| Purpose | |
| Background | |
| Summary of Major Provisions of § 105 of Pub. L. 104-121 | |
| Appeal Rights | |
| DAA Materiality | |
| Hearing Office Procedures | |
| OHA Case Control System (CCS) Instructions - DAA Field Specifications | |
| Appeals Council (AC) Procedures | |
| AC Order Vacating Prior Notice of Own Motion Review | |
| Appeals Council Memorandum |
ISSUED: November 14, 1997
Revised: August 24, 2000
This instruction provides procedures for implementing section 105 of Public Law (Pub. L.) 104-121, the Contract with America Advancement Act of 1996, which contains provisions affecting the payment of title II and title XVI benefits to individuals who are disabled and for whom drug addiction and/or alcoholism (DAA) is a contributing factor material to the determination of disability. These procedures replace procedures in HALLEX Temporary Instructions I-5-3-14, issued February 6, 1995, for processing cases involving DAA under Pub. L. 103-296.
Section 105 of Pub. L. 104-121, enacted on March 29, 1996, revised §§ 223(d)(2) and 1614(a)(3) of the Social Security Act (the Act) to prohibit title II and XVI disability entitlement/eligibility to individuals for whom DAA is a contributing factor material to the determination of disability.
The provisions of Pub. L. 104-121 prohibit SSA from awarding title II benefits or title XVI payments to individuals when DAA is material to the determination of disability.
NOTE:
'Material' means that the individual would not be found disabled (based on his or her other impairments) if he or she stopped using drugs and/or alcohol. 'Not material' means that the individual would be found disabled independent of drug and/or alcohol abuse (i.e., based on his or her other impairments) if he or she stopped using drugs and/or alcohol. (See Section V.D. below.)
Benefit payments to currently entitled/eligible title II and/or title XVI beneficiaries who were who are disabled and for whom DAA is a contributing factor material to the determination of disability terminated effective January 1, 1997.
The provisions of Pub. L. 104-121 apply to individuals who file for benefits, or whose claims are “finally adjudicated,” on or after March 29, 1996, the date of enactment. SSA policy is that under Pub. L. 104-121, any case with a Disability Determination Services (DDS) determination or OHA level decision awarding benefits based on a 'DAA material' finding, dated and issued before March 29, 1996, is considered 'finally adjudicated' before March 29, 1996, even if the case is pending appeal. SSA applied the provisions of Pub. L. 103-296 to these cases, i.e., continued payment for months through December 1996.
This policy applies only when the DDS determination or OHA level decision dated and issued before March 29, 1996, awarded benefits based on a finding that DAA is material to the determination of disability. If the issue of DAA first is determined after March 28, 1996, this policy does not apply, even if the pre-March 29, 1996 determination or decision was wholly or partially favorable to the claimant.
EXAMPLE 1: The DDS determination dated and issued March 1, 1996, finds the claimant disabled based on the finding that his impairment meets listing 1.05C, but at a date later than the claimant alleges. The claimant files an appeal and the ALJ finds that whereas the claimant's orthopaedic impairment does not meet listing severity, DAA would be material to an earlier onset.
Because the first DAA material finding would be after March 28, 1996, the claimant's case is not considered "finally adjudicated" under the above provisions and the provisions of Pub. L. 104-121 would apply. The ALJ would have to continue sequential evaluation and determine whether the claimant is disabled independent of DAA. If not, the provisions of Pub. L. 104-121 apply immediately.
EXAMPLE 2: DDS or OHA issued a determination/decision dated before March 29, 1996, finding a claimant disabled because DAA is a contributing factor material to the determination of disability, and the issue on appeal before OHA is an earlier onset date, closed period of disability termination, or DAA materiality finding. OHA will apply the DAA provisions of Pub. L. 103-296 (see section VI. A., below).
NOTE:
Medicare entitlement, based on title II entitlement, and Medicaid eligibility, based on title XVI payment/1619(b) participation, terminate effective January 1, 1997, for any individual for whom DAA is a contributing factor material to the determination of disability. However, Medicaid based on title XVI will continue after January 1, 1997, for SSI DAA recipients while they receive payment continuation under Goldberg v. Kelly based on an appeal of the termination. (See section IV., Appeal Rights, below.)
SSA notified all title II and/or title XVI DAA beneficiaries, within 90 days of enactment (i.e., before June 28, 1996), that they:
were subject to the provisions of Pub. L. 104-121;
would receive benefit payments for months through December 1996;
could appeal the termination and request a new determination of eligibility, and if they so did before July 28, 1996, SSA would make a new disability decision by January 1, 1997.
SSA used the Master Beneficiary Record (MBR), Supplemental Security Record (SSR), Compliance History File (CHF), and listing codes to identify title II and title XVI DAA beneficiaries who were notified that they were subject to the new provisions. SSA sent these beneficiaries notices in June 1996.
Effective with applications filed July 1, 1996, any disability benefit payments shall be made through a representative payee, if the Commissioner determines that such payment would serve the interest of the individual, because the individual also has a DAA 'condition' (as determined by the Commissioner) and the individual is incapable of managing such benefits.
An individual will be found to have a "DAA condition" when the individual has a medically determinable substance use disorder but DAA is not material. (See Section V., DAA Materiality.)
Effective with applications filed July 1, 1996, any title II or XVI beneficiary who has a DAA "condition," and is incapable of managing his/her benefits and whose benefits are paid through a representative payee (see III.D., above), must be referred to the appropriate State agency administering the State plan for substance abuse treatment approved under subpart II of part B of title XIX of the Public Health Service Act.
Beneficiaries entitled to or eligible for disability benefits based on DAA have appeal rights based on the notice that their entitlement and/or eligibility are subject to the provisions of Pub. L. 104-121. The notice gave beneficiaries 60 days to appeal and ask for a redetermination of their entitlement to or eligibility for benefits on a basis other than DAA, i.e., based on age or an impairment other than DAA.
If beneficiaries requested an appeal before July 28, 1996 (i.e., within 120 days after the date of enactment of Pub. L. 104-121), SSA redetermined their entitlement or eligibility by January 1, 1997. This redetermination is a new medical determination as to whether the claimant is disabled independent of DAA, not a review of the prior DAA decision.
In June 1996, SSA sent notices to current title II DAA beneficiaries advising them that, because they are subject to the provisions of Pub. L. 104-121, their benefits would terminate effective January 1, 1997. Title II beneficiaries were not eligible for benefit continuation past January 1, 1997, even if SSA had not completed a redetermination of their entitlement by January 1, 1997.
In June 1996, SSA sent notices to current title XVI beneficiaries advising them that, because they were subject to the provisions of Pub. L. 104-121, their benefits would terminate effective January 1, 1997. The title XVI notice also advised beneficiaries that, if they filed an appeal within 10 days of receipt of the notice, they were eligible for benefit continuation under Goldberg v. Kelly until SSA has made an initial redetermination of their eligibility and that such benefit continuation may extend past January 1, 1997, if SSA had not completed their redetermination of eligibility.
Current beneficiaries had the right to request either a case review or a face-to-face due process evidentiary hearing. Upon appeal, the FO looked for eligibility based on age and the DDS undertook the development required to determine whether the claimant is disabled independent of DAA. If based on this review, the DDS could not determine that the claimant is disabled independent of DAA , and the claimant chose an evidentiary hearing, the case was forwarded to the DDS Disability Hearing Unit (DHU) for a hearing before a Disability Hearing Officer (DHO).
SSA sent separate notices to beneficiaries receiving concurrent titles II and XVI benefits, i.e., these beneficiaries received a notice under each title. Rights to benefit continuation under Goldberg v. Kelly did not attach to the title II portion of concurrent benefits.
Individuals denied benefits in a title II and/or title XVI disability determination/decision issued on or after March 29, 1996, have the right to appeal such denial resulting from the determination/decision that DAA is a contributing factor material to the determination of disability under current appeals processes. SSA will apply the DAA provisions of Pub. L. 104-121 to these appeals.
Although the consequences attached to a determination that DAA is a contributing factor material to the determination of disability have changed, the definition of "material" and the process of determining "materiality" in 20 CFR §§ 404.1535 and 416.935 remain unchanged.
General--Decide whether the individual would be disabled considering the effect of DAA.
Follow sequential evaluation (20 CFR §§ 404.1520 and 416.920), considering the effects of DAA, even for redetermination appeal cases, i.e., do not apply the medical improvement standard.
Claimant is "not disabled"
If you find the individual is not disabled, even when DAA is considered, no "material" determination is needed.
Claimant is "disabled"
If you find the individual is disabled, decide whether there is "medical evidence of DAA" (see C. below).
If the individual is disabled and there is medical evidence of DAA, make a "material" determination (see D. below).
If you decide that DAA is material, then the individual cannot be considered to be 'disabled,' and is not entitled to or eligible for disability benefits.
NOTE:
The above step applies only to decisions made on or after March 29, 1996, and does not apply to the appeals current DAA beneficiaries filed in response to the termination notice SSA sent in June 1996, i.e., current DAA beneficiaries continued to be eligible for or entitled to benefits for months through December 1996, even if DAA is material.)
Medical evidence of DAA is evidence:
from an acceptable medical source, and
sufficient and appropriate to establish that the claimant has a medically determinable substance use disorder.
A claimant's own statement about his condition, e.g., "I am an alcoholic or drug addict," is considered "evidence," but alone is insufficient to establish the existence of DAA, even when the claimant's statement of admission is reported by an acceptable medical source.
Medically determinable substance use disorders are medical conditions described as "¦substance dependence" and "substance abuse" disorders in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (the DSM-IV); i.e., conditions in which the individual's maladaptive pattern of substance use leads to clinically significant impairment or distress.
NOTE:
Do not include medical conditions that arise from a mother's use of alcohol or drugs during pregnancy (e.g., fetal alcohol syndrome or 'crack baby' cases).
Make a finding that DAA is material only when the evidence establishes that the individual would not be disabled if he/she stopped using drugs or alcohol.
The key factor when making a DAA material determination is whether you still would find the individual disabled if he/she stopped using drugs or alcohol. In doing this, decide:
Which of the current physical and mental limitations, upon which you based the current disability determination, would remain if the individual stopped using drugs or alcohol; and
Whether any or all of these remaining limitations would still be disabling.
Examples of when DAA is material:
The only impairment is a substance use disorder.
The individual's other impairment(s) is by itself not disabling; e.g., a hearing impairment that is 'not severe.'
The individual's other impairment(s) is exacerbated by DAA and the evidence documents that, after a drug-free period of at least 1 month, the other impairment(s) is by itself not disabling.
Examples of when DAA is not material:
The individual has another non-DAA impairment(s) that meets or equals a listing, i.e., the other impairment(s) is by itself, disabling and none of the limitations resulting from it are caused or increased by drug or alcohol use.
The individual is limited to sedentary work by an orthopaedic impairment and based on his/her age, education, and work history, the Medical-Vocational Guidelines in Appendix 2, Subpart P, of Regulations 4, direct a finding of 'disabled.'
A finding of 'material' will result in a determination that the individual cannot be considered to be disabled. A determination of whether DAA is 'material' is appropriate only when you find that the individual is disabled and there is sufficient and appropriate medical evidence to establish the existence of a substance use disorder, and the individual would not be considered to be disabled if he/she stopped using drugs and/or alcohol.
If the evidence in file is sufficient and appropriate to make a determination that the individual is disabled independent of DAA, but the evidence is not sufficient and appropriate to establish the existence of a substance use disorder, undertake no additional development of DAA. Decide the case based on the evidence in file.
If the evidence in file is sufficient and appropriate to make a determination that the individual is disabled and also is sufficient and appropriate to establish the existence of a substance use disorder, make the material determination. If DAA is found to be material, determine if all alleged or potential non-DAA impairments have been fully developed.
If yes, then the individual cannot be considered to be disabled.
If no, continue development of the other impairment(s) and then again determine whether DAA is material (i.e., the evidence shows the individual would be disabled even if use of drugs or alcohol stopped) or all impairments have been fully developed.
For purposes of the new law, an individual will be found to have a "DAA condition" when the individual has a medically determinable substance use disorder but DAA is not material to the finding of disability, i.e., the claimant is disabled independent of alcoholism or drug abuse. Based on the current provisions of Pub. L. 104-121, DAA condition provisions apply only to applications filed on or after July 1, 1996.
When a case has a DDS or OHA DAA material determination or decision awarding benefits dated and issued before March 29, 1996, follow the instructions contained in HALLEX Temporary Instructions I-5-3-14, and:
Apply the DAA provisions of Section 201 of Pub. L. 103-296, except the 36-month payment limitation provision because Pub. L. 104-121 terminates benefits effective January 1, 1997.
Include in the decision the appropriate rationale and a specific enumerated finding as to whether DAA is a contributing factor material to the finding of disability. (See HALLEX I-5-3-14 V. B. 4. a., Rationale and Findings.)
Include the standard DAA language about treatment and the representative payee provisions in the decisional paragraph when DAA is a contributing factor material to the finding of disability. (See HALLEX I-5-3-14 V. B. 4. b.).
Do not include language about the 36-month payment limitation provisions in the decisional paragraph. Add language about benefits terminating beginning January 1, 1997, along the following lines: 'Pursuant to Section 105 of Pub. L. 104-121, your payments will end effective January 1, 1997, even if you are receiving treatment.'
If DAA is a contributing factor material to the finding of disability, annotate the remarks section of Form HA-5051, Transmittal of Decision or Dismissal by Administrative Law Judge, "PRE-3/29/96 DAA MATERIAL DETERMINATION — APPLY PUB. L. 103-296" and follow the coding and routing procedures contained in HALLEX I-5-3-14 V. B. 5. 7.
Hearing Scheduled But Not Held
Continue to screen all disability cases scheduled for hearing to determine whether DAA is an issue. If DAA is an issue, send another notice informing the claimant and representative, if appropriate, of how the new provisions affect the DAA issue to be decided at least 20 days before the hearing, unless the claimant waived the right to 20-day notice. (See HALLEX I-2-2-10, Notice of Issues, and section VI.E. 3. below.) If less than 20 days remain before the hearing, and the claimant does not waive the right to 20-day notice, reschedule the hearing. (See HALLEX I-2-2-20, Objections to the Issues.)
Hearing in Progress
If an Administrative Law Judge (ALJ) discovers for the first time during a hearing that DAA is an issue in the case, and the claimant does not waive the right to 20-day notice of the new issue, the ALJ will adjourn the hearing and continue at an appropriate later date. (See HALLEX I-2-6-80, Continued or Reopened Hearing.)
Hearing Held But Decision Not Issued
In the hearing office (HO), screen all disability cases awaiting decision or issuance to determine whether DAA would be a contributing factor material to the determination of disability. If so, the ALJ will provide the claimant the opportunity to:
submit additional evidence and/or argument; and
request a supplemental hearing.
(See HALLEX I-2-6-80, Continued or Reopened Hearing.)
SSA personnel who are providing OHA decision writing assistance under the Short Term Disability Project (STDP) will screen all disability cases awaiting decision drafting to determine if DAA is material to the determination of disability. If so, they will return the case to the servicing HO and alert that office that DAA is material
Upon receipt of a potential DAA material case, the HO will follow the procedures in section VI.B.3.a., above
In accordance with established protest case procedures, SSA effectuating components (i.e., Office of Disability and International Operations (ODIO), Program Service Centers (PSCs) and field offices (FOs)) will send to the Appeals Council (AC) any favorable hearing decision dated March 29, 1996, or later when the ALJ found that DAA is material.
Hold any CDR case in which DAA was or would be found to be material pending further instructions.
Prehearing Analysis and Case Workup
When an HO receives a request for hearing in a disability case, the HO staff will determine whether DAA is an issue in the case and include the specific issue(s) in the summary of the issues and evidence which they prepare for the ALJ. (See HALLEX I-2-1-5, Conducting Prehearing Case Analysis and Workup.)
Issues Before the ALJ
DAA is an issue in a disability case if the claimant alleges disability due to DAA, or DAA is a primary or secondary diagnosis on the Forms SSA-831, SSA-832, or SSA-833, or there is medical evidence of DAA. (See I-2-2-1, Issues, and the above section IV., Appeal Rights.)
Notice of Hearing
The notice of hearing in a disability case, in which DAA is an issue, must include language stating that the ALJ also will decide whether drug addiction or alcoholism is a contributing factor material to the determination of disability. For example:
"If I find that drug addiction and/or alcoholism is an issue, I also will decide whether it is a contributing factor material to the determination of your disability. Further, if drug addiction or alcoholism is a contributing factor material to the determination of your disability, I will find you not disabled pursuant to Sections 223(d)(2) and 1614(a)(3) of the Social Security Act as amended by Pub. L. 104-121."
(See HALLEX I-2-3-15 C., Information to Include on the Notice of Hearing.)
Opening Statement at Hearing
The ALJ will include the DAA issue(s), when appropriate, in the opening statement at the hearing. (See HALLEX I-2-6-52, Opening Statement.) If an ALJ discovers for the first time during a hearing that DAA is an issue in the case, and the claimant does not waive the right to 20-day notice of the new issue, the ALJ adjourns the hearing and continues at any appropriate later date. (See HALLEX I-2-6-80, Continued or Reopened Hearing.)
ALJ Decision
A decision finding that DAA is a contributing factor material to the determination of disability is an unfavorable decision. A decision finding that DAA is not a contributing factor material to the determination of disability may be favorable if the decision is favorable in all other respects.
Rationale and Findings
In all title II only, title XVI only, and concurrent title II/title XVI decisions involving DAA, include appropriate rationale as to whether DAA is a contributing factor material to the determination of disability pursuant to §§ 404.1535 and 416.935, and a specific enumerated finding that drug addiction or alcoholism is/is not a contributing factor material to the determination of disability pursuant to Pub. 104-121. The finding should use language along the following lines:
Favorable Decision
'The medical evidence establishes that [drug addiction is not] [alcoholism is not] [drug addiction and alcoholism are not] a contributing factor(s) material to the determination of disability.'
Unfavorable Decision
'The medical evidence establishes that the claimant would not be disabled if [he/she] stopped using [drugs] [alcohol] [drugs and alcohol]. Therefore, in accordance with § 105 of Public Law 104-121, enacted on March 29, 1996, the claimant is ineligible for disability [benefits] [payments] under [title II] [title XVI] [titles II and XVI] of the Act.
Decisional Paragraphs
DAA Is Material
Use non-DAA standard unfavorable decisional paragraph language.
DAA Is Not Material
Use non-DAA standard unfavorable, partially favorable, or fully favorable decisional paragraph language, as appropriate.
Cover Notices For Transmitting Decisions
Use the standard unfavorable decision cover notice in all disability denial decisions in which DAA is a contributing factor material to the determination of disability
Use the partially/fully favorable decision cover notice in all disability decisions in which DAA is not a contributing factor material to the determination of disability and the decision is partially/fully favorable
Case Routing Instructions
Annotate the remarks section of Form HA-5051, Transmittal of Decision or Dismissal by Administrative Law Judge, "DAA Is Material - PUB. L. 104-121 APPLIES."
If DAA was an issue in the case, but is not determined to be a contributing factor material to the determination of disability, annotate the remarks section of the HA-5051 "DAA Is Not Material."
For applications filed July 1, 1996, or later, if DAA was an issue in the case, but the decision awarding benefits finds the claimant disabled independent of DAA, annotate the remarks section of the HA-5051 "DAA Condition - Capability/Payee Development Required."
For title II only cases, the HO must forward a copy of the hearing decision to the servicing FO
Make an entry to the DAA field when:
CLT equals DIWC or DIWW and the DSP equals FREV or FAFF; or
CLT equals SSIB or SSID and the 2SP equals FREV or FAFF; or
CLT equals SSBC or SSDC and the DSP and 2SP equals FREV or FAFF; or
CLT equals RSI and the ISI equals P, R, O or D and the DSP equals FREV or FAFF.
Values Acceptable for DAA Field -- Favorable (FREV or FAFF) Decisions:
| X | Alcoholism is involved, but is not material. |
| Y | Drug addiction is involved, but is not material. |
| Z | Both drug addiction and alcoholism are involved, but are not material. |
| W | X, Y, or Z was involved, but there now is no evidence of a DAA impairment. |
| N | DAA is not material (use only for claims filed before July 1, 1996) |
| I | DAA is not a condition or is not involved in any way (use only for claims filed after July 1, 1996). |
Make an entry to the DAA field when:
CLT equals DIWC or DIWW and the DSP equals UAFF or UREV; or
CLT equals SSID and the 2SP equals UAFF or UREV; or
CLT equals SSDC and the DSP and 2SP equals UAFF or UREV; or
CLT equals RSI and the ISI equals P, R, O or D and the DSP equals UAFF or UREV.
Values Acceptable for DAA Field - Unfavorable (UAFF or UREV) Decisions:
| A | Alcoholism is material |
| D | Drug addiction is material |
| B | Both drug addiction and alcoholism are material |
| N | DAA is not material (only for claims filed before July 1, 1996) |
| I | DAA is not a condition or is not involved in any way (only for claims filed after July 1, 1996) |
Make an entry to the DAA field when:
CLT equals DIWC or DIWW and the DSP equals UAFF or UREV; or
CLT equals SSID and the 2SP equals UAFF or UREV; or
CLT equals SSDC and the DSP and 2SP equals UAFF or UREV; or
CLT equals RSI and the ISI equals P, R, O or D and the DSP equals UAFF or UREV
Values Acceptable for Unfavorable (UAFF or UREV) Decisions:
| J | Alcoholism is material |
| K | Drug addiction is material |
| L | Both drug addiction and alcoholism are material |
| N | DAA is not material (only for claims filed before July 1, 1996) |
| I | DAA is not a condition or is not involved in any way (only for claims filed after July 1, 1996) |
Note the following additional instructions:
When the DAA field contains A, D, B, J, K or L; and the CLT equals SSDC, the DSP must equal the 2SP.
When the DAA field contains X, Y, Z, W, I or N; and the CLT equals SSDC, the DSP does not have to equal the 2SP.
The provisions of Pub. L. 103-296 apply to claims finally adjudicated before March 29, 1996. This includes any case with a Disability Determination Service (DDS) determination, OHA or court level decision finding that DAA is a contributing factor material to the determination of disability dated and issued prior to March 29, 1996, including those cases pending appeal, e.g., appeals on the issue of 'materiality' or earlier onset.
These individuals are considered "current beneficiaries," and most received the June or July 1996 notice regarding the provisions of Pub. L. 104-121, advising them that their entitlement to and/or eligibility for disability payments/benefits would terminate effective January 1, 1997.
No special action or notice is required when the AC denies a request for review of a hearing decision dated and issued before March 29, 1996, in which the ALJ determined DAA is a contributing factor material to the finding of disability. This includes cases in which the issue on appeal is:
'materiality;'
earlier onset; and/or
a closed period of disability.
The AC can take any of its usual actions, including:
Issuing a decision more favorable to the claimant, e.g., finding an earlier onset or that DAA is not material;
Issuing a decision less favorable to the claimant; or
Remanding the case to an ALJ.
The provisions of Pub. L. 103-296, apply to these cases, not Pub. L. 104-121, i.e., the AC cannot issue a decision finding that because DAA is material, the claimant is not disabled.
A remand order must include language reminding the ALJ to apply the provisions of Pub. L. 103-296, and that if the decision after remand finds the claimant entitled/eligible for disability benefits/payments because DAA is a contributing factor material to the determination of disability, the decision must:
omit reference to the 36-month payment limitation and treatment requirements of Pub. L. 103-296, however, retain reference to the provision that require payment through a representative payee; and
include language regarding the January 1, 1997 payment termination provisions under Pub. L. 104-121. See sample language in section D., below.
Favorable (including partially favorable) AC decisions also must include language referring to Pub. L. 104-121, advising claimants that benefits/payments terminate effective January 1, 1997.
No special decision language or Pub. L. reference is required when the AC issues a decision finding DAA is not material to the determination of disability.
EXCEPTION:
Favorable (including partially favorable) decisions issued based on applications filed July 1, 1996, or later, must include 'DAA Condition' language.
The AC may reverse a favorable (including partially favorable) decision and find the claimant not disabled. In evaluating the issue of disability, the AC must apply the provisions of Pub. L. 103-296, to any case in which there is a favorable DDS determination or ALJ decision finding the claimant disabled because DAA is material, that was dated and issued before March 29, 1996.
If the AC proposes to take less than fully favorable action on the case, and the claimant received an on-the-record decision from an ALJ or a decision from a Senior Staff Attorney or an Adjudication Officer, the claimant has a right to a hearing. If the claimant requests a hearing, the AC will remand the case to an ALJ. If the claimant does not request a hearing, or merely submits evidence or comments for AC consideration, or does not respond to the AC notice, the AC will proceed with its decision.
A remand may also be necessary when there has been inadequate notice of DAA issues.
The AC order of remand should clearly advise the ALJ to apply Pub. L. 103-296 to the case. Therefore, include the following language:
The claimant received a favorable determination or decision prior to March 29, 1996, finding that DAA is a contributing factor material to the finding of disability. It is SSA policy that, except for the 36-month benefit limitation and treatment requirements, the provisions of Pub. L. 103-296 apply. However, the decision, if favorable to the claimant based on the finding that DAA is a material factor contributing to the determination of disability, also must include language advising the claimant of the January 1, 1997 payment termination provisions under Pub. L. 104-121.
The provisions of Pub. L. 104-121 apply to these cases, unless a DDS or OHA issued a prior pre-March 29, 1996 fully or partially favorable determination or decision finding DAA material to the determination of disability, e.g., the AC remanded a decision issued before March 29, 1996, in which the ALJ found DAA material.
If the AC proposes to find the claimant not disabled because DAA is a contributing factor material to the determination of disability, and
the ALJ did not provide notice of DAA issues at the hearing; or
the claimant did not waive the right to 20-day advance notice on DAA issue; or
the record of the hearing does not contain evidence of DAA subsequently submitted by the claimant or representative or the AC does not receive such evidence in connection with the request for review; and
DAA is not the only impairment in the case:
The AC will provide notice of its intention to issue a decision finding that DAA is a contributing factor material to the determination of disability and that pursuant to Pub. L. 104-121, the claimant is not eligible for or entitled to disability benefits. The notice will state specifically that the claimant has the right to a hearing.
If the claimant requests a hearing, the AC will remand the case to an ALJ. If the claimant does not request a hearing, or merely submits evidence or comments for AC consideration, or does not respond to the AC notice, the AC will proceed with its decision under Pub. L. 104-121.
If the AC has granted review or taken own motion on an unfavorable or partially favorable ALJ decision on the basis that the claimant would be disabled because DAA is a material factor contributing to the determination of disability and the AC has issued a propose-to-find notice before March 29, 1996, proceed to issue the decision pursuant to Pub. L. 103-296. The AC decision must include language explaining that the representative payee provisions of Pub. L. 103-296 continue to apply and language regarding the January 1, 1997 payment termination provisions under Pub. L. 104-121.
Pub. L. 103-296 applies to cases an effectuating component returns, or has returned, because the pre-March 29, 1996 decision does not state clearly that DAA is a contributing factor material to the finding of disability. If administrative finality allows, take the following action.
Appeals Council Already Has Taken Own Motion
Review the decision to determine whether a fully favorable decision is appropriate, i.e., a decision finding that the claimant has an impairment or impairments that would result in a finding of disability regardless of DAA. If so, issue the fully favorable decision and include a finding that DAA is not material to the finding of disability.
If a fully favorable decision is not warranted, vacate the own motion notice (see Attachment 1 for draft language). Return the case to the effectuating component for effectuation under cover of a memorandum from the Appeals Council using Appeals Council Standardized Text, Temporary COR 31 with draft language in Attachment 2.
Appeals Council Has Not Taken Own Motion
The time frame for taking own motion on a decision issued before March 29, 1996, has expired. If the period for reopening also has elapsed, follow the instructions in I. below. If the period for reopening has not elapsed, take the following actions.
If the decision contains sufficient definitive or implied findings to establish that DAA is a contributing factor material to the determination of disability, i.e., the decision references the 36-month payment limitation, treatment requirements, or representative payment provisions, follow the instructions for protest cases involving a technical error in HALLEX I-3-1-40 D. 2.
If the decision does not contain sufficient definitive or implied findings to establish that DAA is a contributing factor material to the determination of disability, review the decision to determine whether a fully favorable decision is appropriate, i.e., the claimant has an impairment or impairments that would result in a finding of disability regardless of DAA. If so, reopen and issue the fully favorable decision. In the decision, include a finding that DAA is not material to the finding of disability.
If a fully favorable decision is not warranted, return the case to the effectuating component with instructions to effectuate the decision using Appeals Council Standardized Text, Temporary COR 31 with draft language in Attachment 2.
Effectuating components (ODIO, PSCs, or FOs) will return cases with an OHA level decision dated and issued March 29, 1996, or later, in which the ALJ found the claimant disabled and determined that DAA is a contributing factor material to the determination of disability. The AC will follow the procedures for handling protest cases advising the ALJ to apply the provisions of Pub. L. 104-121.
EXCEPTION:
Pub. L. 103-296, applies to cases in which a DDS or OHA issued a determination/decision before March 29, 1996, finding that DAA was a contributing factor material to the finding of disability, e.g., an ALJ issued a pre-March 29, 1996 decision finding DAA material, but the AC granted review or took own motion, resulting in a subsequent decision issued March 29, 1996, or later.
If the time frames for own motion and reopening under 20 CFR §§ 404.988 and/or 416.1488 have elapsed, return the case to the effectuating component with instructions to effectuate the decision using Appeals Council Standardized Text, Temporary COR 31 with draft language in Attachment 2.
When the ALJ dismissed the claimant's request for hearing or issued a decision finding the claimant not disabled, and the AC proposes to issue a decision finding that the claimant is disabled, the AC must apply the provisions of Pub. L. 104-121. However, if the dismissal or decision being vacated by the AC flows from a DDS determination or OHA decision dated and issued before March 29, 1996, in which the DDS or OHA found DAA material, the provisions of Pub. L. 103-296 apply.
No special action or language is required when the AC denies a request for review of an unfavorable ALJ decision or dismissal.
Decision Making Process
Follow sequential evaluation (20 CFR §§ 404.1520 and 416.920), considering the effects of DAA. See section V. above.
Rationale and Findings
In all decisions involving DAA, include appropriate rationale as to whether DAA is a contributing factor material to the determination of disability, and a specific enumerated finding that drug addiction or alcoholism is a contributing factor material to the determination of disability pursuant to Pub. L. 104-121. The finding should use language such as: 'The Appeals Council finds that your [drug addiction] [alcoholism] [is] [drug addiction and alcoholism are] a contributing factor material to the determination of disability; therefore, pursuant to Pub. L. 104-121, you are not entitled to and/or eligible for disability benefits.'
Decisional Paragraphs
Cases decided under Pub. L. 103-296
Omit decisional paragraph language regarding the 36-month payment limitation and treatment provisions (remain language regarding the representative payee requirements), and add language advising the claimant that entitlement to, and/or eligibility for, disability benefits terminate effective January 1, 1997.
Cases decided under Pub. L. 104-121
Use standard decisional language.
Cover Notices For Transmitting Decisions
Use standard denial or allowance cover notices.
Routing
Annotate the remarks section of Form HA-505, 'DAA IS MATERIAL,' if appropriate
NOTE:
SSA will track denials.
Beginning with applications filed July 1, 1996, or later, if DAA was an issue in the case and DAA is not a contributing factor material to the determination of disability, annotate the remarks section of the HA-505, 'DAA CONDITION.' (See “Exception” in VIII. C., above.)
For title II only cases, the AC must forward a copy of the AC decision to the servicing FO.
In June and July 1996, the Social Security Administration (SSA) sent notices to beneficiaries currently entitled to and/or eligible for disability benefits based on DAA, advising them that under the provisions of § 105 of Pub. L. 104-121, enacted March 29, 1996, their disability payments will terminate effective January 1, 1997. The notice also advised title XVI
only and concurrent title II/title XVI beneficiaries of their right to appeal by choosing between a case review or face-to-face evidentiary hearing. State Disability Determination Services (DDSs), Disability Hearing Units (DHUs) will process this appeal workload for SSA. Title II only beneficiaries are not entitled to a face-to face evidentiary hearing and receive a case review instead, performed by the DDS.
Some beneficiaries filing appeals in response to the June or July 1996 notice, also have appeals pending at OHA, e.g., they are appealing the DAA materiality finding.
The Appeals Council (AC) will not delay action on a pending request for review even if the claimant has filed an appeal based on the June or July 1996 termination notice. However, the servicing FO will advise the AC of the appeal under Pub. L. 104-121 and of the outcome of the appeal if the case control system shows that the first appeal is still pending before the AC.
To avoid disparate decisions in these cases, if the AC grants the request for review and either remands for further development or issues a decision, the AC should send a copy of its action to the servicing FO.
