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October 21, 2003
Martin Gerry, Deputy Commissioner for the
Office of Disability and Income Security Programs
6401 Security Blvd., Room 100Altmeyer
Baltimore, MD
Robert Pasternack, Ph.D., Assistant Secretary for the
Office of Special Education and Rehabilitative Services
300 Independence Ave SW, Room 301
Washington, DC
Dear Mr. Gerry and Dr. Pasternack:
On behalf of the Ticket to Work and Work Incentives Advisory Panel (the Panel) I want to thank both of you for attending the Panel's quarterly meeting in May to discuss the implementation of the Ticket Program and Title I VR Program interaction. We also appreciated our dialogue with Mr. Gerry as well as Jennifer Sheehey and Beverlee Stafford at our most recent quarterly meeting in August. In May, we were very pleased to hear your views on national disability policy and on the implementation of the Ticket to Work and Work Incentives Improvement Act (the Act). This letter provides a follow up on our discussion with you, requesting a joint response from the Social Security Administration's Office of Disability and Income Security Programs (SSA, ODISP) and from the Office of Special Education and Rehabilitative Services', Rehabilitation Services Administration (OSERS, RSA), to our remaining program coordination and policy questions.
Based on public and informal comments to Panel members, we face serious problems in terms of how the State Vocational Rehabilitation Agencies (SVRAs) are interacting with employment networks (ENs) in implementing the Ticket Program. On balance, we have not seen a productive melding of the rehabilitative expertise of VR with the flexibility and follow-up support services of ENs. The Panel believes that several problems—SSA’s Transmittal 17, agreements between State VR and ENs, and comparable services and benefits—affect the quality of services under both programs to hundreds of thousands of SSI recipients and SSDI beneficiaries and that, if left unresolved, they may undermine the entire Ticket Program. In this letter we discuss each of these problems in some detail, making the following specific recommendations:
Transmittal 17: Based on our understanding of the statute, Transmittal 17 should be amended to end the current use of the signed IPE as documentation needed for assignment of a ticket for a new case. Assignments of tickets should only occur through an informed action on the part of the beneficiary, such as completion of Form SSA-1365. Cost Reimbursement should only be available for use by a State VR Agency when the agency indicates that it is not participating in the Ticket program with a beneficiary.
Agreements between State VR agencies and ENs: Although the Panel is aware that each SVRA is a State entity and free to design their agreements as they see fit, it is disappointed that no guidance has been given to States regarding these agreements. Due to the damaging effect on consumers and the Ticket program, the Panel urges SSA and RSA to formulate joint policy governing the contents of the agreements and dissemination of a model agreement to rectify this problem.
Comparable Services and Benefits: The Panel is convinced that Congress did not intend to make persons with disabilities ineligible for Title I VR services by the very act of making them eligible for EN services. The Panel urges RSA to acknowledge this problem, correct the misuse of the comparable benefits provision, and provide substantive technical assistance to State agencies on the issue.
Transmittal 17 - Vocational Rehabilitation Providers Handbook, September 03, 2002
The Panel finds two areas in which SSA’s Transmittal 17 is inconsistent with provisions of the TWWIIA legislation. (1) Under Transmittal 17, in new cases the client’s signature on the IPE constitutes assignment of the ticket, even though this may occur without the knowledge or consent of the client. (2) Transmittal 17 indicates that cost reimbursement is available as a payment option for clients who have assigned their tickets with VR.
A statement from an invited Iowa VR official during the Employment Network Summit and documents provided to us by New York State VR officials both raise serious policy questions about the sub-regulatory guidance issued by the Social Security Administration to State VR agencies in Transmittal 17, dated August 30, 2002. According to Transmittal 17, for a new case “the signatures on the IPE indicate that: the beneficiary has decided to use the ticket to obtain services from the State VR agency, if the ticket is assignable . . .” It is possible to follow this procedure while fully informing the client that signing the IPE automatically assigns his or her Ticket. However, it seems to be the perception of many agencies that signing the IPE automatically assigns to ticket, even if there has been no provision to ensure the client’s knowledge or consent. In fact, the Panel has heard from VR officials around the country that if a State VR agency follows the SSA guidance they would be in violation of the informed choice provisions of the Rehabilitation Act.
The Panel understands that it may be important to ensure that a new client has assigned the ticket so that he or she is protected from Continuing Disability Reviews (CDRs) while attempting to return to work. Although CDR protection is a compelling reason for assigning a ticket, there is no reason that the advantages of such protection cannot be explained to the client as one of the factors in his or her choice.
The Panel believes that automatic and uninformed assignment is contrary to the fundamental principles of the Ticket to Work and Work Incentives Improvement Act. Ticket assignment should be completely separate from the development of an IPE with an SVRA, and an individual’s assent to one program should not be considered consent for participation in the other. A primary goal of the TWWIIA legislation was to provide beneficiaries with real choices between employment service providers. An equally important goal was to expand the pool of providers far beyond the State VR agencies. A beneficiary who is not informed of what is happening to his or her Ticket is being denied choice and, furthermore, non-VR ENs are being denied an opportunity to compete to provide services to the client. This effectively eliminates competition between providers.
Ticket holders who are not currently on SVRA caseloads who approach an SVRA for services should have the following options:
- Assign their Ticket to the SVRA;
- Receive services from the SVRA, but assign their Ticket to an EN;
- Not assign their Ticket to the SVRA or an EN – retain their Ticket for assignment at a later
date;
- Unassign their Ticket from the SVRA or an EN and reassign it to another EN.
In addition, under Transmittal 17 if a client assigns his or her ticket to a VR agency then the VR agency can opt to use the traditional cost-reimbursement payment system. However the statute permits a State VR agency to elect to receive payment under section 222(d) of the Social Security Act, the traditional cost reimbursement program, only when the State agency decides that the beneficiary will not participate in the Ticket Program. Moreover, if the State agency accepts the beneficiary’s ticket then it must be paid under one of the outcome-based payment systems, accepting the same risks and rewards as other ENs. See Section 101 of the Act:
. . . "(c) STATE PARTICIPATION (1) In General - Each State agency administering or supervising the administration of the State plan approved under title I of the Rehabilitation Act of 1973 (29 U.S.C. 720 et seq) may elect to participate in the Program as an employment network with respect to the disabled beneficiary. If the State agency does elect to participate in the Program, the State agency shall also elect to be paid under the outcome payment system or the outcome-milestone payment system in accordance with subsection (h)(1). With respect to a disabled beneficiary that the State agency does not elect to have participate in the Program, the State agency shall be paid for services provided to that beneficiary under the system for payment applicable under section 222(d) and subsections (d) and (e) of section 1615." (emphasis added)
Hence, Transmittal 17 appears to be inconsistent with the statute both with respect to uninformed use of a signature on an IPE to assign the ticket and the use of cost-reimbursement for Ticket Program clients. Based on our understanding of the statute, Transmittal 17 should be amended to end the current use of the signed IPE as documentation needed for assignment of a ticket for a new case. Assignments of tickets should only occur through an informed action on the part of the beneficiary, such as completion of Form SSA-1365. Cost Reimbursement should only be available for use by a State VR Agency (SVRA) when the agency indicates that it is not participating in the Ticket Program with a beneficiary. Clear guidance from SSA and RSA is needed on how the State agency should document its decision to not use the Ticket Program and how this decision will not negatively affect future use of the ticket by a beneficiary.
State VR and Employment Network Agreements
The Panel has received extensive public input about problems with some agreements between SVRAs and ENs. To begin with, the agreements vary greatly from state to state and, in itself, this variation poses a problem. It can affect the number and variety of ENs that choose to participate in a given state. Many ENs know that they cannot afford to pay for frontloaded, high cost services, but they could serve clients requiring such services if they could make referrals to the SVRA. For this reason, if a state has an agreement that is unfavorable to ENs, an organization will have much less of an incentive to sign up as an EN in that state.
The Panel is concerned that some agreements favor SVRAs at the expense of ENs, discouraging organizations from participating in the Ticket program as ENs and, ultimately, limiting consumer choice. In some cases, the ENs have had little or no input in deciding the terms of the agreement. A recent report (Evaluation Design for the Ticket to Work Program: Preliminary Process Evaluation, The Lewin Group, March 11, 2003) identifies four types of problematic agreements:
1. Agreements that require ENs to reimburse VR for all VR costs to serve a Ticket holder who has assigned the Ticket to a non-VR EN (Colorado, Oregon, New York).
2. Agreements that require all Tickets in the VR/EN partnership to be assigned to the VR agency (Massachusetts, Vermont).
3. Agreements that require the EN to share income with VR over and above the VR cost to serve a specific Ticket holder (Connecticut). In this case the EN bears a disproportionate share of the risks and VR takes a disproportionate share of the payments.
4. Agreements that require the EN to repay the VR agency for the costs of services provided before the EN has received any payments through the Ticket program (Delaware). Once again, in such agreements it is the EN that assumes the risk.
We believe the variance and unfairness of such agreements is resulting in lower participation by ENs in the Ticket Program and thus limiting choice for consumers. Although the Panel is aware that each SVRA is a State entity and free to design their agreements as they see fit, it is disappointed that no guidance has been given to States regarding these agreements. Due to the damaging effect on consumers and the Ticket Program, the Panel urges SSA and RSA to formulate joint policy governing the contents of the agreements and to disseminate a model agreement to rectify this problem.
Comparable Services and Benefits
In May, the Panel asked RSA for an interpretation of how the comparable benefits provision, a statutory requirement under the Rehabilitation Act, affects the Ticket Program. Comparable benefits is designed to ensure against duplication and waste of program funds, requiring that, before providing
services to any individual, the State VR agency must ensure that the services are not available through any other program. More specifically, the Rehabilitation Act provides:
"Comparable Service and Benefits -
(A) Determination of availability
(i) In general - The State plan shall include an assurance that, prior to providing any vocational rehabilitation service to an eligible individual, except those services specified in paragraph (5)(D) and in paragraphs (1) through (4) and (14) of section 723(a) of this title, the designated State unit will determine whether comparable services and benefits are available under any other program (other than a program carried out under this subchapter) unless such a determination would interrupt or delay
(I) the progress of the individual toward achieving the employment outcome identified in the individualized plan for employment of the individual in accordance with section 722(b) of this title;
(II) an immediate job placement; or
(III) the provision of such service to any individual at extreme medical risk."
RSA has recently provided the Panel with three explanations of the application of comparable services and benefits; the definition in the program regulations issued in 1998, an analysis from the preamble of those regulations by the Department of Education officials at that time, and a verbal interpretation at the Panel’s recent August 2003 quarterly meeting. Here are the three definitions:
1. RSA staff responded to the Panel's question with an interpretation and a quote from the preamble of recent regulations:
“Based on that definition, it is clear that a Ticket issued by the Social Security Administration constitutes a comparable service and benefit.”
2. In the appendix discussion of the regulations implementing the 1998 amendments to the Rehabilitation Act, the following statement appears:
“Because Social Security recipients with disabilities are issued ‘tickets’ under TWWIIA in order to receive training and employment-related services from an employment network as defined in that act, we believe that the ticket constitutes a comparable service and benefit under the VR program. (emphasis added) Thus, to the extent that a ticket holder is receiving services from another entity that is serving as that individual's employment network, the designated state unit (DSU) need not expend VR program funds on services that are comparable to the services the individual is already receiving. On the other hand, if the individual initially chooses that DSU as its (sic) employment network under TWWIIA, or otherwise transfers his or her ticket to the DSU, then the individual would be served solely by the DSU, and the ticket would not be considered a comparable service or benefit.”
The policy in question was developed by RSA and issued without seeking the input of SSA or the Panel. It was issued soon after the passage of the Ticket to Work and Work Incentives Improvement Act legislation, prior to publication of the Ticket Program regulations and prior to implementation of the Ticket Program.
3. In explaining comparable benefits at the Panel’s recent meeting, Beverlee Stafford stated that for a service to be a comparable benefit it must be,“. . . available if the person needs it, and if it would delay that person’s plan for employment it would not necessarily be a comparable benefit. And then it has to be commensurate with a service available through the public VR system.”
The Panel believes these three explanations of comparable benefits are inconsistent. This is a problem in itself as State agency officials may shape very different policies, depending on their understanding of the application of comparable benefits to Ticket Program participants. However, the Panel also believes that using any of these interpretations to deny services is inappropriate and highly questionable. For example--
State X is not under an order of selection. The individual is an SSI recipient or SSDI beneficiary and has been issued a Ticket. The individual chooses to assign their Ticket to a local private EN and the EN has an approved provider agreement with Maximus which says that they only provide case management, job development, job placement and follow along services. The individual in question needs high cost services normally provided by VR but beyond the scope of the EN. The individual also completes an application for VR services and fully meets all Title I eligibility requirements.
Questions: Can the SVRA deny the individual access to high cost services that they would otherwise be eligible for if they had not assigned their Ticket to the EN? If a service is not “available from an individual’s EN, or any EN, is it truly a comparable benefit? Would a State be in violation of their approved State Plan if they denied services to this individual? Would a State be in violation of their State plan if the effect of their agreements with an EN is to deny consumers the right to exercise informed choice in the assignment of their Ticket? If so, doesn't RSA already have the authority to enforce State Plan requirements and thus, find such agreements in violation of the law and regulations governing Title I?
In summary, prior to the Ticket Program, SSA beneficiaries were presumed eligible for Title I services. Post the Ticket Program, some SVRAs have used the comparable benefits provisions of the Rehabilitation Act to deny eligibility to SSI recipients and SSDI beneficiaries so that in negotiating SVRA/EN agreements, SVRAs have exacted favorable terms under which Title I services would be provided. We believe RSA's application of comparable services and benefits to the Ticket Program participants is contrary to Congress' intent in the Ticket to Work and Work Incentives Improvement Act, as well as in the Rehabilitation Act itself. In the Ticket Program, Congress voted for increasing variety and choice in rehabilitative and employment services. The Panel is convinced that Congress did not intend to make persons with disabilities ineligible for Title I VR services by the very act of making them eligible for EN services. The Panel urges RSA to acknowledge this problem, correct the misapplication of the comparable benefits provision, and provide substantive guidance and technical assistance to SVRAs on the issue.
Beyond addressing these specific issues, we ask that you provide leadership to increase the level of cooperation between SSA and RSA on these issues, so that both agencies will approach the current Ticket/VR tensions with a sense of shared purpose. Specifically, too much of the current SVRA/EN relationship reflects SVRA efforts to defend a threatened source of funding. Although the point has been raised at RSA conferences, there is not yet a broad recognition that constructive SVRA/EN interaction could create a substantial new SVRA clientele — persons needing traditional vocational rehabilitation services but also needing the longer-term follow along supports that ENs can provide. Persons with mental illness—a huge and under-served population—are a good example of a potential new clientele.
With this letter we are extending a permanent invitation to the Commissioner of the Rehabilitation Services Administration and to the Assistant Secretary of OSERS to provide the Panel with quarterly updates on services provided to SSI and SSDI beneficiaries. The updates dould be similar to the implementation updates provided by the SSA and HHS on the Ticket to Work and Work Incentives Improvement Act programs but focussed on the SVRA activity. The Panel has also asked that two designated Panel members meet with the Commissioner of the Rehabilitation Services Administration on these and other coordination issues. Our Executive Director, Marie Strahan, will be in touch with the Commissioner Wilson’s office soon to set up a meeting on these concerns.
Again, thank you both for your work with the Advisory Panel. We look forward to a continuing dialogue with you to promote a more productive Federal partnership on these and other issues related to improving rehabilitation services for people with disabilities.
Sincerely,
/s/
Sarah Wiggins Mitchell
cc:
The Honorable President George W. Bush
The Honorable Max S. Baucus
Committee on Finance
The Honorable Charles Grassley
Chairman, Committee on Finance
The Honorable John Breaux
Chairman, Social Security Subcommittee
The Honorable John Kyl
Social Security Subcommittee
The Honorable Bill Thomas
Chairman, House Ways and Means
The Honorable Charles Rangle
House Ways and Means
The Honorable Clay Shaw
Chairman, Social Security Subcommittee
The Honorable Robert Matsui
Social Security Subcommitte
JoAnne Barnhart, Commissioner
Social Security Administration
Ramona Frentz, Acting Associate
Office of Employment Support Programs
Commissioner Joanne Wilson,
Rehabilitation Services Adminstration |
