[Title 20 CFR Q] [Code of Federal Regulations (annual edition) - April 1, 1996 Edition] [Title 20 - EMPLOYEES' BENEFITS] [Chapter III - SOCIAL SECURITY ADMINISTRATION] [Part 404 - FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE (1950- )] [Subpart Q - Determinations of Disability] [From the U.S. Government Publishing Office]20 EMPLOYEES' BENEFITS 2 1996-04-01 1996-04-01 false Determinations of Disability Q Subpart Q EMPLOYEES' BENEFITS SOCIAL SECURITY ADMINISTRATION FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE (1950- ) Subpart Q--Determinations of Disability Sec. 404.1601 Purpose and scope. This subpart describes the standards of performance and administrative requirements and procedures for States making determinations of disability for the Secretary under title II of the Act. It also establishes the Secretary's responsibilities in carrying out the disability determination function. (a) Sections 404.1601 through 404.1603 describe the purpose of the regulations and the meaning of terms frequently used in the regulations. They also briefly set forth the responsibilities of the Secretary and the States covered in detail in other sections. (b) Sections 404.1610 through 404.1618 describe the Secretary's and the State's responsibilities in performing the disability determination function. (c) Sections 404.1620 through 404.1633 describe the administrative responsibilities and requirements of the States. The corresponding role of the Secretary is also set out. (d) Sections 404.1640 through 404.1650 describe the performance accuracy and processing time standards for measuring State agency performance. (e) Sections 404.1660 through 404.1661 describe when and what kind of assistance the Secretary will provide State agencies to help them improve performance. (f) Sections 404.1670 through 404.1675 describe the level of performance below which the Secretary will consider a State agency to be substantially failing to make disability determinations consistent with the regulations and other written guidelines and the resulting action the Secretary will take. (g) Sections 404.1680 through 404.1683 describe the rules for resolving disputes concerning fiscal issues and providing hearings when we propose to find that a State is in substantial failure. (h) Sections 404.1690 through 404.1694 describe when and what action the Secretary will take and what action the State will be expected to take if the Secretary assumes the disability determination function from a State agency. Sec. 404.1602 Definitions. For purposes of this subpart: Act means the Social Security Act, as amended. [[Page 469]] Class or classes of cases means the categories into which disability claims are divided according to their characteristics. Determination of disability or disability determination means one or more of the following decisions: (a) Whether or not a person is under a disability; (b) The date a person's disability began; or (c) The date a person's disability ended. Disability means disability or blindness as defined in sections 216(i) and 223 of the Act or as defined in title IV of the Federal Mine Safety and Health Act of 1977, as amended. Disability determination function means making determinations as to disability and carrying out related administrative and other responsibilities. Disability program means, as appropriate, the Federal programs for providing disability insurance benefits under title II of the Act and disability benefits under title IV of the Federal Mine Safety and Health Act of 1977, as amended. Initial means the first level of disability adjudication. Other written guidelines means written issuances such as Social Security Rulings and memoranda by the Commissioner of Social Security, the Deputy Commissioner for Programs, or the Associate Commissioner for Disability and the procedures, guides, and operating instructions in the Disability Insurance sections of the Program Operations Manual System, that are instructive, interpretive, clarifying, and/or administrative and not designated as advisory or discretionary. The purpose of including the foregoing material in the definition is to assure uniform national application of program standards and service delivery to the public. Regulations means regulations in this subpart issued under sections 205(a), 221 and 1102 of the Act, unless otherwise indicated. Secretary means the Secretary of the Department of Health and Human Services or the Secretary's delegate. State means any of the 50 States of the United States, the Commonwealth of Puerto Rico, the District of Columbia, or Guam. It includes the State agency. State agency means that agency of a State which has been designated by the State to carry out the disability determination function. We, us, and our refers to the Social Security Administration (SSA) or the Secretary, as appropriate. [46 FR 29204, May 29, 1981, as amended at 56 FR 11018, Mar. 14, 1991] Sec. 404.1603 Basic responsibilities for us and the State. (a) General. We will work with the State to provide and maintain an effective system for processing claims of those who apply for and who are receiving benefits under the disability program. We will provide program standards, leadership, and oversight. We do not intend to become involved in the State's ongoing management of the program except as is necessary and in accordance with these regulations. The State will comply with our regulations and other written guidelines. (b) Our responsibilities. We will: (1) Periodically review the regulations and other written guidelines to determine whether they insure effective and uniform administration of the disability program. To the extent feasible, we will consult with and take into consideration the experience of the States in issuing regulations and guidelines necessary to insure effective and uniform administration of the disability program; (2) Provide training materials or in some instances conduct or specify training, see Sec. 404.1622; (3) Provide funds to the State agency for the necessary cost of performing the disability determination function, see Sec. 404.1626; (4) Monitor and evaluate the performance of the State agency under the established standards, see Secs. 404.1644 and 404.1645; and (5) Maintain liaison with the medical profession nationally and with national organizations and agencies whose interests or activities may affect the disability program. (c) Responsibilities of the State. The State will: (1) Provide management needed to insure that the State agency carries [[Page 470]] out the disability determination function so that disability determinations are made accurately and promptly; (2) Provide an organizational structure, adequate facilities, qualified personnel, medical consultant services, and a quality assurance function (Secs. 404.1620 through 404.1624); (3) Furnish reports and records relating to the administration of the disability program (Sec. 404.1625); (4) Submit budgets (Sec. 404.1626); (5) Cooperate with audits (Sec. 404.1627); (6) Insure that all applicants for and recipients of disability benefits are treated equally and courteously; (7) Be responsible for property used for disability program purposes (Sec. 404.1628); (8) Take part in the research and demonstration projects (Sec. 404.1629); (9) Coordinate with other agencies (Sec. 404.1630); (10) Safeguard the records created by the State in performing the disability determination function (Sec. 404.1631); (11) Comply with other provisions of the Federal law and regulations that apply to the State in performing the disability determination function; (12) Comply with other written guidelines (Sec. 404.1633); (13) Maintain liaison with the medical profession and organizations that may facilitate performing the disability determination function; and (14) Assist us in other ways that we determine may promote the objectives of effective and uniform administration. Responsibilities for Performing the Disability Determination Function Sec. 404.1610 How a State notifies us that it wishes to perform the disability determination function. (a) Deemed notice. Any State that has in effect as of June 1, 1981, an agreement with us to make disability determinations will be deemed to have given us notice that it wishes to perform the disability determination function, in lieu of continuing the agreement in effect after June 1, 1981. (b) Written notice. After June 1, 1981, a State not making disability determinations that wishes to perform the disability determination function under these regulations must notify us in writing. The notice must be from an official authorized to act for the State for this purpose. The State will provide an opinion from the State's Attorney General verifying the authority of the official who sent the notice to act for the State. Sec. 404.1611 How we notify a State whether it may perform the disability determination function. (a) If a State notifies us in writing that it wishes to perform the disability determination function, we will notify the State in writing whether or not it may perform the function. The State will begin performing the disability determination function beginning with the month we and the State agree upon. (b) If we have previously found that a State agency has substantially failed to make disability determinations in accordance with the law or these regulations and other written guidelines or if the State has previously notified us in writing that it does not wish to make disability determinations, the notice will advise the State whether the State agency may again make the disability determinations and, if so, the date and the conditions under which the State may again make them. Sec. 404.1613 Disability determinations the State makes. (a) General rule. A State agency will make determinations of disability with respect to all persons in the State except those individuals whose cases are in a class specifically excluded by our written guidelines. A determination of disability made by the State is the determination of the Secretary, except as described in Sec. 404.1503(d)(1). (b) New classes of cases. Where any new class or classes of cases arise requiring determinations of disability, we will determine the conditions under which a State may choose not to make the disability determinations. We will provide the State with the necessary funding to do the additional work. (c) Temporary transfer of classes of cases. We will make disability determinations for classes of cases temporarily transferred to us by the State agency if the State agency asks us to do so and we agree. The State agency [[Page 471]] will make written arrangements with us which will specify the period of time and the class or classes of cases we will do. Sec. 404.1614 Responsibilities for obtaining evidence to make disability determinations. (a) The State agency will secure from the claimant, or other sources, any evidence it needs to make a disability determination. (b) We will secure from the claimant or other special arrangement sources, any evidence we can obtain as adequately and more readily than the State agency. We will furnish the evidence to the State agency for use in making a disability determination. (c) At our request, the State agency will obtain and furnish medical or other evidence and provide assistance as may be necessary for us to carry out our responsibilities-- (1) For making disability determinations in those classes of cases described in the written guidelines for which the State agency does not make the determination; or (2) Under international agreements with respect to social security benefits payable under section 233 of the Act. Sec. 404.1615 Making disability determinations. (a) When making a disability determination, the State agency will apply subpart P, part 404, of our regulations. (b) The State agency will make disability determinations based only on the medical and nonmedical evidence in its files. (c) Disability determinations will be made by either: (1) A State agency medical or psychological consultant and a State agency disability examiner; (2) A State agency disability examiner alone when there is no medical evidence to be evaluated (i.e., no medical evidence exists or we are unable, despite making every reasonable effort, to obtain any medical evidence that may exist) and the individual fails or refuses, without a good reason, to attend a consultative examination (see Sec. 404.1518); or (3) A State agency disability hearing officer. See Sec. 404.1616 for the definition of medical or psychological consultant and Sec. 404.915 for the definition of disability hearing officer. The State agency disability examiner and disability hearing officer must be qualified to interpret and evaluate medical reports and other evidence relating to the claimant's physical or mental impairments and as necessary to determine the capacities of the claimant to perform substantial gainful activity. See Sec. 404.1572 for what we mean by substantial gainful activity. (d) An initial determination by the State agency that an individual is not disabled, in any case where there is evidence which indicates the existence of a mental impairment, will be made only after every reasonable effort has been made to ensure that a qualified psychiatrist or psychologist has completed the medical portion of the case review and any applicable residual functional capacity assessment. (See Sec. 404.1616 for the qualifications we consider necessary for a psychologist to be a psychological consultant and Sec. 404.1617 for what we mean by ``reasonable effort''.) If the services of qualified psychiatrists or psychologists cannot be obtained because of impediments at the State level, the Secretary may contract directly for the services. In a case where there is evidence of mental and nonmental impairments and a qualified psychologist serves as a psychological consultant, the psychologist will evaluate only the mental impairment, and a physician will evaluate the nonmental impairment. The overall determination of impairment severity in combined mental and nonmental impairment cases will be made by a medical consultant and not a psychological consultant unless the mental impairment alone would justify a finding of disability. (e) The State agency will certify each determination of disability to us on forms we provide. (f) The State agency will furnish us with all the evidence it considered in making its determination. (g) The State agency will not be responsible for defending in court any determination made, or any procedure for [[Page 472]] making determinations, under these regulations. [52 FR 33926, Sept. 9, 1987, as amended at 56 FR 11018, Mar. 14, 1991; 61 FR 11135, Mar. 19, 1996] Effective Date Note: At 61 FR 11135, Mar. 19, 1996, Sec. 404.1615 was amended by removing the ``or'' at the end of paragraph (c)(1), by adding a semicolon after paragraph (c)(1), by redesignating paragraph (c)(2) as paragraph (c)(3), and by adding a new paragraph (c)(2), effective April 18, 1996. Sec. 404.1616 Medical or psychological consultant. A medical consultant must be a physician. A psychological consultant used in cases where there is evidence of a mental impairment must be a qualified psychologist. For disability program purposes a psychologist will not be considered qualified unless he or she: (a) Is licensed or certified as a psychologist at the independent practice level of psychology by the State in which he or she practices; and (b) (1) Possesses a doctorate degree in psychology from a program in clinical psychology of an educational institution accredited by an organization recognized by the Council on Post-Secondary Accreditation; or (2) Is listed in a national register of health service providers in psychology which the Secretary of Health and Human Services deems appropriate; and (c) Possesses 2 years of supervised clinical experience as a psychologist in health service, at least 1 year of which is post masters degree. [52 FR 33927, Sept. 9, 1987] Sec. 404.1617 Reasonable efforts to obtain review by a qualified psychiatrist or psychologist. (a) The State agency must determine if additional qualified psychiatrists and psychologists are needed to make the necessary reviews (see Sec. 404.1615(d)). Where it does not have sufficient resources to make the necessary reviews, the State agency must attempt to obtain the resources needed. If the State agency is unable to obtain additional psychiatrists and psychologists because of low salary rates or fee schedules it should attempt to raise the State agency's levels of compensation to meet the prevailing rates for psychiatrists' and psychologists' services. If these efforts are unsuccessful, the State agency will seek assistance from us. We will assist the State agency as necessary. We will also monitor the State agency's efforts and where the State agency is unable to obtain the necessary services, we will make every reasonable effort to provide the services using Federal resources. (b) Federal resources may include the use of Federal contracts for the services of qualified psychiatrists and psychologists to review mental impairment cases. Where Federal resources are required to perform these reviews, which are a basic State agency responsibility, and where appropriate, the State agency's budget will be reduced accordingly. (c) Where every reasonable effort is made to obtain the services of a qualified psychiatrist or psychologist to review a mental impairment case, but the professional services are not obtained, a physician who is not a psychiatrist will review the mental impairment case. For these purposes, every reasonable effort to ensure that a qualified psychiatrist or psychologist review mental impairment cases will be considered to have been made only after efforts by both State and Federal agencies as set forth in paragraphs (a) and (b) of this section are made. [52 FR 33927, Sept. 9, 1987] Sec. 404.1618 Notifying claimants of the disability determination. The State agency will prepare denial notices in accordance with subpart J of this part whenever it makes a disability determination which is wholly or partly unfavorable to the claimant. Administrative Responsibilities and Requirements Sec. 404.1620 General administrative requirements. (a) The State will provide the organizational structure, qualified personnel, medical consultant services, and a quality assurance function sufficient to ensure that disability determinations are made accurately and promptly. We may impose specific administrative requirements in these areas and in those [[Page 473]] under ``Administrative Responsibilities and Requirements'' in order to establish uniform, national administrative practices or to correct the areas of deficiencies which may later cause the State to be substantially failing to comply with our regulations or other written guidelines. We will notify the State, in writing, of the administrative requirements being imposed and of any administrative deficiencies it is required to correct. We will allow the State 90 days from the date of this notice to make appropriate corrections. Once corrected, we will monitor the State's administrative practices for 180 days. If the State does not meet the requirements or correct all of the deficiencies, or, if some of the deficiencies recur, we may initiate procedures to determine if the State is substantially failing to follow our regulations or other written guidelines. (b) The State is responsible for making accurate and prompt disability determinations. [46 FR 29204, May 29, 1981, as amended at 56 FR 11018, Mar. 14, 1991] Sec. 404.1621 Personnel. (a) Equal employment opportunity. The State will comply with all applicable Federal statutes, executive orders and regulations concerned with equal employment opportunities. (b) Selection, tenure, and compensation. The State agency will, except as may be inconsistent with paragraph (a) of this section, adhere to applicable State approved personnel standards in the selection, tenure, and compensation of any individual employed in the disability program. (c) Travel. The State will make personnel available to attend meetings or workshops as may be sponsored or approved by us for furthering the purposes of the disability program. (d) Restrictions. Subject to appropriate Federal funding, the State will, to the best of its ability, facilitate the processing of disability claims by avoiding personnel freezes, restrictions against overtime work, or curtailment of facilities or activities. Sec. 404.1622 Training. The State will insure that all employees have an acceptable level of competence. We will provide training and other instructional materials to facilitate basic and advanced technical proficiency of disability staff in order to insure uniformity and effectiveness in the administration of the disability program. We will conduct or specify training, as appropriate, but only if: (a) A State agency's performance approaches unacceptable levels; or (b) The material required for the training is complex or the capacity of the State to deliver the training is in doubt and uniformity of the training is essential. Sec. 404.1623 Facilities. (a) Space, equipment, supplies, and other services. Subject to appropriate Federal funding, the State will provide adequate space, equipment, supplies, and other services to facilitate making accurate and prompt disability determinations. (b) Location of facilities. Subject to appropriate Federal funding, the State will determine the location where the disability determination function is to be performed so that disability determinations are made accurately and promptly. (c) Access. The State will permit us access to the premises where the disability determination function is performed and also where it is managed for the purposes of inspecting and obtaining information about the work and activities required by our regulations and assuring compliance with pertinent Federal statutes and regulations. Access includes personal onsite visits and other means, such as telecommunications, of contacting the State agency to obtain information about its functions. We will contact the State agency and give reasonable prior notice of the times and purposes of any visits. [46 FR 29204, May 29, 1981, as amended at 56 FR 11019, Mar. 14, 1991] Sec. 404.1624 Medical and other purchased services. The State will determine the rates of payment to be used for purchasing medical or other services necessary to make determinations of disability. The rates may not exceed the highest rate paid by Federal or other agencies in [[Page 474]] the State for the same or similar type of service. The State will maintain documentation to support the rates of payment it uses. Sec. 404.1625 Records and reports. (a) The State will establish and maintain the records and furnish the schedules, financial, cost, and other reports relating to the administration of the disability programs as we may require. (b) The State will permit us and the Comptroller General of the United States (including duly authorized representatives) access to and the right to examine records relating to the work which the State performs under these regulations. These records will be retained by the State for the periods of time specified for retention of records in the Federal Procurement Regulations (41 CFR parts 1-20). Sec. 404.1626 Fiscal. (a) We will give the State funds, in advance or by way of reimbursement, for necessary costs in making disability determinations under these regulations. Necessary costs are direct as well as indirect costs as defined in 41 CFR part 1-15, subpart 1-15.7 of the Federal Procurement Regulations System for costs incurred before April 1, 1984; and 48 CFR part 31, subpart 31.6 of the Federal Acquisition Regulations System and Federal Management Circular A-74-4 \1\ as amended or superseded for costs incurred after March 31, 1984. --------------------------------------------------------------------------- \1\ The circular is available from the Office of Administration, Publications Unit, Rm. G-236, New Executive Office Bldg., Washington, DC 20503. --------------------------------------------------------------------------- (b) The State will submit estimates of anticipated costs in the form of a budget at the time and in the manner we require. (c) We will notify the State of the amount which will be made available to it as well as what anticipated costs are being approved. (d) The State may not incur or make expenditures for items of cost not approved by us or in excess of the amount we make available to the State. (e) After the close of a period for which funds have been made available to the State, the State will submit a report of its expenditures. Based on an audit arranged by the State under Pub. L. 98- 502, the Single Audit Act of 1984, or by the Inspector General of the Department of Health and Human Services or based on an audit or review by the Social Security Administration (see Sec. 404.1627), we will determine whether the expenditures were consistent with cost principles described in 41 CFR part 1-15, subpart 1-15.7 for costs incurred before April 1, 1984; and 48 CFR part 31, subpart 31.6 and Federal Management Circular A-741-4 for costs incurred after March 31, 1984: and in other applicable written guidelines in effect at the time the expenditures were made or incurred. (f) Any monies paid to the State which are used for purposes not within the scope of these regulations will be paid back to the Treasury of the United States. [46 FR 29204, May 29, 1981, as amended at 56 FR 11019, Mar. 14, 1991] Sec. 404.1627 Audits. (a) Audits performed by the State--(1) Generally. Audits of accounts and records pertaining to the administration of the disability program under the Act, will be performed by the States in accordance with the Single Audit Act of 1984 (Pub. L. 98-502) which establishes audit requirements for States receiving Federal assistance. If the audit performed by the State meets our program requirements, we will accept the findings and recommendations of the audit. The State will make every effort to act upon and resolve any items questioned in the audit. (2) Questioned items. Items questioned as a result of an audit under the Single Audit Act of 1984 of a cross-cutting nature will be resolved by the Department of Health and Human Services, Office of Grant and Contract Financial Management. A cross-cutting issue is one that involves more than one Federal awarding agency. Questioned items affecting only the disability program will be resolved by SSA in accord with paragraph (b)(2) of this section, (3) State appeal of audit determinations. The Office of Grant and Contract Financial Management will notify the State of its determination on questioned cross-cutting items. If the State [[Page 475]] disagrees with that determination, it may appeal in writing within 60 days of receiving the determination. State appeals of a cross-cutting issue as a result of an audit under the Single Audit Act of 1984 will be made to the Department of Health and Human Services' Departmental Appeals Board. The rules for hearings and appeals are provided in 45 CFR part 16. (b) Audits performed by the Secretary--(1) Generally. If the State does not perform an audit under the Single Audit Act of 1984 or the audit performed is not satisfactory for disability program purposes, the books of account and records in the State pertaining to the administrations of the disability programs under the Act will be audited by the Department of Health and Human Services' Inspector General or audited or reviewed by SSA as appropriate. These audits or reviews will be conducted to determine whether the expenditures were made for the intended purposes and in amounts necessary for the proper and efficient administration of the disability programs. Audits or reviews will also be made to inspect the work and activities required by the regulations to ensure compliance with pertinent Federal statutes and regulations. The State will make every effort to act upon and resolve any items questioned in an audit or review. (2) Questioned items. Expenditures of State agencies will be audited or reviewed, as appropriate, on the basis of cost principles and written guidelines in effect at the time the expenditures were made or incurred. Both the State and the State agency will be informed and given a full explanation of any items questioned. They will be given reasonable time to explain items questioned. Any explanation furnished by the State or State agency will be given full consideration before a final determination is made on the audit or review report. (3) State appeal of audit determinations. The appropriate Social Security Administration Regional Commissioner will notify the State of his or her determination on the audit or review report. If the State disagrees with that determination, the State may request reconsideration in writing within 60 days of the date of the Regional Commissioner's notice of the determination. The written request may be made, through the Associate Commissioner, Office of Disability, to the Commissioner of Social Security, room 900, Altmeyer Building, 6401 Security Boulevard, Baltimore, Maryland 21235. The Commissioner will make a determination and notify the State of the decision in writing no later than 90 days from the date the Social Security Administration receives the State's appeal and all supporting documents. The decision by the Commissioner on other than monetary disallowances will be final and binding upon the State. The decision by the Commissioner on monetary disallowances will be final and binding upon the State unless the State appeals the decision in writing to the Department of Health and Human Services, Departmental Appeals Board within 30 days after receiving the Commissioner's decision. See Sec. 404.1683. [56 FR 11019, Mar. 14, 1991] Sec. 404.1628 Property. The State will have title to equipment purchased for disability program purposes. The State will be responsible for maintaining all property it acquires or which we furnish to it for performing the disability determination function. The State will identify the equipment by labeling and by inventory and will credit the SSA account with the fair market value of disposed property. In the event we assume the disability determination function from a State, ownership of all property and equipment acquired with SSA funds will be transferred to us effective on the date the State is notified that we are assuming the disability determination function or we are notified that the State is terminating the relationship. Sec. 404.1629 Participation in research and demonstration projects. We will invite State participation in federally funded research and demonstration projects to assess the effectiveness of the disability program and to ascertain the effect of program policy changes. Where we determine that State participation is necessary for the project to be complete, for example, to provide national uniformity in a [[Page 476]] claims process, State participation is mandatory. Sec. 404.1630 Coordination with other agencies. (a) The State will establish cooperative working relationships with other agencies concerned with serving the disabled and, insofar as practicable, use their services, facilities, and records to: (1) Assist the State in developing evidence and making determinations of disability; and (2) Insure that referral of disabled or blind persons for rehabilitation services will be carried out effectively. (b) The State may pay these agencies for the services, facilities, or records they provide. The State will include these costs in its estimates of anticipated costs and reports of actual expenditures. Sec. 404.1631 Confidentiality of information and records. The State will comply with the confidentiality of information, including the security of systems, and records requirements described in 20 CFR part 401 and pertinent written guidelines (see Sec. 404.1633). Sec. 404.1632 Other Federal laws and regulations. The State will comply with the provisions of other Federal laws and regulations that directly affect its responsibilities in carrying out the disability determination function; for example, Treasury Department regulations on letters of credit (31 CFR part 205). Sec. 404.1633 Policies and operating instructions. (a) We will provide the State agency with written guidelines necessary for it to carry out its responsibilities in performing the disability determination function. (b) The State agency making determinations of disability will comply with our written guidelines that are not designated as advisory or discretionary. (See Sec. 404.1602 for what we mean by written guidelines.) (c) A representative group of State agencies will be given an opportunity to participate in formulating disability program policies that have an affect on their role in carrying out the disability determination function. State agencies will also be given an opportunity to comment before changes are made in written guidelines unless delay in issuing a change may impair service to the public. [46 FR 29204, May 29, 1981, as amended at 56 FR 11020, Mar. 14, 1991] Performance Standards Sec. 404.1640 General. The following sections provide the procedures and guidelines we use to determine whether the State agency is substantially complying with our regulations and other written guidelines, including meeting established national performance standards. We use performance standards to help assure effective and uniform administration of our disability programs and to measure whether the performance of the disability determination function by each State agency is acceptable. Also, the standards are designed to improve overall State agency performance in the disability determination process and to ensure that benefits are made available to all eligible persons in an accurate and efficient manner. We measure the performance of a State agency in two areas-- processing time and quality of documentation and decisions on claims. State agency compliance is also judged by State agency adherence to other program requirements. [56 FR 11020, Mar. 14, 1991] Sec. 404.1641 Standards of performance. (a) General. The performance standards include both a target level of performance and a threshold level of performance for the State agency. The target level represents a level of performance that we and the States will work to attain in the future. The threshold level is the minimum acceptable level of performance. Performance below the threshold level will be the basis for the Secretary's taking from the State agency partial or complete [[Page 477]] responsibility for performing the disability determination function. Intermediate State agency goals are designed to help each State agency move from its current performance levels to the target levels. (b) The target level. The target level is the optimum level of performance. There are three targets--one for combined title II and title XVI initial performance accuracy, one for title II initial processing time, and one for title XVI initial processing time. (c) The threshold level. The threshold level is the minimum acceptable level of performance. There are three thresholds--one for combined title II and title XVI initial performance accuracy, one for title II initial processing time, and one for title XVI initial processing time. (d) Intermediate goals. Intermediate goals are levels of performance between the threshold levels and the target levels established by our appropriate Regional Commissioner after negotiation with each State agency. The intermediate goals are designed to help the State agencies reach the target levels. Failure to meet these goals is not a cause for considering the State agency to be substantially failing to comply with the performance standards. However, failure to meet the intermediate goals may result in consultation and an offer of optional performance support depending on the availability of our resources. [46 FR 29204, May 29, 1981, as amended at 56 FR 11020, Mar. 14, 1991] Sec. 404.1642 Processing time standards. (a) General. Title II processing time refers to the average number of days, including Saturdays, Sundays, and holidays, it takes a State agency to process an initial disability claim from the day the case folder is received in the State agency until the day it is released to us by the State agency. Title XVI processing time refers to the average number of days, including Saturdays, Sundays, and holidays, from the day of receipt of the initial disability claim in the State agency until systems input of a presumptive disability decision or the day the case folder is released to us by the State agency, whichever is earlier. (b) Target levels. The processing time target levels are: (1) 37 days for title II initial claims. (2) 43 days for title XVI initial claims. (c) Threshold levels. The processing time threshold levels are: (1) 49.5 days for title II initial claims. (2) 57.9 days for title XVI initial claims. [46 FR 29204, May 29, 1981, as amended at 56 FR 11020, Mar. 14, 1991] Sec. 404.1643 Performance accuracy standard. (a) General. Performance accuracy refers to the percentage of cases that do not have to be returned to State agencies for further development or correction of decisions based on evidence in the files and as such represents the reliability of State agency adjudication. The definition of performance accuracy includes the measurement of factors that have a potential for affecting a decision, as well as the correctness of the decision. For example, if a particular item of medical evidence should have been in the file but was not included, even though its inclusion does not change the result in the case, that is a performance error. Performance accuracy, therefore, is a higher standard than decisional accuracy. As a result, the percentage of correct decisions is significantly higher than what is reflected in the error rate established by SSA's quality assurance system. (b) Target level. The State agency initial performance accuracy target level for combined title II and title XVI cases is 97 percent with a corresponding decision accuracy rate of 99 percent. (c) Intermediate Goals. These goals will be established annually by SSA's regional commissioner after negotiation with the State and should be used as stepping stones to progress towards our targeted level of performance. (d) Threshold levels. The State agency initial performance accuracy threshold level for combined title II and title XVI cases is 90.6 percent. [[Page 478]] Sec. 404.1644 How and when we determine whether the processing time standards are met. (a) How we determine processing times. For all initial title II cases, we calculate the mean number of days, including Saturdays, Sundays and holidays, from the day the case folder is received in the State agency until the day it is released to us by the State agency. For initial title XVI cases, we calculate the mean number of days, including Saturdays, Sundays, and holidays, from the day the case folder is received in the State agency until the day there is a systems input of a presumptive disability decision or the day the case folder is released to us by the State agency, whichever is earlier. (b) Frequency of review. Title II processing times and title XVI processing times are monitored separately on a quarterly basis. The determination as to whether or not the processing time thresholds have been met is made at the end of each quarter each year. Quarterly State- by-State mean processing times are compared with the threshold levels for both title II and title XVI. [46 FR 29204, May 29, 1981, as amended at 56 FR 11020, Mar. 14, 1991] Sec. 404.1645 How and when we determine whether the performance accuracy standard is met. (a) How we determine performance accuracy. We determine a State agency's performance accuracy rate on the basis of decision and documentation errors identified in our review of the sample cases. (b) Frequency of review. Title II and title XVI initial performance accuracy are monitored together on a quarterly basis. The determinations as to whether the performance accuracy threshold has been met is made at the end of each quarter each year. Quarterly State-by-State combined initial performance accuracy rates are compared to the established threshold level. Sec. 404.1650 Action we will take if a State agency does not meet the standards. If a State agency does not meet two of the three established threshold levels (one of which must be performance accuracy) for two or more consecutive calendar quarters, we will notify the State agency in writing that it is not meeting the standards. Following our notification, we will provide the State agency appropriate performance support described in Secs. 404.1660, 404.1661 and 404.1662 for a period of up to 12 months. [56 FR 11020, Mar. 14, 1991] Performance Monitoring and Support Sec. 404.1660 How we will monitor. We will regularly analyze State agency combined title II and title XVI initial performance accuracy rate, title II initial processing time, and title XVI initial processing time. Within budgeted resources, we will also routinely conduct fiscal and administrative management reviews and special onsite reviews. A fiscal and administrative management review is a fact-finding mission to review particular aspects of State agency operations. During these reviews we will also review the quality assurance function. This regular monitoring and review program will allow us to determine the progress each State is making and the type and extent of performance support we will provide to help the State progress toward threshold, intermediate, and/or target levels. [56 FR 11020, Mar. 14, 1991] Sec. 404.1661 When we will provide performance support. (a) Optional support. We may offer, or a State may request, performance support at any time that the regular monitoring and review process reveals that support could enhance performance. The State does not have to be below the initial performance accuracy rate of 90.6 percent to receive performance support. Support will be offered, or granted upon request, based on available resources. (b) Mandatory support. (1) We will provide a State agency with mandatory performance support if regular monitoring and review reveal that two of three threshold levels (one of which must be performance accuracy) are not met for two consecutive calendar quarters. [[Page 479]] (2) We may also decide to provide a State agency with mandatory performance support if regular monitoring and review reveal that any one of the three threshold levels is not met for two consecutive calendar quarters. Support will be provided based on available resources. (3) The threshold levels are: (i) Combined title II and title XVI initial performance accuracy rate--90.6 percent, (ii) Title II initial processing time--49.5 days, and (iii) Title XVI initial processing time--57.9 days. [56 FR 11020, Mar. 14, 1991] Sec. 404.1662 What support we will provide. Performance support may include, but is not limited to, any or all of the following: (a) An onsite review of cases processed by the State agency emphasizing adherence to written guidelines. (b) A request that necessary administrative measures be implemented (e.g., filling staffing vacancies, using overtime, assisting with training activities, etc.). (c) Provisions for Federal personnel to perform onsite reviews, conduct training, or perform other functions needed to improve performance. (d) Provisions for fiscal aid to allow for overtime, temporary hiring of additional staff, etc., above the authorized budget. [56 FR 11020, Mar. 14, 1991] Substantial Failure Sec. 404.1670 General. After a State agency falls below two of three established threshold levels, one being performance accuracy, for two consecutive quarters, and after the mandatory performance support period, we will give the State agency a 3-month adjustment period. During this 3-month period we will not require the State agency to meet the threshold levels. Following the adjustment period, if the State agency again falls below two of three threshold levels, one being performance accuracy, in two consecutive quarters during the next 12 months, we will notify the State that we propose to find that the State agency has substantially failed to comply with our standards and advise it that it may request a hearing on that issue. After giving the State notice and an opportunity for a hearing, if it is found that a State agency has substantially failed to make disability determinations consistent with the Act, our regulations or other written guidelines, we will assume partial or complete responsibility for performing the disability determination function after we have complied with Secs. 404.1690 and 404.1692. [56 FR 11021, Mar. 14, 1991] Sec. 404.1671 Good cause for not following the Act, our regulations, or other written guidelines. If a State has good cause for not following the Act, our regulations, or other written guidelines, we will not find that the State agency has substantially failed to meet our standards. We will determine if good cause exists. Some of the factors relevant to good cause are: (a) Disasters such as fire, flood, or civil disorder, that-- (1) Require the diversion of significant personnel normally assigned to the disability determination function, or (2) Destroyed or delayed access to significant records needed to make accurate disability determinations; (b) Strikes of State agency staff or other government or private personnel necessary to the performance of the disability determination function; (c) Sudden and unanticipated workload changes which result from changes in Federal law, regulations, or written guidelines, systems modification or systems malfunctions, or rapid, unpredictable caseload growth for a 6-month period or longer. [56 FR 11021, Mar. 14, 1991] Sec. 404.1675 Finding of substantial failure. A finding of substantial failure with respect to a State may not be made unless and until the State is afforded an opportunity for a hearing. [[Page 480]] Hearings and Appeals Sec. 404.1680 Notice of right to hearing on proposed finding of substantial failure. If, following the mandatory performance support period and the 3- month adjustment period, a State agency again falls below two of three threshold levels (one being performance accuracy) in two consecutive quarters in the succeeding 12 months, we will notify the State in writing that we will find that the State agency has substantially failed to meet our standards unless the State submits a written request for a hearing with the Department of Health and Human Services' Departmental Appeals Board within 30 days after receiving the notice. The notice will identify the threshold levels that were not met by the State agency, the period during which the thresholds were not met and the accuracy and processing time levels attained by the State agency during this period. If a hearing is not requested, the State agency will be found to have substantially failed to meet our standards, and we will implement our plans to assume the disability determination function. [56 FR 11021, Mar. 14, 1991] Sec. 404.1681 Disputes on matters other than substantial failure. Disputes concerning monetary disallowances will be resolved in proceedings before the Department of Health and Human Services' Departmental Appeals Board if the issue cannot be resolved between us and the State. Disputes other than monetary disallowances will be resolved through an appeal to the Commissioner of Social Security, who will make the final decision. (See Sec. 404.1627.) [56 FR 11021, Mar. 14, 1991] Sec. 404.1682 Who conducts the hearings. If a hearing is required, it will be conducted by the Health and Human Services Departmental Grant Appeals Board (the Board). Sec. 404.1683 Hearings and appeals process. The rules for hearings and appeals before the Board are provided in 45 CFR part 16. A notice under Sec. 404.1680 of this subpart will be considered a ``final written decision'' for purposes of Board review. Assumption of Disability Determination Function Sec. 404.1690 Assumption when we make a finding of substantial failure. (a) Notice to State. When we find that substantial failure exists, we will notify the State in writing that we will assume responsibility for performing the disability determination function from the State agency, whether the assumption will be partial or complete, and the date on which the assumption will be effective. (b) Effective date of assumption. The date of any partial or complete assumption of the disability determination function from a State agency may not be earlier than 180 days after our finding of substantial failure, and not before compliance with the requirements of Sec. 404.1692. Sec. 404.1691 Assumption when State no longer wishes to perform the disability determination function. (a) Notice to the Secretary. If a State no longer wishes to perform the disability determination function, it will notify us in writing. The notice must be from an official authorized to act for the State for this purpose. The State will provide an opinion from the State's Attorney General verifying the authority of the official who gave the notice. (b) Effective date of assumption. The State agency will continue to perform whatever activities of the disability determination function it is performing at the time the notice referred to in paragraph (a) of this section is given for not less than 180 days or, if later, until we have complied with the requirements of Sec. 404.1692. For example, if the State is not making disability determinations (because we previously assumed responsibility for making them) but is performing other activities related to the disability determination function at the time it gives notice, the State will continue to do these activities until the requirements of this paragraph are met. Thereafter, we will assume complete responsibility [[Page 481]] for performing the disability determination function. Sec. 404.1692 Protection of State employees. (a) Hiring preference. We will develop and initiate procedures to implement a plan to partially or completely assume the disability determination function from the State agency under Sec. 404.1690 or Sec. 404.1691, as appropriate. Except for the State agency's administrator, deputy administrator, or assistant administrator (or his equivalent), we will give employees of the State agency who are capable of performing duties in the disability determination function preference over any other persons in filling positions with us for which they are qualified. We may also give a preference in hiring to the State agency's administrator, deputy administrator, or assistant administrator (or his equivalent). We will establish a system for determining the hiring priority among the affected State agency employees in those instances where we are not hiring all of them. (b) Determination by Secretary of Labor. We will not assume responsibility for performing the disability determination function from a State until the Secretary of Labor determines that the State has made fair and equitable arrangements under applicable Federal, State and local law to protect the interests of employees who will be displaced from their employment because of the assumption and who we will not hire. Sec. 404.1693 Limitation on State expenditures after notice. The State agency may not, after it receives the notice referred to in Sec. 404.1690, or gives the notice referred to in Sec. 404.1691, make any new commitments to spend funds allocated to it for performing the disability determination function without the approval of the appropriate SSA regional commissioner. The State will make every effort to close out as soon as possible all existing commitments that relate to performing the disability determination function. Sec. 404.1694 Final accounting by the State. The State will submit its final claims to us as soon as possible, but in no event later than 1 year from the effective date of our assumption of the disability determination function unless we grant an extension of time. When the final claim(s) is submitted, a final accounting will be made by the State of any funds paid to the State under Sec. 404.1626 which have not been spent or committed prior to the effective date of our assumption of the disability determination function. Disputes concerning final accounting issues which cannot be resolved between the State and us will be resolved in proceedings before the Grant Appeals Board as described in 45 CFR part 16.