Benefit Reforms for Individuals Disabled Based on Drug Addiction or Alcoholism; Proposed Rule DEPARTMENT OF HEALTH AND HUMAN SERVICES

SUMMARY: The Social Security Independence and Program Improvements Act

of 1994 contains provisions affecting benefits under titles II and XVI

of the Social Security Act to individuals whose medically determined

drug addiction or alcoholism (DA&A) is a contributing factor material

to the finding of disability. Most of these provisions are effective

for benefits payable beginning March 1, 1995. Certain implementing

regulations must be issued by February 11, 1995, 180 days after

enactment. The Secretary of Health and Human Services (the Secretary)

is requesting early public comment on several important policy issues.

The Department of Health and Human Services (HHS) and the Social

Security Administration (SSA) plan to use the comments, along with

other public views and information obtained, to help formulate rules

necessary to implement some provisions. For provisions not requiring

final regulations by February 1995, principally representative payment

provisions, HHS plans to issue a Notice of Proposed Rulemaking to

solicit public comments.

DATES: To be sure your comments are considered, we must receive them no

later than November 16, 1994.

ADDRESSES: Comments should be submitted in writing to the Commissioner

of Social Security, Department of Health and Human Services, P.O. Box

1585, Baltimore, Maryland 21235, sent by telefax to (410) 966-2830, or

delivered to the Division of Regulations and Rulings, Social Security

Administration, 3-B-1 Operations Building, 6401 Security Boulevard,

Baltimore, Maryland 21235, between 8:00 a.m. and 4:30 p.m. on regular

business days. Comments may be inspected during these same hours by

making arrangements with the contact person shown below.

FOR FURTHER INFORMATION CONTACT: Regarding this Federal Register

document--Richard M. Bresnick, Legal Assistant, Division of Regulations

and Rulings, Social Security Administration, 6401 Security Boulevard,

Baltimore, MD 21235, (410) 965-1758; regarding eligibility or filing

for benefits--our national toll-free number, 1-800-772-1213.

SUPPLEMENTARY INFORMATION:

I. Background

Section 201 of the Social Security Independence and Program

Improvements Act of 1994, Public Law (Pub. L.) 103-296, enacted August

15, 1994, contains several provisions affecting the payment of Social

Security and supplemental security income (SSI) benefits to individuals

whose medically determined drug addiction or alcoholism (DA&A) is a

contributing factor material to the finding of disability. (For ease of

reference in this Notice of Intent, we refer to these individuals as

being ``disabled based on DA&A.'') The provisions may affect

individuals currently receiving benefits, as well as those awarded

benefits in the future.

The law places new restrictions on Social Security and SSI benefit

payments to individuals disabled based on DA&A, which are intended to

discourage a beneficiary from using Social Security or SSI benefits to

support an addiction. It also requires the Secretary to promulgate

regulations necessary to implement the statutory provisions by February

11, 1995.

HHS decided to request advance comments on the provisions involving

nonpayment or termination of benefits under section 201 of Public Law

103-296 for several reasons. Congress mandated in the law that in

promulgating the required regulations we consult with professionals in

the field of DA&A treatment. This consultation must take place before

the regulations can be drafted. We also believe it warranted that we

obtain public comment on the novel program requirements of the law and

policy issues at the same time. In addition, it is clear from the law

that HHS must have regulations in place by February 11, 1995.

Accordingly, we are seeking advance public comments to be used in the

initial formulation of the rules through this request. In addition, we

have requested individual comments directly from various treatment

professionals and advocacy groups around the country. We are holding

and attending meetings with various treatment professionals,

representatives of referral and monitoring agencies (RMAs), and others

with knowledge of DA&A-related issues to discuss, in general,

contemporary treatment philosophies and receive the individual views of

those in attendance.

II. Summary of DA&A Provisions Prior to the Passage of Public Law 103-

296

Prior to the passage of Public Law 103-296, there were no special

program rules for Social Security DA&A beneficiaries. SSI beneficiaries

disabled based on DA&A were required to receive payment through a

representative payee. These SSI beneficiaries are required to undergo

treatment, when available, at approved facilities. They also must

comply with the terms of their treatment program and take part in the

monitoring and testing procedures established by the Secretary.

III. Major DA&A-Related Provisions of Public Law 103-296 Involving

Nonpayment or Termination of Benefits

A. Payment Limitation

The payment of SSI benefits will be limited to 36 months for

individuals disabled based on DA&A. Also, the payment of Social

Security benefits will be limited to 36 months, but this limitation

will begin with the first month for which treatment is available, and

only months for which treatment is available are counted in the 36-

month period. The 36-month DA&A payment restrictions for both Social

Security and SSI benefits will cease to be effective with respect to

benefits for months after September 2004. Medicare and Medicaid

benefits will continue as long as a DA&A beneficiary whose benefits

have been suspended for less than 12 months, or terminated after 36

months, continues to be disabled and otherwise eligible. Dependents'

benefits will continue as long as the DA&A beneficiary whose benefits

have been suspended, or terminated after 12 months of noncompliance or

the 36-month payment limit, continues to be disabled and otherwise

eligible. The payment limit will not apply to individuals who are

disabled independent of their DA&A. Suspension months will not be

counted in the 36 months.

B. Suspension for Noncompliance

Benefits will be suspended for noncompliance with treatment for

both Social Security and SSI beneficiaries, beginning the first month

following the month beneficiaries are notified of such noncompliance.

Once an individual is determined to be in noncompliance and benefits

are suspended, benefits must continue to be suspended until after the

beneficiary demonstrates compliance with treatment requirements for

specified periods--a minimum of 2 months, 3 months, and 6 months,

respectively, for the first, second, and third or subsequent instances

of noncompliance. Suspension of benefits for 12 consecutive months for

noncompliance will result in termination of benefits.

C. Treatment Requirement

The treatment participation requirement, which now applies only to

SSI beneficiaries, will be extended to Social Security beneficiaries

disabled based on DA&A. Additionally, SSA will be required to provide

for the monitoring of progress in treatment. The provision is to be

implemented beginning after the effective date with newly adjudicated

cases and Social Security beneficiaries already on the rolls with a

primary diagnosis of DA&A and extended to other applicable

beneficiaries as quickly as possible.

D. Referral and Monitoring Agencies (RMAs)

Contracts with RMAs are in place in most States as a result of

statutory requirements that the Secretary provide for the monitoring

and testing of title XVI DA&A beneficiaries. Pursuant to Public Law

103-296, new RMA contracts must be established in each State and

regulations must be issued which define appropriate treatment and

establish guidelines to be used to review and evaluate compliance and

measure progress for individuals disabled based on DA&A. The new

contracts are needed in part because the RMAs will handle additional

workloads (i.e., title II beneficiaries) and will take on additional

functions. New regulations are required by the legislation to implement

the new program requirements.

E. Retroactive Benefits

The law requires incremental payment, on a prorated basis, of

retroactive Social Security and SSI benefits to individuals disabled

based on DA&A, with a limited exception for those who have outstanding

debts related to housing and are at high risk of homelessness.

Retroactive benefits due an individual whose entitlement terminates

will continue in prorated amounts until they are fully paid. No

retroactive payments will be made in periods of suspension for

noncompliance with treatment requirements. In addition, if a

beneficiary dies without having received all retroactive benefits, the

unpaid amount is treated like any other underpayment.

IV. Policy Questions

The statutory provisions regarding nonpayment and termination of

benefits present many novel policy issues. SSA has made separate

contacts with DA&A treatment professionals to obtain views on issues of

treatment, compliance and monitoring. In addition, SSA is facing many

operational issues in terms of putting the processes and systems in

place to implement these provisions. This request for public comments

is focused on the policy issues which, in our opinion, have a broad

public import, and on which SSA will benefit from receiving a wide

range of public views.

The questions which follow may necessitate different responses

depending on whether the answer relates to alcoholism or to different

types of drug addiction. SSA requests that commenters identify to which

type(s) of addiction a particular response applies. Public comments are

requested on the following policy issues:

A. Defining Appropriate Treatment

The new legislation requires that individuals disabled based on

DA&A undergo appropriate substance abuse treatment. Currently, there

are no specific guidelines in the regulations which define

``appropriate treatment.'' HHS defines ``appropriate treatment'' at

Sec. 416.937 for SSI cases as ``recognized medical or other

professional procedures for treatment of drug addiction or alcoholism

which is carried out at or under the supervision of, an approved

institution or facility (or facilities). This treatment may include--

(a) Medical examination and treatment; (b) Psychiatric, psychological

and vocational counselling; or (c) Other appropriate services for drug

addiction or alcoholism.'' Instead of requiring the use of specific

regulatory guidelines, SSA has directed employees of treatment

facilities or of RMAs under contract with SSA to make judgments in

determining appropriate treatment.

SSA is considering adopting a policy defining ``appropriate

substance abuse treatment'' for individuals disabled based on DA&A in

general terms under which SSA would continue to rely on the judgments

of treatment professionals. For example, a general definition of

appropriate treatment could refer to substance abuse treatment which

serves the need of the individuals in the least restrictive setting.

Accordingly, appropriate treatment would be determined on the basis of

a comprehensive assessment in which each individual's needs are defined

and compliance with such individualized treatment would be overseen by

an approved institution or facility as defined in regulations. SSA may

also incorporate the examples from our current regulations cited above.

Questions: What is considered ``appropriate'' substance abuse

treatment? What factors should be considered in placing an individual

in treatment? What ranges of treatment modalities fall within an

appropriate treatment spectrum for the most common types of substance

abuse problems? Recognizing that some individuals may abuse more than

one substance, how should ``appropriate treatment'' be defined when

there is more than one substance involved? With the objective of

placing as many clients as possible in appropriate treatment, how

should the parameters of appropriate treatment be defined, i.e., what

would be the circumstances under which the client would not benefit

from treatment? Should the regulations refer generally to individual

assessments being made by professionals or should specific treatment

guidelines be included?

B. Availability of Treatment

The legislation requires the disabled individual to undergo

treatment which is ``available'' but does not define the term. The

current substance abuse treatment requirements are applicable only to

title XVI beneficiaries, and not to title II beneficiaries. The current

regulations at Sec. 416.939 provide guidance on when treatment for DA&A

is considered available for title XVI beneficiaries. Generally, SSA

determines whether treatment is available based on: obtaining a

treatment vacancy at no cost to the individual; the location of the

facility; availability and cost of transportation to the individual;

the individual's general health; the individual's particular condition

and circumstances; and, the treatment that is required.

SSA is considering the adoption of the same guidelines for

determining the availability of treatment to title II and title XVI

beneficiaries. However, we would like to receive any comments on

whether these guidelines are adequate or if other factors should be

considered.

Questions: How should SSA define available substance abuse

treatment? Should availability take into consideration the client's

access to transportation, education, familial situation and/or health?

What other factors should be considered, if any? Should clients seeking

readmission to treatment after a period of noncompliance be given

priority for a treatment slot over other clients awaiting initial

intake into treatment?

C. Defining and Measuring Progress

Currently, SSA has no rules for defining and measuring progress

expected to be achieved by participants in treatment programs. The law

requires that such regulations be developed in establishing guidelines

used to review and evaluate compliance with treatment. Treatment

professionals may have differing views and opinions on defining and

measuring progress. Progress is related to compliance. Currently,

providers determine treatment and measures of progress. The difficult

task for SSA is to determine to what extent it can be externally

validated. SSA is considering defining parameters of progress as

clinical measures, such as attendance, participation in activities,

changes in physical and mental limitations, degree of abstinence, drug

testing results, attitude, cooperation, mental/psychological status and

instances of relapse.

Questions: What constitutes progress in substance abuse treatment?

What are the most effective and reliable means of measuring progress in

substance abuse treatment? How can these be quantified and reported

regularly in a cost-effective mode? What methods currently exist for

validating progress with treatment?

D. Evaluating Compliance With Treatment

Currently, there are no specific guidelines in the regulations to

evaluate beneficiaries' compliance with the treatment requirements.

Determinations on compliance generally have been based on judgments

made by employees of the treatment facilities or of the RMAs under

contract with SSA. The statute requires that the Secretary issue

regulations establishing guidelines for evaluating whether individuals

entitled to benefits based on DA&A are in compliance and progressing

with treatment requirements.

There are a wide range of issues that pertain to evaluating

compliance with treatment, including views on how to define success

within a treatment modality. For example, some believe that individuals

can be expected to undergo periods of drug or alcohol use even though

they are following a treatment plan in large part.

Questions: What are the factors we should use to evaluate

compliance with substance abuse treatment? How should a relapse be

treated or evaluated for purposes of compliance? Are there varying

degrees of relapse which may or may not indicate noncompliance? While

one isolated incident may not be defined as noncompliance, what number

of ``second chances'' should be provided? Should positive drug or

alcohol tests be used as a tool to measure compliance? If yes, how,

i.e., a single test, a certain number of tests, or tests in conjunction

with other indicators? If other indicators should be factored in, what

are those indicators? How reliable are these tests? Are there other

types of testing or criteria that could be used to monitor compliance

with the substance abuse treatment requirements? How frequently should

testing be done? What are the customary and reasonable charges for

testing? How and by whom are test specimens (blood, urine, breath)

collected? Should this be done outside a clinical or laboratory

setting, and can it be done properly and effectively outside such a

setting? If so, please provide examples of appropriate nonclinic-based

procedures.

How should SSA evaluate compliance with Alcoholics Anonymous and

Narcotics Anonymous? SSA is considering a requirement for individuals

to get signed statements of attendance.

E. Frequency of Monitoring by the RMA

Currently, the treatment requirements have been applicable only to

title XVI beneficiaries, and not to title II beneficiaries.

Accordingly, although there are RMAs under contract in most States,

they serve only the title XVI population and the referral and

monitoring work presently being performed is not as extensive as the

new legislation requires. There are no regulations regarding the

referral and monitoring functions.

The law requires SSA to establish one or more RMAs in each State.

One function of the RMA will be to monitor progress and compliance with

the treatment program. Currently, SSA's contracts with RMAs require

monitoring weekly for the 1st month; bi-weekly for the 2nd and 3rd

months; then monthly for the 4th through 12th months of treatment. SSA

is considering a requirement that, initially, each client be monitored

bi-weekly for the first 3 months and monthly thereafter. Ongoing

monthly monitoring is consistent with legislative requirements that

benefits can be suspended on a monthly basis.

Monthly monitoring results in considerable administrative cost to

the Agency. If reliable monitoring can be accomplished on a quarterly

or semi-annual basis, the net administrative cost would be reduced.

Questions: SSA would appreciate receiving views on whether a

monitoring schedule other than monthly could be more effective. In

other words, how frequently should the average DA&A beneficiary be

monitored by SSA's RMA to assure the beneficiary is in compliance with

the terms and conditions for treatment, including measuring progress in

treatment? Should frequency of monitoring change in the course of the

treatment program? If so, under what circumstances?

F. Defining ``Good Cause'' for Failure To Comply

Currently, payments are suspended if a title XVI beneficiary

entitled to disability based on DA&A fails to comply with available

treatment. When benefits are suspended for noncompliance, the

suspension continues until the individual undergoes the required

treatment and compliance is verified or the benefits are terminated

(see Sec. 416.1326). There are no current title II provisions requiring

treatment for DA&A or sanctioning noncompliance with treatment. There

also are no rules for establishing ``good cause'' for not complying

with treatment. However, ``good cause'' is an established concept that

is applied in other contexts in evaluating the fulfillment of program

requirements in both the Social Security and SSI benefits programs.

The legislation extends the requirement for suspension of benefits

for noncompliance to title II beneficiaries. Individuals entitled to a

benefit based on DA&A are required to comply with substance abuse

treatment requirements. A beneficiary who fails to comply with

treatment requirements will have his/her benefits suspended beginning

with the first month after he/she has been notified of the

determination of noncompliance. SSA is considering implementing

regulations which would provide a ``good cause'' exception to this

requirement and which could set forth examples of ``good cause'' for

not complying with the treatment requirement. There are a multitude of

possible definitions of ``good cause,'' ranging from hospitalization or

other health-related events to personal emergencies such as a death in

the family or illness of a family member. On the other hand, inability

to comply due to ramifications resulting from the abuse of drugs or

alcohol should not be ``good cause.''

Questions: What should constitute ``good cause'' for failing to

comply with prescribed substance abuse treatment? What should not

constitute ``good cause?'' Are there certain obstacles to complying

with treatment that these individuals should be able to overcome?

G. Costs and Benefits

SSA is not now in a position to assess the societal costs and

benefits of the provisions in a manner that would produce specific

quantitative estimates for public comment. At this time, we cannot

predict the future effect of encouraging treatment and rewarding

compliance versus noncompliance with the program requirements and the

resulting suspension or termination. For example, it is possible that

significantly more beneficiaries will successfully complete treatment

as a result of the new requirements. Because of the limitation of

existing data and analytic models as well as limited Agency resources,

SSA cannot provide a quantitative estimate of such effects. We intend

to publish in the Federal Register at the time of promulgation of the

interim final rule, an evaluation of the prospective quantifiable and

non-quantifiable costs and benefits of the rule and of reasonable

alternative approaches considered in the development of the rules. At

this time, we are limited to a description of some of the potential

costs and benefits that will need to be considered.

Benefits

The first type of benefit which should be realized from these new

program requirements is an increase in the number of substance-

dependent individuals receiving treatment. Other potential benefits to

society include a reduction in Social Security and SSI program

expenditures due to the 36-month payment restriction and suspension of

benefits for noncompliance with treatment requirements. The number of

individuals receiving treatment may grow because these requirements

would make benefits conditioned on compliance with available treatment.

To the extent that treatment is successful, these individuals may

realize improved mental and/or physical health, reducing use of public

and private health facilities. They may be more receptive and prepared

for vocational rehabilitation and/or return to work. Although

reductions in substance dependency offer a broad array of benefits to

society, the difficulties of quantifying and valuing them lead us to

concentrate our efforts in this benefits assessment on changes in the

number of individuals receiving treatment and the likely reductions in

their substance dependencies.

Costs

Savings to the Social Security and SSI programs will not accrue

without a significant expenditure of Federal administrative resources.

SSA personnel must closely track individuals throughout their months of

eligibility. They will process suspensions and terminations, select

representative payees, and respond to reports of noncompliance with

required treatment.

SSA will enter into contracts with RMAs to assess treatment needs

of beneficiaries, refer beneficiaries for treatment, monitor treatment,

and report to SSA on beneficiary compliance (including progress with

the treatment plan). The RMA structure required by the statute will

represent a significant program cost.

Additionally, the substance abuse treatment to which these

individuals are referred will have a significant cost. Including this

cost in the analysis is appropriate to the extent that the benefits of

increased participation in treatment programs is also included.

Beneficiaries generally cannot be required to pay for the treatment

themselves. Therefore, the cost of treatment will need to be absorbed

by existing governmental sources, including Medicare and Medicaid, and

private sources.

The administrative requirements for implementation of the

provisions may result in ``burdens'' on members of the public (e.g.,

completion of forms and types of information collection) which are

subject to clearance by the Office of Management and Budget (OMB). If

such is the case, required clearance will be obtained from OMB prior to

implementation of interim final regulations.

The costs and benefits of the provisions are driven by the

statutory requirements. This Department would welcome any comments or

suggestions for reducing administrative costs and reducing the burden

on individuals, RMAs, substance abuse treatment providers and other

entities. Such information will help us refine the necessary policies

and procedures. Our aim is to carry out the Congressional mandate at

the least possible cost and burden to organizations and members of the

public.

V. Request for Comments

To maximize public participation early in the rulemaking process,

we invite you to comment on the cost and benefit issues raised in this

request, particularly with respect to any policy recommendations in

response to this solicitation. In addition, we solicit comments on

particular policy issues, such as the definition of ``compliance,''

``good cause,'' and ``appropriate treatment.'' Finally, we request

comments on any other aspects of the provisions of the provisions of

the law related to the nonpayment and termination of benefits on behalf

of individuals disabled based on DA&A.

VI. Next Steps

After analysis of the comments received in response to this

request, as well as the other information obtained, HHS plans to

develop and publish interim final regulations to implement the

regulations required to be in place by February 11, 1995. In the

interim final regulations, we will provide another opportunity for

public comment. After the end of that comment period, we plan to

analyze the comments and determine whether changes to our interim final

regulations are warranted.

VII. Authority

The authority citation for this request is: Secs. 205(a), 221,

225, 1102, 1611, 1614, 1631, and 1633 of the Social Security Act; 42

U.S.C. 405(a), 421, 425, 1302, 1382, 1382c, 1383 and 1383b; and sec.

201 of Pub. L. 103-296.

Dated: October 7, 1994.

Shirley S. Chater,

Commissioner of Social Security.

Approved: October 12, 1994.

Donna E. Shalala,

Secretary of Health and Human Services.

[FR Doc. 94-25747 Filed 10-13-94; 1:17 pm]

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