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?

False Claims Act And Social Security

I have recently heard of a civil action being filed by Social Security under the False Claims Act in an overpayment situation to try to treble the amount of the overpayment plus obtain a civil penalty. The false claims act allows Qui Tam actions, but this was not Qui Tam. This was being done without a criminal charge. I had not previously heard of the False Claims Act being used in a Social Security setting.

Is it new or unusual for Social Security to use the False Claims Act?

Social Security Managers Staying At A Nice Hotel -- In 1947

At the fabulous Hotel del Coronado. Notice all the women!

From 1955

IARP Survey On Social Security's Proposed Occupational Information System

The International Association of Rehabilitation Professionals (IARP) has surveyed its members on how Social Security should collect data for the Occupational Information System that the agency's Occupational Information Development Advisory Panel (OIDAP) is working on.

It is good to see that IARP is keeping a tab on OIDAP's work. Somebody needs to. OIDAP's work sounds horribly technical, but the ultimate result of what OIDAP is doing could be far more or far fewer Social Security disability claims being approved -- and I would not bet on the outcome being far more claims approved.

I have this fear that most of those involved at OIDAP either do not care what happens to Social Security disability claimants or that most of those involved believe that Social Security disability benefits are almost unnecessary or undesirable because they naively think that almost any disabled person can be rehabilitated. However, I remind myself that it looks like Social Security had already made all the key decisions before OIDAP ever started meeting and that those decisions will delay any action that will affect any Social Security claimant until after Michael Astrue leaves office. Perhaps, delaying any tough decision until after Astrue leaves office is the real point of OIDAP.

OIG Says ODAR Will Meet Its Goals -- If ...

From a recent report by Social Security's Office of Inspector General (OIG):

At the end of May 2009, over 750,000 hearings were pending in ODAR [Office of Disability Adjudication and Review], and the average processing time was 494 days. As outlined in its Fiscal Year (FY) 2008 2013 Strategic Plan, the Social Security Administration (SSA) plans to reduce the number of pending hearings to a desired level of 466,000 and the average processing time to 270 days by FY 2013. According to SSA, a pending level of 466,000 hearings ensures a sufficient number of cases to maximize the efficiency of the hearings process.

The Acting Deputy Commissioner of SSA asked that we evaluate the impact of ODAR's current MI [Management Information] and ODAR's proposals on its ability to reduce the backlog to the desired pending level. To address his request, we examined the workload ODAR would need to complete to process projected hearing requests and reduce the backlog to the desired pending level by FY 2013; identified MI currently available for officials to manage ODAR's workload, any reported shortfalls in available MI, and any reported shortfalls in the use of the MI to manage effectively; and reviewed ODAR's proposals, along with their potential impact on (1) addressing any shortfalls in ODAR's existing MI and (2) the likelihood SSA will meet its goal of reducing the backlog to the desired pending level by FY 2013. ...

Regardless of whether the FY 2010 proposals are approved, it appears SSA will achieve the desired pending hearings level by FY 2013 based on the currently projected level of receipts. Specifically, if SSA follows its current administrative law judge (ALJ) hiring plan and the current average ALJ productivity level remains constant, ODAR's pending hearing level should fall below 466,000. However, the timing of ALJ hiring will impact ODAR's ability to achieve this desired pending level. Therefore, SSA should continue to work with the Office of Personnel Management (OPM) to ensure ALJs are hired within the planned time frames.

Note that the goals can be achieved if Social Security's current projections of future receipts are accurate. However, we know that those projections are wildly inaccurate. Social Security is seeing a flood of new disability claims. Even if the projections are accurate, the backlog condition that Social Security is seeking to achieve, nine months, is far worse than what Social Security used to find acceptable.

WIPA Bill Passes House

From the Capitol Insider put out by the Disability Policy Collaboration:

On July 28, the House of Representatives passed the WIPA and PABSS Reauthorization Act of 2009, H.R. 3325, which was introduced by House Ways and Means Social Security Subcommittee Chairman John Tanner (D-TN) and Income Security Subcommittee Chairman Jim McDermott (D-WA). The bill amends the Social Security Act to extend through Fiscal Year 2010 the authorization of appropriations for the Work Incentives Planning and Assistance (WIPA) and the Protection and Advocacy for Beneficiaries of Social Security (PABSS) programs. The WIPA and PABSS programs were established by the Ticket to Work and Work Incentives Improvement Act to assist Supplemental Security Income (SSI) and Social Security disability program beneficiaries with information about existing work incentives, benefits planning, and decisions about work and providing advocacy that beneficiaries may need to secure, regain, or maintain gainful employment.

Remember, authorizing an appropriation is not the same thing as appropriating money. Authorization has to come before money is actually appropriated, but authorization does not actually give an agency any money.