[Federal Register Volume 59, Number 199 (Monday, October 17, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-25747]


[[Page Unknown]]

[Federal Register: October 17, 1994]


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Part III





Department of Health and Human Services





_______________________________________________________________________



Social Security Administration



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20 CFR Parts 404 and 416




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

Social Security Administration

20 CFR Parts 404 and 416

[Regulations Nos. 4 and 16]

 
Benefit Reforms for Individuals Disabled Based on Drug Addiction 
or Alcoholism

AGENCY: Social Security Administration, HHS.

ACTION: Notice of intent with request for comments.

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SUMMARY: The Social Security Independence and Program Improvements Act 
of 1994 contains provisions affecting benefits under titles II and XVI 
of the Social Security Act to individuals whose medically determined 
drug addiction or alcoholism (DA&A) is a contributing factor material 
to the finding of disability. Most of these provisions are effective 
for benefits payable beginning March 1, 1995. Certain implementing 
regulations must be issued by February 11, 1995, 180 days after 
enactment. The Secretary of Health and Human Services (the Secretary) 
is requesting early public comment on several important policy issues. 
The Department of Health and Human Services (HHS) and the Social 
Security Administration (SSA) plan to use the comments, along with 
other public views and information obtained, to help formulate rules 
necessary to implement some provisions. For provisions not requiring 
final regulations by February 1995, principally representative payment 
provisions, HHS plans to issue a Notice of Proposed Rulemaking to 
solicit public comments.

DATES: To be sure your comments are considered, we must receive them no 
later than November 16, 1994.

ADDRESSES: Comments should be submitted in writing to the Commissioner 
of Social Security, Department of Health and Human Services, P.O. Box 
1585, Baltimore, Maryland 21235, sent by telefax to (410) 966-2830, or 
delivered to the Division of Regulations and Rulings, Social Security 
Administration, 3-B-1 Operations Building, 6401 Security Boulevard, 
Baltimore, Maryland 21235, between 8:00 a.m. and 4:30 p.m. on regular 
business days. Comments may be inspected during these same hours by 
making arrangements with the contact person shown below.

FOR FURTHER INFORMATION CONTACT: Regarding this Federal Register 
document--Richard M. Bresnick, Legal Assistant, Division of Regulations 
and Rulings, Social Security Administration, 6401 Security Boulevard, 
Baltimore, MD 21235, (410) 965-1758; regarding eligibility or filing 
for benefits--our national toll-free number, 1-800-772-1213.

SUPPLEMENTARY INFORMATION:

I. Background

    Section 201 of the Social Security Independence and Program 
Improvements Act of 1994, Public Law (Pub. L.) 103-296, enacted August 
15, 1994, contains several provisions affecting the payment of Social 
Security and supplemental security income (SSI) benefits to individuals 
whose medically determined drug addiction or alcoholism (DA&A) is a 
contributing factor material to the finding of disability. (For ease of 
reference in this Notice of Intent, we refer to these individuals as 
being ``disabled based on DA&A.'') The provisions may affect 
individuals currently receiving benefits, as well as those awarded 
benefits in the future.
    The law places new restrictions on Social Security and SSI benefit 
payments to individuals disabled based on DA&A, which are intended to 
discourage a beneficiary from using Social Security or SSI benefits to 
support an addiction. It also requires the Secretary to promulgate 
regulations necessary to implement the statutory provisions by February 
11, 1995.
    HHS decided to request advance comments on the provisions involving 
nonpayment or termination of benefits under section 201 of Public Law 
103-296 for several reasons. Congress mandated in the law that in 
promulgating the required regulations we consult with professionals in 
the field of DA&A treatment. This consultation must take place before 
the regulations can be drafted. We also believe it warranted that we 
obtain public comment on the novel program requirements of the law and 
policy issues at the same time. In addition, it is clear from the law 
that HHS must have regulations in place by February 11, 1995. 
Accordingly, we are seeking advance public comments to be used in the 
initial formulation of the rules through this request. In addition, we 
have requested individual comments directly from various treatment 
professionals and advocacy groups around the country. We are holding 
and attending meetings with various treatment professionals, 
representatives of referral and monitoring agencies (RMAs), and others 
with knowledge of DA&A-related issues to discuss, in general, 
contemporary treatment philosophies and receive the individual views of 
those in attendance.

II. Summary of DA&A Provisions Prior to the Passage of Public Law 103-
296

    Prior to the passage of Public Law 103-296, there were no special 
program rules for Social Security DA&A beneficiaries. SSI beneficiaries 
disabled based on DA&A were required to receive payment through a 
representative payee. These SSI beneficiaries are required to undergo 
treatment, when available, at approved facilities. They also must 
comply with the terms of their treatment program and take part in the 
monitoring and testing procedures established by the Secretary.

III. Major DA&A-Related Provisions of Public Law 103-296 Involving 
Nonpayment or Termination of Benefits

A. Payment Limitation

    The payment of SSI benefits will be limited to 36 months for 
individuals disabled based on DA&A. Also, the payment of Social 
Security benefits will be limited to 36 months, but this limitation 
will begin with the first month for which treatment is available, and 
only months for which treatment is available are counted in the 36-
month period. The 36-month DA&A payment restrictions for both Social 
Security and SSI benefits will cease to be effective with respect to 
benefits for months after September 2004. Medicare and Medicaid 
benefits will continue as long as a DA&A beneficiary whose benefits 
have been suspended for less than 12 months, or terminated after 36 
months, continues to be disabled and otherwise eligible. Dependents' 
benefits will continue as long as the DA&A beneficiary whose benefits 
have been suspended, or terminated after 12 months of noncompliance or 
the 36-month payment limit, continues to be disabled and otherwise 
eligible. The payment limit will not apply to individuals who are 
disabled independent of their DA&A. Suspension months will not be 
counted in the 36 months.

B. Suspension for Noncompliance

    Benefits will be suspended for noncompliance with treatment for 
both Social Security and SSI beneficiaries, beginning the first month 
following the month beneficiaries are notified of such noncompliance. 
Once an individual is determined to be in noncompliance and benefits 
are suspended, benefits must continue to be suspended until after the 
beneficiary demonstrates compliance with treatment requirements for 
specified periods--a minimum of 2 months, 3 months, and 6 months, 
respectively, for the first, second, and third or subsequent instances 
of noncompliance. Suspension of benefits for 12 consecutive months for 
noncompliance will result in termination of benefits.

C. Treatment Requirement

    The treatment participation requirement, which now applies only to 
SSI beneficiaries, will be extended to Social Security beneficiaries 
disabled based on DA&A. Additionally, SSA will be required to provide 
for the monitoring of progress in treatment. The provision is to be 
implemented beginning after the effective date with newly adjudicated 
cases and Social Security beneficiaries already on the rolls with a 
primary diagnosis of DA&A and extended to other applicable 
beneficiaries as quickly as possible.

D. Referral and Monitoring Agencies (RMAs)

    Contracts with RMAs are in place in most States as a result of 
statutory requirements that the Secretary provide for the monitoring 
and testing of title XVI DA&A beneficiaries. Pursuant to Public Law 
103-296, new RMA contracts must be established in each State and 
regulations must be issued which define appropriate treatment and 
establish guidelines to be used to review and evaluate compliance and 
measure progress for individuals disabled based on DA&A. The new 
contracts are needed in part because the RMAs will handle additional 
workloads (i.e., title II beneficiaries) and will take on additional 
functions. New regulations are required by the legislation to implement 
the new program requirements.

E. Retroactive Benefits

    The law requires incremental payment, on a prorated basis, of 
retroactive Social Security and SSI benefits to individuals disabled 
based on DA&A, with a limited exception for those who have outstanding 
debts related to housing and are at high risk of homelessness. 
Retroactive benefits due an individual whose entitlement terminates 
will continue in prorated amounts until they are fully paid. No 
retroactive payments will be made in periods of suspension for 
noncompliance with treatment requirements. In addition, if a 
beneficiary dies without having received all retroactive benefits, the 
unpaid amount is treated like any other underpayment.

IV. Policy Questions

    The statutory provisions regarding nonpayment and termination of 
benefits present many novel policy issues. SSA has made separate 
contacts with DA&A treatment professionals to obtain views on issues of 
treatment, compliance and monitoring. In addition, SSA is facing many 
operational issues in terms of putting the processes and systems in 
place to implement these provisions. This request for public comments 
is focused on the policy issues which, in our opinion, have a broad 
public import, and on which SSA will benefit from receiving a wide 
range of public views.
    The questions which follow may necessitate different responses 
depending on whether the answer relates to alcoholism or to different 
types of drug addiction. SSA requests that commenters identify to which 
type(s) of addiction a particular response applies. Public comments are 
requested on the following policy issues:

A. Defining Appropriate Treatment

    The new legislation requires that individuals disabled based on 
DA&A undergo appropriate substance abuse treatment. Currently, there 
are no specific guidelines in the regulations which define 
``appropriate treatment.'' HHS defines ``appropriate treatment'' at 
Sec. 416.937 for SSI cases as ``recognized medical or other 
professional procedures for treatment of drug addiction or alcoholism 
which is carried out at or under the supervision of, an approved 
institution or facility (or facilities). This treatment may include-- 
(a) Medical examination and treatment; (b) Psychiatric, psychological 
and vocational counselling; or (c) Other appropriate services for drug 
addiction or alcoholism.'' Instead of requiring the use of specific 
regulatory guidelines, SSA has directed employees of treatment 
facilities or of RMAs under contract with SSA to make judgments in 
determining appropriate treatment.
    SSA is considering adopting a policy defining ``appropriate 
substance abuse treatment'' for individuals disabled based on DA&A in 
general terms under which SSA would continue to rely on the judgments 
of treatment professionals. For example, a general definition of 
appropriate treatment could refer to substance abuse treatment which 
serves the need of the individuals in the least restrictive setting. 
Accordingly, appropriate treatment would be determined on the basis of 
a comprehensive assessment in which each individual's needs are defined 
and compliance with such individualized treatment would be overseen by 
an approved institution or facility as defined in regulations. SSA may 
also incorporate the examples from our current regulations cited above.
    Questions: What is considered ``appropriate'' substance abuse 
treatment? What factors should be considered in placing an individual 
in treatment? What ranges of treatment modalities fall within an 
appropriate treatment spectrum for the most common types of substance 
abuse problems? Recognizing that some individuals may abuse more than 
one substance, how should ``appropriate treatment'' be defined when 
there is more than one substance involved? With the objective of 
placing as many clients as possible in appropriate treatment, how 
should the parameters of appropriate treatment be defined, i.e., what 
would be the circumstances under which the client would not benefit 
from treatment? Should the regulations refer generally to individual 
assessments being made by professionals or should specific treatment 
guidelines be included?

B. Availability of Treatment

    The legislation requires the disabled individual to undergo 
treatment which is ``available'' but does not define the term. The 
current substance abuse treatment requirements are applicable only to 
title XVI beneficiaries, and not to title II beneficiaries. The current 
regulations at Sec. 416.939 provide guidance on when treatment for DA&A 
is considered available for title XVI beneficiaries. Generally, SSA 
determines whether treatment is available based on: obtaining a 
treatment vacancy at no cost to the individual; the location of the 
facility; availability and cost of transportation to the individual; 
the individual's general health; the individual's particular condition 
and circumstances; and, the treatment that is required.
    SSA is considering the adoption of the same guidelines for 
determining the availability of treatment to title II and title XVI 
beneficiaries. However, we would like to receive any comments on 
whether these guidelines are adequate or if other factors should be 
considered.
    Questions: How should SSA define available substance abuse 
treatment? Should availability take into consideration the client's 
access to transportation, education, familial situation and/or health? 
What other factors should be considered, if any? Should clients seeking 
readmission to treatment after a period of noncompliance be given 
priority for a treatment slot over other clients awaiting initial 
intake into treatment?

C. Defining and Measuring Progress

    Currently, SSA has no rules for defining and measuring progress 
expected to be achieved by participants in treatment programs. The law 
requires that such regulations be developed in establishing guidelines 
used to review and evaluate compliance with treatment. Treatment 
professionals may have differing views and opinions on defining and 
measuring progress. Progress is related to compliance. Currently, 
providers determine treatment and measures of progress. The difficult 
task for SSA is to determine to what extent it can be externally 
validated. SSA is considering defining parameters of progress as 
clinical measures, such as attendance, participation in activities, 
changes in physical and mental limitations, degree of abstinence, drug 
testing results, attitude, cooperation, mental/psychological status and 
instances of relapse.
    Questions: What constitutes progress in substance abuse treatment? 
What are the most effective and reliable means of measuring progress in 
substance abuse treatment? How can these be quantified and reported 
regularly in a cost-effective mode? What methods currently exist for 
validating progress with treatment?

D. Evaluating Compliance With Treatment

    Currently, there are no specific guidelines in the regulations to 
evaluate beneficiaries' compliance with the treatment requirements. 
Determinations on compliance generally have been based on judgments 
made by employees of the treatment facilities or of the RMAs under 
contract with SSA. The statute requires that the Secretary issue 
regulations establishing guidelines for evaluating whether individuals 
entitled to benefits based on DA&A are in compliance and progressing 
with treatment requirements.
    There are a wide range of issues that pertain to evaluating 
compliance with treatment, including views on how to define success 
within a treatment modality. For example, some believe that individuals 
can be expected to undergo periods of drug or alcohol use even though 
they are following a treatment plan in large part.
    Questions: What are the factors we should use to evaluate 
compliance with substance abuse treatment? How should a relapse be 
treated or evaluated for purposes of compliance? Are there varying 
degrees of relapse which may or may not indicate noncompliance? While 
one isolated incident may not be defined as noncompliance, what number 
of ``second chances'' should be provided? Should positive drug or 
alcohol tests be used as a tool to measure compliance? If yes, how, 
i.e., a single test, a certain number of tests, or tests in conjunction 
with other indicators? If other indicators should be factored in, what 
are those indicators? How reliable are these tests? Are there other 
types of testing or criteria that could be used to monitor compliance 
with the substance abuse treatment requirements? How frequently should 
testing be done? What are the customary and reasonable charges for 
testing? How and by whom are test specimens (blood, urine, breath) 
collected? Should this be done outside a clinical or laboratory 
setting, and can it be done properly and effectively outside such a 
setting? If so, please provide examples of appropriate nonclinic-based 
procedures.
    How should SSA evaluate compliance with Alcoholics Anonymous and 
Narcotics Anonymous? SSA is considering a requirement for individuals 
to get signed statements of attendance.

E. Frequency of Monitoring by the RMA

    Currently, the treatment requirements have been applicable only to 
title XVI beneficiaries, and not to title II beneficiaries. 
Accordingly, although there are RMAs under contract in most States, 
they serve only the title XVI population and the referral and 
monitoring work presently being performed is not as extensive as the 
new legislation requires. There are no regulations regarding the 
referral and monitoring functions.
    The law requires SSA to establish one or more RMAs in each State. 
One function of the RMA will be to monitor progress and compliance with 
the treatment program. Currently, SSA's contracts with RMAs require 
monitoring weekly for the 1st month; bi-weekly for the 2nd and 3rd 
months; then monthly for the 4th through 12th months of treatment. SSA 
is considering a requirement that, initially, each client be monitored 
bi-weekly for the first 3 months and monthly thereafter. Ongoing 
monthly monitoring is consistent with legislative requirements that 
benefits can be suspended on a monthly basis.
    Monthly monitoring results in considerable administrative cost to 
the Agency. If reliable monitoring can be accomplished on a quarterly 
or semi-annual basis, the net administrative cost would be reduced.
    Questions: SSA would appreciate receiving views on whether a 
monitoring schedule other than monthly could be more effective. In 
other words, how frequently should the average DA&A beneficiary be 
monitored by SSA's RMA to assure the beneficiary is in compliance with 
the terms and conditions for treatment, including measuring progress in 
treatment? Should frequency of monitoring change in the course of the 
treatment program? If so, under what circumstances?

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

    Currently, payments are suspended if a title XVI beneficiary 
entitled to disability based on DA&A fails to comply with available 
treatment. When benefits are suspended for noncompliance, the 
suspension continues until the individual undergoes the required 
treatment and compliance is verified or the benefits are terminated 
(see Sec. 416.1326). There are no current title II provisions requiring 
treatment for DA&A or sanctioning noncompliance with treatment. There 
also are no rules for establishing ``good cause'' for not complying 
with treatment. However, ``good cause'' is an established concept that 
is applied in other contexts in evaluating the fulfillment of program 
requirements in both the Social Security and SSI benefits programs.
    The legislation extends the requirement for suspension of benefits 
for noncompliance to title II beneficiaries. Individuals entitled to a 
benefit based on DA&A are required to comply with substance abuse 
treatment requirements. A beneficiary who fails to comply with 
treatment requirements will have his/her benefits suspended beginning 
with the first month after he/she has been notified of the 
determination of noncompliance. SSA is considering implementing 
regulations which would provide a ``good cause'' exception to this 
requirement and which could set forth examples of ``good cause'' for 
not complying with the treatment requirement. There are a multitude of 
possible definitions of ``good cause,'' ranging from hospitalization or 
other health-related events to personal emergencies such as a death in 
the family or illness of a family member. On the other hand, inability 
to comply due to ramifications resulting from the abuse of drugs or 
alcohol should not be ``good cause.''
    Questions: What should constitute ``good cause'' for failing to 
comply with prescribed substance abuse treatment? What should not 
constitute ``good cause?'' Are there certain obstacles to complying 
with treatment that these individuals should be able to overcome?

G. Costs and Benefits

    SSA is not now in a position to assess the societal costs and 
benefits of the provisions in a manner that would produce specific 
quantitative estimates for public comment. At this time, we cannot 
predict the future effect of encouraging treatment and rewarding 
compliance versus noncompliance with the program requirements and the 
resulting suspension or termination. For example, it is possible that 
significantly more beneficiaries will successfully complete treatment 
as a result of the new requirements. Because of the limitation of 
existing data and analytic models as well as limited Agency resources, 
SSA cannot provide a quantitative estimate of such effects. We intend 
to publish in the Federal Register at the time of promulgation of the 
interim final rule, an evaluation of the prospective quantifiable and 
non-quantifiable costs and benefits of the rule and of reasonable 
alternative approaches considered in the development of the rules. At 
this time, we are limited to a description of some of the potential 
costs and benefits that will need to be considered.
Benefits
    The first type of benefit which should be realized from these new 
program requirements is an increase in the number of substance-
dependent individuals receiving treatment. Other potential benefits to 
society include a reduction in Social Security and SSI program 
expenditures due to the 36-month payment restriction and suspension of 
benefits for noncompliance with treatment requirements. The number of 
individuals receiving treatment may grow because these requirements 
would make benefits conditioned on compliance with available treatment. 
To the extent that treatment is successful, these individuals may 
realize improved mental and/or physical health, reducing use of public 
and private health facilities. They may be more receptive and prepared 
for vocational rehabilitation and/or return to work. Although 
reductions in substance dependency offer a broad array of benefits to 
society, the difficulties of quantifying and valuing them lead us to 
concentrate our efforts in this benefits assessment on changes in the 
number of individuals receiving treatment and the likely reductions in 
their substance dependencies.
Costs
    Savings to the Social Security and SSI programs will not accrue 
without a significant expenditure of Federal administrative resources. 
SSA personnel must closely track individuals throughout their months of 
eligibility. They will process suspensions and terminations, select 
representative payees, and respond to reports of noncompliance with 
required treatment.
    SSA will enter into contracts with RMAs to assess treatment needs 
of beneficiaries, refer beneficiaries for treatment, monitor treatment, 
and report to SSA on beneficiary compliance (including progress with 
the treatment plan). The RMA structure required by the statute will 
represent a significant program cost.
    Additionally, the substance abuse treatment to which these 
individuals are referred will have a significant cost. Including this 
cost in the analysis is appropriate to the extent that the benefits of 
increased participation in treatment programs is also included. 
Beneficiaries generally cannot be required to pay for the treatment 
themselves. Therefore, the cost of treatment will need to be absorbed 
by existing governmental sources, including Medicare and Medicaid, and 
private sources.
    The administrative requirements for implementation of the 
provisions may result in ``burdens'' on members of the public (e.g., 
completion of forms and types of information collection) which are 
subject to clearance by the Office of Management and Budget (OMB). If 
such is the case, required clearance will be obtained from OMB prior to 
implementation of interim final regulations.
    The costs and benefits of the provisions are driven by the 
statutory requirements. This Department would welcome any comments or 
suggestions for reducing administrative costs and reducing the burden 
on individuals, RMAs, substance abuse treatment providers and other 
entities. Such information will help us refine the necessary policies 
and procedures. Our aim is to carry out the Congressional mandate at 
the least possible cost and burden to organizations and members of the 
public.

V. Request for Comments

    To maximize public participation early in the rulemaking process, 
we invite you to comment on the cost and benefit issues raised in this 
request, particularly with respect to any policy recommendations in 
response to this solicitation. In addition, we solicit comments on 
particular policy issues, such as the definition of ``compliance,'' 
``good cause,'' and ``appropriate treatment.'' Finally, we request 
comments on any other aspects of the provisions of the provisions of 
the law related to the nonpayment and termination of benefits on behalf 
of individuals disabled based on DA&A.

VI. Next Steps

    After analysis of the comments received in response to this 
request, as well as the other information obtained, HHS plans to 
develop and publish interim final regulations to implement the 
regulations required to be in place by February 11, 1995. In the 
interim final regulations, we will provide another opportunity for 
public comment. After the end of that comment period, we plan to 
analyze the comments and determine whether changes to our interim final 
regulations are warranted.

VII. Authority

    The authority citation for this request is: Secs. 205(a), 221, 
225, 1102, 1611, 1614, 1631, and 1633 of the Social Security Act; 42 
U.S.C. 405(a), 421, 425, 1302, 1382, 1382c, 1383 and 1383b; and sec. 
201 of Pub. L. 103-296.

    Dated: October 7, 1994.
Shirley S. Chater,
Commissioner of Social Security.
    Approved: October 12, 1994.
Donna E. Shalala,
Secretary of Health and Human Services.
[FR Doc. 94-25747 Filed 10-13-94; 1:17 pm]
BILLING CODE 4190-29-P