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Memorandum of Support

Empire Justice Memo of Support: Provide a Person’s Treating Doctor with the Appropriate Role in Determining Whether They are Employable


S.428 (Dilan)/A.2960 (Wright)

Background – Current Law
Under the public assistance work rules, every adult client’s employability must be determined.  This process often involves an evaluation by the district’s own medical unit or by a private agency under contract with the district.  In addition, clients have the right to bring in evidence from their treating health care practitioner.  The districts must consider all of the evidence, but under current law, they have unfettered discretion regarding the weight given to the evidence. 

Proposed Amendments
Following the well-established precedent of the Social Security Administration in determining eligibility for Supplemental Security Income  (SSI) benefits, S.428/A.2960 would require that the treating practitioner’s opinion would be “generally controlling” in the determination of employability.  However, a number of factors would be considered to determine whether and to what degree the treating practitioner’s opinion would be controlling in any particular case.  These factors include the length and frequency of treatment, the consistency of that opinion with the “record as a whole,” the treating practitioner’s specialty and the concrete evidence that supports that opinion.  The bill would require that if the agency evaluator disagrees with the treating practitioner’s opinion, he or she must provide a written determination explaining the basis for the disagreement supported by concrete evidence.

Empire Justice Center Strongly Supports S.428/A.2960
Over 23,000 temporary assistance recipients suffer the effects of punitive sanctions for alleged non-compliance with the welfare work rules every month. [1]  In many cases, the sanction stemmed from an inadequate evaluation of employability.  The result of such faulty evaluations is that clients are frequently assigned to activities that are beyond their capacity or that might jeopardize their health.  This bill modifies a deeply flawed process for determining employability, making it much more balanced and medically sound.  

Treating Practitioners v. Agency Practitioners
Agency or contract evaluators rarely see clients more than once, and for a very limited period of time.  This stands in sharp contrast to the treating practitioner who is likely to be providing regular, long-term care to the client.  It is difficult to conceive of a valid objection to the principle that the treating practitioner’s opinion should be entitled to significant weight in the assessment of employability. 

This bill, based on the SSI model, makes allowances for situations in which the treating practitioner might not have this special familiarity and in-depth understanding of the client’s medical condition.  Thus the bill provides that the final employability decision must take into account the length and frequency of the treating practitioner’s contact with the client, and the concrete evidence supporting the treating practitioner’s opinion.   

Mental Disabilities
One of the most challenging tasks in determining employability is the evaluation of mental disability.  Extensive research indicates that the incidence of mental illness among adults receiving welfare is significantly greater than in the general population. [2]  The brief evaluations conducted by agency practitioners are certain to miss conditions that might present differently from day to day, that might depend on the momentary effectiveness of medications and that might be denied by the individual.  Only a health care provider who has seen the patient over an extended period of time can fairly assess such conditions and their impact on employability.

In New York’s welfare work rules program, one of the most prevalent outcomes for clients is the imposition of a sanction – a reduction of benefits – for alleged non-compliance.  In New York City alone, at any point in time, close to one in four “employable” recipients is either being sanctioned or facing the threat of a sanction.  Many of those who are sanctioned have disabilities that have not been identified or properly addressed.  Clients with disabilities are much more likely to be sanctioned than the general welfare population. [3]  S.428/A.2960 will most certainly decrease the imposition of unwarranted sanctions upon disabled recipients by ensuring that the opinions of treating practitioners receive proper consideration.  This bill will not only protect affected families against intense hardship, but will also assist the state in meeting its federal participation requirements as recipients are more likely to be given assignments with which they are able to comply.

Local Discretion
A concern has been expressed that this legislation might limit the capacity of local districts to exercise proper discretion in the employability determination.  In fact, this legislation would make the exercise of discretion much more meaningful.  Districts would carefully consider the finding of the agency practitioner, and would weigh it against the treating practitioner’s evidence.  Factors that are sometimes overlooked under current procedures would now become integral to the process.  What is the treating practitioner’s specialty?  How long and how frequently has she or he been seeing the client?  Is the opinion supported by concrete evidence?  And if the district decides not to adopt the treating practitioner’s findings, what is the evidence that supports a contrary finding?  In short, this bill requires a carefully reasoned explanation of the ultimate determination.  The result will be more accurate decisions, more appropriate treatment of people with disabilities, and a reduction in sanctions that should be welcomed by all concerned.

End Notes:
[1] 2009 Statistical Report on Temporary Assistance Programs, Table 23, prepared by the Office of Temporary and Disability Assistance.
[2] See, for example, Pamela Loprest and Elaine Maag, “Disabilities Among TANF Recipients:  Evidence from the NHIS,” Urban Institute, May 2009.  The paper is based data gathered in the National Health Interview Survey.  This study finds that TANF recipients are four times more likely to have mental disabilities than the general population.
[3] See, for example, Mark Nadel, Steve Wamhoff, and Michael Wiseman, “Disability, Welfare Reform, and Supplemental Security Income,” Social Security Bulletin, Vol. 65 No. 3, 2003/2004.


This memo was prepared by:

Don Friedman

Empire Justice Center
at the Public Advocacy Center
Touro Law School
225 Eastview Drive-Room 222
Central Islip, NY  11722

(631) 650-2316
(631) 348-3571