federal register - U.S. Government Printing Office

6416 Federal Register / Vol. 62, No. 28 / Tuesday, February 11, 1997 / Rules and Regulationsrules (discussed in detail in paragraph(b)(2)) is to consider whether theimpairment(s) that we considered at thetime of our most recent favorabledetermination or decision still meets, oris still equivalent in severity to, thelisting that it met or was equivalent inseverity to at that time, as that listingthen appeared, even if that listing hassince been revised or removed from theListing. If that impairment(s) would stillmeet or equal in severity that listing, wewill find the child still disabled, subjectto certain exceptions discussed inparagraphs (e) and (f) of this section anddiscussed below.If that impairment(s) would not nowmeet or equal in severity that listing, wewill then consider whether the child iscurrently disabled, taking into accountall current impairments, including anythe child did not have or that we did notconsider at the time of our most recentfavorable determination or decision.At this step (discussed in detail inparagraph (b)(3)), we first considerwhether the child has a severeimpairment or combination ofimpairments considering all currentimpairments. If the child does not, wewill find the child not disabled. If so,we then consider whether the child’scurrent impairment(s) meets, or ismedically equivalent or functionallyequivalent in severity to, any listing inthe Listing of Impairments. If so, thechild continues to be disabled; if not,the child is not disabled.We will not always follow these stepsin order. In final paragraph (b), weadded language explaining that we mayskip steps in the sequence if it is clearthis would lead to a more promptfinding that disability continues. Wewill not skip any steps unless it is clearthat a continuance will result. Forexample, we might not consider theissue of medical improvement if it isobvious on the face of the evidence thata current impairment meets the severityof a listed impairment.Final paragraph (c) discussed what wemean by ‘‘medical improvement’’; i.e.,any decrease in the severity of themedical impairment(s) which waspresent at the time of our most recentfavorable determination or decision.This paragraph is largely the sameunder our prior rules, but we haveadded language to make it clear that wewill disregard minor changes in theindividual’s signs, symptoms, andlaboratory findings that obviously donot represent medical improvement andcould not result in a finding that theindividual’s disability has ended. Thisis a longstanding procedure we haveused in cases in which there istechnically medical improvementbecause there is some very slightimprovement in a sign, symptom, orlaboratory finding (e.g., a change in IQfrom 61 to 62) but it is clear that theoutcome will not change.Final paragraph (d), largelyunchanged from prior paragraph (e),explains what we will do if we cannotfind the prior file. First, we willdetermine whether the child is currentlydisabled. If not, we will decide whetherto attempt reconstruction of thoseportions of the missing file that wererelevant to our most recent favorabledetermination or decision, so as to allowa decision whether there has beenmedical improvement since that time. Ifwe do not or cannot reconstruct the file,we will not find medical improvement.Paragraph (e) concerns ‘‘the firstgroup of exceptions to medicalimprovement.’’ The law provideslimited situations in which disabilitycan be found to have ended even thoughmedical improvement has not occurred,if the child’s impairment(s) no longerresults in marked and severe functionallimitations. Two of the exceptions inour prior rules—the ‘‘advances inmedical or vocational therapy ortechnology’’ exception and the‘‘vocational therapy’’ exception—havebeen limited by Public Law 104–193 toindividuals who have attained age 18.The third exception is still applicable: Achild’s disability may be found to haveceased if substantial evidence showsthat, based on new or improveddiagnostic techniques or evaluations,the child’s impairment(s) is not asdisabling as it was considered to be atthe time of the most recent favorabledetermination or decision. We haverevised this exception to conform to thenew definition of disability for children.Final paragraph (f), largely unchangedfrom prior paragraph (g), concerns ‘‘thesecond group of exceptions to medicalimprovement.’’ These exceptionsinclude such issues as fraud and failureto cooperate in obtaining evidence. Ifone of these exceptions applies, we mayfind that disability ceases withoutfinding medical improvement or thatthe child is currently disabled. We haverevised the language concerning theseexceptions to conform to the newdefinition of disability for children.Final paragraph (g) (prior paragraph(h)) concerns the month we will find achild no longer disabled. We revised thelanguage slightly to conform to the newdefinition of disability for children.Final paragraph (h) (prior paragraph,(i)) provides that, before we stopbenefits, we will provide an opportunityfor an appeal, and gives a reference tothe rules on appeals; it is unchangedfrom our prior rules.Final paragraph (i) is new; itimplements provisions in Public Law104–193 requiring that, if a child has arepresentative payee, that payee mustpresent evidence at the time of a CDRshowing that the child is and has beenreceiving treatment to the extentconsidered medically necessary andavailable for the condition(s) that wasthe basis for providing SSI benefits,unless we determine such evidencewould be inappropriate or unnecessary,considering the nature of the child’simpairment(s). If the payee refuseswithout good cause to provide evidence,and it is in the best interests of thechild, we will determine if anotherpayee should be selected or if the childshould receive benefits directly.In paragraph (i)(1), we explain that‘‘medically necessary’’ treatment meanstreatment that is expected to improve orrestore the individual’s functioning andthat was prescribed by a ‘‘treatingsource’’ as defined in § 416.902. If thechild does not have a treating source,we will decide whether there ismedically necessary treatment thatcould have been prescribed by a treatingsource. In paragraph (i)(2), we list somefactors we will consider in evaluatingwhether medically necessary treatmentis available; e.g., the location ofinstitutions or facilities that couldprovide treatment, the availability andcost of transportation to such places, theavailability of local communityresources that would provide freetreatment.In paragraph (i)(3), we explain that wewill not require a payee to show proofof treatment if we decide that thedisabling impairment(s) is not amenableto treatment. In paragraph (i)(4), weexplain that if the representative payeerefuses without good cause to provideevidence of treatment, we will, if it is inthe child’s best interests, remove thepayee and determine if another payeeshould be selected or if the child shouldreceive benefits directly. We furtherexplain that when we consider whethera representative payee had good cause,we will consider factors such as theacceptable reasons for failure to followprescribed treatment in § 416.930(c) andother factors similar to those describinggood cause for missing deadlines in§ 416.1411.Finally, in paragraph (i)(5) we explainthat the requirements of paragraph (i) donot apply to a child who is receiving SSIpayments directly. This is because thetreatment provision in Public Law 104–193 applies only to children who haverepresentative payees. However, wehave also included a reminder that thefailure-to-follow-prescribed-treatmentrules in § 416.930 continue to apply to