DI 21501.040 California APTD/AB State Plan
A. Blindness — definition of blindness (41-104)
Economic blindness as used to determine eligibility is:
In general, central visual acuity of 20/200 or less in the better eye, with the aid of the best possible correcting glass.
Central visual acuity better than 20/200 if the widest diameter of the remaining visual field is not greater than 20 degrees.
If central visual acuity is better than 20/200 and remaining peripheral fields exceed 20 degrees, but are so placed, or shaped, as to be of little use, or in an operated eye the disability inherent in the eye condition indicates greater disability than the usual 20/200, the State Ophthalmologist shall use his discretion in recommending approval for aid if the report of pathology is of such character as to prevent applicant from providing himself with the necessities of life.
B. Permanent and total disability
1. Definition of permanent and total disability (41-303)
a. General requirement (1.)
The applicant shall have a major medically verified physical or mental impairment or combination of impairments. These impairments shall be permanent and total and substantially prevent him from engaging in a useful occupation within his competence, such as gainful employment or homemaking.
b. Qualifying medical impairments (.11)
Any major physical or mental condition or disease which is irremediable in nature and expected to last throughout the lifetime of the individual and which totally disables the individual may be considered a disability for the purpose of APTD.
c. Determination of disability (.2)
The disability determination takes into account not only the diagnosis but the stage of the impairment, the person's response to his illness or condition, remedial services available to the individual and the amount of risk involved in possible treatment.
d. Permanent disability (.21)
For the disability to be considered permanent, the impairment(s) of major importance must be expected to continue throughout the lifetime of the individual; that is: (1) likely to be of long continued or indefinite duration or in a terminal stage; and (2) unlikely to improve through any known and generally accepted medical treatment or be diminished through such treatment to the extent that it ceases to be of major importance, even though partial improvement may be expected.
The fact that vocational rehabilitation or work training is or may be a possibility for the applicant does not preclude a finding of permanent disability.
.211 Persons shall not be required to take major risks in order to qualify for aid, with special reference to surgery or controversial or dangerous medicines. Bona fide religious objections to treatment shall be respected.
.212 Obesity, alcoholism, or continued smoking in the face of a diagnosis which contraindicates, shall not disqualify the person for aid if his medical condition has reached a level of severity which indicates disability.
.213 The judgment concerning performance shall depend on how advanced the condition is and the extent of the involvement at the time of the application. Some illnesses are subject to fluctuations. Others are held in check temporarily by treatment, e.g., hormone therapy or surgery in certain cancer cases.
e. Total disability (.22)
To be totally disabled, the person must be substantially prevented by reason of his permanent impairment from engaging in a useful occupation within his competence.
f. Substantially prevents (.221)
A person is substantially prevented from engaging in a useful occupation (1) if he is unable to perform activities required by gainful employment well enough, for a sufficient number of hours or with sufficient regularity to receive substantial and predictable remuneration for such employment; or (2) with regard to the homemaker, the disability must be such that it prevents the person from performing consistently and adequately a significant combination of homemaking activities within acceptable standards of decency and health.
g. Competence (.222)
Competence means that the impairment substantially prevents performance of activities required by any useful occupation for which the individual is fitted by training, education, or work experience and which exists in the community. Competence is based on age, education, training and psychological make-up.
2. Definition of useful occupation (.3)
a. Useful occupation — employment (.31)
Useful occupation refers to gainful employment for which there is a return in wages. It does not include activities primarily of a therapeutic or rehabilitative value, even though there may be some money return for the activity. A useful occupation may be seasonal if performed regularly each year.
.311 “Make Work” which exists only to give employment to a particular individual shall not be regarded as a useful occupation.
.312 Employment in a sheltered workshop may or may not be considered a useful occupation depending upon the workshop auspices, wages earned, number of hours worked daily, similar jobs available in a competitive setting job performance, etc.
b. Useful occupation — homemaking (.32)
A homemaker is defined as a person of either sex who carries homemaking responsibilities for at least one person in addition to himself. A homemaker is evaluated against both employability and ability to carry the major duties of homemaking. A person living alone shall not be evaluated as a homemaker.
A person who has carried the responsibilities for both homemaking and employment and is unable to continue employment shall be evaluated against homemaking. Homemaking responsibilities include maintenance of the home in an acceptable state of cleanliness, laundry, preparation of meals, procurement of necessary supplies. Activities of homemaking also include: the care of young children, such as lifting and carrying infants, and in an emergency, preschool children, accompanying children to community activities; to sources of medical care; and in primitive settings, carrying water or fuel and building fires. A finding that a person is unable to perform the occupation of homemaking shall require a determination that he is unable to perform a significant combination or grouping of homemaking activities because of his permanent impairment.
3. Summary of the U.S. District Court ruling on the interpretation of the California State plan as it pertains to the ability to be a homemaker
The following summary of a U.S. District Court ruling is not part of the California State plan but is herein included as an interpretation of the State plan criteria.
[17,108]Haxel Doffer, et al, Plaintiff, and Grace Smith, Intervening Plaintiff v. Robert Martin, Director of the Department of Social Welfare of the State of California, et al. U.S. District Court, Northern District of California. No C-70919 LHB. Memorandum and Order filed March 7, 1973. Before Hamlin, Cir. J., East and Burke, D. JJ.
Disabled Persons—Eligibility—Performance of “Homemaker” Tasks Around Own Home.—The California welfare regulations that provided that, in connection with the state's program of assistance to needy permanently and totally disabled persons, if a person who had carried the responsibilities for both homemaking and employment was unable to continue employment, such person should be evaluated against homemaking where contrary to the stated purpose of the federal statute. California Manual of Policies and Procedures, Secs. 42-203.22, 42-203.31, 42-203.32. The purpose of the statute (42 U.S.C. 1351) was to provide assistance to needy persons who could not, because of their disabilities, earn a living. Moreover, the implementing federal regulations intended to insure that applicants for aid be evaluated for their future earning potential against their own personal backgrounds. 45 CFR 233.80. California's regulations could deny aid to such persons. The regulations held an applicant up to two separate tests of total disability. First, such an applicant was held to a test of employability. Even where the state welfare agency might find that an applicant was unable to continue employment, it moved on to determine whether the same person could keep house. This dual and cumulative evaluation established California's adopted view that there were certain persons who, even though they were unable to work, were prevented from receiving assistance because they could perform some combination of activities that kept homes in livable order. Nothing could be further from the purpose of the federal statute. Therefore, the regulation was repugnant to the funding legislation and, therefore, was violative of the Supremacy Clause. It appeared that the state welfare agency had adopted a shortcut in evaluating the applications of persons who had a history of homemaking, which shortcut was used in this proceeding. Instead of beginning with an inquiry as to the applicant's employability, an immediate finding was made with respect to that person's ability to perform homemaking activities. Since the complainants in the proceeding were found fully capable of performing homemaking duties under the short-cut method, there was no clear indication as to whether or not they were employable under California's definition of that term. Had the referee foreseen the issue raised here, he might well have inquired into the matter and found that these complainants' were employable and ineligible on that ground. Accordingly, the issue of complainants standing remained vague. Although the state regulations were violative of the Supremacy Clause, it was not appropriate to grant any relief to the complainants at this time. The matter, therefore, was remanded to the state welfare agency for redetermination of complainants' physical ability to engage in remunerative employment. Employability was to be the sole issue. Back reference: RS 01402.070. Available from National Clearinghouse for Legal Services (4071).