II-5-3-4.The Definition of the Term “Services” for Purposes of the Trial Work Period (TWP) Provisions of the Social Security Act (the Act)

Appeals Council Interpretation
SUBJECT : The Definition of the Term “Services” for Purposes of the Trial Work Period (TWP) Provisions of the Social Security Act (the Act)
ISSUE : May work done for remuneration as part of a training or therapy program, i.e., “transitional employment,” be excluded from trial work period “services.”
     
DISCUSSION : The Act states that under the TWP provisions “the term 'services' means activity which is performed for remuneration or gain or is . . . normally performed for remuneration or gain.” Social Security Act 222(c)(2), 42 U.S.C. 422(c)(2) (1988). Social Security regulations provide that “services means any activity . . . which is done by a person in employment or self-employment for pay or profit, or is the kind normally done for pay or profit.” 20 CFR 404.1592(b) (1994). The regulations further provide that work will be considered to be “services” if earnings exceed a specified monthly amount. Id. Finally, the regulations state that “[the Social Security Administration] generally do[es] not consider work to be services when it is done without remuneration or merely as therapy or training.” Id.
     
    The Council considered whether the last sentence of 20 CFR 404.1592(b) means that activity which is performed as therapy or training will not be considered “services” during a TWP, even when the individual receives remuneration for that activity. The Council also considered whether that language merely provides examples of the kinds of activity which, when performed without remuneration or gain, is ordinarily excluded from “services,” because it is not the type of activity for which individuals normally receive remuneration or gain.
     
    The Appeals Council is persuaded that the latter interpretation is consistent with the language in the Act. The statute explicitly requires that activity performed for remuneration or gain (e.g., wages) must be considered “services” for TWP purposes. Social Security Act 222(c)(2), 42 U.S.C. 422(c)(2) (1988). The determination by the Secretary as to whether particular activity is the kind of work for which individuals normally receive remuneration or gain applies only in those cases in which the individual performs activity without remuneration or gain. Thus, to comport with the statute, work activity cannot be considered as being performed “merely” as therapy or training if, in fact, an individual received remuneration for that activity.
     
INTERPRETATION : Transitional employment for which a person receives remuneration exceeding the monthly amount specified in 20 CFR 404.1592(b) constitutes “services” for purposes of applying the TWP provisions of the Act.
     
APPLICATION : The Appeals Council will apply this interpretation in all cases that come before it involving the same issue.
     
EFFECTIVE DATE : July 20, 1993
CROSS-REFERENCE : Social Security Act 222(c)(2), 42 U.S.C. 422(c)(2) (1988); 20 CFR 404.1592(b); SSR 84-24 (C.E. 1984) 87, and SSR 69-46 (C.E. 1966-1970) 467-69.