N.Y. Comp. Codes R. & Regs. Tit. 18 §§ 360-5.9

Current through Register Vol. 46, No. 45, November 2, 2024

Section 360-5.9 - Trial work period

Persons determined to be disabled may be entitled to a trial work period during which they retain their disability status.

(a) Definition of services. For the purposes of this section, the term services means activity in employment or self-employment which is performed for remuneration or gain or is determined to be a type normally performed for remuneration or gain. Inasmuch as the trial work provision is intended to give a disabled beneficiary the opportunity to test his/her ability to work and hold a job, minor work activity may generally be disregarded. Therefore, work activity in employment in a month will constitute services only if it is actually or usually performed for remuneration or gain amounting to more than $50, either in cash or in-kind. Work activity in self-employment will be determined to be services only where net earnings in a calendar month are more than $50 for a month or the self-employed person spends more than 15 hours in that month in the work activity. In some self-employed cases, it may not be possible to isolate from the total net earnings the net earnings for each particular month of self-employment. When this occurs, divide the net earnings for the particular work period by the months of self-employment to find net earnings per month. Cases where remuneration for employment is in the form of commissions should be handled in a similar manner.

(b) Activity which does not constitute services for purpose of charging trial work period months. Activity performed by a beneficiary for which payment in excess of $50 a month is made does not constitute services if the activity, although resembling services in employment for remuneration or gain, is:

(1) part of a prescribed program of medical therapy;

(2) carried out in a hospital under the supervision of medical and administrative staff;

(3) not performed in an employer-employee relationship; or

(4) not normally performed for remuneration or gain.

(c) An individual who is still medically severely impaired may render services in as many as nine calendar months (not necessarily consecutive) during which his/her work, regardless of the magnitude, will not be the sole consideration in determining whether disability has ceased. After nine months of services, if the individual's medical condition has not improved, this work will be considered in determining whether he/she has demonstrated an ability to engage in substantial gainful activity as defined in section 360-5.2 of this Subpart. After the end of the trial work period, any work (including the services rendered during any of the nine months) may be considered in determining whether he/she is able to engage in substantial gainful activity in any month thereafter.

(d) Investigation before end of the trial work period. If the medical evidence upon which the initial disability determination is based indicates some likelihood of recovery from the impairment, a return to work before the month the certificate expires will be considered as a possible indication of medical recovery. If it cannot reasonably be determined from the medical evidence in the file and from an interview whether the client is still disabled, the agency should secure additional medical evidence. If the evidence reveals the individual has recovered from his/her impairment, disability status will cease in the month established by current medical evidence. If the medical evidence obtained reveals the individual is still disabled, an approval will be prepared and his/her case will not be investigated again until after his/her trial period or when a subsequent medical reexamination (group II) becomes due or when affirmative evidence of medical recovery is received, whichever date is earliest. Affirmative evidence of medical recovery may include a report from a physician, hospital, clinic, etc., indicating recovery.

(e) Investigation after end of trial work period. Most disability clients have impairments which, by their nature, are either static or progressive. Since medical recovery is not expected, a return to work under these circumstances is not considered an indication of the possibility of medical recovery. An investigation in this type of case will not be started until the individual has worked in at least nine months of or affirmative action of medical recovery is received before nine months of services have been rendered.

N.Y. Comp. Codes R. & Regs. Tit. 18 §§ 360-5.9