Ticket to Work Self-Sufficiency Program; improvements,
[Federal Register: August 13, 2007 (Volume 72, Number 155)]
[Proposed Rules]
[Page 45191-45199]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13au07-19]
SOCIAL SECURITY ADMINISTRATION
[Docket No. SSA-2006-0084]
RIN 0960-AG44
Improvements to the Ticket to Work and Self-Sufficiency Program
AGENCY: Social Security Administration.
ACTION: Notice of proposed rulemaking.
SUMMARY: We are proposing to revise our regulations for the Ticket to Work and Self-Sufficiency Program (Ticket to Work program), authorized by the Ticket to Work and Work Incentives Improvement Act of 1999. The Ticket to Work program provides beneficiaries with disabilities expanded options for access to employment, vocational rehabilitation, and other support services. The program is an important part of the comprehensive SSA work opportunity initiative which is focused on helping beneficiaries with disabilities who want to work to do so. We are proposing revisions to our
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current Ticket to Work program rules to simplify and improve the definition of ``using a ticket'' and our related requirements for measuring ``timely progress toward self-supporting employment.''
DATES: To be sure your comments are considered, we must receive them by October 12, 2007.
ADDRESSES: You may give us your comments by: using the Federal eRulemaking Portal: http://www.regulations.gov; e-mail to regulations@ssa.gov; FAX to (410) 966-2830; or letter to the
Commissioner of Social Security, P.O. Box 17703, Baltimore, MD 21235- 7703. You may also deliver them to the Office of Regulations, Social Security Administration, 107 Altmeyer Building, 6401 Security Boulevard, Baltimore, MD 21235-6401, between 8 a.m. and 4:30 p.m. on regular business days. You may also inspect the comments on regular business days by making arrangements with the contact person shown in the preamble.
FOR FURTHER INFORMATION CONTACT: Dan O'Brien, Office of Employment Support Programs, Social Security Administration, 107 Altmeyer Building, 6401 Security Boulevard, Baltimore, MD 21235-6401, e-mail to regulations@ssa.gov, or telephone (410) 597-1632 or TTY (410) 966-5609
for information about these rules. For information on eligibility or filing for benefits, call our national toll-free number 1-800-772-1213 or TTY 1-800-325-0778, or visit our Internet site, Social Security Online, http://www.socialsecurity.gov.
SUPPLEMENTARY INFORMATION:
Electronic Version
The electronic file of this document is available on the date of publication in the Federal Register at http://www.gpoaccess.gov/fr/index.html .
Background
The Ticket to Work and Work Incentives Improvement Act of 1999
Public Law 106-170 was enacted on December 17, 1999. This law added section 1148 of the Social Security Act (Act), which directs the Commissioner of Social Security to establish the Ticket to Work program. Congress provided for the establishment of the Ticket to Work program to provide beneficiaries with a ``real choice in obtaining the services and technology they need to find, enter, and maintain employment'' in order to ``greatly improve their short and long-term financial independence and personal well-being'' (section 2(a)(10) of Pub. L. No. 106-170, 113 Stat. 1860, 1863). These proposed revisions to our regulations are based on our experience implementing the existing rules and comments made in response to our request for comment in the Notice of Proposed Rulemaking (NPRM) that we published on September 30, 2005 (70 FR 57222, 57227). In that NPRM, we asked for comment on, among other things, whether and how we should simplify the definition of ``using a ticket'' and on how we might revise the timely progress requirements set forth in our current rules.
As part of the Ticket to Work program, the Commissioner of Social Security (the Commissioner) issues a ``ticket'' to eligible Social Security disability beneficiaries and to eligible disabled or blind Supplemental Security Income (SSI) beneficiaries for participation in the program. In this voluntary program, each beneficiary receiving a ticket has the option of using that ticket to obtain services from a provider known as an employment network (EN) or from a State vocational rehabilitation (VR) agency. ENs may also choose to whom they provide services. If the beneficiary and an EN or State VR agency agree to work together, the beneficiary and the EN or State VR agency will develop either an individual work plan (IWP) or an individualized plan for employment (IPE) which outlines any employment services, vocational rehabilitation services, and other support services necessary to assist the beneficiary to obtain and ultimately maintain self-supporting employment. The EN or State VR agency will provide, without charge to the beneficiary, the services outlined in the IWP or IPE. If the beneficiary achieves certain work outcomes, we will pay the EN or State VR agency for those outcomes based on an established payment schedule.
Issues Addressed in These Proposed Rules
These proposed changes to our rules on ``using a ticket'' and the related timely progress requirements are integral to the operation of the Ticket to Work program and are essential to the overall changes we proposed for the program in the September 30, 2005 NPRM. We anticipate issuing one comprehensive final regulation covering the matters addressed in the 2005 NPRM and in this NPRM. In this NPRM, we are proposing changes to our rules for the Ticket to Work program in areas that were not addressed in the September 2005 NPRM. We describe the main changes we are proposing below:
So that the program will be more accessible to beneficiaries who require additional training to return to work, we propose to add requirements for educational or technical training to supplement the work requirements under the timely progress guidelines for beneficiaries;
We propose to revise the work requirements under the timely progress guidelines and the documentation and other requirements for progress reviews to simplify and streamline the process for determining whether a beneficiary is making timely progress toward self-supporting employment;
We propose to eliminate the current ``initial 24-month period'' after ticket assignment during which a beneficiary is considered to be making timely progress if actively participating in his or her employment plan;
We propose to replace this 24-month period with two successive 12-month progress certification periods during each of which the beneficiary must complete either a work requirement of an educational or technical training requirement in order to be considered to be making timely progress until the next scheduled progress review; and
We propose to recognize one-stop delivery systems established under the program of the U.S. Department of Labor under subtitle B of title I of the Workforce Investment Act of 1998 as qualified ENs.
''Using a Ticket'' and Related Timely Progress Rules
Section 1148(i) of the Social Security Act (42 U.S.C. 1320b-19(i)) provides that ``[d]uring any period for which an individual is using * * * a ticket to work and self-sufficiency issued under this section, the Commissioner (and any applicable State agency) may not initiate a continuing disability review * * *.'' Section 1148(i) also directs the Commissioner to define the term ``using a ticket'' for this purpose. Our current rules (Sec. 411.170) provide that ``[t]he period of using a ticket begins on the effective date of the assignment of your ticket to an EN or State VR agency under Sec. 411.140.'' They provide in Sec. 411.171 that the period of using a ticket will end with the ``day before the effective date of a decision * * * that you are no longer making timely progress toward self-supporting employment.'' The period of using a ticket may end earlier, if certain other events occur. The current rules further provide in Sec. 411.180(a) that ``[w]e consider you to be making timely progress toward self-supporting employment when you show an increasing ability to work at levels
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which will reduce or eliminate your dependence on these [disability or blindness] benefits.''
Section 411.180(c) of our current rules explains the guidelines we use to determine whether timely progress toward self-supporting employment is being made. Among other things, these guidelines include a goal of three months of work during the 12-month period that begins after the 24th month following the assignment of a ticket to an EN or State VR agency, as described in Sec. 411.140. For subsequent 12-month periods, the current rules require work (as defined in Sec. 411.185) for at least six of the 12 months.
We sought to balance two important objectives in establishing the current rules on using a ticket and related timely progress guidelines. First, we sought to define ``using a ticket'' in a way that should reduce a barrier to beneficiary participation in the program that arises from fear that a return to work would cause benefits to be terminated in a continuing disability review. Second, we sought to maintain the integrity of the disability programs by providing that beneficiaries who have medically improved do not continue to receive disability benefits for an undue length of time. Properly balancing these objectives remains our goal.
During the comment period we provided in the September 30, 2005 NPRM, we received numerous comments that educational programs should be equated with work for the purposes of determining timely progress under the Ticket to Work program. We agree with commenters who suggested that disruption of the pursuit of an education program, as our current requirements have the potential to do, is a counterproductive policy. Therefore, in this NPRM, we propose adding an educational and technical training requirement to supplement the work requirement, so that the program will be more accessible to beneficiaries who require additional training to return to work.
We are also proposing to eliminate the current ``initial 24-month period'' during which a beneficiary is considered to be making timely progress toward self-supporting employment if actively participating in his or her employment plan. We propose to eliminate this provision which requires only active participation in the plan for the beneficiary to be considered ``using a ticket,'' and therefore protected from initiation of a medical continuing disability review (CDR), during the first two years of participation in the program. We also propose to eliminate the current 24-month progress review, which a beneficiary must successfully complete in order to continue to be considered making timely progress and receive CDR protection during the third year of participation. For CDR protection to continue, the program manager must determine in this review that the beneficiary is actively participating in the employment plan; that the plan has a work goal meeting the work requirement for the third year of participation; and that, given the beneficiary's current progress in the plan, he or she can reasonably be expected to reach this goal by the end of the third year of participation. We are also proposing to eliminate the second step of the current 12-month progress reviews, which requires an expectation by both the beneficiary and the EN or State VR agency that the beneficiary will work at the level required during the next 12- month progress review period.
We are proposing to replace the ``initial 24-month period'' with two successive 12-month progress certification periods during each of which the beneficiary must complete either a work requirement or an educational or technical training requirement in order to be considered to be making timely progress until the next scheduled progress review. Thus, while our current rules require a specified level of work beginning with the third year of participation, these proposed rules would require a specified level of work activity (or coursework in an educational or technical training program) beginning with the first year of participation in the Ticket to Work program.
The table below summarizes the basic changes we are proposing to make to the definition of ``using a ticket'' and ``timely progress'' for purposes of maintaining CDR protection. In the table below, we use the term ``SSDI'' to refer to all categories of Social Security disability benefits under title II, and the term ``SSI'' to refer to Supplemental Security Income payments under title XVI based on disability or blindness.
Existing regulations
Proposed changes
1. Ticket first assigned to an EN 1. Ticket first assigned to an EN or State VR agency.
or State VR agency acting as an 2A. Timely progress defined for EN, or otherwise in use with State current period:
VR agency choosing cost First 2 years: active
reimbursement. participation in plan.
2. Timely progress defined for 2B. Timely progress defined for purposes of maintaining CDR purposes of maintaining CDR
protection until next scheduled protection until next scheduled review. review.
1st year: 3 months of work At the end of 2 years: at trial work level (TWL) or 24 successful completion of 24-month post-secondary credit hours or 50% progress review.
vocational training program. 3rd year: 3 months
2nd year: 6 months of work substantial gainful activity
at TWL or 50 post-secondary credit (SGA).\1\
hours or 100% vocational training 4th year: 6 months SGA.\1\ program. 5th year and beyond: 6 3rd year: 9 months SGA or months of work at level precluding 70 post-secondary credit hours. payment of SSDI and Federal SSI 4th year: 9 months SGA or benefits.\1\
100 post-secondary credit hours. 5th year: 6 months of work at level precluding payment of SSDI and Federal SSI benefits or earned a 4 year degree. 6th year and beyond: 6 months of work at level precluding payment of SSDI and Federal SSI benefits.
\1\ Also both beneficiary and EN or State VR agency must expect beneficiary will meet work requirement for next 12-month progress review period.
In addition, these proposed rules address concerns expressed by ENs and State VR agencies that the current rules are unnecessarily burdensome. Comments received from some State VR agencies noted that the request for information received from the program manager (PM) in connection with a 12-month progress review under the timely progress guidelines required the State VR agency to submit evidence of a beneficiary's earnings. The commenters expressed the view that this represented a huge and largely unnecessary administrative burden for State VR agencies. Based on the comments from the State VR agencies and ENs, we propose to change the timely progress requirements to simplify reporting of information for the progress reviews. These proposed rules would generally
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define ``timely progress'' based on the achievement of milestones and outcomes under the EN payment systems proposed in the September 30, 2005 NPRM. The comments we received on the proposed expansion of the milestones were generally positive. We did not receive any negative comments that would cause us to change the proposed number of milestones or the periods and levels of work required for the milestones when developing final rules. The level of work and earnings required for outcome payments is mandated by the statute.
In that NPRM, we proposed a two-phased milestone system. Phase 1 milestones would be based on the beneficiary working specified periods of time at the trial work period level. For example, the second Phase 1 milestone would be achieved when a beneficiary works three months and has earnings in each of those months at the level for a trial work service month. This is the same standard which we propose for the work requirement during the first 12-month progress certification period in these proposed rules. We also propose to use the trial work earnings level for the six months of work which would be required during the second 12-month progress certification period.
A Phase 2 milestone would be achieved when a beneficiary works in a month and has gross earnings above the SGA threshold amount. We are proposing to use this same level of monthly earnings for the proposed nine months of work which would be required during the third and fourth 12-month progress certification periods. The level of earnings for the six months of work which would be required during the fifth and subsequent 12-month progress certification periods would be based on the earnings criteria for an outcome payment month under the EN payment systems. An outcome payment month occurs when a beneficiary's work or earnings are sufficient to preclude payment of Social Security disability benefits and Federal SSI cash benefits.
These proposed changes to the work requirements under the timely progress guidelines would allow us to determine administratively, without unnecessarily burdening the beneficiary or EN or State VR agency with requests for information, whether a beneficiary is making timely progress based on information in our EN/State VR agency payment records or our records of the beneficiary's earnings.
These proposed rules incorporate certain aspects of the proposed rules in the September 2005 NPRM, which would provide that a beneficiary who has a ticket otherwise available for assignment and who is receiving services under an IPE from a State VR agency which has chosen to be paid under the cost reimbursement payment system will be considered to be ``using a ticket,'' provided that the beneficiary is making timely progress toward self-supporting employment. The September 2005 NPRM also proposed that: (1) The ticket of a beneficiary in this situation would not be assigned to the State VR agency; (2) the beneficiary may assign his or her ticket after State VR services end; and (3) the period of using a ticket for such a beneficiary would end 90 days after State VR services end.
In these proposed rules, we are proposing to change the duration of the ``extension period'' described in Sec. Sec. 411.166 and 411.220 from three months to 90 days. We are proposing this change to conform to the proposed 90-day period included in the September 2005 NPRM during which the ticket of a beneficiary in the situation described above may be considered ``in use'' after State VR services end.
In proposed Sec. 411.226, we explain how we will apply the new timely progress provisions to a beneficiary who assigned his or her ticket prior to the effective date of the new rules. Beneficiaries already using a ticket assigned to a State VR agency that chose to be paid under the cost reimbursement payment system, may continue using a ticket under the new rules in subpart C. The new rules include provisions for transitioning to the revised timely progress guidelines.
However, the beneficiary's ticket will no longer be considered assigned to that State VR agency beginning on the effective date of the final regulations. We also explain that the beneficiary may assign his or her ticket after the State VR agency has closed his or her case.
Participation of One-Stop Delivery Systems as Employment Networks
Section 1148(f)(1)(B) of the Social Security Act (42 U.S.C. 1320b- 19(f)(1)(B)) provides that an employment network serving under the Ticket to Work program ``may consist of a one-stop delivery system established under subtitle B of title I of the Workforce Investment Act of 1998.'' Our regulation at 20 CFR 411.305(c) states the same proposition. We are proposing to amend subpart E, Sec. Sec. 411.310 and 411.315, to further state that one-stop delivery systems under subtitle B of title I of the Workforce Investment Act of 1998 may participate in the Ticket to Work program as ENs without responding to our request for proposal (RFP). In light of the nature of the one-stop systems and the statutory reference to them, we are simplifying the approval process for one-stop systems. We have consulted with the Department of Labor, the Federal agency responsible for oversight of the program for the one-stop delivery systems, regarding the entities that comprise one-stop systems and, based on those consultations, we have determined they meet our EN requirements. A one-stop delivery system still must enter into an agreement with us to serve as an EN under the Ticket to Work program and must maintain compliance with the rules that apply to ENs. We will seek to work with the appropriate entities that can enter into EN agreements with us. We believe this change, which would eliminate the RFP process for one-stop systems, will provide our beneficiaries with more choices because it would greatly expand the number of ENs for ticket holders living in all areas of the United States, particularly in counties where no ENs are currently qualified.
Issues Addressed in September 2005 Proposed Rules and Why This Second NPRM Is Necessary
On September 30, 2005, we published an NPRM (70 FR 57222) proposing some important changes to the existing Ticket to Work program rules. In that NPRM, we proposed changes to the EN payment systems to provide greater incentives for EN participation; to eliminate the requirement for assignment of a beneficiary's ticket to a State VR agency which chooses the cost reimbursement payment system; and to include a rule providing that the ticket of such a beneficiary would be assignable after State VR services end. We also proposed in that NPRM that, for a beneficiary who has a ticket which would otherwise be available for assignment and who is receiving services under an IPE from a State VR agency which has chosen the cost reimbursement payment system, the beneficiary will be considered to be ``using a ticket'' until 90 days after VR services end, provided the beneficiary is making timely progress toward self-supporting employment.
In the September 2005 NPRM, we invited comments from the public on four additional matters. Two of these matters addressed specific changes in our rules proposed in the NPRM. One matter addressed in the NPRM concerned evidence requirements for EN payment; the other matter addressed payment of Phase 1 milestones after State VR services have been completed. We received public comments on both of these subjects, and will address these
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comments in our final Ticket to Work program rules.
The other two matters outlined in the September 2005 NPRM for which we invited public comments did not involve specific proposed changes to our current rules. (70 FR at 57227.) Rather, we requested comments on questions which we presented concerning whether and how we should proceed to develop specific proposed changes. The first of these questions is whether a beneficiary should be eligible for more than one ticket in a single period of entitlement to title II or title XVI benefits. Our current rules provide for only one ticket for each period of entitlement. A number of comments that we received in response to this request pointed out that, in order to sustain gainful employment, many beneficiaries require ongoing support services beyond the period of time over which Milestone or Outcome payments are made. For example, beneficiaries with physical disabilities may require specialized transportation services over an indefinite period to get to and from the worksite, and, thus, may require a longer period of employment support in order to sustain employment. We recognize the concern expressed by the commenters that beneficiaries in some cases may need ongoing supports to sustain employment beyond the period of time over which Milestone or Outcome payments are made. However, we have decided not to propose any changes to our rules in this area at this time.
The second question on which we invited comment was whether and how we should simplify the definition of ``using a ticket'' under the Ticket to Work program and how we might best revise the timely progress requirements consistent with the intent of the legislation. It is primarily this question which we are addressing in this NPRM. As described earlier, this NPRM sets forth proposed changes in our rules to simplify the definition of ``using a ticket'' and to improve the related timely progress requirements. We believe that these proposed changes will provide greater opportunities for beneficiaries to participate in the Ticket to Work program and enhance their potential for a successful outcome.
Since these proposed changes are integral to the overall operation of the Ticket to Work program, we believe that it would be unwise to make final changes in the areas addressed by the September 30, 2005 NPRM before we make final changes in areas addressed by this NPRM. Issuing two separate final rules might both confuse our beneficiaries and impose a significant administrative burden on ENs and State VR agencies, which would be required to make two sets of operational changes based on two separate final rules. Accordingly, we intend to issue one comprehensive final rule on the Ticket to Work program in response to both the September 2005 NPRM and this NPRM.
Regulatory Procedures
Clarity of These Proposed Rules
Executive Order 12866, as amended, requires each agency to write all rules in plain language. In addition to your substantive comments on these proposed rules, we invite your comments on how to make these proposed rules easier to understand. For example:
Have we organized the material to suit your needs?
Are the requirements in the rules clearly stated?
Do the rules contain technical language or jargon that is not clear?
Would a different format (grouping and order of sections, use of headings, paragraphing) make the rules easier to understand?
Would more (but shorter) sections be better?
Could we improve clarity by adding tables, lists, or diagrams?
What else could we do to make the rules easier to understand?
Executive Order 12866
We have consulted with the Office of Management and Budget (OMB) and determined that these proposed rules are subject to OMB review because they meet the criteria for a significant regulatory action under Executive Order 12866, as amended. The Office of the Chief Actuary estimates that these proposed rules, if finalized in conjunction with the other provisions of expected final rules for the Ticket to Work program resulting from the NPRM published September 30, 2005 (70 FR 57222), would reduce the total cost of the combined final rules. Specifically, that Office estimates that the projected increased program outlays which would result from the adoption of the rules proposed in the September 2005 NPRM, which are described in that NPRM in the section ``Executive Order 12866'' (70 FR at 57228), would be reduced by the following amounts ($ in millions) if the rules we are now proposing and the September 2005 proposed rules were adopted in a combined final rule.
The main reason for this reduction in cost relative to the September 2005 proposed rules is that the current proposed rule would make changes to the timely progress specifications that are used to determine whether a ticket is in use and thus subject to certain protections against the possibility of benefit termination through a medical continuing disability review (CDR). The net effect of these changes is to shorten the duration of the CDR protection by about 24 months on average.
Fiscal year
SSDI SSI Total
2008....................................... ...... $
