Neighborhood Legal Services, Inc.

SOCIAL SECURITY ADMINISTRATION (SSA) ISSUES
NEW POLICIES GOVERNING PASS

"Emergency Instructions" Will Make It Easier to Have PASS
Approved, Amended or Reinstated

     On November 28, 1997, SSA issued Emergency Instructions governing the Plan for Achieving Self Support (PASS). Responding to severe criticism from persons with disabilities and their advocates, SSA 's new policy clarification [EM-97-191] addresses many of the major concerns about the implementation of policies issued in April 1996. On December 1, 1997, SSA's Carolyn Colvin, Deputy Commissioner for Programs and Policy, issued a Statement and attached Summary Sheet which describes the policy changes.

     We previously described the PASS as an income and resource exclusion rule of the Supplemental Security Income (SSI) program, allowing persons with disabilities to accumulate income and resources to purchase assistive technology (AT) and other goods and services related to a vocational goal. We explained the 1996 policy changes and how they could be expected to affect PASS applications. See IMPACT (May-June 1997); PASS: Supplemental Security Income's Plan for Achieving Self Support, 30 Clearinghouse Review 1101 (March-April 1997). This summary supplements those articles.

     The 1996 Program Operations Manual System (POMS) provisions [POMS SI 00870.001 (April 1996)], if interpreted liberally, should have allowed for the interpretations now contained in the Emergency Instructions. However, most of SSA's PASS Specialists have been very restrictive in interpreting these policies. The resulting statistics have been staggering. In the quarter ending December 31, 1995, 10,332 PASSes existed nationwide. On September 30, 1997, that number was down to 2,483. This is a 76 percent drop off that neither the documented nor perceived abuses of the PASS, prior to 1996, could justify.

     The following is a brief description of the major provisions contained in the Emergency Instructions:

• Entry level positions: Under the new policy, the "occupational goal must be the earliest point on the career path at which earnings can reasonably be expected to cover . . . living expenses (as they exist during the PASS), uncovered medical expenses, and work-related expenses. In this context, prior education and training are relevant only to the extent that they would enable the individual to achieve the occupational goal without the steps and expenses provided for in the PASS."
  
  The new policy would appear to allow a person to use a PASS to pursue an advanced degree if the "profession of the individual's choice" required this degree to enter this profession. It would also appear to allow approval of a PASS even if the person is already working or about to start work if the level of income to be generated would not currently meet the expenses listed above.

• Feasibility of goal, feasibility of plan: The new policy requires SSA to look separately at the feasibility of the goal and the plan. When the PASS is denied based on feasibility concerns, SSA's notice must state whether it is the goal or the plan that is not considered feasible. The new policy clarifies that both the goal and the plan are presumed feasible if the PASS is prepared by a vocational rehabilitation (VR) professional. It requires the PASS Specialist to discuss the matter with the VR professional if he or she is prepared to reject the VR professional's opinion. Similarly, before denying a plan as not feasible the PASS Specialist must "contact the PASS applicant, explain why the plan is not viable, and discuss modifications that would make the plan viable."
  
• Start-up costs, down payment, installment payments: Existing guidelines suggest that PASS approvals would be strictly limited to start-up costs and down payments. Exceptions to these rules were either ignored or misunderstood. The new policy states that "if a major purchase is found reasonable and necessary, funds set aside for it will be excluded to the extent that the expense remains necessary to achieve an approved goal and earnings do not negate the need to continue the exclusion. In other words, funds set aside for installment payments may now be excluded."
  
• Communication with PASS Specialists: The new policy puts special obligations on the PASS specialist to communicate directly with the SSI recipient who has an approved PASS. In addition to the periodic compliance reviews, the PASS Specialists "will augment these reviews with periodic progress checks . . . to see if the individual has encountered or foresees any problems . . . ."

• Departure from the plan, retroactive amendments: "When there has been a departure from the plan, or a change has occurred, and the departure or change does not compromise the integrity of the plan, it should be incorporated as a retroactive amendment." In light of the new requirements for progress checks, it is reasonable to expect that the PASS Specialist will assist the individual in determining when an amendment is necessary.
  
• Notice to persons whose PASSes were denied, 4/96 to 12/97 -- right to submit new PASS: "Anyone whose PASS was terminated or denied after March 1996 will be contacted, informed of these changes, and invited to submit a new PASS." Since many individuals were probably denied or terminated under an improper interpretation of PASS policy, advocates must be vigilant to make persons with disabilities and others aware of this requirement.
  

     These revised policies represent a significant move forward by SSA, encouraging the approval of PASS applications when the individual facts show that the income or resources to be set aside are truly needed to help the person achieve the chosen vocational goal. We are hopeful that the new policies and statement from Deputy Commissioner Colvin also represent an attitudinal change by SSA and that its PASS Specialists will begin to issue decisions that will allow persons with disabilities to achieve true self support.

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