Comment on FR Doc # E7-03782

April 17, 2007 The Hon. Michael J. Astrue Commissioner of Social Security P.O. Box 17703 Baltimore, Maryland 21235?7703 Re: Methods for Conducting Personal Conferences When Waiver of Recovery of a Title II or Title XVI Overpayment Cannot Be Approved Docket Number: SSA?2006?0096 Dear Commissioner Astrue: The following comments on the Social Security Administration?s notice of proposed rulemaking regarding personal conferences are submitted by New Jersey Protection & Advocacy, Inc., (NJP&A) the designated protection and advocacy system for individuals with disabilities in New Jersey, pursuant to the Developmental Disabilities Assistance and Bill of Rights Act of 2000, 42 U.S.C. ?? 5041 to 15045; the Protection and Advocacy for Mentally Ill Individuals Act, 42 U.S.C. ?? 10801 to 10807; the Client Assistance Program of the Rehabilitation Act, 29 U.S.C. ? 732; the Protection and Advocacy for Individual Rights Program of the Rehabilitation Act, 29 U.S.C. ? 794e; the Protection and Advocacy for Beneficiaries of Social Security, 42 USC 1320b-21; and the Technology Related Assistance for Individuals with Disabilities, 29 U.S.C. ? 3004. As you know, Section 504 of the Vocational Rehabilitation Act (29 U.S.C. ? 794) prohibits the Social Security Administration (SSA) from discriminating against people with disabilities. As written, the proposed regulations may not fully conform with SSA?s obligation to provide reasonable accommodations to people with disabilities. NJP&A would like to address three specific concerns with the proposed regulations, as follows: The Hon. Michael J. Astrue March 30, 2007 Page 2 of 3 First, in the ?Background? statement to the proposed regulations, SSA states as follows: Therefore, we will consider conducting face-to-face conferences at locations other than SSA field offices only on a case-by-case basis, and only in those limited circumstances where: (a) A claimant has exhausted all other means of obtaining a personal conference, and (b) conducting a personal conference by any other means would be so inadequate, owing to a claimant?s physical or mental condition, as to infringe upon the person?s right to a hearing. This statement considerably understates SSA?s responsibilities under Section 504. SSA is required to provide accommodations in the hearing process to all individuals with disabilities on request. On its face, this statement seems to circumscribe individual rights under Section 504, as it calls for providing accommodations only in ?limited circumstances? and only for individuals with severe disabilities. SSA uses the example of an individual who is ?bedridden and deaf," implying that only individuals with severe disabilities are entitled to accommodations. Although this may not have been the intention, this example can be cited by local SSA officials as a basis for denying needed accommodations to individuals with less incapacitating disabilities. NJP&A strongly recommends that SSA withdraw its ?Background? statement or redraft the statement to be more consistent with SSA?s responsibilities under Section 504. Second, NJP&A supports the effort by SSA to give individuals the option to choose telephone or teleconference hearings in addition to face-to-face conferences. However, SSA may be required to provide personal hearings in a variety of different ways based on an individual?s disability. For example, individuals may request that SSA hold a hearing by an assistive technology device, such as a text telephone. NJP&A strongly recommends that SSA specifically include language in the proposed regulations that explicitly spells out that SSA has a responsibility to provide accommodations in the hearing process, as required by Section 504. Third, NJP&A is concerned that local SSA offices may attempt to coerce individuals into choosing a conference option that is most convenient to the local office and not provide individuals adequate information about their rights. NJP&A proposes that SSA require the distribution of information about the right of individuals with disabilities to request an accommodation in the personal conference process, as well as ensuring that employees at its local offices understand the importance of providing individuals with disabilities information about all available options for a personal conference. The Hon. Michael J. Astrue March 30, 2007 Page 3 of 3 Fourth, the proposed Section 416.557 of the regulations provide that if SSA denies waiver of an overpayment, that SSA will begin adjustment or recovery of the overpayment even if an individual appeals that ruling. This requirement will impose severe financial hardship on people with disabilities with low incomes. Delaying the adjustment or recovery period until after the appeals process has ended is a fairer and more equitable way of collecting overpayments. Although this may result in lengthy delays for SSA in terms of collection, it would provide a much- needed spur to SSA?s efforts to deal with the sizable backlog at both the Office of Hearings and Appeals and the Appeals Council levels. NJP&A is committed to protecting the civil rights of people with disabilities in New Jersey. Thank you for the opportunity to comment on this matter. NJP&A would appreciate the opportunity to discuss these matters further. Sincerely, Curtis D. Edmonds Managing Attorney