claim
further. If your impairment(s) is severe, we will review your claim
further to see if you have an impairment(s) that meets, medically
equals, or functionally equals in severity any impairment that is
listed in appendix 1 of subpart P of part 404 of this chapter. If you
have such an impairment(s), and it meets the duration requirement, we
will find that you are disabled. If you do not have such an
impairment(s), or if it does not meet the duration requirement, we will
find that you are not disabled.
* * * * *
(c) You must have a severe impairment(s). If your impairment(s) is
a slight abnormality or a combination of slight abnormalities that
causes no more than minimal functional limitations, we will find that
you do not have a severe impairment(s) and are, therefore, not
disabled.
(d) Your impairment(s) must meet, medically equal, or functionally
equal in severity a listed impairment in appendix 1. An impairment(s)
causes marked and severe functional limitations if it meets or
medically equals in severity the set of criteria for an impairment
listed in the Listing of Impairments in appendix 1 of subpart P of part
404 of this chapter, or if it is functionally equal in severity to a
listed impairment.
(1) Therefore, if you have an impairment(s) that is listed in
appendix 1, or is medically or functionally equal in severity to a
listed impairment, and that meets the duration requirement, we will
find you disabled.
(2) If your impairment(s) does not meet the duration requirement,
or does not meet, medically equal, or functionally equal in severity a
listed impairment, we will find that you are not disabled.
(3) We explain our rules for deciding whether an impairment(s)
meets a listing in Sec. 416.925. Our rules for how we decide whether an
impairment(s) medically equals a listing are set forth in Sec. 416.926.
Our rules for deciding whether an impairment(s) functionally equals a
listing are set forth in Sec. 416.926a.
(e) If you attain age 18 after you file your disability application
but before we make a determination or decision. For the period during
which you are under age 18, we will evaluate whether you are disabled
using the rules in this section. For the period starting with the day
you attain age 18, we will evaluate whether you are disabled using the
disability rules we use for adults filing new claims, in Sec. 416.920.
* * * * *
(g) How we will explain our findings. When we make an initial or
reconsidered determination whether you are disabled under this section
or whether your disability continues under Sec. 416.994a (except when a
disability hearing officer makes the reconsideration determination), we
will complete a standard form, Form SSA-538, Childhood Disability
Evaluation Form. The form outlines the steps of the sequential
evaluation process for individuals who have not attained age 18. In
these cases, the State agency medical or psychological consultant (see
Sec. 416.1016) or other designee of the Commissioner has overall
responsibility for the content of the form and must sign the form to
attest that it is complete and that he or she is responsible for its
content, including the findings of fact and any discussion of
supporting evidence. Disability hearing officers, administrative law
judges, and the administrative appeals judges on the Appeals Council
(when the Appeals Council makes a decision) will not complete the form
but will indicate their findings at each step of the sequential
evaluation process in their determinations or decisions.
15. Section 416.924a is amended by removing paragraph (a)(4),
redesignating paragraph (a)(5) as paragraph (a)(4), removing paragraph
(b), redesignating paragraphs (c) and (d) as paragraphs (b) and (c),
revising the third sentence of paragraph (a) introductory text,
revising paragraph (a)(2), revising the first sentence of paragraph
(a)(3), revising the first sentence of redesignated paragraph (b)
introductory text, and revising redesignated paragraphs (c)(1) and
(c)(4) to read as follows:
Sec. 416.924a Age as a factor of evaluation in childhood disability.
(a) * * * However, your age is always an important factor when we
decide whether your impairment(s) is severe (see Sec. 416.924(c)). * *
*
(2) The Listing of Impairments in appendix 1 of subpart P of part
404 of this chapter contains examples of impairments that we consider
of such significance that they cause marked and severe functional
limitations. Therefore, we will usually decide whether your impairment
meets a listing without giving special consideration to your age.
However, several listings are divided into age categories. If the
listing appropriate for evaluating your impairment includes such age
categories, we will evaluate your impairment under the criteria for
your age when we decide whether your impairment meets that listing.
(3) When we compare an unlisted impairment with a listed impairment
to determine whether you have an impairment(s) that medically or
functionally equals the severity of a listing, the way in which we
consider your age will depend on the listing we use for comparison. * *
*
(b) Correcting chronological age of premature infants. We generally
use chronological age (that is, a child's age based on birth date) when
we decide whether, or the extent to which, a physical or mental
impairment or combination of impairments causes functional limitations.
* * *
* * * * *
(c) * * *
(1) We recognize that how a particular child adapts to an
impairment(s) depends on many factors (e.g., the nature and severity of
the impairment(s), the child's temperament, the quality of adult
intervention, and the child's age at onset of the impairment(s)). By
adapting to an impairment, we mean the child's ability to learn those
skills, habits, or behaviors that allow the child to compensate for the
impairment(s) and, thus, to function as well as possible despite the
impairment(s). Therefore, our disability determination will consider
how you are adapting to your impairment(s) and the extent to which you
are able to function as set forth in this section and Secs. 416.924 and
416.924c.
* * * * *
(4) As children approach adulthood--that is, by about age 16--the
functional abilities, skills, and behaviors that are appropriate for
them are those that are also appropriate for adults. Older adolescents
generally also share with the youngest adults the same abilities to
adapt to work-related activities despite a severe impairment(s). By the
age of adolescence, children have developed basic physical skills and
behaviors, so that impairments occurring in adolescence may not have
the cumulative interactive effects on functioning that impairments
occurring in infancy and early childhood do. (However, as set forth in
paragraph (c)(1) of this section, we also recognize that adolescents
may experience a variety of impairments with different effects on their
functioning. For instance, a child born with a degenerative disorder
will experience a worsening of its effects as he or she grows older so
that functioning may be more limited for the older child than it is for
a younger child with the same illness or disorder.)
[[Page 6423]]
16. Section 416.924b is amended by revising paragraph (a), the
second sentences in paragraphs (b)(2) and (b)(3), and paragraph (b)(4),
and by removing paragraph (b)(5) to read as follows:
Sec. 416.924b Functioning in children.
(a) General. When we evaluate whether your impairment(s) is severe
and, if so, whether it causes marked and severe functional limitations,
we will consider all of your mental and physical limitations that
result from your impairment(s).
(b) * * *
(2) * * * Ordinarily, failures to achieve developmental milestones
are most important as indicators of impaired functioning from birth
until the attainment of age 3, although they may be used to evaluate
older children, especially preschool children.
(3) * * * Ordinarily, activities of daily living are most important
as indicators of functional limitations in children aged 3 to
attainment of age 16, although they may be used to evaluate children
younger than age 3.
(4) Work-related activities. The term work-related activities
refers to those physical and mental activities that are associated
with, or related to, activities in the workplace, as manifested in a
person's activities in contexts such as school, work, vocational
programs, and organized activities. Ordinarily, inability to perform
work-related activities is most important as an indicator of functional
limitations in adolescents aged 16 to attainment of age 18.
17. Section 416.924c is revised to read:
Sec. 416.924c Other factors we will consider.
(a) General. When we evaluate whether your impairment(s) is severe,
and if so, whether it causes marked and severe functional limitations,
we will consider all factors that are relevant to the evaluation of the
effects of your impairment(s) on your functioning, such as the effects
of your medications, the setting in which you live, your need for
assistive devices, and your functioning in school. Therefore, when we
assess your functional limitations, we will consider all evidence from
medical and nonmedical sources--such as your parents, teachers, and
other people who know you--that can help us to understand how your
impairment(s) affects your functioning. Some of the factors we will
consider include, but are not limited to, the factors in paragraphs (b)
through (g) of this section.
(b) Chronic illness. If you have a chronic impairment(s) that is
characterized by episodes of exacerbation (worsening) or remission
(improvement), we will consider the frequency and severity of your
episodes of exacerbation and your periods of remission as factors in
our determination whether you have a severe impairment(s) and, if so,
whether it meets or medically or functionally equals in severity any
listing, and is therefore disabling. For instance, if you require
repeated hospitalizations, or frequent outpatient care with supportive
therapy for a chronic impairment(s), we will consider this need for
treatment in our determination. When we determine whether you are
disabled, we will consider how the level of treatment you need for your
chronic illness affects your functioning. We will consider whether the
length and frequency of your hospitalizations or episodes of
exacerbation significantly interfere with your functioning on a
longitudinal basis, or whether the frequency of your outpatient care
affects your functioning.
(c) Effects of medication. We will consider the effects of
medication on your symptoms, signs, and laboratory findings, including
your functioning. Although medications may control the most obvious
manifestations of your condition(s), they may or may not affect the
functional limitations imposed by your impairment(s). If your symptoms
or signs are reduced by medications, we will consider whether any
functional limitations which may nevertheless persist are marked and
severe, even if there is apparent improvement from the medications. We
will also consider whether your medications create any side effects
which cause or contribute to your functional limitations.
(d) Effects of structured or highly supportive settings. Children
with serious impairments may spend much of their time in structured or
highly supportive settings. A structured or highly supportive setting
may be your own home, in which family members make extraordinary
adjustments to accommodate your impairment(s); or your classroom at
school, whether a regular class in which you are accommodated or a
special classroom; or a residential facility or school where you live
for a period of time. Children with chronic impairments also commonly
have their lives structured in such a way as to minimize stress and
reduce their symptoms or signs of impairment; others may continue to
have persistent pain, fatigue, decreased energy, or other symptoms or
signs, though at a lesser level of severity. Such children may be more
impaired in their overall functioning than their symptoms and signs
would indicate. Therefore, if your symptoms or signs are controlled or
reduced by the environment in which you live, we will consider your
functioning outside of this highly structured setting.
(e) Adaptations. We will consider the nature and extent of any
other adaptations that are made for you in order to enable you to
function. Such adaptations may include assistive devices, appliances,
or technology. Some adaptations may enable you to function normally, or
almost normally (e.g., eyeglasses, hearing aids). Others may increase
your functioning, even though you may still have functional limitations
(e.g., ankle-foot orthoses, hand or foot splints, and specially adapted
or custom-made tools, utensils, or devices for self-care activities
such as bathing, feeding, toileting, and dressing). When we evaluate
your overall functioning with an adaptation, we will consider the
degree to which the adaptation enables you to function and any
functional limitations that nevertheless persist.
(f) Time spent in therapy. You may need frequent and ongoing
therapy from one or more kinds of health care professionals in order to
maintain or improve your functional status. Therapy may include
occupational, physical, or speech and language therapy, special nursing
services, psychotherapy, or psychosocial counseling. Frequent therapy,
although intended to improve your functioning in some ways, may also
interfere with your functioning in other ways. If you receive frequent
therapy at school during a normal school day, it may or may not
interfere significantly with your functioning. If you must frequently
interrupt your activities at school or at home for therapy, these
interruptions may interfere with your functioning. We will consider the
frequency of any therapy that you must have, how long you have needed
the therapy or will need the therapy, and whether it interferes with
your functioning.
(g) School attendance. (1) School records and information from
people at school who know you or who have examined you, such as
teachers and school psychologists, psychiatrists, or therapists, may be
important sources of information about your impairment(s) and its
effect on your functioning. If you attend school, we will consider this
evidence when it is relevant and available to us.
(2) The fact that you are able to attend school will not, in
itself, be an indication that you are not disabled. We will consider
the circumstances of your school attendance, such as your functioning
in a regular classroom
[[Page 6424]]
setting. Likewise, the fact that you are in a special education
classroom setting, or that you are not in such a setting, will not in
itself establish your actual limitations or abilities. We will consider
the fact of such placement or lack of placement in the context of the
remainder of the evidence in your case record.
(3) However, if you are unable to attend school on a regular basis
because of your impairment(s), we will consider this when we determine
whether you are disabled.
(h) Treatment and intervention, in general. With adequate treatment
or intervention, some children not only have their symptoms and signs
reduced, but also maintain, return to or achieve a level of functioning
that is not disabling. Treatment or intervention may prevent,
eliminate, or reduce functional limitations; if such limitations were
disabling in the absence of treatment or intervention, treatment or
intervention may eliminate them or reduce them so that they are not
disabling. We will, therefore, evaluate the effects of your treatment
or intervention to determine the actual outcome of the treatment or
intervention in your particular case.
18. Section 416.924d is removed.
19. Section 416.924e is removed.
20. Section 416.925 is amended by revising paragraph (a) and adding
five sentences to the end of paragraph (b)(2) to read as follows:
Sec. 416.925 Listing of Impairments in appendix 1 of subpart P of part
404 of this chapter.
(a) Purpose of the Listing of Impairments. The Listing of
Impairments describes, for each of the major body systems, impairments
that are considered severe enough to prevent an adult from doing any
gainful activity or, for a child, that causes marked and severe
functional limitations. Most of the listed impairments are permanent or
expected to result in death, or a specific statement of duration is
made. For all others, the evidence must show that the impairment has
lasted or is expected to last for a continuous period of at least 12
months.
(b) * * *
(2) * * * Although the severity criteria in Part B of the Listing
of Impairments are expressed in different ways for different
impairments, the level of severity for impairments listed in part B is
intended to be the same as that expressed in the functional severity
criteria of the childhood mental disorders listings. (See listings
112.01 ff. of appendix 1 of subpart P of part 404 of this chapter.)
Therefore, in general, a child's impairment(s) is of ``listing-level
severity'' if it causes marked limitations in two broad areas of
functioning or extreme limitations in one such area. (See Sec. 416.926a
for definition of the terms marked and extreme as they apply to
children.) However, when we decide whether your impairment(s) meets the
requirements for any listed impairment, we will decide that your
impairment is of ``listing-level severity'' even if it does not result
in marked limitations in two broad areas of functioning, or extreme
limitations in one such area, if the listing that we apply does not
require such limitations to establish that an impairment(s) is
disabling.
* * * * *
21. Section 416.926 is amended by revising the section heading,
paragraph (a), the last sentence of paragraph (b), and the first
sentence of paragraph (c), and by adding paragraph (d) to read as
follows:
Sec. 416.926 Medical equivalence for adults and children.
(a) How medical equivalence is determined. We will decide that your
impairment(s) is medically equivalent to a listed impairment in
appendix 1 of subpart P of part 404 of this chapter if the medical
findings are at least equal in severity and duration to the listed
findings. We will compare the symptoms, signs, and laboratory findings
about your impairment(s), as shown in the medical evidence we have
about your claim, with the corresponding medical criteria shown for any
listed impairment. When we make a finding regarding medical
equivalence, we will consider all relevant evidence in your case
record. Medical equivalence can be found in two ways:
(1) If you have an impairment that is described in the Listing of
Impairments in appendix 1 of subpart P of part 404 of this chapter,
but:
(i) You do not exhibit one or more of the medical findings
specified in the particular listing, or
(ii) You exhibit all of the medical findings, but one or more of
the findings is not as severe as specified in the listing, we will
nevertheless find that your impairment is medically equivalent to that
listing if you have other medical findings related to your impairment
that are at least of equal medical significance.
(2) If you have an impairment that is not described in the Listing
of Impairments in appendix 1, or you have a combination of impairments,
no one of which meets or is medically equivalent to a listing, we will
compare your medical findings with those for closely analogous listed
impairments. If the medical findings related to your impairment(s) are
at least of equal medical significance to those of a listed impairment,
we will find that your impairment(s) is medically equivalent to the
analogous listing.
(b) * * * We will also consider the medical opinion given by one or
more medical or psychological consultants designated by the
Commissioner in deciding medical equivalence. (See Sec. 416.1016.)
(c) Who is a designated medical or psychological consultant. A
medical or psychological consultant designated by the Commissioner
includes any medical or psychological consultant employed or engaged to
make medical judgments by the Social Security Administration, the
Railroad Retirement Board, or a State agency authorized to make
disability determinations. * * *
(d) Responsibility for determining medical equivalence. In cases
where the State agency or other designee of the Commissioner makes the
initial or reconsideration disability determination, a State agency
medical or psychological consultant or other designee of the
Commissioner (see Sec. 416.1016) has the overall responsibility for
determining medical equivalence. For cases in the disability hearing
process or otherwise decided by a disability hearing officer, the
responsibility for determining medical equivalence rests with either
the disability hearing officer or, if the disability hearing officer's
reconsideration determination is changed under Sec. 416.1418, with the
Associate Commissioner for Disability or his or her delegate. For cases
at the Administrative Law Judge or Appeals Council level, the
responsibility for deciding medical equivalence rests with the
Administrative Law Judge or Appeals Council.
22. Section 416.926a is revised to read as follows:
Sec. 416.926a Functional equivalence for children
(a) General. If your impairment or combination of impairments does
not meet, or is not medically equivalent in severity to, any listed
impairment in appendix 1 of subpart P of part 404 of this chapter, we
will assess all functional limitations caused by your impairment(s),
i.e., what you cannot do because of your impairment(s), to determine if
your impairment(s) is functionally equivalent in severity to any listed
impairment. While all possible impairments are not addressed within the
Listing of Impairments, within the listed impairments are all the
[[Page 6425]]
physical and mental functional limitations, i.e., what a child cannot
do as a result of an impairment, that produce marked and severe
functional limitations. If the functional limitation(s) caused by your
impairment(s) is the same as the disabling functional limitation(s)
caused by a listed impairment, we will find that your impairment(s) is
equivalent in severity to that listed impairment, even if your
impairment(s) is not medically related to the listed impairment. When
we make a determination or decision using this rule, the primary focus
will be on whether your functional limitations are disabling, as long
as there is a direct, medically determinable cause for these
limitations. As with any disabling impairment, the duration requirement
must also be met (see Secs. 416.909 and 416.924(a)).
(b) How we determine functional equivalence. We will compare any
functional limitations resulting from your impairment(s) with the
disabling functional limitations of any listed impairment in part A or
part B of the Listing that includes the same functional limitations.
The listing we use for comparison need not be medically related to your
impairment(s). In paragraphs (b)(1) through (b)(4) of this section we
explain the methods we may use to decide that your impairment(s) is
functionally equivalent in severity to a listing. There is no set order
in which we must consider these methods and we may not consider them
all if we find that your impairment(s) is functionally equivalent in
severity to a listed impairment. We will use any method that is
appropriate to, or best describes, your impairment(s) and functional
limitations. However, we will consider all of the methods before we
determine that your impairment(s) is not functionally equivalent in
severity to any listed impairment. At the initial and reconsideration
levels (except when a disability hearing officer makes the
reconsideration determination), we will also complete a standard form,
Form SSA-538, Childhood Disability Evaluation Form, to show how we
determined whether your impairment(s) is functionally equivalent in
severity to a listed impairment. (See Sec. 416.924(g).)
(1) Limitation of specific functions. We may find that your
impairment(s) is functionally equivalent in severity to a listed
impairment because of extreme limitation of one specific function, such
as walking or talking. (See paragraph (c) of this section for an
explanation of the term ``extreme.'') Some listings also include
criteria requiring limitation of more than one specific function, such
as limitations in walking and talking; each limitation in itself is not
enough to show disability, but the combination of limitations
establishes marked and severe functional limitations. If you have a
limitation of a combination of specific functions that are the same as
those in such a listed impairment, we will find that your impairment(s)
is functionally equivalent in severity to that listing.
(2) Broad areas of development or functioning. Instead of looking
at limitation of specific functions, we may evaluate the effects of
your impairment(s) in broad areas of development or functioning, such
as social functioning, motor functioning, or personal functioning
(i.e., self-care) and determine if your functional limitations are
equivalent in severity to the disabling functional limitations in
listing 112.12 or listing 112.02. If you have extreme limitations in
one area of functioning or marked limitation in two areas of
functioning, we will find that your impairment(s) is functionally
equivalent in severity to a listed impairment. We explain the broad
areas of development or functioning we consider and what the terms
``extreme'' and ``marked'' mean in paragraph (c) of this section.
(3) Episodic impairments. If you have a chronic impairment(s) that
is characterized by frequent illnesses or attacks, or be exacerbations
and remissions, we may evaluate your functional limitations using the
methods in paragraphs (b)(1) and (b)(2) of this section. However, your
functional limitations may vary and we may not be able to use the
methods in paragraphs (b)(1) and (b)(2) of this section. Instead, we
may compare your functional limitation(s) to those in any listing for a
chronic impairment with similar episodic criteria to determine if your
impairment(s) has such a serious impact on your functioning over time
that it is functionally equivalent in severity to one of those
listings. Limitations that are characteristic of episodic impairments
are not necessarily related to a single, specific function. Episodes of
disabling functional limitations may occur with specified frequency
despite treatment. If your episodic impairment(s) produces disabling
functional limitations that are the same as the disabling functional
limitations of a listed impairment with similar episodic criteria, we
will find that you are disabled even though you may be able to function
adequately between episodes.
(4) Limitations related to treatment or medication effects. Some
impairments require treatment over a long period of time (i.e., at
least a year) and the treatment itself (e.g., multiple surgeries)
causes marked and severe functional limitations. Marked and severe
functional limitations may also result from the combined effects of
limitations caused by ongoing treatment and limitations caused by an
impairment(s). In many cases, we will be able to evaluate such
limitations using the methods for evaluating specific functions or
broad areas of development or functioning in paragraphs (b)(1) and
(b)(2) of this section. But we may also compare your functional
limitations(s) to criteria in listings based on treatment (including
side effects of medication) that is itself disabling or that
contributes to functional limitations. If treatment of your
impairment(s) produces functional limitations that are the same as the
disabling functional limitations of a listed impairment, we will find
that your impairment(s) is functionally equivalent in severity to that
listing.
(c) Broad areas of development or functioning. When we determine
functional equivalence based on broad areas of development or
functioning, we will evaluate the functional effects of your
impairment(s) in several areas of development or functioning to
determine if your functional limitations are equivalent in severity to
the disabling functional limitations of listing 112.12 or listing
112.02. However, instead of referring to the areas of development or
functioning in those listings, we will refer to the areas of
development or functioning described in paragraphs (c)(4) and (c)(5) of
this section. (We describe the areas in general terms in paragraph
(c)(4) and then in detail as they apply to specific age groups in
paragraph (c)(5).) If you have marked limitations in two areas of
development or functioning, or extreme limitation in one area, we will
find that your impairment(s) is functionally equivalent in severity to
listing 112.12 or listing 112.02, even if your impairment(s) is a
physical impairment(s) or a combination of physical and mental
impairments. We explain the meaning of the terms ``marked limitation''
and ``extreme limitation'' in paragraph (c)(3) of this section.
(1) How we use the areas of development or functioning. (i) When we
make a finding about functional equivalence, we will consider the
extent of your functional limitations in the areas affected by your
impairment(s). We will also consider how your limitation(s) in one area
affects your development or functioning in other areas.
(ii) In some children, some physical impairments will be evaluated
most
[[Page 6426]]
appropriately only in the areas of motor development or motor
functioning. In others, the effects will be more global. If you have a
physical impairment(s) that causes a functional limitation(s) not
addressed solely in the area of motor development or motor functioning,
we will consider the effects of your impairment in all relevant areas
in which you have limitations from the impairment(s). A physical
impairment(s) may cause limitations in any or all of the areas of
development or functioning.
(2) Other considerations. When we assess your functioning, we will
consider all information in your case record that can help us determine
the effect of your impairment(s) on your physical and mental
functioning. We will consider the nature of your impairment(s), your
age, your ability to be tested given your age, and other relevant
factors (see Secs. 416.924a through 416.924c). We will consider whether
any help that you need from others to enable you to do any particular
activity (e.g., dressing) is appropriate to your age.
(3) Definitions of ``marked'' and ``extreme'' limitations--(i)
Marked limitation means--(A) When standardized tests are used as the
measure of functional abilities, a valid score that is two standard
deviations or more below the norm for the test (but less than three
standard deviations); or
(B) For children from birth to attainment of age 3, functioning at
more than one-half but not more than two-thirds of chronological age;
or
(C) For children from age 3 to attainment of age 18, ``more than
moderate'' and ``less than extreme.'' Marked limitation may arise when
several activities or functions are limited or even when only one is
limited as long as the degree of limitation is such as to interfere
seriously with the child's functioning.
(ii) Extreme limitation means-- (A) When standardized tests are
used as the measure of functional abilities, a valid score that is
three standard deviations or more below the norm for the test; or
(B) For children from birth to attainment of age 3, functioning at
one-half chronological age or less; or
(C) For children from birth to attainment of age 18, no meaningful
functioning in a given area. There may be extreme limitation when
several activities or functions are limited or even when only one is
limited.
(4) Areas of development or functioning. The following are the
areas of development or functioning that may be addressed in a finding
of functional equivalence.
(i) Cognition/communication: The ability or inability to learn,
understand, and solve problems through intuition, perception, verbal
and nonverbal reasoning, and the application of acquired knowledge; the
ability to retain and recall information, images, events, and
procedures during the process of thinking. The ability or inability to
comprehend and produce language (e.g., vocabulary and grammar) in order
to communicate (e.g., to respond, as in answering questions, following
directions, acknowledging the comments of others; to request, as in
demanding action, meeting needs, seeking information, requesting
clarification, initiating interaction; to comment, as in sharing
information, expressing feelings, and ideas, providing explanations,
describing events, maintaining interaction, using hearing that is
adequate for conversation, and using speech (articulation, voice, and
fluency) that is intelligible.
(ii) Motor: The ability or inability to use gross and fine motor
skills to relate to the physical environment and serve one's physical
purposes. It involves general mobility, balance, and the ability to
perform age-appropriate physical activities involved in play, physical
education, sports, and physically related daily activities other than
self-care (see Personal area).
(iii) Social: The ability or inability to form and maintain
relationships with other individuals and with groups; e.g., parents,
siblings, neighborhood children, classmates, teachers. Ability is
manifested in responding to and initiating social interaction with
others, sustaining relationships, and participating in group
activities. It involves cooperative behaviors, consideration for
others, awareness of others' feelings, and social maturity appropriate
to a child's age. Ability is also manifested in the absence of
inappropriate externalized actions (e.g., running away, physical
aggression--but not self-injurious actions, which are evaluated in the
personal area of functioning), and the absence of inappropriate
internalized actions (e.g., social isolation, avoidance of
interpersonal activities, mutism). Social functioning in play, school,
and work situations may involve interactions with adults, including
responding appropriately to persons in authority (e.g., teachers,
coaches, employers) or cooperative behaviors involving other children.
(iv) Responsiveness to stimuli (birth to age 1 only): The ability
or inability to respond appropriately to stimulation (visual, auditory,
tactile, vestibular, proprioceptive).
(v) Personal (age 3 to age 18 only): The ability or inability to
help yourself and to cooperate with others in taking care of your
personal needs, health, and safety (e.g., feeding, dressing, toileting,
bathing; maintaining personal hygiene, proper nutrition, sleep, health
habits; adhering to medication or therapy regimens; following safety
precautions).
(vi) Concentration, persistence, or pace (age 3 to age 18 only):
The ability or inability to attend to, and sustain concentration on, an
activity or task, such as playing, reading, or practicing a sport, and
the ability to perform the activity or complete the task at a
reasonable pace.
(5) Descriptions for specific age groups--(i) Newborns and young
infants (birth to attainment of age 1) Children in this age group are
evaluated in terms of four areas of development. The following are
general descriptions of development typical of this age group.
(A) Cognitive/communicative development (birth to attainment of age
1): Your ability or inability to show interest in, and actively seek
interaction with, your environment, first randomly, then through trial-
and-error, and finally with deliberate and purposeful intent. Your
ability or inability to first recognize, and then attach meaning to,
routine situations and events and gradually to everyday sounds and
eventually to familiar words. Your ability or inability to vocalize,
both imitatively and spontaneously, using vowels and later consonants,
first in isolation, and then in increasingly longer babbling strings.
(B) Motor development (birth to attainment of age 1): Your ability
or inability to explore and manipulate your environment by moving your
body and by using your hands; e.g., by increasingly controlling
position and movement of head, sitting with support, creeping or
crawling, pulling to standing position, walking with hand held,
standing alone briefly, waving small rattle, reaching for or grasping
objects, transferring toys, picking up small objects, attempting to
scribble.
(C) Social development (birth to attainment of age 1): Your ability
or inability to form and maintain intimate relationships, and to
respond to, and eventually initiate reciprocal interactions with, your
primary caregivers (e.g., through games such as pat-a-cake, peek-a-boo,
so big). Your ability or inability to begin to regulate the behavior of
others through intentional behavior (e.g., gestures, vocalizations).
Your ability or inability to recognize and produce a variety of
[[Page 6427]]
emotional cues (e.g., facial expressions, vocal tone changes).
(D) Responsiveness to stimuli (birth to attainment of age 1): Your
ability or inability to form patterns of self-regulation, i.e., to
recognize internal cues (e.g., hunger, pain), and to organize external
experiences (e.g., light, sound, temperature, movement), and to
regulate your reactions to them (e.g., brightening in response to
sights and sounds, enjoying being touched or stroked or held, enjoying
gentle movement in space (``rock-a-bye-baby'')).
(ii) Older infants and toddlers (age 1 to attainment of age 3):
Children in this age group are evaluated in terms of three areas of
development. The following are general descriptions of development
typical of this age group.
(A) Cognitive/communicative development (age 1 to attainment of age
3): Your ability or inability to understand by responding to
increasingly complex requests, instructions, and questions; to refer to
yourself and things around you by pointing and eventually by naming; to
form concepts and to solve simple problems through purposeful
experimentation (e.g., disassembling toys), imitation (immediate and
delayed), and constructive play (e.g., putting things in and out of
containers, building with blocks, exploring spaces); to demonstrate
your knowledge of objects, actions, and situations you have encountered
through pretend play activities; to spontaneously communicate your
wishes or needs by using gestures, an increasing number of intelligible
words, and eventually grammatically correct simple sentences and
questions with increasingly rich and broad vocabulary.
(B) Motor development (age 1 to attainment of age 3): Your ability
or inability to move in your environment using your body with steadily
increasing dexterity and independence from support by others, and your
increasing ability to manipulate small objects and to use your hands to
do, or to get, something that you want or need.
(C) Social development (age 1 to attainment of age 3): Your ability
or inability to exhibit normal dependence upon, and intimacy with, your
primary caregivers, as well as increasing independence from them; to
initiate and respond to a variety of emotional cues; to regulate and
organize emotions and behaviors. Your ability or inability to be
interested in initiating and maintaining interactions with others,
first during brief, yet frequent encounters, and gradually increasing
to longer, sustained ones. Your ability or inability to show interest
in, initially watch, then play alongside, and eventually interact with
similarly aged peers.
(iii) Preschool children (age 3 to attainment of age 6). Children
in this age group are evaluated in terms of five areas of development.
The following are general descriptions of development typical of this
age group.
(A) Cognitive/communicative development (age 3 to attainment of age
6): Your ability or inability to learn, understand, and solve problems
through intuition, perception, verbal and nonverbal reasoning, and the
application of acquired knowledge; your ability or inability to retain
and recall information, images, events, and procedures during the
process of thinking (as in the development of readiness skills for
formal learning (e.g., learning letters, shapes, colors) and skills for
daily living (e.g., putting toys in proper places)). Your ability or
inability to communicate by expressing your needs, feelings, and
preferences; by telling, requesting, predicting, and relating
information; by describing actions and functions; by providing
explanations; by following and giving directions; and by engaging in
conversation in a spontaneous, interactive, and increasingly
intelligible manner, using increasingly complex vocabulary and grammar.
(B) Motor development (age 3 to attainment of age 6): Your ability
or inability to move and use your arms and legs in increasingly more
intricate and coordinated activity, and your ability or inability to
use your hands with increasing coordination to manipulate small objects
during play (e.g., drawing, using building blocks, constructing
puzzles) and physically related daily activities other than self-care
(see Personal area).
(C) Social development (age 3 to attainment of age 6): Your ability
or inability to initiate social exchanges, to organize and regulate
your emotions and behaviors, and to respond to your social environment
through appropriate and increasingly complex interactions, such as
showing affection, sharing, and helping; your ability to relate to
caregivers with increasing independence, to choose your own friends,
and to play cooperatively with other children, one-at-a-time or in a
group.
(D) Personal development (age 3 to attainment of age 6): Your
ability or inability to help yourself and to cooperate with others in
taking care of your personal needs, health, and safety (e.g., bathing,
dressing, maintaining sleep habits, crossing the street with an adult).
(E) Concentration, persistence, or pace (age 3 to attainment of age
6): Your ability or inability to engage in an activity, and to sustain
the activity for a period of time at a reasonable pace (e.g., playing a
simple board game).
(iv) School-age children (age 6 to attainment of age 12). Children
in this age group are evaluated in terms of five areas of functioning.
The following are general descriptions of functioning typical of this
age group.
(A) Cognitive/communicative functioning (age 6 to attainment of age
12): Your ability or inability to learn, understand, and solve problems
through intuition, perception, verbal and nonverbal reasoning, and the
application of acquired knowledge; the ability to retain and recall
information, images, events, and procedures during the process of
thinking, as in formal learning situations (e.g., reading, class
discussions) and in daily living (e.g., telling time, making change).
Your ability or inability to comprehend and produce language (e.g.,
vocabulary, grammar) in order to communicate in social conversation
(e.g., to express feelings, meet needs, seek information, describe
events, share stories), and in learning situations (e.g., to exchange
information and ideas with peers and family or with groups such as your
school classes) in a spontaneous, interactive, sustained, and
intelligible manner, using increasingly complex vocabulary and grammar.
(B) Motor functioning (age 6 to attainment of age 12): Your ability
or inability to use fine and gross motor skills in order to engage in
the physical activities involved in normal mobility, school work, play,
physical education, sports, and other physically related daily
activities other than self-care (see Personal area).
(C) Social functioning (age 6 to attainment of age 12): Your
ability or inability to play alone, with another child, and in a group;
to initiate and develop friendships; to respond to your social
environments through appropriate and increasingly complex interpersonal
behaviors, such as empathizing with others and tolerating differences;
and to relate appropriately to individuals and in group situations
(e.g., siblings, parents or caregivers, peers, teachers, school
classes, neighborhood groups).
(D) Personal functioning (age 6 to attainment of age 12): Your
ability or inability to help yourself and to cooperate with others in
taking care of your personal needs, health, and safety (e.g., eating,
dressing, maintaining personal hygiene, following safety precautions).
[[Page 6428]]
(E) Concentration, persistence, or pace (age 6 to attainment of age
12): Your ability or inability to engage in an activity, and to sustain
the activity for a period of time and at a reasonable pace.
(v) Adolescents (age 12 to attainment of age 18): Children in this
age group are evaluated in terms of five areas of functioning. The
following are general descriptions of functioning typical of this age
group.
(A) Cognitive/communicative functioning (age 12 to attainment of
age 18): Your ability or inability to learn, understand, and solve
problems through intuition, perception, verbal and nonverbal reasoning,
and the application of acquired knowledge; the ability or inability to
retain and recall information, images, events, and procedures during
the process of thinking, as in formal learning situations (e.g.,
composition, classroom discussion) and in daily living (e.g., using the
post office, using public transportation). Your ability or inability to
comprehend and produce language (e.g., vocabulary, grammar) in order to
communicate in conversation (e.g., to express feelings, meet needs,
seek information, describe events, tell stories), and in learning
situations (e.g., to obtain and convey information and ideas) both
spontaneously and interactively, in all communication environments
(e.g., home, classroom, game fields, extra-curricular activities, job),
and with all communication partners (e.g., parents, siblings, peers,
school classes, teachers, employers).
(B) Motor functioning (age 12 to attainment of age 18): Your
ability or inability to use fine and gross motor skills in order to
engage in the physical activities involved in normal mobility, school
work, play, physical education, sports, and other physically related
daily activities other than self-care (see Personal area).
(C) Social functioning (age 12 to attainment of age 18): Your
ability or inability to initiate and develop friendships, to relate
appropriately to individual peers and adults and to peer and adult
groups, and to reconcile conflicts between yourself and peers or family
members or other adults outside your family.
(D) Personal functioning (age 12 to attainment of age 18): Your
ability or inability to help yourself in taking care of your personal
needs, health, and safety (e.g., dressing, bathing, doing laundry,
adhering to medication or therapy regiments).
(E) Concentration, persistence, or pace (age 12 to attainment of
age 18): Your ability or inability to engage in an activity, and to
sustain the activity for a period of time and at a reasonable pace.
(d) Examples of impairments that are functionally equivalent in
severity to a listed impairment. The following are some examples of
impairment and limitations that are functionally equivalent to
listings. Findings of equivalence based on the disabling functional
limits of a child's impairment(s) are not limited to the examples in
this paragraph (d), because these examples do not describe all possible
effects of impairments that might be found to be functionally
equivalent in severity to a listed impairment. As with any disabling
impairment, the duration requirement must also be met (see
Secs. 416.909 and 416.924(a)).
(1) Documented need for major organ transplant (e.g., liver).
(2) Any condition that is disabling at the time of onset, requiring
a series of staged surgical procedures within 12 months after onset as
a life-saving measure or for salvage or restoration of function, and
such major function is not restored or is not expected to be restored
within 12 months after onset of the condition.
(3) Frequent need for a life-sustaining device (e.g., central
venous alimentatin catheter), at home or elsewhere.
(4) Ambulation possible only with obligatory bilateral upper limb
assistance.
(5) Any physical impairment(s) or combination of physical and
mental impairments causing marked restriction of age-appropriate
personal functioning and marked restriction in motor functioning.
(6) Any physical impairment(s) or combination of physical and
mental impairments causing complete inability to function independently
outside the area of one's home within age-appropriate norms.
(7) Requirement for 24-hour-a-day supervision for medical
(including psychological) reasons.
(8) Infants weighing less than 1200 grams at birth, until
attainment of 1 year of age.
(9) Infants weighing at least 1200 but less than 2000 grams at
birth, and who are small for gestational age, until attainment of 1
year of age. (Small for gestational age means a birth weight that is at
or more than 2 standard deviations below the mean or that is below the
3rd growth percentile for the gestational age of the infant.)
(10) In an infant who has not attained age 1 year, and who may be
too young to test, any limitations caused by a physical impairment(s)
or a combination of physical and mental impairments that causes the
same functional limitations in listing 112.12.
(11) Major congenital organ dysfunction which could be expected to
result in death within the first year of life without surgical
correction, and the impairment is expected to be disabling (because of
residual impairment following surgery, or the recovery time required,
or both) until attainment of 1 year of age.
(12) Gastrostomy in a child who has not attained age 3.
(e) Responsibility for determining functional equivalence. In cases
where the State agency or other designee of the Commissioner makes the
initial or reconsideration disability determination, a State agency
medical or psychological consultant or other designee of the
Commissioner (see Sec. 416.1016) has the overall responsibility for
determining functional equivalence. For cases in the disability hearing
process or otherwise decided by a disability hearing officer, the
responsibility for determining functional equivalence rests with either
the disability hearing officer or, if the disability hearing officer's
reconsideration determination is changed under Sec. 416.1418, with the
Associate Commissioner for Disability or his or her delegate. For cases
at the Administrative Law Judge or Appeals Council level, the
responsibility for deciding functional equivalence rests with the
Administrative Law Judge or Appeals Council.
23. Section 416.927 is amended by revising paragraph (a)(1) to read
as follows:
Sec. 416.927 Evaluating medical opinions about your impairment(s) or
disability.
(a) General. (1) If you are an adult, you can only be found
disabled if you are unable to do any substantial gainful activity by
reason of any medically determinable physical or mental impairment
which can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12 months.
(See Sec. 416.905.) If you are a child, you can be found disabled only
if you have a medically determinable physical or mental impairment(s)
that causes marked and severe functional limitations and that can be
expected to result in death or that has lasted or can be expected to
last for a continuous period of not less than 12 months. (See
Sec. 416.906.)
* * * * *
24. Section 416.929 is amended by revising the fourth, fifth, and
last sentences of paragraph (a), the heading
[[Page 6429]]
of paragraph (c), the first and last sentences of paragraph (c)(1), the
second sentence of paragraph (c)(2), the heading and the first and last
sentences of paragraph (c)(4), the reference at the end of paragraph
(d)(1), the sixth and ninth sentences of paragraph (d)(3), and
paragraph (d)(4) to read as follows:
Sec. 416.929 How we evaluate symptoms, including pain.
(a) * * * These include statements or reports from you, your
treating or examining physician or psychologist, and others about your
medical history, diagnosis, prescribed treatment, daily activities,
efforts to work, and any other evidence showing how your impairment(s)
and any related symptoms affect your ability to work (or if you are a
child, your functioning). We will consider all of your statements about
your symptoms, such as pain, and any description you, your physician,
your psychologist, or other persons may provide about how the symptoms
affect your activities of daily living and your ability to work (or if
you are a child, your functioning). * * * We will then determine the
extent to which your alleged functional limitations and restrictions
due to pain or other symptoms can reasonably be accepted as consistent
with the medical signs and laboratory findings and other evidence to
decide how your symptoms affect your ability to work (or if you are a
child, your functioning).
* * * * *
(c) * * * (1) General. When the medical signs or laboratory
findings show that you have a medically determinable impairment(s) that
could reasonably be expected to produce your symptoms, such as pain, we
must then evaluate the intensity and persistence of your symptoms so
that we can determine how your symptoms limit your capacity for work
or, if you are a child, your functioning. * * * Paragraphs (c)(2)
through (c)(4) of this section explain further how we evaluate the
intensity and persistence of your symptoms and how we determine the
extent to which your symptoms limit your capacity for work (or, if you
are a child, your functioning) when the medical signs or laboratory
findings show that you have a medically determinable impairment(s) that
could reasonably be expected to produce your symptoms, such as pain.
(2) * * * Objective medical evidence of this type is a useful
indicator to assist us in making reasonable conclusions about the
intensity and persistence of your symptoms and the effect those
symptoms, such as pain, may have on your ability to work or, if you are
a child, your functioning. * * *
* * * * *
(4) How we determine the extent to which symptoms, such as pain,
affect your capacity to perform basic work activities, or, if you are a
child, your functioning). In determining the extent to which your
symptoms, such as pain, affect your capacity to perform basic work
activities (or if you are a child, your functioning), we consider all
of the available evidence described in paragraphs (c)(1) through (c)(3)
of this section. * * * Your symptoms, including pain, will be
determined to diminish your capacity for basic work activities (or, if
you are a child, your functioning) to the extent that your alleged
functional limitations and restrictions due to symptoms, such as pain,
can reasonably be accepted as consistent with the objective medical
evidence and other evidence.
(d) * * *
(1) * * * (See Sec. 416.920(c) for adults and Sec. 416.924(c) for
children.)
* * * * *
(3) * * * (If you are a child and we cannot find equivalence based
on medical evidence only, we will consider pain and other symptoms
under Sec. 416.926(a)(b)(3) in determining whether you have an
impairment(s) that causes overall functional limitations that are the
same as the disabling limitations of a listed impairment.) * * * If
they are not, we will consider the impact of your symptoms on your
residual functional capacity if you are an adult.* * *
(4) Impact of symptoms (including pain) on residual functional
capacity or, if you are a child, on your functioning. If you have a
medically determinable severe physical or mental impairment(s), but
your impairment(s) does not meet or equal an impairment listed in
appendix 1 of subpart P of part 404 of this chapter, we will consider
the impact of your impairment(s) and any related symptoms, including
pain, or your residual functional capacity, if you are an adult, or, on
your functioning if you are a child. (See Secs. 416.945 and 416.924a
through 416.924e.)
25. Section 416.930 is amended by revising paragraph (a) to read as
follows:
Sec. 416.930 Need to follow prescribed treatment.
(a) What treatment you must follow. In order to get benefits, you
must follow treatment prescribed by your physician if this treatment
can restore your ability to work, or, if you are a child, if the
treatment can reduce your functional limitations so that they are no
longer marked and severe.
* * * * *
26. Section 416.987 and an undesignated center heading are added to
20 CFR part 416, subpart I to read as follows:
Disability Redeterminations for Individuals Who Attain Age 18
Sec. 416.987 Disability redeterminations for individuals who attain
age 18.
(a)(1) Public Law 104-193, The Personal Responsibility and Work
Opportunity Reconciliation Act of 1996, requires that the individuals
described in paragraph (b) of this section must have their eligibility
redetermined.
(2) For these individuals, subject to the provisions of paragraphs
(b)(2) and (b)(3) of this section, we will use the rules for new
applicants; we will not use the rules for determining whether
disability continues set out in Sec. 416.994. If you are an individual
affected by the provisions of this section, we may find that you are
not now disabled even though we previously found that you were
disabled.
(3) Before we begin your disability redetermination, we will notify
you that we are redetermining your eligibility for payments, why we are
redetermining your eligibility, which disability rules we will apply,
that our review could result in a finding that your SSI payments based
on disability could be terminated, that you have the right to submit
medical and other evidence for our consideration during the
redetermination, and that when we make our determination, we will
notify you of our determination, your right to appeal the
determination, and your right to request continuation of benefits
during appeal.
(4) We will notify you in writing of the results of the disability
redetermination. The notice will tell you what our determination is,
the reasons for our determination and your right to request
reconsideration of the determination. If our determination shows that
we should stop your SSI payments based on disability, the notice will
also tell you of your right to request that your benefits continue
during any appeal. The results of an initial disability redetermination
are binding unless you request a reconsideration within the stated time
period, or we revise the initial determination.
(b)(1) We will redetermine the eligibility of individuals
(i) Who became eligible for SSI benefits by reason of disability
prior to attaining age 18, and
[[Page 6430]]
(ii) Who also were eligible for such benefits for the month before
the month in which they attained age 18.
(2) When we make this determination, we will apply the rules in
Secs. 416.920(c)-(f); we will not apply the rules in Sec. 416.920(b) or
Sec. 416.994.
(3) If you are an individual affected by the provisions of this
section, and you are disabled under Sec. 416.920 (d) or (f), and you
are working, we will apply the rules in Secs. 416.260 ff.
(4) We will initiate this disability redetermination during the 1-
year period beginning on your 18th birthday.
(5) If we find that you are not disabled under the rules in
Sec. 416.920 (except Sec. 416.920(b)), your eligibility will end. The
month in which we will find you not disabled is explained in paragraph
(b)(6) of this section; the month your benefits will stop is explained
in paragraph (b)(7) of this section.
(6) If the evidence shows that you are not disabled, we will find
that your disability ended in the earliest of:
(i) The month the evidence shows that you are not disabled under
the rules set out in this section, but not earlier than the month in
which we mail you a notice saying that you are not disabled.
(ii) The first month in which you failed without good cause to
follow prescribed treatment under the rules in Sec. 416.930.
(iii) The first month in which you failed without good cause to do
what we asked. Section 416.1411 explains the factors we will consider
and how we will determine generally whether you have good cause for
failure to cooperate. In addition, Sec. 416.918 discusses how we
determine whether you have good cause for failing to attend a
consultative examination.
27. Section 416.990 is amended by revising paragraphs (b)(9) and
(b)(10), adding paragraph (b)(11), and revising the first and second
sentences of the definition of Permanent impairment in paragraph (c) to
read as follows:
Sec. 416.990 When and how often we will conduct a continuing
disability review.
* * * * *
(b) * * *
(9) Evidence we receive raises a question whether your disability
or blindness continues;
(10) You have been scheduled for a vocational reexamination diary
review; or
(11) By your first birthday, if you are a child whose low birth
weight was a contributing factor material to our determination that you
were disabled; i.e., whether we would have found you disabled if we had
not considered your low birth weight.
(c) * * *
Permanent impairment--medical improvement not expected--refers to a
case in which any medical improvement in a person's impairment(s) is
not expected. This means an extremely severe condition determined on
the basis of our experience in administering the disability programs to
be at least static, but more likely to be progressively disabling
either by itself or by reason of impairment complications, and unlikely
to improve so as to permit the individual to engage in substantial
gainful activity or, if you are a child, unlikely to improve to the
point that you will no longer have marked and severe functional
limitations. * * *
* * * * *
28. Section 416.994a is amended by removing paragraphs (b)(4),
(b)(5), (c)(4), (d) (f)(1), and (f)(2), redesignating paragraphs (e)
through (i) as paragraphs (d) through (h), redesignating paragraphs
(f)(3) and (f)(4) as paragraphs (e)(1) and (e)(2), adding paragraph
(i), revising the section heading and paragraphs (a)(1), revising the
first sentence of the introductory text to paragraph (b), adding two
sentences between the first and second sentences of the introductory
text to paragraph (b), revising paragraphs (b)(1) through (b)(3),
adding one sentence between the first and second sentences of the
introductory text to paragraph (c), revising the third and fourth
sentences of redesignated paragraph (d), revising the introductory text
to redesignated paragraph (e), revising paragraph (e)(1), revising the
second sentence of the introductory text to redesignated paragraph (f),
and revising paragraphs (f)(4) and (g)(5) to read as follows:
Sec. 416.994a How we will determine whether your disability continues
or ends, and whether you are and have been receiving treatment that is
medically necessary and available, disabled children.
(a) * * *
(1) We will first consider whether there has been medical
improvement in your impairment(s). We define ``medical improvement'' in
paragraph (c) of this section. If there has been no medical
improvement, we will find you are still disabled unless one of the
exceptions in paragraphs (e) or (f) of this section applies. If there
has been medical improvement, we will consider whether the
impairments(s) you had at the time of our most recent favorable
determination or decision now meets or medically or functionally equals
the severity of the listing it met or equalled at that time. If so, we
will find you are still disabled, unless one of the exceptions in
paragraphs (e) or (f) of this section applies. If not, we will consider
whether your current impairment(s) are disabling under the rules in
Sec. 416.924. These steps are described in more detail in paragraph (b)
of this section. Even where medical improvement or an exception
applies, in most cases, we will find that your disability has ended
only if we also find that you are not currently disabled.
* * * * *
(b) Sequence of evaluation. To ensure that disability reviews are
carried out in a uniform manner, that decisions of continuing
disability can be made in the most expeditious and administratively
efficient way, and that any decisions to stop disability benefits are
made objectively, neutrally, and are fully documented, we follow
specific steps in determining whether your disability continues.
However, we may skip steps in the sequence if it is clear this would
lead to a more prompt finding that your disability continues. For
example, we might not consider the issue of medical improvement if it
is obvious on the face of the evidence that a current impairment meets
the severity of a listed impairment. * * *
(1) Has there been medical improvement in your condition(s)? We
will determine whether there has been medical improvement in the
impairment(s) you had at the time of our most recent favorable
determination or decision. (The term medical improvement is defined in
paragraph (c) of this section.) If there has been no medical
improvement, we will find that your disability continues, unless one of
the exceptions to medical improvement described in paragraph (e) or (f)
of this section applies.
(i) If one of the first group of exceptions to medical improvement
applies, we will proceed to step 3.
(ii) If one of the second group of exceptions to medical
improvement applies, we may find that your disability has ended.
(2) Does your impairment(s) still meet or equal the severity of the
listed impairment that it met or equaled before? If there has been
medical improvement, we will consider whether the impairment(s) that we
considered at the time of our most recent favorable determination or
decision still meets or equals the severity of the listed impairment it
met or equalled at that time. In making this decision, we will consider
the current severity of the impairment(s) present and documented at the
time of our most recent favorable determination or decision, and the
same listing section used to make that
[[Page 6431]]
determination or decision as it was written at that time, even if it
has since been revised or removed from the Listing of Impairments. If
that impairment(s) does not still meet or equal the severity of that
listed impairment, we will proceed to the next step. If that
impairment(s) still meets or equals the severity of that listed
impairment as it was written at that time, we will find that you are
still disabled, unless one of the exceptions to medical improvement
described in paragraphs (e) or (f) of this section applies.
(i) If one of the first group of exceptions to medical improvement
applies, we will proceed to step 3.
(ii) If one of the second group of exceptions to medical
improvement applies, we may find that your disability has ended.
(3) Are you currently disabled? If there has been medical
improvement in the impairment(s) that we considered at the time of our
most recent favorable determination or decision, and if that
impairment(s) no longer meets or equals the severity of the listed
impairment that it met or equaled at that time, we will consider
whether you are disabled under the rules in Secs. 416.924(c) and (d).
In determining whether you are currently disabled, we will consider all
impairments you now have, including you did not have at the time of our
most recent favorable determination or decision, or that we did not
consider at that time. The steps in determining current disability are
summarized as follows:
(i) Do you have a severe impairment or combination of impairment?
If there has been medical improvement in your impairment(s), or if one
of the first group of exceptions applies, we will determine whether
your current impairment(s) is severe, as defined in Sec. 416.924(c). If
your impairment(s) is not severe, we will find that your disability has
ended. If your impairment(s) is severe, we will then consider whether
it meets or medically equals the severity of a listed impairment.
(ii) Does your impairment(s) meet or medically equal the severity
of any impairment listed in appendix 1 of subpart P of part 404 of this
chapter? If your current impairment(s) meets or medically equals the
severity of any listed impairment, as described in Secs. 416.925 and
416.926, we will find that your disability continues. If not, we will
consider whether it functionally equals the severity of a listed
impairment.
(iii) Does your impairment(s) functionally equal the severity of
any listed impairment? If your current impairment(s) functionally
equals the severity of any listed impairment, as described in
Sec. 416.926a, we will find that your disability continues. If not, we
will find that your disability has ended.
(c) * * * Although the decrease in severity may be of any quantity
or degree, we will disregard minor changes in your signs, symptoms, and
laboratory findings that obviously do not represent medical improvement
and could not result in a finding that your disability has ended.
* * * * *
(d) * * * If so, your benefits will continue unless one of the
second group of exceptions applies (see paragraph (f) of this section).
If not, we will determine whether an attempt should be made to
reconstruct those portions of the missing file that were relevant to
our most recent favorable determination or decision (e.g., school
records, medical evidence from treating sources, and the results of
consultative examination). * * *
(e) First group of exceptions to medical improvement. The law
provides certain limited situations when your disability can be found
to have ended even though medical improvement has not occurred, if your
impairment(s) no longer results in marked and severe functional
limitations. These exceptions to medical improvement are intended to
provide a way of finding that a person is no longer disabled in those
situations where, even though there has been no decrease in severity of
the impairment(s), evidence shows that the person should no longer be
considered disabled or never should have been considered disabled. If
one of these exceptions applies, we must also show that your
impairment(s) does not now result in marked and severe functional
limitations, before we can find you are no longer disabled, taking all
your current impairments into account, not just those that existed at
the time of our most recent favorable determination or decision. The
evidence we gather will serve as the basis for the finding that an
exception applies.
(1) Substantial evidence shows that, based on new or improved
diagnostic techniques or evaluations, your impairment(s) is not as
disabling as it was considered to be at the time of the most recent
favorable decision. Changing methodologies and advances in medical and
other diagnostic techniques or evaluations have given rise to, and will
continue to give rise to, improved methods for determining the causes
of (i.e., diagnosing) and measuring and documenting the effects of
various impairment on children and their functioning. Where, by such
new or improved methods, substantial evidence shows that your
impairment(s) is not as severe as was determined at the time of our
most recent favorable decision, such evidence may serve as a basis for
a finding that you are no longer disabled, provided that you do not
currently have an impairment(s) that meets or equals the severity of
any listed impairment, and therefore results in marked and severe
functional limitations.
* * * * *
(f) * * * In these situations, the determination or decision will
be made without a finding that you have demonstrated medical
improvement or that you are currently not disabled under the rules in
Sec. 416.924. * * *
(4) You fail to follow prescribed treatment which would be expected
to improve your impairment(s) so that it no longer results in marked
and severe functional limitations. If treatment has been prescribed for
you which would be expected to improve your impairment(s) so that it no
longer results in marked and severe functional limitations, you must
follow that treatment in order to be paid benefits.
(g) * * *
(5) The first month in which you were told by your physician that
you could return to normal activities, provided there is no substantial
conflict between your physician's and your statements regarding your
awareness of your capacity, and the earlier date is supported by
substantial evidence; or
* * * * *
(i) Requirement for treatment that is medically necessary and
available. If you have a representative payee, the representative payee
must, at the time of the continuing disability review, present evidence
demonstrating that you are and have been receiving treatment, to the
extent considered medically necessary and available, for the
condition(s) that was the basis for providing you with SSI benefits,
unless we determine that requiring your representative payee to provide
such evidence would be inappropriate or unnecessary considering the
nature of your impairment(s). If your representative payee refuses
without good cause to comply with this requirement, and if we decide
that it is in your best interests, we may pay your benefits to another
representative payee or to you directly.
(1) What we mean by treatment that is medically necessary.
Treatment that is medically necessary means treatment that is expected
to improve or restore
[[Page 6432]]
your functioning and that was prescribed by a treating source, as
defined in Sec. 416.902. If you do not have a treating source, we will
decide whether there is treatment that is medically necessary that
could have been prescribed by a treating source. The treatment may
include (but is not limited to)--
(i) Medical management;
(ii) Psychiatric, psychological, or psychosocial counseling;
(iii) Physical therapy; and
(iv) Home therapy, such as administering oxygen or giving
injections.
(2) How we will consider whether medically necessary treatment is
available. When we decide whether medically necessary treatment is
available, we will consider such things as (but not limited)--
(i) The location of an institution or facility or place where
treatment, services, or resources could be provided to you in
relationship to where you reside;
(ii) The availability and cost of transportation for you and your
payee to the place of treatment;
(iii) Your general health, including your ability to travel for the
treatment;
(iv) The capacity of an institution or facility to accept you for
appropriate treatment;
(v) The cost of any necessary medications or treatments that are
not paid for by Medicaid or another insurer or source; and
(vi) The availability of local community resources (e.g., clinics,
charitable organizations, public assistance agencies) that would
provide free treatment or funds to cover treatment.
(3) When we will not require evidence of treatment that is
medically necessary and available. We will not require your
representative payee to present evidence that you are and have been
receiving treatment if we find that the condition(s) that was the basis
for providing you benefits is not amenable to treatment.
(4) Removal of a payee who does not provide evidence that a child
is and has been receiving treatment that is medically necessary and
available. If your representative payee refuses without good cause to
provide evidence that you are and have been receiving treatment that is
medically necessary and available, we may, if it is in your best
interests, suspend payment of benefits to the representative payee, and
pay benefits to another payee or to you. When we decide whether your
representative payee had good cause, we will consider factors such as
the acceptable reasons for failure to follow prescribed treatment in
Sec. 416.930(c) and other factors similar to those describing good
cause for missing deadlines in Sec. 416.1411.
(5) If you do not have a representative payee. If you do not have a
representative payee and we make your payments directly to you, the
provisions of this paragraph do not apply to you. However, we may still
decide that you are failing to follow prescribed treatment under the
provisions of Sec. 416.930, if the requirements of that section are
met.
29. Section 416.998 is revised to read as follows:
Sec. 416.998 If you become disabled by another impairment(s).
If a new severe impairment(s) begins in or before the month in
which your last impairment(s) ends, we will find that your disability
is continuing. The new impairment(s) need not be expected to last 12
months or to result in death, but it must be severe enough to keep you
from doing substantial gainful activity, or severe enough so that you
are still disabled under Sec. 416.994, or, if you are a child, to
result in marked and severe functional limitations.
[FR Doc. 97-3317 Filed 2-10-97; 8:45 am]
BILLING CODE 4190-29-M
