Capitol Correspondence - 01.21.20

NYT Op-Ed Slams Administration’s Social Security Proposal, Calls it “Disaster in the Making”

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ANCOR is sharing this New York Times op-ed to keep readers informed on the national discussion surrounding the safety net and its importance for the disability community.

As written by Jonathan Stein:

“On Nov. 18, the Social Security Administration announced its proposal to conduct roughly 2.6 million additional eligibility reviews of adults and children currently receiving Social Security disability benefits in the next decade. If undertaken, the change would be likely to result in the loss of benefits for many thousands of disabled citizens of all ages — raising the specter of a failed attempt by the Reagan administration in the early 1980s to shrink federal spending on assistance programs. For reasons both political and humane, President Trump and his policymakers should not make the same damaging mistake.

So far, two Democratic candidates, Senators Bernie Sanders and Elizabeth Warren, have publicly warned against the plan. More are sure to follow.

From 1981 to 1984, the Social Security Administration altered an established review process of people receiving Social Security disability benefits that resulted in removal notices for nearly half a million beneficiaries, a large number of them with mental illness. Most of those whose benefits were cut off were clearly eligible and in need of assistance.

I was a lawyer and activist in the 1980s who fought vigorously, along with many others, against what was clearly an attempt by the Reagan administration to reduce federal spending by way of a purge of the disability rolls. We won that battle, to the relief of millions of disabled Americans and their families, but not before it caused serious harm to thousands unjustly removed as beneficiaries. The victory was enshrined in the Social Security Disability Benefits Reform Act of 1984, which set reasonable standards for the eligibility reviews for benefits.

The Reagan administration’s assault on disability beneficiaries was eventually halted by a wave of opposition that spanned both major political parties. Horror stories of disabled people with conditions like cerebral palsy, or those on round-the-clock oxygen machines, unjustly removed from the rolls filled the media. In Lansing, Mich., a man who was unable to work shot himself after receiving a termination notice; his suicide note read, “They are playing God.” A 1982 Los Angeles Times headline, “Disability Purge Ruinous to Many,” captured the outcry that ensued.

That outcry included more than two dozen congressional hearings, federal class action litigation, and a bipartisan rebellion of at least 18 states refusing to follow Social Security review directives. The injustice of the Reagan plan was so apparent that partisan divisions dissolved into unanimous support: The Senate vote for the reform act was 99-0; in the House, 402-0.

Now the Trump administration wants to repeat one of Mr. Reagan’s most damaging mistakes. Why?

The Trump administration — just like the Reagan administration — claims the increased reviews will allow officials to administer the program more efficiently. But they provide no persuasive support to justify the proposal, or to explain why the current system needs changing.

The current system already presents plenty of hurdles. It can take years to qualify for disability benefits and the eligibility test is so tough that more than 60 percent of applicants are initially denied. Once awarded, the benefits are subject to government review at periodic intervals. To determine the frequency of the reviews, individual conditions are put into one of three categories: Medical Improvement Expected (every six to 18 months), Medical Improvement Possible (every three years) and Medical Improvement Not Expected (every five to seven years). The S.S.A. is proposing to add another category, Medical Improvement Likely, which would allow it to conduct even more reviews. Breaking from past precedent, the agency is not relying on medical data to identify who will be reviewed, but is instead using a “predictive model” that they fail to describe.

The targets of the Trump administration ramp-up are troubling. The first involves older adults with disabilities nearing retirement; the second, with some 627,000 reviews, would re-evaluate impoverished children with disabilities at ages 6 and 12 for no discernible medical reason; the third group targets adults and children with disabling conditions like cancer and serious behavioral mental disorders, including bipolar disorder and (for children) speech disorders

The S.S.A. provides no persuasive medical or scientific data to explain why these conditions can be expected to improve sooner, nor any data to show that beneficiaries stay on disability too long. It only offers some unsubstantiated hope that more frequent reviews will mean that those terminated will re-enter the employment market — hardly a likely outcome.

Despite congressional inquiries, the S.S.A. refuses to release internal data on how many are expected to lose benefits from the new disability reviews. The agency does project it will save $2.6 billion in reduced payments from those terminated, but will also spend an additional $1.8 billion in increased administrative costs. Is a vague hope of some cost savings worth the risk that many will be unfairly denied support?

In reality, there is likely to be an ideological basis for the reviews, as suggested by the writings of Mark Warshawsky, the deputy commissioner for Retirement and Disability Policy, who was appointed in 2017. While at George Mason University’s Koch-family-supported Mercatus Center, Mr. Warshawsky and a co-author urged the elimination of work-related factors such as age, language ability and education level, notwithstanding that the S.S.A. must consider these factors under the Social Security Act in assessing ability to work. These factors are often especially important for older adults, one group singled out for increased review. Mr. Warshawsky and the same co-author have even questioned the agency’s already strict medical criteria for eligibility, asserting that some disabling diseases are now more “livable.” But improved survival rates for once terminal conditions like cancer do not necessarily correlate to people’s ability to do full-time, substantial employment — the test for receiving benefits.

While a reasonable review process is needed and is already in effect, the proposal is far from reasonable. Arbitrary reviews every two years are excessive. Reviews are burdensome and costly for mentally or physically impaired beneficiaries. For people with mental health conditions like anxiety or depression, the stress of the process exacerbates their existing disabilities. People who miss a step are terminated for noncooperation. Very few lawyers are able to take disability review cases, leaving people with disabilities to go it alone. More red tape and appeals are certain.

The Social Security Administration’s new plan caps off a long list of harmful disability measures that have fallen below the radar of the public and media: allowing the agency to disregard the opinion of the claimant’s treating physician; proposing to remove the inability to speak English as a factor relevant to accessing a job; and making it virtually impossible for children with conditions like asthma to qualify under the already very strict medical disability criteria. Other rules, following Mr. Warshawsky’s views, are in the pipeline, including ones adversely impacting older Americans, as The Wall Street Journal recently reported.

The proposal is now open for public comment and will be until Jan. 31. Will the more than 42,000 comments already filed convince the agency to withdraw these plans? Or will the White House step in when they see a total of 3.3 million disability beneficiaries in the swing states of Pennsylvania, Ohio, Michigan, Wisconsin and Florida? A disability benefits purge might just be deemed untimely for an election year.

Jonathan M. Stein is a former legal aid lawyer in Philadelphia.