Author: Stephen Goldberg

Changes to HIV listing

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Social Security has rewritten the listing for HIV effective January 17, 2017.  The introduction to Listing Section 14 describing HIV is rewritten including changing the tests used for a definitive determination of HIV.  The new introduction also allows persuasive physician diagnosis of HIV which can be with or without laboratory findings, and documentation of manifestation of HIV.

Prior listing 14.08 is repealed.  New Listing 14.11 list requires specific documentation stated in introductory section 14.00F1 and one of eight conditions or criteria to meet the listing.  The new listing no longer includes documented side effects, resulting infections and illnesses.  Changes to the childrens listing mirror the adult listing changes.

Revised Medical Criteria for Evaluating Human Immunodeficiency Virus (HIV) Infection and for Evaluating Functional Limitations in Immune System Disorders, 81 Fed. Reg. 86915 (December 2, 2016).

Changes to mental impairment listings

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Social Security has substantially changed the mental impairment listings effective January 17, 2017.  The revisions add three new listed impairments: neurodevelopmental disorders (includes learning disabilities) (new Listing 12.11), eating disorders (new listing 12.13), and trauma- and stressor-related disorders (including PTSD) (new listing 12.15).  The revisions also substantially rewrite the listing for Intellectual Disability (listing 12.05).  Revisions to the children’s listings mirror changes to the adult listings.

The revisions change the “B” criteria.  The new “B” criteria are: Understand, Remember or Apply Information; Interact with Others; Concentrate, Persist or Maintain Pace and Adapt or Manage Oneself.  The revisions add multiple factors to consider for each of the new “B” criteria.

The revisions also require considering homelessness as a factor in difficulty to produce medical evidence.

Revised Medical Criteria for Evaluating Mental Disorders, 81 Fed. Reg. 66138 (September 26, 2016).

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Changes to Social Security hearings process

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Social Security has finalized new regulations that change its hearing process.  These are important changes because they change the deadlines and time frames for Social Security hearings.  Three key changes in the process are:

  1. Social Security will now give at least 75 days notice of the hearing date.
  1. Claimants and claimant’s representatives must now submit evidence, hearing briefs and objections to issues at least five business days prior to the hearing. For evidence that the Claimant has not yet received, the Claimant or claimant’s representative must inform about that evidence.  Exceptions to the five business day rule include disability that prevents the Claimant from submitting evidence and “other unusual, unexpected or unavoidable circumstances” which expressly includes actively and diligently seeking evidence but the evidence was not received 5 business days before the hearing.
  1. When seeking Appeals Council review, any new evidence must be submitted to the Appeal Council with the Request for Review. The Appeals Council will only consider new evidence under limited circumstances, including disability that prevents the Claimant from submitting evidence and “other unusual, unexpected or unavoidable circumstances” which expressly includes actively and diligently seeking evidence but the evidence was not received 5 business days before the hearing.

Ensuring Program Uniformity at the Hearing and Appeals Council Levels of the Administrative Review Process, 81 Fed. Reg. 90987 (December 16, 2016).

 

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Reopening of Social Security decision based on Supreme Court decision finding law unconstitutional

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Social Security has issued a ruling regarding reopening of Title II and Title XVI cases when the decision is based on a law that the United States Supreme Court finds to be unconstitutional.  This issue has recently arisen because of the Supreme Court decisions in United States v. Windsor regarding constitutionality of the Defense of Marriage Act and Obergfell v. Hodges regarding the constitutionality of state laws banning same-sex marriage.

Social Security has decided that a determination based on a law that the United States Supreme Court has found to be unconstitutional is an error on the face of the evidence.  This means that a decision can be reopened if 1) the determination or decision is based on a federal or state law that the United States Supreme Court holds is unconstitutional, 2) the application of that law was material to the determination or decision, and 3) it is within the following timeframes: A) For Title II claims, within four years of the notice of initial determination, B) For Title II claims, at any time if the determination or decision was fully or partially unfavorable, or C) For Title XVI claims, within two years of the notice of initial determination.  SSR 17-1p (March 1, 2017).

CalFresh Elderly Simplified Application Project

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The California Department of Social Services (CDSS) has issued instructions about the CalFresh Elderly Simplified Application Project (ESAP).  CDSS received a waiver to implement ESAP beginning October 1, 2017.

ESAP will do three things for elderly (age 60 or older) and/or disabled households:

  1. Waive the recertification interview requirement for elderly and/or disabled households with no earned income. Cases will not be denied at recertification without an attempt to schedule an interview. The county can require an interview if the information supplied is incomplete, questionable or contradictory. Households will be able to request a recertification interview.  An interview at initial certification will still be required.
  2. Use data matching to reduce client-provided verifications for elderly and/or disabled households with no earned income.
  3. Extend the certification period to 36 months for elderly and/or disabled households with no earned income.

ESAP households will use the SAR-7 form to report any changes at 12 months and 24 months.  If an ESAP household becomes ineligible for ESAP but remains eligible for CalFresh (for example by becoming employed) the county will convert the case to a regular CalFresh household.  (ACL 17-34, April 25, 2017.)

CAPI sponsor deeming

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The California Department of Social Services (CDSS) has issued instructions about sponsor deeming in the Cash Assistance Program for Immigrants (CAPI) program.  If the CAPI applicant or recipient’s sponsor is disabled, the sponsor’s income is deemed to the CAPI applicant or recipient until the sponsor dies, the applicant or recipient naturalizes or the applicant or recipient has worked for 40 quarters in the United States.  If the sponsor is not disabled, deeming is for 10 years from date of entry or date of execution of the affidavit of support, whichever is later.

When sponsor deeming applies, the sponsor must provide the county with their income and resources when the sponsored immigrant applies for CAPI and at least annually after CAPI is granted.  The county will send a form to the sponsor and the CAPI applicant or recipient requesting information from the sponsor.  The SOC 860 form is recommended but not required.  The sponsor will be given 15 days to provide the information.  If the sponsor does not respond, the county will send a second copy of the form to the sponsor.  If the sponsor does not respond, the county will deny or discontinue CAPI.  If the sponsor does not submit requested verification, the county will deny or discontinue CAPI.

If an immigrant is no longer being provided with support by their sponsor, and as a result the immigrant is no longer able to provide themselves with food and shelter, the immigrant may be eligible for the indigence exception to sponsor deeming.  The applicant or recipient can apply for the indigence exception by completing the SOC 809 form.  The county will compare the information provided by the applicant or recipient and the information from the sponsor in deciding whether to grant the indigence exception.  Note that when the sponsor has no income, there is no need for the indigence exception because the sponsor has no income to deem.

If the whereabouts of the sponsor are unknown, the county investigates the sponsor’s location by submitting a Form G-845 to USCIS.  If the county is satisfied based on the response to the G-845 and any other investigation the county does that the sponsor’s whereabouts are unknown, the county should accept the CAPI applicant or recipient’s statement regarding the sponsor’s lack of support unless those statements conflict with other information in the case file.  (ACL 17-33, April 17, 2017.)