legal currents

PWDF Urges the Social Security Administration to Specify and Implement Reasonable Accommodations for Individuals with Mental and/or Developmental Disabilities to Ensure Effective Communication

The Social Security Administration (SSA) has been enacting changes to its operations related to providing reasonable accommodations when communicating with people with disabilities. These changes do not include the identification of specific accommodations for people with severe mental and/or developmental disabilities. The need for these accommodations is huge: People With Disabilities Foundation (PWDF) estimates that 8-10 million people receive Social Security disability benefits and/or Supplemental Security Income disability benefits based on mental disorders. PWDF settled two lawsuits, Terrence Davis v. Michael Astrue, Case No. 3:06-CV-6108 EMC (NC) and John Doe v. Michael Astrue, Case No. 3:09-CV-980 EMC (NC), against the SSA in which the SSA agreed to provide reasonable accommodations to two individuals with mental and/or developmental disabilities (currently in post-settlement enforcement). These accommodations can be applied to other individuals with severe mental and/or developmental disabilities; however, SSA does not do so.

SSA's Proposed Section 504 Compliance Plan

In December 2013, the SSA received public comments on its "Proposed Section 504 Business Process Vision to Provide Individuals with Disabilities Meaningful Access to Social Security Programs and Activities" ("Plan") to comply with Section 504 of the Rehabilitation Act of 1973 ("Section 504"). Section 504 "prohibits discrimination against individuals with disabilities and requires Federal agencies...to provide meaningful access to their programs and activities to individuals with disabilities."[1] In this Plan, SSA stated that it intended to revise its business processes to include documented accommodations for a wider variety of types of disabilities than it did at that time.[2] The SSA stated in the Plan that it then currently had documented processes for providing accommodations to persons who are visually or hearing impaired.[3] In the Plan, they proposed an implementation process for administering requests for accommodations, and included "techniques" for interviewing customers who have cognitive or learning disabilities and for customers who have psychological or emotional disabilities.[4] The Plan referenced fairly new (August 2013) Program Operations Manual System (POMS) DI 11005.076, Interviewing People with a Mental Impairment(s).[5]

The Plan stated that it was SSA's intention to train their employees about Section 504 and providing accommodations; the SSA would also establish a center for Section 504 compliance (Compliance Center), which would oversee SSA's Section 504 activities and evaluate and decide requests for "nonstandard" accommodations to ensure they were handled consistently.[6] A recent check on the status of this Plan showed that SSA has adopted some of the proposed changes, but not others (see below).

Compliance Center

The Center for Section 504 Compliance became operational nationally on July 28, 2014[7] and is available to SSA employees, the public, advocates, and other agencies.[8] SSA has published the Compliance Center’s toll-free telephone number on its website.  Unfortunately, the Compliance Center only takes calls until 4:00 p.m. Eastern Time weekdays,[9] so it is only available to west coast callers weekdays until 1:00 p.m. and Hawaii callers until 10:00 a.m.

Training

The Plan said “Employees will receive periodic training and annual reminders related to Section 504 and providing accommodations.”[10] According to Compliance Center staff, training like this has not happened yet because the Center has only been operational since July 28 (roughly 6 weeks at the time of the conversation).  The training to-date has been related more to how to use the computer systems so that employees document Section 504 compliance uniformly.[11]

SSA's Reasonable Accommodations

Standard accommodations are those all field offices and hearing offices provide upon request; they do not need special handling or approval. Non-standard accommodations are those that SSA does not routinely provide; employees must consult with management when receiving a request for a non-standard accommodation.[12] 

The Plan proposed lists of “standard accommodations” for a variety of disabilities and a process to administer requests for non-standard accommodations.  Conversations with Compliance Center staff indicate that the SSA is not using the list of accommodations they planned to offer people with cognitive, learning, psychological, or emotional impairments as "standard" accommodations.[13]  SSA recently (effective July 10, 2014) issued a POMS that delineates the "standard" reasonable accommodations it provides under Section 504.[14] It is notable that roughly four decades after Congress directed that federal agencies comply with Section 504, SSA’s "standard" reasonable accommodations that are available nationwide only address visual and hearing impairments.[15] 

Several of the "standard" accommodations SSA proposed in its Plan to offer people with cognitive, learning, psychological, or emotional impairments are available to people who are blind or visually impaired.[16]  If a person with an impairment type other than blind or visual requests one of these accommodations, the request must be referred to the Compliance Center as a non-standard accommodation request, however.[17]  Examples of these types of accommodations include following up on mailed standard print notices with telephone calls and sending audio CDs of notices in addition to the standard print notices.[18] As noted above, non-standard accommodations are those that SSA does not "routinely provide."[19] In other words, SSA has no reasonable accommodations for cognitive, learning, psychological, or emotional impairments that it routinely provides.

PWDF's Recommendations for Reasonable Accommodations for Mental and/or Developmental Disabilities

In Terrence Davis v. Michael Astrue, Case No. 3:06-CV-6108 EMC (NC) and John Doe v. Michael Astrue, Case No. 3:09-CV-980 EMC (NC), PWDF brought two lawsuits on behalf of two beneficiaries with mental and/or developmental disabilities against the SSA, claiming that SSA failed to provide them with meaningful access to the SSA’s disability programs as required under Section 504.  In 2012, PWDF reached a settlement with the SSA in which the SSA agreed to provide reasonable accommodations based on plaintiffs’ mental and developmental disabilities.  These cases are actively in post-settlement enforcement. In this settlement, SSA agreed to provide the following accommodations to the plaintiffs.

The first accommodation is that the SSA will assign specific employees with expertise in the Title II program, Title XVI program, or both programs to assist the plaintiffs (beneficiaries). Each plaintiff was assigned a primary program expert and a backup expert with expertise in areas specific to the plaintiff’s respective Social Security program(s). The program experts are to provide the plaintiff with assistance in responding to SSA’s communications and explaining SSA’s communications and relevant aspects of the given SSA program. The names and direct telephone numbers of the program and backup experts were made available to the plaintiffs and, if necessary, new program experts are to be assigned to the plaintiffs. The program experts are required to work in a specific field office. 

The second accommodation is that the SSA agreed to have these experts receive a 3-hour training specific to the plaintiffs’ disabilities and how to further facilitate effective communication with them.  The training was with a professional(s), e.g., psychiatrist or therapist, independent living skills trainer, and/or family member of the plaintiff’s choice.  

The third accommodation is that in the event that a plaintiff visits the field office without an appointment, both the plaintiff’s assigned program expert and backup expert are required to make a reasonable effort to accommodate the plaintiff’s request to meet that day. (Note that PWDF staff found that the SSA does not comply with this condition as their system is not set up to transfer messages from their field office kiosk to field office staff.)

The fourth accommodation is that the SSA experts must provide written summaries of their meetings to plaintiffs in clear, concise language at a reading level no higher than sixth to eighth grade.  

The fifth accommodation is that if a plaintiff fails to meet a deadline for a reason related to his mental impairment, SSA agreed to liberally grant the plaintiff a good cause waiver consistent with agency policy.

The sixth accommodation provided to the plaintiffs is that the SSA agreed to include alerts in SSA’s computer systems that notify employees that the plaintiffs are to receive special handling. The alert message is supposed to inform employees to contact the plaintiffs’ program experts; if the primary program expert or backup program expert is unavailable, another employee is required to arrange an appointment within one week and provide the plaintiff with written documentation of the appointment. 

The seventh accommodation is that SSA agreed to provide plaintiffs with an audio CD version of notices in addition to written notices.

Great Need for SSA to Identify and Provide Reasonable Accommodations for People with Mental and/or Developmental Disabilities

It is noteworthy that SSA still does not have a concrete list of specific accommodations available nationwide that a person with a severe mental and/or developmental disability can reference when requesting an accommodation to communicate with the SSA.  The individual must request a specific accommodation, then SSA will determine whether or not that accommodation can be provided.  If the requested accommodation is not a standard accommodation, then the request must go through an approval process.[20] As discussed above, none of the standard accommodations address cognitive, learning, psychological, or emotional impairments.

There is a great need for SSA to identify a list of specific reasonable accommodations that it will provide to people with mental and/or developmental disabilities.  These disabilities include autistic disorders, developmental disorders, other childhood and adolescent disorders, intellectual disabilities, mood disorders, organic mental disorders, schizophrenic and other psychotic disorders, etc.  The number of people who need these accommodations could be huge: over 5 million people between the ages of 18 – 64 receive Social Security disability benefits and/or Supplemental Security Income disability benefits based on the mental disorders noted above.[21]  This does not include people who are receiving retirement, blind, or other benefits.  For example, people receiving retirement benefits may also have mental disorders, e.g., Alzheimer’s Disease or vascular dementia, but they are not included in this count.  Because of the invisible nature of mental disorders, SSA statistics also may not include people who have a mental disability in addition to a physical disability, where the mental disability is not “coded” into the Social Security system.  When including these beneficiaries, children, and people age 65 and older, PWDF estimates that 8-10 million people who receive Social Security benefits have a mental and/or developmental disability. The reasonable accommodations that PWDF obtained for its clients can be used as a starting point for SSA to develop a list of reasonable accommodations that SSA will provide when communicating with individuals with mental and/or developmental disabilities.

PWDF Profile

Who We Are

People With Disabilities Foundation is an operating 501(c)(3) nonprofit organization based in San Francisco, California, which focuses on the rights of the mentally and developmentally disabled.

Services

Advocacy: PWDF advocates for Social Security claimant's disability benefits in eight Bay Area counties. We also provide services in disability rights, on issues regarding returning to work, and in ADA consultations, including areas of employment, health care, and education, among others. There is representation before all levels of federal court and Administrative Law Judges. No one is declined due to their inability to pay, and we offer a sliding scale for attorney's fees.

Education/Public Awareness: To help eliminate the stigma against people with mental disabilities in society, PWDF's educational program organizes workshops and public seminars, provides guest speakers with backgrounds in mental health, and produces educational materials such as videos.

Continuing Education Provider: State Bar of California MCLE, California Board of Behavioral Sciences Continuing Education, and Commission of Rehabilitation Counselor Certification.