# Benefit Reforms for Individuals Disabled Based on Drug Addiction or Alcoholism; Proposed Rule DEPARTMENT OF HEALTH AND HUMAN SERVICES > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A94-25747 ## Record - **Collection:** Federal Register - **Document type:** Uncategorized Document - **Published:** October 17, 1994 ## Text 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] BILLING CODE 4190-29-P --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A94-25747. Public record. Not legal advice.