TN 30 (12-09)

Citations:

Section 222(c)(1) of the Social Security Act, as amended. Regulations section 404.1592

A. Introduction to the TWP

The TWP provision gives a Title II disabled beneficiary the chance to test his or her ability to work and hold a job without the threat of losing benefits. During this period, the beneficiary may perform services for remuneration or gain, and still be considered disabled. We define “Services” as any activity in employment, or self-employment that is performed or is normally performed for pay or profit. We cannot cease disability during the TWP based on a beneficiary’s work activity.

B. What is the TWP?

• An initial determination that carries appeal rights, and is protected by the provisions of administrative finality.

• Consists of nine service months which do not have to be consecutive.

• Continues only while the beneficiary has a disabling impairment.

NOTE: If a beneficiary returns to work when there is a medical improvement expected (MIE) diary, the possibility of medical recovery exists. We must evaluate MIE diary cases for medical improvement as soon as the beneficiary returns to work, unless he or she is protected from a medical continuing disability review (CDR) under the Ticket to Work program, or under the Protection from Medical Review based on Work Activity provision.

References:

• DI 13005.001, Field Office Role In Medical Issue Cases

• DI 13005.005, Basis for Deciding Continuance of Disability

• DI 13005.005 Medical Improvement Diaries

• DI 13010.012, Protection from Medical Review Based on Work Activity

• DI 13010.060, Determining Trial Work Period (TWP) Service Months and Evaluating Subsequent Work Activity

• DI 41001.025, TWP and EPE Provisions of the Law as They Apply to Statutorily Blind Individuals

• GN 03101.040, Appeals- Initial Determination

• DI 55025.001, Determining Ticket Status

C. Entitlement to TWP

1. Beneficiaries are entitled to a TWP:

• Only once during a period of disability for Title II disability beneficiaries.

• After completing the initial reinstatement period (IRP) and after we reinstate disability through the expedited reinstatement (EXR) provisions (see DI 13050.001).

2. Beneficiaries not entitled to a TWP:

• Any Title XVI only recipient (effective 07/01/1987).

• Beneficiaries entitled to a freeze only (see DI 10105.025).

• Beneficiaries already entitled to a TWP during the same period of disability. NOTE: a statutorily blind individual who was eligible for cash benefits, entered into freeze status due to work, and then became eligible for cash benefits again is in one continuous period of disability.

• Beneficiaries reinstated through the EXR provisions who have not completed the 24-month IRP (see DI 13050.066).

• Prior to 01/1992, a beneficiary re-entitled to disability insurance benefits (DIB) or disabled widow’s benefits (DWB) without serving a waiting period. For work determinations made 08/10/2000 and later, see DI 13010.035F.

• Statutorily blind beneficiaries, age 55 or older, entitled to disability benefits while engaging in non-comparable substantial gainful activity (SGA), stopped working because of an impairment, and later returned to non-comparable SGA that required no significant vocational adjustment, or stopped work for reasons unrelated to an impairment (see DI 41001.025).

• A beneficiary who is receiving continued benefits under section 301 of PL 96-265 (see DI 14505.001).

D. When the TWP begins and ends

1. The TWP begins:

The TWP begins no earlier than the latest of the following dates:

• The month the beneficiary files the application (or protective filing date).

• The month that a disabled beneficiary becomes first entitled, or is re-entitled, to a Title II disability benefit.

• For EXR cases, the month after the IRP is completed.

• For a DWB case, 12/1980.

• For Childhood Disability benefits (CDB), the later of:

  • the month the beneficiary attains age 18, or

  • the first month of entitlement to CDB benefits (whether or not a new application is needed).

  Begin counting the TWP months when the beneficiary returns to work and has earnings that meet the definition of services as shown in DI 13010.060, “Determining Trial Work Period (TWP) Service Months and Evaluating Subsequent Work Activity.”

  EXAMPLE 1: A beneficiary becomes entitled to disability effective 11/2008 based on an application filed in 07/2008. We discover that the beneficiary engaged in non-SGA work in 09/2008, but earned over the amount for a TWP service month. The work in 09/2008 cannot be a TWP service month, because the TWP can not begin before 11/2008 (the Month of Entitlement (MOET)).

  EXAMPLE 2: A beneficiary becomes entitled to disability effective 01/2008 based on an application filed in 09/2008. We discover that the beneficiary engaged in non-SGA level work from 06/2008 through 11/2008. Since the TWP cannot begin before the month of filing, we determine that the work activity from 06/2008 through 08/2008 cannot be considered TWP months. We have to evaluate work from 09/2008 through 11/2008 to determine if they are TWP service months.

  EXAMPLE 3: A beneficiary becomes entitled to disability benefits effective 01/2009, based on an application filed in 07/2009. The beneficiary received a final determination notice in 08/2009. The beneficiary reports that he or she worked SGA in 10/2009. We determine that work activity was performed after the waiting period and after the final determination; therefore, the TWP provisions apply. Begin counting the TWP months with the first month of SGA, 10/2009.

2. The TWP ends:

a. Effective 01/1992 – Rolling TWP applies

Under the rolling 60-month TWP provision, the TWP is complete when nine service months fall within a 60 consecutive-month rolling period ending no earlier than 01/1992 (see DI 13010.060D).

EXAMPLE 1: A beneficiary returns to work in 11/2007, continues to work, and earns $950 per month. Review of her file indicates that she was entitled to a TWP prior to 01/2007, and previously completed two months of her TWP in 2004. Since she completed less than nine months of trial work under the old TWP provisions as of 01/1992, she is entitled to the rolling 60-month TWP provisions. We establish a TWP diary for 05/2008 because she is close to completing the ninth TWP service month.

EXAMPLE 2: In 02/1992, a beneficiary advises us that he returned to work in 08/1991. He stopped work in 02/1992, and earned $800 per month. Review of our records shows that he was entitled to a TWP prior to 01/1992, and that he previously completed two months of his TWP in 03/1987. In 12/1993, he tells us that he returned to work in 08/1993 and is continuing to work. Since he completed less than nine months of trial work under the old TWP provisions as of 01/1992, he is entitled to the rolling 60-month TWP provisions. He completed the ninth service month in 02/1992. The begin date of the 60-month period ending 02/1992 is 03/1987.

Counting the service months within the period 03/1987- 02/1992, we see that he completed only eight service months, so the TWP continued. When evaluating the work beginning in 08/1993, the 60-month period ending 08/1993 begins 09/1988. Counting the service months within that period, we see that he only completed eight service months: 08/1991 through 02/1992 and 08/1993. Rolling to the next service month, 09/1993, we roll back 60 months to 10/1988 and find that he completed nine service months within the 60-month period 10/1988 - 09/1993: 08/1991 through 02/1992, 08/1993, and 09/1993.

b. Prior to 01/1992 – Rolling TWP does not apply

The TWP ends with the ninth month that the beneficiary performed services in the TWP, or when the disability ceased for reasons other than work (e.g., medical recovery), whichever is earlier. Most beneficiaries are entitled to a TWP beginning with the first month of entitlement, but does not mean that they are automatically entitled to nine months of trial work.

EXAMPLE 1: A beneficiary entitled to disability benefits 07/1984 based on an application filed in 07/1984 (no Medical Improvement Expected (MIE) diary was established, and medical recovery has not occurred) began work in 01/1985, and continued in all succeeding months. The TWP ends 09/1985.

EXAMPLE 2: A beneficiary entitled 07/1984 based on an application filed in 04/1984, (no MIE diary was established) began work 06/1985. In 09/1985, he submitted a medical report from his attending physician indicating recovery (i.e., affirmative evidence). Based on further medical development, we find medical recovery; cessation of disability is 10/1985, and the TWP ends 10/1985.

EXAMPLE 3: A beneficiary entitled 07/1984 based on an application filed in 09/1984 (MIE diary was established for 06/1985) began work 01/1985. Evidence supported medical recovery in 01/1985. Disability ceased, and the TWP ends 01/1985 (based on a current medical cessation).

EXAMPLE 4: A beneficiary entitled 07/1984 based on an application filed in 07/1984. We established a MIE diary for 06/1985. She began work in January 1985, and continued working in all succeeding months. Since return to work is an indication of possible medical recovery, the Disability Determination Services (DDS) conducted a CDR but found that the beneficiary was still disabled. As a result, the DDS prepared a continuance determination in 03/1985. When we counted the TWP service months, we found that the TWP began 01/1985, which is the first month that the beneficiary performed services. The TWP ends 09/1985.

E. When a TWP month is not payable due to fraud or concealment of work activity

1. Handling fraud allegations:

You may discover potential fraud or similar fault situations involving work issues in a number of ways: from the Office of the Inspector General (OIG) hotline, anonymous tips received in the field office (FO) or referrals from the Disability Determination Services (DDS).

If you receive an allegation that identifies concealment of work activity:

• prepare and adjudicate the work CDR following current procedures found in DI 13010.025; and

• annotate the electronic form SSA-8551, Referral of Potential Violation, with the potential overpayment total for the TWP months, and include a separate total for any remaining overpayment months.

2. Handling fraud convictions:

If a Federal court convicts a beneficiary of fraudulently concealing work activity that occurred during the TWP, he or she is not eligible to receive payment for any TWP months for services performed in or after March 2004, and before the date of the conviction. When considering nonpayment of TWP months:

• The beneficiary is still entitled to a TWP even though he or she is not eligible for payment of benefits during the TWP months covered by the conviction court order.

• The beneficiary is liable for repayment if we paid him or her for TWP months that we should not have. The amount of the overpayment is subject to appeal but is not subject to waiver rights. We continue to pay all auxiliaries on the account when the beneficiary is suspended, but we do not readjust benefits for a family maximum for TWP fraud suspension.

References:

• GN 03101.050, Appeals - Notice of Initial Determination

• GN 04111.065, Preparation of the Electronic Form SSA-8551 (e8551)

• DI 11006.015, Potential Fraud or Similar Fault (FSF) Cases with Work Issues

• DI 11006.025, Field Office (FO) – Referring Potential Fraud or Similar Fault (FSF) Cases for Possible Prosecution

• DI 13010.037, Trial Work Period (TWP) and Fraud Conviction.

F. Impact of other work incentives on the TWP

Do not apply any work incentive policy rules when determining the existence of service months during the TWP. Do not apply: impairment-related work expenses (IRWE), subsidy, special conditions, unsuccessful work attempts (UWA), un-incurred business expenses, unpaid help, or any other work incentive to determine countable income for the TWP. NOTE: Do not apply averaging when calculating TWP months. If you are unable to verify a monthly breakdown of earnings (see DI 10505.005F).

G. TWP in a subsequent period of entitlement

1. Work issue determinations made August 10, 2000 and later

Effective 08/10/2000, apply the TWP provision in a subsequent period of entitlement to DIB, DWB, or CDB regardless if a new waiting period is served.

EXAMPLE: A beneficiary who filed his application for disability on 01/10/2001 is determined to have an actual re-entitlement date, based on a protective filing date of 02/1990. We terminated his prior entitlement to disability in 1988. Since 02/1990, he first returned to work from: 04/1991 through 12/1991. The TWP protections apply to the 04/1991 through 12/1991 work activity, because, even though he is a re-entitled disability beneficiary who did not serve a new waiting period, we are evaluating his 1991 work activity after 08/10/2000, when the expanded provision took effect.

2. Work issue determinations made prior to August 10, 2000

Prior to 08/10/2000, a re-entitled DIB or DWB beneficiary who did not serve a new waiting period could only receive a TWP if entitlement existed as of 01/1992 or later. Apply the TWP provision for a DIB or DWB in a subsequent period of entitlement if he or she:

• returned to work 01/1992 or later; or

• returned to work prior to 01/1992 but the work was not SGA (i.e., disability continued after 12/1991).

• returned to work, but served a defacto TWP (see DI 13010.035B.2.).

3. Work issue determinations made prior to January, 1992

Do not apply TWP provisions for a beneficiary entitled to disability or DWB in a subsequent period of entitlement when he or she did not serve a waiting period (i.e., the beneficiary became re-entitled within 60 months of the previous entitlement) if:

• we find that disability ceased because of work activity before 01/1992; and

• we made the determination before 08/10/2000.

An exception to this applies when the beneficiary files an application for benefits seventeen or more months after onset. The limitation on retroactivity of a claim creates a “de facto” waiting period, so we allow a TWP.

H. TWP in simultaneous entitlement to DIB, DWB, or CDB benefits

A beneficiary is entitled to one TWP during a period of entitlement. When a beneficiary is simultaneously entitled to two or more Title II disability benefits, he or she is entitled to a separate TWP on each entitlement. If we credit TWP service months on one record before the claimant became entitled on another record, the TWP months cannot be charged to the subsequent record.

Consequently, the beneficiary could be in a separate work incentive status (e.g., a TWP on one record and Extended Period of Eligibility (EPE) on another) if the entitlement dates differ, and he or she worked between entitlement dates; or, we could find different total service months used on different entitlements.

Example: A disabled beneficiary is a mother with child in care (BIC E), and has Medicare (she is disabled and over 50, but has a child in her care). She works and uses TWP or EPE months. When her youngest child is no longer eligible for benefits, we convert her to a higher benefit payment (from BIC E to BIC W - disabled widow). Consider this transition as one period of disability based on her entitlement as an E who is deemed disabled for Medicare DI 25501.360. TWP or EPE months from her E entitlement apply when she is converted to W DI 13010.035H.

The Disability Control File (DCF) presents summary information for dual-entitlement claims, and claims with multiple TWPs. Find the summary information for a particular claim on the Entitlement Summary (ESUM) Screen (see MSOM CDR 002.006). Use eWork on all entitlements; the eWork system propagates the earnings information onto the VERN screen onto the DCF.

NOTE: For Medicare Qualified Government Employees (MQGE): If an MQGE becomes insured for disability benefits, he or she is subject to the same disability evaluation and reviews as a beneficiary who is entitled to disability based on insured status. For more information on MQGE disability claims, see DI 11035.001.

I. Entitlement to an EPE after completing the TWP -

After the TWP is complete, the EPE provisions apply. Effective 01/1992, the EPE begins the month immediately following the ninth TWP service month completed within 60 (consecutive) months. If a beneficiary is not entitled to a TWP, he or she cannot be entitled to an EPE. For more information on EPE, see DI 13010.210, Extended Period of Eligibility.