On Friday, February 1, 2019, the Social Security Administration (SSA) published proposed regulations on removing “inability to communicate in English” as an education category in making disability determinations for people applying for Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI) benefits. Under the current rules, proficiency in English is one of the considerations used by the Social Security Administration when making a disability determination for claimants who don’t meet a medical impairment listing. While a limited proficiency in English is not alone sufficient to establish disability, it is currently considered in coordination with other factors, including the skill level of the person’s last job, whether any of those skills could be transferred to a new job, and the physical residual functional capacity of the claimant.
In its proposal, SSA does not present sufficient justification for making these changes, and ignores the employment limitations experienced by people who have limited proficiency in English. Therefore, SSA should withdraw this proposed rule and continue to consider ability to communicate in English as a vocational factor in the disability determination process.
Here is the agency’s summary of the proposed regulations and a link to the full notice in the Federal Register:
- Notice of Proposed Rulemaking, Removing Inability To Communicate in English as an Education Category (February 1, 2019)
Summary: We propose to eliminate the education category “inability to communicate in English” when we evaluate disability claims for adults under titles II and XVI of the Social Security Act. 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 proposed revisions reflect research and data related to English language proficiency, work, and education; expansion of the international reach of our disability programs; and audit findings by our Office of the Inspector General. The proposed revisions would help us better assess the vocational impact of education in the disability determination process.
Please Submit a Public Comment
The deadline to submit a comment is 11:59 pm ET on Tuesday, April 2nd. You can find Justice in Aging’s comments here. Below are a few talking points you could use for your comments. Please customize your comments to reflect your own experiences or organizational perspectives. It is important that at least a third of the information in the comment be your own in order to count as a unique comment.
- SSA should withdraw this proposed rule and continue to consider ability to communicate in English as a vocational factor.
- Research demonstrates that someone with a given level of education and limited English proficiency (LEP) will have fewer vocational opportunities in the U.S. economy than someone with the same education who is proficient in English.
- There are only two places on the grids where inability to communicate in English would lead to decision that individual is disabled – for individuals whose physical residual functional capacity (RFC) is limited to sedentary or light unskilled work.
- There is no evidence that work opportunities in sedentary and light unskilled jobs have expanded for people with limited proficiency in English. The justification in the NPRM cite to analysis showing that “work opportunities have expanded and labor force participation has increased” for LEP individuals in “occupations requiring lower level skills such as laborer, machine operator, janitor, cook, maintenance, and housekeeping.” However, these jobs are all well above a sedentary or light exertional level, which is where the grid rules about ability to communicate in English apply.
- The proposed rule will have a disproportionate impact on older LEP individuals. The current sedentary grid rules direct a finding of disabled for claimants age 45 – 49 who are unable to communicate in English, and the current light grid rules direct a finding of disabled for claimants age 50 – 54 who are unable to communicate in English. The proposed rules will no longer recognize the vocational limitations experienced by these older individuals who have limited proficiency in English.
- This proposal is overly broad, and could be used to deny benefits to people who are unable to communicate in English because of their disability, not because they are not native speakers of English.
- The proposed rule will decrease efficiency. People found disabled using these grid rules could be found disabled without the grid rules too—but it would take longer and require more SSA resources to reach these decisions.
- This proposed rule is directly inconsistent with the Administration’s position in the recent public charge Notice of Proposed Rulemaking. In the preamble to the public charge proposed rule, the Department of Homeland Security (DHS) stated that “an inability to speak and understand English may adversely affect whether an [immigrant] can obtain employment.” Therefore, in one proposal, the Administration claimed that ability to speak English directly impacts ability to find work and now, in another proposal, the Administration claims that ability to speak English is irrelevant for an individual’s ability to find employment.
Tips for Submitting a Public Comment
- Enter your name (First and Last Name) and indicate whether you would like to share your contact information. Sharing additional contact information is not required.
- If you are submitting on behalf of a third party: Enter your name and organization’s name (Submitter’s Representative and Organization Name).
Submit your comment ONLINE (preferred):
You can submit comments through the Federal Portal (Regulations.gov):
- Search for Docket No. SSA-2017-0046, “Removing Inability to Communicate in English as an Education Category”
- Click on “Comment Now” located the upper right-hand corner
- Type your comment in the Comment Box – there is a 5,000 character limit. You can also upload your comment as a PDF or JPEG.
- You will have one last chance to preview your comment. If you would like to make any changes to the draft comment, click Edit.
- To finish, acknowledge that you know this is an official submission and that whatever you upload will become publicly available.
- Click to submit your comment.
Submit your comment by MAIL:
For those without access to a computer or a smartphone, submit your comments by mail.
- Include a reference to Docket No. SSA-2017-0046 in your letter.
- Postmark your comment by April 2, 2019.
- Remember to include your return address and a postage stamp, to receive verification that your comment was received.
- Mail your comments to the following address:
Office of Regulations and Reports Clearance
Social Security Administration
3100 West High Rise Building
6401 Security Boulevard
Baltimore, Maryland 21235-6401
Thank you for commenting!
SSA’s 5-step disability determination process:
At Step 5, SSA’s medical-vocational rules (also known as “the grids”) consider the claimant’s age, education, and work experience in relation to his or her “residual functional capacity” (RFC) to perform work-related activities:
- Bernstein, Hamutal, and Carolyn Vilter. Upskilling the Immigrant Workforce to Meet Employer Demand for Skilled Workers. Urban Institute, 2018. https://www.urban.org/research/publication/upskilling-immigrant-workforce-meet-employer-demand-skilled-workers/view/full_report.
- Chiswick, Barry R. and Paul W. Miller, 2007. The International Transferability of Immigrants’ Human Capital Skills. IZA Discussion Papers, No. 2670, Institute for the Study of Labor (IZA). https://www.econstor.eu/bitstream/10419/34611/1/545692563.pdf.
- Day, Jennifer Cheeseman and Hyon B. Shin, 2005. How Does Ability to Speak English Affect Earnings? Presented at the Annual Meetings of the Population Association of America, March 31. https://www.census.gov/hhes/socdemo/language/data/acs/PAA_2005_AbilityandEarnings.pdf.
- Pandya, Chhandasi, 2012. Limited English Proficient Workers and the Workforce Investment Act: Challenges and Opportunities, Migration Policy Institute. https://www.migrationpolicy.org/article/limited-english-proficient-workers-and-workforce-investment-act-challenges-and-opportunities.
- Paral, Rob, 2018. Ready to Work: Understanding Immigrant Skills in the United States to Build a Competitive Labor Force. Chicago Council on Global Affairs. https://www.thechicagocouncil.org/publication/ready-work-understanding-immigrant-skills-united-states-build-competitive-labor-force.
- Zong, Jie and Jeanne Batalova, 2015. The Limited English Proficient Population in the United States, Migration Policy Institute. https://www.migrationpolicy.org/article/limited-english-proficient-population-united-states#Education%20and%20