Gesmer & Reynolds, P.C.

New rule will make English ability irrelevant to disability determination

On April 27, a revised Social Security regulation will take effect that will remove a person's limited English proficiency (LEP) from consideration as a factor in disability claims for Social Security Disability Insurance (SSDI) or Supplemental Security Income (SSI). This is likely to make some in a certain population of older disabled people eligible for benefits who would otherwise have been ineligible if their limited English ability could still be considered as it has been for similar people since 1978.

Previous coverage of the issue

This summer, we published in this space a comprehensive look at the Social Security Administration (SSA) proposal to make this rule change. As we explained then, LEP becomes a consideration when the SSA looks at whether there are sufficient numbers of jobs in the national economy for certain older workers whose vocational options are already reduced by the limitations from severe medical impairment and only having the skills for unskilled work.

In the previous post, we detailed the agency's position and the opposition of claimants' advocates.

SSA's reasoning

In a press release announcing the rule change, the SSA explained its position that while "Social Security is required to consider education to determine if someone's medical condition prevents work ... research shows the inability to communicate in English is no longer a good measure of educational attainment or the ability to engage in work." The agency repeatedly refers to the move as an effort to "modernize" or "update" the programs and that the old rule was "antiquated" or "outdated."

It has been reported widely in the media that some policymakers oppose looking at any other vocational factors like LEP in determining disability - that it should be only a medical question. This rule change appears to be consistent with this view.

In its official notice that it is adopting the proposal as a final rule, the agency said that it had included data in its initial proposal that showed that over the last 40 years people with LEP are "participating in the U.S. labor force at considerably higher levels than previously ... indicat[ing] that more jobs are present in the national economy for the LEP population."

While claimants' advocates submitted public comments to the agency disagreeing with its interpretation of the data, in the end the agency chose to adopt the rule.

Anyone with limited English proficiency who will or has applied for SSDI or SSI should speak with an attorney immediately to understand how this change may impact them.

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