By decade's end, the public may well discover that the great welfare reform debate of 1995 addressed only half the problem. The Rivera family of Boston illustrates why. Eulalia Rivera came from Puerto Rico in 1968 and proceeded to raise a welfare dynasty. Her 16 surviving children (the 17th was shot) and their 89 progeny collect $750,000 to $1 million a year in government benefits. Their main form of support, however, is not AFDC, the program for single mothers and children that has been targeted for reform: it is federal disability payments.
Not that the Riveras suffer from crippling physical illnesses or injuries. Most of the family's disabled members collect benefits for their "nerves." As Eulalia's son Juan, a divorced father of five, told the Boston Globe: "I have a nervous condition. . . . There is no way I could work." He pointed to his hands, which were shaking. "Look at this," he said: "I'm having an attack right now."
The Riveras represent the future of public assistance. While AFDC costs have grown 23 percent since 1980, the costs of the federal government's two disability programs have more than doubled. By 1998, they will reach $80 billion a year. In 1993, they already enrolled a total of 8.2 million Americansmore than 3 percent of the population. Disability for the poor is the nation's fastest-growing welfare program, about to surpass both AFDC and food stamps as the main form of support for the non-working poor. Workers' disability is ballooning as well: the Social Security disability trust fund will go bankrupt in 1995 and will be bailed out with money from the Social Security retirement fund.
The explosive growth in disability payments reflects an unacknowledged shift in the function of the disability program. Disability increasingly supports people whose main problem is not a traditional medical impairment but a host of social handicaps that no doctor could cure. Many of these newer beneficiaries may indeed be unemployable, but their unemployability reflects rampant drug use, a chaotic upbringing, and a lack of education and work ethic rather than any physical impediment.
Behind this shift in the function of the disability program lies a revolution in the concept of disability, the crowning achievement of 15 years of litigation by welfare- and disability-rights advocates.
Running a welfare program under the guise of a disability program is extremely costly. More important, putting people on the dole for life does nothing to alleviate the social conditions that made them unemployable in the first place. It is time to ask whether the expansion in disability entitlements has gone too far.
The federal disability program began modestly in 1956 to support workers over 50 whose severe disability was expected to last indefinitely, preventing them from ever returning to work. Its history since then has been one of almost unbroken expansion.
Currently, the Social Security Administration (SSA) administers two disability programs: the original Social Security Disability Insurance (SSDI)now for workers of any age who've paid into the Social Security trust fund and whose disability is expected to last a year or moreand Supplemental Security Income (SSI) for the non-working, disabled poor. Unlike SSDI, eligibility for SSI (which also covers the elderly and blind) requires no work history. Like AFDC and other welfare programs, it is means-tested to make sure that the recipient's income and resources are below a certain level. In 1993, 3.7 million SSDI recipients26 percent more than in 1989received $34.6 billion in payments, including payments to dependents. SSI had 4.5 million disabled recipients in 199337 percent more than in 1989receiving $19.9 billion.
Disability is the ticket to an array of government benefits. The federal government pays up to $458 a month in SSI. Almost all recipients can receive an additional $50 to $60 a month in food stamps; most are automatically eligible for Medicaid. SSI also entitles the recipient to subsidized housing, low-income energy assistance, school lunches, and payments from the federal Women, Infants, and Children program. All told, life on disability commonly entails a tax-free income, in cash and other benefits, of upwards of $10,000 a year.
The current disability explosion results from a chain of reactions set going in the seventies. That decade saw the first major surge in disability applications, fueled by liberalized eligibility standards, a declining work ethic, and rising unemployment. The application and award rates for SSDI reached record levels unmatched ever since, though current rates are rapidly nearing those levels.
But the burden on the Social Security Administration from the jump in SSDI applications paled by comparison with the massive short circuit caused by SSI. Even today, the start of SSI in 1974 is remembered within the agency as an unmitigated disaster. Caring for the disabled poor had traditionally been the responsibility of state and local governments. SSI moved that entire responsibility to the federal government, saddling the SSA with 3 million applications from 1,350 state and local agencies almost overnight. The agency had never before run a means-tested income-support program: determining someone's eligibility for Social Security is far easier than figuring out the income, resources, and living arrangements of a transient, often marginal, population.
When the agency ran into inevitable delays in processing and verifying the new claimants, chaos broke out. Mobs of angry claimants assaulted and spat upon agency workers; federal marshals or private security officers had to be called in. As Floy Newman, a Social Security operations officer in Santa Ana, California, discreetly explains: "Welfare recipients have a different attitude to government" than Social Security beneficiaries.
Toward the end of the seventies, exploding benefit costs and the looming insolvency of the SSDI fund prompted the SSA to try to tighten eligibility standards. At the timeand still todaya claimant could be found disabled by one of two routes. For a so-called medical allowance, the SSA publishes a list of physical and mental impairments deemed disabling in themselves. A claimant is eligible for benefits under a medical allowance if his impairment matches in severity one of the listed impairments, without inquiry into whether he can work. But if his impairment is not as severe as those on the list, he can still win benefits under a vocational allowance if he can show that his impairment nevertheless prevents him from performing either his past work or, in light of his age, education, and work experience, any other work generally available in the economy.
There has always been a tension between the two types of allowance. Critics say that vocational allowances are more subjective than medical allowances and thus result in non-uniform decisions. More important, the vocational evaluation can serve as a cover for importing social considerationssuch as a bad or nonexistent education, lack of responsibility and work ethic, and a self-destructive life-styleinto the disability determination. For these reasons, the Reagan administration once tried to eliminate vocational allowances altogether but was defeated by welfare- and disability-rights advocates, who fight tooth and nail every attempt to reduce the weight of education and work history in disability determinations.
As for the apparently more objective medical listings, many analysts today question whether they actually correspond to the inability to work. Someone who loses both legs below the knee, for example, is automatically eligible for benefits; with current technologies, though, he undoubtedly could hold a job. And under the 1992 Americans with Disabilities Act he could sue an employer for not hiring him.
By 1975, the percentage of vocational allowances had risen to over 26 percent of claims granted at the first stage of the disability award process, up from 1960's 10 percent. Concerned that the decision-making process was losing its objectivity, SSA revised its eligibility standards to reemphasize medical criteriabut still failed to halt rocketing costs. So in 1980 Congress enacted the Social Security Disability Amendments, which required the SSA to review every three years the continuing eligibility of all recipients who were not permanently disabled. When the Reagan administration took office, it seized upon these amendments as part of its campaign to reduce the size of the federal government. From 1981 to 1984, it reviewed 1.2 million cases and terminated benefits in almost a half-million of them.
The government's effort to rein in disability proved one of the great administrative debacles of recent history. The reviews upset beneficiaries' settled beliefs, born of years of lax enforcement, that they were on the rolls for life. In its roll-slashing zeal, the administration cut people who may not have been disabled when they entered the program but had become so after years of dependency on the dole. The press furnished a running account of cripples turned onto the streets and beneficiaries committing suicide.
The courts revolted. By the end of 1984, all the federal circuits had deemed the reviews illegal. Judges had put 200,000 people back on the rollsoften without evidence of disabilityand had authorized further lawsuits that could nullify the rest of the reviews.
There is wide consensus that the administration took a meat-ax approach when individualized reviews were in order, but on the central legal pointthe SSA's standard for determining continuing disabilitythe administration was in the right. In requiring a beneficiary to prove that he was currently disabled to continue receiving benefits, the agency was faithfully following a 1976 Supreme Court ruling.
Starting with a 1982 decision by the Ninth Circuit Court of Appeals, however, the judiciary rejected that standard. The lower courts ruled that the SSA had to show that the claimant's medical condition had improved since the initial disability determination before ending his benefits. It was no longer enough to show that he was presently able to work. In fact, the agency itself had employed just such a medical improvement standard from 1969 to 1976 but had abandoned it as unworkable, since for many beneficiaries who'd been grandfathered into the SSI program from the state disability programs, the original evidence of disability, collected years before, no longer existed. The only meaningful standard, the agency reasonably argued, was whether someone could currently work.
Congress, which had started this battle between the agency and the courts with its 1980 mandate to conduct the reviews, stepped in again in 1984. That year, the Social Security Disability Reform Act adopted the medical improvement standard that the courts had imposed on the SSA. Not surprisingly, the agency once again virtually ceased reviewing cases, and now 90 percent of those it does review continue on the rolls. In the SSDI program alone, the cost of not reviewing recipients from 1990 to 1993 will reach $1.4 billion by the end of 1997.
The legacy of the 1980-84 review crisis is enormous, for in the legal counterattack the reviews ignited, advocates brought a series of test cases that successfully challenged and enlarged the SSA's eligibility standards. Ultimately, Congress codified virtually all of these victories in the Reform Act of 1984. With eligibility criteria vastly liberalized by the combined judicial and legislative efforts, the gunpowder trail was laid to produce the explosion in the rolls that ineluctably ensued.
Mental, rather than physical, complaints have fueled the disability explosion, and no legal decision of the early eighties has more affected the current composition of the rolls than one in a 1982 Minnesota suit challenging the SSA's evaluation of "non-severe" mental impairments. The judge held that the agency had been illegally denying benefits to people who, despite their impairments, were able to cope with daily activities such as cooking and shopping. To find such claimants able to work, argued the court, ignores the fact that the work environment poses unique stress for the mentally ill. Chronic mental illness, the decision stated, is "characterized by an exquisite sensitivity to stress and a decrease in coping skills." The court ordered the agency to give greater weight to testimony from claimants' own doctors regarding their ability to work.
The court's holding that non-psychotic mental illness can interfere with the ability to work is unimpeachable, but the chief message of the case was that the agency should evaluate mental impairment claims far more liberally. The decision and its subsequent congressional ratification have given rise to a host of agency rulings and court decisions in which work itself is portrayed as toxic to mental and emotional stabilityespecially owing to its competitive nature. The Seventh Circuit rebuked the SSA in 1989 for denying disability to a computer operator who had been fired because of his inability to get along with co-workers. The agency improperly ignored the treating psychiatrists report, the court held, which had stated that the operator was unable to work in a competitive environment.
Today, attorneys in disability cases routinely pay $75 for a psychiatric exam for their clients, to make sure that either stress and anxiety or depression is part of most every complaint. Because the agency is now required to defer to the claimant's treating doctoreven if the claimant has seen him only onceit has little recourse when confronted with a boilerplate diagnosis of personality disorder or identity disturbance. " People are playing games because everyone knows we have to follow the treating doctor," complains Arlander Keys, an administrative law judge in Chicago. All over the country, explains Morton Gold of the SSA's Savannah office, attorneys who work closely with certain doctors have made disability into "a budding industry, and profitable."
Many disability claimants belatedly discover mental impairments when their claims for physical impairments are denied. An SSDI claimant in Illinois had unsuccessfully appealed the termination of his benefits after the bone fracture for which he had previously received payments had healed. On his second appeal, he argued that his epilepsy and alcoholism qualified him for benefits. Again he lost. Then he saw a psychiatrist, who diagnosed him with " personality disorder with dependent, antisocial, and passive-aggressive features." This did the trick. A court in 1991 found that his "psychological abnormalities combined with alcoholism lead to the conclusion that he can't meet the minimum standards of a normal competitive work setting." He was, in other words, unemployable.
The 1984 Reform Act further shifted the disability determination process away from objective medical evidence and toward much fuzzier, non-medical indicators, such as a patient's own description of his condition and his participation in "activities of daily living" and "social functioning," in determining his capacity to work. Evidence of the claimant's behavior necessarily comes from family members and friendsmany of whom have a direct financial interest in the disability decision.
Because the 1984 act also increased the role of age, education, and work experience in disability decisions, someone who has worked and has some skills can now be denied disability, while someone with the identical impairment but no work history can be found disableda clear inequity. In 1991, 31.7 percent of SSDI awards at the first level of the disability determination rested on such vocational considerations, rather than on the medical listingsan all-time high. Though comparable figures are not available, the percentage of vocational allowances in the SSI program is undoubtedly higher still.
As a direct result of the act, mental impairments today constitute the largest portion of the agency's caseload, a radical change from the early years of the program. Fully 30 percent of all SSI beneficiaries are classified as mentally impaired. By comparison, all other categories of impairmentswith the exception of mental retardationare in the single digits. Male SSI recipients between the ages of 30 and 50 have a nearly 45 percent mental impairment rate.
The situation is the same with SSDI. One-quarter of recipients are mentally impaired; for those under 45, the mental impairment rate is 37 percent. Since 1982, mental impairments have increased by more than 500 percent among younger SSDI recipients. And in 1992, applicants making mental impairment claims won SSDI benefits 66 percent of the time, as against only 39 percent for physical impairment claims.
The surge in the number of mentally impaired disability recipients not only has swelled the rolls but also has changed the demographics of the beneficiary population. The average age of recipients has dropped. The average SSDI recipient is now below 50. The typical SSI recipient is in his 30s with a high school education or less. Younger recipients stay on the rolls longer; younger recipients alleging mental impairments stay the longest of all. According to the Social Security Administration, individuals between the ages of 18 and 34 with mental impairments stay on SSDI for 25.5 years, 39 percent longer than the average for that age group.
The newfound liberality toward mental impairment is placing severe strains on the SSA. "The more claims we pay, the more people apply," laments the chief administrative law judge in Chicago, Stephen Ahlgren. "Our judicial system is not up to dealing with these numbers." There are 450,000 cases backlogged at the hearings level nationwide; the annual caseload per administrative judge in Chicago has jumped in recent years from 250 cases to 800. Such caseloads prevent judges from developing cases sufficiently to rebut boilerplate diagnoses. And judges are resolving more cases without a hearingwhich they can do only if they rule in the claimant's favor.
Not surprisingly, frustration with the mental impairment standard is rising. "We're finding a lot of people disabled who can work," says Judge Ahlgren. Jane Ross, associate director of income security at the General Accounting Office, told the Boston Globe recently, "For those of us who work and manage stress daily, it's easy to get pretty angry about people who say they can't because of 'anxiety.'"
Though unquestionably mental illness can incapacitate, the courts seem remarkably credulous toward mental illness claims. A 1989 federal court decision in Massachusetts is typical. The court granted the appeal of Linda Zeitz, 42, a former sales rep for Coca-Cola who claimed she had suffered from agoraphobia since 1978 because of her consumption of "birth control pills, junk food, and large amounts of Tab." According to court records, Zeitz described her illness and her seven-year effort to get on SSI as "a typical story of a woman who finally starts thinking about who she is as an independent person, rather than as an extension of a man and family." Numerous visits to doctors had revealed no medical basis for the palpitations, backaches, and headaches she said she had experienced while on sales calls before she quit her job. One psychiatrist did note in 1979, however, that she had recently stopped her long-running marijuana habit.
At the time of the appeal, Zeitz said she left her apartment only for doctors' appointments, though she had managed to run up an $11,000 credit card debt. She was ignoring a psychiatrist's recommendation that she attend group therapy, relying instead on health food, vitamins, and solitary reading as prescribed by a "naturopath" she consulted. An administrative judge had denied her claim, finding only slight functional limitations and citing an agency rule that if a claimant fails to follow prescribed treatment that would restore the ability to work, he will be denied benefits. But the district court ruled that Zeitz was under no obligation to follow the prescribed group-therapy treatment because "a psychosomatic anxiety-related disorder such as agoraphobia may defy any generally accepted prescribed treatment requiring the will of the individual to recover." The court remanded the case for further hearings.
The beast that lies beneath the entire mental impairment caseload is substance abuse. Where there is depression, one of the main mental disorders, there is usually also alcohol or drugs. In most cases, it is impossible to separate the effect of drugs and alcohol from that of the alleged illness itself.
Recent press and congressional attention has focused on a small category of substance-abusing disability beneficiaries: those officially acknowledged as addicts or alcoholics, who are required to be in treatment. But the reach of addiction goes far beyond those addicts, even beyond the mental impairment category generally. Dig deep enough and you will find drugs and alcohol throughout the entire disability system, according to David Fiske, an analyst at the General Accounting Office. Fiske tells of a case that focused exclusively on the claimant's bad back. Buried in the medical records, however, was the fact that the claimant relaxed on Friday nights by drinking a case of beer. "You won't deal with the problems of the claimant's back," says Fiske, "without dealing with the problems caused by those cases of beer."
Morton Gold, the Social Security attorney in Savannah, calls addiction the " Vietnam quagmire of the agency." It forces the agency to turn a blind eye to law breaking and to support destructive behavior. SSA's response to addiction and alcoholism ranges from "enlightened" tolerance, in the case of officially classified addicts and alcoholics, to a sort of willed ignorance in those myriad other cases where addiction is the subtext of other physical or mental disorders.
"Substance addiction disorder" is itself a listed mental impairment. SSA used to give benefits for addiction and alcoholism per se only if the claimant could show irreversible organ damage, but the courts struck down that precondition as too harsh, putting in its place the requirement that the addict have lost the ability to control his addiction. Today, at least 250, 000 diagnosed addicts and alcoholics are on the disability rolls, up from fewer than 100,000 five years ago. They receive approximately $1.4 billion annually in benefits.
When Congress established the SSI program, it attempted to allay criticism that paying cash to addicts merely bankrolls their addiction. It required recipients whose primary diagnosis is addiction or alcoholism to enroll in treatment. It also obliged them to have their benefits paid to a " representative payee," who is supposed to prevent the addict from misusing his disability check.
Both requirements turned out to be a farce, however. The agency had trouble finding representative payees as far back as 1976; relatives often balk at agency requests to serve, fearing violence should they try to withhold cash from the addict. In recent years, stories have accumulated of benefits being mailed to the corner liquor store or to fellow addicts.
Of the quarter-million addicts and alcoholics on disability, the representative payee and treatment requirements apply only to those 78,000 SSI recipients whose primary diagnosis is alcoholism or addiction. Of these, however, only 9 percent actually are in treatment. What's more, while an average of 2,000 new addicts entered the rolls each month in 1993, only 75 completed treatment. Even completing treatment, though, doesn't generally mean that the addict has been rehabilitated or removed from the rolls. Indeed, the addict has every reason not to conquer his addiction, since that would mean losing his benefits, including Medicaid.
Because the claims and appeals process takes so longcurrently, 155 days for an initial decision, and a year and a half for an administrative judge's decisionaddicts, like other disability beneficiaries, often receive huge retroactive payments of $15,000 to $20,000. These usually result in protracted binges.
On ordinary check days, the effect is similar. A director of a homeless shelter in Denver told Senate investigators that his clients call the first of the month "Christmas Day"; he termed SSI "suicide on the installment plan." Addicts and alcoholics who do not die from their subsidized substance abuse simply become more and more disabled, thus staying on the rolls longer.
In August 1994, Congress extended SSI's representative payee and treatment requirements to SSDI recipients whose primary diagnosis is substance abuse. It also put a three-year cap on addiction benefits for both programs. Given the agency's inability to enforce the treatment and representative payee requirements for SSI recipients, it seems likely that the new SSDI provisions will likewise languish. Even if the provisions could be made to work, however, they apply to far too small a subset of the drug- and alcohol-abusing disability population. Drink enough to develop cirrhosis of the liver, or contract AIDS through IV drug use, and your benefits will come with no strings attached, because you are now disabled irrespective of your addiction.
In some cities, claimants with drug and alcohol problems are overwhelming the administrative hearing system. More than half the nation's officially classified addiction beneficiaries are in California and Illinois; 98 percent of the cases heard in Chicago in January 1994 involved some element of addiction, according to Chief Judge Ahlgren. Administrative judges there say they are burning out from the addiction cases.
Classifying addiction or alcoholism as a federally subsidized disability not only is highly destructive to the recipients; it also compromises the government. In 1991, officials of the SSA's Chicago office requested guidance from headquarters in Baltimore regarding a type of claimant, exemplified by " Ronald C.," that they were seeing more and more frequently. An addict who used IV drugs three or four times a day and consumed three pints of wine daily, Ronald had spent his adult life in and out of prison for drug-related crimes. He was currently awaiting trial for shoplifting. The question exemplified by Ronald was: How should the agency evaluate someone's capacity to work if he has resided mostly in prison?
Susan B. Parker, associate commissioner for disability at SSA headquarters, issued the agency's response, and it should gladden the hearts of many a convict: while confinement in an institution does not establish the existence or severity of an impairment, she wrote, it may be suggestive of factors that are reflective of diagnosis and severity. According to the psychiatrists Diagnostic and Statistical Manual of Mental Disorders, she said, one of the symptoms of psychoactive substance abuse disorder was a great deal of time spent in activities necessary to procure the substance (including theft). In other words, serving time for drug-related crime works in your favor for getting benefitsand, given the 12-month retroactivity for SSDI benefits, you can even get paid for doing so.
Parker was quick to realize, however, that in answering one question, she had merely raised another. If someone is able to apply himself to "activities necessary to procure the substance (including theft)," shouldn't he then be presumed able to apply himself to work? Far from it, Parker announced. "In contrast to persons who beg for sustenance or 'criminals' who commit illegal acts for a variety of acquisitive goals, the evidence demonstrates that, in this claim, the claimant engages in these activities solely to obtain and use addictive substances." (Apparently Parker is as uncomfortable with labeling people who break the law "criminals" as she is with presuming that people can work.) "It would be unrealistic," she concluded, "to expect the mental functions that the claimant demonstrates to be successfully employed and sustained in work situations."
Employment within the SSA today often requires just such a nonjudgmental attitude to crime. "Claims representatives have to treat drug dealing as any other type of work and forget that it's illegal," explains Floy Newman, operations officer in Santa Ana, California. "It's not as if we're going to turn you over to the police or your parole officer because you're doing drugs. " Newman had to calm one of the claims representatives working under her supervision who had learned that a claimant was working as a prostitute to support her drug habit. "But that's illegal!" the claims rep protested to Newman, visibly rattled. Newman reassured her that her job was merely to "go through the details to find out how she is meeting her expenses."
In this see-no-evil spirit, the agency recently declared that drug dealing would count as "substantial gainful activity" precluding eligibility for benefits. But the Ninth Circuit Court of Appeals ruled otherwise: it recently found that a claimant had spent so little time and exertion dealing drugs that the activity did not demonstrate the capacity to work.
The government's attitude toward personal responsibility in drug and alcohol cases is as inimical to a stable society as is its nonjudgmental view of crime. Both the agency and the courts bend over backward to find claimants incapable of controlling their drug and alcohol use. "There should be a presumption that someone can control their drinking," says Administrative Judge Arlander Keys, "but instead the presumption is the opposite."
The case law bears him out. Appellate courts routinely rebuke judges who hold that claimants can manage their drinking, even though the claimant himself may have testified that his drinking is under control. Such a position, says the judiciary, ignores the fact that the claimant has failed to control his drinking in the past. The 1984 Reform Act mandated that the agency pay greater attention to the "longitudinal history" of mental impairment claimantsmeaning that, in the government's eyes, once an addict, always an addict.
The government is equally dismissive of the idea that, addiction notwithstanding, people can be expected to work. Judge Keys is in a distinct minority in the system: "I'm not convinced," he says, "that most addicts can't do simple unskilled work. Who is there that can't clean up a warehouse?" But once a claimant brings in a psychological report showing "antisocial trends" or "borderline personality disorder," an administrative judge or the agency is all but compelled to adopt the treating doctor's conclusion that the claimant cannot cope with a "work-like setting." "Even if we can show that someone lost his job for non-alcohol-related reasons," Keys says, "the doctor's position is always that it would be cruel to send him back to work."
The group of claimants that has stretched the concept of disability the farthest is not addicts, though, but children with behavioral problems. They, too, fall into the capacious mental impairment category. Treating a childs violent and disruptive behavior as a disability mocks the idea of individual responsibility no less than treating addiction as a mental impairment does. And both programs create almost irresistible incentives for antisocial behavior.
The question of where disability shades into a general welfare program is especially acute for children's cases. Many observers see children's disability as becoming just one more entitlement that perpetuates underclass dependency. John Wolff, the assistant principal of special education at Park West High School in Manhattan, calls children's disability the "male counterpart of AFDC." The applicants, he says, tend to be sons of second- and third-generation welfare recipients, who are using school "as a conduit to hook up to the system."
Children's disability originated in the 1972 legislation that created SSI. A little-noticed parenthesis extended eligibility to children who "suffer from any medically determinable physical or mental impairment of comparable severity." According to the Washington Post, the clause was inserted by a senior welfare official on a personal campaign to better the lot of the poor; the official himself is reportedly uncertain what the clause means.
Nevertheless, until 1990, the SSA had kept the growth of children's disability under control by strictly limiting eligibility to children whose conditions were either on its list of disabling childhood impairments or equivalent in severity. But in 1990, the Supreme Court ruled that this restriction was illegal, in a case called Zebley v. Sullivan. Like adults, the Court held, children whose impairments are not as severe as those on the listings are entitled to show that their disabilities impose "functional limitations" deserving of benefits. This requirement revealed the absurdity of the very concept of children's disability payments. For adults, a "functional limitation" is one that restricts the ability to work. But children are not only not expected to work to support themselves; they are legally prohibited from doing so. For them, the usual rationale for disability benefitsthat they make up for lost incomedoesn't apply. Nor, in general, does another rationale: that needy parents need help with their disabled children's medical expenses. In fact, Medicaid covers most medical costs for children who are both poor and disabled.
How, then, to measure the disabling consequences of an impairment? The Court held that an impairment is disabling if it limits the child's ability to engage in "age-appropriate activities." Evidence regarding the child's behavior could come from parents, teachers; and social workers.
The concept of "age-appropriate activities" is extraordinarily vague. The result, according to Savannah attorney Morton Gold: "It is almost impossible to defend [a denial of benefits] in a court of law." To make matters worse, around the same time that the Supreme Court decided Zebley, the SSA itself added seven vague new childhood mental impairments, like attention deficit hyperactivity disorder, and it required decision makers to give more weight to the opinion of parents and social workers in evaluating childhood disability.
The results of both Zebley and these 1990 regulations have been spectacular. Children now account for just under 20 percent of the SSI disability rolls, receiving $4.35 billion a year in benefits. In 1993, more than 770,000 children were on disability, up from fewer than 300,000 in 1989. The rate of growth from 1992 to 1993 alone was 23.5 percent. In New York State, says Lloyd Moses, associate commissioner of disability determinations, Zebley has changed the entire disability program. With 500 to 600 new children's cases being added to the rolls in the state every two weeks, children are now a major part of the agency's workload.
The most important effect of Zebley and the 1990 regulations was to open the rolls to the vast and growing world of behavioral and learning disorders. "Under the old ways, we didn't think learning disabilities interfered with the main business of life," explains Jack Schmulowitz, chairman of the SSA's Office of Research and Statistics. Now the agency knows better. Mental impairments account for more than two-thirds of the growth in children's awards since 1990, with behavioral problems now constituting almost one- quarter of all child mental impairment cases and attention deficit disorder constituting an ever-rising portion of the total.
Two influences helped fan the rapid rise in children's cases. After Zebley, the agency embarked on an aggressive publicity and outreach campaign to sign up more children, sending out brochures to local welfare offices and schools. Its allowance rate for children's cases also shot up, initially to around 60 percent. For a period of six to eight months after the decision, says Abe Anolik, income maintenance program specialist for the SSA in New York State, "if you were a kid and you knew someone who sneezed, you got benefits."
Equally important has been word of mouth. "This is one that's really out on the street," says John Hoffman, a Detroit administrative judge. "It's common knowledge that you might as well try for SSI because it's not that hard to get. I've seen cases where the problems were extremely minor." Parents have threatened teachers who've refused to fill out applications for their children; mothers have called the agency trying to get their unborn children on SSI.
The parents' eagerness is understandable. The federal payment is $458 a month; 27 states also provide a supplemental payment. The money comes with no strings attached. Though the theory behind children's SSI is that it compensates for medical costs, there is no requirement that it actually be used for that purpose. According to Ann Marie Sullivan, director of the Parents and Children Together Program at Fordham-Tremont Community Mental Health Center in the Bronx, some parents simply put their children's payments "up their nose" in cocaine. A 23-year-old mother in public housing in Boston told the Boston Globe that her eight-year-old son, who had been put into a special needs class for punching and kicking other children, was on SSI though he "was not really disabled." "I tell him that he gets us money to help us," she said. "I just think he needs help in terms of his attitude, and we need the money."
Some of the awards for the original class of claimants in Zebley were as high as $75,000. A mother in Greenville, Kentucky, spent the $13,000 she got for her hyperactive son on a car, washer-dryer, refrigerator, stove, TV, three jogging suits for him, home repairs, and a $2,500 computer. Some of Ann Marie Sullivan's clients received $20,000 each at age 18 as a retroactive payment for attention deficit disorderfrom which they no longer suffered, and whose treatment had been paid for by Medicaid.
Though professionals worry about the stigma that may attach to the label " disabled," the recipients seem untroubled by that possibility. Sullivan tells of a large family who came to her, each member brandishing his or her SSI check as if this were a form of prestige. The kids buy into it, she says, They see it as a way of having more spending money.
Disability seems to run in certain families. A family in Arkansas with all nine kids on SSI received $3,500 a month; another family with 11 children on SSI got $4,000 a month. Income maintenance specialist Anolik tells of families in New York who are "all dysfunctional together."
As the children's caseload has risen, so too has criticism of the program. Stories abound of parents coaching their kids to misbehave in school or fail their tests. A child in Wynne, Arkansas, asked his teacher if doing well on an exam would affect his "crazy check." According to Savannah's Morton Gold, parents sometimes hold their children out of school to ensure that they will fall back several grades and thus fail the "age-appropriate" test of disability. Eighty-one percent of teachers and special education counselors polled in Arkansas said that their students had been told to misbehave, and 79 percent agreed that once a child qualifies for SSI, his motivation to comply with schoolwork decreases.
"Teachers are disgusted with it," says Jeff Nussbaum, a special education music teacher at Park West High School in Manhattan. "A kid gets classified as 'emotionally disturbed': what that means is anyone's guess. He can be violent, really rotten, and he gets on the dole."
John Wolff, the assistant principal of special education at Park West, has little patience for the system: "The same kids who two days before would spit in my eye and call me [obscene names] are now applying for disability. Some of these students I've dealt with for five years. I know they could work, and now they're seeking to get something for nothing." Though Park West does not yet have a large SSI population, Wolff has seen the cases inch up in the last couple of years. Applications become more prevalent at about the time that students are leaving school. Once a child turns 21, his mother loses her eligibility for the AFDC benefits that have hitherto supported the family; so, as students start aging out of the system, Wolff says, "they start scurrying around looking for their next form of support."
Once on SSI, a child is a good candidate for staying on disability for the rest of his life. Until 1994, there was no requirement that children's cases be reviewed for continuing disability when recipients turn 18; Congress passed such a mandate in August, however. This requirement is unlikely to have much of an effect, given the backlog of disability reviews throughout the agency. Moreover, 18 years is a very long grace period. Children who got SSI as low-weight infants are still on disability as healthy four-year-olds and will likely remain on the rolls at least through their 18th year.
Like SSI for addiction and alcoholism, or indeed for every disability that could be remedied, paying benefits for behavioral problems penalizes getting better. It also sends children the wrong message about responsibility. Writing in 1993 in the Journal of the American Medical Association, pediatric neurologist Fred Baughman warned that the danger to children misdiagnosed with attention deficit disorder is that they "believe they have something wrong with their brains that makes it impossible for them to control themselves without using a pill." The official stamp of welfare payments can only strengthen that self-destructive belief, leading, in the worst cases, to criminal behavior.
Experts increasingly agree that SSI rewards parents' destructive behavior. Philadelphia psychiatrist Kenneth R. Carroll told the Washington Post recently: "Many of the problems these children manifest are largely traceable to parental neglect or abuse. 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."
For their part, welfare advocates take a laissez-faire attitude toward the possibility that SSI may be bankrolling parental misconduct. "The program is not about only giving to good parents," explains Barbara Samuels, Social Security coordinator for Legal Services for New York City. "You can't legislate against parents who are irresponsible."
Congress established a commission in August to explore whether cash payments are the best response to children's disability and whether the provision of retroactive benefits should be changed. Yet the growing doubts about children's disability have not daunted either the SSA's or local governments' enthusiasm for the program. Since 1990, SSA has funded ten major outreach efforts for children. Local welfare offices actively promote SSI: parents don't receive AFDC for their children who are on SSI; and since states and localities bear some of the costs of AFDC, getting clients onto disability shifts welfare costs to the federal government. For the last two years, the New York City Board of Education and the Human Resources Administration have cooperated on a joint project to get every special education student receiving welfare onto SSI.
Federal disability continues to play a vital role in supporting people with serious maladies. But its ability to do so is threatened by the overextension of the concept of disability. The House Republican welfare reform plan proposes an overall cap on SSI expenditures, which could reduce or deny benefits for the truly disabled, as well as the elderly and the blind. Better to cut the rolls by adopting a more reasonable definition of disability.
The preamble to the Americans with Disabilities Act claims that 43 million Americans are disabledan implausibly large number. By contrast, the National Institute on Disability and Rehabilitation Research estimated in 1991 that 3.1 million Americans need assistance with basic activities like bathing and dressing, while 3.9 million need help with things like shopping and cleaning. As John Kiernan of the International Center for the Disabled points out, "The definition of disability depends on where you're coming from and what you want the numbers to do for you."
Numerous other problems afflict the disability program. First, the agency makes too little effort to rehabilitate its clients; in 1993 it spent just $68 million on rehabilitation, and only one in 500 SSDI recipients returned to work via vocational rehabilitation. Second, the program contains serious work disincentives for low wage-earners, since SSDI replaces a high proportion of their former wages. Third, there is a critical need to revisit the listings of physical and mental impairments to see if they really measure the total inability to work. In fact, many people whose impairments the agency would deem disabling are working. Finally, some commentators suggest taking SSI out of the jurisdiction of the Social Security Administration entirely, since its clientele differs so significantly from the traditional Social Security recipient.
But the greatest burden on the agency arises from its having collapsed the categories of social dysfunction and disability. "We don't talk about responsibility anymore," argues Chicago's Judge Ahlgren. "I haven't heard anyone say: 'You've made decisions which are responsible for your condition.'" By awarding benefits for self-destructive behavior, and by treating as a disability what ought to lie within someone's will to control, we have created yet another set of incentives for failure.