8140 Federal Register / Vol. 60, No. 28 / Friday, February 10, 1995 / Rules and Regulations

DEPARTMENT OF HEALTH AND

HUMAN SERVICES

Social Security Administration

20 CFR Parts 404 and 416

[Regulations Nos. 4 and 16]

RIN 0960–AD96

Federal Old-Age, Survivors, and

Disability Insurance and Supplemental

Security Income for the Aged, Blind,

and Disabled; Benefit Reforms for

Individuals Disabled Based on Drug

Addiction or Alcoholism

AGENCY: Social Security Administration,

HHS.

ACTION: Interim final rules with request

for comments.

SUMMARY: The Social Security

Independence and Program

Improvements Act of 1994 contains

provisions affecting the payment of

benefits under titles II and XVI of the

Social Security Act (the Act) to

individuals whose drug addiction or

alcoholism is a contributing factor

material to the determination of

disability. These interim final rules

implement certain provisions related to

limitations on benefit payments and the

nonpayment and termination of benefits

to these individuals.

DATES: These interim final rules are

effective on March 1, 1995. To be sure

that your comments are considered, we

must receive them no later than April

11, 1995.

ADDRESSES: Comments should be

submitted in writing to the

Commissioner of Social Security,

Department of Health and Human

Services, P.O. Box 1585, Baltimore, MD

21235, sent by telefax to (410) 966–

2830, or delivered to the Division of

Regulations and Rulings, Social Security

Administration, 3–B–1 Operations

Building, 6401 Security Boulevard,

Baltimore, MD 21235, between 8:00 a.m.

and 4:30 p.m. on regular business days.

Comments received may be inspected

during these hours by making

arrangements with the contact person

shown below.

FOR FURTHER INFORMATION CONTACT:

Regarding this Federal Register

document—Richard M. Bresnick, Legal

Assistant, Division of Regulations and

Rulings, Social Security Administration,

6401 Security Boulevard, Baltimore, MD

21235, (410) 965–1758; regarding

eligibility or filing for benefits—our

national toll-free number, 1–800–772–

1213.

SUPPLEMENTARY INFORMATION:

History

In 1972, Public Law (Pub. L.) 92–603

established the supplemental security

income (SSI) program under title XVI of

the Act. Aside from disability for

children under age 18 and blindness,

the Act provided the same definition of

disability for individuals under title XVI

as it does under title II. However, the

SSI program included special provisions

for disabled persons medically

determined to be drug addicts or

alcoholics. As implemented, those

provisions applied to individuals whose

drug addiction or alcoholism (DAA) was

a contributing factor material to the

determination that they were disabled

(disabled based on DAA). The SSI

provisions stated that an individual

determined to be disabled based on

DAA could receive SSI benefits only if

he or she underwent appropriate

treatment for the substance addiction

when it was available and received

payments through a representative

payee.

The 1972 legislation also required the

Secretary of Health and Human Services

(the Secretary) to provide for the

monitoring and testing of these

individuals to assure compliance with

treatment and to determine how the

imposition of the treatment requirement

contributes to the achievement of

program purposes. The Secretary also

was required to submit an annual report

to Congress on the treatment and

compliance of affected SSI recipients.

Prior to the passage of the Social

Security Independence and Program

Improvements Act of 1994, Pub. L. 103–

296, enacted on August 15, 1994, there

were no special program rules for Social

Security beneficiaries whose medically

determined drug addiction or

alcoholism was a contributing factor

material to the determination of

disability.

New Legislation

The amendments made to the Act by

section 201 of Pub. L. 103–296

introduced several new requirements

and limitations for SSI recipients

disabled based on DAA and applied

similar requirements and limitations to

Social Security beneficiaries disabled

based on DAA, as well. These

requirements and limitations are, in

part, intended to discourage individuals

from using Social Security or SSI

benefits to support an addiction, as well

as encourage the treatment and

rehabilitation of individuals disabled

based on DAA.

Section 201(a) of Pub. L. 103–296

contains the title II provisions related to

DAA and section 201(b) contains the

corresponding SSI provisions. The new

requirements and changes under both

programs for individuals disabled based

on DAA include:

• Paying benefits to a representative

payee;

• A preference for selecting certain

types of organizational payees,

inclusion of certain State and local

government agencies as qualified

organizations, making permanent the

provision authorizing certain qualified

organizations to collect a fee from

beneficiaries for whom they serve as

representative payees, and increasing

the upper limit of the fee that

organizational payees can charge

persons disabled based on DAA;

• Requiring both Social Security and

SSI recipients who are disabled based

on DAA to undergo appropriate

substance abuse treatment, if available;

• Suspending benefits for months in

which there is a failure to comply with

appropriate, available treatment and

requiring that individuals must

demonstrate compliance with that

treatment for a specified period of time

before payments can resume;

• Terminating benefits after 12

consecutive months of suspension for

noncompliance (the individual may

reapply and receive disability benefits

based on DAA for the remainder of the

36-month limit described below);

• Monitoring and testing of

individuals to assure compliance;

• Establishing at least one referral and

monitoring agency (RMA) in every State

to identify appropriate treatment

placements, to refer individuals

disabled based on DAA to treatment and

to monitor compliance with such

treatment;

• Paying past-due benefits in

installments, with a limited exception

for individuals with outstanding debts

related to housing who are at a high risk

of homelessness;

• A 36-month limit on the payment of

benefits beginning with the March 1995

payment month, with some differences

between the title II and SSI programs as

to how the months are counted (months

of suspension will not be counted in the

36 months for either program);

• A ‘‘sunset date’’ of September 2004

for the 36-month limit on the payment

of benefits;

• Continued Social Security benefit

payments to auxiliaries after a disabled

wage earner’s benefits are suspended for

failure to comply with treatment

requirements or when entitlement is

terminated after the 36 months, as long

as the wage earner continues to be

disabled;
Federal Register / Vol. 60, No. 28 / Friday, February 10, 1995 / Rules and Regulations 8141

• Continuation of beneficiary status

for purposes of Medicare and Medicaid

coverage during periods of suspense for

noncompliance and after eligibility or

entitlement is terminated after 36

months of benefits are paid, as long as

the individual remains disabled.

Many of these provisions are effective

for benefits payable for months

beginning March 1, 1995. Implementing

regulations for certain statutory

provisions must be issued by February

11, 1995, 180 days after enactment, and

are included in these interim final rules.

For those statutory provisions not

requiring final regulations by February

1995, principally those concerning

representative payment, we will publish

a separate notice of proposed

rulemaking (NPRM) in the Federal

Register.

These interim final regulations affect

all disabled individuals whose drug

addiction or alcoholism is a

contributing factor material to the

determination of disability, including

those who were found eligible for title

II or SSI benefits before March 1, 1995.

By March 1, 1995, the Social Security

Administration (SSA) will have sent

notices to these individuals of the

changes in the Act which affect them, as

required by section 201 of Pub. L. 103–

296. At the same time, SSA also will

have sent notices to the representative

payees of these individuals who have

them.

Congressional Direction to Consult

With Experts

Section 201 of Pub. L. 103–296

directed the Secretary to consult with

drug and alcohol treatment

professionals in formulating regulations

defining appropriate treatment for

individuals subject to the new

provisions and establishing guidelines

for the review and evaluation of

compliance and progress. On August

24–25, 1994, SSA convened a meeting

in Hunt Valley, Maryland of substance

abuse treatment professionals from

across the nation to gain their

individual views on devising the new

and revised regulations. During this

meeting, a wide range of substance

abuse-related topics was discussed, but

the focus was on the legislative

requirements to treat and monitor this

disabled population. In addition, SSA

has written directly to numerous

professional organizations, individual

treatment professionals, public

advocacy organizations, RMAs, and

others with knowledge of substance

abuse-related issues seeking their views

on treatment and compliance questions

and issues to gain balanced input on

general contemporary treatment

philosophies.

On October 17, 1994, SSA published

in the Federal Register a Notice of

Intent with Request for Comments (59

FR 52380) to solicit public comments

about the legislative requirements

imposed by Pub. L. 103–296 and the

regulations SSA is required to

promulgate. The comment period closed

on November 16, 1994.

The comments we have received from

all of these varied sources have proved

to be invaluable in revising the rules

relating to individuals under a disability

when drug addiction or alcoholism is a

contributing factor material to the

determination of disability.

What the Experts and Other Public

Commenters Told Us

We solicited the views of experts in

the field of substance abuse treatment,

as required by Pub. L. 103–296. We

received valuable input from treatment

professionals and administrators at the

August 24–25 meeting and subsequently

received written comments from many

of the attendees. While we were

interested in receiving the views of the

experts and other members of the public

on all issues related to the DAA

provisions, we sought specific input

from the discussions and the Notice of

Intent published October 17, 1994, on

the following issues:

• The definition of ‘‘appropriate’’

treatment for DAA;

• The definition of when treatment is

‘‘available’’;

• How to define and evaluate

‘‘progress’’ in treatment;

• How to evaluate ‘‘compliance’’ with

treatment;

• The frequency with which RMAs

should monitor an individual’s

compliance with his/her treatment plan;

• The definition of ‘‘good cause’’ for

an individual’s failure to comply with

the treatment requirements; and

• The costs and benefits to be realized

from the provisions.

In response to the Notice of Intent, we

received comments from 56 individuals

and groups. Commenters from State and

local governments ranged from State

RMAs to Social Service Agencies,

Medicaid Agencies, and county

government offices. Two national

associations of directors of State

governmental entities also provided

comments. In addition, several

treatment facilities, legal services

organizations, and individual attorneys

commented on the Notice of Intent.

We have carefully considered all of

the comments in developing these

interim final regulations.

Appropriate Treatment

Most commenters defined appropriate

substance abuse treatment as a

continuum of services to individuals

with alcohol and other drug problems.

Many commenters believed that

appropriate treatment is that which

serves the individual’s needs in the least

restrictive setting consistent with an

individualized treatment plan. A

significant number of commenters

expressed the view that appropriate

treatment can be defined only on an

individualized basis by treatment

professionals since there is no one

modality that will work for every client

disabled based on DAA. Accordingly,

various commenters advised SSA to

refrain from promulgating specific

regulatory guidelines. Rather, they

suggested that the determination of

‘‘appropriate’’ treatment should be

within the purview of treatment

professionals, circumscribed by very

general guidelines provided by SSA.

Many commenters stated that client

participation in 12-step programs such

as Alcoholics Anonymous is not, in and

of itself, appropriate treatment. While

such programs may be part of an overall

treatment plan, because of their nature,

they are not treatment.

Available Treatment

Many commenters believed that the

definition of ‘‘availability’’ of substance

abuse treatment should be a broadly

inclusive definition to assure that the

client can in fact avail himself or herself

of appropriate treatment. Many

commenters offered a list of factors that

should be used in determining

availability of treatment: location of the

facility, availability and affordability of

transportation, child care, the client’s

general health, particular condition and

circumstances, language and cultural

appropriateness.

There was a division among

commenters as to whether one

component of ‘‘available’’ should be

whether the treatment was without cost

to the client. Some commenters were of

the view that treatment must be without

cost in order to be ‘‘available.’’ Others

thought that the client should be

required to make some investment in

the treatment program by paying for

some or all of the cost of treatment,

depending upon the type of treatment

and the client’s circumstances.

Evaluating Progress in Treatment

Generally, commenters posited that it

would be difficult to construct one

definition or method by which to

measure individuals’ progress in

treatment. A large organization of State
8142 Federal Register / Vol. 60, No. 28 / Friday, February 10, 1995 / Rules and Regulations

program administrators and others

commented that no universally accepted

tool existed to measure individuals’

progress in substance abuse treatment.

Due to the lack of a universally

acceptable tool to measure progress,

other commenters were of the view that

treatment professionals should evaluate

whether progress is made according to

very general rules set out by SSA. A few

commenters provided suggestions for

some of the elements in the

measurement of progress, including

abstinence from alcohol and drug use, a

reduction in the use of emergency

medical services, an increase in

educational or vocational rehabilitation

activities, and avoidance of criminal

activity.

Evaluating Compliance With Treatment

The commenters favored general

rather than specific rules governing

compliance with the treatment

requirements. Several commenters were

of the view that compliance means that

an individual follows his or her

individual treatment plan. Accordingly,

the treatment professional is in the best

position to evaluate compliance. One

legal services organization was

concerned that SSA retain the ultimate

responsibility for determining

compliance. One aspect of compliance

is the issue of requiring alcohol and

drug testing. A few commenters

recommended that SSA mandate drug

tests for beneficiaries in treatment.

Several commenters, including one of

the large national organizations of State

administrators, advised against

mandatory drug testing. In their view,

the need for and frequency of drug

testing should be determined by the

treatment professional in accordance

with an individualized treatment plan.

Concern was expressed about the cost of

mandatory drug testing and inaccuracies

inherent in drug testing results.

Good Cause for Failure to Comply With

Treatment

Many commenters supported an

expansive list of factors that would be

considered ‘‘good cause’’ for

noncompliance with the treatment

requirements, such as medical

problems, lack of transportation, or

personal or family tragedies. Some

commenters thought that the treatment

provider was in the best position to

evaluate if the client had ‘‘good cause’’

for noncompliance. A minority of

commenters supported a very restrictive

definition because of their concern that

‘‘good cause’’ factors could be

manipulated by individuals in

treatment.

Costs and Benefits

Few commenters provided

information on the potential costs and

benefits of the provisions. Commenters

provided a range of estimated costs for

drug testing expenses.

Other Comments

Many commenters expressed

concerns regarding a number of

operational issues which are not the

subject of these regulations. Although

these concerns are not regulatory issues,

they have been considered carefully in

the development of our operating

procedures.

Explanation of Revisions

These interim final regulations amend

§§ 404.315, 404.316, 404.321, 404.332,

404.335, 404.337, 404.350, 404.352,

404.402, 404.902, 416.202, 416.213,

416.262, 416.265, 416.535, 416.542,

416.558, 416.601, 416.610, 416.935,

416.936, 416.937, 416.938, 416.939,

416.1123, 416.1326, 416.1331, 416.1335,

416.1402 and 416.1725 and create new

§§ 404.470, 404.480, 404.1535,

404.1536, 404.1537, 404.1538, 404.1539,

404.1540, 404.1541, 416.544, 416.940

and 416.941 to reflect the statutory

changes.

Section 404.315 is revised to add a

new paragraph explaining the

prohibition against reentitlement to

disability benefits based on DAA after

receiving 36 months of disability

benefits on the basis of that impairment.

Sections 404.316 and 404.321 have

been amended to include an

explanation of the 36-month benefit

limit and the termination of benefits for

12 consecutive months of

noncompliance in cases in which drug

addiction or alcoholism is a

contributing factor material to the

determination of disability.

Section 404.332 is revised to state

that, if the insured person is disabled

based on DAA and benefits terminate

because of noncompliance with

treatment or because of the 36-month

benefit limit, benefits to the spouse will

continue, provided the insured person

remains disabled.

Section 404.335 provides that, if

benefits to a widow(er) who is disabled

based on DAA are terminated after 36

months of benefits, that person cannot

become entitled again to widow(er)’s

benefits if drug addiction or alcoholism

is a contributing factor material to the

later determination of disability.

Section 404.337 explains that, if the

widow(er)’s entitlement to benefits is

based on DAA, benefits will terminate

after 12 consecutive months of

suspension for noncompliance with

treatment or, unless otherwise disabled

without regard to drug addiction or

alcoholism, after having received 36

months of payment.

Section 404.350 is revised to state

that, if the entitlement of a disabled

child age 18 or over whose disability

was based on DAA terminates because

of the 36-month benefit limit, the child

may not be entitled again to benefits

based on a disability if drug addiction

or alcoholism is a contributing factor

material to the later determination of

disability.

Section 404.352 states that, if the

disability of a disabled child age 18 or

over is based on DAA and his or her

benefits have been suspended for a

period of 12 consecutive months for

failure to comply with treatment, those

benefits will terminate with the month

following the 12-month period of

suspension. Likewise, if, after receiving

36 months of benefits based on DAA,

the child would not otherwise be

disabled without regard to drug

addiction or alcoholism, benefits based

on disability will be terminated with the

month following the 36th month of

payment. If the disabled child is

receiving benefits on the record of a

wage earner whose disability was based

on DAA and benefits to the wage earner

end because of noncompliance with

treatment or 36 months of benefits have

been paid, benefits to the child will

continue, provided the insured person

would have remained entitled to

benefits but for the operation of this

provision.

Section 404.402 is revised to include

nonpayments because of drug addiction

or alcoholism in the list of deductions,

reductions, and adjustment events

which are considered before computing

any applicable reduction for the family

maximum.

Sections 404.470 and 416.1725

explain the nonpayment ramifications

for beneficiaries disabled based on DAA

who fail to comply with the rules

regarding available treatment for drug

addiction or alcoholism. Benefits will be

suspended beginning with the first

month after we notify the individual of

a determination of noncompliance with

the treatment requirements. Benefits

will be terminated after 12 consecutive

months of suspension for

noncompliance.

Sections 404.480 and 416.544 explain

that past-due benefits must be paid in

installments. Accrued unpaid benefits

must be paid in installments so that the

total monthly payment including the

installment generally does not exceed

two times the monthly benefit amount.

These sections also explain the

exception to the limitation if the
Federal Register / Vol. 60, No. 28 / Friday, February 10, 1995 / Rules and Regulations 8143

beneficiary has unpaid housing debts

which put him or her at high risk of

homelessness. We consider an

individual to be at high risk of

homelessness if continued nonpayment

of housing expenses is likely to result in

the individual losing a place to live. We

also consider an individual who is

already homeless to be among those at

high risk of homelessness.

Section 404.902 is revised to expand

the list of administrative actions that are

initial determinations to include

determinations about drug addiction or

alcoholism.

Sections 404.1535 and 416.935

explain the process by which a

determination is made that drug

addiction or alcoholism is a

contributing factor material to the

determination of disability.

Sections 404.1536 and 416.936

explain the treatment requirements and

the consequences of noncompliance

with these requirements for individuals

disabled based on DAA. For consistency

between programs, especially for

individuals who receive concurrent title

II and SSI benefits, we extend to title II

beneficiaries the current SSI policy that

individuals referred for treatment

generally are not expected to pay for the

treatment.

Sections 404.1537 and 416.937

explain what we mean by appropriate

treatment for these individuals and give

examples of appropriate treatment

modalities.

Sections 404.1538 and 416.938

explain what we mean by approved

institutions or facilities for providing

the appropriate treatment.

Sections 404.1539 and 416.939

describe the factors we will consider in

determining the availability of

treatment.

Sections 404.1540 and 416.940

explain how we intend to assess

compliance with prescribed treatment,

including measuring progress with the

treatment.

Based upon our contact with

treatment professionals and

administrators, we deemed it best that

our regulations not attempt to provide

exhaustive guidelines for determining

what constitutes appropriate treatment

and definitive methods of measuring

progress. These particular concepts are

inherent parts of the treatment program,

which must be developed by the

treatment professional for each

individual. Thus, in these regulatory

sections, we have provided broad rather

than narrow guidelines in these areas.

Sections 404.1541 and 416.941

delineate the functions and

responsibilities of the RMAs. The

RMAs’ duties include making treatment

referrals and monitoring compliance

with prescribed treatment. The

contractual agreements with the RMAs

will set forth their functions and

responsibilities in much more detail.

In carrying out their functions and

responsibilities, the RMAs will work

closely with State alcohol and other

drug abuse agencies, which often are the

focal point for the delivery of publicly

funded services to SSI beneficiaries.

Section 416.202 has been revised to

reflect the new provision that an

individual disabled based on DAA is

not eligible for SSI benefits if he or she

has previously received 36 months of

Social Security benefits when treatment

was available or 36 months of SSI

benefits based on DAA.

Section 416.213 is revised to state that

an individual disabled based on DAA

who refuses or does not follow available

and appropriate treatment for drug

addiction or alcoholism will not receive

SSI benefits until he or she has

demonstrated compliance with

treatment requirements for the period

specified in the revised rules in

§ 416.1326. The section also explains in

detail the eligibility requirement that an

individual cannot receive SSI benefits

on the basis of disability based on DAA

if he or she has already received 36

months of SSI or Social Security

benefits on the same basis. The section

contains references to other SSI and

Social Security regulatory sections

which explain how the 36 months are

calculated for each of those programs.

Sections 416.262 and 416.265 have

been revised to explain that individuals

who are disabled based on DAA may be

eligible for SSI payments, including

special SSI cash benefits, and special

SSI eligibility status for a total of 36

months.

Section 416.535 is revised to include

cross-references to the SSI regulatory

sections which state the rules on the

installment payment of past-due

benefits for individuals who are

disabled based on DAA.

Section 416.542 is revised to explain

that, if an underpaid recipient disabled

based on DAA is alive, the amount of

any underpayments due the recipient

will be paid to his or her representative

payee. No underpayments may be paid

to the recipient.

Section 416.558 is revised by adding

to paragraph (a) a reference to the new

§ 416.544, and by adding a new

paragraph (c) to explain that, whenever

a decision is made about the amount of

any benefits due for a past period that

should be paid in installments, the

written notice which is sent to the

individual and the individual’s

representative payee will also explain

the amount of the installment payment

and when an increased initial

installment payment may be made.

The last sentence of paragraph (b)(1)

of § 416.601 and paragraph (a)(3) of

§ 416.610 are revised to update the

language referring to an individual

‘‘medically determined to be a drug

addict or an alcoholic.’’ We now refer to

individuals for whom ‘‘drug addiction

or alcoholism is a contributing factor

material to the determination of

disability.’’ This does not change the

meaning in any way; it merely makes

the terminology consistent with that

used throughout these regulations.

Paragraph (d) of § 416.1123, which

discusses how we count retroactive

monthly Social Security benefits as

unearned income, is revised to address

the counting of such benefits when they

are paid in installments. New

installment requirements for past-due

benefits for individuals disabled based

on DAA are explained in § 416.544.

Because of those requirements, SSA

generally will be precluded from paying

at one time all past-due benefits

remaining after reimbursing a State for

interim assistance (when appropriate).

Paragraph (d)(2) explains that the total

of retroactive Social Security benefits

paid in installments to individuals

disabled based on DAA which is

countable income after the rules in

paragraph (d)(1) are applied will be

counted as unearned income only in the

first month they are paid.

In enacting section 201 of Pub. L.

103–296, Congress evidenced no intent

to change the manner in which past-due

Social Security benefits are counted for

SSI purposes, but instead intended to

reduce the likelihood that the past-due

benefits would be used by the

beneficiary in a way that would support

continuing substance abuse. By

counting retroactive benefits paid in

installments as if received in a lump

sum in the first month of payment, the

SSI recipient will be at risk of losing SSI

(and possibly Medicaid) eligibility for at

most 1 month because of the receipt of

those benefits, as is now the case. The

alternative method of counting these

past-due benefits—month by month as

the installments are received—would

result, in many cases, in the loss of

eligibility for both SSI and Medicaid for

the entire period during which the

installments are paid. A loss of

eligibility for Medicaid could severely

limit the accessibility of treatment for

drug addiction or alcoholism and thus

undermine the intent of the legislation.

Accordingly, these regulations make no

change in the way past-due benefits are

counted for SSI purposes; past-due

benefits will continue to be counted as
8144 Federal Register / Vol. 60, No. 28 / Friday, February 10, 1995 / Rules and Regulations

if received in a lump sum even when

received in installments.

Section 416.1326 has been revised to

explain that SSI benefits for individuals

disabled based on DAA will be

suspended for noncompliance with

treatment requirements effective the

first month after notification of

noncompliance. Suspension of SSI

benefits will continue until the recipient

demonstrates compliance with

treatment for specified periods; a

minimum of 2 months, 3 months, and

6 months, respectively, for the first,

second, and third and additional

determinations of noncompliance.

Suspension of benefits for 12

consecutive months, for any reason, will

result in termination of benefits.

Section 416.1331, which addresses

termination of disability benefits, has

been revised. New paragraph (c)

discusses termination after 12 months of

suspension for noncompliance. New

paragraph (d) describes the limit of 36

months on benefits and that this limit is

no longer effective for benefits for

months beginning after September 2004.

New paragraph (e) explains what

months are counted in determining the

36 months of benefits.

Section 416.1335, which discusses

termination due to continuous

suspension for ineligibility, has been

amended by changing the language to

explain that SSI benefits will be

terminated after 12 months of

suspension, even when some or all of

the suspension months are due to

suspense for noncompliance, as defined

in § 416.1326.

Paragraph (d) of § 416.1402 is revised

to update the language referring to an

individual ‘‘determined to be a drug

addict or an alcoholic.’’ We now refer to

an individual for whom ‘‘drug addiction

or alcoholism is a contributing factor

material to the determination of

disability.’’ This does not change the

meaning in any way; it merely makes

the terminology consistent with that in

the new legislation and used throughout

these regulations.

Regulatory Procedures

The Department of Health and Human

Services, even when not required by

statute, as a matter of policy generally

follows the Administrative Procedure

Act (APA) NPRM and public comment

procedures specified in 5 U.S.C. 553 in

the development of its regulations. The

APA provides exceptions to its notice

and comment procedures when an

agency finds that there is good cause for

dispensing with such procedures on the

basis that they are impracticable,

unnecessary, or contrary to the public

interest. In the case of these interim

final rules, we have determined that

under 5 U.S.C. 553(b)(B), good cause

exists for waiving the NPRM

procedures.

Pub. L. 103–296 was signed into law

on August 15, 1994. Sections

201(a)(3)(E)(i) and 201(b)(3)(E)(i) of Pub.

L. 103–296 require the Secretary to issue

regulations necessary to carry out those

amendments made by section 201

which are the subject of these interim

final rules by February 11, 1995. In

addition, the legislation requires that

the Secretary consult with drug and

alcohol treatment professionals in

developing certain aspects of these

regulations with regard to defining

appropriate substance abuse treatment

and establishing guidelines to review

and evaluate compliance with treatment

and measures of progress. Accordingly,

to undertake the required consultation

process and also issue these rules as an

NPRM would have delayed issuance of

final rules until well past the statutory

deadline of February 11, 1995. In light

of these constraints, we solicited public

comments on the regulations needed to

implement certain aspects of this new

legislation by publishing a Notice of

Intent with Request for Comments on

October 17, 1994 (59 FR 52380), and

allowed adequate time to give the

comments received in response to that

notice our full consideration.

In addition, publishing interim final

regulations will permit the timely and

effective implementation of the new

provisions for recipients whose drug

addiction or alcoholism is a

contributing factor material to the

determination of disability. Such

implementation may allow some

recipients to get into available treatment

for their addictions sooner. This will

benefit both the recipients and the

public at large.

In light of the Congressional mandate

that we issue regulations needed to

carry out these statutory provisions no

later than February 11, 1995, we believe

that, under the APA, good cause exists

for waiver of the prior notice procedures

since issuance of proposed rules would

be impracticable and contrary to the

public interest. While we are issuing

these rules as interim final regulations,

we are interested in receiving public

comments regarding the substance of

these interim rules.

Executive Order 12866

These interim final rules reflect and

implement most of the provisions of

sections 201(a) and 201(b) of Pub. L.

103–296. The Office of Management and

Budget (OMB) has reviewed these

interim final rules and determined that

they meet the criteria for a significant

regulatory action under E.O. 12866.

Therefore, we prepared and submitted

to OMB, separately from the interim

final rules, an assessment of the

potential costs and benefits of this

regulatory action. This document also

contains an analysis of alternative

policies we considered and chose not to

adopt. This assessment is available for

review by members of the public.

Regulatory Flexibility Act

We certify that these regulations will

not have a significant economic impact

on a substantial number of small entities

because they affect individuals’

eligibility for program benefits under

the Social Security Act. Therefore, a

regulatory flexibility analysis as

provided in Pub. L. 96–354, the

Regulatory Flexibility Act, is not

required.

Paperwork Reduction Act

These interim final rules contain

information collection requirements in

§§ 404.480, 404.1540, 404.1541,

416.544, 416.940, and 416.941. As

required by the Paperwork Reduction

Act of 1980, we will submit a copy of

these information collection

requirements to OMB for its review.

Organizations and individuals desiring

to submit comments on these

information collection requirements

should direct them to the Office of

Information and Regulatory Affairs,

OMB, New Executive Office Building,

Room 3208, Washington, D.C. 20503,

Attention: Desk Officer for HHS. The

public reporting burden for the

collections of information in §§ 404.480

and 416.544 is estimated to average 4

minutes per response. The burden for

§§ 404.1540, 404.1541, 416.940, and

416.941 is estimated to average 5

minutes per response for one form for

each beneficiary annually, and 10

minutes per response for another form

for each beneficiary monthly. These

include the time it will take to read the

instructions, gather the necessary facts,

and provide the information. For

§§ 404.480 and 416.544 we expect

approximately 2,400 beneficiaries or

recipients to provide responses and

estimate the total annual burden to be

160 hours. For §§ 404.1540, 404.1541,

416.940, and 416.941 we expect

responses from treatment providers

through approximately 52 RMAs on

behalf of approximately 184,000

beneficiaries or recipients and estimate

the total annual burden to be 395,600

hours. If you have any comments or

suggestions on these estimates, write to

the Social Security Administration,

Attention: Reports Clearance Officer, 1–

A–21 Operations Building, 6401
Federal Register / Vol. 60, No. 28 / Friday, February 10, 1995 / Rules and Regulations 8145

Security Boulevard, Baltimore, MD

21235.

(Catalog of Federal Domestic Assistance

Program Nos. 93.802, Social SecurityDisability Insurance; 93.803, Social SecurityRetirement Insurance; 93.805, Social

Security-Survivors Insurance; 93.807,

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.

20 CFR Part 416

Administrative practice and

procedure, Aged, Blind, Disability

benefits, Public assistance programs,

Supplemental Security Income (SSI),

Reporting and recordkeeping

requirements.

Dated: December 22, 1994.

Shirley S. Chater,

Commissioner of Social Security.

Approved: February 2, 1995.

Donna E. Shalala,

Secretary of Health and Human Services.

For the reasons set forth in the

preamble, part 404, subparts D, E, J, and

P of chapter III of title 20 of the Code

of Federal Regulations are amended as

set forth below.

PART 404—FEDERAL OLD-AGE,

SURVIVORS, AND DISABILITY

INSURANCE (1950– )

1. The authority citation for subpart D

of part 404 is revised to read as follows:

Authority: Secs. 202, 203(a) and (b), 205(a),

216, 223, 225, 228(a) through (e), and 1102

of the Social Security Act; 42 U.S.C. 402, 403

(a) and (b), 405(a), 416, 423, 425, 428(a)

through (e), and 1302.

2. Section 404.315 is amended by

redesignating the introductory test as

paragraph (a) and adding a heading to

it, redesignating former paragraphs (a)

through (d) as paragraphs (a)(1) through

(a)(4), and adding a new paragraph (b)

to read as follows:

§ 404.315 Who is entitled to disability

benefits.

(a) General. * * *

* * * * *

(b) Prohibition against reentitlement

to disability benefits if drug addiction or

alcoholism is a contributing factor

material to the determination of

disability. You cannot be entitled to a

period of disability payments if drug

addiction or alcoholism is a

contributing factor material to the

determination of disability and your

earlier entitlement to disability benefits

on the same basis terminated after you

received benefits for 36 months during

which treatment was available.

3. Section 404.316 is amended by

adding paragraphs (e) and (f) to read as

follows:

§ 404.316 When entitlement to disability

benefits begins and ends.

* * * * *

(e) If drug addiction or alcoholism is

a contributing factor material to the

determination of disability as described

in § 404.1535, you may receive

disability benefits on that basis for no

more than 36 months regardless of the

number of entitlement periods you may

have. Not included in these 36 months

are months in which treatment for your

drug addiction or alcoholism is not

available, months before March 1995,

and months for which your benefit

payments were suspended for any

reason. Benefits to your dependents may

continue after the 36 months of benefits

if, but for the operation of this

paragraph, you would otherwise be

entitled to benefits based on disability.

The 36-month limit is no longer

effective for benefits for months

beginning after September 2004.

(f) If drug addiction or alcoholism is

a contributing factor material to the

determination of disability as described

in § 404.1535 and your disability

benefits are suspended for 12

consecutive months because of your

failure to comply with treatment

requirements, your disability benefits

will be terminated effective the first

month after such 12-month period.

Benefits to your dependents may

continue after the 12-month period if,

but for the operation of this paragraph,

you would otherwise be entitled to

benefits based on disability.

4. Section 404.321 is amended by

adding paragraph (d) to read as follows:

§ 404.321 When a period of disability

begins and ends.

* * * * *

(d) When drug addiction or

alcoholism is a contributing factor

material to the determination of

disability. (1) Your entitlement to

receive disability benefit payments ends

the month following the month in

which, regardless of the number of

entitlement periods you may have had

based on disability where drug

addiction or alcoholism is a

contributing factor material to the

determination of disability (as described

in § 404.1535)—

(i) You have received a total of 36

months of disability benefits. Not

included in these 36 months are months

in which treatment for your drug

addiction or alcoholism is not available,

months before March 1995, and months

for which your benefits were suspended

for any reason; or

(ii) Your benefits have been

suspended for 12 consecutive months

because of your failure to comply with

treatment requirements.

(2) For purposes other than payment

of your disability benefits, your period

of disability continues until the

termination month as explained in

§ 404.325.

5. Section 404.332 is amended by

adding a sentence to the end of

paragraph (b)(5) to read as follows:

§ 404.332 When wife’s and husband’s

benefits begin and end.

* * * * *

(b) * * *

(5) * * * Exception: Your benefits

will continue if the insured person was

entitled to disability benefits based on a

finding that drug addiction or

alcoholism was a contributing factor

material to the determination of his or

her disability (as described in

§ 404.1535), the insured person’s

benefits ended after 36 months of

benefits (see § 404.316(e)) or 12

consecutive months of suspension for

noncompliance with treatment (see

§ 404.316(f)), and but for the operation

of these provisions, the insured person

would remain entitled to benefits based

on disability.

* * * * *

6. Section 404.335 is amended by

removing the word ‘‘and’’ at the end of

paragraph (c)(2), adding the word ‘‘and’’

after the semicolon at the end of

paragraph (c)(3), and adding a new

paragraph (c)(4) to read as follows:

§ 404.335 Who is entitled to widow’s or

widower’s benefits.

* * * * *

(c) * * *

* * * * *

(4) You have not previously received

36 months of payments based on

disability when drug addiction or

alcoholism was a contributing factor

material to the determination of

disability (as described in § 404.1535),

regardless of the number of entitlement

periods you may have had, or your

current application for widow(er)’s

benefits is not based on a disability

where drug addiction or alcoholism is a

contributing factor material to the

determination of disability.

* * * * *

7. Section 404.337 is amended by

adding a new sentence at the end of

paragraph (b)(2) to read as follows:
8146 Federal Register / Vol. 60, No. 28 / Friday, February 10, 1995 / Rules and Regulations

§ 404.337 When widow’s and widower’s

benefits begin and end.

* * * * *

(2) * * * If your widow’s or

widower’s benefit is based on a finding

that drug addiction or alcoholism is a

contributing factor material to the

determination of disability as described

in § 404.1535, your entitlement to

benefits will terminate the month after

the 12th consecutive month of

suspension for noncompliance with

treatment or after 36 months of benefits

on that basis when treatment is

available regardless of the number of

entitlement periods you may have had,

unless you are otherwise disabled

without regard to drug addiction or

alcoholism.

* * * * *

8. Section 404.350 is amended by

redesignating the introductory text as

paragraph (a) and adding a heading to

it, redesignating former paragraphs (a)

through (e) as paragraphs (a)(1) through

(a)(5), and adding a new paragraph (b)

to read as follows:

§ 404.350 Who is entitled to child’s

benefits.

(a) General. * * *

* * * * *

(b) Entitlement preclusion for certain

disabled children. If you are a disabled

child as referred to in paragraph (a)(5)

of this section, and your disability was

based on a finding that drug addiction

or alcoholism was a contributing factor

material to the determination of

disability (as described in § 404.1535)

and your benefits ended after your

receipt of 36 months of benefits, you

will not be entitled to benefits based on

disability for any month following such

36 months regardless of the number of

entitlement periods you have had if, in

such following months, drug addiction

or alcoholism is a contributing factor

material to the later determination of

disability (as described in § 404.1535).

9. Section 404.352 is amended by

adding a new sentence to the end of

paragraph (b)(3), redesignating

paragraphs (c) and (d) as paragraphs (d)

and (e), and adding a new paragraph (c)

to read as follows:

§ 404.352 When child’s benefits begin and

end.

* * * * *

(b) * * *

(3) * * * Exception: Your benefits

will continue if the insured person was

entitled to disability benefits based on a

finding that drug addiction or

alcoholism was a contributing factor

material to the determination of his or

her disability (as described in

§ 404.1535), the insured person’s

benefits ended after 36 months of

payment (see § 404.316(e)) or 12

consecutive months of suspension for

noncompliance with treatment (see

§ 404.316(f)), and the insured person

remains disabled.

(c) If you are entitled to benefits as a

disabled child age 18 or over and your

disability is based on a finding that drug

addiction or alcoholism was a

contributing factor material to the

determination of disability (as described

in § 404.1535), your benefits also will

terminate under the following

conditions:

(1) If your benefits have been

suspended for a period of 12

consecutive months for failure to

comply with treatment, your benefits

will terminate with the month following

the 12 months unless you are otherwise

disabled without regard to drug

addiction or alcoholism (see

§ 404.470(c)).

(2) If you have received 36 months of

benefits on that basis when treatment is

available, regardless of the number of

entitlement periods you may have had,

your benefits will terminate with the

month following such 36-month

payment period unless you are

otherwise disabled without regard to

drug addiction or alcoholism.

* * * * *

10. The authority citation for subpart

E of part 404 is revised to read as

follows:

Authority: Secs. 202, 203, 204(a) and (e),

205(a) and (c), 222(b), 223(e), 224, 225, 227,

and 1102 of the Social Security Act; 42

U.S.C. 402, 403, 404(a) and (e), 405(a) and (c),

422(b), 423(e), 424, 425, 427, and 1302.

11. Section 404.402 is amended by

revising paragraph (a), introductory text,

to read as follows:

§ 404.402 Interrelationship of deductions,

reductions, adjustments, and nonpayment

of benefits.

(a) Deductions, Reductions,

Adjustment. Deductions because of

earnings or work (see §§ 404.415 and

404.417); failure to have a child ‘‘in her

care’’ (see § 404.421); refusal to accept

rehabilitation services (see § 404.422); as

a penalty for failure to timely report

noncovered work outside the United

States, failure by a woman to report that

she no longer has a child ‘‘in her care,’’

or failure to timely report earnings (see

§§ 404.451 and 404.453); because of

unpaid maritime taxes (see § 404.457);

or nonpayments because of drug

addiction and alcoholism to individuals

other than an insured individual who

are entitled to benefits on the insured

individual’s earnings record are made:

* * * * *

12. A new § 404.470 is added to read

as follows:

§ 404.470 Nonpayment of disability

benefits due to noncompliance with rules

regarding treatment for drug addiction or

alcoholism.

(a) Suspension of monthly benefits. (1)

For an individual entitled to benefits

based on a disability (§ 404.1505) and

for whom drug addiction or alcoholism

is a contributing factor material to the

determination of disability (as described

in § 404.1535), monthly benefits will be

suspended beginning with the first

month after we notify the individual in

writing that he or she has been

determined not to be in compliance

with the treatment requirements for

such individuals (§ 404.1536).

(2) This rule applies to all individuals

entitled to disability benefits

(§ 404.315), widow(er)’s benefits

(§ 404.335), and child’s benefits based

on a disability (§ 404.350) effective with

benefits paid in months beginning on or

after March 1, 1995.

(3) Benefit payments to any other

person who is entitled on the basis of a

disabled wage earner’s entitlement to

disability benefits are payable as though

the disabled wage earner were receiving

benefits.

(b) Resumption of monthly benefits.

The payment of benefits may be

resumed only after an individual

demonstrates and maintains compliance

with appropriate treatment

requirements for:

(1) 2 consecutive months for the first

determination of noncompliance;

(2) 3 consecutive months for the

second determination of

noncompliance; and

(3) 6 consecutive months for the third

and all subsequent determinations of

noncompliance.

(c) Termination of benefits. (1) A

suspension of benefit payments due to

noncompliance with the treatment

requirements for 12 consecutive months

will result in termination of benefits

effective with the first month following

the 12th month of suspension of

benefits.

(2) Benefit payments to any other

person who is entitled on the basis of a

disabled wage earner’s entitlement to

disability benefits are payable as though

the disabled wage earner were receiving

benefits.

13. A new § 404.480 is added to read

as follows:

§ 404.480 Paying benefits in installments:

Drug addiction or alcoholism.

(a) General. For disabled beneficiaries

who receive benefit payments through a

representative payee because drug
Federal Register / Vol. 60, No. 28 / Friday, February 10, 1995 / Rules and Regulations 8147

addiction or alcoholism is a

contributing factor material to the

determination of disability (as described

in § 404.1535), certain amounts due the

beneficiary for a past period will be paid

in installments. The amounts subject to

payment in installments include:

(1) benefits due but unpaid which

accrued prior to the month payment was

effectuated;

(2) benefits due but unpaid which

accrued during a period of suspension

for which the beneficiary was

subsequently determined to have been

eligible; and

(3) any adjustment to benefits which

results in an accrual of unpaid benefits.

(b) Installment formula. Except as

provided in paragraph (c) of this

section, the amount of the installment

payment in any month is limited so that

the sum of (1) the amount due for a past

period (and payable under paragraph (a)

of this section) paid in such month and

(2) the amount of any benefit due for the

preceding month under such

entitlement which is payable in such

month, does not exceed two times the

amount of the beneficiary’s benefit

payment for the preceding month. In

counting the amount of the beneficiary’s

benefit payment for the previous month,

no reductions or deductions under this

title are taken into account.

(c) Exception to installment

limitation. An exception to the

installment payment limitation in

paragraph (b) of this section can be

granted for the first month in which a

beneficiary accrues benefit amounts

subject to payment in installments if the

beneficiary has unpaid housing

expenses which result in a high risk of

homelessness for the beneficiary. In that

case, the benefit payment may be

increased by the amount of the unpaid

housing expenses so long as that

increase does not exceed the amount of

benefits which accrued during the most

recent period of nonpayment. We

consider a person to be at risk of

homelessness if continued nonpayment

of the outstanding housing expenses is

likely to result in the person losing his

or her place to live or if past

nonpayment of housing expenses has

resulted in the person having no

appropriate personal place to live. In

determining whether this exception

applies, we will ask for evidence of

outstanding housing expenses that

shows that the person is likely to lose

or has already lost his or her place to

live. For purposes of this section,

homelessness is the state of not being

under the control of any public

institution and having no appropriate

personal place to live. Housing expenses

include charges for all items required to

maintain shelter (for example, mortgage

payments, rent, heating fuel, and

electricity).

(d) Payment through a representative

payee. If the beneficiary does not have

a representative payee, payment of

amounts subject to installments cannot

be made until a representative payee is

selected.

(e) Underpaid beneficiary no longer

entitled. In the case of a beneficiary who

is no longer currently entitled to

monthly payments, but to whom

amounts defined in paragraph (a) are

still owing, we will treat such

beneficiary’s monthly benefit for the last

month of entitlement as the

beneficiary’s benefit for the preceding

month and continue to make

installment payments of such benefits

through a representative payee.

(f) Beneficiary currently not receiving

Social Security benefits because of

suspension for noncompliance with

treatment. If a beneficiary is currently

not receiving benefits because his or her

benefits have been suspended for

noncompliance with treatment (as

defined in § 404.1536), the payment of

amounts under paragraph (a) will stop

until the beneficiary has demonstrated

compliance with treatment as described

in § 404.470 and will again commence

with the first month the beneficiary

begins to receive benefit payments.

(g) Underpaid beneficiary deceased.

Upon the death of a beneficiary, any

remaining unpaid amounts as defined in

paragraph (a) will be treated as

underpayments in accordance with

§ 404.503(b).

14. The authority citation for subpart

J of part 404 is revised to read as

follows:

Authority: Secs. 201(j), 205(a), (b), and (d)

through (h), 221(d), 225, and 1102 of the

Social Security Act; 31 U.S.C. 3720A; 42

U.S.C. 401(j), 405(a), (b), and (d) through (h),

421(d), 425, and 1302; sec. 5 of Pub. L. 97–

455, 96 Stat. 2500; sec. 6 of Pub. L. 98–460,

98 Stat. 1802.

15. Section 404.902 is amended by

revising paragraph (o), redesignating

paragraphs (p) through (v) as paragraphs

(q) through (w), and adding a new

paragraph (p) to read as follows:

§ 404.902 Administrative actions that are

initial determinations.

* * * * *

(o) Whether the payment of your

benefits will be made, on your behalf, to

a representative payee, unless you are

under age 18, legally incompetent, or

you are disabled and drug addiction or

alcoholism is a contributing factor

material to the determination of

disability (as described in § 404.1535);

(p) Your drug addiction or

alcoholism;

* * * * *

16. The authority citation for subpart

P of part 404 is revised to read as

follows:

Authority: Secs. 202, 205(a), (b), and (d)

through (h), 216(i), 221(a) and (i), 222(c), 223,

225, and 1102 of the Social Security Act; 42

U.S.C. 402, 405 (a), (b), and (d) through (h),

416(i), 421(a) and (i), 422(c), 423, 425, and

1302.

17. A new § 404.1535 is added to read

as follows:

§ 404.1535 How we will determine whether

your drug addiction or alcoholism is a

contributing factor material to the

determination of disability.

(a) General. If we find that you are

disabled and have medical evidence of

your drug addiction or alcoholism, we

must determine whether your drug

addiction or alcoholism is a

contributing factor material to the

determination of disability.

(b) Process we will follow when we

have medical evidence of your drug

addiction or alcoholism.

(1) The key factor we will examine in

determining whether drug addiction or

alcoholism is a contributing factor

material to the determination of

disability is whether we would still find

you disabled if you stopped using drugs

or alcohol.

(2) In making this determination, we

will evaluate which of your current

physical and mental limitations, upon

which we based our current disability

determination, would remain if you

stopped using drugs or alcohol and then

determine whether any or all of your

remaining limitations would be

disabling.

(i) If we determine that your

remaining limitations would not be

disabling, we will find that your drug

addiction or alcoholism is a

contributing factor material to the

determination of disability.

(ii) If we determine that your

remaining limitations are disabling, you

are disabled independent of your drug

addiction or alcoholism and we will

find that your drug addiction or

alcoholism is not a contributing factor

material to the determination of

disability.

18. A new § 404.1536 is added to read

as follows:

§ 404.1536 Treatment required for

individuals whose drug addiction or

alcoholism is a contributing factor material

to the determination of disability.

(a) If we determine that you are

disabled and drug addiction or

alcoholism is a contributing factor
8148 Federal Register / Vol. 60, No. 28 / Friday, February 10, 1995 / Rules and Regulations

material to the determination of

disability (as described in § 404.1535),

you must avail yourself of appropriate

treatment for your drug addiction or

alcoholism at an institution or facility

approved by us when this treatment is

available and make progress in your

treatment. Generally, you are not

expected to pay for this treatment. You

will not be paid benefits for any month

after the month we have notified you in

writing that—

(1) You did not comply with the

terms, conditions and requirements of

the treatment which has been made

available to you; or

(2) You did not avail yourself of the

treatment after you had been notified

that it is available to you.

(b) If your benefits are suspended for

failure to comply with treatment

requirements, your benefits can be

reinstated in accordance with the rules

in § 404.470.

19. A new § 404.1537 is added to read

as follows:

§ 404.1537 What we mean by appropriate

treatment.

By appropriate treatment, we mean

treatment for drug addiction or

alcoholism that serves the needs of the

individual in the least restrictive setting

possible consistent with your treatment

plan. These settings range from

outpatient counseling services through a

variety of residential treatment settings

including acute detoxification, shortterm intensive residential treatment,

long-term therapeutic residential

treatment, and long-term recovery

houses. Appropriate treatment is

determined with the involvement of a

State licensed or certified addiction

professional on the basis of a detailed

assessment of the individual’s

presenting symptomatology,

psychosocial profile, and other relevant

factors. This assessment may lead to a

determination that more than one

treatment modality is appropriate for

the individual. The treatment will be

provided or overseen by an approved

institution or facility. This treatment

may include (but is not limited to)—

(a) Medical examination and medical

management;

(b) Detoxification;

(c) Medication management to

include substitution therapy (e.g.,

methadone);

(d) Psychiatric, psychological,

psychosocial, vocational, or other

substance abuse counseling in a

residential or outpatient treatment

setting; or

(e) Relapse prevention.

20. A new § 404.1538 is added to read

as follows:

§ 404.1538 What we mean by approved

institutions or facilities.

Institutions or facilities that we may

approve include—

(a) An institution or facility that

furnishes medically recognized

treatment for drug addiction or

alcoholism in conformity with

applicable Federal or State laws and

regulations;

(b) An institution or facility used by

or licensed by an appropriate State

agency which is authorized to refer

persons for treatment of drug addiction

or alcoholism;

(c) State licensed or certified care

providers;

(d) Programs accredited by the

Commission on Accreditation for

Rehabilitation Facilities (CARF) and/or

the Joint Commission for the

Accreditation of Healthcare

Organizations (JCAHO) for the treatment

of drug addiction or alcoholism;

(e) Medicare or Medicaid certified

care providers; or

(f) Nationally recognized self-help

drug addiction or alcoholism recovery

programs (e.g., Alcoholics Anonymous

or Narcotics Anonymous) when

participation in these programs is

specifically prescribed by a treatment

professional at an institution or facility

described in paragraphs (a) through (e)

of this section as part of an individual’s

treatment plan.

21. A new § 404.1539 is added to read

as follows:

§ 404.1539 How we consider whether

treatment is available.

Our determination about whether

treatment is available to you for your

drug addiction or your alcoholism will

depend upon—

(a) The capacity of an approved

institution or facility to admit you for

appropriate treatment;

(b) The location of the approved

institution or facility, or the place where

treatment, services or resources could be

provided to you;

(c) The availability and cost of

transportation for you to the place of

treatment;

(d) Your general health, including

your ability to travel and capacity to

understand and follow the prescribed

treatment;

(e) Your particular condition and

circumstances; and

(f) The treatment that is prescribed for

your drug addiction or alcoholism.

22. A new § 404.1540 is added to read

as follows:

§ 404.1540 Evaluating compliance with the

treatment requirements.

(a) General. Generally, we will

consider information from the treatment

institution or facility to evaluate your

compliance with your treatment plan.

The treatment institution or facility will:

(1) Monitor your attendance at and

participation in treatment sessions;

(2) Provide reports of the results of

any clinical testing (such as,

hematological or urinalysis studies for

individuals with drug addiction and

hematological studies and breath

analysis for individuals with

alcoholism) when such tests are likely

to yield important information;

(3) Provide observational reports from

the treatment professionals familiar

with your individual case (subject to

verification and Federal confidentiality

requirements); or

(4) Provide their assessment or views

on your noncompliance with treatment

requirements.

(b) Measuring progress. Generally, we

will consider information from the

treatment institution or facility to

evaluate your progress in completing

your treatment plan. Examples of

milestones for measuring your progress

with the treatment which has been

prescribed for your drug addiction or

alcoholism may include (but are not

limited to)—

(1) Abstinence from drug or alcohol

use (initial progress may include

significant reduction in use);

(2) Consistent attendance at and

participation in treatment sessions;

(3) Improved social functioning and

levels of gainful activity;

(4) Participation in vocational

rehabilitation activities; or

(5) Avoidance of criminal activity.

23. A new § 404.1541 is added to read

as follows:

§ 404.1541 Establishment and use of

referral and monitoring agencies.

We will contract with one or more

agencies in each of the States, Puerto

Rico and the District of Columbia to

provide services to individuals whose

disabilities are based on a determination

that drug addiction or alcoholism is a

contributing factor material to the

determination of disability (as described

in § 404.1535) and to submit

information to us which we will use to

make decisions about these individuals’

benefits. These agencies will be known

as referral and monitoring agencies.

Their duties and responsibilities

include (but are not limited to)—

(a) Identifying appropriate treatment

placements for individuals we refer to

them;

(b) Referring these individuals for

treatment;

(c) Monitoring the compliance and

progress with the appropriate treatment

of these individuals; and
Federal Register / Vol. 60, No. 28 / Friday, February 10, 1995 / Rules and Regulations 8149

(d) Promptly reporting to us any

individual’s failure to comply with

treatment requirements as well as

failure to achieve progress through the

treatment.

For the reasons set forth in the

preamble, part 416, subparts B, E, F, I,

K, M, N, and Q of chapter III of title 20

of the Code of Federal Regulations are

amended as set forth below.

PART 416—SUPPLEMENTAL

SECURITY INCOME FOR THE AGED,

BLIND, AND DISABLED

24. The authority citation for subpart

B of part 416 continues to read as

follows:

Authority: Secs. 1102, 1110(b), 1602, 1611,

1614, 1615(c), 1619(a), 1631, and 1634 of the

Social Security Act; 42 U.S.C. 1302, 1310(b),

1381a, 1382, 1382c, 1382d(c), 1382h(a), 1383,

and 1383c; secs. 211 and 212 of Pub. L. 93–

66, 87 Stat. 154 and 155; sec. 502(a) of Pub.

L. 94–241, 90 Stat. 268; and sec. 2 of Pub.

L. 99–643, 100 Stat. 3574.

25. Section 416.202 is amended by

redesignating paragraph (e) as paragraph

(f) and adding a new paragraph (e) to

read as follows:

§ 416.202 Who may get SSI benefits.

* * * * *

(e) You are disabled, drug addiction

or alcoholism is a contributing factor

material to the determination of

disability (see § 416.935), and you have

not previously received a total of 36

months of Social Security benefit

payments when appropriate treatment

was available or 36 months of SSI

benefits on the basis of disability where

drug addiction or alcoholism was a

contributing factor material to the

determination of disability.

* * * * *

26. Section 416.213 is revised to read

as follows:

§ 416.213 You are disabled and drug

addiction or alcoholism is a contributing

factor material to the determination of

disability.

(a) If you do not comply with

treatment requirements. If you receive

benefits because you are disabled and

drug addiction or alcoholism is a

contributing factor material to the

determination of disability (see

§ 416.935), you must avail yourself of

any appropriate treatment for your drug

addiction or alcoholism at an approved

institution or facility when this

treatment is available and make progress

in your treatment. You are not eligible

for SSI benefits beginning with the

month after the month you are notified

in writing that we determined that you

have failed to comply with the

treatment requirements. If your benefits

are suspended because you failed to

comply with treatment requirements,

you will not be eligible to receive

benefits until you have demonstrated

compliance with treatment for a period

of time, as specified in § 416.1326. The

rules regarding treatment for drug

addiction and alcoholism are in subpart

I of this part.

(b) If you previously received 36

months of SSI or Social Security

benefits. You are not eligible for SSI

benefits by reason of disability on the

basis of drug addiction or alcoholism as

described in § 416.935 if—

(1) You previously received a total of

36 months of SSI benefits on the basis

of disability and drug addiction or

alcoholism was a contributing factor

material to the determination of

disability for months beginning March

1995, as described in § 416.935. Not

included in these 36 months are months

before March 1995 and months for

which your benefits were suspended for

any reason. The 36-month limit is no

longer effective for months beginning

after September 2004; or

(2) You previously received a total of

36 months of Social Security benefits

counted in accordance with the

provisions of § 404.316, 404.337, and

404.352 by reason of disability on the

basis of drug addiction or alcoholism as

described in § 404.1535.

27. Section 416.262 is amended by

removing the word ‘‘and’’ at the end of

paragraph (c), redesignating paragraph

(d) as paragraph (e), and adding a new

paragraph (d) to read as follows:

§ 416.262 Eligibility requirements for

special SSI cash benefits.

* * * * *

(d) If your disability is based on a

determination that drug addiction or

alcoholism is a contributing factor

material to the determination of

disability as described in § 416.935, you

have not yet received SSI cash benefits,

special SSI cash benefits, or special SSI

eligibility status for a total of 36 months,

or Social Security benefit payments

when treatment was available for a total

of 36 months; and

* * * * *

28. Section 416.265 is amended by

revising paragraph (a) to read as follows:

§ 416.265 Requirements for the special SSI

eligibility status.

* * * * *

(a) You are blind or you continue to

have a disabling impairment which, if

drug addiction or alcoholism is a

contributing factor material to the

determination of disability as described

in § 416.935, has not resulted in your

receiving SSI cash benefits, special SSI

cash benefits, or special SSI eligibility

status for a total of 36 months, or Social

Security benefit payments when

treatment was available for a total of 36

months;

* * * * *

29. The authority citation for subpart

E of part 416 is revised to read as

follows:

Authority: Secs. 1102, 1601, 1602, 1611(c),

and (e), and 1631(a) through (d) and (g) of the

Social Security Act; 42 U.S.C. 1302, 1381,

1381a, 1382 (c) and (e), and 1383 (a) through

(d) and (g).

30. Section 416.535 is amended by

redesignating paragraphs (b) and (c) as

paragraphs (d) and (e) and adding a new

paragraph (b) to read as follows:

§ 416.535 Underpayments and

overpayments.

* * * * *

(b) Additional rules for individuals

whose drug addiction or alcoholism is a

contributing factor material to the

determination of disability. When an

individual whose drug addiction or

alcoholism is a contributing factor

material to the determination of

disability, as described in § 416.935,

receives less than the correct amount of

SSI benefits, adjustment is effected as

described in §§ 416.542 and 416.543

and the additional rule described in

§ 416.544 applies.

* * * * *

31. Section 416.542 is amended by

revising paragraph (a) to read as follows:

§ 416.542 Underpayments—to whom

underpaid amount is payable.

(a) Underpaid recipient alive—

underpayment payable. (1) If an

underpaid recipient is alive, the amount

of any underpayment due him or her

will be paid to him or her in a separate

payment or by increasing the amount of

his or her monthly payment.

(2) If an underpaid recipient whose

drug addiction or alcoholism is a

contributing factor material to the

determination of disability (as described

in § 416.935) is alive, the amount of any

underpayment due the recipient will be

paid through his or her representative

payee in installment payments. No

underpayment may be paid directly to

the recipient. If the recipient dies before

we have paid all benefits due through

his or her representative payee, we will

follow the rules which apply to

underpayments for the payment of any

remaining amounts due to any eligible

survivor of a deceased recipient as

described in paragraph (b) of this

section.

* * * * *

32. A new § 416.544 is added to read

as follows:
8150 Federal Register / Vol. 60, No. 28 / Friday, February 10, 1995 / Rules and Regulations

§ 416.544 Paying benefits in installments:

Drug addiction or alcoholism.

(a) General. For disabled recipients

who receive benefit payments through a

representative payee because drug

addiction or alcoholism is a

contributing factor material to the

determination of disability, certain

amounts due the recipient for a past

period will be paid in installments. The

amounts subject to payment in

installments include:

(1) benefits due but unpaid which

accrued prior to the month payment was

effectuated;

(2) benefits due but unpaid which

accrued during a period of suspension

for which the recipient was

subsequently determined to have been

eligible; and

(3) any adjustment to benefits which

results in an accrual of unpaid benefits.

(b) Installment formula. Except as

provided in paragraph (c) of this

section, the amount of the installment

payment in any month is limited so that

the sum of (1) the amount due for a past

period (and payable under paragraph (a)

of this section) paid in such month and

(2) the amount of any current benefit

due cannot exceed twice the Federal

Benefit Rate plus any federallyadministered State supplementation

payable to an eligible individual for the

preceding month.

(c) Exception to installment

limitation. An exception to the

installment payment limitation in

paragraph (b) of this section can be

granted for the first month in which a

recipient accrues benefit amounts

subject to payment in installments if the

recipient has unpaid housing expenses

which result in a high risk of

homelessness for the recipient. In that

case, the benefit payment may be

increased by the amount of the unpaid

housing expenses so long as that

increase does not exceed the amount of

benefits which accrued during the most

recent period of nonpayment. We

consider a person to be at risk of

homelessness if continued nonpayment

of the outstanding housing expenses is

likely to result in the person losing his

or her place to live or if past

nonpayment of housing expenses has

resulted in the person having no

appropriate personal place to live. In

determining whether this exception

applies, we will ask for evidence of

outstanding housing expenses that

shows that the person is likely to lose

or has already lost his or her place to

live. For purposes of this section,

homelessness is the state of not being

under the control of any public

institution and having no appropriate

personal place to live. Housing expenses

include charges for all items required to

maintain shelter (for example, mortgage

payments, rent, heating fuel, and

electricity).

(d) Payment through a representative

payee. If the recipient does not have a

representative payee, payment of

amounts subject to installments cannot

be made until a representative payee is

selected.

(e) Underpaid recipient no longer

eligible. In the case of a recipient who

is no longer currently eligible for

monthly payments, but to whom

amounts defined in paragraph (a) of this

section are still owing, we will continue

to make installment payments of such

benefits through a representative payee.

(f) Recipient currently not receiving

SSI benefits because of suspension for

noncompliance with treatment. If a

recipient is currently not receiving SSI

benefits because his or her benefits have

been suspended for noncompliance

with treatment (as defined in § 416.936),

the payment of amounts under

paragraph (a) of this section will stop

until the recipient has demonstrated

compliance with treatment as described

in § 416.1326 and will again commence

with the first month the recipient begins

to receive benefits.

(g) Underpaid recipient deceased.

Upon the death of a recipient, any

remaining unpaid amounts as defined in

paragraph (a) of this section will be

treated as underpayments in accordance

with § 416.542(b).

33. Section 416.558 is amended by

revising paragraph (a) and adding a new

paragraph (c) to read as follows:

§ 416.558 Notice relating to overpayments

and underpayments.

(a) Notice of overpayment and

underpayment determination.

Whenever a determination concerning

the amount paid and payable for any

period is made and it is found that, with

respect to any month in the period,

more or less than the correct amount

was paid, written notice of the correct

and incorrect amounts for each such

month in the period will be sent to the

individual against whom adjustment or

recovery of the overpayment as defined

in § 416.537(a) may be effected or to

whom the underpayment as defined in

§§ 416.536 and any amounts subject to

installment payments as defined in

§ 416.544 would be payable,

notwithstanding the fact that part or all

of the underpayment must be withheld

in accordance with § 416.543. When

notifying an individual of a

determination of overpayment, the

Social Security Administration will, in

the notice, also advise the individual

that adjustment or recovery is required,

as set forth in § 416.571, except under

certain specified conditions, and of his

or her right to request waiver of

adjustment or recovery of the

overpayment under the provisions of

§ 416.550.

* * * * *

(c) Notice relating to installment

payments to individuals whose drug

addiction or alcoholism is a

contributing factor material to the

determination of disability. Whenever a

determination is made concerning the

amount of any benefits due for a period

that must be paid in installments, the

written notice will also explain the

amount of the installment payment and

when an increased initial installment

payment may be made (as described in

§ 416.544). This written notice will be

sent to the individual and his or her

representative payee.

34. The authority citation for subpart

F of part 416 continues to read as

follows:

Authority: Secs. 1102 and 1631(a)(2) and

(d)(1) of the Social Security Act; 42 U.S.C.

1302 and 1383(a)(2) and (d)(1).

35. Section 416.601 is amended by

revising the last sentence of paragraph

(b)(1) to read as follows:

§ 416.601 Introduction.

* * * * *

(b) Policy used to determine whether

to make representative payment. * * *

However, we must select a

representative payee for an individual

who is eligible for benefits solely on the

basis of disability if drug addiction or

alcoholism is a contributing factor

material to the determination of

disability.

* * * * *

36. Section 416.610 is amended by

revising paragraph (a)(3) to read as

follows:

§ 416.610 When payment will be made to a

representative payee.

(a) * * *

(3) Eligible for benefits solely on the

basis of disability and drug addiction or

alcoholism is a contributing factor

material to the determination of

disability.

* * * * *

37. The authority citation for subpart

I of part 416 is revised to read as

follows:

Authority: Secs. 1102, 1611, 1614(a), 1619,

1631 (a), (c), and (d)(1), and 1633 of the

Social Security Act; 42 U.S.C. 1302, 1382,

1382c(a), 1382h, 1383 (a), (c), and (d)(1), and

1383b; secs. 2, 5, 6, and 15 of Pub. L. 98–460,

98 Stat. 1794, 1801, 1802, and 1808.

38. Section 416.935 is revised to read

as follows:
Federal Register / Vol. 60, No. 28 / Friday, February 10, 1995 / Rules and Regulations 8151

§ 416.935 How we will determine whether

your drug addiction or alcoholism is a

contributing factor material to the

determination of disability.

(a) General. If we find that you are

disabled and have medical evidence of

your drug addiction or alcoholism, we

must determine whether your drug

addiction or alcoholism is a

contributing factor material to the

determination of disability, unless we

find that you are eligible for benefits

because of your age or blindness.

(b) Process we will follow when we

have medical evidence of your drug

addiction or alcoholism.

(1) The key factor we will examine in

determining whether drug addiction or

alcoholism is a contributing factor

material to the determination of

disability is whether we would still find

you disabled if you stopped using drugs

or alcohol.

(2) In making this determination, we

will evaluate which of your current

physical and mental limitations, upon

which we based our current disability

determination, would remain if you

stopped using drugs or alcohol and then

determine whether any or all of your

remaining limitations would be

disabling.

(i) If we determine that your

remaining limitations would not be

disabling, we will find that your drug

addiction or alcoholism is a

contributing factor material to the

determination of disability.

(ii) If we determine that your

remaining limitations are disabling, you

are disabled independent of your drug

addiction or alcoholism and we will

find that your drug addiction or

alcoholism is not a contributing factor

material to the determination of

disability.

39. Section 416.936 is revised to read

as follows:

§ 416.936 Treatment required for

individuals whose drug addiction or

alcoholism is a contributing factor material

to the determination of disability.

(a) If we determine that you are

disabled and drug addiction or

alcoholism is a contributing factor

material to the determination of

disability, you must avail yourself of

appropriate treatment for your drug

addiction or alcoholism at an institution

or facility approved by us when this

treatment is available and make progress

in your treatment. Generally, you are

not expected to pay for this treatment.

You will not be paid benefits for any

month after the month we have notified

you in writing that—

(1) You did not comply with the

terms, conditions and requirements of

the treatment which has been made

available to you; or

(2) You did not avail yourself of the

treatment after you had been notified

that it is available to you.

(b) If your benefits are suspended for

failure to comply with treatment

requirements, your benefits can be

reinstated in accordance with the rules

in § 416.1326.

40. Section 416.937 is revised to read

as follows:

§ 416.937 What we mean by appropriate

treatment.

By appropriate treatment, we mean

treatment for drug addiction or

alcoholism that serves the needs of the

individual in the least restrictive setting

possible consistent with your treatment

plan. These settings range from

outpatient counseling services through a

variety of residential treatment settings

including acute detoxification, shortterm intensive residential treatment,

long-term therapeutic residential

treatment, and long-term recovery

houses. Appropriate treatment is

determined with the involvement of a

State licensed or certified addiction

professional on the basis of a detailed

assessment of the individual’s

presenting symptomatology,

psychosocial profile, and other relevant

factors. This assessment may lead to a

determination that more than one

treatment modality is appropriate for

the individual. The treatment will be

provided or overseen by an approved

institution or facility. This treatment

may include (but is not limited to)—

(a) Medical examination and medical

management;

(b) Detoxification;

(c) Medication management to

include substitution therapy (e.g.,

methadone);

(d) Psychiatric, psychological,

psychosocial, vocational, or other

substance abuse counseling in a

residential or outpatient treatment

setting; or

(e) Relapse prevention.

41. Section 416.938 is revised to read

as follows:

§ 416.938 What we mean by approved

institutions or facilities.

Institutions or facilities that we may

approve include—

(a) An institution or facility that

furnishes medically recognized

treatment for drug addiction or

alcoholism in conformity with

applicable Federal or State laws and

regulations;

(b) An institution or facility used by

or licensed by an appropriate State

agency which is authorized to refer

persons for treatment of drug addiction

or alcoholism;

(c) State licensed or certified care

providers;

(d) Programs accredited by the

Commission on Accreditation for

Rehabilitation Facilities (CARF) and/or

the Joint Commission for the

Accreditation of Healthcare

Organizations (JCAHO) for the treatment

of drug addiction or alcoholism;

(e) Medicare or Medicaid certified

care providers; or

(f) Nationally recognized self-help

drug addiction or alcoholism recovery

programs (e.g., Alcoholics Anonymous

or Narcotics Anonymous) when

participation in these programs is

specifically prescribed by a treatment

professional at an institution or facility

described in paragraphs (a) through (e)

of this section as part of an individual’s

treatment plan.

42. Section 416.939 is revised to read

as follows:

§ 416.939 How we consider whether

treatment is available.

Our determination about whether

treatment is available to you for your

drug addiction or your alcoholism will

depend upon—

(a) The capacity of an approved

institution or facility to admit you for

appropriate treatment;

(b) The location of the approved

institution or facility, or the place where

treatment, services or resources could be

provided to you;

(c) The availability and cost of

transportation for you to the place of

treatment;

(d) Your general health, including

your ability to travel and capacity to

understand and follow the prescribed

treatment;

(e) Your particular condition and

circumstances; and

(f) The treatment that is prescribed for

your drug addiction or alcoholism.

43. A new § 416.940 is added to read

as follows:

§ 416.940 Evaluating compliance with the

treatment requirements.

(a) General. Generally, we will

consider information from the treatment

institution or facility to evaluate your

compliance with your treatment plan.

The treatment institution or facility

will—

(1) Monitor your attendance at and

participation in treatment sessions;

(2) Provide reports of the results of

any clinical testing (such as,

hematological or urinalysis studies for

individuals with drug addiction and

hematological studies and breath

analysis for individuals with
8152 Federal Register / Vol. 60, No. 28 / Friday, February 10, 1995 / Rules and Regulations

alcoholism) when such tests are likely

to yield important information;

(3) Provide observational reports from

the treatment professionals familiar

with your individual case (subject to

verification and Federal confidentiality

requirements); or

(4) Provide their assessment or views

on your noncompliance with treatment

requirements.

(b) Measuring progress. Generally, we

will consider information from the

treatment institution or facility to

evaluate your progress in completing

your treatment plan. Examples of

milestones for measuring your progress

with the treatment which has been

prescribed for your drug addiction or

alcoholism may include (but are not

limited to)—

(1) Abstinence from drug or alcohol

use (initial progress may include

significant reduction in use);

(2) Consistent attendance at and

participation in treatment sessions;

(3) Improved social functioning and

levels of gainful activity;

(4) Participation in vocational

rehabilitation activities; or

(5) Avoidance of criminal activity.

44. A new § 416.941 is added to read

as follows:

§ 416.941 Establishment and use of

referral and monitoring agencies.

We will contract with one or more

agencies in each of the States and the

District of Columbia to provide services

to individuals whose disabilities are

based on a determination that drug

addiction or alcoholism is a

contributing factor material to the

determination of disability (as described

in § 416.935) and to submit information

to us which we will use to make

decisions about these individuals’

benefits. These agencies will be known

as referral and monitoring agencies.

Their duties and responsibilities

include (but are not limited to)—

(a) Identifying appropriate treatment

placements for individuals we refer to

them;

(b) Referring these individuals for

treatment;

(c) Monitoring the compliance and

progress with the appropriate treatment

of these individuals; and

(d) Promptly reporting to us any

individual’s failure to comply with

treatment requirements as well as

failure to achieve progress through the

treatment.

45. The authority citation for subpart

K of part 416 continues to read as

follows:

Authority: Secs. 1102, 1602, 1611, 1612,

1613, 1614(f), 1621, and 1631 of the Social

Security Act; 42 U.S.C. 1302, 1381a, 1382,

1382a, 1382b, 1382c(f), 1382j, and 1383; sec.

211 of Pub. L. 93–66, 87 Stat. 154.

46. Section 416.1123 is amended by

revising paragraph (d) to read as

follows:

§ 416.1123 How we count unearned

income.

* * * * *

(d) Retroactive monthly social security

benefits. We count retroactive monthly

social security benefits according to the

rule in paragraph (d)(1) of this section,

unless the exception in paragraph (d)(2)

of this section applies:

(1) Periods for which SSI payments

have been made. When you file an

application for social security benefits

and retroactive monthly social security

benefits are payable on that application

for a period for which you also received

SSI payments (including federallyadministered State supplementary

payments), we count your retroactive

monthly social security benefits as

unearned income received in that

period. Rather than reducing your SSI

payments in months prior to your

receipt of a retroactive monthly social

security benefit, we will reduce the

retroactive social security benefits by an

amount equal to the amount of SSI

payments (including federallyadministered State supplementary

payments) that we would not have paid

to you if your social security benefits

had been paid when regularly due

rather than retroactively (see

§ 404.408b(b)). If a balance is due you

from your retroactive social security

benefits after this reduction, for SSI

purposes we will not count the balance

as unearned income in a subsequent

month in which you receive it. This is

because your social security benefits

were used to determine the amount of

the reduction. This exception to the

unearned income counting rule does not

apply to any monthly social security

benefits for a period for which you did

not receive SSI.

(2) Social security disability benefits

where drug addiction or alcoholism is a

contributing factor material to the

determination of disability. If your

retroactive social security benefits must

be paid in installments because of the

limitations on paying lump sum

retroactive benefits to disabled

recipients whose drug addiction or

alcoholism is a contributing factor

material to the determination of

disability as described in § 404.480, we

will count the total of such retroactive

social security benefits as unearned

income in the first month such

installments are paid, except to the

extent the rule in paragraph (d)(1) of

this section would provide that such

benefits not be counted.

* * * * *

47. The authority citation for subpart

M of part 416 continues to read as

follows:

Authority: Secs. 1102, 1611 through 1615,

1619, and 1631 of the Social Security Act; 42

U.S.C. 1302, 1382 through 1382d, 1382h, and

1383.

48. Section 416.1326 is revised to read

as follows:

416.1326 Suspension for failure to comply

with treatment for drug addiction or

alcoholism.

(a) Basis for Suspension. If you are

disabled and drug addiction or

alcoholism is a contributing factor

material to the determination of

disability as described in § 416.935, we

will refer you to appropriate treatment

as defined in § 416.937. You will not be

an eligible individual and we will

suspend your benefits if you do not

comply with the terms, conditions and

requirements of treatment prescribed by

the institution or facility. (See § 416.940

which explains how we evaluate

compliance with treatment.)

(b) Date of Suspension. We will

suspend your benefits for a period

starting with the first month after we

notify you in writing that you failed to

comply with prescribed treatment.

(c) Resumption of Benefits. If you are

complying with prescribed treatment

and are otherwise eligible for benefits,

we will resume benefits effective with

the first day of the month after you

demonstrate and maintain compliance

with appropriate treatment for these

periods—

(1) 2 consecutive months for the first

determination of noncompliance;

(2) 3 consecutive months for the

second determination of

noncompliance; and

(3) 6 consecutive months for the third

and all subsequent determinations of

noncompliance.

49. Section 416.1331 is amended by

adding new paragraphs (c), (d), and (e)

to read as follows:

§ 416.1331 Termination of your disability

or blindness payments.

* * * * *

(c) When benefits terminate due to 12

consecutive suspension months for

failure to comply with treatment for

drug addiction or alcoholism. If you are

disabled and drug addiction or

alcoholism is a contributing factor

material to the determination of

disability as described in § 416.935,

your benefits will terminate after 12

consecutive months of suspension for
Federal Register / Vol. 60, No. 28 / Friday, February 10, 1995 / Rules and Regulations 8153

noncompliance with treatment

requirements as described in § 416.1326.

(d) When benefits terminate due to

payment of 36 months of benefits based

on disability when drug addiction or

alcoholism is a contributing factor

material to the determination of

disability. If you are disabled and drug

addiction or alcoholism is a

contributing factor material to the

determination of disability as described

in § 416.935, your benefits will

terminate after you receive a total of 36

months of SSI benefits. The 36-month

limit is no longer effective for benefits

for months beginning after September

2004.

(e) Months we count in determining

the 36 months of benefits when drug

addiction or alcoholism is a

contributing factor material to the

determination of disability. Beginning

March 1995, we will count all months

for which you were paid an SSI benefit,

a federally-administered State

supplement, a special SSI cash benefit,

or you were in special SSI eligibility

status, toward the 36 months described

in paragraph (d) of this section. Months

for which you were not eligible for

benefits will not count toward the 36

months.

50. Section 416.1335 is revised to read

as follows:

§ 416.1335 Termination due to continuous

suspension.

We will terminate your eligibility for

benefits following 12 consecutive

months of benefit suspension for any

reason beginning with the first month

you were no longer eligible for regular

SSI cash benefits, federallyadministered State supplementation,

special SSI cash benefits described in

§ 416.262, or special SSI eligibility

status described in § 416.265. We will

count the 12-month suspension period

either from the start of the first month

you are no longer receiving your cash

benefits (see § 416.1321(a)) or the start

of the month after the month your

special SSI eligibility status described in

§ 416.265 ended. This termination is

effective with the start of the 13th

month after the suspension began.

51. The authority citation for subpart

N of part 416 continues to read as

follows:

Authority: Secs. 1102, 1631, and 1633 of

the Social Security Act; 42 U.S.C. 1302, 1383,

and 1383b.

52. Section 416.1402 is amended by

revising paragraph (d) to read as

follows:

§ 416.1402 Administrative actions that are

initial determinations.

* * * * *

(d) Whether payments will be made,

on your behalf, to a representative

payee, unless you are under age 18,

legally incompetent, or you are disabled

and drug addiction or alcoholism is a

contributing factor material to the

determination of disability;

* * * * *

53. The authority citation for subpart

Q of part 416 is revised to read as

follows:

Authority: Secs. 1102, 1611(e)(3), 1615,

and 1631 of the Social Security Act; 42

U.S.C. 1302, 1382(e)(3), 1382d, and 1383.

54. Section 416.1725 is revised to read

as follows:

§ 416.1725 Effect of your failure to comply

with treatment requirements for your drug

addiction or alcoholism.

(a) Suspension of benefits. Your

eligibility for benefits will be suspended

beginning with the first month after we

notify you in writing that we have

determined that you have failed to

comply with the treatment requirements

for your drug addiction or alcoholism as

defined in § 416.940. Your benefits will

be suspended and reinstated in

accordance with the provisions in

§ 416.1326.

(b) Termination of benefits. If your

benefits are suspended for 12

consecutive months for failure to

comply with treatment in accordance

with § 416.1326, your eligibility for

disability benefits will be terminated in

accordance with § 416.1331.

[FR Doc. 95–3369 Filed 2–9–95; 8:45 am]

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