TICKET TO WORK AND WORK INCENTIVES
IMPROVEMENT ACT OF 1999
Presenters: Jim Sheldon, National AT Advocacy
Project &
Steve Mendelson, Policy Specialist, RESNA
The attached handout is Chapter 11 from "Benefits Management
for
Working People with Disabilities: An Advocate's Manual"
(Greater Upstate Law Project 2000) and is copied with permission.
Copies of the full, 160-page manual may be purchased from the
Greater Upstate Law Project (716-454-6500). You may also obtain
order forms by calling the AT Advocacy Project (716-847-0650 ext. 262),
or by visiting the Social Security Section of the Neighborhood Legal
Services web site (www.nls.org).
A Summary of Key Provisions
The Ticket to Work and Work Incentives Improvement Act of 1999 (the "Act") passed both houses of Congress in November 1999 and was signed by President Clinton on December 17, 1999. Many of its provisions will not become effective until the year 2001 or later, and many of the details of these provisions will appear in regulations that are expected to be enacted during the year 2000 or later. When the regulations are enacted they should provide detail that is missing in the Act.
I. Findings and Purposes [Section 2](1)
A. Fewer than one-half of one percent of Social Security Disability Insurance (SSDI) and Supplemental Security Insurance (SSI) beneficiaries leave the disability rolls and return to work. If an additional one-half of one percent of current SSDI and SSI recipients were to cease receiving benefits as a result of employment, the savings to the Social Security Trust Funds and to the Treasury in cash assistance would total $3.5 billion over the work life of these individuals, "far exceeding the cost of providing incentives and services needed to assist them in entering work and achieving financial independence."
B. This section makes considerable references to the lack of health care coverage for such things as prescription drugs, attendant services, and durable medical equipment (i.e., assistive technology) as barriers to employment. "[T]he fear of losing health care and related services is one of the greatest barriers keeping individuals from maximizing their employment, earning potential, and independence."
II. Ticket to Work and Self-Sufficiency [Title I].
A. Key dates for Ticket provisions
1. The effective date is January 1, 2001, with phase in at sites throughout the country. Full implementation is required in every state not later than January 1, 2004.
2. Graduated implementation of ticket program
a. The Social Security Administration (SSA) is required to implement the ticket program in phase-in sites throughout the country.
b. The purpose of the phase-in is to ensure, prior to full implementation, the development of referral processes, payment systems, and other processes.
3. Full implementation is required in every state "as soon as practicable" but not later than three years after the January 1, 2001 implementation date.
4. SSA must enact regulations to carry out the ticket provisions "not later than 1 year after enactment" of the Act (i.e., not later than December 17, 2000).
B. Establishment of program [section 101]
1. SSA will issue tickets to SSDI or SSI beneficiaries "to obtain employment services, vocational rehabilitation services, or other support services from an employment network which is of the beneficiary's choice and which is willing to provide such services to such beneficiary."
2. A state vocational rehabilitation (VR) agency, administering a state VR plan under Title I of the Rehabilitation Act (29 U.S.C. § 720 et seq.), may elect to participate in the Program as an employment network.
a. If the state VR agency elects to become an employment network, the services it provides under the program shall be governed by Title I of the Rehabilitation Act. Thus, the current mandates under federal law and regulations, including all of the due process appeal procedures that currently govern a state VR agency (see Chapter 10), would apply to tickets administered by the state VR agency.
C. Dispute resolution
1. SSA is required to create a mechanism for resolving disputes between beneficiaries and employment networks, between program managers and employment networks, and between program managers and providers of services.
2. A special concern here is that the law does not mandate an opportunity for a due process hearing, similar to the hearing authorized under Title I of the Rehabilitation Act, for a beneficiary who wishes to challenge a decision regarding the denial of services under the Ticket program. The law provides only that SSA "shall afford a party to such a dispute a reasonable opportunity for a full and fair review of the matter in dispute."
3. Advocates anxiously await SSA's enactment of regulations on dispute resolution. Those regulations are expected to come out in proposed form (i.e., published in the Federal Register, with public comment invited) during the first half of 2000.
D. What services are available under a Ticket?
"Services provided under the Program may include case management, work incentives planning, supported employment, career planning, career plan development, vocational assessment, job training, placement, follow-up services, and such other services as may be specified by [SSA] under the Program."
E. Individual Work Plans (IWPs)
1. Services are to be provided under IWPs.
2. An IWP must include:
a. A statement of the vocational goal developed with the beneficiary, including, as appropriate, goals for earnings and job advancement;
b. A statement of necessary services and supports;
c. A statement of any terms and conditions related to the provision of such services and supports; and
d. A statement of understanding regarding the beneficiary's rights under the Program (such as the right to retrieve a ticket if the beneficiary is dissatisfied with the services being provided by the employment network) and remedies available to the individual, including information on the availability of Protection and Advocacy services to resolve disputes.
3. Beneficiaries can amend the IWP as circumstances dictate.
4. An IWP is effective upon written approval by both the beneficiary (or his/her representative) and a representative of the employment network.
F. Election of payment system by employment networks
1. Employment networks can choose to be paid by either an "outcome payment system" or an "outcome-milestone system."
2. Outcome payment system
a. This provides for a schedule of payments to a network for each month, during a beneficiary's "outcome payment period," for which SSI or SSDI benefits are not payable to the individual because of earnings.
b. The payment to the network is based on a fixed percentage formula that does not exceed 40 percent of the payment calculation base.
c. What is the "payment calculation base?"
(1) For SSDI beneficiaries, it is the average SSDI benefit for all beneficiaries for months during the preceding calendar year.
(2) For SSI beneficiaries, it is the average SSI benefit based on disability (without state supplement) for months during the preceding calendar year, for beneficiaries between 18 and 64 years old.
3. Outcome milestone payment system
a. This payment system provides for one or more milestones that are directed toward the goal of permanent employment.
b. This forms a part of a payment structure that provides, in addition to payments made during the outcome payment periods, earlier payments based on the attainment of milestones.
c. This payment system is set up so that the total payments to the network, for each beneficiary, is less than it would be if the network were paid under the outcome payment system.
d. The employment network that opts for the outcome milestone system would appear to have a greater assurance of a regular, predictable cash flow compared to the network opting for the potentially higher payments from the outcome payment system.
4. What is the "outcome payment period?"
a. It begins with the 1st month, following assignment of the beneficiary's ticket to the network, for which SSDI benefits are not payable because the person is performing substantial gainful activity or SSI benefits are not payable because of earnings from work activity.
b. It ends with the 60th month (consecutive or otherwise) for which SSDI or SSI benefits are not payable because the person is performing SGA or because of earnings from work activity.
5. SSA must periodically review and, if necessary to create sufficient incentives to make the ticket system work, revise the outcome payment formulas and the number of milestone payments available.
G. Three-year report to Congress
1. Within three years of the Act's enactment, SSA must submit to Congress a report with recommendations for adjusting payment rates to ensure that employment networks have adequate incentives for provision of services to:
a. Individuals with a need for ongoing support and services;
b. Individuals with a need for high-cost accommodations;
c. Individuals who earn a sub-minimum wage; and
d. Individuals who work and receive partial cash benefits.
2. In developing its report, SSA must consult with the Ticket to Work and Work Incentives Advisory Panel.
H. Suspension of continuing disability reviews (CDRs)
1. During the period for which a beneficiary is using a ticket, SSA may not initiate a CDR or similar review to determine if the individual is no longer disabled.
2. The reader should consult Chapter 9 for the usual rules on when CDRs are to occur.
I. Ongoing evaluation: The Act provides for extensive and ongoing, independent evaluations of the ticket program
J. Pending full implementation of the Ticket provisions in a state: a state's vocational rehabilitation agency will have the "right of first refusal" to provide employment network services.
III. Advisory Panel
A. This 12-member "Ticket to Work and Work Incentives Advisory Panel" will advise the President, Congress, and SSA on issues related to work incentives programs, planning, and assistance for individuals with disabilities.
B. Who appoints members? President - 4; Speaker of the House - 2; Minority leader of House - 2; Majority leader of Senate - 2; Minority leader of Senate - 2.
C. A majority of members are to be persons with disabilities, or representatives of individuals with disabilities, with consideration given to current or former SSDI or SSI recipients.
D. Reports
1. The panel is to submit interim reports to the President and Congress at least annually.r">
2. A final report will be submitted to the President and Congress not later than eight years after the Act becomes law. Importantly, the report is to include recommendations for legislation and administrative actions which the panel considers appropriate.
IV. Elimination of the Work-Triggered Continuing Disability Review [Section 111]
A. Work-triggered continuing disability reviews (CDRs) will be eliminated effective January 1, 2002 for persons who have received SSDI benefits for at least 24 months. (For a discussion of the current law governing CDRs, see Chapter 9.)
B. For such individuals, no CDR may be scheduled solely as a result of the individual's work activity.
C. No work activity may be used as evidence that the individual is no longer disabled and no cessation of work activity may give rise to a presumption that the individual is unable to engage in work.D. Persons affected by this section will still be subject to regularly scheduled CDRs that are not triggered by work activity(2) and will be subject to termination of benefits if they perform substantial gainful activity by earning more than $700.
V. Expedited Reinstatement of Disability Benefits [section 112]
A. These "Easy Off, Easy On" provisions are effective beginning with the 13th month following the date of enactment of the Act (i.e., January 1, 2001).
B. SSDI provisions
1. SSDI benefits shall be reinstated without a new application:
a. If the individual was eligible for SSDI; and
b. The individual lost SSDI due to performance of SGA; and
c. The individual files a request for reinstatement within 60 months of the last month of entitlement, or, if the individual files a request for reinstatement after 60 months, the individual establishes good cause for missing the 60-month deadline; and
d. The individual's disability is the same as (or related to) the physical or mental disability that was the basis for their original claim; and
e. That disability renders the individual incapable of SGA.
2. SSDI dependent's benefits may be reinstated if the dependent satisfies all of the requirements for entitlement to the benefits, except requirements relating to the filing of an application.
C. SSI provisions
1. SSI benefits shall be reinstated without a new application if:
a. The individual was eligible for SSI on the basis of a disability or blindness; and
b. The individual became ineligible for SSI due to earned income (or earned and unearned income) for 12 or more consecutive months; and
c. The individual files a request for reinstatement within 60 months of the last month of entitlement; and
d. The individual's disability is the same as (or related to) the physical or mental disability that was the basis for their original claim; and
e. That disability renders the individual incapable of SGA; and
f. The individual satisfies SSI's non-medical requirements (i.e., SSI's income and resource rules).
2. A disabled spouse's benefits will be reinstated if:
a. The spouse was previously an eligible spouse of the individual; and
b. The spouse satisfies all the eligibility requirements, except the requirement for filing of an application.
D. "Provisional benefits" pending reinstatement
1. While the SSDI or SSI reinstatement application is pending, the individual is eligible for up to six months.
2. If SSA eventually determines that the individual was not entitled to reinstatement, any resulting overpayment cannot be recovered unless SSA determines that the individual knew or should have known that he or she did not meet the reinstatement requirements.
VI. Work Incentives Outreach Program [Section 121]
A. This will be a community-based work incentives planning and assistance program established through grants, cooperative agreements, and contracts.
B. Up to $23 million is allocated for each fiscal year, 2000 through 2004.
1. We understand that Congress did not specifically appropriate funding for fiscal year 2000 and that SSA will fund the program from its own budget.
2. Money will be disbursed by SSA through a competitive process.
3. Money will be allocated based on the population of SSDI and SSI beneficiaries within a state.
4. Grants, cooperative agreements, and contracts awarded will range between $50,000 and $300,000.
C. Who qualifies for funding?
1. Any public or private agency or organization qualifies.
2. Specifically mentioned in the Act, as eligible for funding, are Centers for Independent Living, Protection and Advocacy Organizations, Client Assistance Programs, and State Developmental Disability Councils.
D. What services are to be provided by a funded program?
1. The funded program is expected to "select individuals who will act as planners."
2. "Planners" will provide information, guidance, and planning to SSDI and SSI beneficiaries regarding:
a. Federal and state work incentive provisions;
b. Adequacy of health insurance benefits that may be offered by an employer; and
c. Preparation and dissemination of written information explaining work incentives.
E. Establishment of complimentary resources within SSA
1. SSA is required to establish its own "corps of trained, accessible, and responsive work incentive specialists ... who will specialize in [SSDI and SSI] work incentives ... for the purpose of disseminating accurate information ..."
2. SSA is also required to provide training and technical assistance to the private agencies receiving funding under this section.
VII. State Protection and Advocacy Program [Section 122]
A. SSA is authorized to fund each state's Protection and Advocacy (P&A) System to provide "work incentives assistance" to SSDI and SSI beneficiaries.
B. The Act is vague about what services are authorized under this new program. It states only that services may include:
1. "[I]nformation and advice about obtaining vocational rehabilitation and employment services"; and
2. "[A]dvocacy or other services that a disabled beneficiary may need to secure or regain employment."
C. Funding available:
1. $7 million per year is authorized for fiscal years 2000 through 2004.
2. We understand that Congress did not specifically appropriate funding for fiscal year 2000 and that SSA will fund the program from its own budget.
3. In states, including the District of Columbia and Puerto Rico, the minimum annual payment for a P&A is $100,000.
4. In Guam, American Somoa, the United States Virgin Islands, and the Commonwealth of the Northern Mariana Islands, the minimum annual payment for the P&A is $50,000.
VIII. Expansion of the Optional State Medicaid Buy-In Program [Section 201]
A. Background: This optional program was created by section 4733 of the Balanced Budget Act Amendments of 1997.
1. States can choose whether or not to offer the buy-in. Subject to federal criteria, a state can choose to structure the buy-in as it sees fit.
2. Largely due to fears of rising Medicaid costs, fewer than 10 states had initiated or were in the process of initiating buy-in programs through the date the Act was signed.
3. A "buy-in" to Medicaid is designed to provide health insurance to working people with disabilities who, because of relatively high earnings, cannot qualify for Medicaid under another provision.
4. Key federal eligibility criteria for Buy-In
a. Eligible individuals must be in a family whose net income is less than 250 percent of the federal poverty level. A single individual is in a family of one.
b. Except for the individual's earnings, the person with a disability would be considered eligible for SSI benefits. This includes the definition of disability.
c. Each state determines its own definition of a "family."
d. All SSI exclusions apply to the determination of family income, including the earned income exclusions.
e. Individuals are not required to have been on SSI to be eligible for this new Buy-In provision.
f. The State must make a disability determination if an individual was not an SSI recipient.
g. Substantial gainful activity (i.e., earnings in excess of $700 monthly) is not an eligibility consideration.
h. States can increase the resource limits to as high as $14,000.
5. States, at their option, can charge premiums or other cost-sharing charges.
B. How the Act makes Buy-In program more attractive
1. One option builds on the existing provision and allows states to offer a Medicaid buy-in to persons with disabilities who work and have earnings greater than 250 percent of the poverty level.
a. Participating states will be allowed to set income limits and require cost-sharing and premiums, based on income, on a sliding scale. A state could require some individuals to pay the full premium as long as the premiums do not exceed 7.5 percent of the individual's total income.
b. States must require a 100 percent premium payment for individuals with adjusted gross incomes greater than $75,000 unless states choose to subsidize the premium using their own funds.
2. A second option allows states to cover individuals who continue to have a severe disability, but lose eligibility for SSI or SSDI because their medical condition improves.
IX. Extended Medicare for SSDI Recipients [Section 202]
A. This provision is effective October 1, 2000.
B. Background: Under existing law, an SSDI recipient is entitled to continued Medicare coverage during a nine-month trial work period and for an additional 39 consecutive months following the ninth trial work month.
1. During this entire period (48 months), Medicare Part A coverage is automatic and cost-free.
2. During this entire period, Medicare Part B continues to be optional and subject to premium payment ($45.50 per month in 2000).
C. The new law extends Medicare eligibility, under the same terms, for an additional 4 and ½ years (i.e., 54 months).
X. SSDI Demonstration Projects and Studies
A. Extension of SSDI demonstration project authority [section 301]
1. Background: Currently, SSA has authority to conduct demonstration projects for SSI recipients, in which certain SSI rules will be waived to determine if the change in rules will make the individual more likely to work. Similar authority for SSDI recipients expired in 1996.
2. These provisions, which are appear to effective upon enactment of Act, reestablish SSA's demonstration or waiver authority to test new work incentives for SSDI recipients designed to encourage them to work.
3. SSA is authorized to develop and carry out "experiments and demonstration projects" under specific categories:
a. Testing alternative methods of treating the work activity of SSDI beneficiaries, including reductions in benefits based on earnings;
b. Altering "other limitations and conditions" that apply to SSDI beneficiaries, such as:
(1) Lengthening the trial work period;
(2) Shortening the 24-month waiting period for Medicare benefits;
(3) Making earlier referral of recipients for vocational rehabilitation; and
(4) Making greater use of employers and others to develop, perform, and otherwise stimulate new forms of rehabilitation.
c. Implementing sliding scale benefit offsets using variations in:
(1) The amount of the offset as a proportion of earned income;
(2) The duration of the offset period; and
(3) The method of determining the amount of income earned by beneficiaries.
4. Authority to waive compliance with benefits requirements
a. The Commissioner of SSA is specifically authorized to waive compliance with any SSDI provisions for demonstration projects.
b. The Secretary of the Department of Health and Human Services is authorized to waive compliance with any Medicare provisions as necessary for demonstration projects.
B. SSDI demonstration projects based on benefits reduction formulas [section 302]
1. SSA is required to conduct demonstration projects to evaluate, through data collection, a program under which SSDI benefits are reduced by $1 for each $2 of a beneficiary's earnings "that is above a level to be determined by the Commissioner."
2. Authority to waive compliance with benefits requirements
a. The Commissioner of SSA is specifically authorized to waive compliance with any SSDI provisions for demonstration projects.
b. The Secretary of the Department of Health and Human Services is authorized to waive compliance with any Medicare provisions as necessary for demonstration projects.
NOTE: This chapter does not include a discussion of the following provisions of the Act: Grants to Develop and Establish State Infrastructure to Support Working Individuals with Disabilities; Demonstration of Coverage Under Medicare of Workers with Potentially Severe Disabilities; and Election to Suspend Medigap Insurance When Covered Under a Group Health Plan.
1. References are to sections of the Act. As this is written, the statute is not yet codified as part of title 42 of the United States Code.
2. Under the new Ticket provisions, an individual will not be subject to a CDR during the period for which he or she is using a ticket. See section II.H, above.