TN 36 (09-15)

A. Procedure for group II exceptions

These exceptions (described in the definitions and references in subsection B) do not require:

• A finding that the individual is not currently disabled; i.e., do not require a finding of ability to engage in Substantial Gainful Activity (SGA) or,

• For Title XVI child cases, a finding that the child's impairment(s) no longer causes marked and severe functional limitations.

Consider these issues whenever they arise, at any point in the Continuing Disability Review (CDR) evaluation process (DI 28005.015, DI 28005.030).

Related Procedure:

See DI 28005.205 concerning cessation month where a group II exception applies.

B. Definitions and references regarding group II exceptions

1. Fraud or similar fault (FSF)

For definitions of the terms “fraud” and “similar fault” refer to GN 04105.005B.

The Group II exception for FSF applies when a priorfavorable determination or decision involved FSF. If we find that any prior favorable or partially decision was obtained by FSF, we may find that the beneficiary is not disabled. In addition, we may reopen the prior determination on the remaining evidence.

This exception does not apply when FSF is involved only in the pending CDR. In this situation; follow the FSF instructions in DI 23025.001 through DI 23025.095. When FSF occurs in the pending CDR, disregard evidence obtained by FSF and make a determination on the remaining evidence. This may result in either a cessation or a continuance determination.

References:

• DI 27505.015, Fraud or Similar Fault - Reopenings

• DI 28020.375, Error, Reopening, and the Medical Improvement Review Standard (MIRS)

• DI 23025.000, Fraud or Similar Fault

2. Failure or refusal to cooperate

Failure to cooperate (FTC) means the beneficiary did not state orally or in writing that he or she would not provide the needed evidence (e.g. description of past work) or perform the needed action (e.g. respond to a call in letter). However, without good cause, the beneficiary failed to comply with the request.

Refusal to cooperate means that the beneficiary states orally or in writing that he or she WILL NOT provide the needed evidence or perform the needed action, and the beneficiary does not provide good cause why he or she will not cooperate with the request.

If the beneficiary provides good cause for not cooperating, give the beneficiary another opportunity to provide the needed evidence or perform the needed action. FTC without good cause is a basis for the Disability Determinations Services (DDS) to find a cessation and terminate Title II and/or Title XVI benefits only when there is not enough evidence in file to justify a continuance. FTC does not apply if there is enough evidence to make a continuance determination. For good cause reasons for FTC, see POMS GN 03101.020C.

Children are not ordinarily in a position to pursue their claims independently. Make special efforts in Title XVI child cases involving noncooperation to identify and contact another adult or agency responsible for the child's care.

The general approach to apply failure to cooperate in DI 23007.000 and whereabouts unknown located in DI 25205.020 and DI 13015.001 through DI 13015.020 applies to CDRs as well as to initial claims.

References:

• DI 28075.005, Failure to Cooperate (FTC) and Whereabouts Unknown (WU) Cases

• DI 25205.020, Failure Issues

• DI 23007.000, Failure to Cooperate

3. Whereabouts unknown

Whereabouts Unknown (WU) status exists when the beneficiary cannot be located at last known address, and the beneficiary’s whereabouts are unknown.

References:

• DI 28075.005, Failure to Cooperate (FTC) and Whereabouts Unknown (WU) Cases

• DI 13015.001 through DI 13015.020

4. Failure to follow prescribed treatment

An individual must follow his or her own medical source’s prescribed treatment to receive disability, SSI, or statutory blindness benefits if the treatment is expected to:

• restore the ability to engage in SGA in adult claim,

• reduce functional limitations so that they are no longer marked and severe in child claims, or

• restore vision in blindness claims.

  However, we do not require the individual to follow the prescribed treatment if he or she shows good cause. See POMS DI 23010.005A.3 for good cause reasons for failing to follow prescribed treatment.

Reference:

DI 23010.005, Failure to Follow Prescribed Treatment - Policies