OK, I know that I frequently and flippantly say that, under the expanded American with Disabilities Act, we are all disabled. But the situation described in a recent Washington Post blog found by one of my law partners is really beyond ridiculous! Apparently, individuals who can’t speak English may receive federal Social Security disability benefits! Let me reiterate – they are disabled, in part, because they can’t speak English!!!
The Social Security Administration uses an evaluation process for determining whether an individual qualifies for disability benefits. The SSA reviews the severity of a claimant’s medical impairments. If the impairment is not severe, the SSA then determines if the claimant can perform work that he or she has performed in the past. If the claimant can, they are not disabled. If they cannot, but can possibly perform other work, the SSA then assesses their employability by reviewing their age, education, and work experience. A component of education, under Social Security regulations, is the (in)ability to speak English. The SSA then makes a determination whether, considering all these factors under regulatory guidelines, the claimant is disabled and therefore entitled to SS disability benefits.
What is particularly outrageous is the fact that this regulation was applied to non-English-speaking/Spanish-speaking Puerto Ricans (who are covered by federal law because Puerto Rico is a U.S. territory) in Puerto Rico, where both Spanish and English are official languages. In fact, according to the Census Bureau, 95% of Puerto Ricans over age 5 speak Spanish at home and 84% say they do not speak English well. Thus, Spanish is actually the predominant language in Puerto Rico.
This appalling situation came to light through an independent audit report from the Office of the Inspector General of the SSA. The OIG stated that it had identified 218 individuals in Puerto Rico who were granted benefits under these regulatory guidelines. The report noted that the guidelines did not take into account the fact that English may not be the predominant language in areas such as Puerto Rico.
Fortunately, the report notes that the SSA is proposing to update the guidelines. The OIG suggests the SSA should consider modifying the English language rule to take into consideration unique regional circumstances, like those in Puerto Rico.
So, from an employment lawyer’s perspective, this situation makes the ADA, as broadly as it’s now being interpreted, look almost reasonable. But from a taxpayer’s perspective, I am really incensed!!!