Shriver Center on Poverty Law Issues Public Comment on Social Security Administration Proposed Rule

WASHINGTON, Feb. 13 -- Jeremy Rosen, director of economic justice, and Stephanie Altman, director of healthcare justice and senior director of policy, at the Shriver Center on Poverty Law, Chicago, Illinois, have 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 Jan. 31, 2020, and posted on Feb. 11, 2020:

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The Shriver Center on Poverty Law fights for economic and racial justice. Over our 51-year history, we have secured hundreds of victories with and for people living in poverty both in Illinois and across the country. During that time, we have worked to ensure that all people have access to vital resources and programs that provide for their basic needs and advance their long-term well-being and opportunity, including the Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI) programs. These programs provide millions of people with the resources they need to meet their basic needs by accessing food, obtaining safe and stable housing, and qualifying for vital health coverage.

Our Economic Justice team is expert in identifying and removing the administrative barriers that prevent people from accessing these and other social safety net programs, while our Healthcare Justice team helps ensure access to affordable care for all Illinoisans. Together we write in opposition to the Social Security Administration Notice of Proposed Rulemaking (NPRM) entitled "Rules Regarding the Frequency and Notice of Continuing Disability Reviews," published in the Federal Register on November 18, 2019. Our comments will focus on the Social Security Administration's failure to document with medical evidence that more frequent Continuing Disability Reviews (CDRs) will find that program beneficiaries can return to work, the administrative barriers imposed by the CDR process that will likely lead to eligible beneficiaries losing assistance, and the impact of losing the health coverage that comes along with receipt of SSDI or SSI.

I. SSA's Decision to Target Certain People for More Frequent CDRs Is Arbitrary and Capricious

The focus of the proposed rule in on increasing the number of continuing disability reviews to be performed by the Social Security Administration (SSA), under the theory that more frequent reviews of many impairments will find that beneficiaries have experienced medical improvement and will be able to begin or return to work. Unfortunately, commenters are unable to evaluate the accuracy of this claim, because the NPRM provides no evidence to support it. Under these circumstances, the NPRM is arbitrary and capricious, and must be withdrawn.

The proposed rule will require all adults to be subject to more frequent reviews if they did not meet SSA's very narrow medical criteria (called the Listings) when their disability cases were first decided. They will be subject to these reviews even though they were able to prove just two years earlier that they were unable to work due to the severity of their impairments, their age, and other factors.

Subjecting all adults to this heightened scrutiny en masse - regardless of the nature and severity of their disabilities, merely based on how their cases were decided - is a textbook example of arbitrary and capricious rulemaking and is without medical or scientific support. It threatens the stability of people with disabilities by forcing them through additional bureaucratic processes, regardless of their medical prognoses.

SSA's approach is particularly illogical because many people who will targeted by the proposed rule will be nearing retirement age. SSA states that a goal of the proposed rule is to provide incentives for individuals with disabilities to return to work. We are aware of no medical studies that support the assumption that older adults with serious, longstanding disabilities are able to regain the ability to work in significant numbers as they near retirement age. The proposed rule, then, relies on mere arbitrary speculation to justify rulemaking that would be affirmatively harmful to older adults.

The proposed rule also assumes that people with serious behavioral health conditions like depressive disorder, bipolar disorder, generalized anxiety disorder, panic disorder, are likely to improve medically in two-year increments. SSA provides no rationale for this assumption, and it is unsupported by medical evidence.

Finally, the proposed rule is arbitrary because in recent years, SSA has regularly failed to follow the law for CDRs. In conducting CDRs, the Social Security Act requires SSA to look at whether people have "medically improved" - a very specific legal standard. Advocates have been showing SSA case evidence for years that demonstrates that SSA staff does not follow that standard. Adding 2.6 million more CDRs means that SSA has that many more opportunities to disregard the law.

II. In the Absence Of Medical Evidence to Support the Requirement For More Frequent CDR's, the Proposed Rule Is A Pretext For Efforts To Decrease The Number of SSDI/SSI Recipients Through Administrative Churn

People with disabilities often struggle to get by. They are disproportionately at risk of experiencing homelessness compared to the population as a whole. If they are unable to stay connected to work due to their disabilities, they face the persistent threat of eviction, utility shut-off, and hunger. Interruption in health insurance coverage - particularly for people who rely on Medicaid, for which administrative burdens can be daunting - can put their lives at risk.

Disability benefits are a lifeline, because they provide income that can replace lost wages due to inability to work. They also help to pay for expenses like special diets, medical copayments, and transportation to medical appointments that are common among people with disabilities. And they ensure that people receive stable, consistent Medicare and/or Medicaid coverage.

Unfortunately, applying for disability benefits is not easy. People with disabilities must navigate a complex bureaucratic process that denies 60% of applicants at initial application and is fraught with delays. Once people qualify for disability benefits, keeping the benefits is just as difficult. CDRs require beneficiaries to fill out extensive paperwork and provide medical evidence that may be difficult to track down. In many cases, they have to be examined by SSA doctors on top of many other medical appointments. If they miss a step, their benefits can be cut off for non-cooperation. Throughout the process, the threat of losing needed income hangs over their heads.

We are very concerned that this proposed rule will cause significant benefit interruptions to otherwise eligible people, due to their inability to cooperate with the complicated bureaucratic process every two years. Without any evidence to support the need for additional CDRs, this appears to be the intent of the rule. Because the proposed rule lacks any rationale beyond the desire to reduce the number of SSDI and SSI beneficiaries, it must be withdrawn.

III. More Frequent CDRs Will Force People With Disabilities To Wait Even Longer For Benefits.

People already wait too long to qualify for disability benefits. A majority of applicants are denied disability benefits at application. Even if they are eventually found eligible for SSI, they often must wait up to two years - and in a considerable number of cases, even longer - to prove to an administrative law judge that they meet SSA's disability rules. More frequent CDRs will slow down the process for everyone, by pushing more people into the pipeline for administrative hearings. People cannot afford to wait any longer than they already do for disability benefits.

IV. Many People Who Arbitrarily Lose Disability Benefits Will Also Lose Health Coverage

The proposed rule would disproportionately harm two groups of people: adults nearing retirement age and children. It would also affect people with serious behavioral health conditions, and people who have cancer. It will not only further impoverish a very needy population due to loss of income but will also impact their healthcare coverage and access to care. This is a set of people who by definition have serious medical conditions and need specialty care. If SSDI beneficiaries who are on Medicare are terminated from SSDI, they will lose their Medicare coverage and need to access full Medicaid coverage.

In Illinois, many of those who lose Medicare will be eligible for Medicaid but the transition to Medicaid from Medicare can be a difficult one. We have many clients who do not successfully transfer due to administrative challenges, lack of knowledge of the system, a reduced number of in person enrollment assisters and bureaucratic problems in the state Medicaid computer systems. There will inevitably be people who experience a gap in coverage and lose access to care. In addition, Medicare generally has a much larger provider network than Medicaid./1

Access under Medicaid, in particular to specialty care for people with significant healthcare conditions, is often impaired especially in rural and less populous areas of the state. Illinois also uses a Medicaid managed care system that will cause more hurdles for a newly transitioning Medicare to Medicaid recipient. The SSDI recipient who loses Medicare, even if they have Medicare and Medicaid as a dual eligible, needs to first successfully transition to full Medicaid and then enroll in a Medicaid managed care plan. If they fail to choose a plan, the state will use an algorithm to assign them to a provider and a plan with no information on their past care relationships. Their medications which were formerly covered under a Medicare Part D plan will now be subject to a new Medicaid formulary, possible prior approval and other restrictions. We have seen with our clients that every transition in coverage, plans and networks brings risks of interruption in the continuity of care and poorer health outcomes.

The proposed rule also targets children. It would mandate automatic reviews as children reach school age (age 6) and adolescence (age 12), and it targets impairments that particularly affect children and youth, like speech disorders, attention-deficit hyperactivity disorder, eating disorders, and asthma. While children who lose SSI will presumably still be eligible for and enrolled in Medicaid, their families who rely on SSI payments to cover medical expenses not covered by Medicaid will suffer. Medicaid access to specialty care in particular for children who need mental health care, is always difficult especially in rural parts of the state. Families of children with significant health care needs rely on SSI to help pay for transportation, equipment, caregivers and other costs not covered by Medicaid./2

As a result of the loss of SSI, families of children with significant health care needs will most likely experience higher rates of poverty and poorer healthcare outcomes.

For the foregoing reasons, SSA must withdraw the proposed rule.

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Footnote:

1/ Kayla Holgash & Martha Heberlein, Physician Acceptance of New Medicaid Patients: What Matters And What Doesn't, HEALTH AFFAIRS BLOG (April 10, 2019),

https://www.healthaffairs.org/do/10.1377/hblog20190401.678690/full/

2/ Kathleen Romig, SSI: A Lifeline for Children with Disabilities, CTR. ON BUDGET & POL'Y PRIORITIES 1, 8 (May 11, 2017), https://www.cbpp.org/sites/default/files/atoms/files/5-11-17ss.pdf.

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The proposed rule can be viewed at: https://www.regulations.gov/document?D=SSA-2018-0026-0001

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