TN 3 (01-07)

Citations:

20 CFR Sections 404.1518 404.1579(e)(2) and 404.1579(e)(3); 404.1579(g)(5); 404.1579(g)(6) and; 404.1587; and 404.1594(e)(3); 404.1594(g)(6) 404.1594(g)(7) and; 404.1596(b)(2)(i); 404.1596(d) and 404.1596(e); 416.992; 416.994(b)(4)(ii) and 416.994(b)(4)(iii); 416.994(b)(6)(i); 416.994(a)(f)(2) and 416.994(a)(f)(3); 416.994(a)(g)(6).

A. Introduction

The following FO instructions address circumstances in which failure to cooperate (FTC) or whereabouts unknown (WU) issues arise during the continuing disability review (CDR) process. In addition, the instructions also address FTC/WU development and adjudicative actions.

B. Definitions

1. FTC – Failure To Cooperate (FTC) occurs in a CDR case when there is a question about whether a beneficiary continues to be disabled and SSA/DDS asks him/her to furnish required medical or other evidence needed to complete development of the case, or to attend a consultative exam (CE) by a certain date and he/she fails, without good cause, to do so.

2. WU – Whereabouts Unknown (WU) exists in a CDR case when there is a question about whether a beneficiary continues to be disabled and, after exhausting all procedural requirements to locate the individual, SSA/DDS is still unable to find him/her to resolve the question.

C. Policy - FTC/WU CDR

1. General

The Social Security Administration (SSA) is required by law to periodically review the continuing eligibility of all disabled and/or blind beneficiaries and recipients. In order to perform this review, the Disability Determination Services (DDS) compares the severity of the beneficiary’s medical condition at the time of the most recent favorable medical decision (i.e., the comparison point decision (CPD)) to the severity of the beneficiary’s current medical condition.

The Field Office (FO) is responsible for the initial personal contact with the beneficiary/payee and for securing the requested medical information in order for the DDS to complete the CDR. (See DI 13005.030).

When SSA conducts a CDR or there is a question about whether an individual continues to be eligible for disability benefits, the individual has a responsibility to cooperate with or to take any required action requested by SSA/DDS to complete the CDR. In title XVI disabled child claims this responsibility ultimately rests with the applicant, usually the child's parent, other caregiver, or representative payee. (See DI 13015.005A.2.a. for the process regarding title XVI childhood disability cases and FTC).

a. CDR is pending in the FO – FTC case

A streamlined FTC process was implemented for medical CDRs on January 27, 2007, in the FO. If the FO annotates the FTC decision to the DCF on or after January 27, 2007, the streamlined FTC process applies.

• For title II disability cases, when a beneficiary/payee fails to comply with our request for necessary information or evidence needed to complete the CDR (after making every effort to obtain the requested information or evidence per DI 13015.005A.1.), the FO will make an FTC determination which will be recorded on the DCF, per DI 13015.005A.2.d. (Also, see Modernized Systems Operations Manual (MSOM) MSOM CDR 001.007 for more detailed procedures on the DCF). This will result in benefits to the title II beneficiary being placed in a non-payment status. (See DI 13015.005A.) The suspension notice will be automatically generated when the transaction is processed. If the beneficiary does not cooperate during the 12-month suspension period, benefits are automatically terminated effective the 13^th month. No benefit continuation will be offered.

• For title XVI disability cases, including children and age 18 redeterminations, when a recipient/payee fails to comply with our request for necessary information or evidence needed to complete the CDR (after making every effort to obtain the requested information or evidence per DI 13015.005A.2.), the FO will make an FTC determination which will be recorded on the DCF. (See MSOM CDR 001.007 for more detailed procedures on the DCF). This will result in payments to the Title XVI recipient being placed in a non-payment status (N20). For additional information regarding procedures for FTC development, see DI 13015.005A. and SI 02301.235). The suspension notice will be automatically generated when the transaction is processed. If the recipient does not cooperate during the 12 month suspension, payments are automatically terminated effective the 13^th month. No benefit continuation will be offered.

• If a title II or title XVI beneficiary cooperates during the 12 month suspension period, benefits can be reinstated if all other factors of entitlement are met. (See DI 13015.005A.2.e.) The beneficiary does not have to file an appeal to have benefits reinstated.

• The streamlined CDR FTC process does not apply to title II cases where the beneficiary fails to cooperate and benefits have been terminated due to work and a medical CDR determination by the DDS is necessary to determine if entitlement/eligibility to extended Medicare benefits should continue. By implementing regulations, the streamlined CDR FTC process applies only to title II and title XVI cases when an individual fails to cooperate in the CDR process. It does not apply to title XVIII cases to determine if entitlement/eligibility for extended Medicare benefits should continue.

  See DI 13015.005A.3 for instructions on transferring these cases to the DDS.

b. CDR is pending in the DDS – FTC case

An individual's FTC, without good cause, is a basis for the DDS to find cessation and terminate title II and/or title XVI benefits when there is not enough evidence to justify a continuance. FTC does not apply if there is enough evidence to make a continuance determination. The DDS decision is considered to be a medical cessation and benefit continuation may apply.

c. WU cases

WU is a basis for the FO to find cessation and terminate title II benefits.

In title XVI cases, WU is a basis to suspend, but not to terminate SSI payments until the recipient is located.

If the case is pending at the DDS and the DDS attempts to contact a beneficiary during the processing of the CDR and they are unable to locate the beneficiary, WU applies if the file does not contain sufficient medical documentation for the DDS to prepare a determination. The DDS returns the file to the FO, the FO accepts jurisdiction and prepares a determination per DI 13015.005B.4.

2. Medical Improvement Review Standard (MIRS) and Exceptions

The MIRS states that an individual's period of disability will end if he/she has experienced medical improvement (MI) that is related to the ability to do work since the last favorable disability determination, and he/she can currently engage in substantial gainful activity (SGA), when relevant, unless an exception applies.

For title XVI children, the MIRS states that an individual’s disability will end if there has been medical improvement and the child’s impairment(s) no longer results in marked and severe functional limitations. See DI 28005.020 and DI 28005.025 for a complete description of the MIRS as it applies to title XVI children.

The law provides for two groups of exceptions to medical improvement (MI). (See DI 13005.005 for a discussion of the exceptions to MI.)

FTC and WU are among the “Group II” exceptions to the requirement for MI under the MIRS. Unlike the exceptions in “Group I,” FTC and WU exceptions do not require a determination of ability to engage in SGA or in title XVI childhood cases (See DI 25205.020), a determination that the impairment(s) no longer cause(s) marked and severe functional limitations. (See DI 28020.900)

Therefore, unless there is enough evidence to justify a continuance, SSA will find that an individual's disability has ended when there is a question about whether the individual continues to be disabled and:

1. (FTC) the individual fails to give SSA medical or other evidence or to go for a physical or mental examination by a certain date and the individual does not have good cause for his/her failure to do what SSA asks. FTC can be a basis for finding that disability has ended in the title II cases without applying the MIRS, or

2. (WU) SSA is unable to find the individual to determine if disability continues. WU can be a basis for finding that disability has ceased without applying MIRS. In title II cases, SSA/DDS will determine that disability has ceased. However, for title XVI cases, SSA will determine that benefit payments must be suspended.

3. Suspension month – FTC

• In title II FTC cases, a beneficiary’s failure to comply with an SSA request for necessary information or evidence will lead to the suspension of benefits. The suspension of benefits will be effective the first month that does not cause an overpayment and would only be proper after SSA fulfills its responsibility with respect to requesting and obtaining information. (See DI 13015.001D.2.)

• In title XVI FTC cases, a recipient’s failure to comply with an SSA request for necessary information or evidence will lead to a determination of ineligibility (N20) – (See DI 13015.005A.2.c. and SI 02301.235). An FTC determination will result in non-payment of SSI payments the first month that does not cause an overpayment and would only be proper after SSA fulfills its responsibilities with respect to requesting and obtaining information and after applying the Goldberg/Kelly due process procedures. (See DI 13015.001D.2.)

4. Termination month – FTC

If the individual fails to comply with our request for necessary information or evidence needed to complete the CDR and benefits are in suspense for 12 months, eligibility will be terminated effective the 13^th month. No DDS medical determination is necessary. No benefit continuation will be offered. See DI 13015.010 for instructions on establishing the FTC month when work is the sole issue.

5. Cessation month – WU

When there is not enough evidence to justify a continuation for WU, benefit payments stop for the first month in which:

SSA/DDS learns that the individual’s whereabouts are unknown, but no earlier than the month in which the continuing disability issue arose. For title II cases, it is a non-medical cessation of benefits. For title XVI cases, it is a technical suspension of payments.

NOTE: See DI 13015.010 for further discussion on determining FTC/WU termination/cessation date.

6. Good cause

In determining whether an individual has good cause for failing to cooperate, consider the individual's limitations, i.e., physical, mental, educational and verbal (including any lack of facility with the English language). See GN 03101.020 for general guidelines regarding good cause determinations.

D. Policy - Overview of FTC/WU determination process

1. Jurisdiction

DDS, PCs, and FOs each have a role in the development of FTC and WU determinations. In title II and title XVI CDR cases when the beneficiary/payee fails to comply with the FO request for necessary information or evidence needed to complete the CDR, the FO should implement the streamlined FTC process resulting in the suspension of benefits instead of sending the case to the DDS. See DI 13015.005A.1.

The streamlined CDR FTC process does not apply to title II cases where the beneficiary fails to cooperate and benefits have been terminated due to work and a medical CDR determination by the DDS is necessary to determine if entitlement/eligibility for extended Medicare benefits should continue.

If the FTC or WU issue arises during the course of PC development, and development cannot be completed, send the folder to the FO via a Form SSA-5526-U3 (Request for Assistance – Disability) or request FO assistance in locating the individual or in obtaining the individual's cooperation.

If the beneficiary/payee cooperates with the FO, but fails to cooperate with the DDS (e.g., fails to attend the CE) the DDS must make a medical determination.

WU determinations are considered non-medical cessations for title II cases and technical suspensions for title XVI cases.

Jurisdiction in FTC and WU cases is determined as follows:

a. FTC determinations

• For title II medical issues only CDR, when a beneficiary/payee fails to comply with our request for necessary information or evidence needed to complete the CDR (after making every effort to obtain the requested information or evidence per DI 13015.005A.), the FO will make a FTC determination which will be recorded on the DCF. (See MSOM CDR 001.007 for more detailed procedures on the DCF). This will result in benefits to the title II beneficiary being placed in a non-payment status. (See DI 13015.005A.)

  EXCEPTION: The streamlined CDR FTC process does not apply to title II cases where the beneficiary fails to cooperate and benefits have been terminated due to work and a medical CDR determination by the DDS is necessary to determine if entitlement/eligibility for extended Medicare benefits should continue. See DI 13015.005A.3. for instructions on transferring these cases to the DDS.

• If work is the sole issue, the FO should make an SGA determination based on available evidence whenever possible. In the rare instances when there is no available evidence regarding the work activity and the beneficiary fails to provide the requested information, prepare the FTC cessation determination. See DI 13015.005A.3. for detailed instructions.

• For title XVI medical CDR cases, when a recipient fails to comply with our request for necessary information or evidence needed to complete the CDR, the FO will make an FTC determination resulting in title XVI ineligibility (N20). An FTC determination resulting in the non-payment of title XVI payments will be proper only after the FO fulfills its responsibilities for requesting and obtaining information and after applying the Goldberg/Kelly due process procedures. (See DI 13015.005A.1. and SI 02301.235. For childhood cases involving FTC, follow DI 13015.005A.2.a. and DI 25205.020.)

NOTE: The PC should never input a FTC determination to the DCF on a medical CDR case.

b. WU determinations

If the issue arises in the FO, the FO prepares the determination and suspends or terminates payment as appropriate in both work and medical issue cases. See DI 13015.005B. for procedures.

If the issue arises in the DDS, the DDS stops development and returns the file to the FO. If the FO is unsuccessful in locating the beneficiary, the FO prepares a WU cessation determination for title II claims and/or suspends payment of benefits in title XVI cases.

NOTE: Career railroad cases must be sent to the Disability Review Section in the Great Lakes Program Service Center.

2. General development issues

In all cases, SSA should be sensitive to situations in which the individual may require assistance to comply with SSA requests.

1. Mental Impairment - Whenever a mental impairment is involved, FOs should consider:

   • the nature of the individual's impairment and use all available resources to obtain the needed information, and

   • whether a representative payee (RP) or change of RP is needed.

2. Homeless Individuals - FOs should check the file to determine the name, address, and/or telephone number where the individual can be contacted or if there is a third party who may be able to assist in obtaining the needed information. Authorization forms to obtain information from specified third parties should be in file.

3. Assisting Individuals

   Assist the individual in understanding the importance of cooperating with the CDR process:

   • Explain to the claimant what additional information is needed and why.

   • Explain the reason for the CDR.

   • Advise the claimant that if he/she refuses to attend the CDR interview or participate in the CDR process, his/her benefits may be terminated.

   • Consider possible incapability if the claimant refuses or fails to respond to a request for further development.

   • Consider requesting assistance of a third party or claimant’s medical source(s).

   • Consider the claimant's inability to comply because of illness or other valid reasons and defer the CDR until a later date; have the claimant examined at home; or transfer the CDR interview to a more convenient location.

   • Follow DI 13015.005A.2.a. and DI 25205.020 in childhood cases, if the child/payee is not providing the required information or cooperation.

4. Assure that documentation is accurate and complete because the reports of contact and copies of correspondence will be used to determine when SSA first requested information/attendance at a CE and when the disability will be ceased should the claimant fail to cooperate or if the individual cannot be located.

   • Document the file on Form SSA-5002 (Report of Contact) Decision Documentation Sheet-CDR FTC (DI 13015.250) with all efforts made and the results of such efforts.

   • Include copies of all correspondence and other information pertinent to the processing of the claim.

   NOTE: FOs must use the Disability Control File (DCF); this tool is essential to establishing payment suspension and termination dates (DI 13010.500). See DI 13015.005A.2.d. for instructions on DCF coding. (Also see MSOM CDR 001.007 for more detailed procedures on the DCF).

5. Close-out

   • For FTC - Title II suspension and termination notices will be automatically generated. The title XVI suspension notice will be generated when the system processes an N20 input (SI 02301.235).

   • For WU - FO sends the due process notice to the last known address (DI 13015.095, Exhibit 2). The title XVI notices will be sent through normal S06 development procedures. See SI 02301.240.