Review of the Social Security Administration and Other Selected Capability Determination Processes
As part of its statement of task, the committee was asked to “familiarize itself with the U.S. Social Security Administration’s (SSA’s) current policy and procedures for capability determinations for adult beneficiaries; provide an overview of the capability determination processes in at least three similar programs (at least one government and one private sector program); [and] compare SSA’s program to these other programs.” To meet these objectives, the committee examined current policies and procedures of and spoke with representatives from SSA, the U.S. Department of Veterans Affairs (VA), the U.S. Office of Personnel Management (OPM), and Service Canada.1 Additionally, with America’s Health Insurance Plans (AHIP) serving as an intermediary, the committee was provided with information compiled from five disability income protection insurers.
Some SSA beneficiaries also receive benefits from the VA or OPM. Because each of these agencies has its own policies and procedures for determining whether beneficiaries are capable of managing their benefits, they may reach different conclusions about an individual’s capability. Flohr and Lewis (2015) report that there is no formal method for the exchange of information between SSA and the VA with regard to beneficiaries found incompetent. However, they also note that in certain cases, the VA field examiners recommend that the VA-appointed fiduciary apply to serve in a similar role for SSA benefits. The OPM program uses computerized matching with
1 A representative of the U.S. Railroad Retirement Board was scheduled to present at the committee’s first workshop. However, the representative canceled prior to the meeting, and despite the committee’s efforts, no further contact was established.
other benefit-paying organizations, including SSA and the U.S. Department of Labor. Although such matching is primarily for analysis of benefit disbursement from other programs that may affect OPM benefits, it may also provide information that brings capability into question (Spear, 2015).
The current chapter explores and compares these organizations’ processes and policies for determining capability.2Annex Table 2-1 at the end of this chapter summarizes information about each of these programs and allows cross-program comparisons.
The Social Security Act grants the commissioner of Social Security authority to make benefit payments to an individual or organization other than the beneficiary, a so-called representative payee, when it would serve the beneficiary’s best interests. Such an arrangement is made for beneficiaries whom SSA has deemed incapable of managing or directing the management of their benefits and in need of assistance to ensure that their basic needs (i.e., shelter, food, and clothing) are being met.
As of December 2014, approximately 54.65 million adults were receiving Old-Age, Survivors, and Disability Insurance (OASDI) benefits, 1.63 million (3.0 percent) of whom were receiving benefits through a representative payee (SSA, 2015a, Table 5.L1). SSA also administered Supplemental Security Income (SSI) benefits to approximately 7.04 million adults, 1.86 million of whom (26.4 percent) had a representative payee (SSA, 2015a, Table 7.E4). More than 2.55 million adults received benefits from both OASDI and SSI (SSA, 2015d). Of these populations, the great majority of beneficiaries with a representative payee, and the focus of the current report, were adults with disabilities. Table 2-1 shows the number and percentage of adults receiving Social Security Disability Insurance (SSDI) and/or SSI benefits through a representative payee.
The VA is responsible for providing health care and benefits to service members, veterans, and their dependents and survivors. Among these benefits are disability compensation, disability pensions, and service-connected and non-service-connected survivors benefits, all administered by the Veterans Benefits Administration (VBA). As with Social Security, authority is granted to the secretary of the VA to make benefit payments to an individual other than a beneficiary who is found incompetent when doing so
2 It is important to note that the amount of information provided to or obtained by the committee varied greatly among the programs examined, as reflected in this chapter. Of these programs, SSA and the VA had much information publicly available, while much less information was available on the OPM and Service Canada programs. No information regarding private insurance company programs was publicly available; information provided in this report relies exclusively on the limited information compiled by AHIP.
TABLE 2-1 Number and Percentage of Adult Social Security Disability Insurance (SSDI), Disabled Adult Children SSDI, and Supplemental Security Income (SSI) (Blind or Disabled) Recipients with Representative Payees, December 2014
|Type of Beneficiary||All Beneficiaries||Beneficiaries with Representative Payees|
|SSDI: Disabled adult children||1,048,879||774,621||73.9|
|SSI: Adult (blindness or disability)*||5,884,003||1,801,667||30.6|
NOTE: SSDI = Social Security Disability Insurance; SSI = Supplemental Security Income.
SOURCE: SSA, 2015a, Tables 5.L1 and 7.E4.
appears to be in the beneficiary’s best interests.3 As of September 2014, approximately 3.95 million veterans were receiving disability compensation, and another 300,000 were receiving disability pensions; as of September 2015, approximately 183,000 of these beneficiaries were rated incompetent (Flohr and Lewis, 2015). Table 2-2 shows those conditions with the highest numbers of incompetency ratings.
OPM is responsible for administering and delivering an array of federally authorized benefits and services to its workforce and annuitants. Among these benefits are annuities paid to retirees and their families, administered through the Retirement Services Division, for federal employees eligible for early, voluntary, deferred, or disability retirement. Retirement benefits are paid to approximately 2.5 million annuitants and survivor annuitants each year (Spear, 2015). Federal law permits OPM to make benefit payments to a third party for a beneficiary deemed mentally incompetent or with some other legal disability.4 Such payment is to be used for the benefit of the annuitant (OPM, n.d.). Currently, there are approximately 16,000 OPM annuitants with representative payees (Spear, 2015).
Employment and Social Development Canada is the Canadian government department responsible for developing, managing, and delivering social programs and services. Among these programs are the Canada Pension Plan (CPP) and Old Age Security (OAS) programs, administered through
3 38 USC § 5502.
4 5 USC § 8345.
|Posttraumatic stress disorder||>15,000|
|Dementia of unknown etiology||11,000|
|Schizophrenia, paranoid type||>10,000|
|Schizophrenia, undifferentiated type||5,700|
|Dementia, Alzheimer’s type||5,400|
|Major depressive disorder||3,900|
|Dementia due to head trauma||2,400|
|Organic mental disorders||1,200|
SOURCE: Flohr and Lewis, 2015.
Service Canada. CPP is a social insurance program based on contributions from workers in Canada that provides pensions and benefits when contributors retire, become disabled, or die. OAS provides benefits to most Canadian citizens or legal residents 65 years of age or older who have lived in Canada for at least 10 years after turning 18, regardless of employment history. In addition to the primary pension, OAS provides the Guaranteed Income Supplement to low-income OAS recipients who live in Canada. Canadian legislation permits the appointment of a person or agency other than the beneficiary, a so-called trustee, to apply for, receive, and administer benefits on behalf of a person who “by reason of infirmity, illness, insanity or other cause, is incapable of managing [his or her] own affairs” (C.R.C., c. 385; R.S.C., 1985, c. O-9). A trustee will be appointed only when doing so is deemed to be in the best interest of the beneficiary, and “no enduring POA [power of attorney] exists or other federally or provincially appointed administration has been put into place” (Service Canada, 2015b).5 Information on the number of beneficiaries with trustees was unavailable.
As part of its statement of task, the committee was also asked to provide an overview of at least one private-sector program. The committee contacted multiple private insurance companies, but received few responses and no actionable information. However, with assistance from AHIP, which
5 Service Canada specifically distinguishes an enduring power of attorney as a document that “has an explicit provision which states that it will continue or endure despite insanity or incapability of the grantor” (Service Canada, 2015b). A power of attorney without such a provision would not preclude the appointment of a trustee.
conducted outreach to its member companies, the committee received a summary of information compiled from five disability income protection insurers regarding their approaches to determining capability. Respondents reported an overall rate of incapability among claimant populations of less than 5 percent; no respondents offered information regarding rates of incapability determinations by specific diagnosis. Other relevant information provided to the committee by AHIP is discussed throughout this chapter.6 It is important to note that this information is limited and does not reflect a comprehensive discussion of the various issues involved in the capability determination processes of disability income protection insurers.
As noted in Chapter 1, SSA (2003) defines capability as “a beneficiary’s ability to manage or direct the management of his [or] her Social Security funds.” This definition encompasses not only beneficiaries who can directly manage their funds but also those who can participate in the management of their funds by directing others. This second instance is what SSA refers to as self-direction, “a service delivery system whereby families, elderly beneficiaries, or beneficiaries with disabilities have high levels of direct involvement, control and choice in identifying, accessing and managing the services they obtain to meet their personal assistance and other health related needs” (SSA, 2015e). If a beneficiary can either manage his or her benefits or direct others in doing so, he or she is deemed capable and must be paid directly. Adult beneficiaries, with the exception of those judged legally incompetent, are presumed to be capable absent any evidence to the contrary.
The VA uses the term mental competency in a manner equivalent to SSA’s use of capability, defining a mentally incompetent person as “one who because of injury or disease lacks the mental capacity to contract or to manage his or her own affairs, including disbursement of funds without limitation.”7 Adult beneficiaries are presumed to be competent to manage their own benefits unless there is clear and convincing evidence to the contrary (VA, 2015a). If there is a reasonable doubt8 as to whether someone is capable of managing his or her own affairs, that doubt is resolved in favor of competency.9
6 The information provided by AHIP that is presented in this chapter is based on a memorandum to the committee dated November 26, 2015, from Winthrop Cashdollar, Executive Director, Product Policy, AHIP (AHIP, 2015). This memorandum in its entirety is available in the committee’s public access file.
7 38 CFR 3.353(a).
8 Reasonable doubt means there is “an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim” (38 CFR 3.102).
9 38 CFR 3.353(d).
OPM (n.d.) uses the term competency in a similar manner, referring to an annuitant’s mental or physical ability to handle his or her own benefits. Annuitants without a court-appointed fiduciary are presumed competent absent evidence to the contrary (Spear, 2015). Service Canada uses the term capability to describe those individuals suffering from severe mental impairment or a physical illness or impairment who are nonetheless able to manage their own affairs (Service Canada, 2015a).10
SSA provides the most in-depth information on potential triggers that bring capability into question during the disability determination process. When there is some indication or evidence that an adult SSDI or SSI beneficiary may not be able to manage or direct the management of his or her benefits and the beneficiary has not been judged legally incompetent, evidence of capability/incapability must be developed (i.e., gathered and evaluated). Two primary entities are involved in the disability determination process for an initial claim: the SSA field office and the state Disability Determination Service (DDS) agency. The field office is the first point of contact with the disability applicant, accepting applications for disability benefits and verifying nonmedical eligibility requirements. After this first step, the case is referred to the state DDS agency, where a disability examiner develops medical evidence and makes the initial determination of disability. Following that initial determination, the case is returned to the field office for appropriate action (e.g., nonmedical case development, computation of benefit amount, benefit payment). Either of these entities may identify the need to pursue capability case development.
Claims representatives at the SSA field offices are directed to develop evidence of capability when it is suspected that a mental or physical condition may inhibit the beneficiary’s ability to manage or direct the management of his or her benefits (SSA, 2015e). In assessing whether development of evidence of capability is needed, claims representatives are instructed to consider two questions:
- Does the individual have difficulty answering questions, getting the evidence or information necessary to pursue the claim, or understanding explanations and reporting instructions?
10 Service Canada also uses the term incapacity with regard to persons who were or are incapable of forming or expressing an intention to make an application, to allow an application to be filed late in such circumstances. This is entirely separate from the issue of capability to manage benefits.
- If so, do you think this difficulty indicates the beneficiary cannot manage or direct the management of funds?
In such cases, the field office forwards a request for capability case development to the state DDS agency along with the application for disability benefits. DDS is then responsible for providing an opinion regarding the claimant’s capability to manage his or her disability benefits, along with medical evidence of disability. DDS also assumes this responsibility when its medical case development for determining whether a claimant has a disability indicates that a claimant may be incapable (SSA, 2015b).
SSA (2015c) operating instructions outline four situations for which medical evidence of capability must be developed by the disability examiner:
- the field office indicates the claimant may be incapable and requests capability case development;
- the claimant has a mental or physical impairment resulting in severe disorientation, a severe impairment of mental intellect, a gross deficit in judgment, or an inability to communicate with others;
- a psychiatric or psychological consultative examination is purchased by the state DDS; or
- someone other than the claimant filed the disability claim.
DDS disability examiners may develop evidence of capability in conjunction with the development of medical evidence of disability; DDS disability examiners do not complete medical case development solely to resolve capability issues. Box 2-1 provides information on training related to capability case development and determinations provided to field office and DDS staff.
For the VA, a beneficiary’s competency is considered “whenever qualifying evidence raises a question as to the mental capacity to contract or to manage his/her own affairs, including disbursement of funds without limitation.”11 If the issue of competency is raised without supporting medical evidence or a statement from a responsible medical authority, additional medical evidence concerning competency must be developed.12 (See the discussion of types and sources of evidence below.) The question of incompetency is raised if a beneficiary receives a 100 percent disability rating for a mental condition.13 However, the 100 percent disability rating alone does not necessarily mean the person is unable to manage his or her benefits. For this reason, the VA regulations advise that such cases need to
11 38 CFR 3.353(a).
12 38 CFR 3.353(c).
13 M21-1, Part III, Subpart IV, 8.A.2a.
the beneficiary (e.g., a family member, neighbor, or institution) suggesting that the annuitant is unable to manage his or her affairs. The second is through OPM’s program integrity efforts, including surveys and matching. Information provided through a survey response may identify a potential need for representative payment and prompt further inquiry into this question. Likewise, if a survey is not returned or is returned as undeliverable, further inquiry is made as to why, which may lead to information that brings capability into question.
The regulations and functional guidance on third-party administration of benefits available to the committee contain no information on how potentially incapable beneficiaries may be identified in the Canadian system. The committee was told that Service Canada has no systematic approach for identifying such individuals; generally, such cases are brought to the attention of Service Canada by an individual who is familiar with the beneficiary, such as a family member, friend, or neighbor.
Private insurers reported a number of ways in which they identify claimants who may not be capable of managing their benefits. Potential triggers cited by respondents include a diagnosis (e.g., mental illness, behavioral health conditions, or brain injury that may impair cognitive functioning); a request for redirection of funds to a third party by someone familiar with the beneficiary (e.g., physician, family member); notification of a guardianship, conservatorship, power of attorney, or tutorship of the estate for the claimant; or personal interactions with the claimant that cause concern (e.g., confusion, engagement in risky behavior, or other signs of incompetence) (AHIP, 2015).
SSA designates three categories of evidence in the capability determination process: legal, medical, and lay. To ensure consistency with SSA’s language and allow for comparisons between SSA’s capability determination process and that of other agencies and organizations, the committee discusses evidence of capability in accordance with this terminology. All of the programs reviewed rely on some combination of legal, medical, and lay evidence, although the primary evidence required for determining capability differs among organizations.
Legal evidence comprises findings regarding competence by the courts. SSA beneficiaries who have been declared legally incompetent through a court order are required to receive their funds through a representative payee. In such cases, the court’s findings are reviewed and adopted as the
determination of incapability, and no further development of evidence is required. It is important to note that what constitutes legal incompetence varies among states; therefore, as described below, the requirements for a finding of legal incompetence in some states may deviate from SSA’s requirements for a finding of financial incapability.
SSA (2014b, 2015f) also notes that many states have moved away from specific findings of legal incompetence; in such cases, evidence of incompetence often takes the form of a court order appointing a legal guardian or conservator. If the court order does not specifically find the beneficiary legally incompetent or provide information about the individual’s ability to manage financial affairs, SSA must clarify whether the order represents a finding of incompetence to manage financial affairs. In such cases, evaluators first consult the Digest of State Guardianship Laws to help determine whether the court order represents a finding of legal incompetence (SSA, 2015f). If incompetency still is not established by the court order, the court’s findings may serve as evidence for the capability determination if they describe the beneficiary’s ability or lack of ability to manage funds. However, further development of medical and lay evidence of capability is necessary (SSA, 2014b).
As with SSA, legal evidence may also be binding on OPM and Service Canada. An original or certified copy of a court order appointing a guardian, conservator, or fiduciary is sufficient for OPM to establish the need for a representative payee (OPM, 2013). For all other cases, medical and lay evidence is required. For Service Canada, when a legal arrangement is in place for another person or agency to act on the beneficiary’s behalf, no further development or certification of capability is necessary. Such arrangements include an enduring power of attorney, public trustee, or court-appointed committee or guardian. These arrangements are binding and must be recognized, and CPP and/or OAS benefits must be paid directly to federally or provincially appointed administrators.
In contrast, a finding of legal incompetency by a court is not binding with respect to the competency of a veteran in the VA system.15,16 However, such a legal finding does raise the question of competency, triggering the need to develop necessary medical evidence, and is to be given great weight in the VA process in conjunction with the medical evidence.17 Evaluators are instructed to render an incompetency rating only when the evidence is clear and convincing and leaves no doubt as to the person’s incompetency.18 Court appointment of a fiduciary without a judicial determination of
15 M21-1, Part III, Subpart IV, 8.A.1b.
16 However, when a parent, surviving spouse, or adult helpless child is found incompetent by court decree, no further development of evidence is necessary (38 CFR 13.58).
17 M21-1, Part III, Subpart IV, 8.A.5.b.
18 38 CFR 3.353.
incompetency or medical evidence is not considered evidence of incompetency requiring rating action.19
Medical evidence comprises information about a person’s physical or mental condition (e.g., medical signs and laboratory findings, medical history and treatment records, opinions from medical sources) that sheds light on a beneficiary’s ability to manage or direct the management of funds, based on an examination of the beneficiary by a medical professional. For SSA, such information must come “from a physician, psychologist or other qualified medical practitioner who is in a position to provide a meaningful assessment of the beneficiary’s ability to manage funds” (SSA, 2012a). This may include a statement directly from the medical professional (e.g., on SSA Form 787, sent to the treating physician by the SSA field office), or other medical forms or summary reports from qualified medical professionals. Acceptable medical evidence must be based on an examination of the beneficiary performed within the last year. An opinion from a DDS agency that has reviewed the beneficiary’s claim and medical evidence may provide evidence of incapability; it is not a determination of capability.
In weighing the value of medical evidence for determining capability, SSA notes the importance of using “good judgment”:
For example, a medical opinion of capability from a consultative examiner or another physician based on limited contact with the beneficiary is less convincing than an opinion from the treating source. Likewise, a medical opinion based on an examination of more than a year ago would not be as valuable as more recent evidence. (SSA, 2012a)
Although medical evidence is deemed “a very important consideration in determining a beneficiary’s capability,” it is not “definitive” for determining capability (SSA, 2012a). In contrast, the VA, OPM, and Service Canada require medical evidence to find a beneficiary incompetent.
According to the VA (2015a)20 guidelines for evaluating competency, “a finding of incompetency cannot be made without a definite expression by a responsible medical authority unless the medical evidence of record is
- convincing, and
- leaves no doubt as to the beneficiary’s incompetency.”
19 38 CFR 13.59.
20 38 CFR 3.353; M21-1, Part III, Subpart IV, 8.A.1d.
Medical evidence of competency is provided by an evaluating physician, and can range from a simple statement that the beneficiary cannot manage his or her funds to a detailed account of the person’s functional incapacity. When the medical evidence is unclear, is unconvincing, or leaves doubt, additional medical evidence, which may include a VA examination to settle the question, must be developed before the case is forwarded to the rating activity.21 If the individual is being seen or treated at a VA medical center or by a private care provider, the VBA will attempt to obtain those records as well (Flohr and Lewis, 2015).
For OPM, medical evidence must include a statement from a treating physician on his or her letterhead. Specific instructions, as discussed below, are provided to the treating physician as to the type of evidence required to make a competency determination.
Service Canada requires that for a beneficiary to be found incapable, he or she must be suffering from “severe mental impairment or a physical illness or impairment.” Except in “exceptional circumstances,” evidence of incapability must be submitted via a Certificate of Incapability (see Appendix C) by a certified medical professional (i.e., physician, registered nurse, nurse practitioner, psychologist, or psychiatrist). The medical professional certifying incapability must provide a diagnosis of the impairment, indicate in the appropriate box that he or she considers the individual to be incapable of managing his or her own affairs, and cite such incapability in the answer to at least one of five questions (as discussed below).
Private insurers reported that claims professionals will generally gather additional information by engaging the claimant’s treating physician. However, they also reported that before attempting to gather additional information through conversations with potential informants or requests for medical evidence, they obtain legal authorization to do so.22 Some insurers reported that a determination of incapability requires a definitive response by a treating physician to a specific question regarding capability; for these insurers, such a response is required regardless of how the issue was raised (AHIP, 2015).
Lay evidence comprises anything other than legal or medical evidence, as defined above, that provides material and relevant facts as to
21 A “rating activity is a group of specially qualified employees vested with the authority to make decisions and take other actions on claims that require a rating decision,” including competency (VA, 2015b).
22 It is unclear from the information provided to the committee from whom this authorization is sought.
the beneficiary’s ability to manage or direct the management of funds and meet his or her basic needs. Such evidence can be provided by anyone with direct knowledge of facts or circumstances regarding the beneficiary in his or her daily life; this may include nonprofessionals (e.g., relatives, friends, neighbors) and health care and other professionals (e.g., social workers, occupational therapists, rehabilitation specialists, adult protective services workers).
To find a beneficiary incapable, SSA requires lay evidence. It considers such evidence to be “anything other than legal or medical evidence, which gives insight into a beneficiary’s ability to manage or direct the management of his/her funds” to meet daily needs (i.e., food, shelter, clothing). For SSA, this evidence may include direct observations of the beneficiary’s behavior, reasoning ability, and functioning; statements from or contact with third parties, such as relatives, friends, neighbors, landlords, representatives of community groups, or professionals who do not provide “evidence of a medical nature”23 (e.g., social workers, occupational therapists, caseworkers, rehabilitation counselors, clergy); and a representative payee applicant’s answer to why the applicant thinks the claimant is unable to handle his or her affairs (SSA, 2011a).24 SSA notes that a face-to-face interview with the beneficiary, when possible, is “the best source for lay evidence of capability” because it provides “the opportunity to observe the beneficiary’s behavior, ability to reason, ability to function with others, and effectiveness with which he [or] she pursues the claim” (SSA, 2011b).
OPM also requires lay evidence for determining a beneficiary’s competency. Acceptable lay evidence takes the form of sworn affidavits from persons (preferably one family member and one non-family member) who know the beneficiary and facts concerning his or her competency.
For the VA, lay evidence may be considered following an initial determination of incompetency. For example, “after development of information with regard to social, economic, and industrial adjustment, the Veterans Service Center Manager may be of the opinion that a beneficiary rated, or proposed to be rated, incompetent is actually capable of handling, without limitation, the funds payable.” Such evidence is then referred back to the
23 SSA defines evidence of a medical nature as evidence “from a physician, psychologist or other qualified medical practitioner who is in a position to provide a meaningful assessment of the beneficiary’s ability to manage funds.” All other nonlegal evidence, from other professionals and lay persons familiar with the beneficiary, is considered lay evidence.
24 Relevant forms include Request to Be Selected as Payee (Form SSA-11-BK), Function Report—Adult (Form SSA-3373-BK), and Function Report—Adult—Third Party (Form SSA-3380-BK). The first asks why the applicant thinks the claimant is unable to handle his or her own benefits, and the latter two include questions about the individual’s ability to handle money, as well as other activities of daily living. See Appendix C for these forms.
VA rating activity for consideration of all the evidence.25 The beneficiary and any witnesses of his or her choice may also provide lay evidence at a personal hearing following notification of plans to appoint a fiduciary.26
Service Canada likewise may rely on lay evidence of incapability, which it collects via the Certificate of Incapability (as outlined above for collecting medical evidence). Service Canada allows for this evidence to be submitted by a nonmedical professional (i.e., a lawyer, social worker, or member of the clergy) in “exceptional circumstances,” such as for beneficiaries living in remote locations or vulnerable seniors who are homeless or at imminent risk of being homeless; incapability cannot be certified by nonprofessionals (Service Canada, 2015b) (see Table 2-3 for a list of acceptable professionals). Meeting these requirements, the certificate will serve as acceptable evidence of the beneficiary’s incapability. Regardless of whether the form is submitted by a medical or nonmedical professional, the information thus provided may fit the committee’s definition of lay evidence.
Private insurers reported that claims professionals will gather information on capability by engaging members of the claimant’s family on whom he or she relies extensively (AHIP, 2015).
Instructions to informants vary widely among programs. SSA operating instructions provide an extensive list of recommended questions for field office staff conducting face-to-face interviews, but no such information is provided to medical professionals or persons providing lay evidence of capability. The form provided to the treating physician by the SSA field office (SSA-787; see Appendix C) provides little guidance on the basis for an opinion on capability, asking:
Do you believe the patient is capable of managing or directing the management of benefits in his or her own best interest? By capable we mean that the patient:
- Is able to understand and act on the ordinary affairs of life, such as providing for own adequate food, housing, clothing, etc., and
- Is able, in spite of physical impairments, to manage funds or direct others how to manage them.
In contrast, OPM provides the most in-depth instructions on the type of information necessary to make a determination of capability. OPM Form RI 30-3 (see Appendix C), to be used by physicians and persons providing
25 38 CFR 3.353(b)(3).
26 M21-1, Part III, Subpart IV, 9.B.6.
|Standard Third-Party Administration||In Exceptional Circumstances (e.g., remote locations)||For Homeless Seniors|
Certified medical professional
Certified medical professional
Certified medical professional
Lawyer who has been handling the person’s affairs
Lawyer Social worker
Member of the clergy
SOURCE: Service Canada, 2015b, p. 30.
lay evidence, outlines the specific information necessary for a competency determination (OPM, 2013). Physicians are instructed to provide a “history of the specific medical condition(s) which caused the individual to be incompetent, including symptoms, physical findings, results of laboratory studies, and therapy (together with the response to therapy),” as well as the duration of the condition causing incompetency and the expected date of full or partial recovery. In addition to this statement, physicians are asked to provide copies of all relevant laboratory reports, psychological test reports, and discharge summaries of hospitalizations. For informants providing lay evidence, OPM Form RI 30-3 specifies that affidavits should provide information on the individual’s relationship to and amount of contact with the beneficiary, observed actions or incidents that call the beneficiary’s competency to manage his or her affairs into question, reasons why there is no court-appointed guardian or fiduciary, and information on who has been handling the individual’s affairs (OPM, 2013; Spear, 2015).
Service Canada also asks specific questions of medical (or in rare cases, nonmedical) professionals regarding capability. Informants certifying capability must provide a diagnosis (if a medical professional) or description (if a nonmedical professional) of the impairment, indicate in the appropriate box that he or she considers the individual to be incapable of managing his or her own affairs, and cite such incapability in the answer to at least one of the following questions:
- Does the person named above have good general knowledge of what is happening to his/her money or investments?
- Does the person named above have sufficient understanding of the concept of time, in order to pay bills promptly?
- Does the person named above have sufficient memory to keep track of financial transactions and decisions?
- Does the person named above have ability to balance accounts and bills?
- Does the person named above have significant impairment of judgment due to altered intellectual function?
It is unclear whether the VA provides any formal guidance to potential informants.
Social Security Administration
SSA field offices and state DDS agencies both play a role in developing evidence of capability. DDS disability examiners are responsible for requesting medical records from all sources listed on the disability application and developing all medical evidence for a disability claim. The primary role of the DDS agency is to review the medical evidence to make an initial determination regarding disability; however, it is alert for any indication or statement from a medical provider regarding an applicant’s ability to manage funds (Payne, 2015). When a medical professional specifically offers an opinion on capability, the DDS agency needs to pursue no further development of medical evidence in reference to the capability issue (SSA, 2015b). Such an opinion may be included in a summary statement from the treating medical professional. Additionally, any time a psychological or psychiatric consultative examination is purchased to assess disability, the consultative examiner (a medical professional) is asked to provide a statement on capability (SSA, 2015b).
The DDS agency also may provide an opinion on capability, based on all available evidence. If evidence from an acceptable medical source is available, the DDS agency may categorize the question as “resolved” and offer its opinion on the beneficiary’s capability. When such evidence is not available, the DDS agency may still provide an opinion based on third-party sources, but will report the question of capability as “unresolved” (SSA, 2014a). At this point, the DDS agency will remit its opinion on capability, along with supporting evidence, to the field office, where the responsibility for rendering a definitive judgment of capability resides.
As noted above, although medical evidence is important and informative
for SSA in determining capability, it is not definitive; lay evidence is requisite for all SSA capability determinations. Whereas the primary role of the DDS agency is to evaluate medical evidence, the field office claims representative is trained to adjudicate all nonmedical factors in a disability claim. The DDS agency’s opinion on capability serves as evidence, to be weighed along with all other available evidence. In evaluating whether a beneficiary is capable, the claims representative develops lay evidence, weighs all available evidence, and makes a determination on capability.27
Claims representatives are instructed to “obtain as much lay evidence as [they] consider necessary to make a reasoned capability determination [and] use [their] judgment to determine how much lay evidence is needed to make the correct capability determination” (SSA, 2011b). Such evidence may be acquired in a number of ways. As noted above, SSA operating instructions state that face-to-face interviews are the best source for lay evidence of capability, and claims representatives are given a list of sample questions (SSA, 2011b) (see Box 2-2). Data provided to the committee for fiscal year 2013 show that a large majority of SSDI claims are awarded without the beneficiary’s visiting the field office (i.e., with no face-to-face contact) (see Table 2-4). As noted, lay evidence also may be obtained through statements from third parties familiar with the beneficiary (e.g., friends, relatives, social workers, and any community service groups with which he or she has contact) about how the person manages money. When evidence is deemed insufficient to make a determination, field visits to the beneficiary’s home for observation may be considered (SSA, 2011b), but information is not available on how frequently this occurs.
Upon determination that a beneficiary is incapable, SSA provides advance notice to the beneficiary before appointing the payee. This notice must inform the beneficiary that SSA has determined he or she needs a representative payee; provide the name of the proposed representative payee; and state the beneficiary’s appeal rights, including the right to appeal the determination or the designation of a particular person, review the evidence
27 As noted in Chapter 1, the scope of the present study is limited to disability beneficiaries. For this population, a determination of whether an individual is capable is made only once the individual has been determined to be eligible for disability benefits; therefore, a disability determination is assumed. As evidence of capability is developed during the initial determination stage, the discussion of SSA’s process for determining financial capability focuses primarily on the SSA field office and the state DDS agency. However, it is important to note here that some individuals are determined to have a disability following appeal of the initial disability determination. During the appeals process, an opinion on capability may be provided by an entity other than the SSA field office or the state DDS agency, such as an administrative law judge (ALJ). However, unless the question of capability is specifically set before the ALJ, this opinion is to be treated as lay evidence and considered along with all other evidence. The field office is responsible for making the final determination (SSA, 2012b).
|SSDI Claims||Office Visit||No Office Visit||Total|
|With representative payee||23,858||34,565||58,423|
|Without representative payee||185,841||400,795||586,636|
SOURCE: Personal communication, M. Rochowiak, Office of Disability Policy, SSA, October 14, 2015.
on which the decision is based, and submit additional information (SSA, 2011c; 42 USC 405 § 205).
U.S. Department of Veterans Affairs
When a regional office receives credible evidence that indicates a beneficiary may be unable to manage his or her affairs, the evidence is sent to a VA rating activity, which is responsible for making the original competency decision (VA, 2015b). The Rating Veterans Service Representative (RVSR)28 or a designee is responsible for proposing initial competency determinations based on clear and convincing medical evidence (VA, 2015a). As noted above, if the medical evidence is unclear or unconvincing (i.e., is insufficient to make a competency determination), a Veterans Service Representative (VSR) develops additional evidence, including by scheduling an exam to help make the determination (Flohr and Lewis, 2015; VA, 2015a). If, after further evidence development, there still is not clear and convincing medical evidence of incompetency (i.e., there is reasonable doubt), the beneficiary is presumed competent.29 If the evidence only suggests that the beneficiary is incapable, the case is not developed, nor is a proposal of incompetency made, and the rating decision must state that there was no clear and convincing evidence of incompetency (VA, 2015a). If there is clear and convincing evidence that a beneficiary is incapable of managing his or her VA benefits without limitation, the rating activity proposes an incompetency rating (Flohr and Lewis, 2015).
28 RSVRs come from a variety of backgrounds, including veterans, attorneys, and nurses. They receive 6 weeks of intensive training at a central location upon being hired, followed by additional training at the regional office. RSVRs also are required to complete 60 hours of training per year (Flohr and Lewis, 2015).
29 38 CFR 3.353.
If the rating activity proposes an incompetency rating, the VSR or designee provides the beneficiary with a copy of the proposed incompetency rating or a summary of the evidence supporting the finding of incompetency; an explanation of the effect of the finding on the payment of the VA benefits; and notice that a VA rating of incompetency prevents the beneficiary from purchasing firearms, according to the Brady Handgun Violence Prevention Act (the Brady Act) (VA, 2015a,c). In addition, the beneficiary is notified of his or her appeal rights, including the opportunity to submit additional evidence and to appear at a hearing with representation, if desired, and informed that he or she has 60 days to respond to the notice.30,31 Sample language for a VA notice of a proposed rating of incompetency to a beneficiary, as provided in the VBA’s adjudication procedures, is presented in Box 2-3. The VSR also sends notice of the initial incompetency determination, including the evidence upon which it is based, to the appropriate fiduciary hub with a request for appointment of a fiduciary, custodian, or guardian (Flohr and Lewis, 2015; VA, 2015a).
If no additional evidence or request for a hearing is filed during the due process period, jurisdiction of the proposed decision is transferred to a fiduciary service representative at the fiduciary hub,32 who has the authority to finalize the proposed determination of incompetency (VA, 2015a). After finalizing the incompetency determination, the fiduciary hub takes action to appoint a fiduciary, generally within 45 days, by conducting a face-to-face visit with the beneficiary and proposed fiduciary. The appointment process includes an investigation of the evidence that supports the beneficiary’s incompetency to manage funds and the qualifications of the proposed fiduciary. After considering the evidence compiled during the appointment process, the fiduciary hub may (1) concur with the incompetency determination and appoint a fiduciary; (2) conclude that the beneficiary is incompetent, but able to manage VA benefits with supervision (supervised direct payment); or (3) disagree with the incompetency determination and remit the case to the rating activity with evidence that supports this opinion. For cases in which the fiduciary hub disagrees with the incompetency rating, the appointment of the fiduciary is confirmed, and the fiduciary receives VA benefits on behalf of the beneficiary while the rating activity again considers the issue of competency (Flohr and Lewis, 2015; VA, 2015c).
Under the supervised direct payment option, “benefits payable to a veteran rated incompetent may be paid directly to the veteran in such
30 38 CFR 3.103.
31 A due process notice is not required if the beneficiary is determined to be incompetent by a court of competent jurisdiction.
32 The VA fiduciary operations are consolidated into six regional “hubs,” which provide oversight of the VA’s fiduciary program.
amount as the Veterans Service Center Manager determines the veteran is able to manage with continuing supervision by the Veterans Service Center Manager, provided a fiduciary is not otherwise required.”33 This option provides the beneficiary with greater autonomy in managing his or her benefits, and allows for an assessment of the beneficiary’s performance
33 38 CFR 13.56.
administrative specialist (GS-12)34 handles issues relating to competency. A customer specialist handles routine issues, such as cases for which there is a court order establishing that a representative payee is needed. For less clear-cut cases, a legal administrative specialist seeks out and assesses the necessary medical and lay evidence to make a decision concerning competency. A physician under contract to OPM also is available to legal administrative specialists if questions about the medical condition arise. Legal administrative specialists must complete 1 year of formal training with a concentration in medical conditions and terminology; additional training is provided on process flow and preparation of letters (Spear, 2015).
The process for establishing incompetency and assigning a representative payee can take anywhere from 30 to 90 days, depending on complicating factors or the need for additional inquiry or investigation. Upon determination of incompetency, OPM notifies the annuitant or the survivor annuitant that a representative payee has been designated (Spear, 2015).
If it meets the requirements outlined above, the Certificate of Incapability will serve as acceptable evidence of a beneficiary’s incapability. The certificate is then reviewed by a Service Canada benefits officer, answers to the questions and any commentary are assessed, and the signatory is verified, at which point a trustee is generally appointed. In rare situations, however, the case may be referred to CPP medical professionals for additional assessment (Kidd, 2015).
With the exception of Service Canada, all of the programs examined have official appeals processes, with SSA’s process being the most in-depth, allowing for multiple levels of appeal. An SSA incapability determination may first be appealed through an informal protest or a formal request for reconsideration. To be considered a formal request, the appeal must be in writing, made by the beneficiary or a person who can act for the beneficiary, and in response to an initial determination. The beneficiary has 60 days to request an appeal. If a protest or request for reconsideration is received
34 The majority of federal government employee positions are graded on the General Schedule (GS), from GS-1 to GS-15, which is the highest attainable level. Most entry-level positions are between GS-5 and GS-7, and mid-level positions range from GS-8 to GS-12. GS-4 specialists require 1 year of general experience and at least 2 years of credits after high school. GS-5 specialists require at least 1 year of specialized experience equivalent to GS-4. Four years of credits after high school is required to attain the GS-5 level. Any GS level higher than 5 requires specialized experience of at least the grade level below.
before the payee has been appointed (generally within 10 days of the beneficiary’s receipt of the notification), the appointment will not take effect until the appeal has been resolved; if a case cannot be resolved immediately, direct payment will be made to the beneficiary, if possible, until the case is resolved (SSA, 2012c). If the determination is protested after the 10-day period, payment to the representative payee will begin.
When an incapability determination is appealed, the decision is first reviewed by a claims representative who was not involved in the original decision. Any new information provided by the beneficiary, or someone acting on his or her behalf, is reviewed along with the existing evidence. A face-to-face interview with the beneficiary may be requested to resolve any problems. If the beneficiary is deemed capable, direct payment begins immediately. If the selection of the representative payee was appealed and a new payee is selected, the beneficiary is given advance notice of the revised selection and allowed time to appeal it (SSA, 2012c). If the initial determination is upheld in reconsideration, the beneficiary may accept the decision or exercise his or her right to an appeal before an administrative law judge (SSA, 2006). Data from SSA on the number of beneficiaries who appeal a capability determination were unavailable to the committee.
As with SSA, a VA beneficiary has 60 days to respond in writing to the notice of a proposed rating of incompetency if he or she chooses to appeal the rating.35,36 If additional evidence or a hearing request is received, the RSVR at the rating office that is collocated with the fiduciary hub has jurisdiction to make the final determination (VA, 2015a). The RSVR conducts all requested hearings, reviews all additional medical evidence submitted, and renders the final decision regarding competency.
OPM provides its beneficiaries the opportunity to appeal within 10 days of the decision, during which time the beneficiary may provide additional evidence for review by the contract doctor. If the beneficiary is still found incompetent, he or she may further appeal to the Merit Systems Protection Board.
Unlike SSA, the VA, and OPM, Service Canada has no formal appeals process for individuals who are deemed incapable, as “any decision by the Department regarding an appointment of a trustee for the purposes of administering CPP and/or OAS benefits is made under the Minister’s discretion and is therefore not appealable” (Service Canada, 2015b, p. 13).
No private insurers identified a formal appeals process.
35 38 CFR 3.102.
36 A due process notice is not required if the beneficiary is determined to be incompetent by a court of competent jurisdiction.
None of the programs examined have a formal process for ongoing review of all beneficiaries (regardless of whether the beneficiary was initially found capable or incapable). However, each program defines specific instances that may warrant considering such a review.
For SSA, the issue of capability may be reevaluated whenever there is some indication or evidence that an incapable beneficiary has become capable or a previously capable beneficiary now may be incapable. Claims representatives are instructed to “consider reviewing” capability in such cases by “examining the indicators in a case and deciding whether full development is needed” (SSA, 2015e). Specific situations that require such a review include continuing disability reviews (CDRs),37 SSI redeterminations, discovery that an incapable beneficiary manages any other benefits, beneficiary appeal, or any other contact with the beneficiary that raises the question of his or her capability (SSA, 2015e). It is not known how many beneficiaries with representative payees are determined to need a payee at the time of the initial determination versus some later time, as SSA does not collect data that differentiate new appointments from change-of-payee actions.38
The VA has a process for reviewing beneficiaries who have previously been rated incompetent. The VA field examiners contact incompetent beneficiaries every 1 to 3 years to review both their incompetence ratings and their fiduciaries’ performance (Flohr and Lewis, 2015). The majority of these contacts occur through face-to-face visits with the beneficiary, but contact may take place by telephone or letter when a beneficiary is in a protected environment licensed by a state or local government and the beneficiary’s benefit is below a prescribed threshold. Additionally, a beneficiary’s competency can be reviewed any time new medical evidence is received. This may include evidence from a hospital summary, a report of release to or discharge from nonresidential care, or a report of some other material change in condition. Any such evidence that may call the previous rating into question is referred to the rating activity for review. The rating activity then considers this new evidence along with all other evidence to determine the beneficiary’s current competency status.39
37 By law, SSA is required to conduct a periodic medical CDR to determine whether an individual receiving disability benefits remains eligible to receive benefits. The prescribed interval between CDRs is 6-18 months when improvement is expected, up to 3 years when improvement is possible, and 5-7 years when improvement is not expected. Although in principle CDRs would provide a regular opportunity to review the beneficiary’s capability status, as of the end of fiscal year 2013, there was a backlog of 1.3 million medical CDRs.
38 Personal communication, M. Rochowiak, Office of Disability Policy, SSA, October 14, 2015.
39 38 CFR 3.353(b)(3).
OPM administers a representative payee survey every 2 years to ensure that federal retirement benefits are being expended for the benefit of the annuitant. One question—“Did you turn over any of the annuity benefits to another person during the survey period?”—may provide information about whether any of the annuity was given to the beneficiary so he or she could decide how to use the money (as noted in the OPM instructions for this question). This information may trigger further inquiry, which in turn may lead to reevaluation of the competency decision.
Service Canada allows for review of cases in certain situations. Professionals filling out the Certificate of Incapability are asked whether improvement is expected, and Service Canada staff, upon initial appointment of a trustee, “must establish whether the case should be reviewed at a later date in order to determine if the condition of the beneficiary has improved to the extent that the trusteeship should be terminated” (Service Canada, 2015b, p. 20). Cases may also be reviewed when a beneficiary informs Service Canada that he or she has regained capability; in such cases, Service Canada will require the trustee to provide a new Certificate of Incapability to substantiate or refute the claim. The trustee may also notify Service Canada if the beneficiary regains capability, in which case payments will be made directly to the beneficiary.
Although no private insurers provided information regarding their process for review of cases to identify changes in competency, information provided by AHIP indicated that such review is required periodically.
The committee identified a number of points for comparison of the programs reviewed in this chapter, including the overall size of the program, the number of beneficiaries deemed incapable (or comparable determination), potential triggers for capability assessment, types of evidence considered, instructions to informants, appeals processes, and review processes. SSA’s programs, both overall and with respect to the number of beneficiaries determined incapable, are significantly larger than all of the other programs examined by the committee.
Among the programs reviewed, SSA guidance provides the most in-depth information on potential triggers that call capability into question. However, a unique aspect of the OPM program in this regard is its use of computerized matching; although such matching is primarily for analysis of benefit disbursement from other programs that may impact OPM benefits, it may also provide information that brings capability into question.
All of the programs reviewed rely on some combination of legal, medical, and lay evidence, although the primary evidence relied upon for determining capability differs among organizations. SSA, OPM, and Service
Canada all conform to judicial findings of incompetence in some respect, while the VA considers such orders as nonbinding legal evidence to be considered along with all other evidence (however, the VA does consider a finding of legal incompetence to be a trigger for further examination of capability). The VA requires medical evidence; SSA requires lay evidence; OPM requires both medical and lay evidence (i.e., a statement from a treating physician and two affidavits from persons familiar with the beneficiary); and except in rare cases, Service Canada requires evidence from a medical professional via the Certificate of Incapability, which requests information both of a medical nature and on financial competence and performance. Instructions to informants on the information required to make a capability determination vary widely among programs. OPM provides both medical and lay evidence sources with robust guidance on the information needed to make a decision on capability via Information Necessary for a Competency Determination (see Appendix C). Service Canada also asks specific questions of medical (or in rare cases nonmedical) professionals regarding capability. SSA operating instructions provide an extensive list of recommended questions for field office staff conducting face-to-face interviews, but no such information is provided to medical professionals or persons providing lay evidence of capability. It is unclear whether the VA provides any formal guidance to potential informants.
Although SSA recognizes that face-to-face interviews are the best means of collecting lay evidence, decisions can be, and often are, made without direct interaction with the beneficiary. In contrast, the VA, with limited exceptions, meets face-to-face with every beneficiary who has been rated incompetent.
The VA provides two options for beneficiaries rated incompetent: appointment of a fiduciary and supervised direct pay. Supervised direct pay allows payment of benefits directly to certain high-functioning beneficiaries who have been rated incompetent. The option of supervised direct payment provides the beneficiary with greater autonomy in managing his or her benefits, and allows for an assessment of the beneficiary’s performance within the first year and reassessment of the incompetency rating based on this information.
With the exception of Service Canada, all of the programs examined have official appeals processes, with SSA’s process being the most in-depth, allowing for multiple levels of appeal. None of the programs examined have a formal process for ongoing review of all beneficiaries (regardless of whether the beneficiary was initially found capable or incapable); however, each program defines specific instances that may warrant considering such a review. The VA has a process for reviewing beneficiaries who have previously been rated incompetent. SSA may consider reviewing capability based on information obtained from a CDR, SSI redetermination, or beneficiary
appeal; any other contact with the beneficiary that raises the question of his or her capability; or discovery that an incapable beneficiary manages any other benefits.
AHIP (America’s Health Insurance Plans). 2015. Overview of private disability income protection insurer capability determination processes. Washington, DC: AHIP.
Flohr, B., and C. Lewis. 2015. Veterans Benefits Administration incompetency determinations. Presentation to the Committee to Evaluate the Social Security Administration’s Capability Determination Process for Adult Beneficiaries, April 21, Washington, DC.
Kidd, M. A. 2015. Canada Pension Plan and Old Age Security Program. Presentation to the Committee to Evaluate the Social Security Administration’s Capability Determination Process for Adult Beneficiaries, October 9, Washington, DC.
OPM (U.S. Office of Personnel Management). 2013. Information necessary for a competency determination. Document RI 30-3. OMB Form number 3206-0140. Washington, DC: OPM.
OPM. n.d. Representative payees. https://www.opm.gov/retirement-services/my-annuity-andbenefits/representative-payees (accessed January 21, 2016).
Payne, D. 2015. Description of the Disability Determination Services’ role in the capability determination process. Presentation to the Committee to Evaluate the Social Security Administration’s Capability Determination Process for Adult Beneficiaries, February 3, Washington, DC.
Service Canada. 2015a. Certificate of incapability. Form SC ISP-3505. http://www.servicecanada.gc.ca/eforms/forms/sc-isp-3505(2015-07-03)e_cpp.pdf (accessed January 29, 2016).
Service Canada. 2015b. Third party administration (functional guidance). Ottawa, ON: Service Canada.
Spear, Q. 2015. OPM retirement program: Process for evaluating financial capability. Presentation to the Committee to Evaluate the Social Security Administration’s Capability Determination Process for Adult Beneficiaries, June 24, Washington, DC.
SSA (U.S. Social Security Administration). 2003. GN 00502.010 Capability determination—overview. https://secure.ssa.gov/poms.nsf/lnx/0200502010 (accessed December 15, 2015).
SSA. 2006. NL 00703.215 Notice affirming selection of representative payee on reconsideration. https://secure.ssa.gov/apps10/poms.nsf/lnx/0900703215 (accessed December 15, 2015).
SSA. 2011a. GN 00502.030 Lay evidence of capability. https://secure.ssa.gov/apps10/poms.nsf/lnx/0200502030 (accessed December 15, 2015).
SSA. 2011b. GN 00502.050 Developing evidence of capability. https://secure.ssa.gov/poms.nsf/lnx/0200502050#a (accessed December 15, 2015).
SSA. 2011c. GN 00503.110 Appeal rights. https://secure.ssa.gov/apps10/poms.nsf/lnx/0200503110 (accessed December 15, 2015).
SSA. 2012a. GN 00502.025 Medical evidence of capability. https://secure.ssa.gov/apps10/poms.nsf/lnx/0200502025 (accessed December 15, 2015).
SSA. 2012b. GN 00502.060 Making a capability determination. https://secure.ssa.gov/poms.nsf/lnx/0200502060 (accessed January 28, 2016).
SSA. 2012c. GN 00503.120 Response received to advance notice. https://secure.ssa.gov/apps10/poms.nsf/lnx/0200503120 (accessed December 15, 2015).
SSA. 2014a. DI 23001.015 Disability Determination Services (DDS) procedures for documenting capability. https://secure.ssa.gov/apps10/poms.nsf/lnx/0423001015 (accessed December 15, 2015).
SSA. 2014b. GN 00502.005 Direct payment prohibitions. https://secure.ssa.gov/apps10/poms.nsf/lnx/0200502005 (accessed December 15, 2015).
SSA. 2015a. Annual statistical supplement. https://www.socialsecurity.gov/policy/docs/statcomps/supplement/2015/index.html (accessed February 8, 2016).
SSA. 2015b. DI 23001.001 Disability Determination Services (DDS) capability opinion. https://secure.ssa.gov/apps10/poms.nsf/lnx/0423001001 (accessed December 15, 2015).
SSA. 2015c. DI 23001.005 Disability Determination Services (DDS) procedures for determining capability. https://secure.ssa.gov/apps10/poms.nsf/lnx/0423001005 (accessed December 15, 2015).
SSA. 2015d. Fast facts and figures about Social Security, 2015. https://www.socialsecurity.gov/policy/docs/chartbooks/fast_facts/2015/fast_facts15.pdf (accessed January 24, 2016).
SSA. 2015e. GN 00502.020 Determining capability—adult beneficiaries. https://secure.ssa.gov/poms.nsf/lnx/0200502020 (accessed December 15, 2015).
SSA. 2015f. GN 00502.300 Digest of state guardianship laws. https://secure.ssa.gov/poms.nsf/lnx/0200502300 (accessed January 23, 2016).
VA (U.S. Department of Veterans Affairs). 2015a. Evaluating competency. In Compensation and pension manual: Part 3. Washington, DC: VA. http://www.benefits.va.gov/WARMS/docs/admin21/m21_1/mr/part3/subptiv/ch08/M21-1III_iv_8_SecA.docx (accessed December 15, 2015).
VA. 2015b. General information on the rating activity. In Compensation and pension manual: Part 3. Washington, DC: VA. http://www.benefits.va.gov/WARMS/docs/admin21/m21_1/mr/part3/subptiv/ch01/M21-1_III_iv_1.doc (accessed December 15, 2015).
VA. 2015c. Processing awards to incompetent beneficiaries. In Compensation and pension manual: Part 3. Washington, DC: VA. http://www.benefits.va.gov/WARMS/docs/admin21/m21_1/mr/part3/subptv/ch09/M21-1III_v_9_SecB.docx (accessed December 15, 2015).
|Social Security Administration||U.S. Department of Veterans Affairs||Office of Personnel Management||Service Canada|
68 million beneficiaries
Old Age, Survivor and Disability Insurance (OASDI): 59 million
Supplemental Security Income (SSI): 8.3 million
4.25 million beneficiaries
Disability: 3.95 million
2.5 million annuitants and survivor annuitants
|Beneficiaries with Representative Payee||8.7 million OASDI: 5.6 million SSI: 3.2 million||177,000||16,000||N/A|
|Presumption of Capability||Yes||Yes||Yes||Yes|
|Potential Triggers for Questioning Capability||
Beneficiary has difficulty
Beneficiary has mental or physical impairment resulting in
100 percent disability rating for a mental condition
Finding of legal incompetence by a court
Correspondence from someone familiar with beneficiary suggesting inability to manage affairs
Information received in response to surveys of annuitants
Information arising from further inquiry into nonresponse to survey, or survey returned as undeliverable
Computerized matching with other benefit programs
Contact from person familiar with beneficiary, such as a family member, friend, or neighbor
|Social Security Administration||U.S. Department of Veterans Affairs||Office of Personnel Management||Service Canada|
|Types of Evidence Considered||
Legal (follows court order when beneficiaries declared legally incompetent)
Lay (required if no legal finding of incompetence)
Legal (considered as evidence but nonbinding)
Legal (follows court order when guardian, conservator, or fiduciary appointed for beneficiary by court)
Medical (requires statement from treating physician)
Lay (requires two affidavits from persons familiar with beneficiary)
Legal (legal arrangements, such as an enduring power of attorney, public trustee, court-appointed committee or guardian, are binding)
Combination of medical and lay (Certificate of Incapability form must be filled out by a medical professional—other professional permitted in rare circumstances; queries for information on medical diagnosis, as well as on financial competence and performance)
Appeals can be made within 60 days
Appeals through informal protest or formal (in writing) request for reconsideration
Review of new and existing evidence by claims representative not involved in original decision; face-to-face interview may be requested to resolve any problems
If initial determination is upheld, beneficiary may request appeal before an administrative law judge
Appeals, in writing, can be made within 60 days
Rating Veterans Service Representative (RVSR) at ratings office collocated with fiduciary hub conducts requested hearings, reviews original and additional evidence, and renders final decision
Appeals can be made within 10 days of decision
Beneficiaries may provide additional evidence for review by contract doctor
No formal appeals process for individuals who are deemed incapable, as “any decision by the Department regarding an appointment of a trustee for the purposes of administering CPP [Canada Pension Plan] and/or OAS [Old Age Security] benefits is made under the Minister’s discretion and is therefore not appealable”
|Social Security Administration||U.S. Department of Veterans Affairs||Office of Personnel Management||Service Canada|
No formal process for ongoing review
May be reevaluated whenever there is indication or evidence that incapable beneficiary has become capable or capable beneficiary has become incapable
Staff must “consider reviewing”a capability in specific situations:
The VA field examiners contact incompetent beneficiaries every 1 to 3 years to review both their incompetence ratings and their fiduciaries’ performance
Competency may also be reviewed any time new medical evidence is received; may include evidence from
Upon receipt of evidence, Veterans Service Representative (VSR) refers claims folder for RVSR review
Not specifically for reevaluation of competency
Representative payee survey administered every 2 years to ensure benefits expended in best interest of beneficiary; unclear whether information from this survey may trigger reevaluation of competency
Upon initial appointment of trustee, staff “must establish whether the case should be reviewed at a later date in order to determine if the condition of the beneficiary has improved to the extent that the trusteeship should be terminated”b
When beneficiary informs department that he or she has regained capability
When trustee notifies department beneficiary has regained capacity
|Instructions to Informants||
No formal instructions
Suggested questions provided to field office staff for collecting lay evidence, but not provided to informants
|No formal instructions||
Provides Information Necessary for a Competency Determination (see Appendix C) to physicians and persons providing lay evidence
Provides Certificate of Incapability (see Appendix C)
|Unique Aspects and Features||Supervised direct pay||
Uses computerized matching with other benefits-paying organizations, including SSA and the U.S. Department of Labor, to analyze benefit disbursement to federal employees that may impact OPM benefits; may provide information that brings capability into question