[Federal Register Volume 74, Number 31 (Wednesday, February 18, 2009)]
[Notices]
[Pages 7625-7630]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-3378]


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SOCIAL SECURITY ADMINISTRATION

[Docket No. SSA-2008-0062]


Social Security Ruling, SSR 09-2p.; Title XVI: Determining 
Childhood Disability--Documenting a Child's Impairment-Related 
Limitations

AGENCY: Social Security Administration.

ACTION: Notice of Social Security Ruling (SSR).

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SUMMARY: We are giving notice of SSR 09-2p. This SSR provides policy 
interpretations and consolidates information from our regulations, 
training materials, and question-and-answer documents about documenting 
and evaluating evidence of a child's impairment-related limitations and 
related issues.

DATES: Effective Date: March 20, 2009

FOR FURTHER INFORMATION CONTACT: Robin Doyle, Office of Disability 
Programs, Social Security Administration, 6401 Security Boulevard, 
Baltimore, MD 21235-6401, (410) 966-2771.

SUPPLEMENTARY INFORMATION: Although 5 U.S.C. 552(a)(1) and (a)(2) do 
not require us to publish this SSR, we are doing so under 20 CFR 
402.35(b)(1).
    SSRs make available to the public precedential decisions relating 
to the Federal old-age, survivors, disability, supplemental security 
income, special veterans benefits, and black lung benefits programs. 
SSRs may be based on determinations or decisions made at all levels of 
administrative adjudication, Federal court decisions, Commissioner's 
decisions, opinions of the Office of the General Counsel, or other 
interpretations of the law and regulations.
    Although SSRs do not have the same force and effect as statutes or 
regulations, they are binding on all components of the Social Security 
Administration. 20 CFR 402.35(b)(1).
    This SSR will be in effect until we publish a notice in the Federal 
Register that rescinds it, or publish a new SSR that replaces or 
modifies it.

(Catalog of Federal Domestic Assistance, Program No. 96.006 
Supplemental Security Income.)


[[Page 7626]]


    Dated: February 9, 2009.
Michael J. Astrue,
Commissioner of Social Security.

Policy Interpretation Ruling

Title XVI: Determining Childhood Disability--Documenting a Child's 
Impairment-Related Limitations

    Purpose: This SSR provides policy interpretations and consolidates 
information from our regulations, training materials, and question-and-
answer documents about documenting and evaluating evidence of a child's 
impairment-related limitations and related issues.
    Citations (Authority): Sections 1614(a)(3) and 1614(a)(4) of the 
Social Security Act, as amended; Regulations No. 4, subpart P, appendix 
1; and Regulations No. 16, subpart I, sections 416.902, 416.906, 
416.909, 416.912, 416.913, 416.923, 416.924, 416.924a, 416.924b, 
416.925, 416.926, 416.926a, and 416.994a.
    Introduction: A child \1\ who applies for Supplemental Security 
Income (SSI) \2\ is ``disabled'' if the child is not engaged in 
substantial gainful activity and has a medically determinable physical 
or mental impairment or combination of impairments \3\ that results in 
``marked and severe functional limitations.'' \4\ 20 CFR 416.906. This 
means that the impairment(s) must meet or medically equal a listing in 
the Listing of Impairments (the listings),\5\ or functionally equal the 
listings (also referred to as ``functional equivalence''). 20 CFR 
416.924 and 416.926a.
    As we explain in greater detail in SSR 09-1p, we always evaluate 
the ``whole child'' when we make a finding regarding functional 
equivalence, unless we can otherwise make a fully favorable 
determination or decision.\6\ We focus first on the child's activities, 
and evaluate how appropriately, effectively, and independently the 
child functions compared to children of the same age who do not have 
impairments. 20 CFR 416.926a(b) and (c). We consider what activities 
the child cannot do, has difficulty doing, needs help doing, or is 
restricted from doing because of the impairment(s). 20 CFR 416.926a(a). 
Activities are everything a child does at home, at school, and in the 
community, 24 hours a day, 7 days a week.\7\
    We next evaluate the effects of a child's impairment(s) by rating 
the degree to which the impairment(s) limits functioning in six 
``domains.'' Domains are broad areas of functioning intended to capture 
all of what a child can or cannot do. We use the following six domains:
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    \1\ The definition of disability in section 1614(a)(3)(C) of the 
Social Security Act (the Act) applies to any ``individual'' who has 
not attained age 18. In this SSR, we use the word ``child'' to refer 
to any such person, regardless of whether the person is considered a 
``child'' for purposes of the SSI program under section 1614(c) of 
the Act.
    \2\ For simplicity, we refer in this SSR only to initial claims 
for benefits. However, the policy interpretations in this SSR also 
apply to continuing disability reviews of children under section 
1614(a)(4) of the Act and 20 CFR 416.994a.
    \3\ We use the term ``impairment(s)'' in this SSR to refer to an 
``impairment or a combination of impairments.''
    \4\ The impairment(s) must also satisfy the duration requirement 
in section 1614(a)(3)(A) of the Act; that is, it must be expected to 
result in death, or must have lasted or be expected to last for a 
continuous period of not less than 12 months.
    \5\ For each major body system, the listings describe 
impairments we consider severe enough to cause ``marked and severe 
functional limitations.'' 20 CFR 416.925(a); 20 CFR part 404, 
subpart P, appendix 1.
    \6\ See SSR 09-1p, Title XVI: Determining Childhood Disability 
Under the Functional Equivalence Rule--The ``Whole Child'' Approach.
    \7\ However, some children have chronic physical or mental 
impairments that are characterized by episodes of exacerbation 
(worsening) and remission (improvement); therefore, their level of 
functioning may vary considerably over time. To properly evaluate 
the severity of a child's limitations in functioning, as described 
in the following paragraphs, we must consider any variations in the 
child's level of functioning to determine the impact of the chronic 
illness on the child's ability to function longitudinally; that is, 
over time. For more information about how we evaluate the severity 
of a child's limitations, see SSR 09-1p.
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    (1) Acquiring and using information,
    (2) Attending and completing tasks,
    (3) Interacting and relating with others,
    (4) Moving about and manipulating objects,
    (5) Caring for yourself, and
    (6) Health and physical well-being.

20 CFR 416.926a(b)(1).\8\

    \8\ For the first five domains, we describe typical development 
and functioning using five age categories: Newborns and young 
infants (birth to attainment of age 1); older infants and toddlers 
(age 1 to attainment of age 3); preschool children (age 3 to 
attainment of age 6); school-age children (age 6 to attainment of 
age 12); and adolescents (age 12 to attainment of age 18). We do not 
use age categories in the sixth domain because that domain does not 
address typical development and functioning, as we explain in SSR 
09-8p, Title XVI: Determining Childhood Disability--The Functional 
Equivalence Domain of ``Health and Physical Well-Being.''
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    To functionally equal the listings, an impairment(s) must be of 
listing-level severity; that is, it must result in ``marked'' 
limitations in two domains of functioning or an ``extreme'' limitation 
in one domain.\9\ 20 CFR 416.926a(a).
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    \9\ See 20 CFR 416.926a(e) for definitions of the terms 
``marked'' and ``extreme.''
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    This SSR explains the evidence we need to document a child's 
impairment-related limitations, the sources of evidence we commonly see 
in childhood disability cases, how we consider the evidence we receive 
from early intervention and school programs (including special 
education), how we address inconsistencies in the evidence, and other 
issues related to the development of evidence about functioning.\10\
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    \10\ For more information about the domains, see the cross-
references at the end of this SSR.
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Policy Interpretation

I. General

    We use evidence of a child's functioning to determine whether the 
child's medically determinable impairment(s):
     Is ``severe''--that is, causes more than minimal 
functional limitations (20 CFR 416.924(c));
     Meets or medically equals a listed impairment when the 
listing criteria include functioning (20 CFR 416.924a(b)(1)); and
     Functionally equals the listings (20 CFR 416.926a).
    When we consider functioning in children, we evaluate how the 
impairment(s) affects the ability to function age-appropriately. A 
child functions age-appropriately when initiating, sustaining, and 
completing age-appropriate activities. ``Functioning'' includes 
everything a child does throughout a day at home, at school, and in the 
community. Examples include, getting dressed for school, cooperating 
with caregivers, playing with friends, and doing class assignments.
    As we explain in Section III below, evidence of a child's 
functioning can come from a wide variety of sources. We will consider 
all of the relevant evidence we receive about a child's functioning to 
help us understand how the impairment(s) affects the child's day-to-day 
activities.

II. What Evidence Do We Need About a Child's Impairment-Related 
Limitations?

    We need evidence that is sufficient to evaluate a child's 
limitations on a longitudinal basis; that is, over time. This evidence 
will help us answer the following questions about whether the child's 
impairment(s) affects day-to-day functioning and whether the child's 
activities are typical of other children of the same age who do not 
have impairments. Accordingly, we need evidence to help us determine 
the following:
     What activities is the child able to perform?
     What activities is the child not able to perform?

[[Page 7627]]

     Which of the child's activities are limited or restricted 
compared to other children of the same age who do not have impairments?
     Where does the child have difficulty with activities--at 
home, in childcare, at school, or in the community?
     Does the child have difficulty independently initiating, 
sustaining, or completing activities?
     What kind and how much help does the child need to do 
activities, and how often does the child need it?
     Does the child need a structured or supportive setting, 
what type of structure or support does the child need, and how often 
does the child need it?
    We do not require our adjudicators to provide formal answers to 
these specific questions in the determination or decision. However, the 
evidence should create a clear picture of the child's functioning in 
the context of the six functional equivalence domains so that we can 
determine the severity of limitation in each domain. The critical 
element in evaluating the severity of a child's limitations is how 
appropriately, effectively, and independently the child performs age-
appropriate activities.
    Also, a child who is having significant but unexplained problems 
may have an impairment(s) that has not yet been diagnosed, or may have 
a diagnosed impairment(s) for which we lack evidence. For example, 
children who are many grades behind in school often have a medically 
determinable impairment(s). In many cases, the school will have 
evaluated the child, and the school records will provide information 
about whether there is a medically determinable impairment(s).\11\ It 
may be necessary to further develop information from the child's 
medical source(s) or purchase a consultative examination (CE). 
Adjudicators should pursue indications that an impairment(s) may be 
present if that fact may be material to the determination or decision.
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    \11\ This will be especially true in cases in which the child is 
behind in school because of mental retardation, borderline 
intellectual functioning, or a learning disability, which can be 
established by evidence from a school psychologist, or because of a 
language disorder, which can be established by a qualified speech-
language pathologist. See 20 CFR 416.913(a). However, school records 
may include evidence from other kinds of acceptable medical sources 
establishing the existence of a medically determinable impairment.
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III. Sources of Evidence About a Child's Impairment-Related Limitations

    Once we have evidence from an acceptable medical source \12\ that 
establishes the existence of at least one medically determinable 
impairment, we consider all relevant evidence in the case record to 
determine whether a child is disabled. This evidence may come from 
acceptable medical sources and from a wide variety of ``other 
sources.'' \13\
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    \12\ The term ``acceptable medical source'' is defined in 20 CFR 
416.902 as ``one of the sources described in 416.913(a) who provides 
evidence about your impairments.''
    \13\ We explain what the term ``other sources'' means in 20 CFR 
416.913(d). For more information about how we consider opinion 
evidence from ``other sources,'' including opinions about functional 
limitations, see SSR 06-03p, Titles II and XVI: Considering Opinions 
and Other Evidence from Sources Who Are Not ``Acceptable Medical 
Sources'' in Disability Claims; Considering Decisions on Disability 
by Other Governmental and Nongovernmental Agencies, 71 FR 45593 
(2006), available at: http://www.socialsecurity.gov/OP_Home/rulings/di/01/SSR2006-03-di-01.html. For information about how we 
consider opinion evidence from acceptable medical sources, see 
generally 20 CFR 416.927.
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    Medical Sources: Acceptable medical sources can provide information 
about how an impairment(s) affects a child's everyday activities. For 
example, a pediatrician might discuss the impact of asthma on a child's 
participation in physical activities, or a speech-language pathologist 
might discuss how a language disorder contributes to limited attention 
and problems in school.
    We cannot use evidence from other medical sources who are not 
``acceptable medical sources'' to establish that a child has a 
medically determinable impairment. However, we can use evidence from 
these sources, such as nurse-practitioners, physicians' assistants, 
naturopaths, chiropractors, audiologists, occupational therapists 
(OTs), physical therapists (PTs), and psychiatric social workers 
(PSWs), to determine the severity of the impairment(s) and how it 
affects the child's ability to function compared to children of the 
same age who do not have impairments. For example:
     A PSW might comment on the child's ability to handle 
stressful situations.
     An OT or PT may evaluate the impact of a musculoskeletal 
disorder on the child's activities and comment on muscle tone and 
strength and how it affects the child's ability to walk with a brace.
     An OT might comment on the child's ability to use motor 
skills to get dressed without assistance.
    Non-Medical Sources: Evidence from other sources who are not 
medical sources and who know and have contact with the child can also 
be very important to our understanding of the severity of a child's 
impairment(s) and how it affects day-to-day functioning. These sources 
include parents and caregivers, educational personnel (for example, 
teachers, early intervention team members, counselors, developmental 
center workers, and daycare center workers), public and private social 
welfare agency personnel, and others (for example, siblings, friends, 
neighbors, and clergy). Therefore, we will consider evidence from such 
non-medical sources when we determine the severity of the child's 
impairment(s) and how the child typically functions compared to 
children of the same age who do not have impairments.

IV. Early Intervention and School Programs \14\
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    \14\ School programs also include preschool programs, such as 
Early Head Start (for children birth to age 3) and Head Start (ages 
3 through 5).
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    In most cases, early intervention (EI) and school programs are 
significant sources of evidence about a child's impairment-related 
limitations. Children from birth to the attainment of age 3 may receive 
EI services if they are experiencing delays in one or more 
developmental areas or if they have a diagnosed physical or mental 
condition that is likely to result in such delays.\15\ Children from 
ages 3 through 5 may attend preschool or other daycare programs. 
Children age 6 and older usually attend school and may receive special 
education and related services\16\ if they require specially designed 
instruction because of their unique needs related to a physical or 
mental impairment(s).
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    \15\ EI services may include occupational therapy, physical 
therapy, speech therapy, psychological services, audiology, health 
services, nutrition services, nursing services, and assistive 
technology devices. The developmental areas are: Cognitive 
development; physical development, including vision and hearing; 
communication development; social or emotional development; and 
adaptive development.
    \16\ ``Related services'' includes transportation and such 
developmental, corrective, and other supportive services (such as 
physical and occupational therapy) as are required to assist a child 
with a disability to benefit from special education. A child who 
does not qualify for special education may qualify for related 
services under section 504 of the Rehabilitation Act of 1973 to 
ensure a free, appropriate public education. See section IV.C., 
below.
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    We require adjudicators to try to get EI and school records 
whenever they are needed to make a determination or decision regarding 
a child's disability. We do not require information from EI or school 
personnel in every case because sometimes we can decide that a child is 
disabled without it, such as when the child's impairment(s) meets the 
requirements of a listing. We may also have to make a determination or 
decision without EI or school evidence when we are unable to obtain it.

[[Page 7628]]

A. Comprehensive Evaluations in EI or School Programs
    We will consider the results of comprehensive evaluations we 
receive. Children receive comprehensive evaluations when they are 
candidates for EI or special education and related services and 
periodically after that when they receive these services. These 
evaluations are usually conducted by a team of qualified personnel \17\ 
who can assess a child in all areas of suspected delay or educational 
need.
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    \17\ The evaluation team may include personnel who are 
``acceptable medical sources'' under our rules. When the team 
includes such people, the comprehensive evaluation may provide the 
primary evidence we need to both establish and evaluate the child's 
impairment and resulting limitations.
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    As part of a comprehensive evaluation, the EI or school program 
will use a variety of assessment procedures and tools to identify a 
child's unique strengths and needs, as well as all of the services 
appropriate to address those needs. For younger children, the primary 
focus of the evaluation is their level of functioning in terms of 
developmental milestones. For school-age children, the primary focus is 
their level of academic skills and related developmental needs.
    The evaluation generally includes:
     Observations of the child in a learning environment or a 
natural setting, such as in the home;
     Alternative and informal assessments, such as play-based 
assessment and review of completed classroom assignments;
     Interviews with parents, teachers, or other appropriate 
people, including child behavior checklists; and
     Standardized tests, such as a formal development test for 
a toddler or a formal intelligence or language test for an older child.
    When we request information from EI programs or schools, we will 
ask for the most recent comprehensive evaluation and test results, as 
well as other evidence that supports the analysis of the child's 
development or academic skills and related developmental needs. Some 
children may have received a comprehensive evaluation, but may not be 
receiving EI or special education services. Therefore, we will request 
this information even if a child is not receiving services.
B. Individualized Family Service Plans and Individualized Education 
Programs
    The agency providing EI services or special education and related 
services will develop a written plan documenting the child's 
eligibility for services, the therapeutic or educational goals, the 
services the agency will provide, and the setting(s) where the agency 
will provide these services. Infants and toddlers should have an 
Individualized Family Service Plan (IFSP). Preschool and school-age 
children should have an Individualized Education Program (IEP), 
including an IEP transition plan for children beginning at age 14.
    Both IFSPs and IEPs are important sources of specific information 
about a child's abilities and impairment-related limitations, and 
provide valuable information about the various kinds and levels of 
support a child receives. For example, an IEP will describe:
     Supplementary aids and services, such as speech-language 
pathology services, counseling, transportation, and orientation and 
mobility services;
     Modifications to the academic program made to accommodate 
the child's impairment(s), such as reading instruction in a resource 
room;
     The role of a classroom aide assigned to the child, such 
as assistance in moving from one classroom to the next; and
     The characteristics of the child's self-contained 
classroom, such as teacher-student ratio.
    This information about supports children receive can be critical to 
determining the extent to which their impairments compromise their 
ability to independently initiate, sustain, and complete activities. In 
general, if a child needs a person, a structured or supportive setting, 
medication, treatment, or a device to improve or enable functioning, 
the child will not be as independent as same-aged peers who do not have 
impairments. We will generally find that such a child has a limitation, 
even if the child is functioning well with the help or support. The 
more help or support of any kind that a child receives beyond what 
would be expected for children the same age without impairments, the 
less independently the child functions, and the more severe we will 
find the limitation to be.\18\
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    \18\ See generally 20 CFR 416.924a(b). See also SSR 09-1p.
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    1. Present Level of Development or Educational Performance. The 
first part of an IFSP or IEP describes and analyzes the child's present 
level of development (for example, physical or cognitive development) 
or academic skills based on the comprehensive evaluation or subsequent 
assessments and other information that is available at the time the 
IFSP or IEP is developed.\19\
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    \19\ IFSPs and IEPs frequently reference underlying 
psychological or developmental testing, and therefore, may indicate 
that there is other relevant evidence available.
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    2. Goals and Objectives. The second part of an IFSP or IEP consists 
of one or more sets of goals and specific objectives for the infant or 
toddler's development or the preschool or school-age child's education. 
The IFSP or IEP includes goals for improvement within 3-6 months (for 
infants and toddlers) or 1 year for preschool and school-age children. 
We can infer how the child is currently functioning from these goals. 
For example, if an IEP goal is ``will be able to read at a 4th grade 
level,'' we can reasonably conclude that the child was not performing 
at that level when the IEP was written.
    Based on broad developmental or educational goals, the written plan 
will outline specific objectives organized around the discrete physical 
or mental skills that must be mastered in order to achieve the goal. 
The plan also includes the kinds of activities and tasks the teacher or 
therapist will undertake with the child to develop the targeted skills. 
For example:
     An IFSP goal for a toddler from an occupational therapist 
might be: ``The child will use fine/gross motor skills to handle age-
appropriate materials during play,'' while a specific objective (one of 
many) would identify the skills to be developed (for example, 
articulation of the thumb and all fingers for grasping) and the 
particular manipulative tasks to be used to develop the needed skills 
(for example, molding modeling clay into balls).
     An IEP goal for an 11-year-old from a special educator 
might be: ``The child will independently read simple stories at the 4th 
grade level,'' while a specific objective (one of many) would identify 
the skills to be developed (for example, use of phonetic cues to 
identify initial, medial, and ending sounds in new words), and the 
particular instruction methods to be used to develop the needed skills 
(for example, small group instruction with practice sounding out 
unfamiliar words).
    Children who reach age 14 begin the transition from high school to 
the adult workplace. The IEP transition plan describes a student's 
levels of functioning based on reasonable estimates by both the student 
and the special education team and identifies the kinds of vocational 
and living skills the child needs to develop in order to move into 
adulthood. The IEP transition goals may range from the development of 
skills appropriate to supervised and supported work and living settings 
to those needed in independent work and living situations.

[[Page 7629]]

    Both the IFSP and IEP can provide useful information about a 
child's functioning. However, the underlying purpose of these documents 
is not to determine disability under our rules. Rather, the IFSP or IEP 
is used to design the individualized services and supports a child 
needs to maximize growth and development or to participate in and 
progress in the general education curriculum. In contrast, we use the 
information in the IFSP or IEP to help determine if the child has 
marked and severe functional limitations.
    It is important to remember, therefore, that the goals in an IFSP 
or IEP are frequently set at a level that the child can readily achieve 
to foster a sense of accomplishment. Those goals are frequently lower 
than what would be expected of a child the same age without 
impairments. In this regard:
     A child who achieves a goal may still have limitations. 
The child may have achieved the goal simply because it was set low, and 
may be developing or acquiring skills at a slower rate than children 
the same age without impairments.
     On the other hand, the fact that the child does not 
achieve a goal is likely an indication of the severity of the child's 
impairment-related limitations. However, the child's failure to achieve 
a goal does not, by itself, establish that the impairment(s) 
functionally equals the listings.
    Therefore, we must consider the purpose of the goals provided in an 
IFSP or IEP. And, as with any single piece of evidence, we will 
consider facts, such as whether a child achieves goals in an IFSP or 
IEP, along with other relevant information in the case record.
    3. Services, Settings, and Supports. The third part of the IFSP or 
IEP documents what services the child needs, the settings in which the 
services will be provided, and any supports the child needs. The 
services needed may include special education placement, early 
intervention services, related services (such as occupational therapy, 
counseling, and transportation services), and supplementary services 
(such as peer tutoring and a one-on-one aide). The settings for 
services may include any setting that is typical for the child's same-
aged peers and classroom placement (described in a. below). The 
supports a child needs may include adaptive equipment (such as a 
special seat), assistive technology (such as a communication board), 
and accommodations (described in b. below).
    The IFSP may have an additional section for ``other services,'' 
which outlines services that the child may be receiving from other 
sources. An EI program should coordinate the services a child needs 
with other State and Federal programs. If the IFSP identifies such 
services, we will request the information from the other programs 
unless we determine that the additional information would not affect 
the outcome of the case given the other evidence already in the record.
a. Classroom Placements
    When a child receives special education services under an IEP, the 
IEP will include information about the setting where the child will 
receive the services. There is a continuum of alternative placements 
including, but not limited to:
     Regular classrooms,
     Regular classrooms with ``pull-out'' services, such as a 
resource room,
     Special education classrooms,
     Alternative schools,
     Day treatment programs, and
     Residential schools.
    The decision to provide services in a particular setting may be 
based on factors other than the severity of the child's limitations. 
Therefore, details about the child's performance in school and other 
settings (for example, how well the child is performing) are important 
components of our analysis. As we explain in more detail in SSR 09-1p, 
we will consider the kinds and levels of the support the child 
receives.
b. Accommodations
    Some students with impairments need accommodations in their 
educational program in order to participate in the general curriculum. 
In this context, accommodations are practices and procedures that allow 
a child to complete the same assignment or test as other students, but 
with a change in:
     Presentation, or how instruction or directions are 
delivered (for example, read orally to the child by an adult, or 
provided in large print, on audiotape, or via a screen reader).
     Response, or how the student solves problems or completes 
assignments (for example, using an augmentative communication device or 
dictating answers to a scribe).
     Setting, or how the environment is set up (for example, 
seating the child near the teacher or seating the child away from 
distractions).
     Timing/Scheduling, or the time period during which the 
lesson or assignment is scheduled (for example, allowing extra time to 
complete an assignment or scheduling tests around a child's medication 
regimen).
C. Section 504 Plans
    Section 504 of the Rehabilitation Act of 1973 prohibits 
discrimination on the basis of disability in programs and activities 
that receive Federal financial assistance.\20\ Schools must provide a 
free, appropriate public education to each student with a 
disability.\21\ Children must receive educational and related aids and 
services that are designed to meet their educational needs, even if 
they are not provided any special education services under the 
Individuals with Disabilities Education Act (IDEA).\22\ Schools will 
conduct an evaluation of specific areas of educational need for 
children who have disabilities that limit their access to the 
educational setting. If a child is qualified under section 504, the 
school will have a written plan for the aids, services, and 
accommodations that will be provided. We will consider any section 504 
plans when we request information from a child's school.
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    \20\ Public Law 93-112, section 504; 29 U.S.C. 794(a), as 
amended.
    \21\ See 34 CFR 104.33(a). ``Appropriate'' in this context means 
the provision of regular or special education and related aids and 
services that (i) are designed to meet individual educational needs 
of handicapped persons as adequately as the needs of nonhandicapped 
persons are met and (ii) are based upon adherence to procedures that 
satisfy the requirements of the Department of Education's 
regulations. 34 CFR 104.33(b).
    \22\ 20 U.S.C. 1400, et seq.
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V. Standard of Comparison

    Because we compare a child's functioning to the functioning of 
other children the same age who do not have impairments, we should 
understand the standard of comparison used by sources of the 
information. For example, a special education teacher may say a child 
is ``doing well.'' Without knowing the standard of comparison, this 
could mean:
     Compared to that teacher's expectations for the child,
     Compared to other children in the special education class, 
or
     Compared to children the same age who do not have 
impairments.
    Therefore, the adjudicator will consider both the standards used by 
the teacher or other source to rate the quality of the child's 
functioning and the characteristics of the group to whom the child is 
being compared. 20 CFR 416.924a(b)(3)(ii).

VI. Resolving Inconsistencies in the Evidence

    Adjudicators should analyze and evaluate relevant evidence for 
consistency, and resolve any

[[Page 7630]]

inconsistencies that need to be resolved.\23\
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    \23\ This basic policy is also contained in other rules on 
evidence, including 20 CFR 416.912, 416.913, 416.924a(a), 416.927, 
and 416.929. For our rules on how we consider test results, see also 
section 112.00D of the listings for IQ and other tests related to 
mental disorders, and 20 CFR 416.924a(a)(1)(ii) and 416.926a(b)(4) 
for all testing.
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    After reviewing all of the relevant evidence, we determine whether 
there is sufficient evidence to make a finding about disability. ``All 
of the relevant evidence'' means:
     The relevant objective medical evidence and other relevant 
evidence from medical sources;
     Relevant information from other sources, such as school 
teachers, family members, or friends;
     The claimant's statements (including statements from the 
child's parent(s) or other caregivers); and
     Any other relevant evidence in the case record, including 
how the child functions over time and across settings.
    If there is sufficient evidence and there are no inconsistencies in 
the case record, we will make a determination or decision. However, the 
fact that there is an inconsistency in the evidence does not 
automatically mean that we need to request additional evidence, or that 
we cannot make a determination or decision. Often, we will be able to 
resolve the issue with the evidence in the case record because most of 
the evidence or the most probative evidence outweighs the inconsistent 
evidence and additional information would not change the determination 
or decision.
    Sometimes an inconsistency may not be ``material''; that is, it may 
not have any effect on the outcome of the case or on any of the major 
findings. Obviously, an inconsistency would be immaterial if the 
decision would be fully favorable regardless of the resolution. For 
example, if one piece of evidence shows the child's birth weight as 950 
grams and another shows it as 1025 grams, the inconsistency is not 
material because we would find that the child's impairment(s) 
functionally equals the listings under 20 CFR 416.926a(m)(6) based on 
either birth weight. Similarly, an inconsistency could also be 
immaterial in an unfavorable determination or decision when resolution 
of the inconsistency would not affect the outcome. This could occur, 
for example, if there is inconsistent evidence about a limitation in an 
activity, but no evidence supporting a rating of ``marked'' limitation 
of a relevant domain.
    At other times, an apparent inconsistency may not be a true 
inconsistency. For example, the record for a child with attention-
deficit/hyperactivity disorder (AD/HD) may include good, longitudinal 
evidence of hyperactivity at home and in the classroom, but show a lack 
of hyperactivity during a CE. While this may appear to be an 
inconsistency, it is a well-known clinical phenomenon that children 
with some impairments (for example, AD/HD) may be calmer, less 
inattentive, or less out-of-control in a novel or one-to-one setting, 
such as a CE. See 20 CFR 416.924a(b)(6).\24\
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    \24\ This example highlights the importance of getting a full 
picture of the ``whole child'' and of our longstanding policy that 
we must consider each piece of evidence in the context of the 
remainder of the case record. Accepting the observation of the 
child's behavior or performance in an unusual setting, like a CE, 
without considering the rest of the evidence could lead to an 
erroneous conclusion about the child's overall functioning.
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    In some cases, the longitudinal history may reveal sudden, negative 
changes in the child's functioning; for example, a child who previously 
did well in school suddenly begins to fail. In these situations, we 
should try to ascertain the reason for these changes whenever they are 
material to the decision.
    In all other cases in which the evidence is insufficient, including 
when a material inconsistency exists that we cannot resolve based on an 
evaluation of all of the relevant evidence in the case record, we will 
try to complete the record by requesting additional or clarifying 
information.\25\
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    \25\ With respect to testing, we provide in 20 CFR 
416.926a(b)(4)(iii) that we will try to resolve material 
inconsistencies between test scores and other information in the 
case record. We explain that, while it is our responsibility to 
resolve any material inconsistencies, the interpretation of a test 
is ``primarily the responsibility of the psychologist or other 
professional who administered the test.'' If necessary, we may 
recontact the professional who administered the test for further 
clarification. However, we may also resolve an inconsistency with 
other information in the case record, by questioning other people 
who can provide us with information about a child's day-to-day 
functioning, or by purchasing a consultative examination. This 
regulation also provides that when we do not believe that a test 
score accurately indicates a child's abilities, we will document our 
reasons for not accepting the score in the case record, or in the 
decision at the administrative law judge hearing and Appeals Council 
levels (when the Appeals Council makes a decision).
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    Effective Date: This SSR is effective on March 20, 2009.
    Cross-References: SSR 09-1p, Title XVI: Determining Childhood 
Disability Under the Functional Equivalence Rule--The ``Whole Child'' 
Approach; SSR 09-3p, Title XVI: Determining Childhood Disability--The 
Functional Equivalence Domain of ``Acquiring and Using Information''; 
SSR 09-4p, Title XVI: Determining Childhood Disability--The Functional 
Equivalence Domain of ``Attending and Completing Tasks''; SSR 09-5p, 
Title XVI: Determining Childhood Disability--The Functional Equivalence 
Domain of ``Interacting and Relating with Others''; SSR 09-6p, Title 
XVI: Determining Childhood Disability--The Functional Equivalence 
Domain of ``Moving About and Manipulating Objects''; SSR 09-7p, Title 
XVI: Determining Childhood Disability--The Functional Equivalence 
Domain of ``Caring For Yourself''; SSR 09-8p, Title XVI: Determining 
Childhood Disability--The Functional Equivalence Domain of ``Health and 
Physical Well-Being''; SSR 06-03p, Titles II and XVI: Considering 
Opinions and Other Evidence from Sources Who Are Not ``Acceptable 
Medical Sources'' in Disability Claims; Considering Decisions on 
Disability by Other Governmental and Nongovernmental Agencies; and 
Program Operations Manual System (POMS) DI 24515.055, DI 25225.030, DI 
25225.035, DI 25225.040, DI 25225.045, DI 25225.050, and DI 25225.055.

 [FR Doc. E9-3378 Filed 2-17-09; 8:45 am]
BILLING CODE 4191-02-P