Topic I:  Applying the Final Rules

I-1.*    Why were the childhood rules changed and what are the changes based on? (12/00, Q2)

I-2.*    Do the final rules change the statutory standard for childhood disability? (12/00, Q1)

I-3.      Do the final rules change the sequential evaluation process?  

I-4.*    When do we start using the new rules? (12/00, Q3)

I-5.*    What happens to cases in the pipeline? (12/00, Q4)

I-6.      What should an administrative law judge (ALJ) do when a court orders the judge to use the old rules for part or all of the period?

I-7.*    Will we have to readjudicate cases using the final rules? (12/00, Q5)

I-8.*    What effect will the final rules have on the number of allowances and denials? (12/00, Q9) 

I-9.*    Do the final rules require more case development? (12/00, Q10)

I-10.*  Do the final rules apply to title II disabled child claims? (1997)

I-11.    Do the final rules affect age-18 redeterminations?

I-12.    Do the final rules have any special implications for prototype states?

I-13.*  Do the process unification SSRs and training apply to these cases? (1997)

I-14.    Can we use the functional equivalence domains at Step Two to determine whether the child has a severe impairment(s)?

I-15.    Are we required to make a finding about the credibility of an individual’s statements about symptoms for all cases or only functional equivalence (FE) cases?

I-16.    We followed the IVT training pretty closely, but we want to know more. What do we do next?

Answers

I-1.*    Why were the childhood rules changed and what are the changes based on? (12/00, Q2)

The revisions were based on:

·        Public comments on the interim final rules;

·        Our experience doing cases under the interim final rules;

·        The results from the Commissioner’s top-to-bottom review and re-reviews;

·        Longstanding agency guidance previously issued in, e.g., training manuals, Program Operations Manual System (POMS), Social Security Rulings (SSRs); and

·        Information we obtained from individual experts (including pediatricians, psychologists, other pediatric specialists and individual advocates for children with disabilities who have expert knowledge about the Supplemental Security Income (SSI) program).

 We revised the rules because it was apparent from public feedback and our own experience that they were too complicated in places, or hard to understand, or did not include some guidance that we issued elsewhere.

 I-2.*    Do the final rules change the statutory standard for childhood disability? (12/00, Q1)

 No. These rules use the same “listing-level” standard for determining disability as in the 1997 interim final rules. A child’s impairment(s) must meet, medically equal, or functionally equal the listings to be found disabling. For functional equivalence, this means the child’s impairment(s) must result in “marked” limitations in two domains of functioning or an “extreme” limitation in one domain.

I-3.      Do the final rules change the sequential evaluation process?

 No. The training emphasized functional equivalence and factors we need to consider when evaluating childhood claims because those parts of the rules changed. However, the steps in the sequential evaluation did not change at all. The steps are still:

Step 1: Is the child engaging in SGA?

Step 2: Does the child have a medically determinable impairment(s) that is “severe”?

Step 3: Does the child’s medically determinable impairment(s) meet, medically equal, or functionally equal the listings?

In the training, we talked about factors we must consider when evaluating the child’s ability to function and we reminded adjudicators that these factors apply throughout sequential evaluation whenever functioning is an issue. For example, deciding whether an impairment(s) is “severe” requires us to consider its functional impact, i.e., whether it causes more than minimal functional limitations. Similarly, many listings include functional severity criteria.

I-4.*    When do we start using the new rules? (12/00, Q3)

The revised final rules became effective on January 2, 2001.

I-5.*    What happens to cases in the pipeline? (12/00, Q4)

Use the new rules for all childhood cases. We explained in the preamble to the final rules that, as of January 2, 2001, the revised final childhood rules apply to all childhood cases pending at any stage of our administrative review process. This includes claims that are pending administrative review after remand from a Federal court (DI 25201.001C; 65 FR 54747, 54751) and cases in which part or all of the period at issue precedes January 2, 2001.

However, see the next question on processing cases in which a court instructs otherwise.

I-6.      What should an administrative law judge (ALJ) do when a court orders the judge to use the old rules for part or all of the period?

Follow the court’s instructions and do what the court says.

I-7.*    Will we have to readjudicate cases using the final rules? (12/00, Q5)

No. We are not required to rework any cases done under the interim final rules using these revised final rules.

I-8.*    What effect will the final rules have on the number of allowances and denials? (12/00, Q9) 

We expect there will be a slight increase in allowances. Determinations should be the same under the interim final and the revised final rules, but we expect there will be somewhat fewer erroneous determinations (allowances and denials) under the new rules because they simplify adjudication. The net effect should be some more allowances.

I-9.*    Do the final rules require more case development? (12/00, Q10)

No. The revised final rules require the same sorts of evidence that were needed for adjudication under the interim final rules. We clarified and revised the rules to focus more attention on the “whole child,” on the child’s activities, and on the factors that must be considered in evaluating the child’s impairment(s). These changes affect how we evaluate the evidence, not the amount or kind of evidence we need.

I-10.*  Do the final rules apply to title II disabled child claims? (1997)

No. The 1996 law and the final rules apply only to title XVI (SSI) childhood disability claims. This is the same as it was before the law changed. Of course, the guidance we provide on factors to consider when evaluating functioning and sources of evidence is useful whenever we assess functioning in any claim under any title.

I-11.    Do the final rules affect age-18 redeterminations?

The final rules do not affect the standard to be applied in evaluating age-18 redetermination cases. Age-18 redeterminations are evaluated using the adult initial claims standard, except for step 1, the substantial gainful activity step (§ 416.987; DI 23570.010). The only substantive change the final rules made to the age-18 redetermination process was to change the time frames in which the redeterminations may be performed. This change reflects the amendment made to this provision of the law by the Balanced Budget Act of 1997.

I-12.    Do the final rules have any special implications for prototype states?

No. There is nothing special to do about childhood cases in prototype states. Just remember that all childhood determinations performed on and after January 2, 2001, must use the final childhood rules for the entire period at issue, including the period that preceded January 2. (See also Question I-5 about pipeline cases.)  The final rules do not change the statutory requirement that we must make reasonable efforts to ensure that a qualified pediatrician or other individual who specializes in a field of medicine appropriate to the child’s disability evaluates the case.

I-13.*  Do the process unification SSRs and training apply to these cases? (1997)

Yes. The new childhood rules do not alter any process unification requirements. All of the SSRs that pertain to the evaluation of symptoms and medical source opinion in adults and children continue to apply, except to the extent that they refer to provisions of prior law (e.g., the individualized functional assessment).

I-14.    Can we use the functional equivalence domains at Step Two to determine whether the child has a severe impairment(s)?

This is acceptable, but it is usually not necessary. Step Two of sequential evaluation does not require as extensive an analysis as functional equivalence. The purpose of Step Two is to decide whether the impairment(s) is more than a slight abnormality, or a combination of slight abnormalities, that causes more than minimal functional limitations (DI 25220.005; § 416.924(c)). However, if adjudicators find it useful, it is permissible to use the functional equivalence domains at this step. 

I-15.    Are we required to make a finding about the credibility of an individual’s statements about symptoms for all cases or only functional equivalence (FE) cases?

The new childhood rules do not alter our policy on the evaluation of symptoms. When we cannot make a fully favorable determination based solely on the objective medical evidence, we must assess the extent to which the child's statements about the functional effects of his or her symptoms. (If a child is unable to adequately describe his or her symptoms, we will accept as a statement of the symptoms the description given by the person who is most familiar with the child, per DI 25205.001A.3. and § 416.928(a).) The issue whether symptoms have an impact on the determination or decision and, therefore, whether we need to make a finding about credibility, is not confined to the functional equivalence step. It may occur at any part of the sequential evaluation process beginning with whether the impairment is “severe” and including “meets” and “medical equivalence” depending on the listing involved.

Also, remember two things:

·        As explained in the past, we do not require use of the word “credibility” when we make our finding about symptoms.

·        Per DDS Administrators’ Letter No. 553, no formal credibility finding is needed on any case in which the DDS awards disability from the onset date that the claimant alleged (a fully favorable determination). Subsequent reviewers must be able to determine whether the allowance was based solely on objective medical evidence or whether the decisionmaker assessed credibility.

I-16.    We followed the IVT training pretty closely, but we want to know more. What do we do next?

For questions about how to apply the final rules, refer to the regulations first – they include much more detail than we were able to provide during the training sessions. To learn more about why we revised the regulations the way we did, read the preamble on pages 54747-54775 of the Federal Register. The preamble explains the rules and also answers many questions in the Public Comments section starting on page 54760.

The complete childhood regulations, including both the revised and unrevised provisions, and the preamble, are in DI 25200. The revised material only is in the Federal Register, starting on page 54776, and corrected at 65 FR 80307 (12/21/2000). (Because it includes revised material only, the Federal Register version must be read in conjunction with the other relevant rules in 20 CFR Part 416, Subpart I.) The Federal Register is in Tab C of the December 2000/January 2001 Student Manual, and is also posted on PolicyNet, under “Special Purpose Areas,” in “SSI Childhood Reference Materials.” The PolicyNet site also includes the IVT script, material from the Student Manual, and related childhood issuances such as recent EMs and memorandums.

Topic II:  Processing Childhood Cases

II-1.     Can we still use earlier training manuals?

II-2.*   Do the Disability Digests continue to apply? (12/00, Q40 & 1997)

II-3.     Is the guidance in SSR 98-1p about cognitive and speech limitations that medically equal listing 2.09 still in effect?

II-4.     Will the agency revise any notices?

II-5.     EM- 00187 said to use medical list number (MLN) 107.30 in block 23 on the SSA-831 and block 12 on the SSA-832 for functional equivalence allowances and continuances, but that was only supposed to be until mid-February. What do we put in those blocks on the SSA-831 and SSA-832 now?

II-6.     Is there a “grace period” on errors? 

II-7.     What quality reviews are planned?

II-8.     Do the final rules affect the way we adjudicate SSI claims for children under Acquiescence Rulings (ARs)?

II-8a.  How should we apply the Chavez AR when adjudicating a child’s SSI claim?

II-8b.  How should we apply the Albright AR when adjudicating a child’s SSI claim?

II-8c.  How should we apply the Drummond AR when adjudicating a child’s SSI claim?

II-9.     Will we need to use more consultants to determine each case?

II-10.* What are the Individualized Family Service Plan (IFSP), the Individualized Education Program (IEP) and the IEP statement of transition service needs and how do we use them? (12/00, Q16)

II-11.   Is it correct to say that information from early intervention programs and schools is now more important to help adjudicate cases?

II-12.* Why do we need to request information from early intervention and pre-school programs? (12/00, Q17)

II-13.* If school information is not readily available, especially during summer months, should we hold a case for this functional information? (1997)

Answers

 II-1.     Can we still use earlier training manuals?

The March 1998 Childhood Training Manual (it has a pink cover) is still relevant for childhood adjudication because it provides guidance for evaluating mental retardation (MR) and behavioral issues. Adjudicators should refer to that manual when they have questions about MR or behavioral disorder cases. Information from that manual will appear as a Social Security Ruling (SSR).

Some still-relevant questions from the 1997 Childhood Training are incorporated into this Q&A document although they were updated and edited for clarity. The rest of the 1997 Training Manual is redundant or outdated and should no longer be used. 

II-2.*   Do the Disability Digests continue to apply? (12/00, Q40 & 1997)

Some do and others do not:

·        Digests about policies that have not changed still apply.

·        Digests about broad development or evaluation issues are likely to remain useful.

·        Digests about the previous functional equivalence domains no longer apply.

·        Digests about the prior individualized functional assessment (IFA) have been obsolete since August 22, 1996, when P.L. 104-193 was enacted.

For example, Disability Digest 92-8 provides guidance about a rule that hasn’t changed. It discusses the “major congenital organ dysfunction” example of functional equivalence (now in DI 25225.060; § 416.926a(m)(9)) and the part concerning listing-level severity remains useful, but not the IFA part. Similarly, Digest 93-7 discusses evaluation of cases in which the child exhibits high blood lead levels; Digest 94-1 concerns the development requirements for establishing the existence of an impairment. Both of these still apply.

We plan to compile the still relevant information from the Digests into at least one SSR.

II-3.     Is the guidance in SSR 98-1p about cognitive and speech limitations that medically equal listing 2.09 still in effect?

Yes. We can still find medical equivalence to Listing 2.09 when a child has marked limitations in both cognition and speech, as explained in the SSR, with one change:

The guidance in the SSR about comparing the child’s speech to his or her cognitive age has been superseded by the more general principle stated in the final rules that we compare a child’s functioning to that of other children the same age who do not have impairments. So to determine whether there is a marked limitation in speech, use Table 1, but do not use the guidance about comparing to cognitive age for children who are less than 8 years old. In other words, always use the child’s chronological age.

Note that this does not change our longstanding instructions about Listings 112.05D. and F., which (in addition to mental retardation and “marked” limitation in cognition/communication) require “a physical or other mental impairment imposing additional and significant limitation of function.” To decide whether a child with mental retardation and speech problems satisfies this criterion, we need to decide if the child has a separate medically determinable impairment that affects speech. When it is not obvious whether there is a separate impairment (e.g., no congenital disorder resulting in speech problems), we still need to compare the child’s speech to his or her cognitive level to decide whether there is a separate speech impairment.

See also Question VI-D3 for other guidance for using SSR 98-1p.

II-4.     Will the agency revise any notices?

No. We have reviewed the preprinted DDS and OHA notice language and believe that they are sufficient in their present form, and will not require revision to reflect changes in the final rules.

II-5.     EM- 00187 said to use medical list number (MLN) 107.30 in block 23 on the SSA-831 and block 12 on the SSA-832 for functional equivalence allowances and continuances, but that was only supposed to be until mid-February. What do we put in those blocks on the SSA-831 and SSA-832 now?

It is not necessary to record anything in those blocks, but no edit will result if the adjudicator does. The 107.30 MLN entry for functional equivalence allowances and continuances was solely to satisfy a systems requirement. Per EM-01043, issued March 7, 2001, the Office of Systems changed the requirement and no MLN entry at all is required for functional equivalence allowances and continuances. EM-00187 is now obsolete.

No MLN is necessary because functional equivalence has been delinked from reference to any particular listings. This includes the functional equivalence examples in § 416.926a(m) and DI 25225.060.

An MLN entry of a specific Listing of Impairments section is still required in all meets/medical equals allowances and continuances (DI 26510.050).

II-6.     Is there a “grace period” on errors?   

Initial childhood cases are not being counted in DDS performance accuracy for the period of January 2, 2001 at least through April 30, 2001. At this time (05/09/2001), extension of the period during which childhood cases will not be counted is under consideration. (See ODPQ memo of 12/27/00 posted on PolicyNet, under "Special Purpose Areas," in "SSI Childhood Reference Materials.") 

II-7.     What quality reviews are planned?

The Office of Quality Assurance and Performance Assessment (OQA) has been reviewing a special sample of childhood cases each month to monitor implementation of the new final rules. OQA will select a random national sample of 1000 childhood cases per month in addition to the childhood cases in the regular QA sample. As data become available, OD and OQA will evaluate review results, and adjustments to the sample design and review procedures will be made as appropriate. (See ODPQ memo of 12/27/00 posted on PolicyNet, under "Special Purpose Areas," in "SSI Childhood Reference Materials.")

II-8.     Do the final rules affect the way we adjudicate SSI claims for children under Acquiescence Rulings (ARs)?

Yes. The final rules for childhood disability affect the way we adjudicate a subsequent SSI disability claim of a child under the Chavez, Albright or Drummond ARs, each of which is discussed below.

II-8a.   Chavez AR (See DI 32720.001 ff., AR 97-4(9)) 

When does the Chavez AR apply?

The Chavez AR applies to claimants residing in Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Northern Mariana Islands, Oregon or Washington at the time of the adjudication of a subsequent claim. It applies when:

·        the claimant had a prior disability claim on which there was a final ALJ or AC decision which found the claimant not disabled; and

·        the adjudicator is deciding a subsequent disability claim under the same title of the Act involving a period that was not adjudicated in the final ALJ or AC decision on the prior claim.

How should an adjudicator apply the Chavez AR when adjudicating a child's SSI claim under the final rules? 

When adjudicating the subsequent claim involving an unadjudicated period, adjudicators will apply a presumption of continuing nondisability and determine that the claimant is not disabled with respect to that period, unless the claimant rebuts the presumption. A claimant may rebut the presumption by showing a “changed circumstance” affecting the issue of disability with respect to the unadjudicated period (see DI 32720.010 A.3.).

For purposes of the Chavez AR, the presumption of continuing nondisability is rebutted if the final ALJ or AC decision on the prior claim was made before January 2, 2001, and the decision found the claimant not disabled on the basis that the claimant's impairment(s) did not meet, medically equal, or functionally equal in severity a listed impairment in the Listing of Impairments.

If the presumption is rebutted for any reason, an adjudicator then must adopt prior findings required at a step in the sequential evaluation process for determining disability (see DI 32720.010B.1.b.) from the final ALJ or AC decision on the prior claim in determining whether the claimant is disabled with respect to the unadjudicated period unless:

·        there is new and material evidence relating to the prior finding; or

·        there has been a change in the law, regulations or rulings affecting the finding or the method for arriving at the finding.

For purposes of the Chavez AR, an adjudicator should not adopt an ALJ or AC finding that a child claimant’s impairment(s) does not functionally equal the severity of a listed impairment, if the prior finding was made before January 2, 2001.

II-8b.            Albright AR (See DI 52715.001 ff., AR 00-1(4))

When does the Albright AR apply?

The Albright AR applies to claimants residing in Maryland, North Carolina, South Carolina, Virginia or West Virginia at the time of the adjudication of a subsequent claim. It applies when:

·        the adjudicator is deciding a subsequent disability claim with an unadjudicated period; and

·        the subsequent claim arises under the same or a different title of the Act as a prior disability claim on which there has been a final decision by an ALJ or the AC.

How should an adjudicator apply the Albright AR when adjudicating a child's SSI claim under the final rules?

In applying the Albright AR when adjudicating a subsequent SSI disability claim of a child, an adjudicator will consider the prior ALJ or AC findings required at a step in the sequential evaluation process for determining disability (see DI 52715.010 B.1.b.) as evidence and give such findings appropriate weight in light of all relevant facts and circumstances in determining whether the claimant is disabled with respect to the unadjudicated period involved in the subsequent claim.

The weight to be given to a prior finding depends on the extent to which the prior finding has probative value in determining disability with respect to the period being adjudicated in the subsequent claim. In determining the weight to be given to a prior finding, an adjudicator will consider such factors as:

·        whether the fact on which the prior finding was based is subject to change with the passage of time,

·        the likelihood of such a change, considering the length of time that has elapsed between the period previously adjudicated and the period being adjudicated in the subsequent claim, and

·        the extent that evidence not considered in the final decision on the prior claim provides a basis for making a different finding with respect to the period being adjudicated in the subsequent claim.

Under the Albright AR, an adjudicator should not give any weight to an ALJ or AC finding that the claimant's impairment(s) is or is not functionally equal in severity to a listed impairment if the prior finding was made before January 2, 2001.

II-8c.            Drummond AR (See DI 52705.001 ff., AR 98-4(6))

When does the Drummond AR apply?

The Drummond AR applies to claimants residing in Kentucky, Michigan, Ohio or Tennessee at the time of the adjudication of a subsequent claim. It applies when:

·        the adjudicator is deciding a subsequent disability claim with an unadjudicated period; and

·        the subsequent claim arises under the same title of the Act as a prior disability claim on which there has been a final decision by an ALJ or the AC.

How should an adjudicator apply the Drummond AR when adjudicating a child's SSI claim under the final rules?

In applying the Drummond AR when adjudicating a subsequent SSI disability claim of a child, an adjudicator must adopt  prior findings required at a step in the sequential evaluation process for determining disability (see DI 52705.010 B.1.b.) from the final ALJ or AC decision on the prior claim in determining whether the claimant is disabled with respect to the unadjudicated period unless:

·        there is new and material evidence relating to such a finding; or

·        there has been a change in the law, regulations or rulings affecting the finding or the method for arriving at the finding.

For purposes of the Drummond AR, an adjudicator should not adopt an ALJ or AC finding that a child claimant’s impairment(s) does or does not functionally equal the severity of a listed impairment, if the prior finding was made before January 2, 2001.

II-9.     Will we need to use more consultants to determine each case?

No. We hope that the new domains will help consultants evaluate the effects of impairments in their respective fields in all of the domains and this may result in fewer referrals for some cases. We did not change who is responsible for making determinations. It is possible that the clarifications in the final rules of how to consider multiple impairments will lead to more collaboration among medical and psychological consultants. However, the final rules did not change our existing rules on the qualifications of medical and psychological consultants and the types of cases that psychological consultants and medical consultants who are not physicians can evaluate. See DI 24501.001 and § 416.1016 concerning who can be a medical or psychological consultant in the DDS.

II-10.* What are the Individualized Family Service Plan (IFSP), the Individualized Education Program (IEP) and the IEP statement of transition service needs and how do we use them? (12/00, Q16)

Under Federal law, some children with physical or mental impairments receive early intervention or special education services. Receiving these services may be affected by factors unrelated, or only partially related, to the child’s level of limitation. Such factors can include the level of funding available in the specific facility, the preferences and views of school administrators or even individual teachers towards special education, and the child’s personality.

Generally, children who are eligible for early intervention services (from birth to attainment of age 3) have an IPSP and older children (from age 3 and up) who are eligible for special education services have an IEP. For adolescents (age 14 and older), the IEP includes a plan for transition from school to post-secondary education, work and community living. These documents have two parts.

The first part analyzes the child's skills. The IFSP describes the young child's present  development (e.g., physical, social), which must be based on professionally acceptable objective criteria, as well as a statement about how the child's impairment(s) affects his or her participation in activities. Similarly, the IEP describes the school-age child's present levels of educational performance (both strengths and weaknesses), including how the child's impairment(s) affects his or her involvement and progress in the general curriculum used for children without impairments. Both documents are important sources of information about the child's abilities and limitations in functioning and include information about factors that we also consider when evaluating children compared to children the same age who do not have impairments. For example, an IEP will describe the child’s special education services and supplementary aids and also program modifications made to accommodate his or her impairments.
 
The second part of these documents identifies therapeutic or educational goals, including specific treatment or instructional methods to help the child achieve the identified objectives. As a student approaches high school completion, the IEP transition plan estimates the levels of functioning estimated as reasonable by the special education team and the student. These levels may range from supervised and supported work and living settings to independent work and living situations.
 
Either the IFSP or IEP can provide useful information about a child's functioning, but it is important to understand that the underlying purpose is not the same as ours in adjudicating disability claims. The IFSP or IEP identifies goals for improvement that it is hoped the child can accomplish. In contrast, we need to know more about what the child cannot do or has difficulty doing. However, these two concerns – potential accomplishments versus current limitations - are clearly related. For example, if an IEP goal is "will be able to read at 3rd grade level," we can safely conclude that the child was not performing at that level when the IEP was written.
 
Although the IFSP/IEP goals can help indicate current skill levels and limitations, it is important to remember that they are only anticipated outcomes. Although the child may ultimately accomplish those goals, we cannot presume that this will happen nor adjudicate based on that presumption.

II-11.   Is it correct to say that information from early intervention programs and schools is now more important to help adjudicate cases?

No. Early intervention programs and schools have always been potentially rich sources of information about the child, and they still are. There is no change in the emphasis or role of information from these sources, such as the IFSP and IEP discussed in II-10 above.
 
Just as important as the IFSP or IEP is the comprehensive assessment that is done initially to identify a child with disabilities and then repeated periodically to assess the child's progress. By law, these assessments should occur at least once a year for children under age 3 and every three years for children age 3 and older. The law also requires periodic progress reports every 3 to 4 months for infants and toddlers and yearly for school-age children. The assessments are supposed to include the early intervention or special education team's findings and recommendations for the child's therapeutic or educational program.
 
As part of a comprehensive assessment, children should be given tests of aptitude and achievement, as well as clinical examinations, which convey valuable evidence about functional limitations. When a claimant's MDI can be established by a school psychologist or SLP, the current assessment may provide the primary evidence needed to evaluate the child's impairment(s) and resulting limitations. When requesting information from schools or early intervention programs, be sure to specifically ask for the most recent comprehensive assessment and test results and other evidence that supports the analysis of the child's skills. Note that not all school districts are able to do periodic assessments timely. Do not make any assumptions that a child’s condition has improved based on the lack of such an assessment.

II-12.*Why do we need to request information from early intervention and pre-school programs? (12/00, Q 17)

This is not a new requirement. Since 1991, we have asked for information about these sources on the SSA-3881 (Questionnaire for Children Claiming SSI Benefits) or the SSA-3820 (Disability Report – Child). More importantly, our guidance has always stressed the need for information about a child’s functioning from the people who see the child on a day-to-day basis, including early intervention and pre-school personnel. These sources may also have medical evidence to submit.

II-13.* If school information is not readily available, especially during summer months, should we hold a case for this functional information? (1997)

Not necessarily, but we have always allowed development to be deferred if there is no alternative. This may happen in some cases during the summer if a case cannot be decided based on the medical and other evidence in the case record.

Do not forget that there may be alternative sources of evidence. For example, information about children’s daily functioning compared to other children the same age who do not have impairments may be available from counseling, employment or recreation programs.

Also remember that school records may be available in the summer. Some special education students receive Extended School Year services usually involving therapies such as speech/language, occupational or physical therapy. These therapists can be good sources of current functional information. Other children may have summer school vocational programs that are not formal jobs that can provide useful information.

Topic III:  Establishing Medically Determinable Impairments (MDIs)

III-1.*  Why does the “nonsevere” step now also require a finding about the existence of a medically determinable impairment(s)? (12/00, Q6)

III-2.    Does it matter why a child has a medically determinable impairment? For example, if family circumstances contribute to the child’s condition, how do we evaluate that factor?

III-3.*  What sources can establish the existence of a medically determinable impairment? (12/00, Q7) 

III-4.*  Who can submit evidence about the severity of an impairment(s)? (12/00, Q8)

III-5.    How do we evaluate a child who is having trouble in school, but has no medically determinable impairment that explains his or her problems? 

Answers

III-1.* Why does the “nonsevere” step now also require a finding about the existence of a medically determinable impairment(s)? (12/00, Q6)

This is not a new policy, but a statement of our longstanding practice. We stated this policy in SSR 96-4p, “Title II and XVI: Symptoms, Medically Determinable Physical and Mental Impairments, and Exertional and Nonexertional Limitations.” (DI 24515.065; 61 FR 34488, July 2, 1996). In that SSR, we indicated “[I] n claims in which there are no medical signs or laboratory findings to substantiate the existence of a ‘medically determinable physical or mental impairment,’ the individual must be found not disabled at step 2 of the sequential evaluation process . . . .” This principle applies to children as well as adults.

At Step Two, an impairment or combination of impairments is considered “severe” if it is more than a slight abnormality (or combination of slight abnormalities) that causes more than minimal functional limitations. An impairment(s) that is “not severe” must be a slight abnormality (or a combination of slight abnormalities) that has no more than a minimal effect on a child’s functioning (DI 25220.005; § 416.924(e)). 

III-2.   Does it matter why a child has a medically determinable impairment? For example, if family circumstances contribute to the child’s condition, how do we evaluate that factor?

It is irrelevant why a child has a medically determinable impairment(s). The Social Security Act requires us to determine whether a child has such an impairment(s), and if so whether it causes marked and severe functional limitations. With the limited exception involving claims in which alcoholism or drug addiction is a contributing factor material to the determination of the disability, the Act does not allow us to disregard medically determinable impairments in determining whether an individual is disabled. The Act also does not allow us to discount any effects of a child’s medically determinable impairment based on such factors as family circumstances.

III-3.* What sources can establish the existence of a medically determinable impairment? (12/00, Q7)

In June 2000, we published final rules that expand the list of “acceptable medical sources” (DI 22505.003B1; § 416.913(a)) and provide closely related information about who can be a medical or psychological consultant in the DDS (DI 24501.001; § 416.1016). The “acceptable medical sources” list now reads as follows:

(1)  Licensed physicians (medical or osteopathic doctors);

(2)  Licensed or certified psychologists. Included are school psychologists, or other licensed or certified individuals with other titles who perform the same function as a school psychologist in a school setting, for purposes of establishing mental retardation, learning disabilities, and borderline intellectual functioning only;

(3)  Licensed optometrists, for the measurement of visual acuity and visual fields;

(4)  Licensed podiatrists, for purposes of establishing impairments of the foot, or foot and ankle only, depending on whether the State in which the podiatrist practices permits the practice of podiatry on the foot only, or the foot and ankle; and

(5)   Qualified speech-language pathologists, for purposes of establishing speech or language impairments only. For this source, ``qualified'' means that the speech-language pathologist must be licensed by the State professional licensing agency, or be fully certified by the State education agency in the State in which he or she practices, or hold a Certificate of Clinical Competence from the American-Speech-Language-Hearing Association.

We determined that there is sufficient standardization of qualifications across the States to use these professionals to establish the existence of impairments within their disciplines. We have not done that for other professions such as pediatric nurse practitioners, audiologists or psychiatric social workers although we recognize that they are important sources of evidence for the disability adjudication.

These rules were effective on July 3, 2000. The text, including the preamble, is posted on PolicyNet, under “Special Purpose Areas,” in “SSI Childhood Reference Materials; Related Material.”

III-4.* Who can submit evidence about the severity of an impairment(s)? (12/00, Q8)

Once we establish the existence of a medically determinable impairment(s) based on evidence from an acceptable medical source, we consider all relevant evidence to help decide its severity (DI 22505.003B2 and DI 25210.001A; §§ 416.913(d) and § 416.924a(a)). Some of the sources whose evidence we consider in a child’s case could include occupational, physical or rehabilitation therapists, audiologists, educators, early intervention specialists, public and private social welfare agency personnel, daycare workers, parents and other family members, other caregivers, friends, neighbors and clergy.

III-5.   How do we evaluate a child who is having trouble in school, but has no medically determinable impairment that explains his or her problems?

To determine disability, we do not count limitations unless they result from a medically determinable impairment. This principle comes from the Social Security Act, and the final rules do not change this in any way. Regarding academic underachievement in particular, if it does not result from a medically determinable impairment, it cannot be considered (see Disability Digest 93-3, dated March 1993).

However, a child who is having significant but unexplained problems may have an impairment that has not yet been diagnosed, or may have a diagnosed impairment for which we lack evidence. For example, a child who is many grades behind in school is very likely to have a medically determinable impairment. In many cases the school will have evaluated the child and the school records will provide information about whether there’s an MDI. Otherwise, we may need to get a CE. As always, we must pursue any indications that an impairment may be present if that fact may be material to the determination.

See also Question VI-B1 for further discussion about evaluating a child who has academic difficulties.

Topic IV: Considering Factors That Help Determine How Children Function

IV-1.    When we rate limitations, how do we consider the child’s ability to function independently?

IV-2.*  Why do we have a specific factor about “extra help” since most children, including those without impairments, get help from their parents, teachers and others? (12/00, Q13)

IV-3.*  Why am we required to consider how a child would function outside a structured or supportive setting? (12/00, Q14)

IV-4.    If we have no information about how a child would function outside a structured setting or without extra help, how can we determine the extent of the child’s limitation?

IV-5.    What do the regulations mean by the reference to considering “the standards used by the person who gave us the information”?

IV-6.*  What activities should we use to compare the functioning of children who have impairments with that of children who do not? (12/00, Q11)

IV-7.    When evaluating a child who’s in the 6^th grade, but who functions like a 4^th grader, what age group do we use when considering the child’s ability to function?

IV-8.*  Why do we need to know that a child may function differently in an unusual setting? (12/00, Q15)

IV-9.    We were previously told that we should not punish a child for not taking medications. Does this mean that under no circumstances should we deny a child’s eligibility if parents withhold treatment?

IV-10.*Why do the regulations emphasize the need to evaluate the combined effects of multiple impairments? (12/00, Q12)

IV-11.  How do we consider the interactive and cumulative effects of impairments?

IV-12.  When we rate the cumulative effects of impairments, how do we rate multiple impairments that are “not severe” in the same domain?

Answers

 IV-1.    When we rate limitations, how do we consider the child’s ability to function independently? 

Functioning independently is about doing age-appropriate activities in an age-appropriate manner, so we evaluate a child’s independence in functioning by comparing his or her functioning to that of same-aged children who do not have impairments. Obviously, even typically developing younger children need some help with age-appropriate activities. So the question is: does the child we are evaluating need any form of assistance above and beyond what a child the same age without an impairment(s) would need?

To evaluate the extent to which a child’s independent functioning is compromised by his or her impairment(s), we consider whether the child needs a person, a medication, a treatment, a device, or a setting to make functioning possible, or to improve his or her functioning. The more intensive or extensive the help received, the less independent the child is in functioning, and the greater weight this factor has in the rating of limitations.

·        Assistance is intensive with respect to the kind of help received. For example, a child who is given a behavior modification plan in a regular classroom receives more intensive assistance than a child who has to be reminded once in a while to keep his voice down while walking in the halls.

·        Assistance is extensive with respect to the number of times and settings in which the help is received. For example, a child who has a one-to-one aide in every academic subject is receiving more extensive assistance than a child who receives one-to-one help only in math. 

A child may appear to function very well in a particular activity or set of activities. But if he or she requires extra assistance to do so, then the child is not functioning as independently as same-age children without impairments.

See DI 25210.020; § 416.924a(b)(5). See also Questions IV-2, IV-3 and IV-4 below regarding “extra help” and structured settings.

IV-2.*  Why do we have a specific factor about “extra help” since most children, including those without impairments, get help from their parents, teachers and others? (12/00, Q13)

The key word is “extra.” As with every other aspect of these rules, the guidance on “extra help” is based on comparing a child’s functioning to that of children of the same age who do not have impairments. In other words, we consider the help a child needs to be “extra” only to the extent that it is more help than a child of the same age without an impairment would be expected to need (DI 25210.020B; § 416.924a(b)(5)(ii)).

The “extra help” rule is one of several factors we stress in these regulations to focus on the big picture of a child’s functioning. The point is that a child who is “able” to function may need so much assistance in doing so that the need indicates a limitation. Both the extent of extra help and the response to it are important factors to consider. If the assistance required is significant, this may indicate the presence of a marked or extreme limitation.

A real life example that we used in the 1998 training concerned a 9-year-old who had in the past injured himself, his classmates, and his family. To prevent more such behavior, this child required “wraparound” services; i.e., a person who stayed with him most of the time to make sure he did not do any further harm. Because the child had not injured anybody recently, the adjudicator did not establish an extreme limitation. But when we step back and consider the extraordinary help the child needed to keep him from injuring himself or someone else, it should be evident that the child had a very serious  (i.e., extreme) limitation.

In making the disability determination or decision, we are required to assess how a child would function without the extra help.

IV-3.*  Why am we required to consider how a child would function outside a structured or supportive setting? (12/00, Q14)

All children require structure and support, but children with impairments may require more structure and support to function than children of the same age without impairments. A child with an impairment(s) may be able to perform activities that are typical for his or her age group only because he or she gets high levels of personal attention, support, monitoring or discipline in a structured or supportive setting.

We must compare the child’s functioning to that of children the same age who do not have impairments, and children without impairments function without the sorts of unusual structure and support described above. Therefore, to properly evaluate the child’s functioning we must know how he or she functions, or would function, outside of such settings (DI 25210.020D; § 416.924a(b)(5)(iv)).

For example, a child in special education classes may function well in that context, but we must assess how the child functions, or would function, in ordinary settings in a mainstream classroom. A child with serious behavior problems may function well within a structured setting, but the behavior may not be controlled outside of such a setting. This may indicate the presence of limitations in one or more domains although the child does not show those limitations (or does not show them to their full degree) because of the structured classroom setting.

In making the disability determination or decision, we are required to assess how a child would function without the structured or supportive setting and use those findings to assess whether the child’s limitations are marked or extreme.

IV-4.    If we have no information about how a child would function outside a structured setting or without extra help, how can we determine the extent of the child’s limitation?

If we have no “outside” information because the child is always in a structured setting in excess of what would be expected for children the same age who do not have impairments, that fact alone tells us that the child is probably quite limited.

Also, information about the structured setting itself, or about the kind of extra help the child receives, can tell us something about how a child would likely function outside the setting or without the help. Such information could tell us about:

·        The intensity of the structured setting. For example, a ratio of one adult to three or four students suggests a very highly structured setting.

·         The time requirement, or how long, the child needs to be in a structured setting. Our old example of the child who needs 24-hour wraparound services illustrates a very serious condition. Even somewhat less than that could be very serious.

·        The amount of help provided. For example, a child who needs someone to act as an individual aide for all classroom work clearly has little independence in some skills needed for acquiring and using information.

On the other hand, if we have no other information because the case development did not cover the parts of the day when the child is not in a structured setting, more development may be necessary. In any case, school records and assessments will very often explain why a child receives special assistance (e.g., special education classroom or extra help) and this information may help us evaluate how the child would function in less supportive settings.

IV-5.    What do the regulations mean by the reference to considering “the standards used by the person who gave us the information”?

We compare a child’s functioning to the functioning of other children the same age who do not have impairments, so we need to know whether that is the standard of comparison used by any source of information. For example, if a special education teacher says a child is “doing well,” without indicating whether she means doing well compared to her expectations for the child, or compared to other children in the special education class, or compared to children the same age who do not have impairments (which is what we need), we need to clarify the teacher’s response.

See DI 25210.010B and § 416.924a(b)(3).

IV-6.*  What activities should we use to compare the functioning of children who have impairments with that of children who do not? (12/00, Q11)

Use any and all activities appropriate for the child’s age. We designed the new rules to help adjudicators consider what children do and do not do every day at home, in school and in the community. The domain descriptions in DI 25225.030 - .050 and § 416.926a(g)-(k) include examples of activities that illustrate the typical functioning of children in different age groups. (We did not provide such descriptions for the sixth domain, “Health and physical well-being,” which does not lend itself to descriptions of “typical” activity. As we did for all the other domains, however, we included examples of limitations in this domain (DI 25225.055B; § 416.926a(l)(4))). The critical issue is to evaluate what the child can and cannot do, is limited or restricted in doing, how much help the child needs, and so on to develop a picture of the “whole child.” Then we can assess how the child functions compared to children the same age who do not have impairments.

IV-7.    When evaluating a child who’s in the 6^th grade, but who functions like a 4^th grader, what age group do we use when considering the child’s ability to function?

A basic principle of the final rules is that we must always compare a child’s functioning to that of other children who are the same chronological age who do not have impairments.

IV-8.*  Why do we need to know that a child may function differently in an unusual setting? (12/00, Q15)

It is a well-known clinical phenomenon that children with some impairments, for example attention-deficit/hyperactivity disorder (ADHD), may be calmer, less inattentive, or less out-of-control when in a novel or one-to-one setting such as a consultative examination. So a CE provider may observe and report a degree of attentiveness or lack of hyperactivity in a child with ADHD that is in stark contrast to parents’ and teachers’ reports that the child has great difficulties. This does not necessarily represent a conflict in the evidence; it is a fairly typical scenario for a child with ADHD.

This example highlights the importance of our emphasis on getting a full picture of the whole child, and of our longstanding policy that no single piece of evidence should be considered out of the context of the remainder of the case record. Accepting the observation of the child’s behavior or performance in an unusual setting without considering the rest of the evidence could lead to an erroneous conclusion about the child’s overall functioning.

See DI 25210.025 and § 416.924a(b)(6).

IV-9.    We were previously told that we should not punish the child for not taking medications. Does this mean that under no circumstances should we deny a child’s eligibility if parents withhold treatment?

SSA policy is that we do not consider a disabled child under age 18 fully responsible for failing to follow prescribed treatment. While the “failure to follow prescribed treatment” policy can apply in childhood cases, we do not expect it will apply very often. Remember that it is not even considered unless we find the child disabled and that treatment was prescribed by the child’s treating source that can be clearly expected to result in the child no longer being disabled. Even then, “good cause” for the failure to follow treatment must be considered; e.g., if the child’s caregiver has found the side effects of treatment unacceptable, we would find good cause, and not deny or cease eligibility for failure-to-follow. However, if good cause is not found and all the other requirements are met, a failure-to-follow denial would be appropriate per § 416.930 and DI 23010.005 ff. Also see SSR 82-59 and Disability Digest 94-7.

IV-10.*Why do the regulations emphasize the need to evaluate the combined effects of multiple impairments? (12/00, Q12)

The law requires us to consider the combined effects of all of an individual's impairments in determining whether the individual is disabled, without regard to whether any impairment, considered separately, would be of sufficient severity to find the individual disabled. The interim final rules and our other instructions reflected that principle. However, we found through experience and the public comments that we needed to explain the requirement better. The revised final rules in DI 25210.015 and § 416.924a(b)(4) are intended to emphasize that limitations resulting from a com