TN 29 (11-09)

Citations:

20 CFR §404.1592a

Introduction

This section provides the policy for the EPE. Specifically, it defines the program, application of the program, and the effects of the EPE on Title II beneficiaries who have returned to work. Procedure for processing EPE cases are in DI 13010.215.

A. What is the EPE?

Congress enacted section 303 of the 1980 amendments providing a re-entitlement period under Title II to a beneficiary who completes nine months of trial work and continues to have a disabling impairment, to encourage disabled beneficiaries an attempt to work. We refer to this provision as the EPE. The EPE provides a 36-month re-entitlement period during which a beneficiary can be re-entitled to benefits if his or her work activity falls below the substantial gainful activity (SGA) level. Following the re-entitlement period, the EPE continues until a beneficiary performs SGA.

B. Effect of the EPE

The EPE does not change the definition of disability. A beneficiary is eligible for payments as long as he or she continues to meet the definition of disability. The EPE permits re-instatement of benefits when the beneficiary’s benefits have ceased due to SGA, and his or her earnings fall below the SGA levels.

C. Legislative extension of the Title II re-entitlement period

1. Public law (P.L.) 100-203 (The Omnibus Budget Reconciliation Act of 1987)

This provision lengthened the re-entitlement period under the EPE provision from 15 months to 36 months.

2. Effective date

The 36-month re-entitlement period under EPE became effective 01/01/1988.

3. Applies to

This provision applies to beneficiaries who:

• are entitled to Social Security Disability Insurance (SSDI) benefits for any month after 12/1987; or

• were entitled to SSDI for any month before 01/01/1988, and whose 15-month re-entitlement period under the prior law had not elapsed as of 01/01/1988.

D. Work incentives and the EPE

Application of the average earnings and the unsuccessful work attempt (UWA) provisions:

• applies during and after the EPE re-entitlement period, but not after the month of disability cessation;

• does not apply if the beneficiary worked during the re-entitlement period and we determine a disability cessation during this period.

Impairment-related work expenses (IRWE), subsidy, and un-incurred business expenses exclusions apply when determining countable earnings.

References:

• DI 10505.015, Averaging Countable Earnings

• DI 11010.145, Unsuccessful Work Attempt (UWA)

• DI 11010.185, When to Develop and Verify Impairment Related Work Expenses (IRWE)

• DI 10510.012B.3., Unincurred Business Expenses

E. When the EPE applies

1. EPE provision effective 01/1988

The 36-month re-entitlement period applies to beneficiaries beginning the month immediately following the completion of the nine month trial work period (TWP) in the following claim situations:

1. First entitled to benefits 01/1988 or later.

2. Entitled to benefits before 01/1988, and:

   • the nine month TWP has not been completed; or

   • the projected benefit termination month (BTM)/disability benefit cessation (DBC) date under prior law is 02/1988 or later.”

NOTE: The 15-month and 36-month re-entitlement provision also apply to claims in which disability is “deemed” (see Medicare for Qualified Government Employment Cases, per DI 13005.060).

2. EPE provision prior to 01/1988

The EPE provisions in effect from 12/01/1980 through 12/31/1987 provided for a 15-month re-entitlement period. The 15-month provision applies if you are processing a retroactive SGA cessation, and:

• The first month of the EPE is 10/1986 or earlier (i.e., the 15^th month of the EPE is 12/1987 or earlier).

• No benefits are payable after 12/1987 due to SGA.

NOTE: The actual BTM/DBC is 01/1988 or earlier.

3. Prior to 12/1980

A re-entitlement period cannot begin before 12/1980, even if the TWP ended before 12/1980. If a beneficiary’s disability ceased before 12/01/1980 based on the provisions of the law in effect at that time, the beneficiary cannot be afforded the EPE provisions.

F. When the EPE does not apply

1. The EPE does not apply in the following circumstances:

• A beneficiary’s disability ceased before 12/01/1980.

• A beneficiary’s disability is determined to have medically ceased.

• A beneficiary is not entitled to a TWP.

• A beneficiary did not complete nine TWP service months.

• A beneficiary has already received an EPE in this period of disability entitlement.

2. The EPE does not apply in certain Title II statutory blindness cases:

• A statutorily blind beneficiary in freeze status only, i.e., not receiving cash benefits because of work activity, is not entitled to an EPE because the beneficiary is not entitled to a TWP. If the beneficiary later becomes entitled to a TWP, there is EPE entitlement;

• A statutorily blind beneficiary, over age 55, receiving benefits on the basis of the special comparability provisions (see DI 10515.015) may not be entitled to a TWP, therefore, the EPE does not apply. If the beneficiary becomes entitled to a TWP, then EPE entitlement exists.

G. When the EPE begins and ends

The EPE begins the month after the TWP ends (whether the beneficiary is working or not). The first 36 months after the TWP is the re-entitlement period. The re-entitlement period begins the month immediately following completion of the TWP, and ends the last day of the 36^th month following completion of the TWP (or the 15th month prior to 01/1988); unless there is a prior medical cessation determination that previously terminated benefits. Non-disability related events such as death or attainment of full retirement age also terminate the EPE.

NOTE: The EPE may last indefinitely beyond the re-entitlement period if a beneficiary with a disabling impairment never engages in SGA. In such case, the EPE continues until the beneficiary either engages in SGA or we find that the beneficiary is no longer disabled.

EXAMPLE: Tom completes his TWP in 12/2004 and continued to work at an SGA level throughout his EPE. His disability benefit cessation month is 01/2005. Benefits are payable for 01/2005 through 03/2005 (the month of cessation and the two following months). His EPE 36th month re-entitlement period begins with the first month following the completion of the nine TWP months (01/2005) and ends the last day of the 36th month period following the TWP (12/2007). In this example, Tom continued to work at SGA levels; his benefit termination month (BTM) is 01/2008, the first month in which he worked SGA after the end of the 36th month re-entitlement period.

H. Defining the grace period and the benefit termination month (BTM)

1. Grace Period

The grace period consists of three months:

• the month of disability cessation; and,

• the two succeeding months following the month of disability cessation.

Pay benefits for all months during the grace period, regardless if months are SGA or non-SGA.

2. BTM

The BTM occurs after the grace period and indicates when eligibility to Title II disability benefits ends.

The BTM is the first month that disability benefits cannot be paid after the EPE re-entitlement period.

3. Determining the BTM during the EPE when impairment severity continues

How to determine the BTM during the EPE:

• SGA cessation within the first 36 months of the EPE

  When a beneficiary's disability ceases because of SGA prior to the 36^th month of the EPE, the BTM is the first month of SGA after the 36^th month re-entitlement period. The grace period months are within the 36-month re-entitlement period.

  EXAMPLE: A beneficiary performs SGA in months 16, 17, and 42 of the EPE. Months 16, 17, and 18 are the grace months, and month 42 is the BTM.

• SGA cessation in or after the 36^th month of the EPE

  When a beneficiary's disability ceases because of SGA in or after the 36^th month of the EPE, the grace period is the following two months and the BTM is the third month after the cessation month.

  EXAMPLE: A beneficiary performs SGA in month 36 of the EPE. Months 36, 37, and 38 are the grace months, and month 39 is the BTM.

NOTE: When making a determination on a case where the 15-month re-entitlement period applies, adjust this guidance accordingly.

4. BTM for combined SGA and impairment severity cessation cases

When there is an SGA cessation and the Disability Determination Services (DDS) finds medical improvement, the BTM is the earliest of the third month after the medical cessation month determined by the DDS or the BTM based on SGA criteria.

NOTE: See HI 00820.025 regarding the extension of Medicare coverage for a Title II beneficiary who continues to have a disabling impairment.

I. Disability benefit payments during and after the EPE

1. Benefit payments

Pay monthly benefits from the start of the EPE through the second month following the month of disability cessation.

Benefits are payable within the EPE re-entitlement period provided the beneficiary is not engaging in SGA.

2. Benefit reinstatement and SGA

The EPE provision permits benefit reinstatement during the re-entitlement period

• when a beneficiary's benefits were stopped because of SGA; and

• the beneficiary's earnings subsequently fall below SGA levels.

NOTE: If the beneficiary is not engaging in SGA when the re-entitlement period ends, benefits continue until the beneficiary engages in SGA (or medical cessation is determined).

3. When earnings fall below SGA

Re-entitle a beneficiary when earnings fall below SGA within the EPE re-entitlement period.

• Reinstatement is effective with the first month of non-SGA.

• Payments continue throughout the EPE, subject to the rule that no benefit is payable for any month of SGA after the second month following the month of cessation.

NOTE: Do not delay reinstatement action pending resolution of a medical issue (see DI 13010.215).

a. When a beneficiary works SGA after the re-entitlement period

• When a beneficiary returns to SGA after the 36 month re-entitlement period, eligibility for Title II payments ends.

• Eligibility for Medicare may continue.

• Review eWork or the Disability Control File (DCF) Query (QCDR) screen when working on a work activity action to be sure of the beneficiary's status before terminating benefits (see DI 13010.650).

b. Earnings fall below SGA after EPE

When a beneficiary's earnings fall below SGA after the EPE has ended, he or she can file a new initial application for benefits or request reinstatement via the expedited reinstatement provision.

References:

• DI 10505.001, General – Evaluation and Development of Employment

• DI 10510.001, SGA Evaluation and Development of Self-Employment

• DI 13010.215D, Extended Period of Eligibility (EPE) Procedures

• DI 13050.001, Expedited Reinstatement –Overview

• HI 00820.025, Termination of Disability HI (D-HI)

J. Disability Determination Services (DDS) responsibilities in EPE cases

The DDS determines if a beneficiary has a disabling impairment. If disability previously ceased because of SGA, the DDS determines if the impairment severity continues or ceases, and documents the determination on a Cessation or Continuance of Disability or Blindness Determination and Transmittal (SSA-833).

1. Title II only – Impairment severity ceases or continues

If impairment severity ceases, the DDS processes the case and forwards their decision to the field office (FO) for the benefit continuation election period. If impairment severity continues, the DDS processes the determination and routes the Electronic Continuing Disability Review (eCDR) or paper folder(s) to Office of Central Operations/ Payment Service Center- Disability Program Branch (OCO/PSC-DPB), who releases the DDS prepared notice.

2. Concurrent cases – Title II and Title XVI

Impairment severity continues:

If it is determined that the disability has previously ceased because of SGA, and the DDS determines that the disabling impairment continues, the DDS processes the determination and routes the case in accordance with DI 32010.040. The DDS sends a copy of the SSA-833-U5 to the FO and releases the continuance notice.

Impairment severity ceases:

In cessation of the Title II portion of a concurrent case, the DDS processes the case and forwards the paper folder to the FO.

NOTE: For eCDR case, route according to DI 81020.250B.

K. Resolving medical issues after the EPE

• A beneficiary must continue to have a disabling impairment to maintain entitlement to many work incentive benefits. Some of these incentives, e.g., Medicare, continue after the EPE is completed. If a medical issue arises in these cases, the DDS makes a determination regarding continuing impairment severity.

• If a beneficiary files a new application for benefits and the DDS determines the beneficiary is not disabled, the DDS makes a determination of continuing impairment severity (considering the medical improvement standard) to determine if eligibility for Extended Medicare should continue. If the DDS does not make a Medicare determination, return the case to the DDS for this purpose.

References:

• DI 81010.200 through DI 81010.240 for the Electronic Continuing Disability Review (eCDR)

• DI 28055.020, Identifying EPE Cases Which Require a DDS Determination

• DI 32010.040, EPE Initial Continuing Disability Review (CDR) Impairment Severity Cases – Routing Instructions

L. Title II period of disability ends

The period of disability ends the last month disability benefits are payable.

If a beneficiary completes the TWP and

• continues to perform SGA, the period of disability ends the second month after the month of cessation (the last month of payable benefits); or

• disability ceases, but benefits are later reinstated during the EPE re-entitlement period; the period of disability ends the last month disability payments are payable.

If a beneficiary's impairment is no longer disabling (medical cessation) at some time after the beneficiary completes nine TWP service months, the period of disability ends with the earlier of:

• the second month after the month the impairment is not disabling, or

• the last month of payment based on SGA.