Social Security Administration
Ticket to Work and Work Incentives Advisory Panel Teleconference Meeting
November 8, 2000

Ms. Morrison, the designated federal officer for the Advisory Panel, opened the public teleconference meeting of the Ticket to Work and Work Incentives Advisory panel, at 1:35 PM EST. Ms. Morrison welcomed the Panel as well as those who came to testify. She added that the purpose of the meeting is to discuss the implementation of TWWIIA. She stated that Susan Wiggins Mitchell would preside over the meeting.

Marie Strahan, the executive director of the panel was also in attendance. Also participating were the following Advisory Panel Members: Susan Wiggins Mitchell, chair, Frances Gracechild, Christine M. Griffin, Stephen L. Start, Stephanie Smith Lee, Bryon R. MacDonald, Thomas P.Golden, and Susan Webb.

Other people in attendance by telephone are listed below: Celine McCordius, Pat Miller from University Legal Services, Jan Baker from Disability Rights Center, Susan Procop from Paralyzed Veterans of America, Laurie Ford from the Center on Continuing Education and Rehabilitation at Washington University, and Katherine Mario from State VR in Albany, New York.

Ms. Mitchell stated that public comment will go until 3:00 and could go a little later if necessary. She added that each speaker is to be given a five- minute time slot and a 30 second warning that time is almost up from staff. She thanked panel members and others for their participation.

Ms. Webb inquired about the process for asking questions of those who are testifying. She suggested that questions be written down and given to staff for transmittal to the people who testified; they could post their answers to the Web site.

Mr. Start suggested that the Panel take a minute after the presentation to ask questions in a simple two-way exchange.

Ms. Smith Lee agreed with Mr. Start.

Ms. Mitchell replied that after each presentation the Panel should allow a minute for questions that deal with clarification. Further questioning will wait until all presenters have finished.

Ms. Strahan called for an introduction of people present in the meeting room and asked if anyone needed interpreter services. Individuals in the room and others on the telephone introduced themselves. They included: Tamara Allen, Consultant; Bonnie O'Day and Mary Killeen from CESSI; Theda Zawaiza, Consultant; Marty Ford from ARC; Paul Seifert from IAPSRS; Lisa Ekman, staff member; Kristen Breland, staff member; David Ziskind and Mary Davis from RSA; Cheryl Bates Harris from NAPAS; Murray Manis from Equip for Equality, the Illinois P and A in Chicago; Gordon Richmond, staff member; Dave Zelner from the P and A in South Carolina; Aleisa McKinlay from the Nebraska P and A; Heather Ritchie from NCIL; Sue Carey from the California Department of Rehabilitation; Debra Russell from the SSI Coalition in Chicago; Jessica Swirsky from Abilities Inc. in New York; Vinnie Adinolli from Independent Living in New York; Melissa Sublette from the Oklahoma Disability Law Center; Ed Wollmann from the Disability Community Small Business Development Center in Ann Arbor, Michigan; Andrew Sperling from NAMI; and Ann Maclaine, Director of Louisiana Protection and Advocacy Agency.

Ms. Mitchell called for the testimony to begin.

The E.G. Advocacy and Protection Agency was not present, so Marty Ford from the ARC began the testimony. Ms. Ford thanked the Panel and said that since the proposed regulations are not published yet, her comments are on concepts only. She responded to the three questions posed by the panel: 1.) Should P and A services be available to all beneficiaries? She stated that P and A services should be available to all beneficiaries and not just ticket holders in roll out states. She added that Work Incentives are broader than just the Ticket to Work, with, for example, the Medicare, Medicaid, and CDR changes.

In reply to the second question, Ms. Ford also stated that mediation could be an important part of the dispute resolution process, helping to avoid a long drawn-out process. However, the P and A service provider should not serve as a mediator, as this would be a conflict with the P and A mission. P and A's should represent the person with the disability. In response to the third question, she said that the structure of appeals should be based upon which entities were in dispute, with the goal of quick resolution. Appeals should include judicial review and other normal administrative processes when the dispute is with SSA. She added that the protection of the appeals process should also be extended to withdrawal of the Ticket. The beneficiary should have the benefit of a representative of their choosing at all stages of the process.

Mr. MacDonald asked if Ms. Ford could comment on mediation outside of the P and A process; where should it come from?

Ms. Ford replied that it should be within the Employment Network structure but that there also should be some mechanism where the P and A could represent the consumer, assisting him or her within the mediation process.

Cheryl Bates Harris from NAPAS responded to the three questions posed by the Panel. She stated that yes, eligibility for P and A services should extend to any beneficiary who wants to work, including former beneficiaries that may become eligible for benefits due to disability exacerbation and former beneficiaries who again become eligible following a work experience.

As to the second question, she stated the dispute resolution process should include mediation as part of the continuum of dispute resolution Formal mediation should not be a requirement. She added that P and A providers should not attempt to be mediators or attempt to act as a neutral third party.

In answer to question three she stated that yes, an external appeals process should be available. Employment networks should develop their own internal grievance process, but this should only be the first step. Information to consumers about the appeals process should include next steps, clear information about the rights of the individual, and how to contact the P and A system This information should be provided at several designated points throughout the process. P and As should provide a variety of supports but should not be involved in disputes between two agencies about ticket payments, unless this adversely affects a consumer's receipt of services. And finally, P and A efforts should include transportation and childcare, assistive technology, health care, and other employment supports.

Ms. Webb asked for clarification about P and As not being forced to be a neutral party as a mediator. She asked if the P and As should represent the consumer only.

Ms. Bates Harris replied that the P and A should represent the client, not the employer or Social Security and should not be a neutral party.

Susan Procop was called upon, but stated that she was not scheduled to speak today.

Tony Young was called upon, but was absent.

Katherine Mario was called upon, but stated that she was not scheduled to speak.

Miles McFadden was called upon, but was absent.

Aleisa McKinlay, a public policy analyst from Advocacy Service, the P and A in Nebraska endorsed the comments from NAPAS. She stated that it is of utmost importance to achieve clarification concerning the term "mediation". She pointed out that it has several meanings and means different things to different people.

Ms. McKinlay stated that putting the Protection and Advocacy person in the role of mediator is both counter-productive and inappropriate. She said that mediation should be an alternative, but not a mandated process, adding that it cannot work if it is not voluntary. The P and A person should be allowed to work with and advocate for an individual, but not be put in the position of a neutral third party. The P and A should be allowed to come to the mediation with the client, representing him or her.

Ms. McKinlay also stated that an appeals process is necessary: there should be a multi-level appeals process which should start with the employment network moving all the way to a judicial appeal if the administrative appeal is not fruitful.

Mr. MacDonald asked for elaboration concerning where the mediator should come from.

Ms. McKinlay responded that in Nebraska there is an office for dispute resolution, with mediators who are trained on specialty tracks. She stated that community based mediation is designed to bring the parties to an agreement they both can live with. She suggested that these community agencies be used, where they exist.

Ms. Mitchell said she had a follow-up question, but would hold it for later.

Warren Sparrow was called upon, but was absent.

Edward Wollmann of the Disability Community Small Business Development Center in Ann Arbor, Michigan spoke to the issue of self-employment. He stated that the program he represents is twelve years old and statewide. It assists people with disabilities, especially those coming off SSI or SSDI benefits, to start their own businesses.

Mr. Wollmann pointed out that people with significant disabilities have a self-employment rate of about 16 percent compared to 8 percent in the general population. There is a special interest in self-employment among people on SSI and SDI. He stated that a 1997 RSA study on the six choice projects showed that 20 to 30 percent of consumers chose self-employment. He added that 50 to 70 percent of people who contact his center are on SSI or SSDI. His concern is that there is very little in the TWWIIA that addresses self-employment and that self-employment as an accepted outcome needs to be communicated to the individual. He pointed out that language is needed in the TWWIIA that specifies self-employment as an employment outcome.

Ms. Webb asked about the 20 to 30 percent statistic cited for people with disabilities who would like to be self-employed in the final report of the choice grants. He gave the grant number, RSA-IM 98-16, July 2, 1998 and said he would submit the report to the Panel for the record.

Ann Maclaine, Director of the Louisiana Protection and Advocacy Agency spoke next. She echoed the comments from NAPAS and agreed that services should be available in all states immediately, not just in those that are being rolled out, and irrespective of whether the client is a ticket user. She stated that mediation has a role in dispute resolution if it is voluntary and added that it is not the proper role of a P and A provider. She also stated that it might be an unethical conflict of interest for a P and A provider to act as a mediator.

Ms. Maclaine agreed with the previous speakers that there should be an external grievance process. She stated that it could begin internally with the Ticket agency, with SSA setting minimum guidelines for the internal due process and then move beyond the internal into the external process. She added that the individual should have assistance at any stage of the process.

Ms. Maclaine stated that the scope and purpose of P and A services should be defined very broadly based upon the input of the people being served. She added that SSA should neither mandate nor prohibit P and A's specific activities, enabling the P and A and the consumer to develop appropriate services.

Ms. Mitchell asked about the notification to beneficiaries of their rights. How can we insure that consumers get the information when they need it?

Ms. Maclaine replied that this has not been a problem in her state. However, she stated that you can't have too much notice - information must be readily available and it must be spread as widely as possible. P and As should be involved in their own public education process to inform the public as well as beneficiaries. It should not be left up to the employment networks or the VR agencies.

Elmer Cenano was called upon, but was absent.

Francine Tischman was called upon, but was absent.

Steven Zwirn was called upon, but was absent.

Rainer Morgan was called upon, but was absent.

Ruth McEwen was called upon, but was absent.

Sue Augustas was called upon, but was absent.

Dave Ziskind, Director of the Division of Program Administration, RSA, Vocational Rehabilitation Program, was the next to speak. He stated that mediation should be a part of the dispute resolution process. He pointed out that the Panel should consider due process rights as put forth under the Rehabilitation Act of 1973 as amended in 102 c 4, which requires that each state have procedures established for mediation. He explained that the Rehabilitation Act states that the mediation process be voluntary and not be used to deny a hearing or any rights provided under the Act. It should be conducted by a qualified and impartial mediator. The sessions must be held in a timely manner and in a convenient location. It shall conclude with a written mediation agreement. The content of the sessions must be confidential and not used as evidence in any subsequent civil proceedings or other hearing deliberations. Mr. Ziskind also noted that mediation is a cost-effective form of dispute resolution. He encouraged the Panel to review this legislation.

Ms. Mitchell asked Mr. Ziskind who pays for mediation under the Act.

Mr. Ziskind replied that the state VR agency must pay for it in the same way other administrative costs are paid for.

Ms. Mitchell asked if SSA or the employment networks should pay for it under TWWIIA.

Mr. Ziskind stated that he had no opinion about who would pay for it under TWWIIA.

Murray Manus from the Equip for Equality, the P and A in Illinois spoke next in support of the previous comments. He stated that it is critical that the P and As are not put into the role of mediators; it would be a conflict of interest. Mr. Manus also said throughout the appeals process, beneficiaries must have the right of representation by whomever they want, whether lawyer, sibling, friend, or whomever.

Mr. Manus stated that when the person receives notification that they have qualified for the Ticket to Work program, they should receive a statement of their rights. The statement should include the right to a P and A person to assist them; information about the P and A should be provided as early in the process as possible. Mr. Manus pointed out that consumers should also receive this information from the provider, as well as when benefits are being changed or reduced. He added that you cannot notify consumers too often. He suggested that it might be useful to use language from the DD Act which sets forth the general authority of the P and A. He stated that it should describe the scope of services that the P and As have to offer, but use broad language, such as: "This authority shall include but not be limited to..." He suggested that the statement include specific examples of the kinds of work the P and As are authorized to do.

Mr. Manus added that the agency should have the authority to get involved in specific financial disputes. For example, if there is a dispute that threatens the person's ability to be involved in any program, the P and A should be involved in that case, as well. He noted that P and As at his own agency get involved in eligibility issues, but not in disputes concerning the amounts of benefits.

Mr. MacDonald asked if the P and As could be used to provide benefits counseling.

Mr. Manus replied that the P and As don't envision this as a role for themselves. They could, however, get involved in eligibility decisions but not specific benefit amounts. It should be permitted, but not required.

Linda Landry of the Disability Law Center in Boston, the P and A in Massachusetts, spoke next. She agreed with the comments of previous speakers that the P and A services should be available to everyone. Access to P and A's should be available in every state, not just the roll-out states. Ms. Landry stated that the scope of services for P and A should include the full range of services that previous speakers have mentioned, including dealing with overpayments and the amounts of benefits. She said that internal grievance procedures are a critical beginning and that minimal standards of due process need to be prescribed, including the right to be accompanied and the right to notification about further appeal. She also agreed that mediation should neither be mandatory, nor the role of P and As to provide.

Dave Zelner from the P and A in South Carolina was the next speaker. He stated that when employment networks are established, rural areas should also be considered. He stressed the need for employment networks and services in rural areas throughout the country.

Because all of the individuals with testimony had been heard at this point, Ms. Mitchell asked the Panel to begin with their follow-up questions.

Gary Richter from Indiana commented that it would be prudent for Social Security to include a provision that in a dispute over services, the services continue throughout the appeal and not be reduced or terminated unless those services were obtained by fraud. He stated that the services should be required to continue while the appeal is in process.

Ms. Mitchell asked if this would be like the Education Law "stay put" provisions, and, if so, then what happens if the individual is not happy with the services and wants to withdraw from them?

Mr. Richter suggested that whatever services that were agreed to in the individualized plan should continue.

Stephanie Smith Lee mentioned the TWWIIA provision that allows beneficiaries to change providers if they wish. She stated that the provision that was suggested would prevent other money from being spent by another provider. For example, if the first provider had to wait for funds, that could delay the beneficiary from getting services from the second provider.

Mr. Richter suggested that that kind of dispute would be a dispute between SSA and the network and should not hold up a consumer's right to change providers.

Ms. Webb asked that the individuals who spoke here today think about these questions and get back to the panel with additional commentary.

Ms. Strahan stated that the Federal Register states that the Panel will welcome written comments of up to five pages in length until November 13, 2000.

The follow-up questions began with Ms. Mitchell asking Ms. Ford what kind of timelines should prevail in the dispute resolution process and how long the entire process should take.

Ms. Ford replied that she would like to think about it, but the shorter, the better. Ms. Ford asked what people tend to mean by internal or external processes. She said that the process should begin within the employment network, then go to the program manager, and then to SSA. After that, it would go to a judicial review. She also stated that she was in agreement with what other speakers have said in regard to mediation being voluntary.

Ms. Mitchell asked if Ms. Ford thought that the internal process should be mandatory and if it should be handled at the local level and not by Social Security.

Ms. Ford replied that she believed that the timeline would be shorter if it was handled internally by the employment network and that if Social Security handled it, it could become a lengthy process.

Mr. MacDonald asked about the role of the P and A before disputes arise, because the legislation complicates an already complicated system. He stated that if the person seeks assistance before a dispute arises, they should be able to get it from the P and A. Individuals should be able to go to the P and A before a dispute arises.

Ms. Griffin suggested that there was a conflict between the P and As and the benefits counseling. She asked about the role of P and A in the event that the beneficiaries are not getting good benefits counseling. She also asked if Ms. Ford sees the P and As getting involved in cases where beneficiaries were ill advised.

Ms. Ford suggested that this sets up a conflict of interest if the person has had trouble with that particular service. There might be times when the client has a dispute with the benefits counselor.

Mr. Start asked if the client would have access to external counsel. He stated that this could get extremely expensive and adversarial.

Ms. Ford commented that there will be people who cannot get the services that are provided by the P and A system due to shortage of funds. She pointed out that SSA already has rules in place which govern how attorneys are paid.

Ms. Strahan stated that anytime there could be a potential loss of benefits there is a procedure whereby the beneficiary's lawyer can be paid by Social Security.

Ms. Webb wondered how to pay for mediation if it is not covered by the P and As. She asked Ms. Harris how disputes within TWWIIA will be paid for, such as those between the consumer and the employment network.

Ms. Harris said that she did not have an answer to this question. She stated that she will discuss it and get back to the panel later on this.

Ms. Lee asked Ms. Harris if the P and As are not to get involved in disputes between employment networks unless the beneficiary is hurt, under what circumstances would she see the beneficiary being hurt?

Ms. Harris stated that the issue of reimbursement won't apply when the beneficiary leaves one network and goes to another; the reimbursement doesn't occur until the beneficiary goes back to work. So this kind of dispute should be worked out between the agencies and not effect the client. She added that the P and A should reinforce this.

Ms. Mitchell asked if there might be a place where the person must sign something that says they received information about the P and As. Employment providers should provide information about the P and As and should ask the consumer to sign a statement that they received the information.

Ms. McKinlay spoke about alternative dispute resolution agencies. She pointed out that there is a network of these providers. It is located in the Department of Justice, Office of Dispute Resolution Services, and noted that a listing can be found on the web. The contact person is Kathleen.m.Severens@usdoj.gov. She stated that community mediation is much cheaper than going through a private attorney.

Mr. MacDonald commented on the research that came out of Rutgers supporting the statistics that people with disabilities are twice as likely to be self-employed. He agreed with Mr. Wollmann that folding the language of self-employment into the Act is very sound. He asked Mr. Wollmann about the specific self-employment language that should be used and if he had noted specific areas of the Act that were problematic.

Mr. Wollmann replied that he would review the Act, write up comments, and have them in by November 13th. He suggested that the Milestone process should include a reference to self-employment.

Mr. Start asked Mr. Wollmann if he thought that employment networks should give loans to people starting small businesses. He stated that it might be advantageous and yet dangerous to have employment networks act as lenders or business planners.

Mr. Wollmann replied that his agency does both, but to different individuals. He added that they have found that, with a given individual, they should do one or the other, but not both. He stated that employment networks could act either as the service provider or the finance lender for a given individual, but should not do both because of conflict of interest.

Ms. Webb asked Mr. Wollmann if there was any talk of Small Business Development Centers becoming employment networks?

Mr. Wollmann said no, because Small Business Development Centers typically work with established businesses, not start-ups. Also, most of these agencies do not have specific disability expertise.

Ms. Mitchell brought the public comment period to a close and moved to operational administrative matters.

Ms. Strahan stated that the time was still open for written public comment on the Panel's deliberation. The address for written comments was read: Social Security Administration, Ticket to Work and Work Incentives Advisory Panel Staff, 107 Altmeyer Building, 6401 Security Boulevard, Baltimore MD 21235. Fax: 410 965 9063. Email: kristen.m.breland@ssa.gov.

Ms. Strahan noted that this address also appears at the end of the Federal Register notice.

Ms. Mitchell asked for any other matters and noted that there is a full meeting next week.

Ms. Webb stated that she is the ad-hoc chair of the Milestone working group. She was concerned that the employment networks would have no place to bring disputes forward. She stated that the employment networks participate voluntarily, as do the consumers, and that we should not set up a system that provided no incentives for employment networks to participate. She also said that self-employment is addressed in the law because networks can be paid when the person makes SGA. Employment networks are going to want some protections, too. They should have dispute resolutions available also. The Social Security Administration or any other public entity will probably not fund dispute resolution services for employment networks, so how should this be resolved?

Mr. Start stated that we need to look at the paradigm shift made by TWWIIA. He pointed out that this program looks at the private sector as a funder of employment services - a complex partnership relationship between an individual who wants a job and the private sector employment network who wants to help. If we do not provide mediation that includes the provider, they will not invest in the consumer. He stated that there is no process for the network to bring a complaint if the consumer does not follow through. What if a consumer changes providers after they are almost through with services? For example, what if the provider helps pay for a consumer's education with the help of Pell grants and then the consumer goes to a different provider after completing 80 percent of his training.

Mr. MacDonald agreed with Mr. Start on the self-regulatory contract between the job seeker and the employment network. He stated that we are not grounded with what P and As have traditionally always been. He added that P and As are not going to be providing services to both sides and that the comments today echoed this. He also stated that the individual work plan had great potential if kept as simple as possible. He said that P and As should not do mediation or represent the employment networks.

Ms. Griffin stated that she agreed with Mr. MacDonald that P and As should not play this role.

Ms. Webb stated that she was not suggesting that P and As do something that they are not comfortable with, but that employment networks also need a process to resolve complaints.

Ms. Mitchell and other Panel members voiced their agreement.

Ms. Mitchell asked panel members to review the operating procedures and send their input to her about changes as soon as possible so that those changes can be adopted at next week's meeting. She also asked the Panel to think about the web page that will be discussed next week. Questions concerning the web site will be sent to them by fax or email for their response. Ms. Mitchell stated that the Panel will be devoting time to FACA, which is the federal act that covers advisory committees. The FACA attorney for Social Security will be attending the meeting so panel members should prepare questions and send them in, as well. MacDonald asked if the relationship between FACA and TWWIIA would be clarified. Ms. Strahan said that both SSA and GSA attorneys would be present, but she was unclear about whether these individuals were familiar with TWWIIA.

Ms. Strahan mentioned that Susan Daniels came through surgery just fine and is recovering nicely. She noted that there is space at 400 Virginia Avenue for the Advisory Panel staff. Social Security is working on renovations and the lease and the move is scheduled for December.

Ms. Webb asked what a briefing means, with reference to an e-mail that had been distributed. She also asked what are the costs of including additional people on a teleconference.

Ms. Mitchell stated that the work groups did not require public notices because they are pre-deliberative meetings. People can be invited to brief the work groups on particular issues and can be asked informational questions. That information should then be brought to the Panel.

Ms. Webb stated that her work group is asking for feedback from providers on how they see their ability to become an employment network. Wiggins said that this information could be obtained in a public forum and concerned individuals should provide testimony.

Ms. Strahan stated that there is a big difference between public comments and expert briefings where experts share knowledge that is fact-based with a work group. Opinion must be collected in public in an inclusive way, whereas factual information can be done in private. A work group can host a conference call as long as they are collecting opinion and it is done with a notice in the Federal Register. She added that she could not commit funds to bring experts in at the moment, because the Panel does not have a budget. The panel can have a conference call with experts, as long as there is no deliberation and no decision making on the call.

Ms. Webb stated that her work group had tried to do that, but were told that they couldn't.

Ms. Mitchell stated that she had sent out the email to let the work groups know that they can go forward as long as they are gathering pre-deliberative information that will be shared with the entire Panel.

Mr. MacDonald asked that the Panel discuss the relationship between FACA and TWWIIA next week. He also suggested that another round of public meetings be scheduled as soon as possible. He suggested five full days of public hearings in order to break the log jam of communication between Social Security and the Panel.

Ms. Mitchell stated that the intent of the meeting next week will be to define the future schedule. She suggested that perhaps the meeting schedule should be set on a quarterly basis.

Ms. Strahan stated that she realized that there was a lot of confusion when the commissioner asked the Panel to stop having all meetings. It is the agency's opinion that all meetings should be open to the public.

Ms. Mitchell stated that it is her understanding that the Panel is to be compliant with FACA.

Ms. Strahan suggested that compliance with FACA is less restrictive than compliance with Social Security policy. Ms. Mitchell stated that she is in full support of open meetings and that she thinks that all of the Panel's meetings should be open to the public. Other Panel members agreed.

Ms. Strahan stated that the minutes will be available from the last public meeting for the Panel's comments.

Mr. Start expressed concern that there is a public perception that all of the decisions are being made by Social Security and that people do not have access to the deliberation process. He added that the Panel must balance this perception with the need to complete work schedules on time and meet deadlines in the legislation.

The meeting was adjourned.