Number range CHAPTER

**Comments on Notice of Proposed Rulemaking: "Continuation of Benefit
Payments to Certain Individuals Who Are Participating in a Program of
Vocational Rehabilitation Services, Employment Services, or Other
Support Services,"**

**68 Fed. Reg. 45,180 (August 1, 2003)**

Community Legal Services, Inc., of Philadelphia ("CLS") offers these
comments on the above NPRM. Community Legal Services represents
thousands of child and adult claimants for SSI every year and has long
engaged in special efforts for the protection of children and people
participating in voc rehab programs. As you may know, CLS has litigated,
made comments and engaged in advocacy on behalf of both groups as well
as representing individuals with claims throughout the Social Security
process. We have particularly urged the Administration to adopt
realistic 301 standards for young adults that allow 18 year olds facing
SSI termination due to the statutorily mandated review at that age to
stay in school and complete their education, rather than dropping out of
school. Leaving school before graduation or completion to chase the
illusion of employment, is, almost always a bad idea since most such
young adults with impairments are, in fact, ill prepared to succeed in
the job market.

**1. The Administration should quickly adopt the proposed 301
regulation, temporarily halt or postpone 18 year old terminations until
such adoption, and, once adopted, apply the new 301 policy to all
pending cases**.

Having long advocated for a meaningful 301 provision, we begin by
congratulating the Social Security Administration for publishing this
much-needed NPRM. Indeed, the changes made by this proposal are so
important and so needed, especially for young people turning 18, who
frequently are terminated from benefits in the middle of their schooling
or vocational training, that we urge SSA to adopt the new regulations,
with needed revisions, as quickly as possible.

We also urge SSA, as a procedural matter, to first, halt all
terminations for 18 year olds, until the new policy is in place, and
second, to apply the new policy to all cases that are still in the
adjudicative process. Certainly there is precedent for applying the new
policy to all cases that are in the adjudicative "pipeline."

Halting terminations and applying the new policy to pending cases is
especially important for those turning 18, who are currently unable to
benefit from the intent of section 301, since they are often still in
school, and do not have an OVR plan. (The standard practice for most, if
not all state OVRs is to allow young people to finish their schooling
before a rehab plan is drawn up.) When these young adults get the notice
telling them that SSA must, according to the law, re-evaluate their
claim for disability at age 18, they are currently denied the protection
of 301, despite the fact that they are engaged in activities that are
likely to avoid the need for SSI in the future. In short, many young
people are still in high school when they turn 18, and do not have a
formal voc rehab plan, since completing school is a prerequisite for any
future planning. They deserve to be protected and to enjoy the
opportunity that Congress intended to afford them when it enacted
section 301.

**2. Expand the recognition of education to encourage all young people
with disabilities to stay in school and complete their vocational
training.**

We strongly support the emphasis that the new proposed regulation places
on rehabilitation, and particularly the new emphasis, indeed, the
presumption that SSA makes that attending school under an IEP
automatically fulfills the statutory requirement that the activity is
enhances the likelihood that the individual will be permanently removed
from the SSI or Title II program. This is a very sound exercise of the
Commissioner's rulemaking authority. However, we would suggest two
further improvements to this policy:

**A. The need to recognize the continuity of services between special
education and voc rehab.**

While completing education is necessary, it may not be sufficient to
maximize a person's employability. Our experience with scores of such
cases is that those students receiving special education are meant to
progress directly into a voc rehab assignment upon completion of their
education. Indeed, it is the standing practice of most OVR offices to
advise potential clients to complete their education first and then
contact OVR. Given the need of many special ed students, especially
those with impairments in cognitive function, for this continuum of
services, the SSA regulation should allow for these services to be seen
as a continuation of the schooling that the individual previously
received.

As currently written, the proposed regulation, 20 CFR §416.1338,
contemplates stopping benefits upon graduation and would not consider,
under any circumstances, affording protection under section 301, to any
OVR program that was begun *after* the disability determination is made,
even though it was the natural and planned extension of the person's
special ed experience. This should be corrected by allowing for the two
related activities, school and voc rehab activity, to be considered as
part of a larger whole, just as a person might move from one activity or
class to another, in either school or a voc rehab program.

**B. The need to encourage all students with disabilities to complete
their education.**

Second, in dealing with education, the regulation in question limits the
protection it affords to those individuals with disabilities who are
enrolled in special education, even though all students with
disabilities will benefit from completing their high school education.
Some students are enrolled in private or parochial schools that do not
provide IEPs to their students, even those who would normally be
considered as appropriate special ed students. Indeed, some students go
to special schools particularly designed to deal with students with
disabilities. Other students have disabilities that do not normally
trigger a designation as special ed or the preparation of an IEP. For
example, a child with asthma, or an orthopedic problem, will usually not
be placed in special ed or have an IEP. However, considering their
impairments, they would certainly profit from completing their high
school education. Indeed, the National Longitudinal Transition Study
(NLTS) cited in the NPRM documents the benefits of completing school and
shows that these benefits apply equally to all students with
disabilities. Devising a system that encourages *all* young people with
disabilities to stay in school and graduate should be a high priority of
the Administration and is consistent with the President's New Freedom
Initiative.

**3. The regulation should allow for individuals to enjoy the protection
of 301, even if their participation is briefly interrupted by illness or
disability.**

Another needed improvement is the wording of §§ 404.186, 416.1338, which
states that the special 301 protection ends immediately if the
individual stops participating, *for any reason*. While we have no
quarrel with the general concept that the 301 protection only extends to
people participating in the program, the regulation, especially because
of the emphasized "for any reason" language, does not take into account
that people, and especially people with disabilities, often have times
when their condition becomes more acute, or they are become ill or have
an accident or other personal emergency and they are therefore unable to
participate. For example flare-ups of disabling conditions may prevent
youngsters and older people from participating in school or a voc rehab
program for a period of time because of their problem. Allowing for a
*good cause determination* as to why a person was not participating is
consistent with other Social Security policies and will offer protection
to individuals who are prevented from participating because of illness,
disability or personal emergency that is beyond their immediate control.

**4. Practical considerations to make sure that the program actually
reaches its full potential.**

The proposed policy should address some of the difficult implementation
problems that have plagued the existing 301 program and prevented people
from taking maximum advantage of the statutory provisions.

First, too often we encounter cases where individuals have clearly been
participating in 301 activities, but no determination has been made
pursuant to existing 20 CFR §§404.316,.337, .352, .1586 and 416.1338.
SSA policy needs to be clear that in such circumstances, whenever it is
discovered or alleged that the claimant is participating in a 301
eligible program, the case will be returned to the state agency for an
initial determination of whether the person is participating in a 301
program and to afford the Commissioner to make a likelihood
determination.

Second, in all cases where the individual is facing a termination of
benefits, whether because they are turning 18, or because of a CDR, they
should be specifically asked whether they are participating in a program
of vocational rehabilitation, or education. Failure to document that
such an inquiry was made should be sufficient grounds for sending the
case back to the original adjudicator for an appropriate determination.

Third, we would also suggest that the regulation require that each state
agency have a 301 officer to insure that such inquiries are made and
that all appropriate data and evidence be elicited and obtained, so that
this protections made by the statute actually are afforded to all
claimants.

Fourth, we would also suggest that the protection of 301 be widely
disseminated to any claimant who is anticipated to have a CDR in the
next few years, and particularly to teenagers at the time of their
16^th^ and 17^th^ birthday, so that they know of the protections
afforded them under the law and that there is a system in place that is
designed to protect them and insure that they maximize their potential
by staying in school and taking maximum advantage of the opportunity to
become employable and independent.

Finally, we urge that the exercise of the 301 option toll the appeal
deadline while the person is in school or otherwise pursuing their 301
option. As it now stands, the current procedure is that the 301
determination is made *after* a finding has been made that an individual
is no longer disabled. In order to fully protect one's rights, a person
must both appeal the termination and raise the 301 consideration. For
many people this is too complicated a scheme. Indeed, one of the best
ways to determine whether a person will be able to become employable is
to see how they fare in such vocational programs. Often the stresses of
the program and the individual's ability to adapt to them provide the
best indication of the person's employability.

Under both the present and future contemplated system, the claimant must
appeal their determination of disability while they are pursuing 301
activities and simultaneously argue that they are disabled and that they
should be allowed to continue in a 301 program. Our suggestion is that
it would be better and less confusing, if the individual knew that they
could contest the determination [after]{.underline} they had finished
the 301 process. This will cut down on unnecessary appeals, while at the
same time, allow the claimant to pursue all options for rehabilitation.
We would urge that the final regulations be revised to allow for such an
option.

Thank you for this opportunity to comment on this proposed rulemaking.

Respectfully submitted,

Richard P. Weishaupt

Robert J. Lukens, Ph.D.

Mary Noland

Jonathan M. Stein

Community Legal Services, Inc.

1424 Chestnut Street

Philadelphia, PA 19102-2505

Tel (215) 981-3773

Fax (215) 981-0436

[[rweishaupt@clsphila.org]{.underline}](mailto:rweishaupt@clsphila.org)

[[rlukens@clsphila.org]{.underline}](mailto:rlukens@clsphila.org)

[[mnoland@clsphila.org]{.underline}](mailto:mnoland@clsphila.org)

jstein@clsphila.org