SOCIAL SECURITY ACT
DISABILITY DETERMINATIONS
Sec.
221. [42 U.S.C. 421] (a)(1) In the case of any individual, the determination of
whether or not he is under a disability (as defined in section 216(i) or 223(d)
and of the day such disability began, and the determination of the day on which
such disability ceases, shall be made by a State agency, notwithstanding any
other provision of law, in any State that notifies the Commissioner of Social
Security in writing that it wishes to make such disability determinations
commencing with such month as the Commissioner of Social Security and the State
agree upon, but only if (A) the Commissioner of Social Security has not found
under subsection (b)(1), that the State agency has substantially failed to make
disability determinations in accordance with the applicable provisions of this
section of rules issued thereunder, and (B) the State has not notified the
Commissioner of Social Security, under subsection (b)(2), that it does not to
make such determinations. If the Commissioner of Social Security once makes the
finding described in clause (A) of the preceding sentence, or the State gives
the notice referred to in clause (B) of such sentence, the Commissioner of
Social Security may thereafter determine whether (and, if so, beginning with
which month and under what conditions) the State may again make disability
determinations under this paragraph.
(2) The disability determinations described in
paragraph (1) made by a State agency shall be made in accordance with the pertinent
provisions of this title and standards and criteria contained in regulations or
other written guidelines of the Commissioner of Social Security pertaining to
matters such as disability determinations, the class or classes of individuals
with respect to which a State may make disability determinations (if it does
not wish to do so with respect to all individuals in the State) and the
conditions under which it may choose not to makes all such determinations. In
addition, the Commissioner of Social Security shall promulgate regulations
specifying, in such detail as the Commissioner deems appropriate, performance
standards and administrative requirements and procedures to be followed in
performing the disability determination function in order to assure effective
and uniform administration of the disability insurance program throughout the
United States. The regulations may, for example, specify matters such as-
(A)
the administrative
structure and the relationship between various units of State agency responsible
for disability determinations,
(B) the physical location of and relationship among agency staff units, and other individuals or organizations performing tasks for the availability to applicants and beneficiaries of facilities for making disability determinations,
© State agency performance criteria, including the rate of accuracy of decisions, the time periods within determinations must be made, the procedures for and the scope of review by the Commissioner of Social Security, and as the Commissioner finds appropriate, by the State, of its performance in individual cases and in classes of cases, and rules governing access of appropriate Federal officials to State offices and to State records relating to its administration of the disability determination function,
(D)
fiscal control procedures that the State agency may be required to adopt, and
(E) the submission of reports and other data, in such form and at such time as the Commissioner of social Security may require, concerning the State agency’s activities relating to the disability determination.
Nothing in this section shall be construed to
authorize the Commissioner of Social Security to take any action except
pursuant to law or to regulations promulgated pursuant to law.
(b)(1) If the Commissioner of Social Security
finds, after notice and opportunity for a hearing, that a State agency is
substantially failing to make disability determinations in a manner consistent
with the commissioner’s regulations and other written guidelines, the Commissioner
of Social Security shall, not earlier than 180 days following the
Commissioner’s finding, and after the Commissioner has complied with the
requirements of paragraph (3), make the disability determinations referred to
in subsections (a)(1).
(2) If a State, having notified the Commissioner of
Social Security of its intent to make disability determinations under
subsection (a)(1), no longer wishes to make such determinations, it shall
notify the Commissioner of Social Security in writing of that fact, and, if
agency of the State is making disability determinations at the time such notice
is given, it shall continue to do so for not less than 180 days, or (if later)
until the Commissioner of Social Security has complied with the requirements of
paragraph (3).
Thereafter, the Commissioner of Social Security
shall make the disability determinations referred to in subsection (a)(1).
(3)(A) The Commissioner of Social Security shall
develop and initiate all appropriate procedures to implement a plan with respect
to any partial or complete assumption by the Commissioner of Social Security of
the disability determination function from State agency, as provided in this
section, under which employees of the affected State agency who are capable of
performing duties in the disability determination process for the Commissioner
of Social Security shall, notwithstanding any other provision of law, have a
preference over any other individual in filling an appropriate employment
position with the Commissioner of Social Security (subject to any system
established by the Commissioner of Social Security for determining hiring
priority among such employees of the State agency) unless any such employee is
the administrator, the deputy administrator, or assistant administrator (or his
equivalent) of the State agency, in which case the Commissioner of Social
Security may accord such priority to such employee.
(B) The Commissioner of Social Security shall not
make such assumption of the disability determination function until such time
as the Secretary of Labor determines that, with respect to employees of such
State agency who will be displaced from their employment on account of such
assumption by the Commissioner of Social Security and who will not be hired by
the Commissioner of Social Security to perform duties in the disability
determination process, the State has made fair and equitable arrangements to
protect the interests of employees so displaced. Such protective arrangements
shall include only those provisions which are provided under all applicable
Federal, State and local statutes including, but not limited to (i) the
preservation of rights, privileges, and benefits (including continuation of
pension rights and benefits) under existing collective-bargaining agreements;
(ii) the continuation of collective-bargaining rights; (iii) the assignment of
affected employees to other jobs or to retraining programs; (iv) the protection
of individual employees against a worsening of their positions with respect to
their employment; (v) the protection of health benefits and other fringe
benefits; and (vi) the provision of severance pay, as may be necessary.
(c)(1) The Commissioner of Social Security may on
the Commissioner’s own motion or as required under paragraphs (2) and (3) review
a determination, made by State agency under this section, that an individual is
or not under a disability (as defined in section 216(i) or 223(d) and, as a
result of such review, may modify such agency’s determination and determine
that such individual either is or is not under a disability (as so defined) or
that such individual’s disability began on a day earlier or later than that
determined by such agency, or that such disability ceased on a day earlier or
later than that determined by such agency. A review by the Commissioner of
Social Security on the Commissioner’s own motion of State agency determination
under this paragraph may be made before or after any action is taken to
implement such determination.
(2) The Commissioner of Social Security (in
accordance with paragraph (3)) shall review determinations, made by State
agencies pursuant to this section, that individuals are under disabilities (as
defined in section 216(i) or 223(d)). Any review by the Commissioner of Social
Security of State agency determination under this paragraph shall be made
before any action is taken to implement such determination.
(3)(A) In carrying out the provisions of paragraph
(2) with respect to the review of determinations made by State agencies
pursuant to this section that individuals are under disabilities (as defined in
section 216(i) or 223(d)), the Commissioner of Social Security shall review.
(i) at least 50 percent of all such determinations
made by State on applications for benefits under this title, and (ii) other
determinations made by State agencies pursuant to this section to the extent
necessary to assure a high level of
accuracy in such other determinations.
(B) In conducting reviews pursuant to subparagraph
(A), the Commissioner of Social Security shall, to extent feasible, select for
review those determinations which the Commissioner of Social Security
identifies as being the most likely to be incorrect.
(C) Not later than April 1, 1992, and annually
thereafter, the Commissioner of Social Security shall submit to the Committee
on Ways and Means of House of Representatives and the Committee on Finance of
the Senate a written report setting forth the number of reviews conducted under
subparagraph (A)(ii) during the preceding fiscal year and finding of the
Commissioner of Social Security based on such reviews of the accuracy of
determinations made by State agencies pursuant to this section.
(d) Any individual dissatisfied with any
determination under subsection (a), (b), (c), or (g) shall be entitled to a
hearing thereon by the Commissioner of Social Security to the same extent as is
provided in section 205(b) with respect to decisions of the Commissioner of
Social Security, and to judicial
review of by the Commissioner’s final decision after such hearing as is
provided in section 205(g).
(e) Each State which is making disability
determinations under subsection (a)(1) shall be entitled to receive from the
Trust Funds, in advance or by way of reimbursement, as determined by the
Commissioner of Social Security, the cost to the State of making disability
determinations under subsection (a)(1). The Commissioner of Social Security
shall from time to time certify such amount as is necessary for this purpose to
the Managing trustee, reduced or increased, as the case may be, by any sum (for
which adjustment hereunder has not previously been made) by which the amount
certified for any prior period was greater or less than the amount which should
have been paid to the State under this subsection for such period; and Managing
Trustee, prior to audit or settlement by General Accounting Office, shall make
payment from the Trust Fund at the time or times fixed by the Commissioner of
Social Security, in accordance with such certification. Appropriate adjustments
between the Federal Old-Age and Survivors Insurance Trust Fund and the Federal
Disability Insurance Trust Fund with respect to the payments made under this
subsection shall be made in accordance with paragraph (1) of subsection (g) of
section 201 (but taking into account any refunds under subsection (f) of this
section) to insure that the Federal Disability Insurance Trust Fund is charged
with all expenses incurred which are attributable to the administration of
section 223 and the Federal Old Age and Survivors Insurance Trust Fund is
charged with all other expenses.
(f) All money paid to State under this section
shall be used solely for the purposes for which it is paid; and any money so
paid which is not used for such purposes shall be returned to the Treasury of
the United States for deposit in the Trust Funds.
(g) In the case of individuals in the State which
does not undertake to perform disability determinations under subsection
(a)(1), or which has been found by the Commissioner of Social Security to have
substantially failed to make disability determinations in a manner consistent
with the Commissioner’s regulations and guidelines, in the case of individuals
outside the United States, and in the case of any classes of individuals for
whom no State undertakes to make disability determinations, the determinations
referred to in subsection (a) shall be made by the Commissioner of Social
Security in accordance with regulations prescribed by the Commissioner.
(h) An initial determination under subsection (a),
(c), (g), or (i) that an individual is not under a disability, in case where
there is evidence which indicates the existence of a mental impairment, shall
be made only if the Commissioner of Social Security has made every reasonable
effort to ensure that a qualified psychiatrist or psychologist has completed
the medical portion of the case review and any applicable residual functional
capacity assessment.
(i)(1) In any case where an individual is or has
been determined to be under a disability, the case shall be reviewed by the
applicable State agency or the Commissioner of Social Security (as may be
appropriated), for purpose of continuing eligibility, at least once every 3
years, subject to paragraph (2); except that where a finding has been made that
such disability is permanent, such reviews shall be made at such as the
Commissioner of Social Security determines to be appropriate. Reviews of cases
under the preceding sentence shall be in addition to, and shall not be
considered as a substitute for, any other reviews which are required or
provided for under or in the administration of this title.
(2) The requirement of paragraph (1) that cases be
reviewed at least every 3 years shall not apply to the Social Security
determines, on State-by-State basis, that such requirement should be waived to
insure that only the appropriated number of such cases are reviewed. The
Commissioner of Social Security shall determine the appropriate number of cases
to be reviewed in each State after consultation with the State agency
performing such reviews, based upon the backlog of pending reviews, the
projected number of new applications for disability insurance benefits, and the
current and projected staffing levels of State agency, but the Commissioner of
Social Security shall provide for a waiver of such requirement only of a State
which makes a good faith effort to meet proper staffing requirements for the
State agency and to process case reviews in a timely fashion. The Commissioner
of Social Security shall report annually to the Committee on Finance of the
Senate and the Committee on Way and Means of the House of Representatives with
respect to the determinations made by the Commissioner of Social Security under
the preceding sentence.
(3) The Commissioner of Social Security shall
report annually to the Committee on Finance of the Senate and the Committee on
Way and Means of the House of Representatives with respect to the number of
reviews of continuing disability carried out under paragraph (1), the number of
such reviews which result in an initial termination of benefits, the number of
requests for reconsideration of such initial termination or for a hearing with
respect to such termination under subsection (d), or both, and the number of
such initial terminations which are overturned as the result of a
reconsideration or hearing.
(4) In any case in which the Commissioner of Social
Security initiates a review under this subsection of the case of individual who
has been determined to be under a disability, the Commissioner of Social
Security shall notify such individual of the nature of the review to be carried
out, the possibility that such review could result in the determination of
benefits, and the right of the individual to provide medical evidence with
respect to such review.
(j) The Commissioner of Social Security shall
prescribe regulations which set forth, in detail-
(1) the standards to be utilized by State
disability determination services and Federal personnel in determining when a
consultative examination should be obtained in connection with disability
determinations;
(2) standards for the type of referral to be made;
and
(3) procedures by which the Commissioner of Social
Security will monitor both the referral processes used and the product of
professionals to whom cases are referred.
Nothing in
this subsection shall be construed to prelude the issuance, in accordance with
section 553(b)(A) of title 5, United
States Code, of interpretive rules, general statements of policy, and rules of
agency organization relating to consultative examinations if such rules and
statements are consistent with such
regulations.
(k)(1) The Commissioner of Social Security shall
establish by regulation uniform standards which shall be applied at all levels
of determination, review, and adjudication in determining whether individuals
are under disabilities as defined in section 216(i) or 223(d).
(2) Regulations promulgated under paragraph (1)
shall be subject to the rulemaking procedures established under section 553 of
title 5, United States Code (See Vol. II, Title 5)
(I)(1) In any case where an individual who is
applying for or receiving benefits under this title on the basis of disability
by reason of blindness is entitled to receive notice from the Commissioner of
Social Security of any decision or determination made or other action taken or
proposed to be taken with respect to his or her rights under this title, such
at his or her election be entitled either (A) to receive a supplementary notice
of such decision, determination, or action, by telephone, within 5 working days
after the initial notice is mailed, (B) to receive the initial notice in the
form of a certified letter , or (C) to receive notification by some alternative
procedure established by the Commissioner of Social Security and agreed to by
the individual.
(2) The election under paragraph (1) may be made at
any time but an opportunity to make such an election shall in any event be
given, to every individual who is an applicant for benefits under this title on
the basis of disability by reason of blindness, at the time of his or her
application. Such an election, once made by an individual, shall apply with
respect to all notices of decisions , determinations, and actions which such
individual may thereafter be entitled to receive under this title until such
time as it is revoked or changed.