ADA Didn't Help Disabled People Work

     I'm repeating some old posts during this slow time of the year for Social Security news. Here's one from July:

   From TPM Cafe:

Twenty-five years ago this past Sunday, the Americans with Disabilities Act (ADA) was signed into law. Today, people with disabilities are less likely to be employed than they were before the law was enacted. Workers with disabilities earn, on average, about $14,000 less than similar workers without disabilities. About one in every three disabled Americans lives in poverty.

Read This If You Think That The ADA Means That More Disabled People Can Work

     From TPM Cafe:

Twenty-five years ago this past Sunday, the Americans with Disabilities Act (ADA) was signed into law. Today, people with disabilities are less likely to be employed than they were before the law was enacted. Workers with disabilities earn, on average, about $14,000 less than similar workers without disabilities. About one in every three disabled Americans lives in poverty.

SSAB Forum

     The Social Security Advisory Board (SSAB) has scheduled a "Forum" for March 8 on "Social Security Disability: Time For Reform." There is some diversity of viewpoint among those scheduled to speak but there's a definite tilt to the program. Here are some of the points of view represented with the names of the speakers representing these points of view in parentheses:

• Something must be done because a lot more people are drawing Social Security disability benefits now. This is because it's less difficult to get on these disability benefits than when Ronald Reagan was President. (Duggan, Daly, Autor)
• Too many people draw Social Security disability benefits because the benefits are too generous.(Duggan, Autor)
• The Americans with Disabilities Act (ADA) makes it easier for disabled people to work and that should make it less difficult for people to get off Social Security disability benefits. (Claypool, Imparato, Blanck)
• Social Security is the reason why more disabled people aren't working. (Maestas, Smith, McDonald, Autor, Stapleton)
• If Social Security gave disabled people more encouragement and assistment, they'd go back to work. (Smith, Davey, McDonald, Mazerski, Autor, Stapleton, Smalligan)

     I'm sure that I'm oversimplifying the views of these people. I'm also sure that each of them in their own way wants to help disabled people. (I will say that David Autor is really full of it and has no business speaking publicly about these issues. He simply doesn't know what he's talking about.) 

     I think it's appropriate to give a shorthand response to each of these expressed views, the sort of responses that are unlikely to be expressed at the SSAB "Forum."

• It certainly is less difficult for people to get on Social Security disability benefits than when Ronald Reagan was President. However, you have to understand that Social Security disability during the Reagan Administration was an aberration. It was less difficult to get on those benefits before the Reagan Administration and it quickly became less difficult to obtain those benefits as the Reagan Administration wore on and the return to prior practices was even more pronounced after Reagan left office. This was because the changes made during the early part of the Reagan Administration evoked a vigorous political response. The Reagan changes were quickly rolled back. Even though there have been plenty of changes since Reagan left office, it has remained less difficult to get the benefits. Anyone who advocates a return to Reagan era policies is naive. Those policies would evoke the same reaction in 2013 as they did in 1983. The Reagan days were as far from a golden age for Social Security disability policy as you can get.
• Disability benefits too high? Really? Generally, Social Security disability benefits are less than half what recipients were earning. They're far less in most cases than disability benefits under employer based long term disability plans. 
• The ADA makes it easier for disabled people to work? The evidence is that the ADA had little effect on the number of disabled people who are employed. In fact, some scholars have argued that the ADA reduced the employment of the disabled!
• I don't see how one can argue that the availability of Social Security disability benefits discourages people from working when we have clear evidence that only 27% of those who apply for and are denied Social Security disability benefits are working four years later. Being denied benefits isn't enough to get these people back to work even though those who are denied are, on the whole, less disabled than those drawing disability benefits. The evidence is unambiguous that very few of those drawing Social Security disability benefits will return to work even if they are removed from benefits.
• The illusion that with a little more encouragement disabled people will fly off the disability rolls and back to work has been persistent for decades. This illusion has led to the following work incentives: Trial Work Period, Extended Period of Eligibility, Expedited Reinstatement, Ticket to Work and the Vocational Rehabilitation exception, just to mention the Title II provisions. There's another complicated mess of Title XVI work incentives. None of this is working to any significant extent. If none of this works, why would anyone expect a new work incentive to work? I can think of one good reason why some of the speakers would promote work incentives. Some of them work for Ticket to Work contractors. Not only do they want to keep the contracts their employers have, even though they're a waste of money; they want to get more contracts. Ticket to Work is an unjustifiable waste of money. Any attempt to go further down the rehabilitation road will just waste more money.

Are You Sure You Want To Incorporate The ADA Into Social Security Disability Determination?

     Not long after the passage of the Americans with Disabilities Act (ADA), the Social Security Administration decided that it would not try to incorporate the ADA requirement that employers afford reasonable accommodation to those with disabilities into Social Security disability determination. We now hear rumblings that this was the wrong decision and that Congress should force the agency to acknowledge that with the "reasonable accommodation" provided for in the ADA that many more disabled people can now work and should not be drawing disability benefits from Social Security.
     There a couple of simple responses to this idea. One is that employer attitudes towards the disabled have always been irrelevant in determining disability under the Social Security Act so that passage of the ADA was pretty much irrelevant. The second is that the ADA hasn't wrought any revolution for disabled people. In fact, it's had virtually no impact upon the hiring of disabled people, particularly since it's largely been interpreted out of existence by the courts.

     But let's put those arguments aside and try to game how incorporating the ADA into Social Security disability determination would play out. The terms "disability" and "reasonable accommodation" have been extremely troublesome in interpreting the ADA. Try to incorporate the ADA into Social Security disability determination and you inevitably end up with a lot of federal court litigation to try to define what these terms mean., not in the Social Security Act but in the ADA. On the one hand you would have Social Security insisting that a Social Security disability claimant has a "disability" as that term is defined in the ADA but is not "disabled" as that term is defined in the Social Security Act because of the "reasonable accommodation" afforded by the ADA. On the other hand, you would have the claimant arguing that he or she is "disabled" as that term is defined in the Social Security Act but that he or she does not have a "disability" as that term is defined in the ADA -- and believe it or not, given how the ADA has been interpreted that will often be a strong argument -- or because the accommodation needed so that he or she could return to work would go beyond what is reasonable Holdings in Social Security litigation over the meaning of the ADA would inevitably affect employers but all of this litigation -- thousands, perhaps tens of thousands of cases a year -- would proceed without an employer or the Equal Employment Opportunity Commission (EEOC) being a party. 

      I think that would be madness.
     By the way, it would be impossible for Social Security to go down this road without legislation. Social Security has already told the Supreme Court that its interpretation is that passage of the ADA had no effect on Social Security disability determination. An agency can't change its mind about this sort of thing after making that formal a declaration. Trust me on this. I'm a lawyer.

Is "Option" The New Term For "Accommodation"

Here are a couple of quotes from the report of the Occupational Information Development Advisory Panel (OIDAP):

There are some sedentary jobs where a sit-stand option is available. This identification borders on accommodation. (Physical Demands Subcommittee, page 30 of the PDF of the entire OIDAP Report.)

But a different emphasis later in the report.

We differentiate between accommodations and work options. Accommodations involve retooling of work space or interventions that an employer may provide for an individual worker for any reason, but most typically the accommodation is made to enable an individual with a physical or mental-cognitive impairment to perform a work activity(ies). We agree that the OIS should not include accommodation information as SSA cannot use this data for disability adjudication. However, we think that it would be helpful for SSA if the OIS included data regarding options for performing work activities that are typically found among a number of occupations as they are generally performed throughout the nation. The sit-stand option is a prime example, as is the use of tools such as a nail gun instead of hammer, etc. ... (User Needs and Relations Subcommittee, page 374 of the PDF of the entire OIDAP report.)

As a backdrop, Social Security decided long ago that it could not consider "accommodations" under the Americans with Disabilities Act (ADA) in determining disability. Here, one Subcommittee considers a sit-stand option to be bordering on accommodation, but another Subcommittee thinks that a sit-stand option is just a "prime example" of an "option" that should be considered in determining disability.

The consideration of "options" could easily be a subterfuge to allow the consideration of accommodations or even worse, to allow consideration of the fact that some employers put up with terrible employee performance. If one looks at a wide range of employees, one is going to find that a certain percentage are allowed to:

1. Show up for work at whatever time they please on any given day.
2. Leave work whenever they want if they are feeling poorly.
3. Do poor quality work that the vast majority of employers would find unacceptable.
4. Display productivity that the vast majority of employers would find unacceptable.
5. Regularly behave rudely to co-workers and supervisors.
6. Receive massive assistance from co-workers in completing job tasks.
7. Be assisted in doing work by relatives or friends who are not even employees.

If all of this happens in the world of work -- and any comprehensive survey will show that this and a lot more does happen -- are these accommodations, poor employment practices or "options?" Where does one draw the line? Consideration of this sort of thing could make it almost impossible for anyone to be considered disabled, since Social Security could always say that someone, somewhere is working with all the limitations that a particular claimant may have.

Social Security is going to need a good deal of money to create this "Occupational Information System" (OIS). They may have trouble getting the money if a significant number of "stakeholders" (to use a term that Social Security is using more and more) find it threatening. I quality as a "stakeholder" and I find this threatening. I have talked with a few other stakeholders and they also find this threatening. Social Security ought to stay away from anything like this if it wants to avoid the sort of controversy that might derail this entire project. The new OIS should describe work as it typically exists and avoid trying to find "options" in jobs.

Some History On "Accommodations"

This is from the U.S. Solicitor General's brief to the Supreme Court in Cleveland v. Policy Management Systems Corp:

The Social Security Act requires consideration of a claimant’s ability to do “his previous work.” 42 U.S.C. 423(d)(2)(A). It does not require consideration of his ability to perform his prior job with a possible ADA [Americans with Disabilities Act]-mandated accommodation that the employer, in fact, never provided. See 11 SSA Guidance at 15-401 [which reproduced the "Skoler" memorandum issued by Social Security on this subject in 1993] . Similarly, the Act requires consideration whether a claimant is able to do other work that “exists” in the national economy. 42 U.S.C. 423(d)(2)(A). It does not require consideration whether he could do jobs as they might be modified by reasonable accommodations that the ADA might require but that employers have not actually made.

Once the Solicitor General tells the Supreme Court that the government interprets an Act of Congress in a certain way, the government's hands are tied. The government cannot later change its mind about what the statute means. How come OIDAP is issuing a document that talks about "accommodations" that would allow Social Security disability claimants to work? Do they think that they can reopen this long settled issue?

ADA Accommodations On The Agenda? Retarded People On The Hit List?

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):

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? ...

[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 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.

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?

Does ADA Apply To LTD?

From the Employer Law Report:

The Sixth Circuit weighed in on an issue that has split the federal courts and has joined the Seventh and Ninth Circuits in holding that disabled former employees lack standing to sue under Title I of the Americans with Disabilities Act. McKnight v. Gen. Motors Corp., No. 07-1479 (6th Cir., Dec. 4, 2008). The Court found that three General Motors Corp. retirees lacked standing under the ADA to challenge the reduction of their pension benefits when they started receiving Social Security disability benefits. ...

In contrast, the Second and Third Circuits have held that former employees who are totally disabled can be considered “qualified individuals” with standing to file suit under Title I. Unlike the Sixth, Seventh and Ninth Circuits, the Second and Third Circuits found that Title I is ambiguous with respect to the definition of a “qualified individual with a disability” and therefore concluded that a broader interpretation, including disabled former employees, was consistent with the purposes of the statute.

This issue may be headed to the Supreme Court. I do not think this issue was addressed in the recent ADA Restoration Act.

Congress Passes ADA Restoration Act

The New York Times reports that Congress has passed and sent to the President the Americans with Disability Act (ADA) Restoration Act. The Act explicitly overturns several Supreme Court decisions. The Act says that "Nothing in this Act alters the standards for determining eligibility for benefits under State worker’s compensation laws or under State and Federal disability benefit programs." I remain concerned about the long term effects of the ADARestoration Act upon the Social Security disability programs, particularly when the Social Security Administration finally deals with the obsolesence of the Dictionary of Occupational Titles (DOT). There may be an effect even if all involved deny that there was an effect. There is a fair amount of hypocrisy in the world and even more self-delusion.

Why Do I Remain Afraid?

Section 6 of the ADA Restoration Act just passed in the House of Representatives contains the following language:

(e) Benefits Under State Worker's Compensation Laws- Nothing in this Act alters the standards for determining eligibility for benefits under State worker's compensation laws or under State and Federal disability benefit programs.

I hope that the ADA Restoration Act will not affect the validity of the Dan Skolar letter that remains the basis for Social Security's interpretation that the Americans with Disabilities Act does not affect disability determination under the Social Security Act. As specific as the language quoted above seems to be, I remain fearful. There are lots of well-meaning people out there who have an almost religious belief that EVERY disabled person can work and that full implementation of the Americans with Disabilities Act will allow EVERY disabled person (who is not just lazy) to return to work. If you think I am exaggerating about the disability advocates who believe the EVERY disabled person can work, try digging around in the website of the Ticket to Work and Work Incentives Advisory Panel.

If you are wondering how the ADA Restoration Act with such specific language could possibly affect disability determination at Social Security, remember that the Dictionary of Occupational Titles is kaput. Social Security has to replace it somehow. Whatever is done will fundamentally alter disability determination at Social Security. Social Security's leaders must make fundamental decisions about a future course of action and, no, I do not think that starting the process to contract with some entity to update the Dictionary of Occupational Titles commits Social Security to much of anything. That is merely a starting point, since I am pretty sure that any update to the DOT that is even halfway honest will show that unskilled sedentary jobs have almost disappeared from the economy and that there are far fewer unskilled light jobs than there used to be. It is what you do about that fact that is going to matter a whole lot. In making decisions about what to do about these changes in the economy, Social Security's leaders may be affected by the ADA Restoration Act without saying so or, indeed, without believing that they are affected. This is all very close to the bone.

Watch Out! Amendments To ADA Pass House

From Dow Jones:

The U.S. House moved Wednesday to broaden the definition of a disability under federal laws, passing a bill that would effectively reverse recent Supreme Court decisions on the workplace rights of disabled employees.

The bill, which passed 402-17, would revise the term "disability" to encompass a broader range of physical and mental impairments. Disability rights advocates say 1999 and 2002 U.S. Supreme Court decisions have so curtailed the scope of disabilities protected under the Americans with Disabilities Act, or ADA, as to exclude conditions such as cancer and cerebral palsy.

The bill would state that a disability couldn't be determined by whether " mitigating measures," including medication, prosthetics and assistive technologies, are available. The bill excludes people whose condition is expected to last six months or less.

According to the House Education and Labor Committee, plaintiffs in 2004 lost 97% of ADA employment discrimination claims, "often due to the interpretation of definition of disability."

So why does this matter to those interested in the work of the Social Security Administration? The argument has been made in the past that the ADA dramatically opened the doors for the disabled to return to work and that, therefore, it should be made harder to get on Social Security disability benefits and, if one gets on them, to stay on them. This has not happened so far largely because the ADA has been made a dead letter by the Supreme Court. If the ADA gets some teeth, this argument is likely to come back.

The argument that the ADA should change everything about the Social Security disability programs looks absurd at ground level. By statute, employer attitudes are excluded as a factor in determining disability at Social Security. The vast majority of disability claimants suffer from conditions that could not possibly be accommodated by employers. But the idea that simply passing amendments to the ADA could take lots of people off disability benefits and put them into jobs has such a powerful appeal to the naive that this is likely to have some effect upon the Social Security disability programs.

The irony is that those who promote an idea which would cause dramatic damage to the disabled population of this country are often those whom society thinks of as prototypically disabled, people in wheelchairs. Most people who are in wheelchairs do not suffer from progressive illness or severe pain or severe mental illness and have little sympathy for those who do. They believe that if they can conquer their disability that there is no reason why others cannot. If they could get over the depression that accompanied the own adjustment to wheelchair life, there is no reason why some person suffering from bipolar disorder or schizophrenia cannot get over their mental illness. My impression is that people in wheelchairs often dramatically overgeneralize from their own situations. Instead of helping others with disabilities, they are often the enemy of others who are disabled.

Would This Do Anything To The Social Security Disability Programs?

There are many people who already believe that the Americans with Disabilities Act somehow made disabled people far more able to work, despite abundant proof that the Americans with Disabilities Act has been almost useless. Would an Americans with Disabilities Act with teeth change things for disabled Americans? Should it change things at Social Security? We may have to answer those questions before long. From the Kiplinger Letter:

Employers should brace for an expansion of the Americans with Disabilities Act. A bipartisan group of lawmakers is pushing a bill that would broaden the reach of the ADA, the landmark 1990 federal law that prohibits discrimination against the disabled. Current law applies only to disabilities that "substantially limit a major life activity." Proposed legislation eliminates this qualifier, with the result that anyone with a physical or mental impairment would be covered. ...

Businesses can't count on a veto by President Bush to stop the measure. The original ADA was part of his father's legacy, and he may be reluctant to block an expansion. But the president, with backing from Senate Republicans, is likely to push for changes to make the legislation less onerous to employers. One possible compromise would include adding a list of diseases and conditions that would be covered by the ADA. It would not be an exhaustive list, but one designed to limit the scope of the bill.

Because of the short legislative calendar this election year, the bill may not make it through Congress in 2008. If it doesn't, it's a good bet for 2009. And if Democrats win the White House and expand their majorities in the House and Senate, the eventual bill will be tougher on employers than if Republicans can force a compromise this year.