Identification Number:
DI 28075 TN 9
Intended Audience:See Transmittal Sheet
Originating Office:ORDP ODP
Title:Special CDR Issues
Type:POMS Transmittals
Program:All Programs
Link To Reference:
 
DELAYED IMPLEMENTATION TRANSMITTAL (DIT)
DIT's ARE FOR FUTURE IMPLEMENTATION AND DISPLAYED
FOR INFORMATIONAL AND TRAINING PURPOSES ONLY

PROGRAM OPERATIONS MANUAL SYSTEM
Part DI – Disability Insurance
Chapter 280 – Continuing Disability Review Cases
Subchapter 75 – Special CDR Issues
Transmittal No. 9, 09/24/2019

Audience

PSC: CS, DE, DEC, DTE, IES, RECONR, SCPS, TSA, TST;
OCO-OEIO: CR, ERE, FDE, RECONE;
OCO-ODO: BET, CR, CTE, CTE TE, DE, DEC, DS, PETE, PETL, RECONE;
ODD-DDS: ADJ, DHU;

Originating Component

ODP

Effective Date

11/04/2019

Background

We worked with an inter-component workgroup to standardize policy for failure to cooperate issues. We revised policy on how we handle certain follow-ups. We no longer require disability determination services (DDS) to call the individual ":at a different time of day on a different day" on a second telephone attempt. It is the DDS disability examiner's (DE's) decision how to handle the second contact.

 

 

Summary of Changes

DI 28075.005 Failure to Cooperate (FTC) and Whereabouts Unknown (WU) During a Continuing Disability Review (CDR)

Before this revision, existing DI 23007.005E.1.a. and existing DI 28075.005E.2. required DDS to make a second telephone contact attempt "at a different time of day on a different day." We changed our existing policy so that the DDS DE decides whether to initiate contact via telephone or letter. If the DE is not able to talk to the claimant via phone or to leave a message, the DE must send a call-in letter. We re-organized content to have a more logical presentation, removed duplicate information, and combined similiar information when possible. We added information regarding how to handle pre-hearing cases.

We made the following revisions to all sections:

  • Rewrote text following plain language requirements;

  • Revised passive voice to active voice, if appropriate;

  • Provided clear and detailed section titles and subsection headings;

  • Made minor changes to clarify content; and

  • Added appropriate cross references to POMS DI 23007.000, Failure to Cooperate.

DI 28075.005 Failure to Cooperate (FTC) and Whereabouts Unknown (WU) During a Medical Continuing Disability Review (CDR)

A. Background for FTC and WU

Instructions in this section focus on circumstances in which FTC or WU issues occur during the medical continuing disability review (CDR) process while the case is in the disability determination services (DDS).

For detailed field office (FO) instructions on FTC and WU, see DI 13015.001 through DI 13015.025. If work activity is the sole issue, the FO has jurisdiction. See DI 28030.025 and DI 28030.030. Process pre-hearing FTC cases in the same manner as CDRs; however, do not process pre-hearing WU cases in the same manner as CDRs. The WU individuals have a regulatory right to a disability hearing.

B. Policy regarding the individual’s responsibility

The adult individual, or his or her representative payee, has a responsibility to cooperate with and to take any action the Social Security Administration (SSA) or the DDS requests to complete the medical CDR. For a Title II disabled minor child and a Title XVI disabled child, this responsibility ultimately rests with the representative payee, usually the child’s parent, other caregiver, or representative. For additional information concerning Title II disabled minor children, see DI 23505.001. For additional information concerning Title XVI disabled children and FTC, see DI 25205.020.

C. Medical improvement review standard (MIRS) and exceptions

Medical improvement (MI) of the impairment(s) of a disabled adult or disabled child may directly affect the determination of continuance or cessation. Exceptions to MI may also directly affect the determination. Exceptions to MI allow a finding that disability has ceased even though there has been no MI, MI is not related to the ability to work, or there is insufficient evidence to determine MI or MI related to the ability to work. Evidence may show that the individual should no longer be considered disabled or never should have been considered disabled (DI 28020).

There are two groups of exceptions to MI: Group I and Group II. Group I exceptions require full medical development and apply to specific steps of the sequential evaluation process. They do not apply to this POMS chapter; therefore, we will not discuss them here. See DI 28020 for more information on exceptions to MI.

Group II exceptions do not require full medical development and apply at any step of the CDR sequential evaluation process. SSA considers FTC and WU as Group II exceptions. These exceptions are included in this chapter. When DDS identifies a Group II exception (except WU), the disability examiner (DE) processes a cessation determination.

Group II exceptions include:

  • Fraud or similar fault;

  • FTC*;

  • WU; or

  • Failure to follow prescribed treatment.

If DDS identifies a WU exception, the DE stops development and returns the case to the FO as a “No Determination (ND)”. The FO has jurisdiction for these cases and prepares the determination.

* NOTE:: 

Although full medical development is not required for a FTC Group II exception, the DE must make a reasonable effort to develop evidence available without claimant cooperation and make a determination through the sequential evaluation process. For additional information on making a determination based on the evidence in the file, see DI 23007.015.

D. Definitions for FTC and WU

1. FTC cases

SSA considers FTC a medical determination. FTC refers to an individual’s failure, without good cause, to do by a certain date what SSA or the DDS has asked. That is, the individual:

  • Does not provide medical or other evidence, or

  • Fails to attend a scheduled consultative examination (CE), or

  • Fails to take the required action which SSA or DDS has requested.

There are situations when the Title II individual is in terminated status due to work and does not cooperate with the FO during the CDR. However, to determine if entitlement or eligibility to extended Medicare benefits should continue, the DDS must make a medical CDR determination based on evidence in file. See DI 28055.001, Policy - Extended Medicare Eligibility. In cases involving Title II and Title XVI disabled minor children, the responsibility to cooperate ultimately rests with the applicant, usually the child's parent, other caregiver, or representative payee.

Once the DDS DE has made a reasonable effort to develop all evidence available without the individual's cooperation, the DE must process the evidence through the sequential evaluation process. If the evidence is insufficient to support a continuance or to determine whether MI has occurred or if MI is related to the ability to work, and the claimant has FTC, without good cause, a group II exception to MI is the basis for the DDS to find a cessation. The FO then requests termination of Title II benefits and suspension of Title XVI benefits.

2. WU cases

SSA considers a WU case a technical determination, not a medical one. WU occurs when SSA or DDS is unable to locate an individual. The DDS does not prepare a determination in a WU case, but returns the case to the FO as a “No Determination (ND)”. The FO assumes jurisdiction and makes the determination. For additional information, see FO Assistance in FTC or WU Cases in DI 13015.025.

E. DDS identifies a FTC or WU case

  • A FTC issue may arise at any point during the CDR process.

    • See paragraph D. in this section for some examples of reasons when an individual does not cooperate, i.e., FTC, with SSA or the DDS. When a CDR FTC issue arises while the case is at the DDS, the DDS must make a medical determination to determine if eligibility or entitlement to Medicare benefits continue. There are situations when the Title II individual is in terminated status due to work and fails to cooperate with the FO during the CDR.

    • For other unresolved FTC issues that arose at the FO, the DDS returns the case to the FO.

  • A WU issue may arise at any point during the CDR process.

    If the DDS identifies a case as WU, the DDS stops development and returns the case to the FO as a “No Determination (ND)”. The FO assumes jurisdiction and makes the WU determination.

F. FO forwards a FTC case to the DDS

If the FO identifies a case(s) as FTC but does not do necessary development prior to sending it to the DDS, the DDS should return the case(s) to the FO for the required development, i.e., obtain medical interview forms and releases.

G. Cessation month for the individual in FTC and WU cases

For FTC cases, the DDS will process a cessation when there is not enough evidence to justify a continuance or determine whether MI or MI related to the ability to work has occurred. Benefit payments cease the first month in which the individual refuses, without good cause, to cooperate with what SSA or the DDS has requested; and the individual understands the effect of not cooperating. In this situation, the DDS will make a medical determination based on the evidence in file.

For WU Title II cases, the FO issues a non-medical cessation, i.e., a technical cessation of benefits. For WU Title XVI cases, the FO suspends benefits. The cessation date cannot be earlier than the month in which the continuing disability issue first arose.

H. Development issues in FTC cases

1. Good cause for FTC

In determining whether an individual has good cause for not cooperating, consider the individual's limitations, i.e., physical, mental, educational, and linguistic (including limited ability with the English language).

Examples of good cause for not cooperating may include:

  • Personal illness, or

  • Death or serious illness in the family, or

  • Transportation problems.

For additional information on a good reason for not cooperating see DI 23007.004.

2. Title II disabled minor child (DMC) age 16 to 18 years old, or childhood disability benefits (CDB), and Title XVI disabled childhood (DC) cases

Children are not ordinarily in a position to pursue their own cases independently. Therefore, for childhood cases involving FTC, make special efforts to identify and contact another adult or agency responsible for the child's care. Follow the approach in DI 25205.020, Failure Issues, for both Title II and Title XVI childhood CDR FTC situations.

I. Special handling issues and FTC cases

In all cases, SSA and the DDS should be sensitive to situations when the individual may require assistance to comply with SSA or DDS requests. For additional information on special handling, see DI 23007.004.

J. Development procedures in FTC or WU cases

1. FTC issue arises in the FO

  1. a. 

    If an FTC issue arises in the FO, the FO should take necessary action, (i.e., obtain medical interview forms and releases) before sending the case to the DDS.

    • If the FO does not take necessary action, the DDS should return the case to the FO for proper development, (i.e., obtain interview forms and releases).

    • If the disabled individual or his or her representative payee does not comply with providing the necessary information or evidence, the FO may suspend benefits.

    • If the benefits are in suspense for 12 months, eligibility will terminate effective the 13th month without the DDS involvement.

    • If the individual or his or her representative payee provides information to the FO, the FO forwards the case to the DDS for a medical determination.

  2. b. 

    If the Title II individual fails to cooperate with the FO, (e.g., due to work activity), the FO terminates benefits and then sends the case to the DDS.

    • At that point, the DDS makes a medical determination (based on the evidence in file) to determine if SSA should continue entitlement or eligibility to extended Medicare benefits. See DI 28055.001, Policy - Extended Medicare Eligibility. For additional information on making a determination based on the evidence in the file, see DI 23007.005.

    • If the individual who had previously failed to cooperate with the FO subsequently cooperates with the DDS, the DDS should follow all normal procedures for developing and conducting the CDR.

2. FTC issue arises in the DDS

For adults under Title II or Title XVI, or both, follow procedures in DI 23007.000, Failure Issues.

3. WU issue arises in the DDS

If WU arises in the DDS:

  • Stop development;

  • Document in the file whether the DDS received any returned or undeliverable correspondence to the individual;

  • Document a “No Determination (ND)” in file (e.g., on the SSA-832, SSA-833, or on an SSA-5002, Report of Contact) and return the file to the FO.

K. Procedure for preparing the FTC or WU determination

Record in file all efforts you made to resolve the issues, including dates, results of the efforts, and justification for a cessation. The DDS makes the FTC determination. Send the WU file to the FO to make the determination. For all situations, the cessation date cannot be earlier than the date the continuing disability issue arose.

FTC cessations are medical determinations. In FTC cases (Title II or Title XVI, or both), disability ceases in the first month in which the individual failed, without good cause, to do what SSA or the DDS requested after:

  • SSA or the DDS made the individual aware that he or she must do what SSA or the DDS requests, and

  • SSA or the DDS advised the individual of the repercussions of failing to cooperate without good cause.

Examples of FTC determinations:

Example 1: When the disabled adult individual does not cooperate with the DDS.

In 01/2016, the FO sends the individual a letter requesting completion and return of the CDR forms within 10 days. The individual returns the necessary CDR forms. The FO sends the file to the DDS for processing. The DDS reviews the file and obtains the necessary records from the individual’s treating source(s). The records are insufficient to make a CDR determination. The individual has a mental impairment, has no representative, and no payee. There is no third party source identified in file. The DDS needs activities of daily living (ADLs) and a CE to complete the work on the case. The examiner calls the individual to attempt to get ADLs and to determine if the individual is willing to attend a CE. There is a busy signal both times. The examiner sends a call-in letter on March 14, 2016, advising the individual that if he or she does not call the examiner within 10 days, we will make a determination on the evidence in the file. If we do so, it is very likely that benefits will stop. The individual does not call within 10 days. Therefore, he or she failed, without good cause, to do what the DDS requested. The examiner prepares a cessation using 03/16 as the cessation month since this is the first month in which the individual was first aware (03/14/16 + 5 days mailing time = 03/19/16) that he or she had to cooperate or failure to do so could result in cessation of benefits.

Example 2: Disabled adult individual does not keep CE

On 07/13/2016, the DDS sends a letter to the individual explaining that a CE is necessary and we have scheduled it for 08/21/2016. The letter also explains that if the individual does not keep the appointment, we may make the determination based on the evidence in file. If we do so, it is very likely we will determine that the individual is no longer disabled. The individual confirms that he or she will keep the CE. However, he or she does not attend the CE. He or she does not have good cause for not keeping the appointment. In the case of a CE, the individual cannot comply with the request until the date of the CE. Therefore, DDS prepares a cessation determination using 08/2016 as the cessation month.

Example 3: Disabled adult individual requests CE be rescheduled; however, he or she does not keep the rescheduled CE.

On 04/10/2016, the DDS sends a letter to the individual explaining that a CE is necessary and we have scheduled it for 05/02/2016. The letter also explains if the individual does not keep the appointment, we may make the determination based on the evidence in file. If we do so, it is very likely we will determine that the individual is no longer disabled.

The individual does not attend the 05/02/2016 CE because of illness. He or she contacts DDS and requests another CE appointment. The DDS reschedules the CE for June 19, 2016. The individual again does not attend the rescheduled CE. He or she does not contact the DDS to explain good cause for not attending the rescheduled CE. In this case, the DDS prepares a cessation determination using 06/2016 as the cessation month. This is the first month that the individual willingly does not comply with the request.

Example 4: Disabled adult individual will not attend CE.

The DDS schedules a CE for 05/2016. The individual calls the DDS 04/2016 and informs the DDS that he or she will not attend a CE. The individual does not provide a “good cause” for not wanting to go to a CE. The DDS explains that we will make a determination on the evidence in file. If we do so, it is very likely that we will determine that the individual is no longer disabled. In this case, the DDS cancels the CE and prepares a cessation determination using 04/2016 as the cessation month. This is the first month that the individual willingly does not comply with the request and he or she does not have good cause for unwillingness to attend the CE.

L. Preparation of the FTC determination

Prepare the Form SSA-832-U3 (Cessation or Continuance of Disability or Blindness Determination and Transmittal-Title XVI) and/or Form SSA-833-U3 (Cessation or Continuance of Disability or Blindness Determination and Transmittal-Title II).

Upload forms to the electronic folder (EF) or place the paper forms into the paper folder and forward the folder(s) to the FO.

See also:

  • DI 28080.110 Processing Medical Cessation Cases for Disability Determination Services (DDS);

  • DI 28095.105 Title II Medical Cessation Notices Chart; and

  • DI 28095.110 Title XVI Medical Cessation Notices Chart.

M. Cessation or suspension month in WU cases

The FO prepares the final WU determination, per DI 13015.010B.1, Failure to Cooperate (FTC) Suspension and Cessation/Termination Months and Whereabouts Unknown (WU) Cessation Date Determination. In Title II WU cases, disability ceases in the first month in which SSA or the DDS learns that the individual's whereabouts are unknown. The cessation date cannot be earlier than the month in which the continuing issue arose.

Example: WU.

The DDS receives a Title II CDR case from the FO. The DDS begins CDR development and sends the disabled individual a notice in 06/2015 requesting evidence to make the CDR determination. In 07/2015, the post office returns the notice as undeliverable. The DDS returns the case to the FO for WU development. Subsequent FO attempts at contacting and locating the individual are unsuccessful. The cessation month is 07/2015 because July is the first point at which the DDS becomes aware that the individual's whereabouts are unknown.

NOTE:: 

For Title XVI WU cases, in which continuing disability is an established issue, SSA suspends (not terminates) disability benefits in the first month in which SSA or DDS cannot locate the individual.

N. Preparation of the WU determination

Clear the case as a “No Determination (ND)” case. Forward the documented case to the FO for development action and cessation (Title II) determination or suspense (Title XVI) action based on WU. For a description of jurisdiction and responsibilities for the DDS in WU situation see DI 28075.005.J.3. in this section.

O. Benefit continuation in FTC or WU cases

1. FTC cases

If the DDS identifies a FTC case and makes a cessation determination, the FO will offer statutory benefit continuation (SBC) because SSA considers these FTC cessations as medical determinations.

If a disabled individual fails to comply with the FO’s request for necessary information or evidence, the FO terminates the disabled individual’s benefits after a 12-month suspension period.

The FO will not offer SBC because the DDS did not make a medical determination.

2. WU cases

SBC does not apply to WU cases because we do not consider these cases medical cessations. Also, Goldberg-Kelly procedures do not apply to Title XVI WU cases (see DI 27525.015, Providing Due Process in Erroneous Payment Cases).

P. When we subsequently locate an individual and he or she cooperates

If the DDS made a FTC determination, the individual has 60 days to appeal. The usual CDR appeal procedures apply. For Standards and Development Guidelines for the Reconsideration CDR Process, see DI 29005.001. If applicable, the DDS hearing officer will revise the cessation date. For purposes of determining the cessation month, see DI 28005.205C.1.

If the appeal period has expired, the DDS may consider reopening if the rules of administrative finality allow (see DI 27505.001 Conditions for Reopening a Final Determination or Decision).

Q. References

  • DI 22510.016 Consultative Examination (CE) Appointment Special Scheduling Procedures

  • DI 22510.019 Consultative Examination (CE) Appointment Notice Follow-up and Reminder

  • DI 23007.000 Failure to Cooperate

  • DI 25205.020 Failure Issues

  • DI 28005.205 Determining the Cessation Month in Continuing Disability Review (CDR) Cases

  • DI 28020.001 General -- Groups I and II Exceptions to Medical Improvement (MI)

  • DI 28080.110 Processing Medical Cessation Cases for Disability Determination Services (DDS)

  • DI 28084.000 Completion of Continuing Review Determination Forms (SSA-832 and SSA-833) - Table of Contents

  • DI 28095.105 Title II Medical Cessation Notices Chart

  • DI 28095.110 Title XVI Medical Cessation Notices Chart



DI 28075 TN 9 - Special CDR Issues - 11/04/2019