TN 3 (01-07)

Citations:

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

A. Introduction

A failure to cooperate (FTC) or whereabouts unknown (WU) issue may arise at any point during the continuing disability review (CDR) when a disabled individual cannot be located, does not furnish medical or other evidence, or fails to attend a consultative examination (CE) by a certain date.

The following instructions cover circumstances in which FTC or WU occurs during the CDR process while the case is in the FO or the DDS. More instructions regarding failure or refusal to attend a CE can be found in DI 23007.010.

NOTE: Effective January 27, 2007, a streamlined FTC process was implemented in the FOs (see DI 13015.005). However, the policy for FTC cases in the DDSs has not changed.

B. Definitions

1. FTC

Failure to cooperate (FTC) refers to a beneficiary's failure, without good cause, to do what SSA/DDS has asked by a certain date. That is, the beneficiary does not furnish medical or other evidence, or fails to attend a scheduled physical or mental CE by a certain date. During a CDR, FTC can be a reason for the DDS to find that disability has ceased according to the medical improvement review standards. See policy in DI 28075.005C.

A streamlined FTC process was implemented for medical CDRs on January 27, 2007. The streamlined process enables the FO to suspend title II and/or title XVI benefits (after applying the Goldberg/Kelly due process procedures) if the beneficiary does not cooperate during a medical CDR, and fails to comply with our request for necessary information or evidence. The FO is able to reinstate benefits and continue the CDR process when the beneficiary provides the necessary CDR information, i.e. the case is forwarded to the DDS for a medical determination. However, if the beneficiary/payee fails to cooperate and payments 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.

EXCEPTION: There are situations when the title II beneficiary is in terminated status due to work and fails to cooperate with the FO during the medical CDR. A medical CDR decision by the DDS is necessary to determine if entitlement/eligibility to extended Medicare benefits should continue. The DDS needs to follow the procedure in DI 28055.025 and then prepare the medical determination.

The DDS should not return the case to the FO. The streamlined FTC process does not apply to title XVIII cases to determine if entitlement/eligibility to extended Medicare benefits should continue.

2. WU

Whereabouts unknown (WU) status exists when SSA/DDS is unable to locate a beneficiary. During a CDR, WU can become the reason to cease title II disability benefits or to suspend title XVI disability benefits according to the medical improvement review standard exceptions. See policy in DI 28075.005C.

C. Policy

1. General

When SSA/DDS 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 and to take any required action requested by SSA/DDS to complete the CDR. In title XVI disabled children claims, this responsibility ultimately rests with the applicant, usually the child's parent, other caregiver, or representative payee. (See DI 25205.020 concerning title XVI childhood disability cases and FTC.)

An individual's FTC, without good cause is a basis for the DDS to find a cessation and terminate title II and/or title XVI benefits only when there is not enough evidence to justify a continuance. FTC does not apply if there is enough evidence to make a continuance.

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

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

2. Title II and XVI FTC Policy in the DDS

The policy for FTC issues identified in the DDS has not changed. The DDS will continue to make medical determinations on all claims that they identify as FTC. As stated above, what has changed are the FO policies and procedures for title II and XVI medical FTC cases. The DDSs should return to the FO any title II or XVI case identified by the FO as an FTC case, but not acted upon by the FO on or after January 27, 2007 when the streamlined FTC process was implemented. (See DI 28075.005C.3. for an explanation of the streamlined title II/concurrent and title XVI FTC process in the FO.)

The streamlined FTC process does not apply to title II cases where the beneficiary fails to cooperate with the FO and benefits have been terminated due to work. Do not return these medical FTC CDR cases to the FOs. The DDS needs to make a medical decision to determine if entitlement/eligibility to extended Medicare benefits should continue.

3. Title II/Concurrent and Title XVI FTC Policy in the FO

In title II/concurrent and title XVI cases, if the beneficiary/payee fails comply with the FO's request for necessary information or evidence, for the medical CDR this may lead to an FTC determination by the FO, which will be recorded on the DCF. This will result in benefits to the title II and/or title XVI beneficiary being placed in a non-payment status (S0 for title II and N20 for title XVI) for 12 months and then terminated effective the 13^th month unless the beneficiary/payee cooperates with the FO anytime during the period of suspension. (See DI 13015.005A.)

If the beneficiary/payee fails to provide the necessary information or evidence requested by the FO, the CDR will not be sent to the DDS for a medical determination. No benefit continuation will be offered.

If the beneficiary/payee complies with the request for necessary information or evidence and is otherwise eligible for title II or concurrent benefits, the CDR will resume and the case will be forwarded to the DDS for a medical determination per DI 13015.005A.

4. Medical Improvement Review Standard (MIRS) and Exceptions

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

The law provides for two groups of exceptions to MI. (See DI 13005.005 and DI 28020.001 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.

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 whether the individual continues to be disabled and:

a. 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/DDS asks. FTC can be a basis for finding that disability has ended without applying MIRS, or

b. WU

SSA is unable to find the individual to determine if disability continues. WU can be a finding that disability has ceased without applying MIRS. In title II cases, SSA will determine that disability has ceased. However, for title XVI cases, SSA will determine that benefits must be suspended.

5. Cessation Month

When there is not enough evidence to justify a continuance, for either FTC or WU, benefit payments cease the first month in which:

a. FTC

The individual fails, without good cause, to do what DDS has requested. The DDS will make a medical determination that the disability has ended for either title II and/or title XVI payments.

b. Title II and Title XVI FTC in the FO

If the FO places the beneficiary in FTC status, the CDR will not be sent to the DDS for a medical determination. The beneficiary will be placed in suspense for 12 months and then terminated effective the 13^th month. No benefit continuation will be offered.

If the beneficiary complies with the FO request for necessary information or evidence anytime during the 12 month period of suspension, benefits will be reinstated. The CDR will resume and the case will be forwarded to the DDS for a medical determination. If the beneficiary/payee fails to comply with the DDS, a medical determination by the DDS is necessary.

A medical determination by the DDS is also necessary in a title II case where the beneficiary fails to cooperate with the FO, benefits have been terminated due to work and a medical determination is necessary to determine if entitlement/eligibility to extended Medicare benefits should continue.

c. WU

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 benefits.

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.

7. Children

Because children are not ordinarily in a position to pursue their own claims independently, special efforts must be made in title XVI child cases that involve non-cooperation to identify and contact another adult or agency responsible for the child's care. Follow the approach in DI 25205.020 in title XVI child CDR FTC situations.

D. Process - Overview of FTC/WU Development

1. Jurisdiction

DDS, PCs, and FOs each have a role in the development of FTC and WU determinations. Title II and title XVI CDR FTC cases identified by the DDS are considered medical determination cessations, and unless work activity is the sole issue, they require a medical determination by the DDS.

If a title II and/or a title XVI beneficiary/payee fails to comply with the FO’s request for necessary information or evidence needed to complete the CDR, this may lead to an FTC determination by the FO, which will be recorded on the DCF. This will result in benefits to the beneficiary being placed in a non-payment status (12 months of suspension and then termination.) (See DI 13015.005A.) No DDS medical determination is necessary. However, if the beneficiary/payee complies with the FO request for necessary information or evidence during the period of suspension and is otherwise eligible for benefits, the CDR will resume and the FO will forward the case to the DDS for a medical determination per DI 13015.005A.

The DDSs should return to the FO any title II and/or title XVI case identified by the FO as an FTC case, but not acted upon by the FO on or after January 27, 2007 when the streamlined FTC process was implemented. If the title II/title XVI beneficiary/payee provides the necessary information or evidence for the CDR, the DDS must make a medical determination.

NOTE: Policy for FTC has not changed for the DDS. The DDS will continue to make medical determinations on all claims that they identify as FTC.

WU determinations are considered non-medical cessations in title II and technical suspensions for title XVI cases. Jurisdiction in FTC and WU cases is determined as follows:

a. FTC Determinations

• If work is the sole issue, the FO prepares the determination.

• If the case involves a medical issue, and the beneficiary does not cooperate and fails to comply with the FO request for necessary information or evidence needed to complete the CDR, the FO will suspend title II and/or title XVI payments (after applying the Goldberg/Kelly due process procedures). The FO is able to reinstate benefits and continue the CDR process and send the case to the DDS following successful contact and cooperation by the beneficiary. However, if there is no successful contact, after benefits are in suspense for 12 months, eligibility will terminate effective the 13^th month without the DDS having to see the case. No benefit continuation will be offered.

• If the title II beneficiary is in terminated status due to work and fails to cooperate with the FO during the medical CDR, a medical decision is necessary to determine if entitlement/eligibility to extended Medicare benefits should continue.

b. WU Determinations

• If the issue arises in the FO, the FO prepares the determination and suspends (title XVI) or terminates (title II) payment as appropriate in both work and medical issue cases. See DI 13015.005 through DI 13015.020 for FO 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 suspends payment of benefits in title XVI claims.

NOTE: The FO sends Career Railroad cases to the Disability Review Section in the Great Lakes Program Service Center.

2. General Development Issues

In all cases, SSA and the DDS should be sensitive to situations where the individual may require assistance to comply with SSA/DDS requests.

a. Assisting Individuals

See DI 22501.002C and DI 22510.016 if the individual needs assistance in providing evidence, including going to a CE, especially when a mental impairment is involved.

b. Failure or Refusal to Appear at a Consultative Exam (CE)

If the individual fails or refuses to appear at a CE, see DI 23007.009 and DI 23007.010 for specific guidelines. In title XVI childhood cases, see DI 25205.020. See DI 28075.005F for examples of failure to attend a CE.

EXCEPTION: If the case is a CDR, see DI 28065.030.

c. Homeless Individuals

If the individual is homeless:

Check the file for a third party to assist in obtaining needed evidence.

Request FO assistance if necessary.

CAUTION: Requests for medical evidence and CE scheduling can be sent to a third party only with the disabled individual's authorization. (See GN 03300.000.)

E. Procedure - Development FTC/WU

Follow these guidelines when FTC or WU issues arise in a CDR case.

1. FTC Issue Arises in the FO

If the FO identified failure to cooperate, but it was not acted upon by the FO, the case should be returned to the FO for proper development and/or suspension (see DI 28075.005C.3.) on or after January 27, 2007 when the streamlined FTC process was implemented. If the title II/title XVI beneficiary/payee provides any of the necessary information or evidence for the CDR, the DDS must make a medical determination. “Any of the necessary information or evidence” means any of the medical interview forms and/or releases that enable the DDS to pursue a medical evaluation.

The streamlined FTC process does not apply to title II cases where the beneficiary fails to cooperate with the FO and benefits have been terminated due to work. Do not return these medical FTC CDR cases to the FOs. The DDS needs to make a medical decision to determine if entitlement/eligibility to extended Medicare benefits should continue.

2. FTC Issue Arises in the DDS

a. Telephone contact for evidence or action

For telephone contacts for evidence or action see POMS DI 23007.005E.1.a., DI 22510.019D.2., and DI 23007.010D.3.

For Title XVI child cases, follow DI 25205.020.

If the claimant provided a phone number, attempt to reach him or her by telephone, and collect the requested information over the phone. If you reach the claimant, but the claimant does not provide the evidence over the phone, or requests time to perform the action:

• Inform the claimant that if we do not receive the requested evidence or her or she does not perform the requested action within 10 calendar days after the date of the call, we may make a determination based on the evidence in file: and

• Explain this means we may find that his or her disability ceases.

If no one answers the telephone, or if you reach a busy signal, a recorded message, voice mail, an answering machine or other person:

• Leave a message for the claimant to call you;

• Make a second attempt to reach the claimant at a different time of day on a different day; and

• Send a call-in letter if the telephone number is not in service, or if you do not reach the claimant after two attempts. See call-in letter procedures in DI 23007.005E.1.b.

b. Call-In Letter

• When the beneficiary has no telephone, or the DDS chooses to follow up with the beneficiary in writing, or telephone contact was unsuccessful, send the beneficiary a call-in letter that explains the consequence of not calling in, i.e., a determination may be made on the evidence in file and benefits may be stopped.

• Allow 10 calendar days after the date of the call-in letter for the beneficiary to respond.

• If the beneficiary calls, remind him/her to provide the needed evidence or to perform the needed action.

• If the claimant fails to respond within 10 calendar days, follow DI 28075.005F.

c. Beneficiary Cooperates with DDS

If the beneficiary who failed to cooperate with the FO subsequently cooperates with the DDS, follow all normal procedures for developing and conducting the CDR.

3. WU Issue Arises in the DDS

If WU arises in the DDS:

• Stop development and return the file to the FO.

• Advise the FO of the following background information:

  • Whether there is sufficient medical documentation to prepare a determination.

  • Whether a call-in letter or other letter to the claimant was returned as undeliverable.

4. Documentation

Record on the Disability Case Development Summary all efforts made to resolve the issue, including dates and the results of the efforts, and justification for a cessation, if appropriate.

F. Procedure - Preparing the FTC/WU Determination

Record on the Disability Case Development Summary all efforts made to resolve the issue, including dates and the results of the efforts and justification for a cessation, if appropriate.

1. General

In FTC and WU cases, if there is not enough evidence to justify a continuance, determine the correct cessation or suspension month and prepare the FTC/WU determinations as described.

2. Cessation Month – FTC in the DDS

Provided that there is not enough evidence to justify a continuance, in FTC cases (both titles II and XVI), disability ceases in the first month in which the individual was aware that he or she had to cooperate, the repercussions of failing to do so and failed, without good cause, to do what SSA/DDS has requested.

Title II, Title XVI and concurrent cases

EXAMPLE 1: The FO sends the claimant a letter requesting completion and return of the CDR forms within 10 days. The claimant returns the necessary CDR forms. The FO sends the file to the DDS for processing. The DDS reviews the file, obtains the necessary records from the claimant's treating source. The records are insufficient to make a CDR decision. The claimant has a mental impairment, has no representative, and no payee. There is no third party source identified in file. Activities of daily living (ADLs) and a CE are necessary to complete the work on the claim. The examiner calls the claimant on two different days at two different times to attempt to get ADLs and to determine if the claimant is willing to attend a CE. There is a busy signal both times. The examiner sends a call-in letter on March 14, 2006, advising the claimant that if he or she does not call the examiner within 10 days, a decision will need to be made on the evidence in the file and benefits may be stopped. The claimant does not call within 10 days. The examiner prepares a cessation using 03/06 as the cessation month since this is the first month in which the claimant was first aware (03/14 + 5 days mailing time = 03/19) that he had to cooperate, that failure to do so could result in cessation of benefits, and failed, without good cause, to do what SSA/DDS has requested.

EXAMPLE 2: On July 13, 2006, the DDS sent a letter to the claimant explaining that a CE is necessary and has been scheduled for August 21, 2006. The letter also explained that if the claimant fails to keep the appointment, it might be necessary to find that the claimant is no longer disabled or blind. The claimant failed to attend the CE, and good cause for failing to keep the appointment was not demonstrated. Unlike Example 1, the claimant can neither cooperate with the CE appointment nor demonstrate FTC until he fails to attend the CE. In Example 1, the claimant could have cooperated as early as the date the notice requesting information was received. In the case of a CE, the claimant cannot comply with the request, or FTC, until the date of the CE. In this case, the DDS would prepare a cessation determination using August 2006 as the cessation month.

EXAMPLE 3: On April 10, 2006, the DDS sent a letter to the claimant explaining that a CE is necessary and one has been scheduled for May 2, 2006. The letter also explained if the claimant fails to keep the appointment, it might be necessary to find that the claimant is no longer disabled or blind. The claimant failed to attend the CE, but contacted the DDS explaining why he or she was unable to attend the CE. The CE was rescheduled for June 19, 2006. The claimant again failed to attend the CE. Good cause is not demonstrated for failure to attend the rescheduled CE.

In this case, the DDS would prepare a cessation determination using June 2006, as the cessation month. This is the first month that the claimant did not comply with the request and good cause for the failure to attend the CE was not demonstrated.

NOTE: If the beneficiary refuses, without good cause, to attend the CE before the actual date of the CE resulting in a cancellation of the CE, the FTC cessation date is the date of refusal.

EXAMPLE 4: A CE was scheduled for May, 2011. The claimant calls the DDS in April, 2011, and tells the adjudicator that they refuse to attend the CE. The claimant does not provide a reason that can be accepted as “good cause.” The CE is cancelled. In this case, DDS would prepare a cessation determination using April, 2011 as the cessation month. This is the first month that the claimant did not comply with the request and good cause for refusal to attend the CE was not demonstrated.”

3. Preparing the FTC Determination

Prepare the FTC determination as follows:

• Send the notice of decision containing benefit continuation rights (See DI 28080.110 and DI 28080.115).

• Prepare the Form SSA-832-U3 (Cessation or Continuance of Disability or Blindness Determination and Transmittal-Title XVI) and/or Form SSA-833-U3 (Cessation or Continuance of Disability or Blindness Determination and Transmittal-Title II).

• Forward the folder to the FO via an SSA-408 Route Slip annotated “Failure to Cooperate.”

4. Cessation/Suspension Month - WU

In title II WU cases, disability ceases in 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. (See DI 28001.015.) See note regarding month of suspension for title XVI WU cases.

EXAMPLE: The DDS receives a title II CDR case from the FO. The DDS begins CDR development and sends the individual a notice in June requesting evidence to make the CDR determination. In July, the notice returns from the post office as undeliverable. Apparently, the individual left his/her residence after the FO conducted its CDR interview. Return the case to the FO for WU development and cessation, if possible. Document the file per DI 28075.005D. Subsequent FO attempts at contacting and locating the individual are unsuccessful. The cessation month is July because the issue regarding continuing disability was previously established and July is the first point at which the DDS becomes aware that the individual's whereabouts are unknown.

NOTE: For title XVI WU cases, in which continuing disability is an established issue, disability benefits are suspended in the first month in which SSA/DDS learns that the individual's whereabouts are unknown.

5. Preparing the WU Determination

Forward the documented case to the FO for development action and cessation (title II) determination or suspense (title XVI) actions based on WU. Clear the case as a no determination case.

G. Benefit Continuation in FTC/WU Cases

1. FTC

In FTC cases identified by the DDS, statutory benefit continuation will be offered because these FTC cessations are considered medical determinations.

If a title II and/or title XVI beneficiary failed to comply with the FO’s request for necessary information or evidence and was terminated after a 12 month suspension period, benefit continuation will not be offered because a medical determination was not made. (See DI 28075.005C.)

2. WU

In WU cases (both title II and title XVI), statutory benefit continuation does not apply to title II and title XVI WU cases since these are not considered medical cessation cases. Goldberg-Kelly procedures do not apply to title XVI WU cases.

H. Policy - Individual Subsequently Located or Cooperates

If, after receiving a notice of benefit cessation, the individual subsequently is located or cooperates, the FO will conduct the CDR interview and send the folder to the DDS.

1. Original Determination - Nonmedical

The FO will reopen and revise the original determination if it was nonmedical and the rules of administrative finality are met. (See DI 27505.001.) The medical determination will be handled as an initial medical determination.

2. Original Determination - Medical

If the original determination was a medical determination, the appropriate level of appeal is a disability hearing at the reconsideration level:

• Process according to routine DHU procedure (See DI 29001.010 for component responsibilities in DHU claims).

• If applicable, revise the cessation date. Determine the cessation month per DI 28005.205. For purposes of DI 28005.205C.4., the prior FTC cessation notice is used for determining the cessation month.

NOTE: Forward the folder to the FO for a determination, if work is the sole issue.

I. References

• FO FTC and WU procedures, DI 13015.001 through DI 13015.025

• CDR Personal Contact, including completing the SSA-454-BK and SSA 827, DI 13005.030 through DI 13005.040

• Title XVI Childhood FTC procedures, DI 25205.020