The California Department of Social Services (CDSS) has issued instructions about treatment of IHSS wages for purposes of CalFresh. CDSS has decided that IHSS wages are income for purposes of CalFresh. CDSS states that IHSS wages are not excluded as money received for care and maintenance of the third party who is not a household member because it is considered earned income. In addition, the Internal Revenue Service rules excluding IHSS as a difficulty of care payment do not apply to CalFresh. (ACIN I-34-17, May 26, 2017.)
Summaries of select CalWORKs, CalFresh, Health and Housing Regulations
Author: Stephen Goldberg
Changes to neurological disorders listings
Social Security has rewritten the listings for neurological disorders effective September 29, 2016.
The revised introduction to Listing Section 11.00 includes criteria for how to establish “disorganization of motor function” and how to evaluate those criteria. If Social Security does not find a person disabled on this basis alone but finds marked limitation in physical function and any one of four areas of mental function, it will find no residual functional capacity for work.
Some of the highlights of the changes are: epilepsy is combined into revised and expanded Listing 11.03, the IQ factor for cerebral palsy in Listing 11.07 is removed, listing 11.09 for Multiple Sclerosis now includes marked limitation in physical functioning in addition to mental functioning, listing 11.20 for coma or persistent vegetative state persisting for at least one month is added, and listing 11.22 for motor neuron disorders other than ALS is added.
The children’s listings are rearranged to more closely parallel the adult listings. Listing 111.06 for motor dysfunction is removed.
Revised Medical Criteria for Evaluating Neurological Disorders, 81 Fed. Reg. 43048 (July 1, 2016).
Changes to HIV listing
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Prior listing 14.08 is repealed.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
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).
Changes to Social Security hearings process
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:
- Social Security will now give at least 75 days notice of the hearing date.
- 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.
- 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).
Reopening of Social Security decision based on Supreme Court decision finding law unconstitutional
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).