TN 7 (09-97)
DI 33025.070 Childhood Disability Redetermination Cases Under P.L. 104-193
Pursuant to P.L. 104-193, SSA must perform a disability redetermination for beneficiaries who were eligible for SSI based on disability as of August 22, 1996, and who were found eligible for benefits based on an individualized functional assessment (IFA) or consideration of maladaptive behaviors in the personal/behavioral domain. The disability redetermination consists of a new determination of the individual's eligibility based on disability using the rules for new applicants appropriate to the individual's age, except for rules pertaining to performance of substantial gainful activity. Although the initial determination in such a claim is not a CDR cessation, individuals found not disabled as a result of a childhood disability redetermination may appeal the initial determination to the reconsideration level.
Reconsiderations of childhood disability redeterminations will be conducted under the regulations that govern the disability hearing process. See 20 CFR §§416.1414-416.1418. However, the medical improvement review standard does not apply.
Except as set out in this section, childhood disability redetermination reconsiderations will be conducted according to DI 33001.000..
The DDS will first perform a case review to determine whether a fully favorable determination can be issued based on the evidence in the record.
If a fully favorable determination cannot be reached based on the DDS's case review, “ADVISORY” [in bold, upper case letters] will be annotated on the SA-538-F6 (Childhood Disability Evaluation Form) in section III, Explanation of Findings or in section IV, Consultant’s Notes of the SSA-2506-BK ( Psychiatric Review Technique Form).
The DDS or DHU will prepare a SSA-887 (Summary of Evidence).
The DHU will send the claimant or his or her representative, if any, notice of the time and place of the disability hearing at least 20 days before the date of the hearing.
The claimant or his or her representative, if any, should be encouraged to review the evidence in the case file on the date of the hearing or at an earlier time.
If, for any reason, additional evidence is obtained after a hearing, and all evidence, taken together, supports an unfavorable determination, the claimant is notified, in writing, and given an opportunity to review and comment on the additional evidence within 10 days of the date the notice is received, unless there is good cause found for granting additional time.
D. Procedure - pre-hearing
1. File Review
Upon receipt in the DHU, screen the file to determine whether the prior determination or decision shows that the claimant's condition met, or medically or functionally equaled a listing. The review is intended to decide whether the case actually belongs in the childhood disability redetermination workload. Follow the special instructions in DI 23570.025 if the claim involves oppositional defiant disorder, conduct disorder, personality disorder, or attention deficit hyperactivity disorder or attention deficit disorder. If the claim was miscoded and should not have been alerted, follow DI 23570.025C. to correct the record and prepare a DHO decision advising the claimant that his or her claim should not have been alerted for review and that his or her cessation has been reversed.
NOTE:The purpose of this review is to identify claims which were clearly miscoded and erroneously alerted for review; do not reevaluate the evidence. The general instructions on reopening set out in DI 27500.000 apply if the basis for the prior determination of disability is questioned.
2. Scheduling notice
At least 20 days prior to the date of the scheduled hearing, send the Disability Hearing Scheduling Notice, see DI 33010.080 -DI 33010.085. As applicable, send the scheduling notice or a copy to the representative payee, authorized representative, attorney, or legal guardian.
Add the following language to the notice under the heading of “You May Bring Someone With You To The Hearing” : “You may bring doctors, teachers, or other witnesses to the hearing to tell us about (your or (claimant's name)'s) condition. You may also bring your representative, if you have one.
To keep the hearing orderly, we ask that you bring only those people who need to tell us about (your or (claimant's name)'s) condition."
3. Failure issues
Follow the instructions in DI 25205.015 and DI 33015.021, if the claimant, or the person or agency pursuing the appeal on behalf of the claimant fails to attend the hearing or otherwise fails to cooperate, e.g., ascertain the reason for failure to cooperate and, if necessary, seek the assistance of another responsible adult or agency.
If the DHO is unsuccessful in getting the claimant, or the person or agency pursing the appeal on behalf of the claimant to cooperate, and is unable to obtain the assistance of another responsible adult or agency, the DHO will prepare a determination based on the evidence in the record, documenting the attempts made to obtain the additional information.
E. Procedure - fully favorable childhood disability redetermination DHO decisions
1. Childhood disability standard
During the hearing prepare an SSA-1204 (Disability Hearings Officer’s Report of Disability Hearing) to ensure that the childhood disability standard is considered. Delete or cross-out any reference to the comparison point date (CPD) or the medical improvement review standard (MIRS). These concepts are not applicable in childhood disability redetermination cases.
2. Favorable determination
Complete an SSA-4268-U4/C4 (Explanation of Determination) or SSA-1207 (Disability Hearings Officer’s Decision) to document a fully favorable determination. Regardless of which form the DHO uses, concisely discuss the evidence and provide a rationale that explains why the evidence shows that the claimant's condition meets, medically equals, or functionally equals the severity of a listed impairment. If the determination is documented on an SSA-1207 (Disability Hearings Officer’s Decision), place the discussion of the evidence and rationale in the “Analysis of Evidence and Findings of Fact” section. There is no new supplemental form for the new childhood disability standard.
NOTE:In preparing their determinations, DHOs should follow the SSA-538-F6 (Childhood Disability Evaluation Form) format.
3. Determination reached
Complete an SSA-832 (Cessation or Continuance of Disability of Blindness Determination and Transmittal) in every case in which a determination is reached. Enter in the remarks section, “This determination is based on the hearing held on (date of hearing) .”
F. Procedure - partially or fully unfavorable childhood disability redetermination DHO decision
1. Childhood disability standard
During the hearing prepare an SSA-1204 (Disability Hearings Officer’s Report of Disability Hearing) to ensure that the childhood disability standard is considered. Delete or cross-out any reference to the comparison point date (CPD) or the medical improvement review standard (MIRS).
2. Partial or fully unfavorable determination
Complete an SSA-1207 (Disability Hearings Officer’s Decision) to document a partially or fully unfavorable determination. In the “Analysis of Evidence and Findings of Fact” section, concisely discuss the evidence and provide a rationale showing that each of the methods for determining functional equivalence were considered in accordance with DI 25225.001. There is no new supplemental form for the new childhood disability standard. In preparing their determinations, DHOs should follow the SSA-538-F6 (Childhood Disability Evaluation Form) format.
The DHO should generally use the following format in preparing Childhood Disability Redeterminations.
State basis for hearing, e.g., “Pursuant to P.L. 104-193, the claimant's disability was redetermined, and he/she was found to be no longer disabled and not eligible for disability benefits. The claimant appeals and states that he/she continues to be disabled because of (insert current allegation(s)).”
Discuss the documentary evidence/facts relevant to making the determination in the case (signs, symptoms, and laboratory findings, including test scores and interpretations, professional observations and opinions, lay descriptions of claimant's functioning, kinds and effects of treatment, and any other necessary information). If there are inconsistencies in the documentary evidence (e.g., between two doctors' reports) that would affect the outcome, explain how the inconsistencies were resolved, i.e., why one piece of evidence received more weight than another.
Discuss testimony and observations from the hearing, addressing, as appropriate, credibility and the weight given to any statements.
Using the facts described above, make an analysis at each of the following review steps, as required. The methods for evaluating functional equivalence are not a sequence and do not have to be considered in any particular order. Once a child is found disabled, there is no need to address any subsequent steps; however, each of the methods for determining functional equivalence must be addressed before denying a claim.
Disability Hearing Officers may incorporate the following language into their decisions in assessing disability under the 1996 childhood disability standard. This language provides an outline for the determination which will have to be supported at each step with an explanation based on the case facts.
“In making a determination of disability, the hearing officer reviews the following evaluation steps as required by SSA regulations.
1. The claimant does (not) have a severe impairment. (NOTE: To be “severe” the claimant's impairment(s) must have more than a minimal effect on the claimant's ability to function. If the claimant's impairment(s) is not severe, the claimant will be found not disabled and the hearing officer will not continue to the next review step.)
2. The claimant does (not) have an impairment or combination of impairments that meets or medically equals an impairment listed in 20 C.F.R., Part 404, Subpart P, Appendix 1.
3. The claimant does (not) have an impairment or combination of impairments that is functionally equivalent to an impairment listed in 20 C.F.R., Part 404, Subpart P, Appendix 1. In reaching this conclusion, the Hearing Officer considered the following methods of evaluating functional equivalence and concludes as follows: (NOTE: If the claim is being denied, each step must be considered. However, if a claim can be allowed using one of the following four functional equivalence methods, the other methods need not be considered.)
(a) The claimant's impairment(s) does (not) produce limitations of specific function(s) that is the same as that in any listed impairment.
(b) The claimant's impairment(s) does (not) produce disabling functional limitation due to frequent illnesses, attacks, or exacerbations and remissions that are the same as the disabling functional limitations of any listed impairment.
(c)The claimant does (not) experience functional limitations as a result of long-term treatment that are the same as those in any listed impairment with criteria based on treatment.
(d) The claimant's functional ability is (not) extremely limited in at least one or markedly limited in at least two of the following areas: cognitive/ communicative, motor, social, responsiveness to stimulus (only for birth to attainment of age 1), person (only for age 3 to attainment of age 18), and concentration, persistence, or pace (only for age 3 to attainment of age 18).”
3. Determination reached
Complete an SSA-832 (Cessation or Continuance of Disability or Blindess Determination and Transmittal) in every case in which a determination is reached. Enter in the remarks section, “This determination is based on the hearing held on (date of hearing) .” See DI 23570.025 and DI 25225.005 for any applicable special coding and medical diary instructions.
G. Procedure - DHO cover notice
Prepare and release the DHO cover notice with the DHO decision. See DI 33015.025, and DI 33095.100-DI 33095.116. Do not use a fill-in that refers to medical improvement. In most cases, the appropriate fill-in will be, “We find that (name of claimant) is no longer eligible for payments.”
NOTE:Send only the DHO cover notice to a representative payee who is not the claimant's parent or legal guardian. Representative payees who are not the claimant's parent or legal guardian are not entitled to receive a copy of the DHO decision.