A proposed rule change to Social Security benefits could block people that speak limited or no English from getting benefits through the system’s disability insurance program.
The change would remove the “inability to communicate in English” from the list of educational categories that are considered when the Social Security Administration’s administrative law judges determine who qualifies to receive disability insurance through the program.
The proposal was released on Feb. 1. There is a two-month comment period before the SSA considers its next steps.
“This proposal is little more than an attempt to deny non-English speakers access to benefits,” a government source who works on matters of Social Security, speaking on condition of anonymity, told Splinter in an email.
According to the SSA, the rule change could reduce total insurance benefits by up to 10,500 claims a year. 6,500 of those would come from Old-Age, Survivors, and Disability Insurance, or OASDI, a buy-in program funded through taxes. 4,000 more would come from Supplemental Security Income, or SSI, a program that functions more like a welfare benefit.
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The rules for disability insurance awards are a labyrinthine set of standards that the SSA must look at when considering whether or not to award insurance to prospective claimants. Nancy Altman, the president of the advocacy organization Social Security Works, told Splinter that the process is already one of the strictest in the world.
“It’s not only that you cannot work in your job, it’s that you cannot work in any job economy,” Altman said. “If you can do the job anywhere, you can’t get disability.” That makes it very hard for claimants to prove to the administrative law judges that hear their cases that they deserve the benefits.
The SSA justified the proposed change by, first, claiming that immigrants with higher education (and presumably higher language skills) are increasingly entering the country, rendering the rule superfluous. “Changes in the national workforce since we added this category to our rules in 1978,” the proposal’s summary explains, “demonstrate that this education category is no longer a reliable indicator of an individual’s educational attainment or the vocational impact of an individual’s education.”
In real terms, however, that justification is irrelevant to the rules in question, which only come into play for people with limited to no English, a history in so-called “unskilled” work, and lower education levels. (SSA spokesperson Mark Hinkle, in response to a question pointing out the inconsistencies between the proposal’s justification and the rule’s application, directed Splinter back to the initial proposal language.)
The second reasoning put forward for the change is that claimants in Puerto Rico have used their lack of English as one of the factors in their claims. An April 3, 2015, Office of Inspector General (OIG) report noted the presence of 244 cases of claimants from the predominantly Spanish-speaking country who were using the English rule during a two-year period. At the rate of roughly 120 per year cited by the SSA in their justification for the change, Puerto Rican claims make up just slightly over 1 percent of the total 10,500 claims that are expected to be rejected annually—which hardly justifies rewriting an entire rule that could affect so many people.
After the 2015 report was released, then-Senator Jeff Sessions—whose office at the time employed Stephen Miller, now an outspoken anti-immigration proponent in the Trump White House—complained about the rule, claiming that an inability to communicate in English was the deciding factor in a number of disability cases. But that’s not true: the English rule is only one of the factors that are considered during the stringent test.
“Inability to communicate in English is never, on its own, a reason a person would receive disability benefits,” said Stacy Cloyd, the Deputy Director of Government Affairs at the National Organization of Social Security Claimants’ Representatives, in an email.
“SSA must first determine that individuals have earned income below the ‘substantial gainful activity’ level,” Cloyd continued, “have a severe impairment or combination of impairments lasting at least 12 months or expected to be fatal, and be unable to return to their prior work even before the vocational factors of age, education (of which ability to communicate in English is a part), and work experience are considered.”
Once those standards are met, the portion of the test that applies to education addresses the ability to communicate in English as one of six considered factors.
“Because English is the dominant language of the country, it may be difficult for someone who doesn’t speak and understand English to do a job, regardless of the amount of education the person may have in another language,” the SSA says in section 404.1564 of the administration’s code of federal regulations. “Therefore, we consider a person’s ability to communicate in English when we evaluate what work, if any, he or she can do.”
That’s not a guarantee that the claim will be awarded, either. “Many disability claimants who are unable to communicate in English are still denied benefits,” said Cloyd.
With so many variables at play in how disability insurance payments are awarded, the focus on English communication seems misguided—if the intention is to reduce costs in the program.
“I think it is worth noting that this rule change only affects documented immigrants, or in some cases, natural born American citizens,” said Splinter’s anonymous government source. “I can’t speculate whether the agency intended this as a sort of culture war move, but it obviously will primarily impact already marginalized communities.”
Whatever the motivation, it’s a change that has some advocates worried that the Trump administration is preparing to make it even more difficult for all applicants to the program — and that this current attack on marginalized people is just the first step.
“They’ll go after this group on this basis, then another group on another basis,” said Altman.
Eoin Higgins is a writer from New England. You can keep up with his work by following him on Twitter.