NDSS & NDSC Comments on Proposed
Regulations for the Ticket to Work and
Self-Sufficiency Program - 20 CFR Part 411,
Dec. 28, 2000 February 28, 2001
The National Down Syndrome Congress (NDSC) and National
Down Syndrome Society (NDSS) are organizations advocating
for quality services and supports for individuals with Down
syndrome. These organizations are dedicated to improving the
availability of and accessibility to a full range of opportunities and
resources that meet individual and family needs and to ensure
that all people with Down syndrome have the opportunity to reach
their full potential. The organizations welcome the opportunity to
comment on the Notice of Proposed Rule Making (NPRM)
published in the Federal Register on December 29, 2000 by the
Social Security Administration (SSA).
According to the Social Security Administration, in its Notice of
Proposed Rule Making (NPRM) published on December 29,
2000 in the Federal Register, the proposed rules are intended to
expand the options available for Social Security disability
beneficiaries and disabled or blind SSI beneficiaries to access
vocational rehabilitation services, employment services, and
other support services that are necessary for such beneficiaries
to obtain, regain or maintain employment that reduces their
dependency on cash assistance. The individual holding a ticket
may assign the ticket to any employment network (EN) (i.e.,
service provider) of their choice that is willing to accept the
assignment. [Section 1148(b) and Section 1148(f) of the Social
Security Act] The employment network must ensure that services
provided under the Program are provided under appropriate
individual work plans developed and implemented in partnership
with each individual receiving such services. [Section 1148(g) of
the Social Security Act]. The Commissioner pays the employment
network in accordance with either the outcome payment system
or the outcome-milestone payment system.
The Ticket to Work and Work Incentives Improvement Act
(TWWIIA) contains exciting new opportunities for individuals with
disabilities to work and keep their important health care
coverage. We appreciate the effort that SSA put into developing
these proposed regulations to implement the Ticket to Work
program. However, we are concerned that individuals who are
harder to serve due to more intensive support needs or other
factors will not be served under the Ticket to Work program as
currently proposed in the NPRM. This is, in part, because of the
financial disincentives inherent in the outcome milestone payment
system in the NPRM. NDSC and NDSS believe that Congress
intended to make this program available for all individuals with
disabilities receiving SSI and SSDI, including individuals who
have intensive support needs. The regulations also state that the
Commissioner's intent in developing the proposed rules is [that]
... the expansion of options available to obtain these services will
provide beneficiaries with real choices in getting the services they
need to obtain, regain, or maintain employment. Unfortunately, the
outcome-milestone payment system and the extensive
requirements for service providers (ENs) outlined in the NPRM
make it highly unlikely that choices for beneficiaries will expand
under the proposed rule. Below is a discussion of our most
serious concerns and recommendations to address these
concerns.
Outcome-Milestone Payment System (Section 411.500-598)
The law and the proposed regulations offer two methods to
compensate providers for an individual's success at obtaining
and keeping employment. This is accomplished by paying the
EN a portion of the average cash benefits that would no longer be
paid to the individual because he or she has maintained
employment at the substantial gainful activity (SGA) level for a
predetermined period of time.
The first method is the outcome payment system which pays a
provider during a period of 60 months in which benefits are not
paid to the beneficiary because he/she is earning above the
substantial gainful activity level [SGA].
The second method is the outcome-milestone payment system.
This was designed, ostensibly, to provide incentives for
employment networks to provide supports to individuals with
more intensive support needs and to expand the number and type
of service providers. However, the way in which the
outcome-milestone system is designed in the proposed
regulations, does not provide for adequate reimbursement,
especially to ENs that provide supports for individuals who are
harder to serve and have more substantial support needs.
There are additional issues of concern that arise from the
differences between SSI and SSDI. First, the average SSI and
SSDI cash benefits are substantially different, meaning both the
outcome and outcome-milestone payments will be substantially
lower for individuals on SSI. Secondly, since the 1619 program
allows for a gradual reduction in SSI cash benefits, reducing the
cash benefit one dollar for every two dollars earned, the SSI
beneficiary must earn far more than the SSDI beneficiary before
entirely leaving the rolls and triggering payments to ENs. These
two provisions will serve as significant disincentives to providers
who will by-pass SSI recipients to accept tickets first from SSDI
beneficiaries.
Recommendation
SSA should undertake the following actions in regard to the
outcome-milestone payment system:
Rewrite the regulations and design the milestones in a
manner that will attract providers to serve people in need of
greater supports. To do this, SSA should consult with states
that have designed similar systems and advocates familiar
with the needs of individuals who are harder to serve.
Based on information from current milestone and individual
choice systems of employment services, increase the
number and amounts of the payments during the milestone
phase, with the remainder paid to the provider over the
five-year period of employment.
At a minimum, milestone payments should begin with the
completion of an Individual Work Plan and a payment
should also be made for job placement (the first day on the
job).
Establish a system of milestones that is flexible enough to
meet the needs of individuals with high support needs and
to provide sufficient front-end funding to enable providers to
serve and support them.
In addition to making the above changes to the "standard"
milestone payment system described in the NPRM, create
a new "Tier 2" individualized milestone option for the harder
to serve, using the individualized planning process to
determine which milestone tier would best achieve
employment outcomes for the individual:
Consult with experts in the field, such as those in
Massachusetts and Oklahoma, who are currently
using an individualized milestone approach in
designing this Tier 2 system.
Utilizing the Individual Work Plan (IWP) process,
clearly define the milestones of achievement and a
value assigned to each milestone for that individual,
with oversight by the Program Manager (PM).
Customize milestones, individualized to the specific
needs of each individual for whom the first tier is
determined inappropriate.
Establish the total amount that can be paid by the
outcome-milestone payment system at 39.9%, the
maximum amount allowed by the statute.
Equity Study
In addition to the recommendations outlined above that would
help ensure equity for those who are harder to serve, the Report
on the Adequacy of Incentives required in Section (101h)(5)(c) of
the Act has been identified as a key initiative to assure that
people who are harder to serve are able to participate fully in the
Ticket program. The four groups of people identified in the law
whose circumstances must be addressed, through this equity
study include: people with a need for ongoing supports and
services; people with a need for high-cost accommodation;
people who earn a sub-minimum wage; and people who work
and receive partial cash benefits.
Recommendation
SSA must consult with experts knowledgeable about and
experienced in meeting the needs of those individuals, as well as
advocates for those individuals, in development of the study. SSA
should involve those experts and advocates as well as
researchers who are knowledgeable about individuals who are
harder to serve in developing the research questions, determining
where to look for information, creating and finalizing methodology
and analyzing and presenting results for the equity study report.
The individualized milestone approach described previously will
provide valuable information for this important study which should
begin as soon as possible. NDSS and NDSC would be pleased
to provide assistance to SSA in the development and
implementation of this study.
Ticket to Work Program Dispute Resolution B Disputes
Between Beneficiaries and Employment Networks (EN)
(Sec. 411.600)
The dispute resolution process has three steps: (a) The
beneficiary can seek a solution through the EN's internal
grievance procedures. (b) If the EN's internal grievance
procedures do not result in an agreeable solution, either the
beneficiary or the EN may seek a resolution from the PM. (c) If
either the beneficiary or the EN is dissatisfied with the resolution
proposed by the PM, either party may request a decision from us.
This process does not present an opportunity for the individual to
present his or her position on the disputed issue(s). The
proposed rule indicates that, when the Program Manager is
asked to review a dispute, the PM is to contact the EN for all
materials but is not required to contact the beneficiary. The PM
would receive only a summary of the individual's position,
prepared by the individual (or representative) but conveyed by the
EN.
In addition, if either the individual or EN asks SSA to review the
PM's proposal to resolve the dispute, there is no clear
requirement for SSA to consider the individual's (or the EN's) own
view of the dispute. It appears that the PM would prepare all
materials for SSA's review. Finally, SSA's decision is considered
final and, therefore, not subject to further review.
Recommendation
The regulations should be clarified to ensure that the individual
has the opportunity at all steps in the process to present his/her
own version of the dispute, including reasons for rejecting each
proposed solution.
Qualifications for Employment Networks (Sec. 411.315)
The specific criteria that an entity must meet to qualify as an EN
include: (1)(i) Using staff who are qualified under applicable
certification, licensing, or registration standards that apply to their
profession; or (ii) Using staff that are otherwise qualified based
on education or experience, such as by using staff with a college
degree in a related field such as vocational counseling, human
relations, teaching or psychology; and (2) Providing medical and
related health services under the formal supervision of persons
licensed to prescribe or supervise the provision of these services
in the State in which the services are performed. (c) An entity
must have applicable certificates, licenses, or other credentials if
such documentation is required by State law to provide VR
services, employment services or other support services in the
State.
A major objective of the Ticket to Work program is to provide an
alternative to services provided (or not provided) by traditional
service providers, the state vocational rehabilitation agencies and
traditional rehabilitation models. In order to provide a viable
alternative to this system, however, SSA must clarify the
regulations so that they are not interpreted to mean credentialing
and licensing is required of all ENs. SSA must also make it clear
that such standards must be met only where required for licensed
professionals. In addition, SSA should avoid giving the
impression that all employees or contractors of ENs have to be
licensed or credentialed. The determining factor must be whether
the entity is capable of successfully providing the service agreed
to by the EN and the beneficiary.
The EN requirements are currently too complex and bureaucratic,
and, as written, would stifle the development of new,
non-traditional, creative service providers, severely limit the
involvement of competent businesses and severely limit the
choices of individuals.
Opportunities should exist, under the proper circumstances, for
families or personal support networks to become employment
networks. Questions have arisen about whether families or a
"circle of friends" could serve as an EN. If the family or group of
friends can meet the requirements of an EN and/or be a "service
provider" that is part of an EN, they should be able to serve this
function.
Recommendation
The regulations should be greatly simplified and requirements for
EN's streamlined. The regulations should also clarify that ENs are
not be limited by licensing or certification criteria.
One Ticket Per Period of Disability (Section 411.125[b])
The proposed rule refers to one ticket during any one period of
disability. Unfortunately, when this is combined with SSI's 1619[b]
program and the provision for expedited reinstatement of benefits
that became effective January 1, 2001, it appears to preclude
eligibility for new tickets in the future since the individual is
"reinstated" to the benefit rolls under the original disability
designation. To ensure that this limitation is not read to mean one
ticket per individual's lifetime, clarification is needed from the
Social Security Administration (SSA).
Additionally, the limitation of one ticket per period of disability has
an adverse impact on individuals who have used a substantial
portion of a ticket and then must return to the disability program.
After a reasonable time period, an individual should have the
opportunity to obtain a new ticket. Otherwise, people with very
severe disabilities will have only one chance for success, a result
we believe is contrary to Congressional intent.
Recommendation
No limits should be placed on the number of Tickets a person can
receive over the course of a lifetime, as long as a person is not
using more than one at a time. Limiting the number of Tickets
ignores the fact that disabilities are lifelong.
General Recommendation
Because of the serious problems inherent in the system under the
current regulations and because the regulations would have a
discriminatory impact on a large number of individuals, SSA
should not implement the regulations until these issues are
satisfactorily resolved. The Request for Proposals to become
EN's and tickets should not be issued until the issues raised
above are resolved and the regulations finalized.
E-MAIL at: robeng@ix.netcom.com