Failure to follow prescribed treatment

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The Social Security Administration (SSA) has issued a new ruling about the effect of failure to follow prescribed treatment.  In general, an individual who is otherwise disabled is not entitled to Social Security Disability or Supplemental Security Income benefits if they do not follow prescribed treatment that would be expected to restore the ability to perform substantial gainful activity without good cause.

SSA determines whether an individual has failed to follow prescribed treatment when:

1)  The individual would otherwise be eligible for benefits

2)  There is evidence that the individual’s own medical source prescribed the treatment for the impairment upon which the disability finding is based.  Prescribed treatment means medication, surgery, therapy, use of durable medical equipment or use of assistive device.  Prescribed treatment does not include lifestyle modifications such as dieting, exercising or smoking cessation.  SSA considers any evidence of prescribed treatment including prescription forms and medical records.

3)  There is evidence that the individual did not follow the prescribed treatment.

If all these conditions exist, then SSA determines whether the prescribed treatment, if followed, would be expected to restore the individual’s ability to perform substantial gainful activity, and whether the individual has good cause for not following the prescribed treatment.  Good cause includes religion, cost, incapacity that means the individual is unable to understand the consequences of failure to follow prescribed treatment, medical disagreement among individual’s own medical sources, intense fear of surgery, prior unsuccessful major surgery, high risk of loss of life or limb, or risk of addiction to opioid medication.  Good cause does not include the individual’s allegation that they were unaware of the prescribed treatment unless the individual shows incapacity.  If either of these criteria is met, then SSA will not find failure to follow treatment.

To develop failure to follow prescribed treatment, SSA can contact the medical source. SSA can purchase a consultative examination or obtain testimony from a medical expert but is not required to do so.

For listings, if SSA finds failure to follow prescribed treatment without good cause, SSA continues by evaluating residual functional capacity.  For listings, SSA will not find failure to follow prescribed treatment if disability is based on a listing that requires only the presence of laboratory findings, or the listing requires consideration of whether the individual was following a specific treatment.

For residual functional capacity, SSA will find that the individual is disabled if they would be unable to perform substantial gainful activity even if they had followed prescribed treatment.

SSA can reopen a favorable determination or decision if it discovers that it did not apply failure to follow prescribed treatment correctly.

For continuing disability reviews, SSA will make a failure to follow prescribed treatment finding when the individual’s medical source prescribes a new treatment since the last favorable determination without good cause.  SSA also will find failure to follow prescribed treatment for a new impairment alleged during the continuing disability process and there is evidence that the individual did not follow prescribed treatment without good cause.

For drug and alcohol cases where SSA finds that drugs and alcohol are not material to the disability determination, a failure to follow prescribed treatment, SSA does failure to follow prescribed treatment determination only for impairments other than drugs and alcohol.  (SSR 18-03, October 29, 2018.)

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Determining onset date for disability claims

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The Social Security Administration (SSA) has issued a new ruling about determining the onset date for Social Security Disability and Supplemental Security Income claims.  The established onset date is the earliest date that the claimant meets the both the definition of disability and the non-medical requirements for benefits eligibility.

SSA first determines the potential onset date, which is the earliest date that the claimant meets non-disability requirements.  If the claimant meets the statutory definition of disability on the potential onset date, that date is used as the established onset date.

For impairments that result from a traumatic injury or other traumatic event, the onset date is the date of the traumatic event even if the claimant worked on that date.

Non-traumatic impairments are impairments that are not expected to change in severity over time, impairments that are expected to improve over time, or impairments that are expected to worsen over time.  For non-traumatic or exacerbating and remitting impairments, SSA determines the first date that the claimant meets the definition of disability.  SSA reviews the evidence and considers the nature of the impairment, the severity of signs, symptoms and laboratory findings, the longitudinal history and course of treatment, the length of the impairments exacerbations and remissions if applicable, and any statements by the claimant.  The onset date can predate the earliest recorded medical examination.

SSA considers evidence from other non-medical sources such as family, friends or former employers only if SSA cannot obtain other medical evidence and SSA cannot reasonably infer the onset date from the medical evidence in the file.

At the hearing level, the Administrative Law Judge (ALJ) may call upon a medical expert but the decision to call a medical expert is entirely in the ALJ’s discretion.  The claimant cannot require the ALJ to call a Medical Expert.

If the claimant has both a traumatic and non-traumatic impairments, SSA considers all of the impairments in combination when determining the onset date.

Generally, the claimant’s established onset date is not before the last day the claimant performs substantial gainful activity.  However, SSA can determine the established onset date to be before or during an unsuccessful work attempt.

The established onset date can be in a previously adjudicated period if the claimant meets the definition of disability and applicable non-medical requirements during the previously adjudicated period.  However, it is in the adjudicator’s discretion whether to reopen a prior claim.  (SSR 18-01p, October 2, 2018.)

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Net worth, asset transfer and income exclusions for needs-based veterans benefits programs

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The Department of Veterans Affairs has issued final regulations regarding net worth, asset transfer and income exclusions for needs-based veterans benefits programs.  The regulations adopt the Community Spouse Resource Allowance from the Medicaid program as the net worth limit for eligibility for needs-based veterans benefits programs.  In 2018, the Community Spouse Resource Allowance is $123,600.

The regulations include several provisions about calculating net worth.  These provisions include the claimant’s primary residence is excluded as an asset, the income and assets of a child living in the primary residence are counted in the applicant’s net worth, assets of the claimant’s spouse are counted even if the claimant does not live with the spouse and assets of a guardian are counted for a surviving child’s claim, an income deduction for disabled veterans, and both the principle and distributions from individual retirements accounts are counted.  The regulations do not distinguish between liquid and non-liquid assets.

The regulations also implement a penalty for transfer of assets for less than fair market value.  The maximum penalty is 5 years of benefits eligibility.  Assets transferred as a result of fraud, misrepresentation or unfair business practice related to sale or marketing of financial products or services are not considered transferred for less than fair market value.

Amounts paid by a veteran, veteran’s spouse or surviving spouse on behalf of a veteran’s child for unreimbursed medical expenses are deductible if expenses exceed 5 percent of the veteran’s benefit amount.  In addition, expenses for institutional care and in home care are deductible.

The pension rate is reduced when a pension recipient is receiving Medicaid-covered nursing home care.  The regulations implement a statutory change that this provision applies to surviving children.  The regulation also adds that this provision should not cause an overpayment of benefits unless there is willful concealment of information.  (83 Fed. Reg. 47246, September 18, 2018.)

Demolition and/or disposition of public housing property

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The United States Department of Housing and Urban Development (HUD) has issued guidance regarding demolition and/or disposition of public housing.  A public housing authority must apply to HUD to demolish or dispose of public housing property.

For disposition of public housing property, the application must be based on at least one of three reasons: 1) The conditions in the area surrounding the project adversely affect the health or safety of residents or the feasible operation of the project, which can be supported by either conditions that present serious obstacles ion maintaining the under as healthy and safe housing an why the housing authority cannot cure or mitigate those conditions in a cost-effective manner or lack of demand for the units; 2) disposition allows for the development of other properties that will be more efficiently or effectively operated as low-income housing; 3) disposition is in the best interest of the residents and the housing authority, which can include unit obsolescence, very small (50 or fewer units) housing authority, comprehensive rehabilitation or replacement through rental assistance demonstration, improved efficiency or effectiveness through on-site development of low-income housing or scattered site units that are no longer sustainable.

For non-dwelling and vacant land, the housing authority must certify that the property exceeds the needs of the project or disposition of the property is incidental to, or does not interfere with, continued operation of the project.

Disposition at below fair market value requires a finding of commensurate public benefit, which HUD determines on a case-by-case basis.  Generally, the disposed property is developed for affordable housing serving low-income families.

For demolition of public housing, HUD reviews demolition requests in accordance with the following criteria: 1) substantial physical issues of the building or units; 2) the location of the units causes obsolescence, including physical deterioration of the neighborhood, change in neighborhood from residential to industrial or commercial, or environmental conditions of the cite jeopardize residential use; 3) other factors that impact the marketability, usefulness or management of the units that seriously impedes operation of residential use.

In any 5 year period, a housing authority can demolish the lesser of 5 units or 5% of the total public housing units without HUD approval.

As part of HUD’s approval of an application for disposition or demolition, a housing authority may be eligible for tenant protection vouchers.  The housing authority must apply to HUD separately for tenant protection vouchers.

Other requirements for disposition or demolition include that the housing authority should not re-rent units while HUD is consideration an application unless it is necessary for community needs or other reasons consistent with the public housing authority plan, and that the housing authority certifies compliance with applicable civil rights requirements.

If residents are relocated because of demolition and/or disposition, the housing authority must follow the requirements in 24 CFR 970.21 instead of the Uniform Relocation Act.  However, if CDBG or HOME funds are used in subsequent acquisition, rehabilitation or demolition, the project may be subject to the Uniform Relocation Act, including relocation assistance and one-for-one unit replacement.  (PIH Notice 2018-04, March 22, 2018.)

Expulsion from California State Preschool Programs

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Expulsion from California State Preschool Programs

The California Department of Education (CDE) has issued instructions regarding expulsion or disenrollment from California State Preschool Programs for behavior.  These instructions implement AB 752 (2017).

Prior to expulsion or disenrollment for a child’s persistent and serious challenging behavior, the California State Preschool Program (CSPP) contractor must, within 180 days, take the following steps:

  1. Consult with the child’s parents or legal guardians and teacher to maintain the child’s safe participation in the program.
  2. Inform the parents or legal guardians of a child exhibiting persistent and serious challenging behaviors of how the CSPP will assist the child in order to safely continue to participate in the program.
  3. If the child has an Individualized Education Plan (IEP) or Individualized Family Support Plan (IFSP), and with the parent or guardian’s written consent, consult with the local educational agency or the local regional center on how to serve the child.
  4. If the child does not have an IEP or IFSP, consider (a) completing a universal screening including social and emotional development, (b) referring the parent or guardian to local community resources, and (c) implementing behavior supports, before referring the child to the local educational agency to request an assessment to determine the child’s eligibility for special education support and services, including a behavior intervention plan.
  5. If after these steps concerns about safe participation remain, the contractor will consult with the child’s parents or legal guardians, the child’s teacher, and if applicable, the local educational agency providing special education services to the child.
  6. If the contractor determines that the child’s continued enrollment would present a continued serious safety threat to the child or other enrolled children the contractor shall refer the parents or legal guardians to other potentially appropriate placements such as Resource and Referral agencies and programs, or other local referral services available in their community.
  7. Once the reasonable steps outlined above have been completed, the contracting agency may then disenroll the child, subject to the due process requirements and procedures.

CDE identified several resources regarding children with challenging behavior.  (Management Bulletin 18-06, August, 2018.)

Transfer from Stage 1 to Stage 2 child care

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The California Department of Education (CDE) has issued instructions regarding transition from Stage 1 child care to Stage 2 child care. Stage 1 is child care for CalWORKs recipients participating in welfare-to-work activities.  Stage 1 is administered by the California Department of Social Services through county welfare departments or Alternative Payment Programs (APP) under contract with county welfare departments.  Stage 2 is child care for CalWORKs recipients who are found to be stable on the program or former CalWORKs recipients.  Stage 2 is administered by CDE through contracts with APPs.

Stage 2 contractors must develop efficient coordinated systems for transferring families from Stage 1 to Stage 2 to ensure that families do not experience a break in child care services.  The sending Stage 1 program and the receiving Stage 2 program are responsible for data sharing and coordination to ensure the transfer of the nine data elements needed for child care eligibility and payment.  Only those nine data elements must be received to transfer the family to Stage 2.  If the nine data elements are incomplete or are missing information, the family should continue to receive Stage 1 child care until the nine data elements are transferred.  The Stage 2 contractor cannot require the family to provide documentation to transfer to Stage 2.

When the Stage 2 contractor receives all nine data elements and informs the Stage 1 contractor that the nine data elements are complete, the family’s enrollment is transferred to Stage 2.  The family’s 12 month eligibility period for Stage 2 begins on the date the nine data elements are received and confirmed.  There is no need to for the family to complete an application for Stage 2.  Starting on the date the nine data elements received and confirmed, the Stage 2 contractor must assume full responsibility for reimbursing the provider and provide written notice informing the parent of the transfer.

Current CalWORKs recipients are categorically eligible for Stage 2 until they are certified no sooner than 12 months after transfer.  If a CalWORKs family would have their child care terminated for violation of a child care contractor’s reasonable policies, the contractor must notify the county welfare department about possible actions including transfer to Stage 1.

Families who transfer to Stage 2 as former CalWORKs recipients must report if their income exceeds 85 percent of State Median Income.  (Management Bulletin 18-05, August, 2018.)