TN 1 (02-01)

DI 25205.020 Failure Issues

A. Introduction

In general, the failure issue policies and procedures applicable to adult cases also apply in child cases. However, certain special efforts and modifications, described below, are required. These instructions supplement those in DI 23007.000 and DI 23010.000.

B. Definitions

The following definitions apply to this section only.

1. Applicant

The applicant is the person or agency filing on behalf of the child.

2. Claimant

The claimant is the child. The child can be the applicant as well as the claimant when filing on his or her own behalf.

3. Responsible Adult

A responsible adult is an individual who takes part in caring for the child, and, preferably but not invariably, with whom the child resides.

4. Responsible Agency

A responsible agency is one that has legal custody of the child.

C. Policy

1. Failure Not An Automatic Basis for Denial or Termination

Refusal or failure by the applicant to take the child to a CE, or to provide other information needed (e.g., names and addresses of treating sources, signed medical releases) is not an automatic basis for a denial or termination action. The applicant is responsible for cooperating in providing the evidence needed to make a determination, but because children are not ordinarily in a position to pursue their claims independently, special efforts must be made in cases of noncooperation to identify and contact another adult or agency responsible for the child's care. If necessary information cannot be obtained from the applicant or another responsible adult or agency, a determination will be made based on the evidence in file.

2. When Contact With Another Responsible Adult or Agency Should Be Considered

If the applicant is not providing the required information or cooperation, the assistance of another responsible adult or agency should be considered. Individuals or agencies that do not have responsibility for a child should not be asked to intervene in a failure-issue case. For instance, it would be inappropriate to ask a child's teacher to take the child to a CE. (See DI 25205.020C.4. if the applicant appears unable to pursue the claim.)

a. Child Lives With the Uncooperative Applicant and Another Parent, Relative, or Other Adult.

If the child lives with the applicant and a parent, the parent should be contacted. If the child lives with both parents, one of whom is the uncooperative applicant, the other parent should be contacted. (A noncustodial parent; i.e., a parent who does not live with the child, should not be contacted unless named by the applicant as a potential source of assistance.)

Besides the applicant, one or more other adults who are not the child's parents but who live in the same household may, in some cases, take responsibility for a child. In failure-issue situations, if the uncooperative applicant, or information in the file, indicates that another adult in the household does take responsibility for the child's care, the DDS should contact that individual to request the needed information or cooperation. (The DDS should be alert to whether there may be such other responsible adults in the household in any contacts with an applicant who has not yet provided all necessary information.)

b. Child Lives With Someone Other Than the Applicant

If the applicant is not cooperating, and the child lives with someone else, that person should be contacted. For example, if the child's mother is the applicant but the child lives with his or her grandmother, the grandmother may be able to assist the child in pursuing the claim.

c. Child Regularly Cared For In Another Household

If the child is frequently in the care of a relative (or possibly a non-relative, if there is clearly a parental-type relationship with the child) who does not live in the same household, that person may be an appropriate source of assistance.

d. Child Welfare or Other Agency Has Legal Custody of the Child

An agency with legal custody is responsible for providing the information we need, even if the applicant is someone else; e.g., a foster parent. Contact is normally with whomever has physical custody, but if that person is uncooperative, the needed information or assistance must be requested from the party with legal custody.

3. Which Responsible Party To Contact

The DDS is responsible for making a reasonable judgment, based on the information in file and/or provided by the applicant, as to whether there may be another responsible party who can help the child pursue the claim.

The DDS should exercise its judgment as to who is most likely to assist in pursuing the claim. A child welfare or other agency with legal custody is the responsible party of choice, but, if an agency does not have legal custody, the DDS may find that the child lives with and/or is cared for by several adults, any one of whom may be willing and able to assist the child in pursuing the claim.

If available information indicates there are potential sources of assistance, but does not suggest a particular individual, a telephone call to the household may in many cases be the most productive approach to determining from whom to request assistance. If there is more than one party who may be able and willing to assist, the DDS should use its discretion in deciding which to contact.

A good-faith effort to locate and contact a responsible party is required. If efforts to contact a potential responsible party are unsuccessful, or the party contacted proves unable or unwilling to provide the needed information/cooperation, the DDS is not required to conduct a further search for yet another potential responsible party.

4. Possible Applicant Inability to Pursue Claim

a. Applicant Appears Unable to Pursue

In a child case, lack of cooperation may result from applicant inability to understand what is required or otherwise to pursue the claim. If it appears the applicant may be unable to pursue the claim, additional efforts to explain what is needed and to elicit cooperation should usually be made before turning to another responsible adult. Specifically, for failure to have the child attend a CE, an applicant who appears to be having difficulty understanding what is required should be recontacted as in DI 23007.010C.2. (regardless of whether the child's impairment is mental or nonmental).

However, if further contact with such an applicant appears unlikely to be productive, and the file indicates there is another responsible party available, the DDS may elect to solicit assistance from the other responsible party first.

The DDS should consider whether an applicant is able to pursue a child's claim if the DDS becomes aware of facts or behavior that strongly indicate the applicant is unable to comply with our requests. Issues that would not ordinarily raise a question of ability to pursue include poor handwriting, poor spelling, poor grammar, slowness in responding to questions, lack of education, etc. A question regarding ability to pursue may be raised by current involvement with a child welfare agency, or if the DDS becomes aware that the applicant is an SSA beneficiary for whom a representative payee has been appointed.

b. Possible Payee Issue

If an applicant is unable to adequately pursue the claim, this may also raise a question of whether the applicant is the appropriate payee, should the claim be allowed. If a child's claim is allowed in such a case, the FO should be alerted to the possible payee issue.

5. Failure to Follow Prescribed Treatment

DI 23010.005 and DI 23010.020 in particular, explain the conditions under which a decision based on failure to follow prescribed treatment can be made.

D. Procedure

1. Contact – General

The FO will usually have documented the file that the applicant was asked for the name of another adult who helps care for the child and who could assist in pursuing the claim (DI 11005.030B.2.).

During any contact with an applicant who:

  • was not asked by the FO to provide the name of another person, and

  • who has not yet provided all the information or cooperation needed to pursue the claim,

ask whether there is another adult who helps care for the child and who might be willing to help obtain necessary information. It is not necessary to ask the applicant for another responsible adult who can help if the FO has already done so.

In possible failure situations, make two attempts at different times on different days to contact the applicant by telephone. A busy signal does not constitute an attempt. If telephone contact is unsuccessful or not possible, send a call-in letter with a followup letter sent between 10 and 20 days after the initial request. Document all contact efforts.

2. Applicant Uncooperative – Contact With Another Responsible Party

If the applicant is not cooperative, review the file (or ask the applicant directly, if possible), for indications that one of the other parties discussed in DI 25205.020B.3. is available. A person named by the applicant in the initial FO interview (see DI 11005.030B.2.) is the preferred source of assistance (unless a child welfare or other agency has legal custody). If the FO has not documented the file that they attempted to obtain the name of another responsible adult, the DDS must make these special efforts to find another responsible adult.

If a potential source of assistance is identified, initiate contact with that party to find out whether cooperation can be obtained, following the same general procedures as with the applicant. This includes making at least two calls at different times on different days, and a call-in letter and followup, if necessary.

3. Good Cause

Normal good cause considerations apply; e.g., if the child cannot attend a CE due to a death in the family, illness, or other valid reason, but the applicant or other responsible party is willing to make sure the child attends a CE, reschedule the CE. See DI 23007.010D.3.

4. Applicant Appears Unable to Pursue Claim

If it appears the applicant may be unable to understand what is required or otherwise to pursue the claim, as described in DI 25205.020C.4., make an extra contact to try to explain the information needed. If this is unsuccessful, treat like any other failure to cooperate situation--review the file for indications of another responsible party. (This step—looking for another responsible party--may come first if further contact with the applicant seems unlikely to be productive.)

If an applicant is unable to adequately pursue a child's claim, and the child's claim is allowed, alert the FO of a potential payee issue.

5. Unsuccessful Contacts

If there is no response to the attempted telephone contacts and call-in letters, no other responsible party per DI 25205.020B. (or the other party is also uncooperative in providing the needed information), and the needed evidence cannot be obtained from other sources, make a decision based on the evidence in file.

6. Refusal or Failure to Appear For a CE

If the applicant and any other responsible party refuse or fail to have the child appear for a CE, follow the procedures in DI 23007.009 or DI 23007.010, as modified by these instructions.

7. Failure to Cooperate Other Than Appearing For a CE

If the applicant and any other responsible party fail to comply with our request for evidence or information, follow the procedures in DI 23007.005 and DI 23010.010, as modified by these instructions.

8. Failure to Follow Prescribed Treatment

If failure to follow prescribed treatment is an issue, contact the applicant or other responsible party and follow the policies and procedures in DI 23010.005 and DI 23010.010, and <