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“The only thing necessary for these diseases to the triumph is for good people and governments to do nothing.”

  
House of Mercy, Inc.
Act Justly, Love Tenderly, Walk Humbly With God

SSA ISSUES Rules important to beneficiaries if SSA decides that Their conditions Are no longer disabling

July 18, 2005

 

By Eileen P. Sweeney

For over two decades, federal law has required that the Social Security Administration continue payment of disability benefits to a person whom SSA has determined if SSA determines that the person is participating in a vocational rehabilitation program and there is a likelihood that completing the program will make it less likely that the person will need to resume receipt of Social Security or Supplemental Security Income disability benefits in the future.  Over time, Congress has expanded the rule to cover individuals participating in either state vocational rehabilitation programs or parallel programs conducted in the private sector.  In addition, since the beginning of reviews of the eligibility of SSI child disability recipients when the children reach age 18, the rules have applied to this group as well.  In recently issued regulations, the Social Security Administration has both clarified when the rules apply and also that they apply to young people who are participating in an Individual Education Plan through their school system.[1]  This means these young people will be able to continue to receive SSI and Medicaid if they continue to participate in their IEP and are under age 22

The purpose of this paper is to explain the new regulations and to alert people with disabilities, their families, schools, service providers, and advocates that these regulations will take effect on July 25, 2005 and will be of significant benefit to some individuals who otherwise would lose their benefits when SSA decides that they currently are no longer disabled. 

Background

In 1980, Congress provided that in both Social Security and SSI, if the Social Security Administration determines that a person’s condition is no longer disabling, the person’s disability benefits may continue while the person is participating in a program of vocational rehabilitation provided that SSA determines that the person’s involvement in the program will increase the likelihood that the person will be permanently removed from the rolls.[2]  This is known as “Section 301” of the 1980 law.  These regulations are generally known as the “301 regulations.” 

Congress has amended and expanded the provision three times.  In 1987, Congress made clear that the SSI disability provision also applies to people who receive SSI based on blindness.[3]  In 1990, Congress extended the protection to individuals who participate in approved non-state vocational rehabilitation programs.[4]  Finally, in 1999, as part of the Ticket to Work and Work Incentives Improvement Act of 1999, Congress expanded the list of possible providers to include providers of “vocational rehabilitation services, employment services, or other support services.”[5]  As a result of these various Congressional amendments, the current statutory language provides:

“(b) Notwithstanding any other provision of this title, payment to an individual of benefits based on disability (as described in the first sentence of subsection (a)) shall not be terminated or suspended because the physical or mental impairment, on which the individual's entitlement to such benefits is based, has or may have ceased, if—

(1) such individual is participating in a program consisting of the Ticket to Work and Self-Sufficiency Program under section 1148 or another program of vocational rehabilitation services, employment services, or other support services approved by the Commissioner of Social Security, and

(2) the Commissioner of Social Security determines that the completion of such program, or its continuation for a specified period of time, will increase the likelihood that such individual may (following his participation in such program) be permanently removed from the disability benefit rolls.”[6]

One other change in the law bears noting.  As part of the 1996 welfare reform law, Congress changed the rules for reviewing the cases of young people who receive SSI disabled children’s benefits.[7]  At age 18, these children are moved to the SSI adult disability program and their cases are reviewed.  Under the 1996 law, when SSA conducts the review, the disability standard that SSA is required to apply is the one that SSA applies to an adult applicant, not the one applied to an ongoing beneficiary.  For ongoing beneficiaries, SSA must determine that the person’s condition has medically improved before benefits can be terminated.  That protection no longer applies to the reviews conducted when a child beneficiary reaches age 18 and SSA conducts the age 18 redetermination.  SSA has, however, applied the 301 rules to young people participating in vocational rehabilitations who otherwise will be terminated at age 18.

  

Some Young People Will Be Able to Complete Their Education/Training Before Losing Benefits

In addition to updating the regulations to reflect the various changes in the statute made over the years, the regulations include a change in how SSA will apply the rules in the redeterminations conducted when a child beneficiary turns 18.  SSA has modified the regulations to address more adequately the reality of the lives of young people with severe disabilities who receive SSI disability benefits as children.  Under the Individuals with Disabilities Education Act (IDEA), young people with disabilities are able to continue in IDEA programs until age 22 and have an individualized education program, known as an “IEP.”[8]   In the preface to the new regulations, SSA notes that recent amendments to IDEA make clear that IEPs for children age 16 or older must include planning for transition to adulthood:

“Effective July 1, 2005, the IDEA’s provision regarding transition services in an IEP will provide that ‘beginning not later than the first IEP to be in effect when the child is 16, and updated annually’ the child’s IEP must include ‘appropriate measurable postsecondary goals based upon age appropriate transition assessments related to training, education, employment, and where appropriate, independent living skills; * * * the transition services (including courses of study) needed to assist the child in reaching those goals; …”[9]

As will be discussed below, SSA now will find that young people participating in an IEP meet the second part of the test: SSA will find that their participation in the IEP will increase the likelihood that they will not need to return to benefits.  In the preamble to the final regulations, SSA cites research from the National Longitudinal Transition Study that “provides evidence of the importance of supporting students with disabilities to stay in school:”

“The NLTS demonstrated that there was a consistently positive relationship between staying in school and employment success, and it suggested that any efforts that encourage students with disabilities to stay in school and complete their educational and vocational training are important to improving post-school outcomes for students with disabilities.  The NLTS also documented the importance of vocational education and work experience programs in school.”[10]

SSA also notes that the rule change is “consistent with the goals of the President’s New Freedom Initiative to expand access to quality education for youth with disabilities, ensure that they receive support to transition from school to employment, and improve high school graduation rates of students with disabilities.”[11]

How the Rules Work

Under the 301 rules, in order for payments to continue after SSA has determined that the SSI or Social Security disability recipient’s medical condition is no longer disabling, two conditions must be met:

  1. Before the date that SSA determines the person’s disability ended, the person must be participating in an “appropriate” program of vocational rehabilitation services, employment services, or other support services that meet SSA’s specifications.
  1. SSA must find that continuing to participate in the activity will improve the likelihood that the person will be permanently removed from the disability rolls.[12]

 

Determining What Is An Appropriate Program

To benefit from the section 301 protection, a person must be participating in “an appropriate program of vocational rehabilitation services, employment services, or other support services” that meets SSA’s specifications.[13]  SSA’s rules, like the various statutory changes Congress has made in 301 over the years, reflect the growing diversity of rehabilitative options and educational settings that may be available to people with disabilities.  SSA will find that the following types of programs meet its requirements:

·     A program carried out under an individual work plan with an employment network under the Ticket to Work and Self-Sufficiency Program.

·     A program carried out under an individualized plan for employment with a state vocational rehabilitation agency or an organization administering a Vocational Rehabilitation Services Project for American Indians with Disabilities.

·     A program of vocational rehabilitation services, employment services, or other supports services under “a similar individualized written employment plan” with a federal agency, such as the Department of Veterans Affairs; a one-stop delivery system or a specialized one-stop center; or another provider that SSA approves.  Providers in this last group could include a public or private organization with expertise in the delivery or coordination of such services; or a public, private or parochial school that provides or coordinates such services carried out under an individualized program or plan.

·     An individualized education plan (IEP) program “developed under policies and procedures approved by the Secretary of Education for assistance to States for the education of individuals with disabilities under the Individuals with Disabilities Education Act…”[14]  If the person is receiving transition services after having completed an IEP, SSA will count that as well.[15]

 

  

How SSA Defines Participation In Such A Program

Generally, SSA requires that the person be “taking part in the activities and services outlined in your individual work plan, your individualized plan for employment, or your similar individualized written employment plan, as appropriate.”[16]  If the person is a student age 18 to 21 receiving services under an IEP, “you are participating in your program when you are taking part in the activities and services outlined in your program or plan.”[17]  In both situations, SSA will consider the person to be participating in the program “during temporary interruptions in your program.”  For such a period to be considered temporary, the person “must resume taking part in the activities and services outlined in your plan or program, as appropriate, no more than three months after the month the interruption occurred.”[18]

The “Likelihood” Determination

To qualify for benefit continuation, the person must be participating in an appropriate program and SSA also must determine that “your completion of the program, or your continuation in the program for a specified period of time, will increase the likelihood that you will not have to return to the disability benefit rolls.”  In the regulations, SSA spells out how it will determine that there is such a likelihood.  SSA will find likelihood if the program provides the person with work experience “so that you would more likely be able to do past relevant work, despite a possible future reduction in your residual functional capacity”; or education “and/or semi-skilled work experience so that you would more likely be able to adjust to other work that exists in the national economy, despite a future reduction in your residual functional capacity.”[19]

There is an important difference in the rules for a young person who has been determined no longer disabled as a result of either an age 18 review or a continuing disability review.  If that person is ages 18 through 21 and participating in an IEP that meets SSA’s rules, SSA “will find that your completion of or continuation in the program will increase the likelihood that you will not have to return to the disability benefit rolls.”[20]  In other words, the person does not have to offer separate proof that the likelihood test is met — the fact that he or she is participating in his or her IEP will satisfy the requirement.  SSA also will make the same finding if the young person is receiving transition services after having completed an IEP, as long as the transition services meet the requirements for a program, discussed above.[21] 

 

What Benefits Continue If A Person Is Eligible For 301 Protection And When They Will End

For a person receiving Social Security disability benefits, SSA will continue benefits owed to the person and any benefits that the person’s dependents receive on his or her work record.[22]  The person’s benefits (and those of any dependents) will stop in the month that the person completes the program, stops participating in the program, or when SSA determines that further participation will not increase the likelihood that the person will not have to return to the benefit rolls.[23]   If the person is receiving transition services after completing an individualized education program, SSA will continue benefits during this period.[24]  The rule in SSI is the same, except that there are no dependents’ benefits.[25]

Effective Date 

These regulations take effect on July 25, 2005.   Most of these rules already have been in

effect through SSA’s Program Operation Manual System, including the provision related to young people who receive age 18 redeterminations or continuing disability reviews, if they are participating in vocational rehabilitation programs.  That is not the case for young people who are participating in an IEP; the new rules applying to them were not already in effect before July 25. 

Many commenters urged SSA to make the regulations that apply to young people participating in IEPs retroactive.  SSA declined to accept that recommendation.  In the preamble to the new regulations, however, SSA makes clear that it will apply these rules not only to individuals who receive their initial determination on or after July 25, but also to those whose cases are anywhere in the SSA administrative appeals process and cases that are remanded from federal court.[26]  It therefore is important to keep appeals alive in such cases until July 25 and after.  While SSA may have some information in a person’s record to suggest that the person is currently participating in an IEP, the person or his or her family or advocate should act now to point this out to SSA and provide any additional information that SSA may need to re-instate the person’s benefits.

 

Conclusion

SSA’s new regulations bring some order and equity to the 301 process for people age 18 to 64 who receive Social Security or SSI disability benefits.  It also should encourage more young people with disabilities to stay in school and get the education and training they will need to live more independently as adults.   It is essential that people with disabilities, their families, advocates, services providers and schools — as well as SSA — ensure that all adult beneficiaries, including young people with disabilities, know about the 301 protection and how advantageous it can be for them if SSA should find at some point that their impairments are no longer disabling.


[1]  70 Federal Register 36494-36509 (June 24, 2005), available at http://www.gpo.gov.

[2]  Section 301, Public Law 96-265, creating sections 225(b) and 1631(a)(6) of the Social Security Act, 42 U.S.C. §§425(b) and 1383(a)(6). 

[3]  Section 9112 of Public Law 100-203, the Omnibus Reconciliation Budget Reconciliation Act of 1987.

[4]  Section 5113 of Public Law 101-508, the Omnibus Reconciliation Act of 1990.

[5]  Section 101(b) of Public Law 106-170, the Ticket to Work and Work Incentives Improvement Act of 1999.

[6]  This is the Social Security disability insurance provision, 42 U.S.C. §425(b).  Except for cross-references to other SSI provisions and language that makes clear that the provision applies to SSI recipients with blindness as well as to individuals with other disabilities, the SSI provision is virtually identical.  42 U.S.C. §1383(a)(6).

[7]  Section 212 of Public Law 104-193, the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, adding Section 1614(a)(3)(H)(iii) of the Social Security Act, 42 U.S.C. §1382c(a)(3)(H)(iii).

[8]  20 U.S.C. §1400 et seq. 

[9]  70 Federal Register 36494, 36496.

[10] Id. at 36497.  “The National Longitudinal Transition Study (NLTS) was mandated by the U.S. Congress in 1983, and describes the experiences and outcomes of youth with disabilities nationally during secondary school and early adulthood.  It was conducted from 1987 through 1993 by SRI International under contract…with the Office of Special Education Programs,  Department of Education.  (The electronic file of this document is available at http://www.sri.com/policy/cehs/publications/dispub/nlts/nltssum.html.)”  Id. at 36496.   SSA summarizes the findings:“•  Students with disabilities who stay in school have better post-school outcomes than their peers who dropped out of school.•  Students with disabilities who stayed in school were more likely to enroll in postsecondary vocational or academic programs.•  There was a consistently positive relationship between staying in school and employment success.”SSA also explains that, “[T]he NLTS documented the importance of vocational education and work experience programs in schools:•  Students with disabilities who took occupationally oriented vocational education were significantly less likely to drop out of school than students who did not.•  Students with disabilities who participated in work experience programs missed significantly less school and were less likely to fail a course or drop out of school.•  For the majority of students with disabilities (those with learning, speech or emotional disabilities or mild mental retardation) vocational education in high school was related to a higher probability of finding competitive jobs and higher earnings.

 

 

 

 

 

•  For students with orthopedic or health impairments, participation in high school work experience programs

translated into a higher likelihood of employment and higher earnings after high school.”   Id. at 36496 -97. 

[11]  70 Fed.Reg. at 36497.

[12]  20 C.F.R. §§404.316(c)(1), 416.1320(d).

[13]  20 C.F.R. §§404.327(a) and 416.1338(c).

[14]  20 C.F.R.  §§404.327(a)(1)-(4); 416.(c)(1)-(4).

[15]  Id. at §§404.328(c), 416.1338(e)(3).

[16]  Id. at §§404.327(b)(1), 416.1338(e).

[17]  Id. at §§404.327(b)(2), 416.1338(d)(2).

[18]  Id. at §§404.327(b)(3), 416.1338(d)(3).

[19]  20 C.F.R §§404.328(a)(1)and (2), 416.1338(e)(1)(i)and (ii); cross-references to related SSA regulations have been omitted.

[20]  Id. at §§404.328(b), 416.1338(e).

[21]  Id. at §§404.328(c), 416.1338(e)(3).

[22]  20 C.F.R. §404.316(c)(1).  There is parallel language for disabled widow(er)s, 20 C.F.R. §404.337, and disabled adult children, 20 C.F.R. §404.352.

[23]  20 C.F.R. §404.316(c)(2), 416.1336(b).

[24]  20 C.F.R. §§404.328(c), 416.1338(e)(3).

[25]  20 C.F.R. §416.1338(a) and (b).

[26]  “These final regulations establish new rules for individuals age 18 through 21 who are participating in an IEP when their disabilities end as a result of a continuing disability review or an age-18 redetermination.  As is our usual practice when we promulgate new regulations, we apply the regulations to cases that are pending in our administrative review process, including cases that are on remand from a Federal court.”  70 Fed. Reg. 36494, 36501-2.  It is important to note that the appeal need not be related to a 301 determination.  It can have been for any reason, including disagreement that the person’s condition is no longer disabling.  In such a situation, the person may wish to continue the appeal while also seeking the benefit of the 301 protection — the 301 protection will end at some point when the young person’s participation ends (or the child becomes age 22 and the IEP and any transitional plan end).  If the person does not agree that his or her medical conditions are no longer disabling, he or she should appeal that determination (and proceed with an appeal that is pending when these regulations take effect), while also requesting benefit continuation under the 301 provision if it applies to the person.