Supplemental Security Income; Determining Disability for a Child Under Age 18; Interim Final Rules With Request for Comments

SUMMARY: These rules implement the childhood disability provisions of

sections 211 and 212 of Public Law 104-193, the Personal Responsibility

and Work Opportunity Reconciliation Act of 1996 that provide a new

definition of disability for children (i.e., individuals under age 18),

mandate changes to the evaluation process for children's disability

claims and continuing disability reviews (CDRs), and require that

disability redeterminations be performed for 18-year-olds eligible as

children in the month before they attain age 18.

DATES: These rules are effective beginning April 14, 1997. To be sure

that your comments are considered, we must receive them no later than

April 14, 1997.

ADDRESSES: Comments should be submitted in writing to the Commissioner

of Social Security, P.O. Box 1585, Baltimore, MD 21235; sent by telefax

to (410) 966-2830; sent by E-mail to ``[email protected]''; or

delivered to the Division of Regulations and Rulings, Social Security

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

Baltimore, MD 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:

Daniel T. Bridgewater, Legal Assistant, Division of Regulations and

Rulings, Social Security Administration, 6401 Security Boulevard,

Baltimore, MD 21235, (410) 965-3298 for information about these rules.

For information on eligibility or claiming benefits, call our national

toll-free number, 1-800-772-1213.

SUPPLEMENTARY INFORMATION:

History

Prior to the enactment of Public Law 104-193 on August 22, 1996,

the Act defined childhood disability in relation to the definition of

disability for adults. The definition of disability for adults in

section 1614(a)(3) of the Act is an inability ``to engage in any

substantial gainful activity by reason of any medically determinable

physical or mental impairment which can be expected to result in death

or which has lasted or can be expected to last for a continuous period

of not less than twelve months.'' Prior to August 22, 1996, the

definition of disability for children (i.e., individuals under the age

of 18) was contained in a parenthetical statement at the end of section

1614(a)(3)(A): A child was considered disabled for purposes of

eligibility for SSI if he or she ``* * * suffer[ed] from any medically

determinable physical or mental impairment of comparable severity'' to

an impairment(s) that would make an adult disabled.

Social Security Administration (SSA) regulations at 20 CFR 416.920

set out a five-step sequential evaluation process for determining the

disability of adults:

1. Whether the adult is engaging in substantial gainful activity;

2. Whether, in the absence of substantial gainful activity, the

individual's medically determinable impairment or combination of

impairments is ``severe;''

3. Whether, if the impairment(s) is severe, it meets or medically

equals the severity of a listing in the Listing of Impairments in

appendix 1 of subpart P of 20 CFR part 404 (the Listing);

4. Whether, if the impairment(s) is severe but does not meet or

equal the severity of a listing, the individual retains the capacity to

do his or her past relevant work, considering his or her residual

functional capacity; and

5. Whether, if past relevant work is precluded, the individual

retains the capacity to do any other kind of work which exists in

significant numbers in the national economy, considering the

individual's residual functional capacity and the vocational factors of

age, education and work experience.

Until 1990, if a child was not engaging in substantial gainful

activity and his or her impairment(s) met the statutory duration

requirement, a child's claim for SSI benefits based on disability was

decided based on whether or not the child's impairment(s) met or

equaled the severity of a listing, as in the third step of the process

for adults. We did not provide additional evaluation steps for children

as we did for adults because it was inappropriate to apply the

vocational rules we used for adults whose impairments do not meet or

equal the severity of a listed impairment to childhood claims.

Sullivan v. Zebley

On February 20, 1990, in the case of Sullivan v. Zebley, 493 U.S.

521 (1990), the Supreme Court decided that the ``listings-only''

approach SSA had used to deny claims for SSI benefits based on

childhood disability did not carry out the ``comparable severity''

standard in title XVI of the Act. This was because the listings did not

provide for an assessment of a child's overall functional impairment.

The Court held that, under the comparable severity standard, children

claiming SSI benefits based on disability were entitled to an

assessment as part of the disability determination process, comparable

to adults who have impairments that do not meet or equal the severity

of a listing and who receive such an individualized assessment. The

Court found that, whereas adults who are not found to be disabled under

the Listing still have the opportunity to show that they are disabled

at the last step of the sequential evaluation process, no similar

opportunity existed for children. The Court concluded that, although

the vocational analysis we use in claims filed by adults is

inapplicable to claims for SSI benefits based on disability filed by

children, this does not mean that a functional analysis could not be

applied to children's claims.

The Court also addressed various aspects of the way in which we

employed the Listing in evaluating childhood disability claims. The

Court stated that the policies for establishing whether a child's

impairment(s) was equivalent in severity to a listed impairment

``exclude[d] claimants who have unlisted impairments or combinations of

impairments that do not fulfill all the criteria for any one listed

impairment.'' The Court was also concerned that all claimants be given

an opportunity for an assessment of their functional limitations,

including the effects of their symptoms, in establishing medical

equivalence.

The Childhood Rules That Resulted From Zebley

As a result of the Zebley decision, we revised the rules we used to

evaluate childhood disability claims under SSI. The rules were first

published in the Federal Register on February 11, 1991 (56 FR 5534) as

a final rule with a request for comments. Following consideration of

public comments, we published a final rule in the Federal Register on

September 9, 1993 (58 FR 47532).

In Sec. 416.924(a) of the prior rules, we defined the term

``comparable severity'' in terms of the impact of an impairment

[[Page 6409]]

or a combination of impairments on a child's ability to function

independently, appropriately, and effectively in an age-appropriate

manner. The rules also provided that each child whose impairment(s) did

not meet or medically or functionally equal the requirements for any

listing would have an ``individualized functional assessment'' (IFA),

an evaluation of the impact of the child's impairment(s) on his or her

overall ability to function independently, appropriately, and

effectively in an age-appropriate manner.

In fact, the rules provided three steps at which we would consider

a child's functioning. At each of these steps, we considered the impact

of all of the child's medically determinable impairments on his or her

functioning and considered all relevant evidence, including the effects

of the individual's symptoms and the side effects of medication. We

considered the nature of the impairment(s), the child's age, the

child's ability to be tested given his or her age, the child's ability

to perform age-appropriate daily activities, and other relevant

factors.

First, we added a ``severe impairment'' step for children to

parallel step 2 of the adult sequential evaluation process. At this

step, the threshold for further evaluation was whether a child had more

than a slight abnormality or a combination of slight abnormalities that

caused more than minimal limitation in a child's ability to function

independently, appropriately, and effectively in an age-appropriate

manner.

Second, at step 3 of the sequential evaluation process, we expanded

the rules for determining equivalence to the Listing. The new

``functional equivalence'' rule was intended, among other things, to

address the Supreme Court's concerns about our use of the Listing in

childhood cases. Functional equivalence provided that, if a child's

impairment(s) did not meet or medically equal the severity of any

listed impairment, we would assess the child's functional limitations

and compare those limitations with the disabling functional

consequences of any listed impairment, without regard to whether the

listed impairment chosen for comparison was medically ``related'' to

the child's impairment(s); for example, functional equivalence permits

comparison of the functional limitations caused by a physical

impairment with the functional limitations establishing disability in

the mental disorders listings.

Last, for those children whose impairments were not of listing-

level severity, the rules resulting from the Zebley decision included

an entirely new fourth step in the sequential evaluation process for

children. At this step, we used the IFA to assess whether a child's

severe impairment(s), while not of listing-level severity, was

nonetheless of ``comparable severity'' to an impairment(s) that would

disable an adult.

The IFA addressed the functional impact of a child's impairment(s)

in broad areas of functioning, which we called domains and behaviors,

such as cognition, communication, and motor abilities. These domains

and behaviors were intended to encompass and reflect all the things

that a child may do at any particular age, and were, therefore,

intended to include all of a child's functioning.

If an IFA showed that a child's impairment(s) substantially reduced

his or her ability to function independently, appropriately, and

effectively in an age-appropriate manner, and the impairment(s) met the

duration requirement, we found the impairment(s) to be of comparable

severity to an impairment that would result in disability in an adult,

and the child would, therefore, be considered disabled. If the

impairment(s) did not substantially reduce the child's ability to

function independently, appropriately, and effectively in an age-

appropriate manner, or if it did not meet the duration requirement, we

found the child was not disabled. For most children, the rules provided

examples of how ``marked'' and ``moderate'' limitations in the domains

and behaviors would indicate whether there was a substantial reduction

in functioning; for example, ``moderate'' limitations in three domains

would generally, though not invariably, result in a finding of

disability.

Summary of the Childhood Disability Provisions of Public Law 104-

193

Public Law 104-193 provides a new statutory definition of

disability for children claiming SSI benefits and directs us to make

significant changes in the way we evaluate childhood disability claims.

Under the new law, a child's impairment or combination of impairments

must cause more serious impairment-related limitations than the old law

and our prior regulations required.

Section 211(a) of Public Law 104-193 amended section 1614(a)(3) of

the Act to provide a definition of disability for children separate

from that for adults. The ``comparable severity'' criterion in the Act

was repealed and replaced with the following definition:

(C)(i) An individual under the age of 18 shall be considered

disabled for the purposes of this title if that individual has a

medically determinable physical or mental impairment, which results

in marked and severe functional limitations, and which can be

expected to result in death or which has lasted or can be expected

to last for a continuous period of not less than 12 months.

(ii) Notwithstanding clause (i), no individual under the age of

18 who engages in substantial gainful activity (determined in

accordance with regulations prescribed pursuant to subparagraph (E))

may be considered to be disabled.

The conference report that accompanied Public Law 104-193 further

explained:

The conferees intend that only needy children with severe

disabilities be eligible for SSI, and the Listing of Impairments and

other current disability determination regulations as modified by

these provisions properly reflect the severity of disability

contemplated by the new statutory definition. In those areas of the

Listing that involve domains of functioning, the conferees expect no

less than two marked limitations as the standard for qualification.

The conferees are also aware that SSA uses the term ``severe'' to

often mean ``other than minor'' in an initial screening procedure

for disability determination and in other places. The conferees,

however, use the term ``severe'' in its common sense meaning.

H.R. Conf. Rep. No. 725, 104th Cong., 2d Sess. 328 (1996),

reprinted in 1996 U.S. Code, Cong. and Ad. News 2649, 2716. The House

report contains similar language. See H.R. Rep. No. 651, 104th Cong.,

2d Sess. 1385 (1996), reprinted in 1996 U.S. Code, Cong. and Ad. News

2183, 2444.

Further provisions concerning childhood disability adjudication are

summarized below with references to the relevant sections of Public Law

104-193.

The Commissioner was directed to remove references to

maladaptive behavior in the personal/behavioral domain from listings

112.00C2 and 112.02B2c(2) of the childhood mental disorders listings

(Section 211(b) (1)).

The Commissioner was directed to discontinue the IFA for

children in 20 CFR 416.924d and 416.924e (Section 211(b) (2)).

Within 1 year after the date of enactment, we must

redetermine the eligibility of individuals under the age of 18 who were

eligible for SSI based on disability as of August 22, 1996, and whose

eligibility may terminate by reason of the new law. The cases are to be

redetermined using the eligibility criteria for new applicants. The

medical improvement review standard in section 1614(a) (4) of the Act

and 20 CFR 416.994a, used in CDRs, shall not apply

[[Page 6410]]

to these redeterminations (Section 211(d) (2)).

The medical improvement review standard for determining

continuing eligibility for children was revised to conform to the new

definition of disability for children (Section 211(c)).

Not less frequently than once every 3 years, we must

conduct a CDR for any childhood disability recipient eligible by reason

of an impairment(s) which is likely to improve. At the option of the

Commissioner, we may also perform a CDR with respect to those

individuals under age 18 whose impairments are unlikely to improve

(Section 212(a)).

We must redetermine the eligibility of individuals who

were eligible for SSI based on disability in the month before the month

in which they attained age 18 using the rules for determining initial

eligibility for adults. We will do the redetermination during the 1-

year period beginning on the individual's 18th birthday. The medical

improvement review standard used in CDRs does not apply to these

redeterminations (Section 212(b)).

We must conduct a CDR not later than 12 months after the

birth of the child for any child whose low birth weight is a

contributing factor material to our determination that the child was

disabled (Section 212(c)).

At the time of a CDR, a child's representative payee shall

present evidence that the child is and has been receiving treatment to

the extent considered medically necessary and available for the

disabling impairment. If a payee refuses without good cause to provide

such evidence, we may select another representative payee, or pay

benefits directly to the child, if we determine that it is appropriate

and in the best interests of the child (Section 212(a)).

These rules implement all of the provisions of sections 211 and 212

of Public Law 104-193, with the exception of section 211(d)(2). Because

Public Law 104-193 repealed the ``comparable severity'' disability

standard for children, and eliminated use of the IFA, step 4 of our

prior sequential evaluation process (the comparable severity step) has

been removed. To be found disabled under these rules, an individual

under age 18 must have ``marked and severe functional limitations,''

which means that his or her impairment or combination of impairments

must meet, or medically equal or functionally equal, the severity of a

listed impairment.

Summary of Specific Revisions

These interim final rules revise our prior rules for deciding

initial eligibility and continuing eligibility for children claiming

SSI benefits based on disability. They also provide rules for

redetermining the eligibility of individuals who attain age 18 and who

were eligible for SSI based on disability in the month before the month

in which they attained age 18.

The major changes to the rules are explained below. In addition, we

have added, removed, and revised language throughout subpart I of 20

CFR part 416 to remove references to the ``comparable severity''

standard and our prior regulatory definition of disability interpreting

that standard. Since these are only conforming changes to comply with

the new law, we have not summarized each of them in this summary.

These rules do not address every aspect of the evaluation of

disability of children and of individuals who have attained age 18.

They implement primarily those changes required by Public Law 104-193.

Therefore, they must be read in the context of all our other relevant

rules for determining disability.

Appendix 1 to Subpart P of Part 404--Listings 112.00C and 112.02B2

Public Law 104-193 mandates removal of references to ``maladaptive

behaviors'' in listings 112.00C2 and 112.02B2c(2) in the childhood

mental disorders section of the Listing of Impairments. Listing 112.00C

explains the severity criteria we use to evaluate a mental impairment

in most of our childhood mental disorder listings. These severity

criteria are often referred to as the ``paragraph B'' criteria because

they are found in paragraph B of most of the listings to which they

apply. Listing 112.02B2c(2) was a particular paragraph B criterion for

persistent, serious maladaptive behaviors in children aged 3 to 18.

Pursuant to Public Law 104-193, we have removed all references to

``maladaptive behaviors'' in listing 112.00C and deleted all of prior

listing 112.02B2c(2); we have also redesignated the ``personal/

behavioral'' area as the area of ``personal function.'' For this

reason, we also removed the reference to ``activities of daily living''

from former listing 112.02B2c(1), which we now designate as listing

112.02B2c because it is the only paragraph remaining.

The area of personal function now pertains only to self-care; that

is, the ability to help oneself and to cooperate with others in taking

care of personal needs, health, and safety (e.g., feeding, dressing,

toileting, bathing, following medication regimes, and following safety

precautions). Further, we have clarified the description of the social

area of functioning to make it clearer that many impairment-related

behavioral problems (including those previously considered in the prior

personal/behavioral area) are likely to have their most significant

effects on a child's social functioning.

In addition, we revised the fourth area of function from

``concentration, persistence, and pace'' to ``concentration,

persistence, or pace.'' This is a technical correction to conform the

language of this section to the rules in listings 112.00C3 and

112.02B2d, which have always read ``deficiencies of concentration,

persistence, or pace.'' We made a corresponding change in listing

112.00C4, which also used the word ``and.'' We also made several

clarifications in listing 112.00C2b. The changes are not substantive

and are only intended to parallel the adult mental listing 12.00C2 with

appropriate language for children.

Section 416.635 Responsibilities of a Representative Payee.

We revised this section to provide that, in cases in which the

beneficiary is an individual under age 18 (including cases in which the

beneficiary is an individual whose low birth weight is a contributing

factor material to our determination that the individual is disabled),

the representative payee is responsible for ensuring that the

beneficiary is and has been receiving treatment to the extent

considered medically necessary and available for the condition that was

the basis for providing benefits.

Section 416.902 General Definitions and Terms for This Subpart

We have added four new definitions. First, we explain that a

disability redetermination (see Sec. 416.987) is a redetermination of

eligibility based on disability using the rules for new applicants

appropriate to the individual's age, except the rules pertaining to

performance of substantial gainful activity. Second, we explain that

the term impairment(s) means ``a medically determinable physical or

mental impairment or a combination of medically determinable physical

or mental impairments.''

Third, we explain that the term marked and severe functional

limitations, when used as a phrase, means the standard of disability in

the Act for children claiming SSI benefits, and is a level of severity

that meets or medically or functionally equals the requirements of a

listing. We explain that the separate words Marked and severe are also

terms used throughout

[[Page 6411]]

this subpart, but the meanings of these words in the phrase marked and

severe functional limitations is not the same as their meanings when

used separately. The meaning of the phrase marked and severe functional

limitations derives directly from the legislative history of Public Law

104-193, quoted in the ``Summary of the Childhood Disability Provisions

of Public Law 104-193,'' above. Since the meanings of the separate

terms marked and severe predate enactment of Public Law 104-193, they

are touched on in this section to minimize any confusion from the new

law's use of the same words, used in combination with a different

meaning. Finally, we define Commissioner to mean the Commissioner of

Social Security.

Section 416.906 Basic Definition of Disability for Children

We have revised this section to replace the prior ``comparable

severity'' standard with the new ``marked and severe functional

limitations'' standard for childhood disability. We also added the

statutory provision that an individual under age 18 who files a new

claim and who is engaging in substantial gainful activity will not be

considered disabled. For clarity, we added language specifying our

longstanding policy that we consider the effects of combined

impairments in assessing whether a child is disabled.

Section 416.911 Definition of Disabling Impairment

Under the Act and our regulations, individuals who file new

applications for benefits based on disability and who are engaging in

substantial gainful activity are found not disabled. However, after a

disabled individual is eligible for SSI, the Act and our regulations

permit some individuals to try to work without losing eligibility. A

recipient of SSI benefits who begins or returns to work despite a

``disabling impairment'' may be found eligible for special SSI cash

benefits and for special SSI eligibility status under Secs. 416.260 ff.

of our regulations.

Section 416.911 provides the definition of the term ``disabling

impairment'' for such cases. We have redesignated all but the last

sentence of prior Sec. 416.911, which was applicable only to adults, as

paragraph (a)(1), and added a paragraph (b)(1) to define ``disabling

impairment'' for children. Final paragraph (a)(2) takes account of the

new rules in Sec. 416.987 for the disability redeterminations required

by section 212(b) of Public Law 104-193. Consistent with this section

of the new law, the rules explain that, for disability redetermination

cases of individuals who are age 18, and who were eligible for SSI

benefits based on a disability for the month before the month in which

they attained age 18, a disabling impairment is one that meets the

criteria for initial eligibility set forth in Secs. 416.920(c) through

(f) for adults. This is because the new law specifies that these

disability redeterminations shall apply the eligibility criteria for

new applicants, and not the medical improvement review standard

provisions of section 1614(a)(4) of the Act applicable to CDRs.

However, step 1 of the sequential evaluation process for new claims

(the substantial gainful activity step) will not apply. For individuals

affected by this provision who have a disabling impairment, and who are

working, we will apply the rules in Secs. 416.260 ff. We redesignated

as paragraph (c) the last sentence of prior Sec. 416.911, which

provides that earnings are not considered in deeming whether a

recipient has a disabling impairment(s), because it applies to both

adults and children.

Section 416.919n Informing the Examining Physician or Psychologist of

Examination Scheduling, Report Content, and Signature Requirements

We have amended Sec. 416.919n(c)(6), which concerns the opinion of

a consulting physician or psychologist about an individual's ability to

function despite his or her impairment(s), to add a discussion specific

to childhood cases to make it clear that the provision applies to both

adults and children.

Section 416.924 How We Determine Disability for Children

We have extensively revised this section, which provides the

sequential evaluation process for childhood disability claims, to

conform to the provisions of Public law 104-193.

We have deleted former paragraphs (a) and (f). Prior paragraph (a)

defined comparable severity and prior paragraph (f) discussed the IFA.

We redesignated prior paragraphs (b) through (e) as (a) through (d),

and revised them as explained below. We added a new paragraph (e) to

explain what we will do when children become adults (i.e., they attain

age 18) after they file their applications for SSI benefits based on

disability but before we make a determination or decision. We

redesignated prior paragraph (g) as paragraph (f), but it is otherwise

unchanged. Also, we added a new paragraph (g).

In final Sec. 416.924, the new sequential evaluation process for

determining initial eligibility is:

1. Whether the child is engaging in substantial gainful activity;

2. If not, whether the child has a medically determinable

impairment or combination of impairments that is severe; and

3. If the child's impairment(s) is severe, whether it meets or

medically equals the requirements of a listing, or whether the

functional limitations caused by the impairment(s) are the same as the

disabling functional limitations of any listing and, therefore,

functionally equivalent to such listing.

As in the prior sequential evaluation process, we will follow the

steps in order. If a determination or decision can be made at a step,

we will stop; if not, we will proceed to the next step.

New Sec. 416.924(a), ``Steps in evaluating disability,'' retains

basic guidance from prior Sec. 416.924(b) that is unaffected by the new

law. It continues to provide that we will consider all relevant

evidence in a child's case record, that we will consider all

impairments for which we have evidence and their combined effects, and

that we will evaluate any limitations in a child's functioning that

result from a child's symptoms, including pain. We have removed the

reference to the prior IFA step and made minor revisions to reflect the

new statutory standard and the new sequence of evaluation. Because

meeting or equaling the severity of a listing is now the last step of

the sequence, we have emphasized the importance of the step by

specifying that a child will be disabled if his or her impairment(s)

meets, medically equals, or functionally equals the severity of any

listing. We also changed references to the ``ability to function'' to

``functioning'' in order to conform to the new statutory definition of

disability, which is now expressed in terms of ``marked and severe

functional limitations.''

Final paragraphs (b) through (d) provide more detail on the

sequential evaluation steps outlined in paragraph (a). Final paragraph

(b), ``If you are working,'' is the same as prior paragraph (c). A

child who files a new application, and who is engaging in substantial

gainful activity, will be found not disabled as required by the

statute. Final paragraph (c), ``You must have a severe impairment(s),''

is substantively the same as prior paragraph (d), but revised to

reflect the new law. At step two of the sequential process, we will

continue to evaluate whether a child has a ``severe'' impairment or

combination of impairments. We now provide that if a child has a slight

abnormality or a combination of slight abnormalities that

[[Page 6412]]

causes no more than minimal functional limitations, we will find that

the child does not have a severe impairment and, therefore, is not

disabled. The phrase ``minimal functional limitations'' replaces the

phrase from our prior rules ``minimal limitation in your ability to

function, independently, appropriately, and effectively in an age-

appropriate manner,'' which, as noted above, was derived from the prior

statutory definition of disability.

Final paragraph (d) ``Your impairment(s) must meet, medically

equal, or functionally equal in severity a listed impairment in

appendix 1,'' explains that an impairment(s) causes marked and severe

functional limitations if it meets, medically equals or functionally

equals the severity of a listed impairment. Thus, if a child's

impairment(s) meets, medically equals, or functionally equals in

severity a listing (and meets the duration requirement), we will find

the child disabled. If a child's impairment(s) does not meet or

medically equal or functionally equal in severity any listing, or does

not meet the duration requirement, we will find the child not disabled.

We have removed the language from prior paragraph (e) that said a

child's claim would not be denied because his or her impairment(s) was

not of listing-level severity.

We added a new paragraph (e), ``If you attain age 18 after you file

your disability application but before we make a determination or

decision,'' to explain what we will do in such cases. We will use the

rules for determining disability in adults when an individual whom we

found disabled prior to attaining age 18 attains age 18. (We have

always used the adult disability rules beginning at age 18 when we find

that an individual was not disabled prior to attaining age 18 to see if

the individual became disabled at a later date.) Therefore, final

paragraph (e) explains that, for the period during which the individual

is under age 18, we will use the disability rules in Sec. 416.924, but

for the period starting with the day the individual attains age 18, we

will use the disability rules for adults filing new claims in

Sec. 416.920.

Except for redesignating prior paragraph (g) as final paragraph

(f), ``Basic considerations,'' has not been changed. We will continue

to consider all relevant medical and nonmedical evidence in a child's

case record.

Finally, we have added a new paragraph (g) to explain that, when we

make an initial or reconsidered determination whether you are disabled

or when we make an initial determination about whether your disability

continues under section 416.994a, we will complete a standard form,

Form SSA-538, Childhood Disability Evaluation Form. The new form is

designed to guide our adjudicators through the new sequential

evaluation process and emphasizes the requirements for establishing

functional equivalence. In new paragraph (g), we also explain that

disability hearing officers, administrative law judges, and the

administrative appeals judges on the Appeals Council (when the Appeals

Council makes a decision) will not complete the form. This is because

these adjudicators issue decisions with detailed rationales and

findings that will already reflect the steps of the new sequential

evaluation process.

Section 416.924a Age as a Factor of Evaluation in Childhood Disability

Most of the guidance in our prior rules on consideration of age in

childhood disability cases has not been changed by Public Law 104-193.

We have revised this section to conform to the ``marked and severe

functional limitations'' disability standard. As under our prior rules,

we will consider the child's age in determining whether he or she has a

severe impairment(s). When evaluating whether the impairment(s) meets,

medically equals, or functionally equals the severity of a listing, we

will consider the child's age if the listing we consider uses age

categories. We have deleted prior paragraphs (a)(4) and (b), which

addressed issues related to the IFA.

We redesignated prior paragraph (c), ``Correcting chronological age

of premature infants,'' and prior paragraph (d), ``Age and the impact

of severe impairments on younger children and older adolescents,'' as

final paragraphs (b) and (c) and made changes to conform to the new

definition of disability; we deleted prior paragraph (d)(4)(ii) because

it was based on the prior ``comparable severity'' standard.

Section 416.924b Functioning in Children

This section discusses some of the terms we use to describe or

evaluate functioning in children, including age-appropriate activities,

developmental milestones, activities of daily living, and work-related

activities. We retained the discussions of these terms with appropriate

conforming changes. We also clarified the explanations of the last

three terms, which were described in our prior rules as ``the most

important indicators of functional limitations'' in, respectively,

infants up to attainment of age 3, children aged 3 to attainment of age

16, and older adolescents aged 16 to attainment of age 18. In the

interim final rules, we describe these functions as being ``most

important as indicators of functional limitations,'' because the

emphasis should be on whatever age groups for which these indicators of

functional limitations are most appropriate.

Although we deleted prior paragraph (b)(5) because it described the

domains and behaviors used in performing an IFA under our prior rules,

consideration of functional limitations remains an integral part of the

childhood disability evaluation process. For example, final

Sec. 416.926a describes areas of functioning we will consider when we

evaluate whether a child's impairment(s) is functionally equivalent in

severity to a listing.

Section 416.924c Other Factors We Will Consider

As under our prior rules, when we evaluate whether a child's

impairment(s) is disabling, we will consider all relevant factors, such

as the effects of medications, the setting in which the child lives,

the child's need for assistive devices, and the child's functioning in

school. However, as throughout these interim final rules, we have

revised this section to conform to the statutory ``marked and severe

functional limitations'' standard.

Section 416.924d Individualized Functional Assessment for Children

Section 416.924e Guidelines for Determining Disability Using the

Individualized Functional Assessment

We deleted both of these sections as required by section 211(b)(2)

of Public Law 104-193.

Section 416.925 Listing of Impairments in Appendix 1 of Subpart P of

Part 404 of This Chapter

We have revised paragraph (a) of this section, ``Purpose of the

Listing of Impairments,'' to explain that, for children, the Listing of

Impairments describes impairments that are considered severe enough to

result in marked and severe functional limitations. We revised

paragraph (b)(2), which explains the purpose of the childhood listings

in part B of the Listing, to explain that the level of severity of the

impairments listed in part B is intended to be the same as that

expressed in the functional severity criteria of the childhood mental

disorders listings (see 112.01 ff.). Therefore, in general, a child's

impairment(s) is of ``listing-level severity'' if it results in marked

limitations in two broad areas of functioning, or extreme limitations

in

[[Page 6413]]

one such area. However, we also explain that when we decide whether a

child's impairment(s) meets the requirements for any listed impairment,

we will decide that the impairment is of ``listing-level severity''

even if it does not result in marked limitations in two broad areas of

functioning, or extreme limitations in one such area, if the listing

that we apply does not require such limitations to establish that an

impairment(s) is disabling. We also explain that we define the terms

``marked'' and ``extreme'' as they apply to children in Sec. 416.926a.

Section 416.926 Medical Equivalence for Adults and Children

In these interim final rules, we moved the rules for deciding

whether a child's impairment(s) is medically equivalent in severity to

any listing into the same section as the rules for deciding medical

equivalence of impairments in adults, reserving Sec. 416.926a for

functional equivalence. To make this clear, we revised the heading of

final Sec. 416.926 to reflect the inclusion of children. We also

revised final paragraph (a), ``How medical equivalence is determined,''

by replacing the explanation of how we determine medical equivalence

with provisions from prior Sec. 416.926a. We also incorporated and

revised the last sentence of prior Sec. 416.926a(a), explaining that we

consider all relevant evidence in the case record when we decide the

issue of medical equivalence because it remains applicable to both

adults and children.

We decided to use the provisions of former Sec. 416.926a(b) to

explain our rules for determining medical equivalence for both adults

and children. This is not a substantive change, but a clearer statement

of our longstanding policy on medical equivalence than was previously

included in prior Sec. 416.926(a), as it was clarified for children in

prior Sec. 416.926a(b). This merely allows us to address only once in

our regulations the policy of medical equivalence, which is and always

has been the same for adults and children. (Although some of the text

of Sec. 416.929(a) will differ from the text of Sec. 404.1526(a), both

sections, which are in chapter III of title 20 of the Code of Federal

Regulations, will continue to provide the same substantive rules.)

We have also added a new paragraph (d), ``Responsibility for

determining medical equivalence,'' to address our longstanding policy

of who is responsible for determining medical equivalence for adults

and children.

Section 416.926a Functional Equivalence for Children

Although Public Law 104-193 discontinued the use of the IFA, the

legislation nevertheless emphasized that we were still to continue

evaluating the functioning of children in our disability assessments,

as shown by the news statutory definition of disability, ``marked and

severe functional limitations.''

Moreover, in the legislative history, the conferees stated:

* * * Where appropriate, the conferees remind SSA of the importance

of the use of functional equivalence disability determination

procedures.

* * * [T]he conferees do not intend to suggest by this definition of

childhood disability that every child need be especially evaluated

for functional limitations, or that this definition creates a

supposition for any such examination. * * * Nonetheless, the

conferees do not intend to limit the use of functional information,

if reflecting sufficient severity and is otherwise appropriate.

H.R. Conf. Rep. No. 725, 104th Cong, 2d Sess. 328 (1996), reprinted

in 1996 U.S. Code, Cong. and Ad. News 2649, 2716. The House Report also

contained similar language about the importance of functional

information. See H.R. Rep. No. 651, 104th Cong., 2d Sess. 1385-1386

(1996), reprinted in 1996 U.S. Code, Cong. and Ad. News 2183, 2444-

2445.

Thus, even though it eliminated the IFA, Congress directed us to

continue to evaluate a child's functional limitations where

appropriate, albeit using a higher level of severity than under the

former IFA. Congress also explicitly endorsed our functional

equivalence policy as a means for evaluating impairments that would not

meet or medically equal any of our listings and without which some

needy children with severe disabilities would not be eligible.

Therefore, we are retaining our prior policies on determining

functional equivalence. Because the changes made by Public Law 104-193

make the functional equivalence provision that last point of

adjudication in a child's claim and, therefore, critical to the outcome

of many cases, we are also clarifying these rules.

When we published the prior rules in the Federal Register on

September 9, 1993, we chose not to adopt a number of public comments

about our policy of ``functional equivalence.'' Some commenters on the

1993 rules thought that, because the functional equivalence policy was

unfamiliar, it was important that we provide as much detail as possible

in the regulations so that all adjudicators would understand and apply

the new rules in the same way. Several commenters also said that

Sec. 416.926a should explain the ``thought processes'' an adjudicator

could employ to make a finding of functional equivalence; otherwise,

the policy of functional equivalence might be under-utilized. One

suggestion was that we incorporate into the rules the more detailed

instructions in our operating manuals and training guides. One

commenter suggested that we provide separate headings for medical

equivalence and functional equivalence to highlight their differences

and the novelty of the functional equivalence policy.

Although we did not adopt the comments in 1993, we have made

changes in these rules that respond to some of the earlier concerns of

1993 to reflect the increased importance of the functional equivalence

policy under the new law.

First, as noted in the explanation of Sec. 416.926, we have

separated the discussion of medical equivalence for children from the

discussion of functional equivalence for children. We have also

incorporated some of the more detailed explanations from our operating

manuals regarding the application of functional equivalence.

Final paragraph (a), ``General,'' and final paragraph (b), ``How we

determine functional equivalence,'' now include, in reorganized form,

the rules for functional equivalence previously in Sec. 416.926a(a) and

(b)(3). As already indicated, we moved prior (b)(1) and (b)(2), which

explained medical equivalence, to Sec. 416.926. Because of the

reorganization, we deleted the second sentence from prior paragraph

(b)(3) (``If you have more than one impairment, we will consider the

combined effects of all your impairments on your overall

functioning.'') because it would have been redundant.

In final paragraph (b), we also included some of the more detailed

guidelines concerning functional equivalence that commenters on the

1993 childhood disability rules requested that we include in the

regulations, and that we believe are necessitated by the new definition

of disability. This paragraph explains that there are several methods

for determining functional equivalence, and that we may use any one of

them to determine whether an impairment is functionally equivalent in

severity to a listing. Subparagraphs then explain the various methods

that we may employ to determine functional equivalence. We explain that

there is no set order in which we must apply these methods and that,

when we find that an

[[Page 6414]]

impairment(s) is functionally equivalent to a listed impairment, we

will use any method that is appropriate to, or best describes, a

child's impairment(s) and functional limitations. However, we explain

that will consider all of the methods before we decide that an

impairment(s) is not functionally equivalent in severity to any listed

impairment and refer to final Sec. 416.924(g), which explains how we

will use the new Childhood Disability Evaluation Form, Form SSA-538, at

the initial and reconsideration levels.

In (b)(1), we explain the first method we may use. An impairment(s)

may be functionally equivalent in severity to a listed impairment

because of extreme limitations in one specific function, such as

walking or talking, or based on a combination or more than one, but

less medically severe, specific functional limitations, such as walking

and talking. In (b)(2), we explain that an impairment(s) may be

functionally equivalent to a listed impairment if it causes functional

limitations in broad areas of development or functioning (e.g., in

motor or social functioning) that are equivalent in severity to the

disabling functional limitations in listing 112.12 or listing 112.02.

(The areas of functioning in which an impairment(s) may be evaluate are

discussed in paragraph (c), described below.) In (b)(3), we explain

that an impairment(s) may be functionally equivalent to a listed

impairment if it is chronic and characterized by frequent episodes of

illness or attacks, or by exacerbations and remissions. In such cases,

we may compare a child's functional limitations to those in any listing

for a chronic impairment with similar episodic criteria. In (b)(4), we

explain that an impairment(s) may be functionally equivalent to a

listed impairment if it requires treatment over a long period of time

(at least a year) and the treatment itself (e.g., multiple surgeries)

causes marked and severe functional limitations, or if the combined

effects of limitations caused by ongoing treatment and limitations

caused by the impairment(s) result in marked and severe functional

limitations.

In final paragraph (c), ``Board areas of development or

functioning,'' we explain that listing 112.12, for infants (especially

infants who are too young to test) and listing 112.02 are the listings

we will use for comparison when we use this method of functional

equivalence. However, when we determine functional equivalence based on

broad functional limitations, we will evaluate the functional effects

of an impairment(s) in several areas of development or functioning

specified in this paragraph of Sec. 416.926a instead of referring to

the listings themselves. We also explain that we describe the areas of

functioning in general terms in (c)(4) and in more detail for specific

age groups in (c)(5). If we find ``marked limitations'' in two areas of

development or functioning, or ``extreme limitations'' in one area, we

will find that an impairment(s) is functionally equivalent to listing

112.12 or listing 112.02. Even though the listings we use for reference

are mental disorder listings, this evaluation may be done for a

physical impairment(s) or for a combination of physical and mental

impairments. We define the terms ``marked limitations'' and ``extreme

limitations'' in (c)(3).

In (c)(1), we explain how we use the areas of development or

functioning: We consider the extent of functional limitations in the

areas affected by an impairment(s) and how limitations in one area

affect development or functioning in other areas. Thus, when a physical

impairment(s) produces global limitations (i.e., limitations in the

motor area and at least one other area), those limitations must be

evaluated in all relevant areas. We also make reference to new areas of

motor development and functioning we have added to ensure appropriate

consideration of physical impairments.

In (c)(2), ``Other considerations,'' we explain that we will

consider all information in the case record that will help us determine

the effect of an impairment(s) on a child's physical and mental

functioning. We will consider the nature of the impairment(s), the

child's age, the child's ability to be tested given his or her age, the

child's need for help from others (and whether such need is age-

appropriate), and other relevant factors.

In (c)(3), we define the terms ``marked'' and ``extreme''

limitations. The definitions are not new, but are based on longstanding

policy in the regulations and interpretations we have used in our

internal instructions and training. In (c)(4) and (c)(5), we describe

the areas of development or functioning that may be addressed in a

determination of functional equivalence, including the new areas of

motor development and motor functioning and the revised ``personal''

area of functioning. The descriptions are based on our prior

descriptions and changes mandated by Public Law 104-193, and contain

several clarifications based on our experience evaluating functional

equivalence in children since 1991.

Final paragraph (d), ``Examples of impairments that are

functionally equivalent in severity to a listed impairment,'' is

substantively the same as prior paragraph (d), ``Examples of

impairments of children that are functionally equivalent to the

listings.'' We made minor editorial changes for clarity and, as

throughout the rules, to conform the language to the changes in the

law. We also updated examples (1) and (11) to remove examples of

cardiovascular impairments that are now listed impairments and,

therefore, no longer examples of equivalence. We changed example (4) to

delete reference to a ``marked inability to stand and walk'' because

the limitation described is actually ``extreme.'' We changed example

(5) to show how the area of motor functioning may be used. We also

clarified the primary purpose of example (10), which is primarily for

children who are too young to test and for whom a diagnosis and other

medical findings may be difficult to specify.

Section 416.927 Evaluating Medical Opinions About Your Impairment(s)

or Disability

We have added a description of the ``marked and severe functional

limitations'' standard for children to paragraph (a), ``General,''

which already included a description of the disability standard for

adults.

Section 416.929 How We Evaluate Symptoms, Including Pain

Throughout this section, we have replaced references to a child's

ability to ``function independently, appropriately, and effectively in

an age-appropriate manner'' with references to the child's

``functioning.'' The rules for evaluating a child's symptoms are

otherwise unchanged by the new law.

Section 416.930 Need To Follow Prescribed Treatment

This section explains that, in order to receive benefits, an

individual must follow treatment prescribed by his or her physician if

the treatment can restore his or her ability to work; i.e., if the

treatment could end the individual's disability. We have added parallel

language explaining that a child must follow prescribed treatment if

the treatment can reduce his or her functional limitations so that they

are no longer ``marked and severe.''

Section 416.987 Disability Redeterminations for Individuals Who Attain

Age 18

This section is new. It provides rules for disability

redeterminations

[[Page 6415]]

mandated by section 212(b) of Public Law 104-193.

In paragraphs (a)(1) and (a)(2), we explain that Public Law 104-193

requires these redeterminations and that, when we do these disability

redeterminations, we generally will use the rules for adults filing new

claims, not the rules we use for CDRs.

In paragraph (a)(3) we explain that we will notify individuals

before we begin a disability redetermination. In paragraph (a)(4) we

explain that we will notify the individual in writing of the results of

the redetermination and explain the individual's rights in connection

with our notice of disability redetermination.

Paragraph (b) concerns a group of recipients who are subject to

disability redeterminations under section 212(b) of the new law:

individuals who became eligible by reason of disability prior to

attaining age 18, and who were eligible for SSI benefits based on

disability for the month before the month in which they attained age

18. Paragraphs (b)(1) through (b)(7) of this section provide that,

during the 1-year period beginning on the individual's eighteenth

birthday, we will redetermine the eligibility of these individuals

using the rules in Secs. 416.920 (c) through (f), and not the rules in

Sec. 416.920(b) or Sec. 416.994; i.e., we will decide whether an

individual is disabled using the rules for adults filing new claims,

except the rule that says an individual engaging in substantial gainful

activity will be found not disabled. If an individual age 18 or older

has a ``disabling impairment'' as defined in Sec. 416.911 and is

working, we will apply the rules for special SSI eligibility in

Secs. 416.920ff. We also provide that eligibility will end if we find

that the individual is not disabled and describe the month in which we

may find an individual not disabled. Finally, we explain that, if we

find an individual is not disabled, the last month for which benefits

can be paid is the second month after the month in which the individual

was determined not to be disabled.

Section 416.990 When and How Often We Will Conduct a Continuing

Disability Review

In paragraph (b), ``When we will conduct a continuing disability

review,'' we have added a new paragraph (b)(11), mandated by Public Law

104-193. The new paragraph provides that we will do a CDR by a child's

first birthday if the child's low birth weight is a contributing factor

material to the determination that the child is disabled; i.e., whether

we would have found the child disabled if we had not considered the

child's low birth weight.

In paragraph (c), ``Definitions,'' we have revised the definition

of a permanent impairment, medical improvement not expected, to explain

that for a child, such an impairment is one that is unlikely to improve

to the point that the child's functional limitations will no longer be

marked and severe.

Section 416.994a How We Will Determine Whether Your Disability

Continues or Ends, and Whether You Are and Have Been Receiving

Treatment That Is Medically Necessary and Available, Disabled Children

We revised this section extensively to comport with provisions in

Public Law 104-193 in two ways:

To revise the medical improvement review standard (MIRS)

used in conducting a CDR, and

To add rules that, at the time of a CDR, a child's

representative payee must show evidence that the child is and has been

receiving treatment that is medically necessary and available for the

condition that was the basis for providing SSI benefits.

The new evaluation sequence for applying the medical improvement

review standard in a CDR is:

1. Has there been medical improvement in the impairment(s) on which

eligibility was based? If there has been no medical improvement, we

will find that the child is still disabled, unless certain exceptions

apply.

2. If there has been medical improvement, does the impairment(s)

the child had at the time of our most recent favorable medical

determination or decision still meet, medically equal, or functionally

equal the severity of the listing that it met or equalled at the time

of the prior determination or decision? If that impairment(s) still

meets or equals the severity of that listed impairment as it was

written at that time, we will find the child still disabled, unless

certain exceptions apply.

3. If that impairment(s) does not still meet or equal the severity

of that listed impairment as it was written at that time, is the child

now disabled, taking into consideration all current impairments.

Because the childhood disability standard is no longer linked to

the adult standard of inability to work, there is no longer a step to

assess whether any medical improvement is ``related to the ability to

work.''

In paragraph (a)(1), we changed the outline of the sequential

evaluation process for CDRs in childhood disability cases to reflect

the new sequence of evaluation. The sequence outlined in paragraph

(a)(1) and discussed in more detail in paragraphs (b)(1) through (b)(3)

differs significantly from the sequence under our prior rules. In our

prior rules, the first step of the CDR evaluation process for children

required consideration of whether the child's impairment(s) met, or was

equivalent in severity to, a listing. However, the new statutory

definition of disability for children--``marked and severe functional

limitations''--means a level of severity that meets or is medically or

functionally equivalent in severity to the severity of a listing. Thus,

if we were first to consider whether the child's impairment(s) is of

listing-level severity, we would also be deciding whether that

impairment(s) is disabling. In those instances in which the

impairment(s) is found neither to meet nor to be equivalent in severity

to any listing, we believe it would be difficult for an adjudicator to

then fairly consider the issue of medical improvement, because the

adjudicator would already have concluded that the child is not

disabled. Section 1614(a)(4)(B) of the Act states that, with some

exceptions, disability can be found to have ceased only if there is

``substantial evidence which demonstrates that there has been medical

improvement * * * and that [the] impairment or combination of

impairments no longer results in marked and severe functional

limitations.''

Thus, to ensure proper consideration of the issue of medical

improvement, we have placed that issue first in the sequence. If there

has been no medical improvement, we will generally find that the child

is still disabled. There are exceptions to this rule, set forth in

final paragraphs (e) and (f) of this section and discussed below.

Under our prior rules, pursuant to the MIRS provisions in the Act

at that time, if there had been medical improvement, we considered

whether the improvement was related to the ability to work (which we

defined for childhood cases as meaning the medical improvement resulted

in an increase in ability to function independently, appropriately, and

effectively in an age-appropriate manner.) However, the MIRS as revised

by Public Law 104-193 contains no provision for a ``related to the

ability to work'' step for children and, thus, limits the application

of this provision to individuals age 18 or over. Accordingly, we have

deleted that step from our rules (paragraph (d) of our prior rules).

If there has been medical improvement, the next step under these

[[Page 6416]]

rules (discussed in detail in paragraph (b)(2)) is to consider whether

the impairment(s) that we considered at the time of our most recent

favorable determination or decision still meets, or is still equivalent

in severity to, the listing that it met or was equivalent in severity

to at that time, as that listing then appeared, even if that listing

has since been revised or removed from the Listing. If that

impairment(s) would still meet or equal in severity that listing, we

will find the child still disabled, subject to certain exceptions

discussed in paragraphs (e) and (f) of this section and discussed

below.

If that impairment(s) would not now meet or equal in severity that

listing, we will then consider whether the child is currently disabled,

taking into account all current impairments, including any the child

did not have or that we did not consider at the time of our most recent

favorable determination or decision.

At this step (discussed in detail in paragraph (b)(3)), we first

consider whether the child has a severe impairment or combination of

impairments considering all current impairments. If the child does not,

we will find the child not disabled. If so, we then consider whether

the child's current impairment(s) meets, or is medically equivalent or

functionally equivalent in severity to, any listing in the Listing of

Impairments. If so, the child continues to be disabled; if not, the

child is not disabled.

We will not always follow these steps in order. In final paragraph

(b), we added language explaining that we may skip steps in the

sequence if it is clear this would lead to a more prompt finding that

disability continues. We will not skip any steps unless it is clear

that a continuance will result. For example, we might not consider the

issue of medical improvement if it is obvious on the face of the

evidence that a current impairment meets the severity of a listed

impairment.

Final paragraph (c) discussed what we mean by ``medical

improvement''; i.e., any decrease in the severity of the medical

impairment(s) which was present at the time of our most recent

favorable determination or decision. This paragraph is largely the same

under our prior rules, but we have added language to make it clear that

we will disregard minor changes in the individual's signs, symptoms,

and laboratory findings that obviously do not represent medical

improvement and could not result in a finding that the individual's

disability has ended. This is a longstanding procedure we have used in

cases in which there is technically medical improvement because there

is some very slight improvement in a sign, symptom, or laboratory

finding (e.g., a change in IQ from 61 to 62) but it is clear that the

outcome will not change.

Final paragraph (d), largely unchanged from prior paragraph (e),

explains what we will do if we cannot find the prior file. First, we

will determine whether the child is currently disabled. If not, we will

decide whether to attempt reconstruction of those portions of the

missing file that were relevant to our most recent favorable

determination or decision, so as to allow a decision whether there has

been medical improvement since that time. If we do not or cannot

reconstruct the file, we will not find medical improvement.

Paragraph (e) concerns ``the first group of exceptions to medical

improvement.'' The law provides limited situations in which disability

can be found to have ended even though medical improvement has not

occurred, if the child's impairment(s) no longer results in marked and

severe functional limitations. Two of the exceptions in our prior

rules--the ``advances in medical or vocational therapy or technology''

exception and the ``vocational therapy'' exception--have been limited

by Public Law 104-193 to individuals who have attained age 18. The

third exception is still applicable: A child's disability may be found

to have ceased if substantial evidence shows that, based on new or

improved diagnostic techniques or evaluations, the child's

impairment(s) is not as disabling as it was considered to be at the

time of the most recent favorable determination or decision. We have

revised this exception to conform to the new definition of disability

for children.

Final paragraph (f), largely unchanged from prior paragraph (g),

concerns ``the second group of exceptions to medical improvement.''

These exceptions include such issues as fraud and failure to cooperate

in obtaining evidence. If one of these exceptions applies, we may find

that disability ceases without finding medical improvement or that the

child is currently disabled. We have revised the language concerning

these exceptions to conform to the new definition of disability for

children.

Final paragraph (g) (prior paragraph (h)) concerns the month we

will find a child no longer disabled. We revised the language slightly

to conform to the new definition of disability for children.

Final paragraph (h) (prior paragraph, (i)) provides that, before we

stop benefits, we will provide an opportunity for an appeal, and gives

a reference to the rules on appeals; it is unchanged from our prior

rules.

Final paragraph (i) is new; it implements provisions in Public Law

104-193 requiring that, if a child has a representative payee, that

payee must present evidence at the time of a CDR showing that the child

is and has been receiving treatment to the extent considered medically

necessary and available for the condition(s) that was the basis for

providing SSI benefits, unless we determine such evidence would be

inappropriate or unnecessary, considering the nature of the child's

impairment(s). If the payee refuses without good cause to provide

evidence, and it is in the best interests of the child, we will

determine if another payee should be selected or if the child should

receive benefits directly.

In paragraph (i)(1), we explain that ``medically necessary''

treatment means treatment that is expected to improve or restore the

individual's functioning and that was prescribed by a ``treating

source'' as defined in Sec. 416.902. If the child does not have a

treating source, we will decide whether there is medically necessary

treatment that could have been prescribed by a treating source. In

paragraph (i)(2), we list some factors we will consider in evaluating

whether medically necessary treatment is available; e.g., the location

of institutions or facilities that could provide treatment, the

availability and cost of transportation to such places, the

availability of local community resources that would provide free

treatment.

In paragraph (i)(3), we explain that we will not require a payee to

show proof of treatment if we decide that the disabling impairment(s)

is not amenable to treatment. In paragraph (i)(4), we explain that if

the representative payee refuses without good cause to provide evidence

of treatment, we will, if it is in the child's best interests, remove

the payee and determine if another payee should be selected or if the

child should receive benefits directly. We further explain that when we

consider whether a representative payee had good cause, we will

consider factors such as the acceptable reasons for failure to follow

prescribed treatment in Sec. 416.930(c) and other factors similar to

those describing good cause for missing deadlines in Sec. 416.1411.

Finally, in paragraph (i)(5) we explain that the requirements of

paragraph (i) do not apply to a child who is receiving SSI payments

directly. This is because the treatment provision in Public Law 104-193

applies only to children who have representative payees. However, we

have also included a reminder that the failure-to-follow-prescribed-

treatment rules in Sec. 416.930 continue to apply to

[[Page 6417]]

children who do not have representative payees.

Other Changes

Sections that have been changed only so that their language will

conform to the new definition of disability for children, or to provide

references to new or revised rules, include listings sections 103.00,

104.00, 112.00, and 114.00, and Secs. 416.901, 416.912, 416.913, and

416.919a.

Electronic Version

The electronic file of this document is available on the Federal

Bulletin Board (FBB) at 9:00 A.M. on the date of publication in the

Federal Register. To download the file, modem dial (202) 512-1387. The

FBB instructions will explain how to download the file and the fee.

This file is in WordPerfect and will remain on the FBB during the

comment period.

Regulatory Procedures

Pursuant to section 702(a)(5) of the Act, 42 U.S.C. 902(a)(5), the

Social Security Administration follows the Administrative Procedure Act

(APA) rulemaking procedures specified in 5 U.S.C. 553 in the

development of its regulations. The APA provides exceptions to its

Notice of Proposed Rulemaking (NPRM) procedures when an agency finds

that there is good cause for dispensing with such procedures on the

basis that they are impracticable, unnecessary, or contrary to the

public interest. In the case of these interim final rules, we have

determined that under 5 U.S.C. 553(b)(B), good cause exists for waiving

the NPRM procedures.

Public Law 104-193 was signed into law on August 22, 1996. Sections

211 and 212 of the law were effective upon enactment (or with respect

to benefits for months beginning on or after enactment) without regard

to whether regulations have been issued. In addition, section 215

requires the Commissioner to issue regulations necessary to carry out

the amendments made by sections 211 and 212, which are the subject of

these interim final rules, within 3 months after the date of enactment.

Accordingly, to issue these rules as an NPRM would have delayed

issuance of final rules until well past 3 months after enactment.

In light of the Congressional mandate that we issue regulations

needed to carry out these statutory provisions as expeditiously as

possible (see H.R. Rep. No. 651, 104th Cong., 2d Sess. 1392 (1996),

reprinted in 1996 U.S. Code, Cong. and Ad. News 2183, 2451), we believe

good cause exists for waiver of the NPRM procedures under the APA since

issuance of proposed rules would be impracticable and contrary to

Congressional intent. In light of the short statutory deadline in which

to prescribe regulations under section 215 of Public Law 104-193, we

find that use of the NPRM process is impracticable. Moreover, some of

the changes in these rules are technical ones to conform our rules to

the new definition of disability for children. The technical changes

made by these rules are minor and do not represent discretionary

policy. Accordingly, we find that prior notice and comment are

unnecessary with respect to these rules. However, even though we are

issuing these rules as interim final regulations, we are requesting

public comments and will issue revised rules if necessary.

Executive Order 12866

These interim final rules reflect and implement the disability

provisions of sections 211 and 212 of Public law 104-193. This is a

major rule as defined in section 251 of Public Law 104-121, 5 U.S.C.

804. The Office of Management and Budget (OMB) has reviewed these

interim final rules and determined that they meet the criteria for a

significant regulatory action under Executive Order 12866. Therefore,

we prepared and submitted to OMB, separately from these interim final

rules, an assessment of the potential costs and benefits of this

regulatory action. This assessment is available for review by members

of the public.

The potential costs and benefits for the policies reflected in

these interim final rules follow:

Program Savings

It is estimated that due to the legislation there would be reduced

program outlays resulting in the following savings (in millions of

dollars) to the SSI program (over $4.7 billion total in a 6-year

period):

----------------------------------------------------------------------------------------------------------------

FY1997 FY1998 FY1999 FY2000 FY2001 FY2002 Total

----------------------------------------------------------------------------------------------------------------

-$120.......... -$715 -$945 -$1,075 -$905 -$1,010 -$4,775

----------------------------------------------------------------------------------------------------------------

This is the amount we expect to spend (in millions of dollars) on

SSI childhood disability benefits:

----------------------------------------------------------------------------------------------------------------

FY1997 FY1998 FY1999 FY2000 FY2001 FY2002 Total

----------------------------------------------------------------------------------------------------------------

$5,425......... $5,285 $5,475 $6,300 $5,715 $6,505 $34,705

----------------------------------------------------------------------------------------------------------------

Note: Annual numbers may not add to total due to rounding.

It is also estimated that there will be reduced Medicaid program

outlays (Federal share) resulting in the following savings (in millions

of dollars) over a 6-year period:

----------------------------------------------------------------------------------------------------------------

FY1997 FY1998 FY1999 FY2000 FY2001 FY2002 Total

----------------------------------------------------------------------------------------------------------------

-10............ -85 -110 -125 -125 -135 -590

----------------------------------------------------------------------------------------------------------------

There will also be reduced Medicaid program outlays for States.

Administrative Costs and Savings

The administrative cost of conducting the medical redeterminations

of the children who might be affected by the new childhood disability

standards is expected to be $185 million in FY 1997 and $130 million in

FY 1998. For this regulation, the administrative cost of redetermining

disability in SSI childhood recipients is assumed to be same as the

cost of a full medical CDR for these individuals, including the

additional appellate costs.

From FYs 1999-2002, the ongoing Federal workyear savings are from

fewer recipients on the rolls, i.e., from those children currently

receiving benefits who will be terminated and from those children who

will be denied under the

[[Page 6418]]

stricter standards. There will be net savings of approximately $12

million annually beginning with FY99. These savings will result from

fewer income and resource redeterminations, representative payee

actions, and maintenance of the rolls activities. The ongoing State

workyear costs are for additional hearings, as well as medical reviews

from additional reconsiderations, resulting from the stricter childhood

disability standard.

Estimated administrative costs ($ in millions, rounded to the

nearest $5 million) and workyears (rounded to the nearest 50) are:

----------------------------------------------------------------------------------------------------------------

FY1997 FY1998 FY1999 FY2000 FY2001 FY2002 Total

----------------------------------------------------------------------------------------------------------------

.......................... $185 $130 -$10 -$10 -$10 -$10 $265

-----------------------------------------------------------------------------------

(6) Workyears

-----------------------------------------------------------------------------------

Federal..................... 900 650 -250 -250 -250 -250 550

State....................... 1,200 1,250 150 150 150 150 3,050

-----------------------------------------------------------------------------------

Total................... 2,100 1,900 -100 -100 -100 -100 3,550

----------------------------------------------------------------------------------------------------------------

Note: Annual numbers may not add to total due to rounding.

Reductions in SSI Recipients (in thousands):

We expect benefit eligibility for a total of 135,000 of those

children receiving benefits at date of enactment will be terminated as

a result of these changes in the law. The following figures show the

estimated annual effect of the legislation on projected numbers of

recipients of Federal SSI benefits:

----------------------------------------------------------------------------------------------------------------

FY1997 FY1998 FY1999 FY2000 FY2001 FY2002

----------------------------------------------------------------------------------------------------------------

Current recipients.................................. -10 -95 -110 -95 -80 -70

New awards.......................................... -10 -35 -50 -70 -80 -90

-----------------------------------------------------------

Total........................................... -20 -130 -160 -165 -160 -160

----------------------------------------------------------------------------------------------------------------

With the reductions in SSI recipients shown above, we estimate the

average number of disabled children (in thousands) in payment status

after implementation of these interim final rules will be:

----------------------------------------------------------------------------------------------------------------

FY1997 FY1998 FY1999 FY2000 FY2001 FY2002

----------------------------------------------------------------------------------------------------------------

1,010............ 950 955 990 1,015 1,040

----------------------------------------------------------------------------------------------------------------

Note: Annual numbers may not add to total due to rounding.

Regulatory Flexibility Act

We certify that these interim final rules will not have a

significant economic impact on a substantial number of small entities

since this rule affects only individuals. Therefore, a regulatory

flexibility analysis as provided in Public Law 96-354, the Regulatory

Flexibility Act, as amended by Public Law 104-121 is not required.

Paperwork Reduction Act

These interim final rules contain a new information collection

requirement in Part 416, section 416.924(g). As required by 44 U.S.C.

3507, as amended by section 2 of the Paperwork Reduction Act of 1995,

we have requested under emergency procedures, and OMB has approved,

under OMB #0960-0568, the information collection requirements contained

in section 416.924(g).

(Catalog of Federal Domestic Assistance: Program Nos. 96.001 Social

Security-Disability Insurance; 96.006 Supplemental Security Income.)

List of Subjects

20 CFR Part 404

Administrative practice and procedure, Blind, Disability benefits,

Old-Age, Survivors, and Disability Insurance, Reporting and

recordkeeping requirements, Social Security.

20 CFR Part 416

Administrative practice and procedure, Aged, Blind, Disability

benefits, Public assistance programs, Reporting and recordkeeping

requirements, Supplemental Security Income (SSI).

Dated: February 5, 1997.

Shirley S. Chater,

Commissioner of Social Security.

For the reasons set out in the preamble, 20 CFR chapter III is

amended as follows:

PART 404--FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE

(1950- )

Subpart P--[Amended]

1. The authority citation for subpart P of part 404 is revised to

read as follows:

Authority: Secs. 202, 205(a), (b), and (d)-(h), 216(i), 221(a)

and (i), 222(c), 223, 225, and 702(a)(5) of the Social Security Act

(42 U.S.C. 402, 405(a), (b), and (d)-(h), 416(i), 421(a) and (i),

422(c), 423, 425, and 902(a)(5)); sec. 211(b), Pub. L. 104-193, 110

Stat. 2105, 2189.

Appendix 1 to Subpart P--[Amended]

2. Part B of Appendix 1 (Listing of Impairments) of subpart P to

part 404 is amended by revising the third sentence of the second

undesignated paragraph of 103.00A, the fourth undesignated paragraph of

103.00A, the fourth sentence of the fifth undesignated paragraph of

104.00A, the sixth undesignated paragraph of 104.00A, the last sentence

of the last undesignated paragraph of 104.00C, the first three

sentences of the eighth undesignated paragraph of 112.00A, the third

sentence of the first paragraph of

[[Page 6419]]

112.00C, the first sentence of 112.00C2. introductory text 112.00C2.b.,

112.00C2.c., the heading of 112.00C2.d., 112.00C4 and the undesignated

paragraph under it, and 112.02B2.c. introductory text to read as

follows:

Appendix 1 to Subpart P--Listing of Impairments

* * * * *

Part B

* * * * *

103.00 Respiratory System

A. * * *

* * * * *

* * * Even if a child does not show that his or her impairment

meets the criteria of these listings, the child may have an

impairment(s) that is medically or functionally equivalent in severity

to one of the listed impairments. * * *

* * * * *

It must be remembered that these listings are only examples of

common respiratory disorders that are severe enough to find a child

disabled. When a child has a medically determinable impairment that is

not listed, an impairment that does not meet the requirements of a

listing, or a combination of impairments no one of which meets the

requirements of a listing, we will make a determination whether the

child's impairment(s) is medically or functionally equivalent in

severity to the criteria of a listing. (See Secs. 404.1526, 416.926,

and 416.926a.)

* * * * *

104.00 Cardiovascular System

A. Introduction

* * * * *

* * * Even though a child who does not receive treatment may not be

able to show an impairment that meets the criteria of these listings,

the child may have an impairment(s) that is medically or functionally

equivalent in severity to one of the listed impairments.

Indeed, it must be remembered that these listings are only examples

of common cardiovascular disorders that are severe enough to find a

child disabled. When a child has a medically determinable impairment

that is not listed, an impairment that does not meet the requirements

of a listing, or a combination of impairments no one of which meets the

requirements of a listing, we will make a determination whether the

child's impairment(s) is medically or functionally equivalent in

severity to the criteria of a listing. (See Secs. 404.1526, 416.926,

and 416.926a.)

* * * * *

C. Treatment and Relationship Status

* * * * *

* * * (See Sec. 404.1594 or Sec. 416.994a, as appropriate, for our

rules on medical improvement and whether an individual is no longer

disabled.)

112.00 Mental Disorders

A. * * *

* * * * *

It must be remembered that these listings are only examples of

common mental disorders that are severe enough to find a child

disabled. When a child has a medically determinable impairment that is

not listed, an impairment that does not meet the requirements of a

listing, or a combination of impairments no one of which meets the

requirements of a listing, we will make a determination whether the

child's impairment(s) is medically or functionally equivalent in

severity to the criteria of a listing. (See Secs. 404.1526, 416.926,

and 416.926a.) * * *

* * * * *

C. * * * The functional areas that we consider are: Motor function;

cognitive/communicative function; social function; personal function;

and concentration, persistence, or pace. * * *

1. * * *

2. Preschool children (age 3 to attainment of age 6). For the age

groups including preschool children through adolescence, the functional

areas used to measure severity are: (a) Cognitive/communicative

function, (b) social function, (c) personal function, and (d)

deficiencies of concentration, persistence, or pace resulting in

frequent failure to complete tasks in a timely manner. * * *

a. * * *

b. Social function. Social functioning refers to a child's capacity

to form and maintain relationships with parents, other adults, and

peers. Social functioning includes the ability to get along with others

(e.g., family members, neighborhood friends, classmates, teachers).

Impaired social functioning may be caused by inappropriate externalized

actions (e.g., running away, physical aggression--but not self-

injurious actions, which are evaluated in the personal area of

functioning), or inappropriate internalized actions (e.g., social

isolation, avoidance of interpersonal activities, mutism). Its severity

must be documented in terms of intensity, frequency, and duration, and

shown to be beyond what might be reasonably expected for age. Strength

in social functioning may be documented by such things as the child's

ability to respond to and initiate social interaction with others, to

sustain relationships, and to participate in group activities.

Cooperative behaviors, consideration for others, awareness of others'

feelings, and social maturity, appropriate to a child's age, also need

to be considered. Social functioning in play and school may involve

interactions with adults, including responding appropriately to persons

in authority (e.g., teachers, coaches) or cooperative behaviors

involving other children. Social functioning is observed not only at

home but also in preschool programs.

c. Personal function. Personal functioning in preschool children

pertains to self-care; i.e., personal needs, health, and safety

(feeding, dressing, toileting, bathing; maintaining personal hygiene,

proper nutrition, sleep, health habits; adhering to medication or

therapy regimens; following safety precautions). Development of self-

care skills is measured in terms of the child's increasing ability to

help himself/herself and to cooperate with others in taking care of

these needs. Impaired ability in this area is manifested by failure to

develop such skills, failure to use them, or self-injurious actions.

This function may be documented by a standardized test of adaptive

behavior or by a careful description of the full range of self-care

activities. These activities are often observed not only at home but

also in preschool programs.

d. Concentration, persistence, or pace. * * *

* * * * *

4. Adolescents (age 12 to attainment of age 18). Functional

criteria parallel to those for primary school children (cognitive/

communicative; social; personal; and concentration, persistence, or

pace) are the measure of severity for this age group. Testing

instruments appropriate to adolescents should be used where indicated.

Comparable findings of disruption of social function must consider the

capacity to form appropriate, stable, and lasting relationships. If

information is available about cooperative working relationships in

school or at part-time or full-time work, or about the ability to work

as a member of a group, it should be considered when assessing the

child's social functioning. Markedly impoverished social contact,

isolation, withdrawal, and inappropriate or bizarre behavior under the

stress of socializing with others also constitute comparable findings.

(Note that self-injurious actions are evaluated in the personal area of

functioning.)

a. Personal functioning in adolescents pertains to self-care. It is

measured in

[[Page 6420]]

the same terms as for younger children, the focus, however, being on

the adolescent's ability to take care of his or her own personal needs,

health, and safety without assistance. Impaired ability in this area is

manifested by failure to take care of these needs or by self-injurious

actions. This function may be documented by a standardized test of

adaptive behavior or by careful descriptions of the full range of self-

care activities.

b. In adolescents, the intent of the functional criterion described

in paragraph B2d is the same as in primary school children, However,

other evidence of this functional impairment may also be available,

such as from evidence of the child's performance in wok or work-like

settings.

* * * * *

112.01 Category of Impairments, Mental

112.02 Organic Mental Disorders:

* * * * *

B. * * *

* * * * *

2. * * *

c. Marked impairment in age-appropriate personal functioning,

documented by history and medical findings (including consideration of

information from parents or other individuals who have knowledge of the

child, when such information is needed and available) and including, if

necessary, appropriate standardized tests; or

* * * * *

3. Part B of Appendix 1 (Listing of Impairments) of subpart P to

part 404 is amended by revising 114.00D6 and removing the last sentence

of the second undesignated paragraph under 114.00D6.

114.00 Immune System

* * * * *

D. * * *

6. Evaluation of HIV infection in children. The criteria in 114.08

do not describe the full spectrum of diseases or conditions manifested

by children with HIV infection. As in any case, consideration must be

given to whether a child's impairment(s) meets, medically equals, or

functionally equals the severity of any other listing in appendix 1 of

subpart P; e.g., a neoplastic disorder listed in 113.00ff. (See

Secs. 404.1526, 416.926, and 416.926a.) Although 114.08 includes cross-

references to other listings for the more common manifestations of HIV

infection, additional listings may also apply.

* * * * *

PART 416--SUPPLEMENTAL SECURITY INCOME FOR THE AGED, BLIND, AND

DISABLED

Subpart F--[Amended]

4. The authority citation for subpart F of part 416 continues to

read as follows:

Authority: Secs. 702(a)(5), 1631(a)(2) and (d)(1) of the Social

Security Act (42 U.S.C. 902(a)(5) and 1383(a)(2) and (d)(1)).

5. Section 416.635 is amended by revising paragraphs (c) and (d)

and adding paragraph (e) to read as follows:

Sec. 416.635 Responsibilities of a representative payee.

* * * * *

(c) Submit to us, upon our request, a written report accounting for

the benefits received;

(d) Notify us of any change in his or her circumstances that would

affect performance of the payee responsibilities; and

(e) In cases in which the beneficiary is an individual under age 18

(including cases in which the beneficiary is an individual whose low

birth weight is a contributing factor material to our determination

that the individual is disabled), ensure that the beneficiary is and

has been receiving treatment to the extent considered medically

necessary and available for the condition that was the basis for

providing benefits (See Sec. 416.994a(i).)

Subpart I--[Amended]

6. The authority citation for subpart I of part 416 continues to

read as follows:

Authority: Secs. 702(a)(5), 1611, 1614, 1619, 1631(a), (c), and

(d)(1), and 1633 of the Social Security Act (42 U.S.C. 902(a)(5),

1382, 1382c, 1382h, 1383(a), (c), and (d)(1), and 1383b); secs. 4(c)

and 5, 6(c)-(e), 14(a) and 15, Pub. L. 98-460, 98 Stat. 1794, 1801,

1802, and 1808 (42 U.S.C. 421 note, 423 note, 1382h note).

7. Section 416.901 is amended by revising paragraphs (e), (f)(2),

and (f)(6) as follows:

Sec. 416.901 Scope of subpart.

* * * * *

(e) Our general rules on evaluating disability for children filing

new applications are stated in Sec. 416.924.

(f) * * *

* * * * *

(2) What we mean by the terms medical equivalence and functional

equivalence and how we determine medical equivalence (and functional

equivalence if you are a child);

* * * * *

(6) The effect on your benefits if you fail to follow treatment

that is expected to restore your ability to work or, if you are a

child, to reduce your functional limitations to the point that they are

no longer marked and severe, and how we apply the rule in Sec. 416.930.

* * * * *

7. Section 416.902 is amended by adding four new definitions

between the definitions for ``Child'' and ``Medical sources'' to read

as follows:

Sec. 416.902 General definitions and terms for this subpart.

* * * * *

Commissioner means the Commissioner of Social Security.

Disability redetermination means a redetermination of your

eligibility based on disability using the rules for new applicants

appropriate to your age, except the rules pertaining to performance of

substantial gainful activity. For individuals who are working and for

whom a disability redetermination is required, we will apply the rules

in Secs. 416.260 ff. In conducting a disability redetermination, we

will not use the rules for determining whether disability continues set

forth in Sec. 416.994 or Sec. 416.994a. (See Sec. 416.987.)

Impairment(s) means a medically determinable physical or mental

impairment or a combination of medically determinable physical or

mental impairments.

Marked and severe functional limitations, when used as a phrase,

means the standard of disability in the Social Security Act for

children claiming SSI benefits based on disability and is a level of

severity that meets or medically or functionally equals the severity of

a listing in the Listing of Impairments in appendix 1 of subpart P of

part 404 (the Listing). See Secs. 416.906, 416.924, and 416.926a. The

words ``marked'' and ``severe'' are also separate terms used throughout

this subpart to describe measures of functional limitations; the term

``marked'' is also used in the listings. See Secs. 416.924 and

416.926a. The meaning of the words ``marked'' and ``severe'' when used

as part of the term Marked and severe functional limitations is not the

same as the meaning of the separate terms ``marked'' and ``severe''

used elsewhere in 20 CFR 404 and 416. (See Secs. 416.924(c) and

416.926a(c).)

* * * * *

8. Section 416.906 is revised to read as follows:

[[Page 6421]]

Sec. 416.906 Basic definition of disability for children.

If you are under age 18, we will consider you disabled if you have

a medically determinable physical or mental impairment or combination

of impairments that causes marked and severe functional limitations,

and that can be expected to cause death or that has lasted or can be

expected to last for a continuous period of not less than 12 months.

Notwithstanding the preceding sentence, if you file a new application

for benefits and you are engaging in substantial gainful activity, we

will not consider you disabled. We discuss our rules for determining

disability in children who file new applications in Secs. 416.924

through 416.924c and Secs. 416.925 through 416.926a.

9. Section 416.911 is revised to read as follows:

Sec. 416.911 Definition of disabling impairment.

(a) If you are an adult:

(1) A disabling impairment is an impairment (or combination of

impairments) which, of itself, is so severe that it meets or equals a

set of criteria in the Listing of Impairments in appendix 1 of subpart

P of part 404 of this chapter or which, when considered with your age,

education and work experience, would result in a finding that you are

disabled under Sec. 416.994, unless the disability redetermination

rules in Sec. 416.987(b) apply to you.

(2) If the disability redetermination rules in Sec. 416.987 apply

to you, a disabling impairment is an impairment or combination of

impairments that meets the requirements in Secs. 416.920(c) through

(f).

(b) If you are a child, a disabling impairment is an impairment (or

combination of impairments) that causes marked and severe functional

limitations. This means that the impairment or combination of

impairments:

(1) Must meet or medically or functionally equal the requirements

of a listing in the Listing of Impairments in appendix 1 of subpart P

of part 404 of this chapter, or

(2) Would result in a finding that you are disabled under

Sec. 416.994a.

(c) In determining whether you have a disabling impairment,

earnings are not considered.

10. Section 416.912 is amended by revising paragraphs (a) and

(c)(6) to read as follows:

Sec. 416.912 Evidence of your impairment.

(a) General. In general, you have to prove to us that you are blind

or disabled. This means that you must furnish medical and other

evidence that we can use to reach conclusions about your medical

impairment(s). If material to the determination whether you are blind

or disabled, medical and other evidence must be furnished about the

effects of your impairment(s) on your ability to work, or if you are a

child, on your functioning, on a sustained basis. We will consider only

impairment(s) you say you have or about which we receive evidence.

* * * * *

(c) * * *

(6) Any other factors showing how your impairment(s) affects your

ability to work, or, if you are a child, your functioning. In

Secs. 416.960 through 416.969, we discuss in more detail the evidence

we need when we consider vocational factors.

* * * * *

11. Section 416.913 is amended by revising paragraph (c)(3) to read

as follows:

Sec. 416.913 Medical evidence of your impairment.

* * * * *

(c) * * *

(3) If you are a child, the medical source's opinion about your

functional limitations in learning, motor functioning, performing self-

care activities, communicating, socializing, and completing tasks (and,

if you are a newborn or young infant from birth to age 1,

responsiveness to stimuli).

* * * * *

12. Section 416.919a is amended by revising paragraph (b)(5) to

read as follows:

Sec. 416.919a When we will purchase a consultative examination and how

we will use it.

* * * * *

(b) * * *

(5) There is an indication of a change in your condition that is

likely to affect your ability to work, or, if you are a child, your

functioning, but the current severity of your impairment is not

established.

13. Section 416.919n is amended by revising the fifth sentence of

paragraph (b) and paragraph (c)(6) to read as follows:

Sec. 416.919n Informing the examining physician or psychologist of

examination scheduling, report content, and signature requirements.

* * * * *

(b) * * * The medical report must be complete enough to help us

determine the nature, severity, and duration of the impairment, and

your residual functional capacity (if you are an adult) or your

functioning (if you are a child). * * *

(c) * * *

(6) A statement about what you can still d0 despite your

impairment(s), unless the claim is based on statutory blindness. If you

are an adult, this statement should describe the opinion of the

consultative physician or psychologist about your ability, despite your

impairment(s), to do work-related activities such as sitting, standing,

walking, lifting, carrying, handling objects, hearing, speaking, and

traveling; and, in cases of mental impairment(s), the opinion of the

consultative physician or psychologist about your ability to

understand, to carry out and remember instructions, and to respond

appropriately to supervision, coworkers and work pressures in a work

setting. If you are a child, this statement should describe the opinion

of the consultative physician or psychologist about your functional

limitations in learning, motor functioning, performing self-care

activities, communicating, socializing, and completing tasks (and, if

you are a newborn or young infant from birth to age 1, responsiveness

to stimuli); and

* * * * *

14. Section 416.924 is amended by removing paragraphs (a) and (f),

redesignating paragraphs (b) through (e) as (a) through (d), adding new

paragraphs (e) and (g), redesignating prior paragraph (g) as paragraph

(f), and by revising newly designated paragraphs (a), (c), and (d) to

read as follows:

Sec. 416.924 How we determine disability for children.

(a) Steps in evaluating disability. We consider all relevant

evidence in your case record when we make a determination or decision

whether you are disabled. If you allege more than one impairment, we

will evaluate all the impairments for which we have evidence. Thus, we

will consider the combined effects of all your impairments upon your

overall health and functioning. We will also evaluate any limitations

in your functioning that result from your symptoms, including pain (see

Sec. 416.929). When you file a new application for benefits, we use the

evaluation process set forth in (b) through (d) of this section. We

follow a set order to determine whether you are disabled. If you are

doing substantial gainful activity, we will determine that you are not

disabled and not review your claim further. If you are not doing

substantial gainful activity, we will consider your physical or mental

impairment(s) first to see if you have an impairment or combination of

[[Page 6422]]

impairments that is severe. If your impairment(s) is not severe, we

will determine that you are not disabled and not review your claim

further. If your impairment(s) is severe, we will review your claim

further to see if you have an impairment(s) that meets, medically

equals, or functionally equals in severity any impairment that is

listed in appendix 1 of subpart P of part 404 of this chapter. If you

have such an impairment(s), and it meets the duration requirement, we

will find that you are disabled. If you do not have such an

impairment(s), or if it does not meet the duration requirement, we will

find that you are not disabled.

* * * * *

(c) You must have a severe impairment(s). If your impairment(s) is

a slight abnormality or a combination of slight abnormalities that

causes no more than minimal functional limitations, we will find that

you do not have a severe impairment(s) and are, therefore, not

disabled.

(d) Your impairment(s) must meet, medically equal, or functionally

equal in severity a listed impairment in appendix 1. An impairment(s)

causes marked and severe functional limitations if it meets or

medically equals in severity the set of criteria for an impairment

listed in the Listing of Impairments in appendix 1 of subpart P of part

404 of this chapter, or if it is functionally equal in severity to a

listed impairment.

(1) Therefore, if you have an impairment(s) that is listed in

appendix 1, or is medically or functionally equal in severity to a

listed impairment, and that meets the duration requirement, we will

find you disabled.

(2) If your impairment(s) does not meet the duration requirement,

or does not meet, medically equal, or functionally equal in severity a

listed impairment, we will find that you are not disabled.

(3) We explain our rules for deciding whether an impairment(s)

meets a listing in Sec. 416.925. Our rules for how we decide whether an

impairment(s) medically equals a listing are set forth in Sec. 416.926.

Our rules for deciding whether an impairment(s) functionally equals a

listing are set forth in Sec. 416.926a.

(e) If you attain age 18 after you file your disability application

but before we make a determination or decision. For the period during

which you are under age 18, we will evaluate whether you are disabled

using the rules in this section. For the period starting with the day

you attain age 18, we will evaluate whether you are disabled using the

disability rules we use for adults filing new claims, in Sec. 416.920.

* * * * *

(g) How we will explain our findings. When we make an initial or

reconsidered determination whether you are disabled under this section

or whether your disability continues under Sec. 416.994a (except when a

disability hearing officer makes the reconsideration determination), we

will complete a standard form, Form SSA-538, Childhood Disability

Evaluation Form. The form outlines the steps of the sequential

evaluation process for individuals who have not attained age 18. In

these cases, the State agency medical or psychological consultant (see

Sec. 416.1016) or other designee of the Commissioner has overall

responsibility for the content of the form and must sign the form to

attest that it is complete and that he or she is responsible for its

content, including the findings of fact and any discussion of

supporting evidence. Disability hearing officers, administrative law

judges, and the administrative appeals judges on the Appeals Council

(when the Appeals Council makes a decision) will not complete the form

but will indicate their findings at each step of the sequential

evaluation process in their determinations or decisions.

15. Section 416.924a is amended by removing paragraph (a)(4),

redesignating paragraph (a)(5) as paragraph (a)(4), removing paragraph

(b), redesignating paragraphs (c) and (d) as paragraphs (b) and (c),

revising the third sentence of paragraph (a) introductory text,

revising paragraph (a)(2), revising the first sentence of paragraph

(a)(3), revising the first sentence of redesignated paragraph (b)

introductory text, and revising redesignated paragraphs (c)(1) and

(c)(4) to read as follows:

Sec. 416.924a Age as a factor of evaluation in childhood disability.

(a) * * * However, your age is always an important factor when we

decide whether your impairment(s) is severe (see Sec. 416.924(c)). * *

*

(2) The Listing of Impairments in appendix 1 of subpart P of part

404 of this chapter contains examples of impairments that we consider

of such significance that they cause marked and severe functional

limitations. Therefore, we will usually decide whether your impairment

meets a listing without giving special consideration to your age.

However, several listings are divided into age categories. If the

listing appropriate for evaluating your impairment includes such age

categories, we will evaluate your impairment under the criteria for

your age when we decide whether your impairment meets that listing.

(3) When we compare an unlisted impairment with a listed impairment

to determine whether you have an impairment(s) that medically or

functionally equals the severity of a listing, the way in which we

consider your age will depend on the listing we use for comparison. * *

*

(b) Correcting chronological age of premature infants. We generally

use chronological age (that is, a child's age based on birth date) when

we decide whether, or the extent to which, a physical or mental

impairment or combination of impairments causes functional limitations.

* * *

* * * * *

(c) * * *

(1) We recognize that how a particular child adapts to an

impairment(s) depends on many factors (e.g., the nature and severity of

the impairment(s), the child's temperament, the quality of adult

intervention, and the child's age at onset of the impairment(s)). By

adapting to an impairment, we mean the child's ability to learn those

skills, habits, or behaviors that allow the child to compensate for the

impairment(s) and, thus, to function as well as possible despite the

impairment(s). Therefore, our disability determination will consider

how you are adapting to your impairment(s) and the extent to which you

are able to function as set forth in this section and Secs. 416.924 and

416.924c.

* * * * *

(4) As children approach adulthood--that is, by about age 16--the

functional abilities, skills, and behaviors that are appropriate for

them are those that are also appropriate for adults. Older adolescents

generally also share with the youngest adults the same abilities to

adapt to work-related activities despite a severe impairment(s). By the

age of adolescence, children have developed basic physical skills and

behaviors, so that impairments occurring in adolescence may not have

the cumulative interactive effects on functioning that impairments

occurring in infancy and early childhood do. (However, as set forth in

paragraph (c)(1) of this section, we also recognize that adolescents

may experience a variety of impairments with different effects on their

functioning. For instance, a child born with a degenerative disorder

will experience a worsening of its effects as he or she grows older so

that functioning may be more limited for the older child than it is for

a younger child with the same illness or disorder.)

[[Page 6423]]

16. Section 416.924b is amended by revising paragraph (a), the

second sentences in paragraphs (b)(2) and (b)(3), and paragraph (b)(4),

and by removing paragraph (b)(5) to read as follows:

Sec. 416.924b Functioning in children.

(a) General. When we evaluate whether your impairment(s) is severe

and, if so, whether it causes marked and severe functional limitations,

we will consider all of your mental and physical limitations that

result from your impairment(s).

(b) * * *

(2) * * * Ordinarily, failures to achieve developmental milestones

are most important as indicators of impaired functioning from birth

until the attainment of age 3, although they may be used to evaluate

older children, especially preschool children.

(3) * * * Ordinarily, activities of daily living are most important

as indicators of functional limitations in children aged 3 to

attainment of age 16, although they may be used to evaluate children

younger than age 3.

(4) Work-related activities. The term work-related activities

refers to those physical and mental activities that are associated

with, or related to, activities in the workplace, as manifested in a

person's activities in contexts such as school, work, vocational

programs, and organized activities. Ordinarily, inability to perform

work-related activities is most important as an indicator of functional

limitations in adolescents aged 16 to attainment of age 18.

17. Section 416.924c is revised to read:

Sec. 416.924c Other factors we will consider.

(a) General. When we evaluate whether your impairment(s) is severe,

and if so, whether it causes marked and severe functional limitations,

we will consider all factors that are relevant to the evaluation of the

effects of your impairment(s) on your functioning, such as the effects

of your medications, the setting in which you live, your need for

assistive devices, and your functioning in school. Therefore, when we

assess your functional limitations, we will consider all evidence from

medical and nonmedical sources--such as your parents, teachers, and

other people who know you--that can help us to understand how your

impairment(s) affects your functioning. Some of the factors we will

consider include, but are not limited to, the factors in paragraphs (b)

through (g) of this section.

(b) Chronic illness. If you have a chronic impairment(s) that is

characterized by episodes of exacerbation (worsening) or remission

(improvement), we will consider the frequency and severity of your

episodes of exacerbation and your periods of remission as factors in

our determination whether you have a severe impairment(s) and, if so,

whether it meets or medically or functionally equals in severity any

listing, and is therefore disabling. For instance, if you require

repeated hospitalizations, or frequent outpatient care with supportive

therapy for a chronic impairment(s), we will consider this need for

treatment in our determination. When we determine whether you are

disabled, we will consider how the level of treatment you need for your

chronic illness affects your functioning. We will consider whether the

length and frequency of your hospitalizations or episodes of

exacerbation significantly interfere with your functioning on a

longitudinal basis, or whether the frequency of your outpatient care

affects your functioning.

(c) Effects of medication. We will consider the effects of

medication on your symptoms, signs, and laboratory findings, including

your functioning. Although medications may control the most obvious

manifestations of your condition(s), they may or may not affect the

functional limitations imposed by your impairment(s). If your symptoms

or signs are reduced by medications, we will consider whether any

functional limitations which may nevertheless persist are marked and

severe, even if there is apparent improvement from the medications. We

will also consider whether your medications create any side effects

which cause or contribute to your functional limitations.

(d) Effects of structured or highly supportive settings. Children

with serious impairments may spend much of their time in structured or

highly supportive settings. A structured or highly supportive setting

may be your own home, in which family members make extraordinary

adjustments to accommodate your impairment(s); or your classroom at

school, whether a regular class in which you are accommodated or a

special classroom; or a residential facility or school where you live

for a period of time. Children with chronic impairments also commonly

have their lives structured in such a way as to minimize stress and

reduce their symptoms or signs of impairment; others may continue to

have persistent pain, fatigue, decreased energy, or other symptoms or

signs, though at a lesser level of severity. Such children may be more

impaired in their overall functioning than their symptoms and signs

would indicate. Therefore, if your symptoms or signs are controlled or

reduced by the environment in which you live, we will consider your

functioning outside of this highly structured setting.

(e) Adaptations. We will consider the nature and extent of any

other adaptations that are made for you in order to enable you to

function. Such adaptations may include assistive devices, appliances,

or technology. Some adaptations may enable you to function normally, or

almost normally (e.g., eyeglasses, hearing aids). Others may increase

your functioning, even though you may still have functional limitations

(e.g., ankle-foot orthoses, hand or foot splints, and specially adapted

or custom-made tools, utensils, or devices for self-care activities

such as bathing, feeding, toileting, and dressing). When we evaluate

your overall functioning with an adaptation, we will consider the

degree to which the adaptation enables you to function and any

functional limitations that nevertheless persist.

(f) Time spent in therapy. You may need frequent and ongoing

therapy from one or more kinds of health care professionals in order to

maintain or improve your functional status. Therapy may include

occupational, physical, or speech and language therapy, special nursing

services, psychotherapy, or psychosocial counseling. Frequent therapy,

although intended to improve your functioning in some ways, may also

interfere with your functioning in other ways. If you receive frequent

therapy at school during a normal school day, it may or may not

interfere significantly with your functioning. If you must frequently

interrupt your activities at school or at home for therapy, these

interruptions may interfere with your functioning. We will consider the

frequency of any therapy that you must have, how long you have needed

the therapy or will need the therapy, and whether it interferes with

your functioning.

(g) School attendance. (1) School records and information from

people at school who know you or who have examined you, such as

teachers and school psychologists, psychiatrists, or therapists, may be

important sources of information about your impairment(s) and its

effect on your functioning. If you attend school, we will consider this

evidence when it is relevant and available to us.

(2) The fact that you are able to attend school will not, in

itself, be an indication that you are not disabled. We will consider

the circumstances of your school attendance, such as your functioning

in a regular classroom

[[Page 6424]]

setting. Likewise, the fact that you are in a special education

classroom setting, or that you are not in such a setting, will not in

itself establish your actual limitations or abilities. We will consider

the fact of such placement or lack of placement in the context of the

remainder of the evidence in your case record.

(3) However, if you are unable to attend school on a regular basis

because of your impairment(s), we will consider this when we determine

whether you are disabled.

(h) Treatment and intervention, in general. With adequate treatment

or intervention, some children not only have their symptoms and signs

reduced, but also maintain, return to or achieve a level of functioning

that is not disabling. Treatment or intervention may prevent,

eliminate, or reduce functional limitations; if such limitations were

disabling in the absence of treatment or intervention, treatment or

intervention may eliminate them or reduce them so that they are not

disabling. We will, therefore, evaluate the effects of your treatment

or intervention to determine the actual outcome of the treatment or

intervention in your particular case.

18. Section 416.924d is removed.

19. Section 416.924e is removed.

20. Section 416.925 is amended by revising paragraph (a) and adding

five sentences to the end of paragraph (b)(2) to read as follows:

Sec. 416.925 Listing of Impairments in appendix 1 of subpart P of part

404 of this chapter.

(a) Purpose of the Listing of Impairments. The Listing of

Impairments describes, for each of the major body systems, impairments

that are considered severe enough to prevent an adult from doing any

gainful activity or, for a child, that causes marked and severe

functional limitations. Most of the listed impairments are permanent or

expected to result in death, or a specific statement of duration is

made. For all others, the evidence must show that the impairment has

lasted or is expected to last for a continuous period of at least 12

months.

(b) * * *

(2) * * * Although the severity criteria in Part B of the Listing

of Impairments are expressed in different ways for different

impairments, the level of severity for impairments listed in part B is

intended to be the same as that expressed in the functional severity

criteria of the childhood mental disorders listings. (See listings

112.01 ff. of appendix 1 of subpart P of part 404 of this chapter.)

Therefore, in general, a child's impairment(s) is of ``listing-level

severity'' if it causes marked limitations in two broad areas of

functioning or extreme limitations in one such area. (See Sec. 416.926a

for definition of the terms marked and extreme as they apply to

children.) However, when we decide whether your impairment(s) meets the

requirements for any listed impairment, we will decide that your

impairment is of ``listing-level severity'' even if it does not result

in marked limitations in two broad areas of functioning, or extreme

limitations in one such area, if the listing that we apply does not

require such limitations to establish that an impairment(s) is

disabling.

* * * * *

21. Section 416.926 is amended by revising the section heading,

paragraph (a), the last sentence of paragraph (b), and the first

sentence of paragraph (c), and by adding paragraph (d) to read as

follows:

Sec. 416.926 Medical equivalence for adults and children.

(a) How medical equivalence is determined. We will decide that your

impairment(s) is medically equivalent to a listed impairment in

appendix 1 of subpart P of part 404 of this chapter if the medical

findings are at least equal in severity and duration to the listed

findings. We will compare the symptoms, signs, and laboratory findings

about your impairment(s), as shown in the medical evidence we have

about your claim, with the corresponding medical criteria shown for any

listed impairment. When we make a finding regarding medical

equivalence, we will consider all relevant evidence in your case

record. Medical equivalence can be found in two ways:

(1) If you have an impairment that is described in the Listing of

Impairments in appendix 1 of subpart P of part 404 of this chapter,

but:

(i) You do not exhibit one or more of the medical findings

specified in the particular listing, or

(ii) You exhibit all of the medical findings, but one or more of

the findings is not as severe as specified in the listing, we will

nevertheless find that your impairment is medically equivalent to that

listing if you have other medical findings related to your impairment

that are at least of equal medical significance.

(2) If you have an impairment that is not described in the Listing

of Impairments in appendix 1, or you have a combination of impairments,

no one of which meets or is medically equivalent to a listing, we will

compare your medical findings with those for closely analogous listed

impairments. If the medical findings related to your impairment(s) are

at least of equal medical significance to those of a listed impairment,

we will find that your impairment(s) is medically equivalent to the

analogous listing.

(b) * * * We will also consider the medical opinion given by one or

more medical or psychological consultants designated by the

Commissioner in deciding medical equivalence. (See Sec. 416.1016.)

(c) Who is a designated medical or psychological consultant. A

medical or psychological consultant designated by the Commissioner

includes any medical or psychological consultant employed or engaged to

make medical judgments by the Social Security Administration, the

Railroad Retirement Board, or a State agency authorized to make

disability determinations. * * *

(d) Responsibility for determining medical equivalence. In cases

where the State agency or other designee of the Commissioner makes the

initial or reconsideration disability determination, a State agency

medical or psychological consultant or other designee of the

Commissioner (see Sec. 416.1016) has the overall responsibility for

determining medical equivalence. For cases in the disability hearing

process or otherwise decided by a disability hearing officer, the

responsibility for determining medical equivalence rests with either

the disability hearing officer or, if the disability hearing officer's

reconsideration determination is changed under Sec. 416.1418, with the

Associate Commissioner for Disability or his or her delegate. For cases

at the Administrative Law Judge or Appeals Council level, the

responsibility for deciding medical equivalence rests with the

Administrative Law Judge or Appeals Council.

22. Section 416.926a is revised to read as follows:

Sec. 416.926a Functional equivalence for children

(a) General. If your impairment or combination of impairments does

not meet, or is not medically equivalent in severity to, any listed

impairment in appendix 1 of subpart P of part 404 of this chapter, we

will assess all functional limitations caused by your impairment(s),

i.e., what you cannot do because of your impairment(s), to determine if

your impairment(s) is functionally equivalent in severity to any listed

impairment. While all possible impairments are not addressed within the

Listing of Impairments, within the listed impairments are all the

[[Page 6425]]

physical and mental functional limitations, i.e., what a child cannot

do as a result of an impairment, that produce marked and severe

functional limitations. If the functional limitation(s) caused by your

impairment(s) is the same as the disabling functional limitation(s)

caused by a listed impairment, we will find that your impairment(s) is

equivalent in severity to that listed impairment, even if your

impairment(s) is not medically related to the listed impairment. When

we make a determination or decision using this rule, the primary focus

will be on whether your functional limitations are disabling, as long

as there is a direct, medically determinable cause for these

limitations. As with any disabling impairment, the duration requirement

must also be met (see Secs. 416.909 and 416.924(a)).

(b) How we determine functional equivalence. We will compare any

functional limitations resulting from your impairment(s) with the

disabling functional limitations of any listed impairment in part A or

part B of the Listing that includes the same functional limitations.

The listing we use for comparison need not be medically related to your

impairment(s). In paragraphs (b)(1) through (b)(4) of this section we

explain the methods we may use to decide that your impairment(s) is

functionally equivalent in severity to a listing. There is no set order

in which we must consider these methods and we may not consider them

all if we find that your impairment(s) is functionally equivalent in

severity to a listed impairment. We will use any method that is

appropriate to, or best describes, your impairment(s) and functional

limitations. However, we will consider all of the methods before we

determine that your impairment(s) is not functionally equivalent in

severity to any listed impairment. At the initial and reconsideration

levels (except when a disability hearing officer makes the

reconsideration determination), we will also complete a standard form,

Form SSA-538, Childhood Disability Evaluation Form, to show how we

determined whether your impairment(s) is functionally equivalent in

severity to a listed impairment. (See Sec. 416.924(g).)

(1) Limitation of specific functions. We may find that your

impairment(s) is functionally equivalent in severity to a listed

impairment because of extreme limitation of one specific function, such

as walking or talking. (See paragraph (c) of this section for an

explanation of the term ``extreme.'') Some listings also include

criteria requiring limitation of more than one specific function, such

as limitations in walking and talking; each limitation in itself is not

enough to show disability, but the combination of limitations

establishes marked and severe functional limitations. If you have a

limitation of a combination of specific functions that are the same as

those in such a listed impairment, we will find that your impairment(s)

is functionally equivalent in severity to that listing.

(2) Broad areas of development or functioning. Instead of looking

at limitation of specific functions, we may evaluate the effects of

your impairment(s) in broad areas of development or functioning, such

as social functioning, motor functioning, or personal functioning

(i.e., self-care) and determine if your functional limitations are

equivalent in severity to the disabling functional limitations in

listing 112.12 or listing 112.02. If you have extreme limitations in

one area of functioning or marked limitation in two areas of

functioning, we will find that your impairment(s) is functionally

equivalent in severity to a listed impairment. We explain the broad

areas of development or functioning we consider and what the terms

``extreme'' and ``marked'' mean in paragraph (c) of this section.

(3) Episodic impairments. If you have a chronic impairment(s) that

is characterized by frequent illnesses or attacks, or be exacerbations

and remissions, we may evaluate your functional limitations using the

methods in paragraphs (b)(1) and (b)(2) of this section. However, your

functional limitations may vary and we may not be able to use the

methods in paragraphs (b)(1) and (b)(2) of this section. Instead, we

may compare your functional limitation(s) to those in any listing for a

chronic impairment with similar episodic criteria to determine if your

impairment(s) has such a serious impact on your functioning over time

that it is functionally equivalent in severity to one of those

listings. Limitations that are characteristic of episodic impairments

are not necessarily related to a single, specific function. Episodes of

disabling functional limitations may occur with specified frequency

despite treatment. If your episodic impairment(s) produces disabling

functional limitations that are the same as the disabling functional

limitations of a listed impairment with similar episodic criteria, we

will find that you are disabled even though you may be able to function

adequately between episodes.

(4) Limitations related to treatment or medication effects. Some

impairments require treatment over a long period of time (i.e., at

least a year) and the treatment itself (e.g., multiple surgeries)

causes marked and severe functional limitations. Marked and severe

functional limitations may also result from the combined effects of

limitations caused by ongoing treatment and limitations caused by an

impairment(s). In many cases, we will be able to evaluate such

limitations using the methods for evaluating specific functions or

broad areas of development or functioning in paragraphs (b)(1) and

(b)(2) of this section. But we may also compare your functional

limitations(s) to criteria in listings based on treatment (including

side effects of medication) that is itself disabling or that

contributes to functional limitations. If treatment of your

impairment(s) produces functional limitations that are the same as the

disabling functional limitations of a listed impairment, we will find

that your impairment(s) is functionally equivalent in severity to that

listing.

(c) Broad areas of development or functioning. When we determine

functional equivalence based on broad areas of development or

functioning, we will evaluate the functional effects of your

impairment(s) in several areas of development or functioning to

determine if your functional limitations are equivalent in severity to

the disabling functional limitations of listing 112.12 or listing

112.02. However, instead of referring to the areas of development or

functioning in those listings, we will refer to the areas of

development or functioning described in paragraphs (c)(4) and (c)(5) of

this section. (We describe the areas in general terms in paragraph

(c)(4) and then in detail as they apply to specific age groups in

paragraph (c)(5).) If you have marked limitations in two areas of

development or functioning, or extreme limitation in one area, we will

find that your impairment(s) is functionally equivalent in severity to

listing 112.12 or listing 112.02, even if your impairment(s) is a

physical impairment(s) or a combination of physical and mental

impairments. We explain the meaning of the terms ``marked limitation''

and ``extreme limitation'' in paragraph (c)(3) of this section.

(1) How we use the areas of development or functioning. (i) When we

make a finding about functional equivalence, we will consider the

extent of your functional limitations in the areas affected by your

impairment(s). We will also consider how your limitation(s) in one area

affects your development or functioning in other areas.

(ii) In some children, some physical impairments will be evaluated

most

[[Page 6426]]

appropriately only in the areas of motor development or motor

functioning. In others, the effects will be more global. If you have a

physical impairment(s) that causes a functional limitation(s) not

addressed solely in the area of motor development or motor functioning,

we will consider the effects of your impairment in all relevant areas

in which you have limitations from the impairment(s). A physical

impairment(s) may cause limitations in any or all of the areas of

development or functioning.

(2) Other considerations. When we assess your functioning, we will

consider all information in your case record that can help us determine

the effect of your impairment(s) on your physical and mental

functioning. We will consider the nature of your impairment(s), your

age, your ability to be tested given your age, and other relevant

factors (see Secs. 416.924a through 416.924c). We will consider whether

any help that you need from others to enable you to do any particular

activity (e.g., dressing) is appropriate to your age.

(3) Definitions of ``marked'' and ``extreme'' limitations--(i)

Marked limitation means--(A) When standardized tests are used as the

measure of functional abilities, a valid score that is two standard

deviations or more below the norm for the test (but less than three

standard deviations); or

(B) For children from birth to attainment of age 3, functioning at

more than one-half but not more than two-thirds of chronological age;

or

(C) For children from age 3 to attainment of age 18, ``more than

moderate'' and ``less than extreme.'' Marked limitation may arise when

several activities or functions are limited or even when only one is

limited as long as the degree of limitation is such as to interfere

seriously with the child's functioning.

(ii) Extreme limitation means-- (A) When standardized tests are

used as the measure of functional abilities, a valid score that is

three standard deviations or more below the norm for the test; or

(B) For children from birth to attainment of age 3, functioning at

one-half chronological age or less; or

(C) For children from birth to attainment of age 18, no meaningful

functioning in a given area. There may be extreme limitation when

several activities or functions are limited or even when only one is

limited.

(4) Areas of development or functioning. The following are the

areas of development or functioning that may be addressed in a finding

of functional equivalence.

(i) Cognition/communication: The ability or inability to learn,

understand, and solve problems through intuition, perception, verbal

and nonverbal reasoning, and the application of acquired knowledge; the

ability to retain and recall information, images, events, and

procedures during the process of thinking. The ability or inability to

comprehend and produce language (e.g., vocabulary and grammar) in order

to communicate (e.g., to respond, as in answering questions, following

directions, acknowledging the comments of others; to request, as in

demanding action, meeting needs, seeking information, requesting

clarification, initiating interaction; to comment, as in sharing

information, expressing feelings, and ideas, providing explanations,

describing events, maintaining interaction, using hearing that is

adequate for conversation, and using speech (articulation, voice, and

fluency) that is intelligible.

(ii) Motor: The ability or inability to use gross and fine motor

skills to relate to the physical environment and serve one's physical

purposes. It involves general mobility, balance, and the ability to

perform age-appropriate physical activities involved in play, physical

education, sports, and physically related daily activities other than

self-care (see Personal area).

(iii) Social: The ability or inability to form and maintain

relationships with other individuals and with groups; e.g., parents,

siblings, neighborhood children, classmates, teachers. Ability is

manifested in responding to and initiating social interaction with

others, sustaining relationships, and participating in group

activities. It involves cooperative behaviors, consideration for

others, awareness of others' feelings, and social maturity appropriate

to a child's age. Ability is also manifested in the absence of

inappropriate externalized actions (e.g., running away, physical

aggression--but not self-injurious actions, which are evaluated in the

personal area of functioning), and the absence of inappropriate

internalized actions (e.g., social isolation, avoidance of

interpersonal activities, mutism). Social functioning in play, school,

and work situations may involve interactions with adults, including

responding appropriately to persons in authority (e.g., teachers,

coaches, employers) or cooperative behaviors involving other children.

(iv) Responsiveness to stimuli (birth to age 1 only): The ability

or inability to respond appropriately to stimulation (visual, auditory,

tactile, vestibular, proprioceptive).

(v) Personal (age 3 to age 18 only): The ability or inability to

help yourself and to cooperate with others in taking care of your

personal needs, health, and safety (e.g., feeding, dressing, toileting,

bathing; maintaining personal hygiene, proper nutrition, sleep, health

habits; adhering to medication or therapy regimens; following safety

precautions).

(vi) Concentration, persistence, or pace (age 3 to age 18 only):

The ability or inability to attend to, and sustain concentration on, an

activity or task, such as playing, reading, or practicing a sport, and

the ability to perform the activity or complete the task at a

reasonable pace.

(5) Descriptions for specific age groups--(i) Newborns and young

infants (birth to attainment of age 1) Children in this age group are

evaluated in terms of four areas of development. The following are

general descriptions of development typical of this age group.

(A) Cognitive/communicative development (birth to attainment of age

1): Your ability or inability to show interest in, and actively seek

interaction with, your environment, first randomly, then through trial-

and-error, and finally with deliberate and purposeful intent. Your

ability or inability to first recognize, and then attach meaning to,

routine situations and events and gradually to everyday sounds and

eventually to familiar words. Your ability or inability to vocalize,

both imitatively and spontaneously, using vowels and later consonants,

first in isolation, and then in increasingly longer babbling strings.

(B) Motor development (birth to attainment of age 1): Your ability

or inability to explore and manipulate your environment by moving your

body and by using your hands; e.g., by increasingly controlling

position and movement of head, sitting with support, creeping or

crawling, pulling to standing position, walking with hand held,

standing alone briefly, waving small rattle, reaching for or grasping

objects, transferring toys, picking up small objects, attempting to

scribble.

(C) Social development (birth to attainment of age 1): Your ability

or inability to form and maintain intimate relationships, and to

respond to, and eventually initiate reciprocal interactions with, your

primary caregivers (e.g., through games such as pat-a-cake, peek-a-boo,

so big). Your ability or inability to begin to regulate the behavior of

others through intentional behavior (e.g., gestures, vocalizations).

Your ability or inability to recognize and produce a variety of

[[Page 6427]]

emotional cues (e.g., facial expressions, vocal tone changes).

(D) Responsiveness to stimuli (birth to attainment of age 1): Your

ability or inability to form patterns of self-regulation, i.e., to

recognize internal cues (e.g., hunger, pain), and to organize external

experiences (e.g., light, sound, temperature, movement), and to

regulate your reactions to them (e.g., brightening in response to

sights and sounds, enjoying being touched or stroked or held, enjoying

gentle movement in space (``rock-a-bye-baby'')).

(ii) Older infants and toddlers (age 1 to attainment of age 3):

Children in this age group are evaluated in terms of three areas of

development. The following are general descriptions of development

typical of this age group.

(A) Cognitive/communicative development (age 1 to attainment of age

3): Your ability or inability to understand by responding to

increasingly complex requests, instructions, and questions; to refer to

yourself and things around you by pointing and eventually by naming; to

form concepts and to solve simple problems through purposeful

experimentation (e.g., disassembling toys), imitation (immediate and

delayed), and constructive play (e.g., putting things in and out of

containers, building with blocks, exploring spaces); to demonstrate

your knowledge of objects, actions, and situations you have encountered

through pretend play activities; to spontaneously communicate your

wishes or needs by using gestures, an increasing number of intelligible

words, and eventually grammatically correct simple sentences and

questions with increasingly rich and broad vocabulary.

(B) Motor development (age 1 to attainment of age 3): Your ability

or inability to move in your environment using your body with steadily

increasing dexterity and independence from support by others, and your

increasing ability to manipulate small objects and to use your hands to

do, or to get, something that you want or need.

(C) Social development (age 1 to attainment of age 3): Your ability

or inability to exhibit normal dependence upon, and intimacy with, your

primary caregivers, as well as increasing independence from them; to

initiate and respond to a variety of emotional cues; to regulate and

organize emotions and behaviors. Your ability or inability to be

interested in initiating and maintaining interactions with others,

first during brief, yet frequent encounters, and gradually increasing

to longer, sustained ones. Your ability or inability to show interest

in, initially watch, then play alongside, and eventually interact with

similarly aged peers.

(iii) Preschool children (age 3 to attainment of age 6). Children

in this age group are evaluated in terms of five areas of development.

The following are general descriptions of development typical of this

age group.

(A) Cognitive/communicative development (age 3 to attainment of age

6): Your ability or inability to learn, understand, and solve problems

through intuition, perception, verbal and nonverbal reasoning, and the

application of acquired knowledge; your ability or inability to retain

and recall information, images, events, and procedures during the

process of thinking (as in the development of readiness skills for

formal learning (e.g., learning letters, shapes, colors) and skills for

daily living (e.g., putting toys in proper places)). Your ability or

inability to communicate by expressing your needs, feelings, and

preferences; by telling, requesting, predicting, and relating

information; by describing actions and functions; by providing

explanations; by following and giving directions; and by engaging in

conversation in a spontaneous, interactive, and increasingly

intelligible manner, using increasingly complex vocabulary and grammar.

(B) Motor development (age 3 to attainment of age 6): Your ability

or inability to move and use your arms and legs in increasingly more

intricate and coordinated activity, and your ability or inability to

use your hands with increasing coordination to manipulate small objects

during play (e.g., drawing, using building blocks, constructing

puzzles) and physically related daily activities other than self-care

(see Personal area).

(C) Social development (age 3 to attainment of age 6): Your ability

or inability to initiate social exchanges, to organize and regulate

your emotions and behaviors, and to respond to your social environment

through appropriate and increasingly complex interactions, such as

showing affection, sharing, and helping; your ability to relate to

caregivers with increasing independence, to choose your own friends,

and to play cooperatively with other children, one-at-a-time or in a

group.

(D) Personal development (age 3 to attainment of age 6): Your

ability or inability to help yourself and to cooperate with others in

taking care of your personal needs, health, and safety (e.g., bathing,

dressing, maintaining sleep habits, crossing the street with an adult).

(E) Concentration, persistence, or pace (age 3 to attainment of age

6): Your ability or inability to engage in an activity, and to sustain

the activity for a period of time at a reasonable pace (e.g., playing a

simple board game).

(iv) School-age children (age 6 to attainment of age 12). Children

in this age group are evaluated in terms of five areas of functioning.

The following are general descriptions of functioning typical of this

age group.

(A) Cognitive/communicative functioning (age 6 to attainment of age

12): Your ability or inability to learn, understand, and solve problems

through intuition, perception, verbal and nonverbal reasoning, and the

application of acquired knowledge; the ability to retain and recall

information, images, events, and procedures during the process of

thinking, as in formal learning situations (e.g., reading, class

discussions) and in daily living (e.g., telling time, making change).

Your ability or inability to comprehend and produce language (e.g.,

vocabulary, grammar) in order to communicate in social conversation

(e.g., to express feelings, meet needs, seek information, describe

events, share stories), and in learning situations (e.g., to exchange

information and ideas with peers and family or with groups such as your

school classes) in a spontaneous, interactive, sustained, and

intelligible manner, using increasingly complex vocabulary and grammar.

(B) Motor functioning (age 6 to attainment of age 12): Your ability

or inability to use fine and gross motor skills in order to engage in

the physical activities involved in normal mobility, school work, play,

physical education, sports, and other physically related daily

activities other than self-care (see Personal area).

(C) Social functioning (age 6 to attainment of age 12): Your

ability or inability to play alone, with another child, and in a group;

to initiate and develop friendships; to respond to your social

environments through appropriate and increasingly complex interpersonal

behaviors, such as empathizing with others and tolerating differences;

and to relate appropriately to individuals and in group situations

(e.g., siblings, parents or caregivers, peers, teachers, school

classes, neighborhood groups).

(D) Personal functioning (age 6 to attainment of age 12): Your

ability or inability to help yourself and to cooperate with others in

taking care of your personal needs, health, and safety (e.g., eating,

dressing, maintaining personal hygiene, following safety precautions).

[[Page 6428]]

(E) Concentration, persistence, or pace (age 6 to attainment of age

12): Your ability or inability to engage in an activity, and to sustain

the activity for a period of time and at a reasonable pace.

(v) Adolescents (age 12 to attainment of age 18): Children in this

age group are evaluated in terms of five areas of functioning. The

following are general descriptions of functioning typical of this age

group.

(A) Cognitive/communicative functioning (age 12 to attainment of

age 18): Your ability or inability to learn, understand, and solve

problems through intuition, perception, verbal and nonverbal reasoning,

and the application of acquired knowledge; the ability or inability to

retain and recall information, images, events, and procedures during

the process of thinking, as in formal learning situations (e.g.,

composition, classroom discussion) and in daily living (e.g., using the

post office, using public transportation). Your ability or inability to

comprehend and produce language (e.g., vocabulary, grammar) in order to

communicate in conversation (e.g., to express feelings, meet needs,

seek information, describe events, tell stories), and in learning

situations (e.g., to obtain and convey information and ideas) both

spontaneously and interactively, in all communication environments

(e.g., home, classroom, game fields, extra-curricular activities, job),

and with all communication partners (e.g., parents, siblings, peers,

school classes, teachers, employers).

(B) Motor functioning (age 12 to attainment of age 18): Your

ability or inability to use fine and gross motor skills in order to

engage in the physical activities involved in normal mobility, school

work, play, physical education, sports, and other physically related

daily activities other than self-care (see Personal area).

(C) Social functioning (age 12 to attainment of age 18): Your

ability or inability to initiate and develop friendships, to relate

appropriately to individual peers and adults and to peer and adult

groups, and to reconcile conflicts between yourself and peers or family

members or other adults outside your family.

(D) Personal functioning (age 12 to attainment of age 18): Your

ability or inability to help yourself in taking care of your personal

needs, health, and safety (e.g., dressing, bathing, doing laundry,

adhering to medication or therapy regiments).

(E) Concentration, persistence, or pace (age 12 to attainment of

age 18): Your ability or inability to engage in an activity, and to

sustain the activity for a period of time and at a reasonable pace.

(d) Examples of impairments that are functionally equivalent in

severity to a listed impairment. The following are some examples of

impairment and limitations that are functionally equivalent to

listings. Findings of equivalence based on the disabling functional

limits of a child's impairment(s) are not limited to the examples in

this paragraph (d), because these examples do not describe all possible

effects of impairments that might be found to be functionally

equivalent in severity to a listed impairment. As with any disabling

impairment, the duration requirement must also be met (see

Secs. 416.909 and 416.924(a)).

(1) Documented need for major organ transplant (e.g., liver).

(2) Any condition that is disabling at the time of onset, requiring

a series of staged surgical procedures within 12 months after onset as

a life-saving measure or for salvage or restoration of function, and

such major function is not restored or is not expected to be restored

within 12 months after onset of the condition.

(3) Frequent need for a life-sustaining device (e.g., central

venous alimentatin catheter), at home or elsewhere.

(4) Ambulation possible only with obligatory bilateral upper limb

assistance.

(5) Any physical impairment(s) or combination of physical and

mental impairments causing marked restriction of age-appropriate

personal functioning and marked restriction in motor functioning.

(6) Any physical impairment(s) or combination of physical and

mental impairments causing complete inability to function independently

outside the area of one's home within age-appropriate norms.

(7) Requirement for 24-hour-a-day supervision for medical

(including psychological) reasons.

(8) Infants weighing less than 1200 grams at birth, until

attainment of 1 year of age.

(9) Infants weighing at least 1200 but less than 2000 grams at

birth, and who are small for gestational age, until attainment of 1

year of age. (Small for gestational age means a birth weight that is at

or more than 2 standard deviations below the mean or that is below the

3rd growth percentile for the gestational age of the infant.)

(10) In an infant who has not attained age 1 year, and who may be

too young to test, any limitations caused by a physical impairment(s)

or a combination of physical and mental impairments that causes the

same functional limitations in listing 112.12.

(11) Major congenital organ dysfunction which could be expected to

result in death within the first year of life without surgical

correction, and the impairment is expected to be disabling (because of

residual impairment following surgery, or the recovery time required,

or both) until attainment of 1 year of age.

(12) Gastrostomy in a child who has not attained age 3.

(e) Responsibility for determining functional equivalence. In cases

where the State agency or other designee of the Commissioner makes the

initial or reconsideration disability determination, a State agency

medical or psychological consultant or other designee of the

Commissioner (see Sec. 416.1016) has the overall responsibility for

determining functional equivalence. For cases in the disability hearing

process or otherwise decided by a disability hearing officer, the

responsibility for determining functional equivalence rests with either

the disability hearing officer or, if the disability hearing officer's

reconsideration determination is changed under Sec. 416.1418, with the

Associate Commissioner for Disability or his or her delegate. For cases

at the Administrative Law Judge or Appeals Council level, the

responsibility for deciding functional equivalence rests with the

Administrative Law Judge or Appeals Council.

23. Section 416.927 is amended by revising paragraph (a)(1) to read

as follows:

Sec. 416.927 Evaluating medical opinions about your impairment(s) or

disability.

(a) General. (1) If you are an adult, you can only be found

disabled if you are unable to do any substantial gainful activity by

reason of any medically determinable physical or mental impairment

which can be expected to result in death or which has lasted or can be

expected to last for a continuous period of not less than 12 months.

(See Sec. 416.905.) If you are a child, you can be found disabled only

if you have a medically determinable physical or mental impairment(s)

that causes marked and severe functional limitations and that can be

expected to result in death or that has lasted or can be expected to

last for a continuous period of not less than 12 months. (See

Sec. 416.906.)

* * * * *

24. Section 416.929 is amended by revising the fourth, fifth, and

last sentences of paragraph (a), the heading

[[Page 6429]]

of paragraph (c), the first and last sentences of paragraph (c)(1), the

second sentence of paragraph (c)(2), the heading and the first and last

sentences of paragraph (c)(4), the reference at the end of paragraph

(d)(1), the sixth and ninth sentences of paragraph (d)(3), and

paragraph (d)(4) to read as follows:

Sec. 416.929 How we evaluate symptoms, including pain.

(a) * * * These include statements or reports from you, your

treating or examining physician or psychologist, and others about your

medical history, diagnosis, prescribed treatment, daily activities,

efforts to work, and any other evidence showing how your impairment(s)

and any related symptoms affect your ability to work (or if you are a

child, your functioning). We will consider all of your statements about

your symptoms, such as pain, and any description you, your physician,

your psychologist, or other persons may provide about how the symptoms

affect your activities of daily living and your ability to work (or if

you are a child, your functioning). * * * We will then determine the

extent to which your alleged functional limitations and restrictions

due to pain or other symptoms can reasonably be accepted as consistent

with the medical signs and laboratory findings and other evidence to

decide how your symptoms affect your ability to work (or if you are a

child, your functioning).

* * * * *

(c) * * * (1) General. When the medical signs or laboratory

findings show that you have a medically determinable impairment(s) that

could reasonably be expected to produce your symptoms, such as pain, we

must then evaluate the intensity and persistence of your symptoms so

that we can determine how your symptoms limit your capacity for work

or, if you are a child, your functioning. * * * Paragraphs (c)(2)

through (c)(4) of this section explain further how we evaluate the

intensity and persistence of your symptoms and how we determine the

extent to which your symptoms limit your capacity for work (or, if you

are a child, your functioning) when the medical signs or laboratory

findings show that you have a medically determinable impairment(s) that

could reasonably be expected to produce your symptoms, such as pain.

(2) * * * Objective medical evidence of this type is a useful

indicator to assist us in making reasonable conclusions about the

intensity and persistence of your symptoms and the effect those

symptoms, such as pain, may have on your ability to work or, if you are

a child, your functioning. * * *

* * * * *

(4) How we determine the extent to which symptoms, such as pain,

affect your capacity to perform basic work activities, or, if you are a

child, your functioning). In determining the extent to which your

symptoms, such as pain, affect your capacity to perform basic work

activities (or if you are a child, your functioning), we consider all

of the available evidence described in paragraphs (c)(1) through (c)(3)

of this section. * * * Your symptoms, including pain, will be

determined to diminish your capacity for basic work activities (or, if

you are a child, your functioning) to the extent that your alleged

functional limitations and restrictions due to symptoms, such as pain,

can reasonably be accepted as consistent with the objective medical

evidence and other evidence.

(d) * * *

(1) * * * (See Sec. 416.920(c) for adults and Sec. 416.924(c) for

children.)

* * * * *

(3) * * * (If you are a child and we cannot find equivalence based

on medical evidence only, we will consider pain and other symptoms

under Sec. 416.926(a)(b)(3) in determining whether you have an

impairment(s) that causes overall functional limitations that are the

same as the disabling limitations of a listed impairment.) * * * If

they are not, we will consider the impact of your symptoms on your

residual functional capacity if you are an adult.* * *

(4) Impact of symptoms (including pain) on residual functional

capacity or, if you are a child, on your functioning. If you have a

medically determinable severe physical or mental impairment(s), but

your impairment(s) does not meet or equal an impairment listed in

appendix 1 of subpart P of part 404 of this chapter, we will consider

the impact of your impairment(s) and any related symptoms, including

pain, or your residual functional capacity, if you are an adult, or, on

your functioning if you are a child. (See Secs. 416.945 and 416.924a

through 416.924e.)

25. Section 416.930 is amended by revising paragraph (a) to read as

follows:

Sec. 416.930 Need to follow prescribed treatment.

(a) What treatment you must follow. In order to get benefits, you

must follow treatment prescribed by your physician if this treatment

can restore your ability to work, or, if you are a child, if the

treatment can reduce your functional limitations so that they are no

longer marked and severe.

* * * * *

26. Section 416.987 and an undesignated center heading are added to

20 CFR part 416, subpart I to read as follows:

Disability Redeterminations for Individuals Who Attain Age 18

Sec. 416.987 Disability redeterminations for individuals who attain

age 18.

(a)(1) Public Law 104-193, The Personal Responsibility and Work

Opportunity Reconciliation Act of 1996, requires that the individuals

described in paragraph (b) of this section must have their eligibility

redetermined.

(2) For these individuals, subject to the provisions of paragraphs

(b)(2) and (b)(3) of this section, we will use the rules for new

applicants; we will not use the rules for determining whether

disability continues set out in Sec. 416.994. If you are an individual

affected by the provisions of this section, we may find that you are

not now disabled even though we previously found that you were

disabled.

(3) Before we begin your disability redetermination, we will notify

you that we are redetermining your eligibility for payments, why we are

redetermining your eligibility, which disability rules we will apply,

that our review could result in a finding that your SSI payments based

on disability could be terminated, that you have the right to submit

medical and other evidence for our consideration during the

redetermination, and that when we make our determination, we will

notify you of our determination, your right to appeal the

determination, and your right to request continuation of benefits

during appeal.

(4) We will notify you in writing of the results of the disability

redetermination. The notice will tell you what our determination is,

the reasons for our determination and your right to request

reconsideration of the determination. If our determination shows that

we should stop your SSI payments based on disability, the notice will

also tell you of your right to request that your benefits continue

during any appeal. The results of an initial disability redetermination

are binding unless you request a reconsideration within the stated time

period, or we revise the initial determination.

(b)(1) We will redetermine the eligibility of individuals

(i) Who became eligible for SSI benefits by reason of disability

prior to attaining age 18, and

[[Page 6430]]

(ii) Who also were eligible for such benefits for the month before

the month in which they attained age 18.

(2) When we make this determination, we will apply the rules in

Secs. 416.920(c)-(f); we will not apply the rules in Sec. 416.920(b) or

Sec. 416.994.

(3) If you are an individual affected by the provisions of this

section, and you

This text is long and has been trimmed here. Open the source document for the complete record.