I-5-3-14. Drug Addiction or Alcoholism

A. Notification About the New Law

Pub. L. 103-296 requires SSA to notify all current title II and title XVI disability beneficiaries, for whom SSA determines or has determined that DAA is a contributing factor material to the determination of disability, within 180 days of enactment, that they:

1. are subject to the provisions of Pub. L. 103-296;

2. must receive benefit payments through representative payees;

3. must undergo treatment, if available; and

4. may receive benefit payments for only a total of 36 months (for title II DAA beneficiaries, only those months in which treatment is available are counted towards the 36-month total).

SSA will identify through the Master Beneficiary Record, Supplemental Security Record, and listing codes the current title II and title XVI DAA beneficiaries who must be notified. SSA Headquarters will send these beneficiaries notices on February 6, 1995. (These beneficiaries are referred to as “Startup” beneficiaries.)

B. Representative Payee Requirements - Title II

Effective with benefits payable on or after March 1, 1995, all title II DAA beneficiaries must receive payment through a representative payee. (For benefits payable before March 1, 1995, only title XVI DAA beneficiaries are required to receive payment through a representative payee.)

1. Preferred Representative Payees

   Effective December 1, 1994, for beneficiaries for whom DAA is a contributing factor material to the determination of disability, the preferred representative payees are those shown below, unless the Secretary determines that the selection of a family member would be appropriate.

   1. A community-based nonprofit social service agency licensed or bonded by the State

   2. A Federal, State, or local government agency whose mission is to carry out income maintenance, social service, or health-care related activities.

   3. A State or local agency with fiduciary responsibilities.

   4. A designee of one of the above agencies (except a Federal agency) referred to in a. through c. above.

   NOTE:

   Individuals in DAA status and anyone who might encourage or enable the beneficiary to continue his/her practice of substance abuse (e.g., bartenders) may not serve as a representative payee for a DAA beneficiary.

2. Representative Payees' Fees

   Effective December 1, 1994, SSA may authorize some approved organizational representative payees to collect fees of up to $50 per month, or 10 percent of the monthly benefit under titles II and/or XVI, whichever is less, for providing payee services to beneficiaries disabled based on DAA.

3. 90-Day Direct Payment Period for Current title II Beneficiaries

   For title II beneficiaries on the rolls on February 11, 1995, after SSA informs the beneficiary that DAA is a contributing factor material to the determination of disability and that payments must be made through a representative payee, SSA may make direct payment to the beneficiary for up to 90 days after the date of the notice, if SSA has difficulty locating a representative payee.

C. Time-Limited Benefit Payment

1. Title II

   Beginning March 1, 1995, SSA will terminate title II benefit payments after 36 months of benefits, regardless of the number of entitlement periods, if drug addiction or alcoholism is still a contributing factor material to the determination of disability. SSA will not count toward the 36-month limit any month for which appropriate treatment is not available or for which title II benefits were not due for any reason.

   NOTE 1:

   Medicare entitlement continues beyond the 36-month limit, as long as the individual remains disabled and is not terminated for noncompliance with treatment.

   NOTE 2:

   Title II auxiliary benefits continue as long as the insured person remains disabled, including after termination of the insured person's benefit payments for noncompliance with treatment or after 36 months of benefits.

2. Title XVI

   Beginning March 1, 1995, SSA will terminate title XVI benefits after 36 months of benefits if drug addiction or alcoholism is still a contributing factor material to the determination of disability. The 36-month period will run regardless of whether appropriate treatment is available. SSA will not count toward the 36-month limit any month for which benefits were not due for any reason.

   NOTE:

   Medicaid eligibility continues beyond the 36-month limit, as long as the individual remains disabled and is not terminated for noncompliance with treatment.

3. Concurrent Titles II and XVI Cases

   Counting the 36 months for purposes of determining the 36-month limitation on payment of benefits differs between titles II and XVI. Thus, the 36-month limitation is counted separately for each title. This can result in different termination dates for each title in a concurrent case.

D. Treatment Requirements

SSA will publish regulations which define appropriate treatment for title II and title XVI DAA beneficiaries and establish guidelines for reviewing and evaluating the beneficiaries' compliance with appropriate treatment. The treatment requirements, which currently apply only to title XVI DAA beneficiaries, will be extended to title II DAA beneficiaries.

E. Referral and Monitoring Agencies (RMAs)

SSA must establish RMA contracts in each State and the District of Columbia. SSA already has contracts with RMAs in most States as a result of statutory requirements regarding title XVI beneficiaries. Negotiations with the remaining States are underway.

F. Benefit Payment Suspension for Noncompliance

The new law requires suspension of title II and title XVI benefits for noncompliance with treatment beginning with the first month after the month in which SSA notifies the beneficiary in writing of the determination of noncompliance and the resulting suspension of benefits.

G. Benefit Payment Reinstatement After Suspension

The law requires that SSA will reinstate benefit payments that are suspended for noncompliance after a 2, 3 or 6-month period of compliance, as follows:

1. 1st determination of noncompliance -- SSA will reinstate benefit payments after 2 consecutive months of compliance.

2. 2nd determination of noncompliance -- SSA will reinstate benefit payments after 3 consecutive months of compliance.

3. 3rd and any subsequent determination of noncompliance --SSA will reinstate benefit payments after 6 consecutive months of compliance.

   NOTE:

   Some SSA instructions and files may refer to these months of compliance after noncompliance as sanction months rather than suspension months.

H. Benefit Payment Termination for Noncompliance

The new law requires termination of title II and title XVI benefits after 12 consecutive months of suspension for noncompliance. Terminated individuals may reapply for benefits subject to the 36-month limitation on benefits.

I. Retroactive/Past-due Benefits

The new law prohibits large one-time payments of past-due title II or title XVI benefits to disabled individuals when DAA is found to be a contributing factor material to the determination of disability. SSA will pay such past-due benefits in monthly installments as follows:

1. Part-Due Title II Benefits

   SSA will pay past-due title II benefits so that the total monthly payments, including benefits for that month, does not exceed two times the monthly benefit rate without taking into account any deductions or reductions.

2. Past-Due Title XVI Benefits

   SSA will pay past-due title XVI benefits so that the total monthly payment, including benefits for that month, does not exceed two times the Federal benefit rate including any Federally administered State supplement.

A. Startup Beneficiaries

1. Startup Appeals

   The determination that DAA is a contributing factor material to the determination of disability is an initial determination with full appeal rights for all startup title II and concurrent beneficiaries and for those title XVI DAA recipients who have not previously been notified of the DAA determination or who do not currently have a representative payee.

2. Startup Protest/Continuing Disability Reviews (CDRs)

   Currently eligible title XVI only DAA recipients who have a representative payee are presumed to have previously received notification regarding the DAA determination. These recipients do not have appeal rights based on the startup notice. However, these recipients may protest the finding that DAA is a contributing factor material to the determination of disability. A protest is similar to self-reported medical improvement and the CRD process applies in thee cases.

B. All Title II and Title XVI Beneficiaries With Disability Determinations Made on or After February 11, 1995

These beneficiaries will have the right to appeal a determination that DAA is a contributing factor material to the finding of disability.

C. Post Entitlement/Eligibility (PE) Actions

The implementation of the DAA provisions is anticipated to generate several PE events with the potential for resultant appeals. These events may include: (a) suspension of benefits for noncompliance with substance abuse treatment or (b) more typical PE events, e.g., the selection of a particular representative payee (but not the fact that benefits must be paid through a representative payee which is not appealable).

A. Pending Cases - Hearing Scheduled or Held

1. Hearing Scheduled But Not Held

   Screen all title II only, title XVI only, and concurrent title II/title XVI cases awaiting hearing to determine whether DAA is an issue in the case and, if so, whether the notice of hearing informed the claimant of the DAA issue to be decided, i.e., if the Administrative Law Judge (ALJ) finds that the claimant is disabled, he or she will also decide whether drug addiction or alcoholism is a contributing factor material to the determination of disability. (See HALLEX I-2-2-10, Notice of Issues, and section V. B. 3. below.)

   If the notice of hearing did not inform the claimant of the DAA issue to be decided, send another notice which includes the DAA issue to be decided to the claimant and representative at least 20 days before the hearing, unless the claimant waived the right to 20-day notice. If less than 20 days remain before the hearing, and the claimant will not waive the right to 20-day notice, reschedule the hearing. (See HALLEX I-2-2-20, Objections to the Issues.)

2. Hearing in Progress

   If an ALJ discovers for the first time during a hearing that DAA is an issue in the case, and the claimant will not waive the right to 20-day notice of the new issue, the ALJ should adjourn the hearing and continue it at a later date. (See HALLEX I-2-6-80, Continued or Reopened Hearing.)

3. Hearing Held But Decision Not Issued

   Screen all title II only, title XVI only, and concurrent title II/XVI cases awaiting decision to determine whether DAA is an issue in the case and, if so:

   1. whether the notice of hearing informed the claimant of the DAA issue to be decided or, if not:

   2. whether the ALJ raised the DAA issue for the first time at the hearing and, if so, whether the claimant waived his or her right to 20-day notice of the new issue.

      If DAA is an issue in the case, and:

   3. the notice of hearing did not inform the claimant of the DAA issue to be decided and the ALJ did not raise the DAA issue at the hearing, or

   4. the ALJ raised the DAA issue for the first time at the hearing but the claimant did not waive his or her right to 20-day notice of the new issue.

   The ALJ will provide the claimant the opportunity to:

   1. submit additional evidence and arguments, and

   2. Request a supplemental hearing.

      (See HALLEX I-2-6-80, Continued or Reopened Hearing.)

B. All Other Cases - Hearing Not Yet Scheduled and New Receipts

1. Prehearing Analysis and Case Workup

   When an HO receives a request for hearing and the claim file in a title II only, title XVI only, or concurrent title II/title XVI case, the HO staff will determine whether DAA is an issue in the case and include the specific issue(s) in the summary of the issues and evidence which they prepare for the ALJ. (See I-2-1-5, Conducting Prehearing Case Analysis and Workup.)

2. Issues Before the ALJ

   Daa is an issue in a title II only, title XVI only, or concurrent title II/title XVI case, if the claimant alleges disability due to DAA, or DAA is a primary or secondary diagnosis on the SSA-831, SSA-832, or SSA-833, or there is medical evidence of DAA. (See I-2-2-1, Issues, and the above section IV., Appeal Rights.)

3. Notice of Hearing

   The notice of hearing in a title II only, title XVI only, or concurrent title II/title XVI case, in which DAA is an issue, must include language stating that if the ALJ finds that the claimant is disabled, the ALJ also will decide whether drug addiction or alcoholism is a contributing factor material to the determination of disability. For example:

   “If I find that you are disabled, I also will decide whether drug addiction and/or alcoholism is a contributing factor material to the determination your disability.”

   (See HALLEX I-2-3-15 C., Information to Include on the Notice of Hearing.)

4. Opening Statement at Hearing

   The ALJ will include the DAA issue(s), when appropriate, in the opening statement at the Hearing. (See I-2-6-52, Opening Statement.)

   NOTE:

   If an ALJ discovers for the first time during a hearing that DAA is an issue in the case, and the claimant will not waive the right to 20-day notice of the new issue, the ALJ should adjourn the hearing and continue it at a later date. (See HALLEX I-2-6-80, Continued or Reopened Hearing.)

5. ALJ Decision

   A decision finding the claimant disabled and that DAA is a contributing factor material to the determination of disability is not a fully favorable decision. A decision may be fully favorable if DAA is determined not to be a contributing factor material to the determination of disability and the decision is fully favorable in all other respects.

   NOTE:

   Do not use the expedited fully favorable decision format for any allowance decision in which DAA is an issue.

   1. Rational and Findings

      In all title II only, title XVI only, and concurrent title II/title XVI allowance decisions involving DAA, include appropriate rationale as to whether DAA is a contributing factor material to the determination of disability, and a specific enumerated finding that drug addiction or alcoholism is a contributing factor material to the determination of disability pursuant to Pub. L. 103-296. The finding should use language along the following lines: “I find that your [drug addiction] [alcoholism] [is] [drug addiction and alcoholism are] a contributing factor material to the determination of disability.”

   2. Decisional Paragraph - Sample Language

      1. Title II only cases

         It is the decision of the Administrative Law Judge that, based on the application filed on (a)______, the claimant is entitled to a period of disability commencing (b)______and to disability insurance benefits under sections 2l6(i) and 223, respectively, of the Social Security Act. Further, [drug addiction] [alcoholism] [is] [drug addiction and alcoholism are] a contributing factor material to the determination of the claimant's disability. Pursuant to section 205(j)(1) of the Social Security Act, the payment of disability benefits must be made through an organization or person called a representative payee. Also, pursuant to Section 225(c) of the Social Security Act, the claimant must go for treatment for drug addiction or alcoholism when it is available and make progress in the treatment or the claimant's payments will be stopped. The claimant can get benefits for a total of only 36 months in which treatment is available. If the claimant's payments must be stopped for 12 months in a row because the claimant did not go for the required treatment or did not make progress in the treatment, the claimant's entitlement to benefits will end with the next month. The component of the Social Security Administration responsible for effectuating this decision will further explain the above requirements and advise the claimant regarding finding a qualified organization or person to receive benefits on the claimant's behalf.

      2. Title XVI Only cases

         It is the decision of the Administrative Law Judge that, based on the application filed on (a)_____the claimant has been disabled since (b)_____under section l6l4(a)(3)(A) of the Social Security Act, and that the claimant's disability has continued at least through the date of this decision. Further, [drug addiction] [alcoholism] [is] [drug addiction and alcoholism are] a contributing factor material to the determination of the claimant's disability. Pursuant to Section 1631(a)(2) of the Social Security Act, payments must be made through an organization or person called a representative payee. Also, pursuant to Section 1611(e)(3)(A) of the Social Security Act, the claimant must go for treatment for drug addiction or alcoholism when it is available and make progress in the treatment or the claimant's payments will be stopped. The claimant can get benefits for a total of only 36 months. If the claimant's payments must be stopped for 12 months in a row because the claimant did not go for the required treatment or did not make progress in the treatment, the claimant's eligibility to benefits will end with the next month. the component of the Social Security Administration responsible for effectuating this decision and authorizing payment of title XVI benefits will advise the claimant regarding the nondisability requirements and, if eligible, the amount and month(s) for which payment will be made. They will further explain the above requirements and advise the claimant regarding finding a qualified organization or person to receive benefits on the claimant's behalf.

      3. Concurrent Title II/Title XVI Cases

         It is the decision of the Administrative Law Judge that, based on the application filed on (a)______, the claimant is entitled to a period of disability commencing (b)______and to disability insurance benefits under sections 2l6(i) and 223, respectively, of the Social Security Act. It is the further decision of the Administrative Law Judge that, based on the application filed on (c)_____the claimant has been disabled since (d)_____under section 1614(a)(3)(A) of the Social Security Act, and that the claimant's disability has continued at least through the date of this decision. Further, [drug addiction] [alcoholism] [is] [drug addiction and alcoholism are] a contributing factor material to the determination of the claimant's disability. Pursuant to Section 205(j)(1) of the Social Security Act for title II benefits and Section 1631(a)(2) of the Social Security Act for title XVI benefits, payments must be made through an organization or person called a representative payee. Also, pursuant to Section 225(c) of the Social Security Act for title II benefits and Section 1611(e)(3)(A) for title XVI benefits, the claimant must go for treatment for drug addiction or alcoholism when it is available and make progress in the treatment or the claimant's payments will be stopped. The claimant can get benefits for a total of only 36 months. If the claimant's payments must be stopped for 12 months in a row because the claimant did not go for the required treatment or did not make progress in the treatment, the claimant's entitlement to benefits will end with the next month. The components of the Social Security Administration responsible for effectuating this decision and authorizing payment of title XVI benefits will advise the claimant regarding the nondisabiity requirements and, if eligible, the amount and month(s) for which payment will be made. They will further explain the above requirements and advise the claimant regarding finding a qualified organization or person to receive benefits on the claimant's behalf.

6. Cover Notices For Transmitting Decisions

   1. Use the partially favorable decision cover notice in all title II only, title XVI only, and concurrent title II/title XVI allowance decisions in which DAA is a contributing factor material to the determination of disability.

   2. Use the fully favorable decision cover notice in all title II only, title XVI only, and concurrent title II/title XVI allowance decisions in which DAA is not a contributing factor material to the determination of disability and the decision is fully favorable in all other respects.

7. Routing

   1. Annotate the remarks section of Form HA-5051, Transmittal of Decision or Dismissal by Administrative Law Judge, "DAA IS MATERIAL“ and identify with the letter code ”A“ for alcoholism, ”D“ for drug addiction, or ”B" for both drug addiction and alcoholism.

   2. If DAA was an issue in the case and DAA is not a contributing factor material to the determination of disability, annotate the remarks section of the HA-5051 “DAA NOT MATERIAL.”

   3. For title II only cases, the HO must forward a copy of the hearing decision to the servicing FO.

   4. Follow existing procedures for routing favorable decisions. (See HALLEX I-2-8-45, Hearing Office Tracking System (HOTS) Case Routing.)

A. Favorable ALJ Decision - Claimant Contests DAA Determination

In cases in which a claimant files a request for review of an ALJ decision finding the claimant disabled and determining that DAA is a contributing factor material to the determination of disability, and the claimant does not conditionally agree to have SSA make payments to a representative payee and to comply with treatment requirements pending outcome of the appeal, the AC will need to take action to expedite the disposition of the appeal because SSA will not make payment directly to the claimant while the ALJ's finding that DAA is material stands.

B. Favorable ALJ Decision - ALJ Finds DAA Not material - Own Motion Review

When the ALJ issued a decision finding the claimant disabled and that DAA is not material, and the AC proposes to issue a decision finding the claimant is disabled and DAA is a contributing factor material to the determination of disability, follow section D. 2. below.

C. Unfavorable ALJ Decision - Request for Review or Own Motion Review

When the ALJ issued a decision finding the claimant not disabled, and the AC proposes to issue a decision finding that the claimant is disabled and the AC concludes that DAA is a contributing factor material to the determination of disability, the AC will notify the claimant of its proposed action prior to issuing its decision.

D. Appeals Council Notice

1. Prior Notice Not Required

   The AC will not send prior notice when:

   1. The ALJ gave notice of DAA issues at the hearing; or

   2. the claimant waived 20-day advance notice on DAA issue; or

   3. the record of the hearing contains evidence of DAA submitted by the claimant or representative or the AC receives such evidence after the hearing decision was issued, or

   4. DAA is the only impairment in the case.

      (See HALLEX I-3-6-1 A., General.)

2. Prior Notice Required

   When the AC proposes to find the claimant disabled and that DAA is a contributing factor material to the determination of disability, and

   1. the ALJ did not provide notice of DAA issues at the hearing; or

   2. the claimant did not waive the right to 20-day advance notice on DAA issue; or

   3. the record of the hearing does not contain evidence of DAA submitted by the claimant or representative or the AC does not receive such evidence in connection with the request for review; and

   4. DAA is not the only impairment in the case:

   The AC will provide notice of its intention to issue a decision finding that the claimant is disabled and that DAA is a contributing factor material to the determination of disability. The notice will specifically state that the claimant has the right to a hearing. The AC's notice will also state that if the claimant asks for a hearing, all issues will be before the ALJ, including the issue of whether the claimant is disabled. See HALLEX I-3-6-1 B., Grant Review Notices When Prior Notice Is Required.

   If the claimant subsequently requests a hearing, the AC will remand the case to an ALJ.

   If the claimant does not request a hearing, or merely submits evidence or comments for AC consideration, or does not respond to the AC notice, the AC will proceed with its decision.

E. Appeals Council Decision

A decision finding the claimant disabled and that DAA is a contributing factor material to the determination of disability is not a fully favorable decision. A decision may be fully favorable if DAA is determined not to be a contributing factor material to the determination of disability and the decision is fully favorable in all other respects.

1. Rationale and Findings

   In all title II only, title XVI only, and concurrent title II/title/XVI allowance decisions involving DAA, include appropriate rationale as to whether DAA is a contributing factor material to the determination of disability, and a specific enumerated finding that drug addiction or alcoholism is a contributing factor material to the determination of disability pursuant to Pub. L. 103-296. The finding should use language along the following lines: “The Appeals Council finds that your [drug addiction] [alcoholism] [is] [drug addiction and alcoholism are] a contributing factor material to the determination of disability.”

2. Decisional Paragraphs

   Use decisional paragraph language along the lines of the decisional paragraph sample language in section V. B. 5. b. (1)-(3) above, modifying the language as appropriate.

3. Cover Notice For Transmitting Decisions

   1. Use the partially favorable decision cover notice in all title II only, title XVI only, and concurrent Title II/title XVI allowance decisions in which DAA is a contributing factor material to the determination of disability.

   2. Use the fully favorable decision cover notice in all title II only, title XVI only, and concurrent title II/title XVI allowance decisions in which DAA is not a contributing factor material to the determination of disability and the decision is fully favorable in all other respects.

4. Routing

   1. Annotate the remarks section of Form HA-505, “DAA IS MATERIAL” and identify with the letter code “A” for alcoholism, “D” for drug addiction, or “B” for both drug addiction and alcoholism.

   2. If DAA was an issue in the case and DAA is not a contributing factor material to the determination of disability, annotate the remarks section of the HA-505 “DAA NOT MATERIAL.”

   3. For title II only cases, the AC must forward a copy of the AC decision to the servicing FO.

   4. Follow existing procedures for routing partially favorable decisions. (See HALLEX I-3-8-21, Release of Files -- Fully or Partially Favorable Decision.)