[Federal Register: June 24, 2005 (Volume 70, Number 121)]
[Rules and Regulations]
[Page 36494-36509]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24jn05-17]
=======================================================================
-----------------------------------------------------------------------
SOCIAL SECURITY ADMINISTRATION
20 CFR Parts 404 and 416
[Regulation Nos. 4 and 16]
RIN 0960--AF86
Continuation of Benefit Payments to Certain Individuals Who Are
Participating in a Program of Vocational Rehabilitation Services,
Employment Services, or Other Support Services
AGENCY: Social Security Administration.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: We are publishing final rules that amend the rules for the
continuation of disability benefit payments under titles II and XVI of
the Social Security Act (the Act) to certain individuals who recover
medically while participating in an appropriate vocational
rehabilitation (VR) program with a State vocational rehabilitation
agency. We are amending these rules to conform with statutory
amendments that extend eligibility for these continued benefit payments
to certain individuals who recover medically while participating in an
appropriate program of services. These include individuals
participating in the Ticket to Work and Self-Sufficiency Program or
another program of vocational rehabilitation services, employment
services, or other support services approved by the Commissioner of
Social Security. We are also extending eligibility for these continued
benefit payments to students age 18 through 21 who recover medically,
or whose disability is determined to have ended as a result of an age-
18 redetermination, while participating in an individualized education
program developed under the Individuals with Disabilities Education Act
with an appropriate provider of services. Providers of services we may
approve include a public or private organization with expertise in the
delivery or coordination of vocational rehabilitation services,
employment services, or other support services; or a public, private or
parochial school that provides or coordinates a program of vocational
rehabilitation services, employment services, or other support services
carried out under an individualized program or plan.
DATES: Effective Date: These rules are effective July 25, 2005.
FOR FURTHER INFORMATION CONTACT: Mary Hoover, Policy Analyst, Office of
Program Development and Research, Social Security Administration, 128
Altmeyer Building, 6401 Security Boulevard, Baltimore, MD 21235-6401,
e-mail to regulations@ssa.gov, or telephone (410) 965-5651 or TTY 1-
800-325-0778 for information about these regulations. For information
on eligibility or filing for benefits, call our national toll-free
number, 1-800-772-1213 or TTY 1-800-325-0778, or visit our Internet Web
site, Social Security Online, at http://www.socialsecurity.gov.
Electronic Version
The electronic file of this document is available on the date of
publication in the Federal Register at http://www.gpoaccess.gov/fr/
index.html. It is also available on the Internet site for the Social
Security Administration (i.e., Social Security Online): http://
policy.ssa.gov/pnpublic.nsf/LawsRegs.
SUPPLEMENTARY INFORMATION:
Statutory Background
The Social Security Disability Amendments of 1980
The Social Security Disability Amendments of 1980 (the 1980
Amendments), Public Law 96-265, amended titles II and XVI of the Act to
provide for the continuation of payment of disability benefits under
the Social Security or SSI program to certain
[[Page 36495]]
individuals whose disability medically ceases while the individual is
engaged in a program of vocational rehabilitation. Section 301 of the
1980 Amendments added sections 225(b) and 1631(a)(6) of the Act to
provide that the payment of benefits based on disability shall not be
terminated or suspended because the physical or mental impairment, on
which the individual's entitlement or eligibility is based, has or may
have ceased, if:
The individual is participating in an approved vocational
rehabilitation program under a State plan approved under title I of the
Rehabilitation Act of 1973, and
The Commissioner of Social Security determines that
completion of the program, or its continuation for a specified period
of time, will increase the likelihood that the individual may be
permanently removed from the disability benefit rolls.
The purpose of these benefit continuation provisions is to
encourage individuals to continue participating in the approved
vocational rehabilitation program in which they are engaged at the time
their disability ceases in ``those exceptional cases where the
administration is able to determine that continuation in a vocational
rehabilitation program will increase the likelihood of the individual's
being permanently removed from the disability rolls.'' S. Rep. No. 408,
96th Cong., 1st Sess. 50 (1979).
Our regulations implementing the provisions of the Act added by
section 301 of the 1980 Amendments provide that we may continue an
individual's benefits (and, when the individual receives benefits as a
disabled worker, the benefits of his or her dependents) after the
individual's impairment is no longer disabling if:
The individual's disability did not end before December
1980, the effective date of the provisions of the Act added by section
301 of the 1980 Amendments;
The individual is participating in an appropriate program
of vocational rehabilitation, that is, one that has been approved under
a State plan approved under title I of the Rehabilitation Act of 1973
and that meets the requirements outlined in 34 CFR part 361 for a
rehabilitation program;
The individual began the program before his or her
disability ended; and
We have determined that the individual's completion of the
program, or his or her continuation in the program for a specified
period of time, will significantly increase the likelihood that the
individual will not have to return to the disability benefit rolls.
Our regulations provide that these continued benefits generally
will be stopped with the month the individual completes the program,
stops participating in the program for any reason, or we determine that
the individual's continuing participation in the program will no longer
significantly increase the likelihood that the individual will be
permanently removed from the disability benefit rolls.
The Omnibus Budget Reconciliation Act of 1987
Section 9112 of the Omnibus Budget Reconciliation Act of 1987 (OBRA
1987), Public Law 100-203, amended section 1631(a)(6) of the Act to
extend eligibility for continued benefits under that section to
individuals who receive SSI benefits based on blindness and whose
blindness ends while they are participating in an approved State
vocational rehabilitation program. This amendment was effective April
1, 1988. We implemented this amendment through the issuance of
operating instructions reflecting the extension of eligibility for
continued benefits under section 1631(a)(6) of the Act to individuals
receiving SSI blindness benefits. In addition, when we added Sec. Sec.
416.2201(b) and 416.2212 to our regulations governing payments under
the vocational rehabilitation cost reimbursement program, we included
rules to reflect the expanded scope of the benefit continuation
provision under section 1631(a)(6) of the Act resulting from the
amendment made by section 9112 of OBRA 1987.
The Omnibus Budget Reconciliation Act of 1990
Section 5113 of the Omnibus Budget Reconciliation Act of 1990 (OBRA
1990), Public Law 101-508, amended sections 225(b) and 1631(a)(6) of
the Act to permit the continuation of benefit payments on account of an
individual's participation in a non-State vocational rehabilitation
program. Section 5113 amended sections 225(b) and 1631(a)(6) of the Act
to allow the continuation of payment of Social Security disability
benefits or SSI disability or blindness benefits to an individual whose
disability or blindness ends while he or she is participating in a
program of vocational rehabilitation services approved by us. These
amendments extended to Social Security disability beneficiaries and SSI
disability or blindness beneficiaries who medically recover while
participating in an approved non-State vocational rehabilitation
program the same benefit continuation rights applicable to individuals
participating in an approved State vocational rehabilitation program.
The amendments made by section 5113 of OBRA 1990 were effective for
benefits payable for months beginning on or after November 1, 1991, and
applied to individuals whose disability or blindness ended on or after
that date. We implemented these amendments through the issuance of
operating instructions reflecting the extension of eligibility for
continued benefits under sections 225(b) and 1631(a)(6) of the Act to
individuals who medically recover while participating in an approved
non-State vocational rehabilitation program.
The Personal Responsibility and Work Opportunity Reconciliation Act of
1996
The Personal Responsibility and Work Opportunity Reconciliation Act
of 1996, Public Law 104-193, amended section 1614(a)(3) of the Act to
require redeterminations of the eligibility for SSI benefits based on
disability of individuals who attain age 18 (age-18 redeterminations).
The law requires us to redetermine the eligibility of individuals who
attain age 18 and who were eligible for SSI benefits based on
disability for the month before the month in which they attained age
18. In these disability redeterminations, the law requires us to use
the rules for determining initial eligibility for adults (individuals
age 18 or older) filing new applications for benefits. The medical
improvement review standard used in continuing disability reviews does
not apply to these disability redeterminations.
In Sec. 416.987(b) of our regulations, we explain the rules for
adult applicants that we use in redetermining the eligibility of an
individual who has attained age 18. If we find that the individual is
not disabled, we will find that his or her disability has ended, as
explained in Sec. 416.987(e). For an individual whose disability has
ended as a result of an age-18 redetermination using the rules
described in Sec. 416.987(b), and who is participating in a program of
vocational rehabilitation services when disability ends, our operating
guides provide that we will consider the individual for eligibility for
continued benefits under section 1631(a)(6) of the Act. For benefits to
continue, the individual must be participating in an approved program
of vocational rehabilitation services. In addition, the completion or
continuation of the program must satisfy the test of increasing the
likelihood of the individual's permanent removal from the benefit
rolls. The individual must meet all of the other requirements of SSI
eligibility.
[[Page 36496]]
The Ticket to Work and Work Incentives Improvement Act of 1999
On December 17, 1999, the Ticket to Work and Work Incentives
Improvement Act of 1999, Public Law 106-170, became law. Section 101(a)
of this law added a new section 1148 of the Act to establish the Ticket
to Work and Self-Sufficiency Program (Ticket to Work program). The
purpose of the Ticket to Work program is to expand the universe of
service providers available to beneficiaries with disabilities who are
seeking employment services, vocational rehabilitation services, or
other support services to assist them in obtaining, regaining, and
maintaining self-supporting employment.
Under the Ticket to Work program, the Commissioner of Social
Security may issue a ticket to Social Security disability beneficiaries
and disabled or blind SSI beneficiaries for participation in the
program. Each beneficiary has the option of using his or her ticket to
obtain services from a provider known as an employment network or from
a State vocational rehabilitation agency. The beneficiary will choose
the employment network or State vocational rehabilitation agency, and
the employment network or State vocational rehabilitation agency will
provide services. Employment networks will also be able to choose whom
they serve.
We published final regulations implementing the Ticket to Work
program in the Federal Register on December 28, 2001 (66 FR 67370). The
regulations were effective on January 28, 2002. Under the regulations,
service providers who provide vocational rehabilitation services,
employment services, or other support services can qualify as
employment networks and serve beneficiaries under the Ticket to Work
program. The expansion of options available to beneficiaries to obtain
these services is intended to enhance the choices of beneficiaries in
getting the services they need to obtain, regain and/or maintain
employment.
Section 101(b) of the Ticket to Work and Work Incentives
Improvement Act of 1999 amended sections 225(b)(1) and 1631(a)(6)(A) of
the Act by deleting ``a program of vocational rehabilitation services''
and inserting in its place ``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.'' The amended provisions of these sections now
expressly authorize the continuation of benefit payments under section
225(b) or 1631(a)(6) of the Act to an individual whose disability or
blindness ceases when the individual is participating in a program
consisting of the Ticket to Work program under section 1148 of the Act
or another program of vocational rehabilitation services, employment
services, or other support services approved by the Commissioner of
Social Security. The amendments did not change the requirement in
sections 225(b)(2) and 1631(a)(6)(B) of the Act that, for an individual
to qualify, the Commissioner of Social Security must determine that the
completion of the program, or its continuation for a specified period
of time, will increase the likelihood that the individual may be
permanently removed from the disability or blindness benefit rolls.
The Individuals With Disabilities Education Act (IDEA)
Part B of IDEA, as amended (20 U.S.C. 1400 et seq.), establishes a
program for assistance to States to provide special education and
related services to children with disabilities. Part B of IDEA is
administered by the U.S. Department of Education.
The concept of a ``disability'' under IDEA is distinct from the
definition of disability under title II or title XVI of the Social
Security Act. A person may have a disability for the purposes of part B
of IDEA, but not meet or no longer meet the definition of disability
under the title II or title XVI programs. In this preamble, when we use
the term ``individual with a disability,'' ``student with a
disability,'' or a similar term with reference to IDEA, we intend the
term to have the same meaning as the term ``child with a disability''
as defined in section 602(3) of IDEA, as amended (20 U.S.C. 1401(3)).
In order for a State to receive assistance under part B of IDEA, an
individualized education program (IEP) must be developed, reviewed and
revised for each child with a disability. The IEP must be developed,
reviewed and, if appropriate, revised by a team including, among
others, the student, if appropriate, and his or her parents, a special
education teacher, the student's regular education teacher, if the
child is or may be participating in the regular education environment,
and other individuals who have knowledge or special expertise
concerning the child. For each student with a disability beginning at
age 16 (or younger if determined appropriate by the IEP team), the IEP
must include a statement of needed transition services for the student
that promotes movement from school to post-school activities. Based on
the individual student's needs, transition services might include
postsecondary education, vocational training, integrated employment
(including supported employment), continuing and adult education, adult
services, independent living, or community participation.
In the NPRM, we cited language from Public Law 105-17, the IDEA
Amendments of 1997, enacted on June 4, 1997. Congress made changes to
IDEA in Public Law 108-446 enacted on December 3, 2004. 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; and * * * beginning not later than 1
year before the child reaches the age of majority under State law, a
statement that the child has been informed of the child's rights under
this title, if any, that will transfer to the child on reaching the age
of majority under section 615(m).
Other Background
The National Longitudinal Transition Study
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 number 300-87-0054 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.) The NLTS provides evidence of the importance
of supporting students with disabilities to stay in school. The study
showed that:
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.
In addition, the NLTS documented the importance of vocational
education
[[Page 36497]]
and work experience programs in school:
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 high 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.
The NLTS also documented that the post-school paths of youths with
disabilities reflected their transition goals. Twelfth-graders who had
a transition goal related to competitive employment or to postsecondary
education were more likely to find jobs or go on to postsecondary
schools than students who did not have such a goal.
The NLTS suggests 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. It indicates that students with
disabilities drop out of school at a higher rate than students in the
general population (38 percent vs. 25 percent).
The New Freedom Initiative
On February 1, 2001, President George W. Bush announced his New
Freedom Initiative to promote the full participation of people with
disabilities in all areas of society by increasing access to assistive
and universally designed technologies, expanding educational and
employment opportunities, and promoting full access to community life.
Because a solid education is critical to ensuring that individuals with
disabilities have an equal chance to succeed, the New Freedom
Initiative includes goals of expanding access to quality education for
youths with disabilities, ensuring that they receive support to
transition from school to employment, and improving the high school
graduation rates of students with disabilities. These final rules fully
support the education and employment goals embodied in the New Freedom
Initiative.
Changes to the Regulations
These final rules update our regulations to reflect amendments to
sections 225(b) and 1631(a)(6) of the Act. They also make certain other
changes to our regulations regarding eligibility for continued benefit
payments under these sections of the Act.
On August 1, 2003, we published a Notice of Proposed Rulemaking
(NPRM) in the Federal Register (68 FR 45180) and provided a 60-day
period for interested parties to comment. We received comments from 201
commenters. We summarize the significant comments we received on the
proposed rules and provide our responses to those comments later in
this preamble under ``Public Comments on the Notice of Proposed
Rulemaking.'' As we explain below, in these final regulations, we are
making certain changes from the proposed rules in response to public
comments.
Subsequent to the publication of the NPRM, one of the sections that
we proposed to amend (and that we are now amending in these final
regulations) was redesignated as a result of a separate publication of
a final rule affecting the regulations under the SSI program.
Specifically, on September 11, 2003, we published a final rule in the
Federal Register (68 FR 53506), relating to access to information held
by financial institutions, that redesignated Sec. 416.1321,
``Suspensions; general,'' as Sec. 416.1320, and added a new Sec.
416.1321, ``Suspension for not giving us permission to contact
financial institutions,'' effective October 14, 2003. As a result of
this change, the section identified in the NPRM as Sec. 416.1321 is
now Sec. 416.1320. Reflecting this change, the final regulations that
we are publishing today amend Sec. 416.1320. Therefore, in explaining
the changes to this section in this preamble, we identify the section
affected as Sec. 416.1320, rather than Sec. 416.1321 as provided in
the NPRM.
Extension of Eligibility for Continued Benefit Payments to Individuals
Who Receive SSI Benefits Based on Blindness
We are revising Sec. Sec. 416.1320(d), 416.1331(a) and (b),
416.1338(a) and (b), and 416.1402(j) to reflect the OBRA 1987 amendment
that extended the scope of section 1631(a)(6) of the Act to cover
individuals receiving SSI benefits based on blindness. We are revising
these sections to indicate that an individual whose eligibility for SSI
benefits is based on blindness and whose blindness ends due to medical
recovery while he or she is participating in a program of vocational
rehabilitation services, employment services, or other support services
may be eligible for continued benefits under section 1631(a)(6) of the
Act. We also are reflecting this expanded scope of the statute in new
Sec. 416.1338(e), that we discuss later in this preamble.
Individuals Whose Disability Is Determined To Have Ended as a Result of
an Age-18 Redetermination of SSI Eligibility
We are revising the introductory text of Sec. 416.1338(a) to
indicate that individuals who receive SSI benefits based on disability
and whose disability is determined to have ended under the rules in
Sec. 416.987(b) and (e)(1) in an age-18 redetermination may have their
benefit payments continued under section 1631(a)(6) of the Act if the
individual meets all other requirements for continued benefits.
Students Participating in an Individualized Education Program or
Similar Individualized Program or Plan
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.
We are, therefore, amending our rules to encourage young people
with disabilities to stay in school and complete their educational and
vocational training, and to encourage the families of students with
disabilities to support them in preparing for employment and self-
sufficiency. This 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 the high school graduation rates of
students with disabilities. Specifically, we are providing that, if a
student age 18 through 21 is receiving services under an IEP or similar
individualized program or plan, and if the student's disability ceases
as a result of a continuing disability review or an age-18 disability
redetermination, we will consider that the student's completion of or
continuation in the IEP will increase the likelihood that he or she
will not have to return to the disability or blindness benefit rolls.
[[Page 36498]]
We are providing benefit continuation for students whose disability
is determined to have ended as a result of an age-18 redetermination
and who are receiving services under IEPs in order to encourage young
people with disabilities to stay in school and complete their
educational and vocational training, and to encourage their families to
support them in preparing for employment and self-sufficiency. We are
providing benefit continuation on this basis for students with
disabilities through age 21, since each State can receive a grant of
assistance under IDEA for serving individuals with disabilities through
age 21.
We are revising Sec. 416.1338(a) to indicate that individuals who
receive SSI benefits based on disability and whose disability is
determined to have ended under the rules in Sec. 416.987(b) and (e)(1)
as a result of an age-18 redetermination may have their benefit
payments continued under section 1631(a)(6) of the Act if the
individual meets all other requirements for continued benefits. Young
people whose disability has ended as a result of a redetermination of
their eligibility at age 18 may have no improvement in their medical
condition; they are found not disabled because they do not meet the
initial disability standard that we apply to adult applicants.
Therefore, we are adding rules to provide that we will consider
completion of or continuation by a student age 18 through 21 in such a
program to be analogous to the individualized determination that
completion of or continuation in other approved programs of vocational
rehabilitation services will improve an individual's level of education
or work experience so that he or she would be more likely to be able to
do other work that exists in the national economy, despite a possible
future reduction in his or her residual functional capacity. On this
basis, under the rules we are adding as Sec. Sec. 404.328(b) and
416.1338(e)(2), we will determine that participation in such a program
will increase the likelihood that an individual age 18 through 21 who
is engaged in such a program at the time his or her disability ceases
will not have to return to the disability rolls.
Individuals Participating in the Ticket to Work Program or Another
Program of Vocational Rehabilitation Services, Employment Services, or
Other Support Services Approved by Us
We are revising and updating our regulations regarding the type of
program in that an individual must be participating in order to qualify
for continued benefits. The regulations that we are revising by these
final rules were based on the original provisions of sections 225(b)
and 1631(a)(6) of the Act, and indicated that an individual whose
impairment is no longer disabling may be considered for eligibility for
continued benefits if he or she is participating in a vocational
rehabilitation program provided by a State vocational rehabilitation
agency. The amendments to sections 225(b)(1) and 1631(a)(6)(A) of the
Act, made by OBRA 1990, extended consideration for continued benefits
under sections 225(b) and 1631(a)(6) of the Act to individuals in
approved non-State vocational rehabilitation programs.
We implemented the amendments made by OBRA 1990 by publishing
operating instructions in 1992. These instructions identified an
approved non-State vocational rehabilitation program as any non-State
vocational rehabilitation service provider who meets one of the
following criteria:
Is licensed, certified, accredited, or registered, as
appropriate, to provide vocational rehabilitation services in the State
in which it provides services; or
Is an agency of the Federal government (e.g., the
Department of Veterans Affairs); or
Is a provider approved to provide services under a Social
Security Administration research or demonstration project.
The amendments to sections 225(b)(1) and 1631(a)(6)(A) of the Act,
made by section 101(b) of Public Law 106-170, further expanded the type
of program in which an individual must be participating to qualify for
continued benefits. These sections of the Act now provide that an
individual may be considered for eligibility for continued benefits if
she or he is participating in a program consisting of the Ticket to
Work program or another program of vocational rehabilitation services,
employment services, or other support services approved by the
Commissioner of Social Security.
We are revising Sec. Sec. 404.316(c)(1), 404.337(c)(1),
404.352(d)(1), 404.902(s), 404.1586(g)(1), 404.1596(c)(4), 404.1597(a),
416.1320(d)(1), 416.1331(a) and (b), 416.1338(a), and 416.1402(j) to
take account of the amendments to sections 225(b)(1) and 1631(a)(6)(A)
of the Act. In the revisions to these sections of the regulations, we
are using the term ``an appropriate program of vocational
rehabilitation services, employment services, or other support
services'' to refer to the program in which an individual must be
participating in order to be considered for eligibility for continued
benefits under sections 225(b) and 1631(a)(6) of the Act, as amended.
We are also amending our regulations by adding new Sec. Sec.
404.327(a) and 416.1338(c) to explain the term ``an appropriate program
of vocational rehabilitation services, employment services, or other
support services.'' We explain that an appropriate program of
vocational rehabilitation services, employment services, or other
support services means one of the following:
A program that is carried out under an individual work
plan with an employment network under the Ticket to Work program;
A program that is carried out under an individualized plan
for employment with a State vocational rehabilitation agency operating
under a State plan approved under title I of the Rehabilitation Act of
1973, as amended (29 U.S.C. 720-751);
A program that is carried out under an individualized plan
for employment with an organization administering a Vocational
Rehabilitation Services Project for American Indians with Disabilities
authorized under section 121 of part C of title I of the Rehabilitation
Act of 1973, as amended (29 U.S.C. 741);
A program of vocational rehabilitation services,
employment services, or other support services that is carried out
under a similar, individualized written employment plan with an agency
of the Federal government (e.g., the Department of Veterans Affairs), a
one-stop delivery system or specialized one-stop center described in
section 134(c) of the Workforce Investment Act of 1998 (29 U.S.C.
2864(c)), or another provider of services approved by us;
A program of vocational rehabilitation services,
employment services, or other support services that is carried out
under a similar, individualized written employment plan and provided by
or coordinated by a public, private, or parochial school; or
For a student age 18 through 21, an individualized
education program (IEP) 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 (IDEA), as amended (20 U.S.C. 1400 et seq.).
We also are including an appropriate cross-reference to Sec.
404.327(a) or Sec. 416.1338(c) in the sections of the regulations that
state the basic requirement that the individual must be participating
in an appropriate program.
In the NPRM, we included the provisions relating to a program of
[[Page 36499]]
services from an organization administering a Vocational Rehabilitation
Services Project for American Indians with Disabilities in proposed
Sec. Sec. 404.327(a)(3) and 416.1338(c)(3). In these final rules, we
deleted these proposed sections and incorporated the provisions in
Sec. Sec. 404.327(a)(2) and 416.1338(c)(2). We clarify in these rules
that a program of services from an organization administering such a
project must be carried out under an individualized plan for
employment, which is the same requirement that applies to a program of
services from a State vocational rehabilitation agency. Because of this
change, we renumbered the provisions that were set out in the NPRM as
proposed Sec. Sec. 404.327(a)(4) and (5) and 416.1338(c)(4) and (5).
In the final rules, these provisions are now Sec. Sec. 404.327(a)(3)
and (4) and 416.1338(c)(3) and (4), respectively.
The proposed rules also provided that a program of vocational
rehabilitation services, employment services, or other support services
that is carried out under an individualized written employment plan
similar to an individualized plan for employment would qualify as an
appropriate program, if it is carried out with a provider of services
approved by us. Based on public comments we received on the NPRM, we
are making changes in the provisions in Sec. Sec. 404.327(a)(3) and
416.1338(c)(3) of the final rules. The final rules provide that a
program of such services that is carried out under an individualized
written employment plan similar to an individualized plan for
employment will qualify as an appropriate program if it is carried out
with an agency of the Federal government (e.g., the Department of
Veterans Affairs), a one-stop delivery system or specialized one-stop
center described in section 134(c) of the Workforce Investment Act of
1998 (29 U.S.C. 2864(c)), or another provider of services approved by
us. We also include in Sec. Sec. 404.327(a)(3) and 416.1338(c)(3) of
the final rules examples of service providers that we may approve under
these sections. We explain that providers we may approve include, but
are not limited to--
A public or private organization with expertise in the
delivery or coordination of vocational rehabilitation services,
employment services, or other support services ; or
A public, private or parochial school that provides or
coordinates a program of vocational rehabilitation services, employment
services, or other support services carried out under an individualized
program or plan.
Definition of ``Participating'' in a Program
We are amending our regulations to add new Sec. Sec. 404.327(b)
and 416.1338(d) to explain when an individual will be considered to be
``participating'' in the program. Sections 225(b) and 1631(a)(6) of the
Act and the regulations that we are revising by these final rules did
not define the term ``participating.''
Our operating instructions have used the term ``actively involved''
in a vocational rehabilitation program and have defined active
participation in a State vocational rehabilitation program as placement
in one of four State vocational rehabilitation agency status codes:
vocational rehabilitation plan developed and approved; counseling and
guidance; physical restoration; and training, including vocational and
college training. No other State vocational rehabilitation agency
status codes are considered ``active participation'' for purposes of
continued benefit payments. Other providers of vocational
rehabilitation services, employment services, or other support services
do not use these codes and several State vocational rehabilitation
agencies no longer use them.
Our operating instructions on demonstrating participation in a non-
State vocational rehabilitation program have required that we obtain
information regarding the individual's status, including whether the
individual is actively receiving services such as counseling and
guidance, physical restoration, or academic, business, vocational, or
other training. We have used this information to determine on a case-
by-case basis whether the individual's status in the non-State program
is equivalent to the State vocational rehabilitation status codes used
to determine participation.
In the new Sec. Sec. 404.327(b) and 416.1338(d), we explain the
criteria we will now use to determine whether an individual is
``participating'' in the program for purposes of continued benefit
payments. We explain that if an individual is in an appropriate program
(as described in Sec. Sec. 404.327(a) and 416.1338(c)), we will
consider the individual to be participating in the program if the
individual is taking part in the activities and services outlined in
his or her plan. If the individual is age 18 through 21 and receiving
services under an IEP 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, we will consider the individual to be
participating in the program if he or she is taking part in the
activities and services outlined in the IEP.
In response to public comments, we have provided in Sec. Sec.
404.327(b)(3) and 416.1338(d)(3) that an individual will be considered
to be participating in his or her program during interruptions in his
or her program, provided that such interruptions are temporary. We
explain that, for an interruption to be considered temporary, the
individual must resume taking part in the activities and services
outlined in his or her individual work plan, individualized plan for
employment, similar individualized written employment plan, or
individualized education program, as the case may be, no more than
three months after the month the interruption occurred.
Determining Increased Likelihood of Permanent Removal From the
Disability Benefit Rolls
We are amending our regulations to add new Sec. Sec. 404.328 and
416.1338(e) to explain how we will determine whether an individual's
completion of or continuation in an appropriate program of vocational
rehabilitation services, employment services, or other support services
will increase the likelihood that the individual will not have to
return to the disability benefit rolls. Sections 225(b) and 1631(a)(6)
of the Act provide for continued benefits to persons who are no longer
disabled due to medical recovery and who are participating in an
appropriate program only if we can determine that completion or
continuation of the program ``will increase the likelihood'' that the
individual will remain permanently off the disability benefit rolls. As
the individual is not disabled and, by definition, is able to engage in
substantial gainful activity without the need for the program, there is
already a ``likelihood'' that the individual will stay off the
disability benefit rolls. Benefits may be continued to the individual
only if completion or continuation of the program will ``increase''
this likelihood. For this reason, new Sec. Sec. 404.328 and
416.1338(e) explain that we will determine that the completion of the
program, or its continuation for a specified period of time, will
increase the likelihood that the individual will not have to return to
the disability benefit rolls if we find that the individual's
completion of or continuation in the program will provide the
individual with:
Work experience so that the individual would more likely
be able to do past relevant work despite a possible future reduction in
his or her residual
[[Page 36500]]
functional capacity (i.e., the work must last long enough for the
individual to learn to do it, be substantial gainful activity, and have
physical and mental requirements that the individual could meet even if
his or her residual functional capacity were significantly reduced); or
An improvement in any of the vocational factors of
education or skilled or semi-skilled work experience so that he or she
would more likely be able to adjust to other work that exists in the
national economy, despite a possible future reduction in his or her
residual functional capacity.
We are also providing a rule in Sec. Sec. 404.328 and 416.1338(e)
for students age 18 through 21 who are participating in an IEP
developed under policies and procedures approved by the Secretary of
Education for assistance to States for the education of individuals
with disabilities under the IDEA, as amended (20 U.S.C. 1400 et seq.).
Under the final rules, we will find that these students' completion of
or continuation in the program will increase the likelihood that they
will not have to return to the disability or blindness benefit rolls.
Additionally, we are providing a rule in Sec. Sec. 404.328 and
416.1338(e) to address that if an individual is receiving post IEP
transition services, we will determine that the transition services
will increase the likelihood that he or she will not have to return to
the disability or blindness rolls if those services meet the
requirements in Sec. Sec. 404.328(a) and 416.1338(e)(1).
As a result of our revisions regarding how we will make a
likelihood determination, we have eliminated the examples previously
provided in Sec. Sec. 404.316(c)(1)(iv) and 416.1338(a)(4) regarding
making a ``likelihood'' decision because these examples do not directly
illustrate the revised rules. Additionally, in our revisions to
Sec. Sec. 404.316(c), 404.337(c), 404.352(d), 404.902(s), 404.1586(g),
404.1596(c), 404.1597(a), 416.1320(d), 416.1331(b), 416.1338(a), and
416.1402(j), we have removed the modifier ``significantly'' from the
phrase ``significantly increase the likelihood'' in these provisions to
make the regulations conform more closely to the language of sections
225(b)(2) and 1631(a)(6)(B) of the Act.
Summary of Revisions to the Regulations on Continuation of Social
Security Disability and SSI Disability or Blindness Benefits
We are revising Sec. Sec. 404.316(c)(1), 404.337(c)(1),
404.352(d)(1), 404.1586(g)(1), 404.1596(c)(4), 416.1320(d) and
416.1338(a) to indicate that an individual's benefits may be continued
after his or her impairment is no longer disabling (or, for SSI
blindness benefits, after his or her blindness ends due to medical
recovery) if:
The individual is participating in an appropriate program
of vocational rehabilitation services, employment services, or other
support services, as described in new Sec. 404.327(a) and (b) or in
new Sec. 416.1338(c) and (d);
The individual began participating in the program before
the date his or her disability or blindness ended; and
We have determined under new Sec. 404.328 or new Sec.
416.1338(e) that the individual's completion of the program, or
continuation in the program for a specified period of time, will
increase the likelihood that the individual will not have to return to
the disability or blindness benefit rolls.
In the revision of Sec. 416.1338(a), we also explain that an
individual whose disability is determined to have ended as a result of
an age-18 redetermination may continue to receive SSI benefits if the
requirements described above are met.
We are revising Sec. Sec. 404.316(c)(2), 404.337(c)(2),
404.352(d)(2), 404.1586(g)(2) and 416.1338(b) to indicate that we will
stop an individual's benefits with the earliest of these months:
The month in which the individual completes the program;
The month in which the individual stops participating in
the program for any reason; or
The month in which we determine under Sec. 404.328 or
Sec. 416.1338(e) that continued participation will no longer increase
the likelihood that the individual will not have to return to the
disability or blindness benefit rolls.
We are revising the Exception in Sec. Sec. 404.316(c)(2),
404.337(c)(2), 404.352(d)(2), and 404.1586(g)(2) by inserting the
phrase ``provided that you meet all other requirements for entitlement
to and payment of benefits through such month'' following the word
``ends.''
We are adding new Sec. Sec. 404.327, 404.328 and 416.1338(c), (d)
and (e) to our regulations. In the new Sec. Sec. 404.327(a) and
416.1338(c), we explain what we mean by ``an appropriate program of
vocational rehabilitation services, employment services, or other
support services.'' In new Sec. Sec. 404.327(b) and 416.1338(d), we
explain when we will consider an individual to be ``participating'' in
the program.
We are adding new Sec. Sec. 404.328 and 416.1338(e) to explain
when we will find that an individual's completion of or continuation in
an appropriate program of vocational rehabilitation services,
employment services, or other support services will increase the
likelihood that the individual will not have to return to the
disability or blindness benefit rolls.
We are revising Sec. 404.902(s) by removing reference to ``an
appropriate vocational rehabilitation program'' and inserting in its
place ``an appropriate program of vocational rehabilitation services,
employment services, or other support services.'' We are making this
same change in the heading of Sec. 404.1586(g).
We are revising Sec. 404.1597(a) to eliminate the references to
November 1980 and December 1980; to remove reference to ``an
appropriate vocational rehabilitation program'' and insert in its place
``an appropriate program of vocational rehabilitation services,
employment services, or other support services'; and to indicate that
the individual must have started participating in the program before
the date his or her disability ended.
We are revising Sec. 416.1331(a) and (b). We are combining the
discussion of the rules in the first and third sentences of the
previous Sec. 416.1331(a) into a single sentence to indicate that the
last month for which we can pay SSI benefits based on disability or
blindness is the second month after the month in which the individual's
disability or blindness ends. We explain that Sec. 416.1338 provides
an exception to this rule for certain individuals who are participating
in an appropriate program of vocational rehabilitation services,
employment services, or other support services. We also are adding to
Sec. 416.1331(a) appropriate cross-references to the sections of the
SSI regulations that explain when disability or blindness ends. In
addition, we are removing from Sec. 416.1331(a) the cross-reference to
Sec. 416.261 that discusses special SSI benefits for working
individuals who have a disabling impairment or impairments. We consider
inclusion of this cross-reference in Sec. 416.1331 to be inappropriate
since Sec. 416.1331 is concerned with the termination of SSI benefits
in cases in which an individual's disability or blindness has ended.
We are revising Sec. 416.1331(b) by removing reference to ``an
appropriate vocational rehabilitation program'' and inserting in its
place ``an appropriate program of vocational rehabilitation services,
employment services, or other support services.'' In addition, we are
revising Sec. 416.1331(b) by inserting the term ``or blind'' following
the term
[[Page 36501]]
``disabled'' and inserting the term ``or blindness'' following the term
``disability.''
In addition to the other revisions to Sec. 416.1338, previously
discussed, we are revising the section heading to read: ``If you are
participating in an appropriate program of vocational rehabilitation
services, employment services, or other support services.''
We are revising Sec. 416.1402(j) by removing ``an appropriate
vocational rehabilitation program'' and inserting in its place ``an
appropriate program of vocational rehabilitation services, employment
services, or other support services,'' and by adding references to
``blindness'' and ``blind.''
Other Changes
We are also making technical changes to cross-references in Sec.
416.987(b) to reflect our current rules. The first and third sentences
of Sec. 416.987(b) refer to specific paragraphs in Sec. 416.920, the
regulation that provides our rules for the sequential evaluation
process we use for making initial determinations in adult claims. In
2003, we added a new paragraph (d) to Sec. 416.920 and redesignated
the remaining paragraphs of the section. Therefore, we must change our
references in Sec. 416.987(b) from Sec. 416.920(f) to Sec.
416.920(g).
Public Comments on the Notice of Proposed Rulemaking
When we published the NPRM in the Federal Register on August 1,
2003 (68 FR 45180), we provided interested parties 60 days to submit
comments. We received comments from 201 commenters, including national,
State and community-based agencies and private organizations serving
people with disabilities, parents of beneficiaries, and other
individuals. We carefully considered the comments we received on the
proposed rules in publishing these final regulations. The comments we
received and our responses to the comments are set forth below.
Although we condensed, summarized, or paraphrased the comments, we
believe that we have expressed the views accurately and have responded
to all of the significant issues raised.
In addition, several of the comments were about subjects that were
outside the scope of this rulemaking. Except as noted, we have not
summarized and responded to these comments below.
Comments and Responses
In general, most of the commenters supported our proposal to amend
the rules to extend benefits to young people age 18 through 21 with
disabilities who are participating in IEPs when their disabilities
medically improve, or when they are determined not to meet the
requirements for disability as adults, noting that society would profit
from this investment in young people. Many commenters also supported
our proposal to extend eligibility for continuation of disability
benefits to individuals participating in other programs of vocational
rehabilitation services, employment services, or other support
services. Additionally, many commenters supported our proposal to
remove the modifier ``significantly'' from the phrase ``significantly
increase the likelihood'' to make the regulations conform more closely
to the language in the Act.
Comment: Most of the commenters supported our proposal to amend the
rules to extend benefits to young people age 18 through 21 with
disabilities who are receiving services under an IEP developed under
the IDEA. However, many of the commenters recommended extending this
rule to all young people age 18 through 21 with disabilities who are
attending public, private, or parochial schools who may not be
receiving services under IDEA, noting that the new regulation should
protect any young person who is losing his or her SSI disability
benefit at age 18 and is enrolled in a school or an appropriate
employment or vocational program.
Response: While many young people with disabilities are placed in
private schools by public agencies and may be receiving services under
an IEP under IDEA when their disability ends as a result of a
continuing disability review or an age-18 redetermination, other young
people with disabilities attending public, private or parochial schools
may not be participating in an IEP when their disability ends. Our
proposed rules and these final rules do not preclude these individuals
from being eligible under the general rules for continuation of
disability benefits to individuals participating in other programs that
qualify as an appropriate program of vocational rehabilitation
services, employment services, or other support services and that we
determine will increase the likelihood that the individual will not
have to return to the disability benefit rolls. The final rules in
Sec. Sec. 404.327(a)(3) and 416.1338(c)(3) define an appropriate
program to include, among others, a program of vocational
rehabilitation services, employment services, or other support services
that is carried out under an individualized written employment plan
similar to an individualized plan for employment--which is the plan
used by State vocational rehabilitation agencies--with a provider of
services approved by us. Under these rules, we may approve as a
provider of services a public, private or parochial school having such
a program. To make this clear, we are including provisions in final
Sec. Sec. 404.327(a)(3) and 416.1338(c)(3) to explain that a provider
of services that we may approve under these sections may include, among
others, a public, private or parochial school that provides or
coordinates vocational rehabilitation services, employment services, or
other support services.
Comment: Many commenters recommended applying the new regulations
retroactively to young adults who have already lost their SSI and
Medicaid benefits as a result of age-18 redeterminations, and who have
been participating in vocational rehabilitation programs. They noted
that SSA has been legally obligated to apply the provision for
continuation of benefit payments in these cases since 1996, when
Congress amended the law to require age-18 redeterminations.
Many commenters also recommended that we apply the new rules for
persons in an IEP retroactively to young adults who have already lost
their SSI and Medicaid benefits, have an IEP, and are not yet 22 years
old.
Response: We have been applying the benefit continuation provision
to recipients of SSI benefits whose disability was determined to have
ended in an age-18 redetermination, but who were participating in a
vocational rehabilitation program, under our operating guides since
1997, shortly after the enactment of the Personal Responsibility and
Work Opportunity Reconciliation Act of 1996 (Public Law 104-193)
required these redeterminations. From that time, we have had operating
instructions in place that have interpreted section 1631(a)(6) of the
Act to apply to SSI recipients participating in appropriate vocational
rehabilitation programs whose disability ends as a result of an age-18
redetermination. These final rules incorporate into our regulations
this interpretation of the Act. The final rules do not represent a
change from this interpretation of the Act.
We are not adopting the commenters' second recommendation. 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,
[[Page 36502]]
including cases that are on remand from a Federal court. We do not
reopen previous determinations or decisions that have become final, and
that were correct under the policy then in use, to apply a new policy
retroactively. Consistent with our usual practice when we amend our
regulations, we will apply the new rules in determinations or decisions
about continuation of benefit payments that we make on or after the
effective date of these final regulations.
Comment: Many commenters recommended revising our proposed rules to
extend benefits to individuals who complete an IEP but then continue on
to another type of program of vocational rehabilitation services,
employment services, or other support services. They indicated that in
some instances such individuals are eligible for services under an IEP
and subsequently under a vocational rehabilitation plan. They stated
that there is no neat line that can be drawn between participating in a
transitional program under an IEP and a continuation of that program
under the auspices of the State vocational rehabilitation program. They
also noted that the State VR agency is often required to coordinate
with officials responsible for the public education of students with
disabilities in order ``to facilitate the transition of students with
disabilities from the receipt of educational services in school to the
receipt of vocational rehabilitation services under the responsibility
of the State vocational rehabilitation agency.'' They suggested that
the rule should encourage transition from special education to State
vocational rehabilitation programs when that transition is
appropriate--particularly for those cases where the special education
student is also a client of the State vocational rehabilitation agency
prior to exiting special education. The commenters recommended that we
consider school and vocational rehabilitation as part of a larger whole
and that benefits should be continued under this rule for special
education students who transition from their high school special
education program into a rehabilitation program under the auspices of
the State vocational rehabilitation agency.
Response: We did not adopt this recommendation. Our rules do not
exclude a post-IEP transition plan from qualifying as an appropriate
program of vocational rehabilitation service, employment services, or
other support services. However, an IEP by itself comprises a unique
and comprehensive plan of both education and employment services
designed to provide the individual with the skills and training likely
to keep him or her off the benefit rolls. Therefore, we have added
language that completion or continuation in an IEP will increase the
likelihood that you will not have to return to the disability or
blindness benefit rolls. If an individual is receiving post IEP
transition services, we will determine that the transition services
will increase the likelihood that he or she will not have to return to
the disability or blindness rolls if those services meet the
requirements in Sec. Sec. 404.328(a) and 416.1338(e)(1).
Comment: One commenter recommended that we redefine what would be
considered ``youth,'' for example to age 25, provided that the
individual was involved in either a vocational rehabilitation program
or school (including post-secondary education). The commenter noted
that this would allow for young people to have the supports they need
to get a good start on having a career, making them less likely to be
dependent on disability benefits for the majority of their adulthoods.
He noted that very few people before the age of 25 have a firm grasp on
careers and people with significant disabilities are often behind
because of the barriers they face. For example, people with significant
disabilities who are going to college may need to spend an extra year
at school if they can't handle as many courses per semester.
Response: We did not use the term ``youth'' in our proposed rules,
and we are not using the term in these final rules. The final rules
provide for the continuation of benefit payments to students who are
participating in an IEP when their disability ends and who are age 18
through age 21. We are providing benefit continuation for those
students participating in an IEP through age 21, since each State can
receive a grant of assistance from the Department of Education under
IDEA to serve students with disabilities under IEP's through age 21.
The rules for continuation of benefits to individuals participating
in an appropriate program of vocational rehabilitation services,
employment services, or other support services are not limited to
individuals in a particular age group, other than the rules for
individuals participating in an IEP.
Comment: One commenter recommended suspending continuing disability
reviews while an individual is participating in an approved and
appropriate program of schooling or employment preparation, to bring
these rules for continued benefit payments for individuals who are
participating in such a program into full alignment with the provision
for suspending medical reviews for beneficiaries who are using a ticket
under the Ticket to Work program.
Response: This recommendation is outside the scope of these rules
and would require a statutory change. Section 221(i) of the Act
requires that we conduct continuing disability reviews if a person has
been determined to be under a disability. Section 1148(i) of the Act
provides an exception to this requirement. That section specifically
provides that ``During any period for which an individual is using, as
defined by the Commissioner, a ticket to work and self-sufficiency
issued under this section, the Commissioner (and any applicable State
agency) may not initiate a continuing disability review or other review
under section 221 of whether the individual is or is not under a
disability or a review under title XVI similar to any such review under
section 221.'' The Act does not similarly provide for suspending
continuing disability reviews for a beneficiary participating in any
other approved and appropriate program of schooling or employment
preparation.
Comment: A number of commenters noted that our current operating
instructions provide that ``once the VR program participation stops for
more than 30 days, benefits will be ceased and cannot be resumed.''
They note further that this procedure will not adequately address the
reality of programs designed for children and young adults with
disabilities, because ``the nature of many impairments may result in
times when it is not possible for the young adult to participate in the
IEP for a temporary period. There also may be gaps in activity
available under the IEP or a similar plan, for example, if a program is
not in session during the summer months, but will resume again in the
fall, or if there is a modest gap in time between one program and the
next program that the person is scheduled to participate in under an
IEP.''
Response: We agree with the commenters that our rules should
account for short interruptions in an individual's participation. We
have modified our definition of ``participating'' in the final rules.
We have added Sec. Sec. 404.327(b)(3) and 416.1338(d)(3) to indicate
that an individual will be considered to be participating in his or her
program under Sec. 404.327(b)(1) or (2) or Sec. 416.1338(d)(1) or (2)
during interruptions in the program, provided that such interruptions
are temporary.
[[Page 36503]]
We explain that for an interruption to be considered temporary, the
individual must resume taking part in the activities and services
outlined in his or her individual work plan, individualized plan for
employment, similar individualized written employment plan, or
individualized education program, as the case may be, no more than
three months after the month the interruption occurred.
Comment: One commenter requested that we describe good cause
criteria for a break in participation in education or appropriate
programs of vocational rehabilitation. The commenter noted that the
proposed rules stated that we will stop benefits with the month the
individual stops participating in the program for any reason and
indicated that this could cause individuals to lose benefit
continuation protection because of temporary exacerbations in their
medical condition, personal emergencies, etc.
Response: As we explain in our previous response to comments
regarding interruptions in participation, we have modified our
definition of ``participating'' to account for temporary interruptions
in a person's program, provided that the individual resumes taking part
in the activities and services outlined in his or her plan or program,
as appropriate, no more than three months after the month the
interruption occurred.
Comment: A number of commenters stated that our current operating
procedures provide that, for cases involving potential eligibility for
benefits under section 225(b) or 1631(a)(6) of the Act, the State
disability determination services (DDS) will send the case folder to
SSA's Office of Disability Operations (ODO) to determine the issue of
benefit continuation after releasing the notice of benefit termination
to the claimant, and that ODO makes the determination before returning
the case folder to the Social Security office for any necessary action
to continue benefits. They express their concern that this means that
there will generally be a gap in SSI benefits (and Medicaid) for people
who could benefit from these rules, since the State DDS initiates the
termination notice before we determine whether benefit continuation
will apply. The commenters noted that unless this timing is changed for
the young adult cases, it will defeat the purpose of sections 225(b)
and 1631(a)(6) of the Act and undermine the effort to better coordinate
the SSI, Medicaid, and educational systems.
Another commenter recommended that we determine continuing
eligibility under this provision before we notify an individual of his
or her benefit termination as a result of an age-18 redetermination.
The commenter suggested that this would ensure continuity of benefits
and program participation for these young people by ensuring that a
determination of their continued eligibility for SSI benefits will be
made before notifying them of a termination of their benefits as a
result of an age-18 redetermination.
Response: If we have information indicating an individual's
potential eligibility for continued benefit payments, our operating
procedures will not result in a gap in the payment of Social Security
or SSI benefits to an individual eligible for continued benefit
payments. Benefits are not terminated until after we have determined
that an individual is not entitled to continued benefit payments
because he or she is not participating in an appropriate program of
vocational rehabilitation services, employment services or other
support services, or because completion or continuation of this program
will not increase the likelihood that the individual may be permanently
removed from the disability rolls. If we find that the beneficiary is
entitled to continued benefit payments and all other eligibility
requirements are met, benefit payments will continue without a gap.
Comment: One commenter recommended that we defer making a
continuing disability determination for an individual who is
participating in a program through an employment network under the
Ticket to Work program or through a State vocational rehabilitation
agency until after we make a determination regarding continuing benefit
payments because of such participation.
Response: We did not adopt this recommendation. Individuals are
eligible for continued benefit payments under section 225(b) and/or
section 1631(a)(6) of the Act only if we have determined that they are
no longer medically disabled. It would impose an unnecessary
administrative burden on us to make a determination on the continuation
of benefits before we determine whether the individual is still
medically under a disability.
Comment: Several commenters urged us to suspend age-18
redeterminations for SSI recipients who are participating in a special
education program until these final regulations are published. They
also recommended that we apply this new policy to all cases that are in
the adjudicative ``pipeline.'' These commenters indicated that halting
terminations and applying the new policy to pending cases will benefit
individuals turning 18 who, under the previous rules, might be unable
to qualify for continued benefit payments since they are often still in
school and do not have a vocational rehabilitation plan.
One commenter stated that in furtherance of the rehabilitation
goals evidenced by the proposed regulations and the Ticket to Work and
Work Incentives Improvement Act of 1999, we should apply the new rules
on the continuation of benefit payment to all termination cases that
are in the adjudicative process.
Response: The Act requires us to perform a disability
redetermination for every individual who is eligible for SSI for the
month before the month in which he or she attains age 18. We have no
authority to change this requirement through our regulations.
We will apply these new rules to all continuing disability review
and age-18 redetermination cases that are pending in our administrative
review process as of the effective date of these final rules for any
individuals who meet the eligibility requirements under these final
rules.
Comment: Other commenters noted their understanding that persons
receiving services from a variety of State and Federal agencies might
qualify under Sec. 404.327, including but not limited to, a person
with a Plan to Achieve Self-Support (PASS), a person receiving services
from the Department of Veterans Affairs, a person receiving services
from a One Stop funded through the Department of Labor, or a person
receiving services to achieve employment from a State developmental
disabilities or mental health agency. They recommended that we clarify
Sec. 404.327(a) to state that these services are appropriate programs
of vocational rehabilitation services, employment services, or other
support services that are carried out under a similar individualized,
written employment plan with another provider of services approved by
us.
Response: We have adopted this recommendation in part. The PASS
provision is an employment support that allows an SSI recipient who is
disabled or blind to set aside income or resources, or both, for a
specified time for use in achieving a work goal (see Sec. Sec.
416.1180 to 416.1182 and Sec. Sec. 416.1225 to 416.1227 of our
existing regulations), so that we do not count them as income and
resources for SSI purposes. Under the PASS provision, we do not count a
disabled or blind recipient's income that he or she uses or sets aside
to use to fulfill a PASS, or
[[Page 36504]]
resources identified as necessary to fulfill a PASS, in determining the
recipient's continuing eligibility for or amount of SSI benefits. The
PASS provision is available for an SSI recipient who is currently
disabled or blind, while the provision for continued benefits under
section 1631(a)(6) of the Act applies to a person who is no longer
disabled or blind. For this reason, a PASS will not qualify as an
appropriate program of vocational rehabilitation services, employment
services, or other support services for the purpose of the benefit
continuation provision.
We are modifying the provisions in the final rules to indicate that
agencies of the Federal government and one-stop delivery systems or
specialized one-stop centers under the Workforce Investment Act of 1998
are approved providers of services. In Sec. Sec. 404.327(a)(3) and
416.1338(c)(3) of the final rules, we provide that a program of
vocational rehabilitation services, employment services, or other
support services that is carried out under an individualized written
employment plan similar to an individualized plan for employment will
qualify as an appropriate program if it is carried out with an agency
of the Federal government (e.g., the Department of Veterans Affairs), a
one-stop delivery system or specialized one-stop center described in
section 134(c) of the Workforce Investment Act of 1998 (29 U.S.C.
2864(c)), or another provider of services approved by us. We also
include in Sec. Sec. 404.327(a)(3) and 416.1338(c)(3) of the final
rules examples of service providers that we may approve under these
sections. We explain that providers we may approve include, but are not
limited to--
A public or private organization with expertise in the
delivery or coordination of vocational rehabilitation services,
employment services, or other support services; or
A public, private or parochial school that provides or
coordinates a program of vocational rehabilitation services, employment
services, or other support services carried out under an individualized
program or plan.
Comment: One commenter noted that he was opposed to extending these
benefit continuation rules to include individuals who are still in
school with an IEP if they are not actively enrolled in a VR plan or
the Ticket to Work program. He observed that the Social Security Act,
by continuing benefits to certain individuals who recover medically
while participating in a VR program, provides an incentive for
individuals to enroll in a program of VR services prior to age 18.
Under this incentive, the individual may continue to receive benefit
payments even if the individual's disability is determined to have
ended as the result of a continuing disability review or an age-18
redetermination. The commenter states that this incentive would be
removed if the regulations are changed to include individuals under an
IEP, because not all IEPs include a feasible vocational goal that will
lead to employment as defined in the Rehabilitation Act. He noted that
individuals have the opportunity to enroll in a VR plan at age 16, or
earlier, providing students with the ability to build a transition with
a VR service provider, to access vocational evaluation or a situational
assessment in time to receive recommendations to pursue high school
courses required for vocational training or higher education.
Response: We do not agree that extending continued benefit payment
protection to individuals enrolled in an IEP will remove an incentive
for individuals to enroll in a program of VR services, employment
services, or other support services directed toward an employment goal
prior to age 18 or will prevent such individuals from receiving
necessary services to obtain the skills and education to achieve an
employment goal. Rather, extending the continued benefit payment
protection to individuals age 18 to 21 enrolled in an IEP, will provide
such individuals with additional choices in selecting a provider of
services, and will encourage students participating in an IEP to
continue or complete the program, thus assisting them in efforts to
obtain the necessary skills and education needed for employment and
self-sufficiency. Our rules do not exclude services received through a
subsequent post-IEP transition plan from qualifying as an appropriate
program of vocational rehabilitation service, employment services, or
other support services.
Comment: One commenter stated that the proposed changes in the SSA
regulations that affect a VR consumer's receipt of benefits are too
stringent, leave too much room for error, and could lead to
discretionary purging of consumers from the benefit rolls. The
commenter cited our existing operating instructions and stated that we
have a narrow definition of a consumer's active participation and
successful completion of a VR program. The commenter noted that our
operating instructions use the term ``actively involved'' in a
vocational rehabilitation program and define active participation in a
State vocational rehabilitation program as placement in one of four
State vocational rehabilitation status codes.
Response: We disagree with the commenter. We added new Sec. Sec.
404.327(b) and 416.1338(d) to explain how we will determine when an
individual is considered to be participating in the program. As the
commenter noted, our operating instructions have relied on the use of
State agency codes to determine ``active'' participation. However,
under these final rules, we will consider the individual to be
participating in the program if the individual is taking part in the
activities and services outlined in his or her individual work plan,
individualized plan for employment, similar individualized written
employment plan, or individualized education program regardless of the
individual's status or stage in the program. These final rules will be
reflected in revised operating instructions.
Comment: Several commenters recommended that we consider a variety
of ways and actions to publicize the new rules regarding benefit
continuation to ensure that the public, field offices, disability
examiners, adjudicators, and other interested and concerned parties are
aware of the new rules, especially as the rules apply to age-18
redeterminations and special issues for that age group. Commenters
suggested that we should aggressively publicize and promote the benefit
continuation rules through instructional materials such as
administrative messages, operating procedures and other instructional
material to assure that beneficiaries subject to age-18
redeterminations and continuing disability reviews are aware of the
continued benefit protection provisions because of participation in an
appropriate program of vocational rehabilitation services, employment
services or other support services.
Response: These recommendations concern our administrative actions
rather than regulatory action, and are therefore outside the scope of
the rules. However, we will undertake a variety of steps to ensure
effective implementation of these final rules, including some of the
actions and procedures suggested by the commenters to publicize these
rules.
Comment: A number of commenters noted that, to maximize the benefit
of this benefit continuation provision in improving the long-term
outcomes for young people with disabilities, it is essential that the
families of these individuals and the individuals themselves receive
notice of these protections not only at the time of a redetermination
at age 18, but much earlier. They note that, if we were to provide this
information to the family at
[[Page 36505]]
regular intervals--such as annually, beginning on the child's 14th
birthday--this information could help families better understand how
the SSI, Medicaid, and educational systems can be coordinated to assist
their child, even if the child might otherwise lose SSI at age 18. This
could help to underscore the importance of developing realistic but
ambitious IEPs and would be consistent with the transition start-up age
in IDEA. They recommend that the final regulation be modified to
provide that we will provide regular and periodic notice of these
protections to parents of children receiving SSI and to the children
themselves on an annual basis beginning at age 14 (or later if the
child first becomes eligible for SSI after that date).
Response: We did not adopt this recommendation. It would not be
feasible for us to send out individual notices to all beneficiaries on
the disability benefit rolls to advise of the possibility of benefit
continuation following a possible future determination of medical
improvement or a determination that they do not meet the adult
definition of disability at age 18. However, as we note in our response
to the previous comment, we will undertake a number of actions to
publicize these rules.
Regulatory Procedures
Executive Order 12866
We have consulted with the Office of Management and Budget (OMB)
and determined that these final rules meet the criteria for a
significant regulatory action under Executive Order 12866, as amended
by Executive Order 13258. Thus, they were subject to OMB review.
Regulatory Flexibility Act
We certify that these final rules will not have a significant
economic impact on a substantial number of small entities because they
would primarily affect only individuals. Therefore, a regulatory
flexibility analysis as provided in the Regulatory Flexibility Act, as
amended, is not required.
Federalism
We have reviewed these final rules under the threshold criteria of
Executive Order 13132, ``Federalism,'' and determined that they will
not have substantial direct effects on the States, on the relationship
between the national government and the States, or the distribution of
power and responsibilities among the various levels of government.
Paperwork Reduction Act
The Paperwork Reduction Act (PRA) of 1995 says that no persons are
required to respond to a collection of information unless it displays a
valid OMB control number. In accordance with the PRA, SSA is providing
notice that OMB has approved the information collection requirements
contained in Sec. Sec. 404.316(c), 404.327, 404.328, 404.337(c),
404.352(d), 404.1586(g), 404.1596, 404.1597(a), 416.1320(d),
416.1331(a) and (b), and 416.1338 of these final rules. The OMB Control
Number for this collection is 0960-0282, expiring March 31, 2006.
(Catalog of Federal Domestic Assistance Program Nos. 96.001, Social
Security-Disability Insurance; 96.002, Social Security-Retirement
Insurance; 96.004, Social Security-Survivors Insurance; 96.006,
Supplemental Security Income)
List of Subjects
20 CFR Part 404
Administrative practice and procedure, Blind, Disability benefits,
Old-age, Survivors and Disability Insurance, Reporting and
recordkeeping requirements, Social Security, Vocational rehabilitation.
20 CFR Part 416
Administrative practice and procedure, Aged, Blind, Disability
benefits, Public assistance programs, Reporting and recordkeeping
requirements, Supplemental Security Income (SSI), Vocational
rehabilitation.
Jo Anne B. Barnhart,
Commissioner of Social Security.
0
For the reasons set out in the preamble, we are amending parts 404 and
416 of chapter III of title 20 of the Code of Federal Regulations as
set forth below:
PART 404--FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE
(1950- )
Subpart D--[Amended]
0
1. The authority citation for subpart D of part 404 continues to read
as follows:
Authority: Secs. 202, 203(a) and (b), 205(a), 216, 223, 225,
228(a)-(e), and 702(a)(5) of the Social Security Act (42 U.S.C. 402,
403(a) and (b), 405(a), 416, 423, 425, 428(a)-(e), and 902(a)(5)).
0
2. Section 404.316 is amended by revising paragraph (c) to read as
follows:
Sec. 404.316 When entitlement to disability benefits begins and ends.
* * * * *
(c)(1) Your benefits, and those of your dependents, may be
continued after your impairment is no longer disabling if--
(i) You are participating in an appropriate program of vocational
rehabilitation services, employment services, or other support
services, as described in Sec. 404.327(a) and (b);
(ii) You began participating in the program before the date your
disability ended; and
(iii) We have determined under Sec. 404.328 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.
(2) We generally will stop your benefits with the earliest of these
months--
(i) The month in which you complete the program; or
(ii) The month in which you stop participating in the program for
any reason (see Sec. 404.327(b) for what we mean by ``participating''
in the program); or
(iii) The month in which we determine under Sec. 404.328 that your
continuing participation in the program will no longer increase the
likelihood that you will not have to return to the disability benefit
rolls.
Exception to paragraph (c): In no case will we stop your benefits
with a month earlier than the second month after the month your
disability ends, provided that you meet all other requirements for
entitlement to and payment of benefits through such month.
* * * * *
0
3. A new undesignated centered heading and new Sec. Sec. 404.327 and
404.328 are added following Sec. 404.325 to read as follows:
Rules Relating to Continuation of Benefits After Your Impairment Is No
Longer Disabling
Sec. 404.327 When you are participating in an appropriate program of
vocational rehabilitation services, employment services, or other
support services.
(a) What is an appropriate program of vocational rehabilitation
services, employment services, or other support services? An
appropriate program of vocational rehabilitation services, employment
services, or other support services means--
(1) A program that is carried out under an individual work plan
with an employment network under the Ticket to Work and Self-
Sufficiency Program under part 411 of this chapter;
(2) A program that is carried out under an individualized plan for
employment with--
[[Page 36506]]
(i) A State vocational rehabilitation agency (i.e., a State agency
administering or supervising the administration of a State plan
approved under title I of the Rehabilitation Act of 1973, as amended
(29 U.S.C. 720-751) under 34 CFR part 361; or
(ii) An organization administering a Vocational Rehabilitation
Services Project for American Indians with Disabilities authorized
under section 121 of part C of title I of the Rehabilitation Act of
1973, as amended (29 U.S.C. 741);
(3) A program of vocational rehabilitation services, employment
services, or other support services that is carried out under a
similar, individualized written employment plan with--
(i) An agency of the Federal Government (for example, the
Department of Veterans Affairs);
(ii) A one-stop delivery system or specialized one-stop center
described in section 134(c) of the Workforce Investment Act of 1998 (29
U.S.C. 2864(c)); or
(iii) Another provider of services approved by us; providers we may
approve include, but are not limited to--
(A) A public or private organization with expertise in the delivery
or coordination of vocational rehabilitation services, employment
services, or other support services; or
(B) A public, private or parochial school that provides or
coordinates a program of vocational rehabilitation services, employment
services, or other support services carried out under an individualized
program or plan;
(4) An individualized education 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, as amended (20 U.S.C. 1400
et seq.); you must be age 18 through age 21 for this provision to
apply.
(b) When are you participating in the program? (1) You are
participating in a program described in paragraph (a)(1), (a)(2), or
(a)(3) of this section when you are 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.
(2) If you are a student age 18 through 21 receiving services under
an individualized education program described in paragraph (a)(4) of
this section, you are participating in your program when you are taking
part in the activities and services outlined in your program or plan.
(3) You are participating in your program under paragraph (b)(1) or
(2) of this section during temporary interruptions in your program. For
an interruption to be considered temporary, you 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.
Sec. 404.328 When 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.
(a) We will 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 if your completion of or your continuation in
the program will provide you with--
(1) Work experience (see Sec. 404.1565) so that you would more
likely be able to do past relevant work (see Sec. 404.1560(b)),
despite a possible future reduction in your residual functional
capacity (see Sec. 404.1545); or
(2) Education (see Sec. 404.1564) and/or skilled or semi-skilled
work experience (see Sec. 404.1568) so that you would more likely be
able to adjust to other work that exists in the national economy (see
Sec. 404.1560(c)), despite a possible future reduction in your
residual functional capacity (see Sec. 404.1545).
(b) If you are a student age 18 through age 21 participating in an
individualized education program described in Sec. 404.327(a)(4), we
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.
(c) If you are receiving transition services after having completed
an individualized education program as described in paragraph (b) of
this section, we will determine that the transition services will
increase the likelihood that you will not have to return to the
disability benefit rolls if they meet the requirements in Sec.
404.328(a).
0
4. Section 404.337 is amended by revising paragraph (c) to read as
follows:
Sec. 404.337 When does my entitlement to widow's and widower's
benefits start and end?
* * * * *
(c)(1) Your benefits may be continued after your impairment is no
longer disabling if--
(i) You are participating in an appropriate program of vocational
rehabilitation services, employment services, or other support
services, as described in Sec. 404.327(a) and (b);
(ii) You began participating in the program before the date your
disability ended; and
(iii) We have determined under Sec. 404.328 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.
(2) We generally will stop your benefits with the earliest of these
months--
(i) The month in which you complete the program; or
(ii) The month in which you stop participating in the program for
any reason (see Sec. 404.327(b) for what we mean by ``participating''
in the program); or
(iii) The month in which we determine under Sec. 404.328 that your
continuing participation in the program will no longer increase the
likelihood that you will not have to return to the disability benefit
rolls.
Exception to paragraph (c): In no case will we stop your benefits
with a month earlier than the second month after the month your
disability ends, provided that you meet all other requirements for
entitlement to and payment of benefits through such month.
* * * * *
0
5. Section 404.352 is amended by revising paragraph (d) to read as
follows:
Sec. 404.352 When does my entitlement to child's benefits begin and
end?
* * * * *
(d)(1) Your benefits may be continued after your impairment is no
longer disabling if--
(i) You are participating in an appropriate program of vocational
rehabilitation services, employment services, or other support
services, as described in Sec. 404.327(a) and (b);
(ii) You began participating in the program before the date your
disability ended; and
(iii) We have determined under Sec. 404.328 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.
(2) We generally will stop your benefits with the earliest of these
months--
(i) The month in which you complete the program; or
[[Page 36507]]
(ii) The month in which you stop participating in the program for
any reason (see Sec. 404.327(b) for what we mean by ``participating''
in the program); or
(iii) The month in which we determine under Sec. 404.328 that your
continuing participation in the program will no longer increase the
likelihood that you will not have to return to the disability benefit
rolls.
Exception to paragraph (d): In no case will we stop your benefits
with a month earlier than the second month after the month your
disability ends, provided that you meet all other requirements for
entitlement to and payment of benefits through such month.
* * * * *
Subpart J--[Amended]
0
6. The authority citation for subpart J of part 404 continues to read
as follows:
Authority: Secs. 201(j), 204(f), 205(a), (b), (d)-(h), and (j),
221, 225, and 702(a)(5) of the Social Security Act (42 U.S.C.
401(j), 404(f), 405(a), (b), (d)-(h), and (j), 421, 425, and
902(a)(5)); sec. 5, Pub. L. 97-455, 96 Stat. 2500 (42 U.S.C. 405
note); secs. 5, 6(c)-(e), and 15, Pub. L. 98-460, 98 Stat. 1802 (42
U.S.C. 421 note).
0
7. Section 404.902 is amended by revising paragraph (s) to read as
follows:
Sec. 404.902 Administrative actions that are initial determinations.
* * * * *
(s) Whether your completion of, or continuation for a specified
period of time in, an appropriate program of vocational rehabilitation
services, employment services, or other support services will increase
the likelihood that you will not have to return to the disability
benefit rolls, and thus, whether your benefits may be continued even
though you are not disabled;
* * * * *
Subpart P--[Amended]
0
8. The authority citation for subpart P of part 404 continues to read
as follows:
Authority: Secs. 202, 205(a), (b), and (d)-(h), 216(i), 221(a)
and (i), 222(c), 223, 225, and 702(a)(5) of the Social Security Act
(42 U.S.C. 402, 405(a), (b), and (d)-(h), 416(i), 421(a) and (i),
422(c), 423, 425, and 902(a)(5)); sec. 211(b), Pub. L. 104-193, 110
Stat. 2105, 2189.
0
9. Section 404.1586 is amended by revising paragraph (g) to read as
follows:
Sec. 404.1586 Why and when we will stop your cash benefits.
* * * * *
(g) If you are in an appropriate program of vocational
rehabilitation services, employment services, or other support
services. (1) Your benefits, and those of your dependents, may be
continued after your impairment is no longer disabling if--
(i) You are participating in an appropriate program of vocational
rehabilitation services, employment services, or other support
services, as described in Sec. 404.327(a) and (b);
(ii) You began participating in the program before the date your
disability ended; and
(iii) We have determined under Sec. 404.328 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.
(2) We generally will stop your benefits with the earliest of these
months--
(i) The month in which you complete the program; or
(ii) The month in which you stop participating in the program for
any reason (see Sec. 404.327(b) for what we mean by ``participating''
in the program); or
(iii) The month in which we determine under Sec. 404.328 that your
continuing participation in the program will no longer increase the
likelihood that you will not have to return to the disability benefit
rolls.
Exception to paragraph (d): In no case will we stop your benefits
with a month earlier than the second month after the month your
disability ends, provided that you meet all other requirements for
entitlement to and payment of benefits through such month.
0
10. In Sec. 404.1596, the heading and introductory text of paragraph
(c) are republished, and paragraph (c)(4) is revised to read as
follows:
Sec. 404.1596 Circumstances under which we may suspend your benefits
before we make a determination.
* * * * *
(c) When we will not suspend your cash benefits. We will not
suspend your cash benefits if--
* * * * *
(4) Even though your impairment is no longer disabling,
(i) You are participating in an appropriate program of vocational
rehabilitation services, employment services, or other support
services, as described in Sec. 404.327(a) and (b);
(ii) You began participating in the program before the date your
disability ended; and
(iii) We have determined under Sec. 404.328 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.
0
11. Section 404.1597 is amended by revising paragraph (a) to read as
follows:
Sec. 404.1597 After we make a determination that you are not now
disabled.
(a) General. If we determine that you do not meet the disability
requirements of the law, your benefits generally will stop. We will
send you a formal written notice telling you why we believe you are not
disabled and when your benefits should stop. If your spouse and
children are receiving benefits on your social security number, we will
also stop their benefits and tell them why. The notices will explain
your right to reconsideration if you disagree with our determination.
However, your benefits may continue even though your impairment is no
longer disabling, if you are participating in an appropriate program of
vocational rehabilitation services, employment services, or other
support services (see Sec. 404.327). You must have started
participating in the program before the date your disability ended. In
addition, we must have determined 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. (See Sec. Sec. 404.316(c), 404.328,
404.337(c), 404.352(d), and 404.1586(g).) You may still appeal our
determination that you are not disabled even though your benefits are
continuing because of your participation in an appropriate program of
vocational rehabilitation services, employment services, or other
support services. You may also appeal a determination that your
completion of the program, or your continuation in the program for a
specified period of time, will not increase the likelihood that you
will not have to return to the disability benefit rolls and, therefore,
you are not entitled to continue to receive benefits.
* * * * *
PART 416--SUPPLEMENTAL SECURITY INCOME FOR THE AGED, BLIND, AND
DISABLED
Subpart I--[Amended]
0
12. The authority citation for subpart I of part 416 continues to read
as follows:
Authority: Secs. 702(a)(5), 1611, 1614, 1619, 1631(a), (c), and
(d)(1), and 1633 of the Social Security Act (42 U.S.C. 902(a)(5),
1382, 1382c, 1382h, 1383(a), (c), and (d)(1), and 1383b); secs. 4(c)
and 5, 6(c)-(e), 14(a),
[[Page 36508]]
and 15, Pub. L. 98-460, 98 Stat. 1794, 1801, 1802, and 1808 (42
U.S.C. 421 note, 423 note, 1382h note).
0
13. Section 416.987 is amended by revising the first and third
sentences of paragraph (b) to read as follows:
Sec. 416.987 Disability redeterminations for individuals who attain
age 18.
* * * * *
(b) What are the rules for age-18 redeterminations? When we
redetermine your eligibility, we will use the rules for adults
(individuals age 18 or older) who file new applications explained in
Sec. Sec. 416.920(c) through (g). * * * If you are working and we find
that you are disabled under Sec. 416.920(d) or (g), we will apply the
rules in Sec. Sec. 416.260ff.
* * * * *
Subpart M--[Amended]
0
14. The authority citation for subpart M of part 416 is revised to read
as follows:
Authority: Secs. 702(a)(5), 1129A, 1611-1614, 1619, and 1631 of
the Social Security Act (42 U.S.C. 902(a)(5), 1320a-8a, 1382-1382c,
1382h, and 1383).
0
15. Section 416.1320 is amended by revising paragraph (d) to read as
follows:
Sec. 416.1320 Suspensions; general.
* * * * *
(d) Exception. Even though conditions described in paragraph (a) of
this section apply because your impairment is no longer disabling or
you are no longer blind under Sec. 416.986(a)(1), (a)(2) or (b), we
will not suspend your benefits for this reason if--
(1) You are participating in an appropriate program of vocational
rehabilitation services, employment services, or other support
services, as described in Sec. 416.1338(c) and (d);
(2) You began participating in the program before the date your
disability or blindness ended; and
(3) We have determined under Sec. 416.1338(e) 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 or blindness benefit rolls.
0
16. Section 416.1331 is amended by revising paragraphs (a) and (b) to
read as follows:
Sec. 416.1331 Termination of your disability or blindness payments.
(a) General. The last month for which we can pay you benefits based
on disability or blindness is the second month after the month in which
your disability or blindness ends. (See Sec. Sec. 416.987(e),
416.994(b)(6) and 416.994a(g) for when disability ends, and Sec.
416.986 for when blindness ends.) See Sec. 416.1338 for an exception
to this rule if you are participating in an appropriate program of
vocational rehabilitation services, employment services, or other
support services. You must meet the income, resources, and other
eligibility requirements to receive any of the benefits referred to in
this paragraph. We will also stop payment of your benefits if you have
not cooperated with us in getting information about your disability or
blindness.
(b) After we make a determination that you are not now disabled or
blind. If we determine that you do not meet the disability or blindness
requirements of the law, we will send you an advance written notice
telling you why we believe you are not disabled or blind and when your
benefits should stop. The notice will explain your right to appeal if
you disagree with our determination. You may still appeal our
determination that you are not now disabled or blind even though your
payments are continuing because of your participation in an appropriate
program of vocational rehabilitation services, employment services, or
other support services. You may also appeal a determination that your
completion of, or continuation for a specified period of time in, an
appropriate program of vocational rehabilitation services, employment
services, or other support services will not increase the likelihood
that you will not have to return to the disability or blindness benefit
rolls and, therefore, you are not eligible to continue to receive
benefits.
* * * * *
0
17. Section 416.1338 is revised to read as follows:
Sec. 416.1338 If you are participating in an appropriate program of
vocational rehabilitation services, employment services, or other
support services.
(a) When may your benefits based on disability or blindness be
continued? Your benefits based on disability or blindness may be
continued after your impairment is no longer disabling, you are no
longer blind as determined under Sec. 416.986(a)(1), (a)(2) or (b), or
your disability has ended as determined under Sec. 416.987(b) and
(e)(1) in an age-18 redetermination, if--
(1) You are participating in an appropriate program of vocational
rehabilitation services, employment services, or other support
services, as described in paragraphs (c) and (d) of this section;
(2) You began participating in the program before the date your
disability or blindness ended; and
(3) We have determined under paragraph (e) of this section 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 or blindness benefit rolls.
(b) When will we stop your benefits? We generally will stop your
benefits with the earliest of these months--
(1) The month in which you complete the program; or
(2) The month in which you stop participating in the program for
any reason (see paragraph (d) of this section for what we mean by
``participating'' in the program); or
(3) The month in which we determine under paragraph (e) of this
section that your continuing participation in the program will no
longer increase the likelihood that you will not have to return to the
disability or blindness benefit rolls.
Exception to paragraph (b): In no case will we stop your benefits
with a month earlier than the second month after the month your
disability or blindness ends, provided that you are otherwise eligible
for benefits through such month.
(c) What is an appropriate program of vocational rehabilitation
services, employment services, or other support services? An
appropriate program of vocational rehabilitation services, employment
services, or other support services means--
(1) A program that is carried out under an individual work plan
with an employment network under the Ticket to Work and Self-
Sufficiency Program under part 411 of this chapter;
(2) A program that is carried out under an individualized plan for
employment with--
(i) A State vocational rehabilitation agency (i.e., a State agency
administering or supervising the administration of a State plan
approved under title I of the Rehabilitation Act of 1973, as amended
(29 U.S.C. 720-751)) under 34 CFR part 361; or
(ii) An organization administering a Vocational Rehabilitation
Services Project for American Indians with Disabilities authorized
under section 121 of part C of title I of the Rehabilitation Act of
1973, as amended (29 U.S.C. 741);
(3) A program of vocational rehabilitation services, employment
services, or other support services that is carried out under a
similar, individualized written employment plan with--
[[Page 36509]]
(i) An agency of the Federal government (for example, the
Department of Veterans Affairs);
(ii) A one-stop delivery system or specialized one-stop center
described in section 134(c) of the Workforce Investment Act of 1998 (29
U.S.C. 2864(c)); or
(iii) Another provider of services approved by us; providers we may
approve include, but are not limited to--
(A) A public or private organizations with expertise in the
delivery or coordination of vocational rehabilitation services,
employment services, or other support services; or
(B) A public, private or parochial school that provides or
coordinates a program of vocational rehabilitation services, employment
services, or other support services carried out under an individualized
program or plan;
(4) An individualized education 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, as amended (20 U.S.C. 1400
et seq.); you must be age 18 through age 21 for this provision to
apply.
(d) When are you participating in the program? (1) You are
participating in a program described in paragraph (c)(1), (c)(2) or
(c)(3) of this section when you are 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.
(2) If you are a student age 18 through 21 receiving services under
an individualized education program described in paragraph (c)(4) of
this section, you are participating in your program when you are taking
part in the activities and services outlined in your program or plan.
(3) You are participating in your program under paragraph (d)(1) or
(2) of this section during temporary interruptions in your program. For
an interruption to be considered temporary, you 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.
(e) How will we determine whether or not 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 or blindness benefit rolls? (1) We will 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 or blindness benefit rolls if your
completion of or your continuation in the program will provide you
with--
(i) Work experience (see Sec. 416.965) so that you would more
likely be able to do past relevant work (see Sec. 416.960(b)), despite
a possible future reduction in your residual functional capacity (see
Sec. 416.945); or
(ii) Education (see Sec. 416.964) and/or skilled or semi-skilled
work experience (see Sec. 416.968) so that you would more likely be
able to adjust to other work that exists in the national economy (see
Sec. 416.960(c)), despite a possible future reduction in your residual
functional capacity (see Sec. 416.945).
(2) If you are a student age 18 through age 21 participating in an
individualized education program described in paragraph (c)(4) of this
section, we 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 or blindness benefit rolls.
(3) If you are receiving transition services after having completed
an individualized education program as described in paragraph (e)(2) of
this section, we will determine that the transition services will
increase the likelihood that you will not have to return to the
disability benefit rolls if they meet the requirements in paragraph
(e)(1) of this section.
Subpart N--[Amended]
0
18. The authority citation for subpart N of part 416 continues to read
as follows:
Authority: Secs. 702(a)(5), 1631, and 1633 of the Social
Security Act (42 U.S.C. 902(a)(5), 1383, and 1383b).
0
19. Section 416.1402 is amended by revising paragraph (j) to read as
follows:
Sec. 416.1402 Administrative actions that are initial determinations.
* * * * *
(j) Whether your completion of, or continuation for a specified
period of time in, an appropriate program of vocational rehabilitation
services, employment services, or other support services will increase
the likelihood that you will not have to return to the disability or
blindness benefit rolls, and thus, whether your benefits may be
continued even though you are not disabled or blind;
* * * * *
[FR Doc. 05-12432 Filed 6-23-05; 8:45 am]
BILLING CODE 4191-02-P