Posted: Mon Feb 08, 2010 01:31 pm Post subject: DAA & periods of abstinence
SSA's recent invitation for comment on "the procedures we follow when we evaluate DAA." This invitation covered this specific question:
Quote:
How long a period of abstinence or nonuse we should
consider to determine whether DAA is material to our determination of
disability?
SSA's policy wonks ought to have written "in determining whether DAA is material." The problem with the words they chose—"to determine whether DAA is material"—is that it allows for a certain kind of paranoia to conclude that SSA was planning to require that there be a period of abstinence before there could be a conclusion that DAA is not material. I argue below that this kind of thinking ignores SSA's long history of policy statements related to period of abstinence, a mistake that is even more apparent when one examines internal policy statements.
What's more, to interpret SSA's invitation as signaling a deeply restrictive policy shift for DAA involves piling idiocy on top of ignorance: as long as SSA sticks with its disentanglement policy, then requiring a period of abstinence means more determination of "not material," not fewer.
I resist the temptation to say more about this kind of reasoning.
Periods of abstinence have been part of SSA's policy pronouncements right from the beginning. Even before the famous DAA teletype, SSA sent around policy instructions that cited a period of at least 30 days as an example of evidence relevant to whether DAA is material. The DAA teletype itself shows that this prompted the following question: "Is this an example or is it to be used as an adjudicative rule?"
This got the following answer (see Q&A no. 30):
Quote:
A. It was intended only as an example. The time period of at least 1 month was not intended to imply that drug-free periods of less than 1 month should not be considered when determining whether DAA is material. To clarify this point, we deleted the words "at least" when we placed the example in DI 90070.050D.3.
An internal 10/02 memo to State agencies in the Boston region restated the principle that "[d]ocumentation of a period of abstinence could provide the most useful information . . . ." This memo went on to say this (emphasis in the original)("MC/PC" means medical consultant/psychological consultant):
Quote:
However, the existence of a period of abstinence in and of itself is not determinative either way as to remaining limitations. The controlling issue is not whether there has been a substance-free period, but whether there is evidence to permit the MC/PC to project what limitations would remain if the claimant stopped using drugs or alcohol.
Please note how the emphasis on evidence is inconsistent with the application of any presumptions. What's more, this 10/02 memo also pointed out that periods of abstinence needed to be considered in context:
Quote:
Care should be exercised in assessing the circumstances under which a period of sobriety takes place. For example, if it occurs in a detox or rehab setting, consideration should be given to whether the structure and support provided in this setting attenuate other symptoms of the co-existing mental impairment(s).
A 7/04 memo to State agencies in the New York region shows that not everybody had read and understood the it's-only-an-example instructions in the DAA teletype about periods of abstinence. The comment in 7/04 from a State agency person was that "[t]he 30-day standard is confusing as it stands."
This got the following emphatic answer (emphasis in the original):
Quote:
First, there is no 30-day standard. The section cited is an example that illustrates when the evidence allowed an MC to separate out the effects of use from the effects of the other impairment(s) after a "length of time sufficient to allow the acute effects of intoxication and withdrawal to abate" and then determine that the claimant would not be disabled if use stopped, so DAA was material. The "1 month" issue was addressed in questions 27, 30, 31, 34, and 35 of EM 96-200 dated August 30, 1996.
This brings us up to the 4/09 policy statement I quoted in the earlier post from the Office of Medical Listings Improvement. Speaking to this same issue of periods of abstinence, OMLI said this (emphasis in the original):
Quote:
There is no standard for the length of the substance-free period because the length of time for the acute effects of intoxication and withdrawal to abate will vary by substance and individual. The key is whether the evidence establishes that an individual is disabled, or not disabled, absent the effects of substance use.
Again, please note how a requirement for evidence is inconsistent with applying any presumptions about DAA. OMLI went on to essentially restate what had been said 16 years before:
Quote:
It is most likely that you will need evidence from a period of nonuse in cases involving co-occurring mental disorders in which the separate effects of the mental disorders are not clear. We do not prescribe or require a specific length of time for a period of abstinence because the periods will vary based on the type of substance and the particular effects on the person. We intended the example of the 1-month period of abstinence in EM-96200 to illustrate the fact that, in some situations, it may not be possible to separate the effects of drug or alcohol use from the effects of the other impairment(s) until the individual has been abstinent for a length of time sufficient to allow the acute effects of intoxication and withdrawal to abate.
If any of you are planning to submit comments in response to SSA's invitation, please do refresh your memory about what's in the DAA teletype. It wouldn't be a bad idea to reread 404.1535, and maybe visit the relevant POMS section. If you do all these things, you will reduce the chances that your comments will make you look like a horse's patootie.
For the next post: DAA as self-medication.
N.B.: The internal policy statements I've quoted above are those that can be found on a quick search. We may be sure that there are many other similar policy statements. Although I'm willing to quote from internal policy statements, I'm not willing to share the originals on Connect.
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