Social Security's Occupational Information Development Advisory Panel (OIDAP) has posted a couple of key documents, What is a Content Model, June 2009 and Social Security Administration’s Legal, Program, and Technical/Data Occupational Information Requirements, June 2009, which give more information about the agency's plans for developing an alternative to the Dictionary of Occupational Titles (DOT) for use in determining disability. Here are some excerpts from the "Requirements" document (emphasis added):
It also seems that Social Security staff expects and probably desires to use the proposed Occupational Information System to deny even more disability claims filed by those with low cognitive abilities. My opinion is that Social Security has already gone way too far in denying the claims of individuals of low cognitive abilities. Any further extension of this policy would be unwise and unfair. To be more blunt, Martin Gerry got fired. Why would anyone want to go even further with a bad idea he was promoting?
How can we address accommodations and job restructuring? In short, what (if any) information should SSA include in its database describing work regarding general accommodations that may be available within and among occupations or industries for specific occupations? For example, what are the “core” activities of occupations? Are workers offered options regarding how they perform the core tasks, such as a sit/stand option? ...It seems that Social Security staff involved in producing these documents either do not know or do not care that their agency has a longstanding position that it is inappropriate to consider accommodations that employers might offer to handicapped workers, that work may be considered available to a claimant only if the claimant is able to perform the job as it is normally performed. Americans with Disabilities Act accommodations are supposed to be off the table. Any change in this policy would have dramatically adverse implications for Social Security disability claimants. An expansive application of such a policy would make it possible to deny any claimant who did not meet a Listing. The words "accommodation" and "job restructuring" are red flags. I find their use to be disturbing.
[W]e should consider identifying potential opportunities for accommodations and job restructuring for occupational core tasks, particularly when both of the following apply: a) the type of accommodation or job restructuring is possible in a significant number of occupations nationally (e.g., for occupations within a given industry); and b) the type of accommodation or job restructuring is possible for the occupation as it is generally performed throughout the nation. That is, we do not intend for the OIS [Occupational Information System] to include highly customized accommodations or job restructuring that are specific to a given employer, to a specific individual, a specific impairment, or to tasks that are not occupational core tasks. ...
[I]f SSA includes, for example, specifications in its new OIS regarding the levels of various cognitive abilities that are required for each occupation, who will bear the burden of defending the validity of such specifications when (not if) they produce adverse impact with respect to approving disability claims? Arguably, if SSA is the entity that develops the OIS database, and performs the data collection and analytical steps involved in producing the specifications of how much of each non-physical trait each occupation requires, SSA would be the entity who must defend their validity.
It also seems that Social Security staff expects and probably desires to use the proposed Occupational Information System to deny even more disability claims filed by those with low cognitive abilities. My opinion is that Social Security has already gone way too far in denying the claims of individuals of low cognitive abilities. Any further extension of this policy would be unwise and unfair. To be more blunt, Martin Gerry got fired. Why would anyone want to go even further with a bad idea he was promoting?
5 comments:
This is a very very worrisome thing. In effect, it could change the existing statutory, regulatory, and case law definitions of disability for people in a number of categories and the result would be for the worse. Those with low cognitive capabilities would certainly be at a disadvantage if all SSA had to find was that the claimant could work with reasonable accommodation. I can think of other groups too, such as older workers or workers with chronic back and pain disorders would fare poorly if all SSA had to say was, "Well, you could work if your employer would accomodate you." Right.
The ADA envisions flexible employment practices in which employers would offer employees althernate work methods, schedules, assistants and so forth to permit cognitively impaired or mentally ill people to work. As a practical matter, most employers will not offer accomodation of any kind and don't hire such applicants to begin with or fire them when they can no longer do the job as the employer defines it. The ADA depends on voluntary compliance and is ineffective in my experience as a means to assisting disabled individuals to work.
Which is why we have the DIB provisions to begin with. It seems odd that advocates for disabled people come to SSA for a means to achieve their ends. SSA is the court of last resort for people who cannot work at all in any job. It is not a vocational habilitation or rehabilitation agency. Not designed for that.
So here's SSA, on its own I suspect, changing the law without consulting Congress, and I suspect without consulting the new administration. Well, here we go again, back to the federal courts where we will again spend years defending and then correcting indefensible practices. IMHO.
You are obviously missing the irony here. Advocates for the disabled are always pushing for "reasonable accomodation" through such things as the ADA and other workplace rules, based on their own stated dogma that the disabled would be able to work if only given a fair chance. So, someone proposes that folks might not be unable to work("disabled") if provided such reasonable accomodation, and suddenly THAT'S not fair. Big LOL.
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I strongly disagree with the advocates. They have every right to seek a forum for their cause. But, their insistence that the most disabled people need the greatest share of the small rehab budget makes it hard for less incapacited workers. These people with less expense and effort, could be retrained to reenter the workplace. I think their emphasis is greatly misplaced in that regard.
I don't think that everyone can or should work. I, for one, reject the notion that I should unretire and nip out back there. Fuhgeddaboudit! The number of older workers with chronic medical conditions in our workforce is appalling. Americans have an unhealthy fixation on work in general and refuse to believe it is not the cure for every social ill. The Senator Grassleys of the world should come up with a better approach to health care than "get a government job." And, as well-intentioned as disability advocates are, I think they should reconsider the rational for their activities.
As Charles T. points out, the impact of this excursion into reasonable accomodation as part of the DIB decesion process could result in a disastrous increase in disallowances. No way this is good for the claimants, let alone SSA, already drowning in a sea of appeals. It would be good to know if SSA has coordinated its actions with the WH. I sincerely hope not, because otherwise we're in for a rough ride.
Anonymous, there is nothing inconsistent with saying that the Social Security program needs to keep the ADA and its benefit program rules separate. Accommodations are meant to be individualized to the worker, so that it would be completely unfair for SSA to create some policy of denials based on some theoretical accommodation applied to a class of people with certain disabilities.
For a truly Kafka-esque take on mental retardation & the ADA, see the case of Littleton v. Wal-Mart, in which the 11th circuit said that a worker with mental retardation was not "substantially limited" in life activities and therefore not disabled under the ADA, discussed at this blog post:
http://disabilitylaw.blogspot.com/2007/05/eleventh-circuit-mental-retardation-is.html
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