[Congressional Record Volume 140, Number 11 (Tuesday, February 8, 1994)] [House] [Page H] From the Congressional Record Online through the Government Printing Office [www.gpo.gov] [Congressional Record: February 8, 1994] From the Congressional Record Online via GPO Access [wais.access.gpo.gov] LET'S STOP DISABILITY INSURANCE FRAUD (Mr. SMITH of Michigan asked and was given permission to address the House for one minute and to revise and extend his remarks.) Mr. SMITH of Michigan. Mr. Speaker, Supplemental Security Income was designed to help the disabled who can no longer work and sustain their incomes. Unfortunately, some people have found that a court interpretation of a 1972 law allows them to take billions of dollars from U.S. taxpayers by having their children classified as disabled because they are slow learners or have behavioral problems. Several constituents brought this unfair situation to my attention. Over the last several months, I drafted a bill to stop this fraud by eliminating extra disability benefits for those under 16 years old, saving taxpayers $3.6 billion per year. Parents of these children would still be eligible for medical care through Medicaid, AFDC and other low income assistance programs, but they couldn't claim disability benefits of an additional $400 per child per month. I plan to introduce legislation this week and invite cosponsors. {time} 1430 The problem of disability abuse has come increasingly into the public spotlight, including this article in last Friday's Washington Post by Bob Woodward and Benjamin Weiser, that I will include as an extension of my remarks. My bill will protect the integrity of S.S.I. and save billions of dollars for hard working taxpayers. The article referred to follows: [From the Washington Post, Feb. 4, 1994] Costs Soar for Children's Disability Program: How 26 Words Cost the Taxpayers Billions in New Entitlement Payments (By Bob Woodward and Benjamin Weiser) Nora Cooke Porter, a pediatrician and lawyer, works on the front lines of the nation's entitlement system. She can barely contain her frustration as she flips through some of the thousands of applications for a federal aid program for disabled poor children that have passed through her Harrisburg, Pa., office over the last two years. The files show, she says, that children who curse teachers, fight with classmates, perform poorly in school or display characteristics of routine rebellion are often diagnosed with behavioral disorders and therefore qualify for the program's cash benefits, which average $400 a month. Under a broad new federal standard prompted by a 1990 Supreme Court ruling, behavior that isn't ``age appropriate'' is considered a disability. Porter feels her hands are tied by the new rules. She has tried to block benefits to children who, in her medical opinion, are not suffering from any disability. Her superiors have overruled her, and she has written detailed rebuttals. Last month, she was suspended without pay for her repeated protests, and she believes her job as a disability-review physician is in jeopardy. Months before her suspension, she agreed to be interviewed because she believes that the children's disability program is an example of an entitlement system gone haywire. She hopes that her decision to speak out will drawn attention from congressional or federal investigators. The age-appropriate standard is only the most recent flaw in the program, according to Porter and others. They trace the programs' problems to its origin: a vague, little-debated 26-word clause that was hastily inserted in a mammoth welfare bill passed in 1972. Porter's criticisms are echoed by many others who work in the program. They say they sympathize with the children, many of whom are living in desperate poverty. But, they argue, the program does little to help them with their real troubles, especially since the majority of Children who now qualify have mental disorders rather than physical ones. How to provide for the country's neediest--the old, the young, the poor, the sick, the disabled, the disadvantaged-- without bankrupting the Treasury has become one of the central governing questions of our time. Earlier this week, The Washington Post published a series of articles on the rising cost of Medicaid, the health insurance program that is the government's largest entitlement for the poor. This article examines the little- known children's disability program, another entitlement for the poor, which is experiencing the same skyrocketing costs as Medicaid. Last year, the children's disability program cost $3.6 billion. It was serving 770,000 at the end of December, a number that none of its sponsors imagined possible when it was enacted 20 years ago, they say. Because disability recipients automatically qualify for Medicaid, the program's rapid expansion also has led to hundreds of millions of dollars in additional costs for that entitlement program. Children's disability is a component of a larger entitlement program call Supplemental Security Income, or SSI, which provides benefits to poor people who are elderly, disabled or blind. By law, entitlement programs guarantee government benefits to anyone who meets the qualifications set out in legislation or in regulations. Federal spending levels are mandatory, meaning they cannot be altered unless the law is changed. what can happen The history of the children's disability program illustrates what can happen when a law is enacted without much debate or study and then becomes subject to interpretation by regulators, advocates and the Supreme Court. The new age-appropriate standard that Porter criticizes was written by federal regulators after the Supreme Court ruled that the law required the government to use a broader definition of disability in determining eligibility. Since the court ruling, the number of children receiving benefits has more than doubled. The decision also led to lump-sum back payments for some 150,000 children who had been denied benefits under the old rules. These back payments-- which averaged $15,000, with some as high as $75,000--have cost the government $2 billion since 1991, plus at least $287 million more in administration. In a survey of state disability determination directors conducted last summer, more than half cited ``inappropriate use of SSI funding'' as the most common concern in their states. Parents or guardians are not required to use the money for therapeutic or medical aid. They can spend the cash payment as they please, as long as it benefits the child in some way. That rule has been interpreted to allow the purchase of a television set, a video game or a car. ``I really have to grapple with the idea that I'm allowing that parent to use the money any way they want to, fairly certain, given the history, that the child is not going to benefit,'' said a psychologist in the Washington disability determination office. ``And that happens to us . . . eight times a day.'' The lump-sum payments revealed what both supporters and critics of the program see as the absurdity of federal spending rules. Families receiving the back payments were required to spend the money within six months so that their sudden wealth would not make them ineligible for the income- based program. Last summer, a group of disability experts and officials met in Washington to discuss the mission of the children's disability program. According to a confidential memo about the July 19 meeting, a congressional staff director ``questioned exactly what we were trying to accomplish by giving disabled children benefits.'' The response: ``From a social policy perspective,'' the memo said, ``it was interesting that no one really had a good answer''--not the policy experts, nor the people who run the program, nor even the people who oversee the legislation. a consolation prize The children's disability program began in 1972 as a kind of consolation prize. The Senate had just killed the Nixon administration's proposal for a guaranteed minimum income for poor Americans. As a compromise, Congress established SSI to provide aid for the ``deserving poor'': the elderly, blind and disabled. Initially, no money was set aside for children. Thomas C. Joe, a senior federal welfare official, inserted the 26-word clause that expanded SSI to cover children. It appeared in parenthesis, as follows: ``(or, in the case of a child under the age of 18, if he suffers from any medically determinable physical or mental impairment of comparable severity).'' Joe, 58, now head of a Washington social policy think tank, said that expanding the program to cover disabled children was part of his ``incremental strategy'' to assist as many poor people as possible. It was a welfare program disguised as disability assistance. There was no consideration of the financial or policy consequences or of other ways to aid disabled children, according to participants in drafting the original legislation. Nor was there any public hearing that even mentioned Joe's 26-word clause. Joe acknowledged with some humor that he tucked the provision into the 697-page bill in order to sneak it through. ``I was afraid that too many people were going to discover this and it would be a big controversy,'' he said. ``This is a good example of democracy not at work.'' he added. The Senate Finance Committee chairman at the time, Russell B. Long (D-La.), made a run at killing the provision. ``Disabled children's needs for food, clothing and shelter are usually no greater than the needs of non-disabled children,'' his staff wrote in a Sept. 26, 1972, committee report. It said disabled children needed health care and rehabilitative services, not money, and noted that Medicaid already covered poor children's health costs in 48 states. During the closed-door, marathon weekend House-Senate conference in October 1972 to reconcile different versions of the bill, hundreds of other welfare, Medicaid and Medicare issues were being resolved, and SSI received little attention. ``It wasn't thought of as a big deal,'' said Frank Crowley, a now retired senior staffer who worked on the bill. ``It was one of these annoying little details.'' The 67-page report from the conference made no mention of how the issue was settled. J. William Kelley, a House Ways and Means Committee staffer at the time, has a copy of the only existing conference paper about Senate amendment No. 564, which called for dropping Joe's provision. The single sheet reads: ``CONFIDENTIAL. Summary: The House bill authorizes payment to children under age 18. The Senate bill does not.'' The line under ``Cost'' was left blank. When the conference report was presented to the House on Oct. 17, 1972, Rep. Phillip Burton (D-Calif.) rose to praise the new program. ``Thanks to Tom Joe, this is now a reality,'' he said. what is disability? Joe's amendment became law without anyone addressing the obvious question: How do you define disability for a child? Previously, disability assistance had been premised on the disabled person's inability to work. The purpose was to make up for lost income. The bill creating SSI defined a disabled adult as someone ``unable to engage in any substantial gainful activity.'' But children don't work, at least until they become teenagers. ``It is ludicrous on its face to apply the same standard to children,'' said Joseph Humphreys, a former congressional staffer who worked on the 1972 bill. Humphreys called the 26 words ``a punt by Congress'' that left regulators to decide what to do. The meaning of Joe's 26 words--especially the phrase ``comparable severity''--has been controversial ever since. Even today, Joe said, he doesn't know exactly what the phrase was supposed to mean. In writing regulations, the Social Security Administration, which runs SSI, said an adult was eligible if his or her disability appeared on a predetermined list of physical and mental impairments. If it didn't, the adult could still qualify by having a personal evaluation that determined that he or she was unable to work. The regulations treated children differently. They had to manifest one of the listed impairments, such as acute leukemia, chronic epilepsy or serious mental retardation. Because children generally don't hold jobs, individual evaluations were not considered necessary. In the early 1980s, the Reagan administration moved to slash the number of people on federal assistance programs, including SSI. One of the thousands of people affected was Brian Zebley, a 5-year-old retarded boy. His family filed a lawsuit, charging that the government was illegally denying benefits to Brian and other children. As the case wound its way through the federal courts, it attracted a vigorous and passionate advocate--Jonathan Stein, a legal services lawyer in Philadelphia. The legal counterpart to Joe, Stein saw the courts as a way to extend benefits to the poor. He and a colleague, Richard Weishaupf, took Zebley's case all the way to the Supreme Court. Stein spotted the logical flaw in the administration's way of determining eligibility: The ``comparable severity'' test could not be applied to children unless the methods of assessing disability in adults and children were themselves comparable. Children deserved the same kind of individual assessments that adults were receiving, Stein argued. A Supreme Court case often carries the expectation that large constitutional, moral or social issues will be addressed. The Zebley case, however, was framed narrowly: Had the government properly interpreted the law? In 1990, in Sullivan v. Zebley, the Supreme Court ruled 7-2 in Zebley's favor and ordered the Social Security Administration to give children the same individual analysis as adults. To implement the high court's ruling, the agency asked a panel to experts to settle the question: What is the work of a child? The panel's answer, in the form of new regulations, is the primary cause of Nora Porter's complaints. The new rules defined a child as disabled if his impairments ``substantially reduce'' his ability to ``grow, develop or mature physically, mentally or emotionally and thus to engage in age-appropriate activities of daily living.'' These activities ranged from learning, communicating and performing in school to interacting appropriately with peers and family members. Social Security officials said the panel was seeking a common-sense way of comparing children and adults. In Porter's view, they failed. ``Age appropriate is a fictitious standard,'' she said. ``It applies to the perfect child, and any deviation from that allows someone to apply for and likely be declared disabled.'' James Perrin, a Harvard Medical School pediatrician who helped develop the regulations, said Porter's criticism was unrealistic and out of touch. He said physicians needs some standard to assess a child's behavior. ``None of us can think about children without raising the question of age- appropriate behavior,'' he said. ``There's no way of approaching children and adolescents without thinking about that.'' victory provides leverage Stein's legal victory gave him enormous leverage over the children's disability program. According to federal and state officials, he became the program's de facto supervisor. Stein regularly threatened to seek contempt-of-court citations when he felt the Social Security Administration wasn't implementing the rules fast enough. He also provided the news media with information on how the agency's foot- dragging was costing hundreds of thousands of disabled children money that the Supreme Court said they deserved. One of Stein's most significant accomplishments was getting Social Security to review roughly 450,000 cases, dating to 1980, in which children had been denied benefits. This led to the 150,000 lump-sum back payments. But not even Stein could do anything about the government's requirement that the recipients spend the money within six months to remain eligible for the program. Stein unsuccessfully tried to create an exception for back payment recipients, calling the rule ``Kafkaesque.'' The rules legitimized and even encouraged shopping sprees. In a case that both federal officials and program advocates said was fairly typical, Beverly Smith of Greenville, Ky., received a back payment in 1992 of $13,000 for her 11-year- old son, who is hyperactive and was deemed disabled under the new rules. Smith, who earns about $8,000 a year sweeping up in a local bank, said she was shocked to receive so much money at once. She used the money to buy a car, a washer and dryer, a refrigerator, a stove, a television, a $2,500 computer and three jogging suits for her son, she said in a recent interview. She also repaired her bathroom, leaky roof and collapsed hallway floor. The computer, she said, has helped her son to sit still for long periods of time for the first time in his life. The stove had to be fitted with protective glass doors because her son once started a fire in the kitchen. Smith now receives a regular monthly SSI check from the government for $446, in addition to Medicaid benefits. In other cases disability money--both the back payments and the monthly checks--has been spent on everything from medical expenses not covered by Medicaid to family vacations. In some cases, families have tried to avoid the spending sprees by establishing trust funds for children, but such arrangements are legally complex and prohibitively expensive. The Social Security Administration does require an accounting from the person who is entrusted with the child's check. But the agency does not have the resources to scrutinize spending on a large scale. A guardian is suspended only if an egregious misuse of the money is called to the agency's attention. ``When you get into programs like this,'' said Louis D. Enoff, a 30-year veteran of the Social Security Administration and its acting director until July 1993, ``if you write something that's very, very tight, then you have great difficulty. . . . You're going to have to follow up with a tremendous administrative detail to follow it through. What are we going to do? Follow every penny and ask for check stubs? And go see the evidence?'' Enoff said he wasn't sure a purchase such as a car should be allowed. ``Yeah, they may buy a new car, but it's not a Mercedes or something,'' he said. ``That's probably benefiting the kid as much as anything, because he needs treatment and he gets better treatment. . . . If the child has to go to the hospital once a week, there're taking a cab now. So you pay for the car pretty quickly.'' He added. ``I mean, I would not buy a car, maybe, if it was me.'' Social Security officials said the evidence of abuse is small. ``I believe that most people are honest people. . . . who really care about their kids,'' said Barry Eigen, a senior Social Security official. They're not trying to beat somebody out of something. They need this.'' Fractured Administration Administration of the child disability program is divided among state and federal offices in a vast, fractured system where hardly anyone is responsible for seeing the big picture. First, applicants visits federal Social Security offices, where financial eligibility for the program is determined. Then, the applications are sent to separate state offices, such as the one where Porter works in Harrisburg. The state offices determine medical eligibility. Finally, the cases return to the Social Security offices, which make the monthly payments and oversee the spending of the money. Doctors and examiners in the state offices make their judgments on the basis of applications and medical assessments. They almost never meet the children they are evaluating or the parents who are spending the money. ``Our work begins in the mailroom when we receive a file and ends in the mailroom when we send it back with an allowance or disallowance,'' said Myrtie Adkins, the Maryland office director. Meanwhile, the Social Security officials who see the applicants have no input on the disability determination. ``We don't question the decision,'' said Ruby Burrell, head of the Camp Springs, Md., Social Security office. ``We don't even question if they are really disabled. It would be improper to do that. . . . You meet the criteria, you get the benefits.'' Many recipients come from troubled families, where parents or guardians may have their own addictions or pathologies. Karen Bolewicki, a senior examiner in Maryland for eight years, said ``at least one-third'' of her cases involve families in which a parent is a drug or alcohol abuser. And Maryanne Bongiovani, a psychologist in Maryland for five years with a PhD, said a quarter of the 4,000 children's cases she has reviewed involve sexual abuse by a family member. Kenneth R. Carroll, a psychologist with a PhD and a former colleague of Porter's in Pennsylvania, said these troubled family situations made him uncomfortable approving certain applications. ``Many of the problems these children manifest are largely traceable to parental neglect or abuse,'' said Carroll. ``Behavioral and emotional problems or conduct disorders that are directly attributable to inadequate parenting are being called disabilities, and the parents are receiving a cash award for having achieved the problem.'' But Leslie Ellwood, a pediatrician with Virginia's office of disability determination, said just because a disability stems from poor parenting doesn't mean the children do not deserve assistance. ``You don't want to visit the sins of the parents on the child,'' Ellwood said. To address all these complicated questions, the government has now written some 40,000 words to interpret Tom Joe's original 26-word phrase. ``We're doing a lot here based on one little statement,'' said Louis Enoff. ``And is this really what was meant?'' ____________________