Income at Risk: Unemployment Slows For Some, But Not People with Disabilities, Allsup Finds

Rising Social Security disability applications begin to stabilize; financial strains continue for many people with disabilities and their families

Belleville, Ill. – April 20, 2011 – During first quarter 2011, the unemployment rate for people with disabilities continued to significantly outpace the unemployment rate for other workers, according to the quarterly Allsup Disability Study: Income at Risk.Allsup is a nationwide provider of Social Security Disability Insurance (SSDI) representation and Medicare services.

The Allsup study shows people with disabilities experienced an unemployment rate approximately 60 percent higher than people with no disabilities for the first quarter 2011. Specifically, the unemployment rate for the first quarter averaged 14.9 percent for people with disabilities, compared to 9.3 percent for others, according to non-seasonally adjusted data from the U.S. Bureau of Labor Statistics (BLS).

Since the BLS began reporting unemployment rates for people with disabilities nearly three years ago, the lowest unemployment rate reported for people with disabilities was 11.1 percent, recorded in November 2008. In comparison, the highest unemployment rate for people with no disabilities during this time period topped out at 10.4 percent in January 2010.

“People with disabilities often face a significantly greater challenge in locating and maintaining employment,” said Paul Gada, personal financial planning director for the Allsup Disability Life Planning Center. “Their health conditions may make it difficult to continue working for extended periods of time, causing them to come in and out of the job market. As their conditions worsen, ultimately, hundreds of thousands find it is impossible to return to the work force.”

The BLS also reported that 45.5 percent of those individuals unemployed in March had been jobless for 27 weeks or more. This compares to 44 percent who had been jobless for 27 weeks or more during March 2010.

Number of New SSDI Claims Begins to Stabilize

The Allsup Disability Study: Income at Risk also shows that during first quarter 2011, the number of people with disabilities unable to work and applying for SSDI increased to 720,119, up just 1 percent compared with first quarter 2010. An estimated 1.8 million SSDI claims are pending in the Social Security review process with an average cumulative wait time of more than 880 days.

“It’s not easy to apply for Social Security disability benefits and many people experience significant financial hardship, including bankruptcy and foreclosure, while waiting years to receive their SSDI benefits,” Gada said.

Knowing if and when to apply for SSDI benefits are two important and complex decisions facing people with serious health conditions. “People with disabilities often wait longer than they should because they don’t understand the guidelines and their eligibility, and they haven’t sought the professional representation that could get them their benefits more quickly,” Gada said. “This can prolong their wait for the income provided by SSDI and add to their financial burdens.”

On the flipside, other individuals may be applying for Social Security benefits without meeting the guidelines. This further contributes to the delay experienced by those who do qualify for benefits.

SSDI Guidelines and Process

Generally, applicants are considered disabled by the Social Security Administration if:

• They cannot do the work they did previously;
• They cannot do any other work because of their disability; and
• Their disability has lasted or is expected to last at least one year, or result in death.

To qualify for SSDI, a person also must have worked and paid into the program (via FICA payroll taxes) for five of the last 10 years and be under retirement age. Studies show that a 20-year-old worker has a 3-in-10 chance of becoming disabled before reaching retirement, according to the Social Security Administration. However, only a small percentage of people with disabilities qualify for SSDI.

Gada noted that the SSDI guidelines are intentionally stringent and the application process requires an extensive amount of paperwork. This includes completing an initial disability insurance application and, in most instances, a detailed activities of daily living questionnaire. Information is needed on the person’s work history and the impact of the disability on his or her day-to-day activities. A doctor must verify information and additional medical exams may be required if there is not enough information to make a decision.

“SSDI is intended to be a financial safety net for people who have paid into the system and have serious, long-lasting disabilities that prevent them from working. For these individuals, it truly is a lifeline, providing monthly benefits as well as earlier access to Medicare and protection for their retirement income,” Gada said.

Individuals uncertain of their eligibility for disability insurance benefits can contact the Allsup Disability Evaluation Center at (800) 279-4357 for a free evaluation.

Allsup also provides free financial resources and tools to help people with disabilities better manage their finances while awaiting SSDI benefits. This includes information on establishing a budget, managing debt and healthcare costs, and learning about resources to better address financial issues such as bankruptcy and foreclosure. These resources are available online at MyFinances.Allsup.com.

ABOUT ALLSUP
Allsup is a nationwide provider of Social Security disability, Medicare and Medicare Secondary Payer compliance services for individuals, employers and insurance carriers. Founded in 1984, Allsup employs nearly 800 professionals who deliver specialized services supporting people with disabilities and seniors so they may lead lives that are as financially secure and as healthy as possible. The company is based in Belleville, Ill., near St. Louis. For more information, visit www.Allsup.com.

The information provided is not intended as a substitute for legal or other professional services. Legal or other expert assistance should be sought before making any decision that may affect your situation.

Editor’s Note: Details on the first quarter 2011 Allsup Disability Study: Income at Risk are available at http://www.allsup.com/Portals/4/allsup-study-income-at-risk-q1-11.pdf

What to Expect at a Social Security Disability Hearing

What to Expect at a Social Security Disability Hearing

Disability appeal may mean a hearing before a judge is the next step

Belleville, Ill. – April 22, 2011 – Many applicants for Social Security Disability Insurance (SSDI) benefits wait several years for an in-person hearing before an administrative law judge. Now that the hearing date is finally upon them, what should they expect? Allsup, which has successfully represented more than 150,000 people for their SSDI benefits, offers the following information and advice.

SSDI is a federally mandated disability insurance program that taxpayers and their employers fund through payroll taxes. Social Security disability benefits provide monthly income to those who have experienced a severe disability and can no longer work for 12 months or longer, or who have a terminal condition. Claimants’ whose SSDI applications are denied can pursue a disability appeal and, eventually, reach the hearing level. This is when a hearing before an administrative law judge is required in order to decide the claim for Social Security benefits.

How should I dress? The first rule, says Edward Swierczek, an Allsup senior claims representative with more than 37 years SSDI experience, is to just be yourself. “There’s no need to wear a business suit to the hearing,” he said. “Don’t try to be too spiffy. Wearing nice casual clothes is always appropriate, but don’t overdo the casual look by wearing shorts or a halter top because that’s just not appropriate in a court of law.”

What happens in the hearing room? Besides the claimant and his representative, if he has one, people attending the hearing will include the administrative law judge (ALJ), an assistant who records the proceedings, and usually a vocational or medical expert, or both. A claimant may bring a friend or family member to testify on his or her behalf. But their testimony will have, in most instances, minimal impact, Swierczek said, because most ALJs will consider their testimony somewhat prejudiced in favor of the claimant. However, the testimony will certainly be considered.

The proceedings begin when the judge swears in the claimant and asks general questions for the record. These may include establishing the claimant’s name, date of birth and Social Security number. The ALJ also may ask the claimant for his height, weight and living arrangements.

Often, the ALJ will ask direct questions about how a disability affects the claimant’s daily life. A typical question is, “Can you go shopping?” According to Swierczek, this is where a representative may interject with questions of his own to help clarify the claimant’s physical limitations. “Although the claimant may reply, ‘Yes, I can shop,’ this may not be the complete answer,” Swierczek pointed out. “Because I know the complete details of the claimant’s situation, I may ask my own questions to ensure the ALJ has all the information he needs to make an informed decision.

“For example, although the claimant can indeed go shopping, my questions may reveal that because his disability prevents him from driving to the grocery store, he has to rely on a neighbor for a ride to the store. Then, after he’s in the store, he has to ride a motorized scooter up and down the aisles and get help from a store employee to reach items on the top shelf.”

What happens next? After questioning the claimant, the ALJ may question the vocational expert if there are any jobs in the national economy the claimant can perform. A question to a medical expert may be an inquiry if the claimant is physically or mentally able to perform that type of work.

Although there are exceptions, as a rule, hearings usually last about an hour or less. Three things can happen at the conclusion of an SSDI hearing:

The ALJ will close the record and the claimant will receive a written decision, which may take up to six months. This is the most common method of receiving the ALJ’s decision.

The ALJ will make a bench decision, announcing at the hearing that he is awarding SSDI benefits.

The judge may indicate that he’s awarding benefits, but that the claimant will have to wait for a formal notification.

Swierczek added that although SSDI hearings are often stressful for the claimant, they are not intended to be confrontational.

“Generally, most judges are understanding and patient,” he said. “Their job is to hear all the facts and get all the information they need to make a determination if the claimant is eligible for SSDI benefits. The big thing for claimants to remember is to relax, be themselves, and answer all questions truthfully and completely.”

Individuals who have questions about handling their disability appeal, may contact Allsup’s Disability Evaluation Center at (800) 279-4357 for a free SSDI evaluation.

ABOUT ALLSUP

Allsup is a nationwide provider of Social Security disability, Medicare and Medicare Secondary Payer compliance services for individuals, employers and insurance carriers. Founded in 1984, Allsup employs nearly 800 professionals who deliver specialized services supporting people with disabilities and seniors so they may lead lives that are as financially secure and as healthy as possible. The company is based in Belleville, Ill., near St. Louis. For more information, visit www.Allsup.com

Disabled, but Looking for Work

Disabled, but Looking for Work

BATESVILLE, Ark. — Christopher Howard suffers from herniated discs in his back, knee problems and hepatitis C. As a result, Social Security sends him $574 every month and will until he reaches retirement age — unless he can find a job.

Christopher Howard, 36, with his wife, Darlene. “I would feel better if I worked and made my own money,” he said.

Christopher Howard and his wife live on his $574 a month disability check from Social Security. He is confident he will find a job.

Though he has been collecting disability checks for three years, Mr. Howard, who is just 36, desperately wants to work, recalling dredging for gravel rather fondly and repairing cell towers less fondly.

“It makes me feel like I am doing something,” said Mr. Howard, a burly man with a honey-colored goatee. “Instead of just being a bum, pretty much.”

Programs intended to steer people with more moderate disabilities back into jobs have managed to take only a small sliver of beneficiaries off the Social Security rolls.

Yet, at a time when employers are struggling to create spots for the 13.5 million people actively looking for jobs, helping people like Mr. Howard find employment — or keeping them working in the first place — is becoming increasingly important to the nation’s fiscal health.

For the last five years, Social Security has paid out more in benefits to disabled workers than it has taken in from payroll taxes. Government actuaries forecast that the disability trust fund will run out of money by 2018.

About 8.2 million people collected disabled worker benefits totaling $115 billion last year, up from 5 million a decade earlier. About one in 21 Americans from age 25 to 64 receive the benefit, according to an analysis of Social Security data by Prof. Mark G. Duggan, an economist at the University of Maryland, compared with one in 30 a little over a decade ago. In Mr. Howard’s home state of Arkansas, the figure is one in 12, among the highest in the nation.

Along with monthly checks that are based on the worker’s earnings history, beneficiaries generally qualify for Medicare — otherwise reserved for those over 65 — two years after being admitted to the disability rolls.

There are several reasons for the increase in beneficiaries. Baby boomers are hitting the age when health starts to deteriorate, and more people are claiming back and other muscular-skeletal ailments and mental illnesses than claimed those as disabilities a generation ago. Lawyers who solicit clients on television and on the Internet probably play a role. And administrative law judges say pressure to process cases sometimes leads to more disability claims being accepted.

But given the difficult job market, some economists say they believe that an increasing number of people rely on disability benefits as a kind of shadow safety net.

The program was designed to help workers who are “permanently and totally disabled,” and administration officials say that it is an important lifeline for many people who simply cannot work at all.

But Social Security officials can take into consideration a claimant’s age, skills and ability to retrain when determining eligibility. So one question is: How many of these beneficiaries could work, given the right services and workplace accommodations? Social Security officials say relatively few.

Nicole Maestas, an economist at the Rand Corporation, has examined Social Security data with fellow economist Kathleen J. Mullen, and concluded that in the absence of benefits, about 18 percent of recipients could work and earn at least $12,000 a year, the threshold at which benefits are suspended.

Other economists say that even among those denied benefits, a majority fail to go back to work, in part because of medical problems and a lack of marketable skills.

“In an atmosphere in which there is a concern about fiscal problems, it’s always easy to point the finger at groups and say, ‘These people should be working,’ ” said Prof. John Bound, an economist at the University of Michigan, “exaggerating the degree to which the disability insurance program is broken.”

Even if claimants have more ambiguous medical cases, once they are granted disability benefits, they generally continue to collect. Of the 567,395 medical reviews conducted on beneficiaries in 2009, Social Security expects less than 1 percent to leave because of improved health.

The benefits have no expiration date, like the current 99-week limit for collecting unemployment. And because many people spend years appealing denials and building their medical case before being granted benefits, their skills often atrophy and gaps open on their résumés, making it more difficult for them to get back to work.

Beneficiaries, who also fear losing health care coverage, may view their checks as birds in the hand. “Even if you’re taking just $800 or $900 a month, that’s better than nothing,” said Bruce Growick, an associate professor of rehabilitation services at Ohio State University.

Shortly after Mr. Howard’s benefit checks started arriving, he received a four-by-six-inch card from Social Security informing him of services to help him return to work. Confused by the bureaucratic language and fearing the loss of medical coverage, he discarded it. When he called the local office, he said a staff member did not seem to know what his rights were or what help was available.

“I thought it is just better to get what we are getting,” he said.

In fact, Social Security offers disability beneficiaries some incentive to ease back into the work force. For nine months after starting a job, they can earn any amount without threatening their benefits. For another three years, if their income falls below $1,000 a month, they can immediately receive full benefits again. And they can keep Medicare coverage for eight and a half years after going back to work, something few beneficiaries may realize.

The earnings ceiling for those receiving disability checks from Social Security creates a “powerful disincentive to work.”

In 1999, Congress passed a law authorizing the Ticket to Work program, which offers beneficiaries practical help with a job search. Social Security also waives medical reviews for those who participate.

So far, the program has had little success. Out of 12.5 million disabled workers and those who receive benefits for the disabled poor, only 13,656 returned to work over the last two and a half years, with less than a third of them earning enough to drop the benefits.

A Social Security spokesman noted that some other beneficiaries had returned to work without using its Ticket to Work program. In 2009, 32,445 recipients left the benefit rolls because they were earning enough in jobs.

Officials say they have streamlined and simplified the Ticket to Work program. But even with more awareness, they say not enough people could go back to work to make a difference in the disability trust fund.

“We could make this program exponentially more successful and it wouldn’t be enough to dramatically improve the solvency picture,” said Michael J. Astrue, the commissioner of Social Security. “You do it because work — for people who can work — gives them dignity and improves their economic condition.”

In Batesville, a small manufacturing town about 80 miles northeast of Little Rock, Ark., Mr. Howard and his wife, Darlene, who is also out of work, scrape by on his monthly $574 check. They live in a garage behind the home owned by Mr. Howard’s parents. Inside the forest green shack, which has no running water, they have crammed some shabby furniture and a tiny galley kitchen.

Mr. Howard, who went to a community college for only six weeks and quit before becoming a certified nursing aide, landed work over the years through friends and family. One job was building and repairing cell towers in Illinois. In 2000, during a climb up a tower, Mr. Howard fell more than 20 feet before a pull cord stopped him. He quit on the spot, but ignored the back pain.

He moved back to Arkansas, met Ms. Howard and began working for a company that dredged the White River for gravel used to make asphalt and concrete. He operated 25- to 40-pound pumps, drove a forklift and repaired plant vehicles, earning $8.50 an hour, or about $22,000 a year with overtime.

The job kept him outside every day, and sometimes he fished for bass and trout on the way upriver. “I would still be doing that job if I could,” he said on a cool March afternoon as he sat in a booth at McDonald’s, sharing refills of Dr Pepper with his wife.

Six years ago, his working life came to a halt. While fixing a dump truck, he began vomiting blood. He was rushed to the hospital, where his gallbladder was removed, because of complications of the hepatitis C he had contracted from a tattoo in his early 20s.

Mr. Howard, who said he spent much of his 20s hanging out with the “wrong crowd,” admits he played a role in his poor health. “I was living pretty heavily on the weekends,” he said.

After the surgery, doctors determined he had herniated discs. He tried to go back to work but found he could not perform many tasks, like heavy lifting, and was dismissed.

His initial application for disability benefits was denied. He tried going back to work, hanging dry wall, but pain stopped him. Eventually, he hired a lawyer. After three years and three tries, he won benefits.

Last September, he met Shawn Blasczczyk, a coordinator of the Ticket to Work program with the White River Area Agency on Aging in Ash Flat, Ark., who had given a presentation at an employment office where Mr. Howard’s father worked. After learning he had some protections while searching for work, Mr. Howard decided to try.

Advocates for the disabled say Social Security makes lackluster efforts to promote the Ticket to Work program. All new beneficiaries should have an appointment to “talk to a benefits counselor about returning to work and how it will affect you,” said Lori Gentry, a care manager at the White River agency, a nonprofit that works with disabled beneficiaries. “I don’t think that is a whole lot to ask to get a monthly check.”

Some advocates recommend intervention before people receive benefits to try to help the disabled stay in jobs in the first place.

In a proposal for the Center for American Progress and the Brookings Institution’s Hamilton Project, Professor Duggan of the University of Maryland and Prof. David H. Autor, an economist at M.I.T., suggest that disabled workers be offered partial income support and services to remain in the workplace. Moreover, they advocate for employers to purchase mandatory disability insurance as they do unemployment insurance and workers’ compensation, giving them incentive to accommodate workers rather than send them to the federal benefit rolls.

Mr. Howard is bumping up against his limitations, only some of which have to do with his medical condition. Last September, Ms. Blasczczyk helped place him in a job driving seniors to doctors’ appointments, but he quit after six months because of the stress. Scrolling through job listings at McDonald’s on a recent afternoon, he noted that many required college degrees.

Still, Mr. Howard is confident he will eventually find some work. While searching, he and Ms. Howard, who is also applying for work, have quit smoking and are trying to eat healthier foods. They have joined Mr. Howard’s father in a Bible study group.

“I would feel better if I worked and made my own money,” he said. “Because that way when somebody who needs it even more than I do, the Social Security would be there for them.”

Coordinated Care for People with Medicare and Medicaid

New flexibility for states to improve Medicaid and implement innovative practices
New rules will make Medicaid more flexible and efficient, helping states provide better care and lower costs

The U.S. Department of Health and Human Services (HHS) today announced four initiatives to give states more flexibility to adopt innovative new practices and provide better, more coordinated care for people with Medicaid and Medicare while helping reduce costs for states and families. The initiatives support the Obama administration’s work to make Medicaid more flexible and efficient and to address long-term cost growth. Several of the announcements also help implement provisions of the Affordable Care Act. Today HHS announced:

• Fifteen states will receive federal funding to develop better ways to coordinate care for people with Medicare and Medicaid coverage, also known as dual eligibles, who often have complex and costly health care needs.
• All states will receive increased flexibility to provide home and community-based services for more people living with disabilities.
• All states are eligible to receive more money to develop simpler and more efficient information technology (IT) systems to modernize Medicaid enrollment.
• A proposal by the state of New Jersey for flexibility to expand health coverage for nearly 70,000 low-income residents has been approved.

“Medicaid programs provide health coverage for millions of low-income Americans who otherwise would lack access to health care,” said HHS Secretary Kathleen Sebelius. “With these new resources and flexibilities, states will have new options to make their Medicaid programs work better for the people they serve, while helping lower their costs.”

Coordinated Care for People with Medicare and Medicaid

Under a new initiative funded by the Affordable Care Act, 15 states will receive up to $1 million each to develop new ways to meet the often complex and costly medical needs of the approximately nine million Americans who are eligible for both the Medicare and Medicaid programs, known as “dual eligibles.” The goal of the program is to eliminate duplication of services for these patients, expand access to needed care and improve the lives of dual eligibles, while lowering costs. The new Federal Coordinated Health Care Office, or the Duels Office, at the Centers for Medicare & Medicaid Services (CMS), was created by the Affordable Care Act to improve care for dual eligibles and will work with the states to implement the top strategies to coordinate primary, acute, behavioral and long-term supports and services for dual eligibles, improving quality and lowering costs.

The 15 states that will receive these funds are California, Colorado, Connecticut, Massachusetts, Michigan, Minnesota, New York, North Carolina, Oklahoma, Oregon, South Carolina, Tennessee, Vermont, Washington and Wisconsin.

“Beneficiaries who are in both Medicare and Medicaid can face different benefit plans, different rules for how to get those benefits and potential conflicts in care plans among providers who do not coordinate with each other,” said Donald M. Berwick, M.D., administrator of CMS. “This can be disastrous for those beneficiaries who are most vulnerable and in need of help.”

Helping People with Disabilities Live in their Communities

CMS proposed new rules today giving states new flexibility for their programs to help people with disabilities choose to live in their communities rather than in institutions. The proposed rules reduce administrative barriers for states seeking to help multiple populations, which may include seniors and/or people with different types of disabilities. They will also allow individuals to participate in the design of their own array of services and supports, including such things as personal care and respite services for caregivers.

“These long awaited rules will help people living with disabilities realize the promise of the ADA to live in the least restrictive environments possible for them—like their own homes,” said Henry Claypool, director of the Office on Disability at HHS. “With these new tools as well as incentives included in the Affordable Care Act, states, working closely with advocacy groups, beneficiaries, and other stakeholders, can more easily develop effective plans to improve options for people with disabilities. We hope states will take advantage of this new flexibility.”

The proposed rule, CMS-2296-P, can be found at www.ofr.gov/inspection.aspx.

Canyon County Businesses to Help Young People with Disabilities

Press Release

Date: 4/12/2011 Information Contact 1: Christina Pettis : (208) 454-5511 ext 10 : Information Contact 2: Julie Sherry : (208) 332-3575 ext 3440 : Canyon County Businesses to Help Young People with Disabilities Nearly two dozen Canyon County business leaders will collaborate with local organizations later this month to help high school students with disabilities recognize the importance of education to their future in the work force. Disability Mentoring Day on April 19 will give these students the opportunity to see exactly what specific careers entail and hear from their mentors what it takes to succeed in these careers. “Motivating high school seniors with disabilities to attain a college degree is one of the most challenging factors in contributing to tomorrow’s work force,” Christina Pettis of the Living Independence Network Corp. said. “This job-shadowing experience provides hands-on activities, mentoring and behind-the-scenes perspectives of a dream job of their choosing.” Disability Mentoring Day began in 1999 with fewer than three-dozen students as part of a White House effort to increase the profile of employment efforts for those with disabilities. “This day allows students to discover a world of opportunity beyond high school,” Idaho Department of Labor consultant Julie Sherry said. “The event assists in reinforcing the importance of continuing education by targeting necessary career skills for improvement, helping evaluate personal goals and exploration of possible career paths.” A follow-up celebratory luncheon will be held at the Canyon County Department of Labor office on April 26 to include presentations by students on what they learned about their dream jobs and the world of work. http://labor.idaho.gov/NEWS/Default.aspx?TabId=1953&ctl=PressRelease&mid=2527&itemid=2314&AspxAutoDetectCookieSupport=1

VR/VA Employment Team Summer Work Experience Program

The VR/VA Employment Team is beginning to recruit people interested in being a temporary job coach for the Summer Work Experience Program. It is 3-5 week employment opportunity (depending on the clients need) from July 5th - August 5th. The position pays between $8.50-9.50 per hour DOE If you're not familiar with the SWEP program, Idaho Commission for the Blind and Visually Impaired (ICBVI) contracts with Community Partnerships of Idaho to provide job coaching support to the students participating. The program is for visually impaired and blind students from throughout Idaho ages 16 to 21 years. The purpose of this program is to give them some work exposure and training. ICBVI will be providing some training on blindness to our staff in June. The VR/VA Employment Team will provide job coach training. After the training period, job coaches can expect to work 30-40 hours for two full weeks some will work for up to a month. The job coach would be assigned to one student. The Job Coaches will meet their SWEP student at Boise State University at 7:30a assist their client in learning the bus route to their job. The job sites are already set up and our role is to help the client learn their work duties and be able to work independently on the job. Daily logs will be taken. After 2 weeks of job coaching the clients then will work for another 2 weekson their own in some cases we will be on site with the student for the entire month. A formal written report is required and due by August 6th. If you're interested in applying for this position, please contact me at your earliest convenience. Sincerely, Contact Cassie Mills cassie.mills@cp-of-idaho.com (208) 376-4999 ext 215 FIND OUT MORE ABOUT: Community Parnerships of Idaho IBCVI Join Our Mailing List!

About Community Partnerships of Idaho Community Partnerships of Idaho began in 1995 as a dream of a few friends who wanted to make a difference in the lives of children, teens and adults with disabilities. They were committed to "creating opportunities for people to learn and achieve their goals." This vision for services has guided the company to where it is today. Please visit our website: www.cp-of-idaho.com

Work, social and family disability affect 50% of patients with bipolar disorder

Such was the conclusion obtained in a study conducted at the University of Granada that was recently awarded a prize in the IV Spain-Portugal Meeting on Therapeutical Adherence held in Oporto (Portugal). This research study analyzed the factors associated to higher work, social and family disabilities in a sample of 108 patients suffering from bipolar disorder.

According to the study, 50% of patients suffering from bipolar disorder suffers some type of work, social and family disability, and approximately 20% present some disorder at the three levels.

This was the conclusion drawn in a scientific article recently published in the prestigious journal Psychiatry Research, prepared by Dr. Luis Gutiérrez Rojas, a member of the Research Group of Psychiatry Research and Neuroscience of the University of Granada coordinated by professor Manuel Gurpegui Fernández de Legaria. This study analyzed the factors associated to serious work, social and family disabilities in a sample of 108 patients suffering from bipolar disorder.

This research revealed that work disability -that is, difficulty to perform normal job duties- in these patients was associated to high recurrence of maniac episodes, as well as to recurrent psychiatric hospitalization -high-intensity episodes-, depression and low educational levels. Furthermore, nicotinic dependency -strong addiction to tobacco- can be more disabling in patients with bipolar disorder than depression.

Social Support

Gutiérrez Rojas states that social disability -difficulty to establish relations out of the family and to achieve social integration- in these patients is associated to higher hospitalization rates, episodes of depression and active depression symptoms. "Receiving social support is associated to lower social disability in these patients" -the author states.

Lastly, family disabilities -difficulty to have good relations with family members- was found to be associated to hospitalization, maniac episodes, symptoms of depression and to higher scores in the CAGE scale, which measures addiction to alcohol.

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New EEOC regulations for ADA Amendments Act lower the standard for disability discrimination claims

• Fox Rothschild LLP
• Todd A. Palo and Christina A. Stoneburner
• USA
• March 30 2011
• 

Author page »Author page »

On March, 24, 2011, the United States Equal Employment Opportunity Commission (EEOC) issued its Final Regulations (Regulations) to the Americans with Disabilities Act Amendments Act of 2008, Pub. Law 110-325; 42 U.S.C. §§ 12101, et seq., as amended (ADAAA). The EEOC issued a Notice of Proposed Rulemaking on September 23, 2009, and the final bipartisan approved Regulations were published in the Federal Register on March 25, 2011. The ADAAA was enacted by Congress on September 25, 2008, and became effective January 1, 2009. The ADAAA made several significant changes to the Americans with Disabilities Act of 1990 (ADA), including overturning several Supreme Court decisions that had narrowed the definition of “disability.”

The new Regulations tend to simplify the determination of who has a disability and in accordance with the ADAAA’s broader definition of “disability” make it easier for employees to establish that they are protected under the ADA. Under the ADAAA, “disability” is still defined as:

• A physical or mental impairment that substantially limits one or more major life activities (“actualdisability”);
• A record or past history of such an impairment (“record of disability”); or
• Being regarded as having a disability (“regarded as disabled”).

But the ADAAA and the Regulations state that the term disability should be interpreted in favor of broad coverage of individuals. In addition, there are some key provisions of the Regulations that will likely lead to an increased number ofdisability claims stemming from a broad range of employees.

Expansive Definition of “Actual Disability” Prong and “Record of” Prong

1. Guidance on “Substantially Limits”

The ADAAA instructed the EEOC to redefine the term “substantially limits” in its revision of the ADA Regulations. In compliance with that directive, the EEOC established a new set of criteria for qualifying for the designation, and expanded the meaning of the term, “substantially limits.” The Regulations state that the term “substantially limits” shall be construed broadly to allow for expansive coverage to the maximum extent permitted by the ADA and that it is not meant to be a demanding standard. In determining whether an individual is substantially limited in a major life activity, employers must still conduct an individualized assessment. However, employers may compare employees to “most people in the general population” in the following respects:

• The conditions under which the individual performs the major life activity;
• The manner in which the individual performs the major life activity;
• How long it takes the individual to perform the major life activity;
• The difficulty or effort required to perform the major life activity;
• Any pain experienced; and
• The adverse effects of any mitigating measures.

The Regulations state that the comparison of an individual’s performance of a major life activity to the performance of the same major life activity by most people in the general population will not require scientific, medical or statistical analysis. Rather employers are instructed that in determining whether an individual has a disability they should focus on how a major life activity is substantially limited, and not on what outcomes an individual can achieve.

What is also new is that the ADAAA and the Regulations extend coverage to individuals with episodic impairments or conditions in remission, if the impairment “would substantially limit” a major life activity in an active state. The Regulations specifically provide that “[t]he fact that the periods during which an episodic impairment is active and substantially limits a major life activity may be brief or occur infrequently is no longer relevant to determining whether the impairment substantially limits a major life activity.” Further, the Regulations provide a non- exhaustive list of episodic impairments, such as hypertension, asthma, epilepsy and multiple sclerosis and psychiatric disabilities such as bipolar disorder and post-traumatic stress disorder, which are statutorily covered.

Another major change in the Regulations is that they reverse prior case law and specifically state that temporary impairments are protected. “The effects of an impairment lasting or expected to last fewer than six months can be substantially limiting” and within the protections of the ADA. As such, the Regulations’ expansion of the term “substantially limits” will significantly increase the number of employees who will be considered disabled pursuant to the ADA.

2. Per Se Disabilities

The EEOC encourages employers to conduct an individualized assessment when determining if an individual is disabled. However, the Regulations also list various conditions that “in virtually all cases, result in a determination” of disability. The list includes deafness, blindness, autism, cancer, diabetes, HIV, multiple sclerosis, partially or completely missing limbs, serious mental disorders such as bipolar disorder, obsessive compulsive disorder and post-traumatic stress disorder, to name a few. The Regulations will provide some clarity for employers when determining if an individual is disabled. However, by setting forth a non-exhaustive list of conditions that are by regulatory definition virtually always substantially limiting, the EEOC has effectively undermined its directive to conduct an individualized assessment.

Expanding “Regarded as” Prong

The ADAAA also expressly increased the coverage for individuals who are “regarded as disabled,” prohibiting discrimination based on an employer’s alleged perception of an impairment, even if that impairment is not perceived as an impairment that substantially limits a major life activity. An employee who requires an accommodation or was denied an accommodation can not proceed under a “regarded as” standard. Rather, an employee who is arguing an employer should have made an accommodation, must be able to prove either that they have an actual disability or have a record of such disability. The Regulations reiterate the ADAAA directive and state that proof that an individual was discriminated against in his or her employment because of a perceived impairment suffices to establish ADA coverage. Therefore, employees with minor restrictions could be protected and could pursue an ADA claim for being “regarded as” disabled. Employers can take solace in the fact that they are not required to provide reasonable accommodations to those “regarded as” having a disability, or for those disabilities that are transitory and minor. The ADAAA defines “transitory” as lasting less than six months. However, there is no definition in either the ADAAA or the Regulations as to what is meant by a “minor”disability.

Looking Forward

The Regulations and the ADAAA amendments they implement appear to make it easier for employees to qualify as disabled under the ADA, therefore businesses should act strategically to mitigate their ADA exposure. Focus must shift from debating whether an individual is disabled and more on the possible accommodations for disabled employees. Because of the potentially significant liability exposure, employers will generally want to consult with qualified legal counsel when confronted with any employee disability issues. In addition, employers will want to seek assistance in reviewing and updating their organization’s employment practices and/or employee policies in response to the EEOC’s Regulations.

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