The Social Security Administration (SSA) is proposing regulations which may make it more difficult for people who don’t speak English to qualify for disability benefits.
Under planned regulations released February 01, 2019, the SSA would no longer consider a person’s “inability to communicate in English” when reviewing applications, both for Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI) benefits.
The SSA estimates that the move will cut the disability rolls by more than 10,000 non-English speaking claimants.
To qualify for SSDI or SSI, a person must have a disability, expected to last more than one year, preventing them from working, described in SSA parlance as an “inability to engage in any substantial gainful activity.”
When determining an applicant’s potential employment prospects, the SSA considers the person’s age, work experience and education. The education category divides applicants into four subcategories: high school education and above, marginal education, limited education, and “illiterate or unable to communicate in English.”
Existing regulations further specify that the SSA only considers a person’s ability to communicate in English where the applicant is age 45 or older, on the assumption that it is more difficult for older individuals to become fluent in English and thus become employable.
As the SSA now sees it, people who are “illiterate” or are “unable to communicate in English,” should never be grouped together, noting throughout the proposed regulations that many people lacking fluency in English may nonetheless have been highly educated in their home countries. As further support for its contention, the SSA argues that as the workforce continues to diversify, it is now easier for older people to learn English and thus improve their employment prospects.
“Changes in the national workforce since we added this category to our rules in 1978 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,” the regulations state.
The SSA is accepting public comments on the proposal through April 02, 2019.
A summary of the proposed regulation is attached here –
(This blog post is adapted from an article on the Special Needs Planners website. Mr. Vanarelli is a founding member of Special Needs Planners.)
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ABOUT DONALD D. VANARELLI
Donald D. Vanarelli has been a practicing attorney since 1983 in New Jersey and New York. Don provides legal services in the areas of elder law, estate planning, trust administration, special education, special needs planning and trial advocacy, including probate litigation, will contests, contested guardianships and elder abuse trials.
Don is a Certified Elder Law Attorney, an Accredited Veterans Attorney and a Past Chair of the Elder and Disability Law Section of the New Jersey State Bar Association. Don is a recipient of the Lifetime Achievement Award, the highest honor given by the New Jersey State Bar Association – Elder and Disability Law Section. The Lifetime Achievement Award is bestowed on an attorney with an established history of distinguished service who has made significant contributions in the field of elder and disability law throughout his or her career.
Don is actively involved in trial advocacy on behalf of elderly and disabled citizens. Don represented the plaintiff in a pivotal special needs trust case decided by the New Jersey Supreme Court entitled Saccone v. Police and Firemen’s Retirement System, 219 N.J. 369 (2014). He also represented the plaintiff in a seminal estate planning / guardianship / Medicaid planning case entitled In re Keri, 181 N.J. 50 (2004). Don was also co-counsel representing the plaintiff in Galletta v. Velez, Civil No. 13-532 (D.N.J. June 3, 2014) in which a federal court ruled, for the first time, that a pension from the Department of Veterans Affairs may not be counted as income in determining Medicaid eligibility.
When he’s not working, Don spends his time with his wife, Marion, and his three children, Julianne, Evan and Alex.
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