Author: Stephen Goldberg

Interpretation of new Social Security musculoskeletal listings

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On December 3, 2020, the Social Security Administration (SSA) published new listings for evaluating musculoskeletal disorders.  85 Fed. Reg. 78164.  In general, the new musculoskeletal disorders listings listings remove the “inability to ambulate effectively” criteria, have additional focus on the need for assistive devices, and require more lower-body conditions to be paired with restrictions on use of upper extremities.  The new listings became effective for cases filed after or pending after April 2, 2021.

SSA has issued additional guidance regarding the new musculoskeletal listings. When considering the need for assistive devices under the new listings, SSA is to consider the most restrictive device for which the claimant has a documented medical need.  The phrase documented medical need means evidence from a medical source that supports the medical need for an assistive device for a continuous period of at least 12 months.

The functional criteria in the new listings is met if the medical evidence shows that a claimant uses a wheeled and seated mobility device that involves the use of two hands with a documented needs lasting 12 consecutive months.  If the claimant uses a wheeled and seated mobility device that involves the use of one hand, SSA is to consider whether the claimant has a documented medical need for a two handed assistive device.  This evidence includes inability to bear weight on lower extremities, instability, inability to rise from a seated position without assistance or the use of both arms, significant weakness in the legs, or amputation of the lower extremities at or above the ankle with inability to use a prosthesis.

For certain of the new listings, all required criteria must be present simultaneously, or within a close proximity of time.  In evaluating listings with imaging requirements, SSA determines whether the findings on imaging are reasonably expected to have been present within a close proximity of time of the other required elements.  (EM-21027, April 2, 2021.)

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Social Security Disability Good Cause for Failure to Follow Prescribed Treatment

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In general, a Social Security Disability or Supplemental Security Income claimant will be found not disabled if they fail, without good cause, to follow prescribed treatment that can restore the ability to work.  However, the Social Security Administration will consider a claimant’s mental limitations when determining if they have good cause for not following prescribed treatment.  A claimant can have good cause for not following prescribed treatment when they have a psychiatric impairment and that impairment causes their refusal to follow prescribed treatment.  (HALLEX II-5-3-1, updated June 7, 2021.)

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CalFresh Water Pilot implementation

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The California Department of Social Services (CDSS) has announced the implementation date and final ZIP code selection for the CalFresh Water Pilot. The pilot is a program to provide additional CalFresh nutrition benefits to purchase safe drinking water in areas where it is necessary. Pilot benefits will be available to CalFresh households living in selected ZIP codes in Kern County with out-of-compliance water systems under the California Safe Drinking Water Act. The first date of the pilot is March 1, 2022 and will last for 12 months, depending on the final number of pilot-eligible households and continued funding. 

The following Kern County zip codes will participate in the Pilot:

  • 93241 (Lamont)
  • 93220 (Edison)
  • 93243 (Gorman-Lebec)
  • 93311 (Bakersfield)
  • 93387 (Bakersfield)
  • 93386 (Bakersfield)

Notices about the program will be issued to eligible households on February 1, 2022 regarding the implementation date, eligibility criteria, benefit amount, and pilot duration. Notices will be given to households when they approved to participate in the CalFresh Water Pilot, discontinued from the pilot, or when the pilot ends. (ACL 21-50, April 28, 2021). 

The pilot is extended to October 31, 2021.  (ACL 22-101, November 30, 2022.)

COVID-19 Supplemental Paid Sick Leave for IHSS providers

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The California Department of Social Services (CDSS) has provided information about State Supplemental Paid Sick Leave for In Home Supportive Services (IHSS) providers.  Supplemental Paid Sick leave provides 80 hours of sick leave for IHSS providers in addition to the regular 16 hours of sick leave provided by the IHSS. State Supplemental Paid Sick Leave is available for IHSS providers when the provider is unable to work for a reason related to the COVID-19 pandemic. 

Supplemental Paid Sick Leave is available retroactively to January 1, 2021.  For claims for sick leave prior to March 31, 2021, counties should verify whether a previous sick leave claim was submitted.  If a claim was not previously submitted, federal Emergency Paid Sick Leave Act (EPSLA) funds must be used before State supplemental paid sick leave for leave prior to March 31, 2021. While EPSLA placed providers on a two week paid leave, State Supplemental Paid Sick Leave is claimed in hourly increments, as determined by the county. 

IHSS providers taking sick leave must not be listed on a timesheet for any hours the recipient claims for paid sick leave. 

Reasons to be qualified for State Supplemental Paid Sick Leave include:

  • The provider is subject to a quarantine or isolation period related to COVID-19 as defined by an order or guidelines of the State Department of Public Health, the CDC, or a local health officer.
  • The provider has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
  • The provider is experiencing symptoms of COVID-19 and is seeking a medical diagnosis.
  • The provider is attending an appointment to receive a vaccine for protection against contracting COVID-19 (Up to a maximum of 4 hours).
  • The provider is experiencing symptoms related to a COVID-19 vaccine that prevents the provider from being able to work.
  • The provider is caring for a family member who has been advised to self-quarantine due to concerns related to COVID-19.
  • The provider is caring for a child whose school or place of care has been closed or is determined otherwise unavailable for reasons related to COVID-19 on the premises. 

CDSS has revised the COVID-19 paid sick leave request form to allow requests based on federal or state requirements. CDSS has notices for both providers and recipients to inform them of the new State supplemental paid sick leave. Providers will be informed of their ability to submit claims for State supplemental paid sick leave and under what circumstances they may claim it. Recipients will be informed of their ability to request an emergency back-up provider, should their primary provider need to claim federal emergency or State supplemental paid sick leave related to the COVID-19 pandemic.

Supplemental Paid Sick Leave is available until September 30, 2021. (ACL 21-36, March 30, 2021.)

COVID-19 CalFresh emergency allotment for June, 2021

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California has been approved to issue an emergency allotment of CalFresh for June, 2021.  All households will receive at least the maximum CalFresh allotment.  Households eligible to receive the maximum allowable allotment based on household size are now eligible to receive an emergency allotment of $95 per month. Households who are not eligible to receive the maximum allowable allotment based on household size, but whose emergency allotment would be less than $95 per month to receive the maximum allotment, will receive additional CalFresh benefits to raise their emergency allotment to the new $95 minimum.

The emergency allotment will be issued on July 18, 2021.

Moving forward, emergency allotments may be approved by FNS on a month-to-month basis until the Secretary of Health and Human Services rescinds the public health emergency.  There will be a one-month phase out of emergency allotments after the public health emergency is rescinded.  (ACWDL, June 2, 2021.)

Change to unemployment insurance reapplication requirement

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The California Employment Development Department (EDD) will now automatically process benefits from claimants who have not earned wages in the last 18 months, regardless of the type of claim, without needing to reapply for benefits. These claimants will need to continue certifying for benefits, and EDD will notify them when the additional benefit weeks are processed.

Claimants who have earned wages in the last 18 months must still reapply for benefits, even if they currently have are on either a PEUC or FED-ED benefits extension. EDD will then establish a new regular claim or deliver extended federal benefits on their behalf. All claimants will be notified if they need to reapply. Claimants can go to UI online and attempt to “File New Claim” to find out if they need to reapply. The application will proceed if a new application is necessary. Claimants can also use the Unemployment Insurance Benefit Calculator to see if they must reapply.

EDD also stated that, while there currently is no job search requirement, the requirement will return soon. EDD has a job search toolbox that can assist with employment searches. (EDD News Release No. 21-33, May 27, 2021.)