Jewish Federations of North America Agencies Issues Public Comment on Rules Regarding Continuing Disability Reviews

WASHINGTON, Feb. 13 -- Stephan Kline, associate vice president, Reuben D. Rotman, president and chief executive officer and Elizabeth. A. Cullen, counsel for health policy of the Jewish Federations of North America, Network of Jewish Human Agencies and the Network of Jewish Human Service Agencies, has issued a public comment on the Social Security Administration's proposed rule entitled "Rules Regarding the Frequency and Notice of Continuing Disability Reviews". The comment was written on Feb. 7, 2020, and posted on Feb. 11, 2020:

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The Jewish Federations of North America (JFNA) and the Network of Jewish Human Service Agencies (NJHSA) appreciate the opportunity to submit this comment.

We write to express our serious concerns about the Social Security Administration's (SSA) proposed rule to substantially increase the frequency of its disability benefit reviews, called Continuing Disability Reviews (CDRs).

Nonagency disability policy experts predict that this change could put at least 2.6 million individuals with disabilities at risk of losing critically needed benefits. These experts also predict that the proposed rule if implemented will disproportionately impact older adults who cannot work because of their disabilities, children, adults with cancer, and adults with serious mental illnesses./1 Based on our understanding of the rule and historical precedent, we believe that it will lead to unwarranted and undue harm for hundreds of thousands -- if not millions -- of people with disabilities from the very young to the old.

Importantly, SSA's notice of proposed rulemaking (NPRM) lacks essential data and information necessary to understanding how the proposed rule will operate in practice and its full impact. For this reason, we also believe that the NPRM may violate the Administrative Procedure Act's requirement for the opportunity to provide meaningful comment and, therefore, we urge SSA to rescind the proposed rule.

A. About Us

The Jewish Federations of North America

Jewish communities across the country have a long and highly successful history of charitable giving and philanthropy through Jewish federations. JFNA, the umbrella organization for all Jewish federations, was founded in 1932, and today represents a network that has grown to include 146 Jewish federations and 300 network communities, serving most major population centers across North America. Together, we raise and distribute more than $3 billion annually for social welfare, social services, and educational needs, making us one of the largest philanthropies in the nation.

We also count among our partners hundreds of non-profit Jewish communal provider agencies, including 15 leading academic medical centers/health systems, 100 nursing homes and aging communities, 125 family & children's agencies, and more than a dozen group homes, which provide health care, behavioral health care, long-term care services, vocational training, nutrition, and other important supports. Through JFNA's network of federations and partner agencies, we now represent one of the largest, strongest, and most enduring networks of social services in North America, committed to ensuring that everyone in our communities can live with dignity and achieve a decent quality of life. We are also a model of public-private partnership, with public safety net programs, like Medicare, Medicare and others supporting our non-profit provider agencies' efforts to serve annually the more than one million Jewish and non-Jewish clients who come to our doors seeking help, and programs like SSA's disability benefits programs supporting our most vulnerable clients.

The Network of Jewish Human Service Agencies

NJHSA represents 148 non-profit human service organizations in the United States, Canada and Israel. NJHSA's members provide a full range of human services for the Jewish community and beyond, regardless of faith, background, ethnicity, and ability to pay. The services we provide include supplemental food assistance, health care, career and employment, and mental health services. The overwhelming majority of our agencies provide extensive services to people with disabilities and their caregivers, including but not limited to case management, caregiver support, personal aide, transportation, emergency financial assistance, supported employment, vocational assessments, and much more. Of the more than one million clients we serve, approximately 25 percent are people with disabilities. Through our agencies' case management services, they routinely provide considerable assistance to individuals with disabilities who require help in applying for disability benefits and throughout the periodic review process. In other words, we have first-hand experience in treating and supporting the very people who will be directly impacted by this proposed rule.

B. By Requiring More Frequent Reviews and a New Category of Review, the Proposed Rule Threatens Critical Disability Benefits for Many Beneficiaries Under current law and policy, SSA considers whether individuals applying for disability benefits, Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI), are eligible. SSA then conducts reviews at certain intervals to determine whether these individuals still qualify for benefits or whether their conditions have improved. CDRs ensure that only people who meet the statutory requirements for eligibility continue to receive these critical benefits while protecting the benefits for those individuals who truly need it now and in the future.

At present, if medical improvement is expected, SSA will review the claim in six to 18 months. If medical improvement is possible, SSA will review the claim every three years, but if medical improvement is not expected the agency will review the claim every five to seven years. Under the proposed rule, however, SSA would create a new review category, "Medical Improvement Likely," and would consider most claims every two years. SSA itself estimates that, over and above the reviews it already plans to conduct under the current schedule, the proposed rule if implemented will result in 1.1 million more full medical reviews over the next 10 years and an additional 1.5 million smaller-scale reviews./2

As a practical matter, it can take years to qualify for disability benefits - more than 60 percent of applications are denied initially -- and the process can be complex and stressful./3

The review process also can be difficult and time consuming. The full medical review process requires extensive paperwork and medical documentation. The form is 15 pages long and requires the beneficiary to describe each and every impairment, as well as document medical treatments and medications, providers, daily activities, and more. Some people with disabilities -- for example, individuals with intellectual and mental health disabilities or people in unstable housing situations or people with less education -- need substantial assistance to complete the necessary paperwork. Failure to correctly complete the paper work jeopardizes not only an individual's disability benefits, but also the individual's eligibility for other critical federal programs, such as Medicare, Medicaid, housing assistance, and food assistance, benefits that are tied to SSA's eligibility determination. Increasing the frequency of CDRs generally and to the degree SSA is proposing thus imposes a substantial, additional burden upon many beneficiaries, one that significantly threatens their stability and well-being.

We know from prior experience that changes to the established disability benefit review process can lead to unjust and widespread loss of disability benefits. Between 1981 and 1984, SSA attempted changes to the review process that resulted in nearly half a million beneficiaries, many with mental illness, receiving removal notices. Most of these individuals were eventually reinstated, but not before a great many people experienced substantial harm. At that time, public outcry, congressional hearings, litigation and more resulted in Congress' unanimous passage of the Social Security Disability Benefits Reform Act of 1984./4

Given this prior history and SSA's stated plan to conduct 2.6 million more reviews over the next 10 years, it seems likely that the proposed rule would lead to widespread loss of disability benefits for a substantial number of people, including many of our agencies' clients. Accordingly, we do not believe that SSA should undertake these proposed changes without clear evidence that increasing the frequency of disability reviews will achieve some significant purpose, such as improving the program's integrity and outcomes for beneficiaries.

C. SSA's NPRM Fails to Provide Information Essential to Understanding the Proposed Rule and Lacks the Necessary Evidentiary Support to Warrant these Changes Notably, SSA's NPRM provides no real projection for the anticipated loss of coverage, nor does it provide clear evidentiary support for making these changes. The NPRM lacks persuasive medical data to explain why certain conditions can now be expected to improve more rapidly, and lacks concrete data to show that a substantial number of beneficiaries are being provided disability benefits they no longer need.

The NPRM is also missing other important data and information, including information as to how this proposed new system will operate, how it will assess individuals with multiple impairments, and the evidence the agency used to support its reasoning that more frequent reviews will increase workforce participation. Incredibly, SSA publicly acknowledges in the NPRM that it is speculating as to the impact on individuals' with disabilities' workforce participation, stating "[w]e believe that there may be positive employment effects as a result of these proposed rules, although we cannot currently quantify them."/5

Moreover, to justify its decision in terms of the unsupported "positive employment effects," SSA cites to a single study conducted by one researcher that examined return to employment in the general public after benefits termination. Of great significance, however, this study did not assess return to employment among the vulnerable population of people with disabilities, a very different population than the general public when considering employment. The U.S. Bureau of Labor Statistics reported last year that only 19.1 percent of individuals with disabilities were employed, compared with 65.9 percent of individuals without disabilities./6 Moreover, according to the U.S. Census Bureau, employed individuals with disabilities earn significantly less than employed individuals without disabilities:

[P]eople with a disability are less likely to earn a full-time wage. In nearly every occupation, workers with a disability are less likely to work full-time, year-round. So, including all workers regardless of work schedules or occupation increases the overall earnings gap, where workers with a disability earn 66 cents for every dollar than those with no disability earn./7

Given the nationwide low employment and earnings picture for people with disabilities, SSA's presumption that a single study of the general population's ability to secure employment indicates anything about the employment prospects of individuals with disabilities seems totally erroneous.

In addition, SSA fails to provide a full and accurate picture of implementation costs commensurate with conducting so many more reviews. The agency does not address the shifting burden that will likely ensue for other public benefit programs as beneficiaries are forced to transition from disability benefits under SSA to Medicaid, for example, and more.

The NPRM even fails to state the expected review timelines for many of the most common disabilities. SSA's failure to share this critical information with the public through its NPRM compromises the public's and our own opportunity for meaningful comment.

D. The Proposed Rule Will Disproportionately and Substantially Affect Older Adults, Children, Adults with Cancer, and Adults with Mental Illness JFNA and NJHSA are also greatly concerned that the rule seems to target specific populations, including older adults nearing retirement, children, and adults with serious mental illnesses and cancer. Under the proposed rule, SSA plans to conduct the more frequent CDRs of individuals who qualify for disability benefits by showing that they cannot work; many older adults eligible for disability benefits qualify in this manner. In the new "Medical Improvement Likely" category, SSA plans to conduct 579,000 CDRs for adults who qualify for disability benefits by showing they cannot work (Title II). SSA's listed examples of claims that will be reviewed every two years include certain cancer (e.g., leukemia and lymphoma) and anxiety disorders. The proposed rule also covers individuals with other serious mental health conditions, like major depressive disorder, bipolar disorder, and panic disorder. For people with mental health conditions in particular, the proposed rule's changes could have serious repercussions on their stability, and could lead to increased rates of homelessness, hospitalization, bankruptcy, or incarceration.

In addition, the proposed rule specifically targets children by mandating automatic reviews when children reach age 6 (school age) and age 12 (adolescence), and lists impairments that particularly affect children and youth, such as speech disorders, attention-deficit hyperactivity disorder, eating disorders, asthma, and malignant solid tumors in children. SSA estimates conducting more frequent CDRs in the new "Medical Improvement Likely" category for 627,000 children under the proposed rule.

Increasing the frequency of CDRs as SSA is proposing will directly impact many clients of Jewish family & children's agencies throughout the country, which provide extensive services to both adults and children living with mild to severe disabilities of all types, including mental illness. The increased frequency of CDRs will impose a significant added burden for our clients and increases the risk that they will lose much needed disability benefits. Our federations and non-profit provider agencies will not be able to make up the losses in federal benefits our clients will experience. Further, the proposed rule will add to the work of our agencies' staff, many of whom assist their clients with disabilities in completing their CDR paperwork.

Conclusions

The proposed rule is extremely complex and aims to make broad changes to SSA's CDR process, risking critical benefits upon which millions of vulnerable people with disabilities depend for their basic needs. Although we recognize SSA's responsibility to maintain the program's integrity, major changes to the CDR process should be backed by a strong foundation of evidence, which is also shared with the public to provide meaningful notice and comment opportunity. However, this NPRM does not provide that necessary evidentiary foundation. The rule's proposed changes would interact in complicated ways, many of which SSA itself does not seem to understand or address in the NPRM. We are particularly concerned with the fact that key proposed changes are based on unsupported assertions about modern advances in medical treatment and employment opportunities for people with disabilities. Given what is at stake - critical disability and other benefits for a large number of extremely vulnerable people - we urge SSA to rescind this proposed rule.

Thank you for the opportunity to submit these comments.

Sincerely,

Stephan Kline

Associate Vice President for Public Policy & Interim Director of the Washington Office

The Jewish Federations of North America

Reuben D. Rotman

President & Chief Executive Officer

Network of Jewish Human Agencies

Elizabeth. A. Cullen, Counsel for Health Policy

The Strategic Health Resource Center

The Jewish Federations of North America

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Footnotes:

1. Jonathan Stein, "Another Disability Disaster in the Making," The New York Times (Jan. 16, 2020), https://www.nytimes.com/2020/01/16/opinion/trump-disability.html.

2. 84 Fed. Reg. 63588, 63596 (Nov. 18, 2019).

3. Stein, "Another Disability Disaster."

4. Ibid.

5. 84 Fed. Reg. at 63591 (emphasis added).

6. U.S. Bureau of Labor Statistics, "Persons with a Disability: Labor Force Characteristics Summary," (Feb. 26, 2019), https://www.bls.gov/news.release/disabl.nr0.htm.

7. U.S. Census Bureau, "Do People with Disabilities Earn Equal Pay?" (March 21, 2019), https://www.census.gov/library/stories/2019/03/do-people-with-disabilities-earn-equal-pay.html. In fact, this report from the Census Bureau found even lower employment rates for people with disabilities than the Bureau of Labor Statistics: "Workers with a disability make up just 6 percent of working adults, but this figure rises with age. About 4 percent of workers under age 45, 7 percent of workers ages 45-59, and 13 percent of workers age 60 and older have a disability."

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The proposed rule can be viewed at: https://www.regulations.gov/document?D=SSA-2018-0026-124608

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