The Fight Against Proposed Changes to Disability Requirements for Mental Disorders

Mental health groups are fighting the Social Security Administration (SSA) over the agency’s proposed changes to disability requirements for mental disorders. The requirements for adults and children, which can vary, were last modified in 1986 and 1990, respectively, and they are respectively based on the now outdated DSM-III and DSM-III-R.

There have been differences of opinion, too, with the Mental Health Liaison Group (MHLG), which is composed of advocacy groups and professionals-physicians and non-physicians-who treat people with psychiatric disorders. The MHLG could not agree on a common response to the changes the SSA announced last August in a proposed rule. The American Psychiatric Association (APA) argued against use of the Psychiatric Review Technique by adjudicators to determine functional shortcomings because of mental problems. Some members of the MHLG supported use of that technique.

The SSA has 9 mental disability categories, called “Listings,” which describe various mental disorders, such as schizophrenic, paranoid, and other psychotic disorders; mental retardation; and anxiety-related disorders. Each listing has 3 “paragraphs”-denoted by A, B, and C-with their own requirements. An adult or child is qualified as disabled, generally, when he or she meets either the A and B requirements or the C requirement.

Much of the controversy stemming from the August proposed rule deals with paragraph B, which contains 4 mental abilities. Under the proposed rule, an individual could show a marked limitation of 2 abilities or an extreme limitation of 1 ability to qualify as mentally disabled. These are the abilities to understand, remember, and apply information; interact with others; concentrate, persist, and maintain pace; and manage oneself.

In what was considered a major policy change, the proposed rule stated that SSA adjudicators could use standardized tests to determine paragraph B limitations for adults. Tests were already approved for use in child determinations. However, the SSA did not specify what tests it had in mind, and mental health groups uniformly complained that no such tests existed. Mark Lassiter, press officer at the SSA, asked for detailed e-mailed questions on the testing issue, but he did not respond to them.

“We believe that the agency should recognize that there are no such valid tests at the current time for purposes of measuring the B criteria as related to mental illness,” explained Linda Rosenberg, president and CEO, National Council for Community Behavioral Healthcare. “We recognize that the proposed rule did not require the use of test results alone when making determinations of disability; however, we are aware of the different ways in which disability adjudicators interpret and use the rules. By including a reference to standardized tests in the rule, the agency is sending a message to the adjudicators that there are tests that can measure B criteria, when there are not.”

The reference to standardized testing in the proposed rule was so controversial that the SSA was forced in November to reopen the comment period to “address some public misunderstanding” as to how the SSA “would consider the use of standardized testing when it determines disability for people who have a mental disorder.”

“The proposed rules for adults and children do not state that adjudicators should obtain standardized tests, encourage them to do so, or indicate that there are standardized tests for all serious mental disorders,” the clarifying November 2010 Federal Register notice stated. “Rather, our proposed rules state only that if a person has a standardized test and the scores are two standard deviations below the mean, the test will show that the person has a ‘marked’ limitation.”

The opening of the door to the use of standardized testing for adults for the first time went hand in hand with the SSA’s proposed revision of the definition of marked limitation. Currently, a marked limitation of a paragraph B criterion is “more than moderate but less than extreme.” The new definition proposed by the SSA states that a limitation is “marked” when symptoms and signs of the mental disorder “interfere seriously with your using that mental ability independently, appropriately, effectively, and on a sustained basis to function in a work setting.”

The SSA went on to say that the new definition of a marked limitation could be established via standardized tests “with scores that are at least two, but less than three, standard deviations below the mean.” The practice of testing to establish standard deviations has been used to qualify children for disability for 20 years, but never adults. The SSA argued that testing had been successful in children, and that is why they wanted to extend its use to adults.

All members of the mental health community opposed the use of standardized testing to determine deviations from the mean. But the consensus fell apart thereafter. Those members of the MHLG who signed onto a consensus comment (eg, American Academy of Child and Adolescent Psychiatry, American Psychotherapy Association, Bazelon Center for Mental Health Law, Mental Health America, National Alliance on Mental Illness) argued for continued use of the Psychiatric Review Technique. This technique is a long-standing rating with 5 positions (ie, none, slight, moderate, marked, extreme) that an SSA adjudicator uses in a paragraph B determination after considering all evidence submitted by health professionals, including psychiatrists, on behalf of an applicant patient.

The APA, a longtime member of the MHLG, assailed continued use of the Psychiatric Review Technique. “The APA finds this scale to be unanchored, allowing wide latitude for subjective interpretation of what qualifies as a ‘marked’ or ‘extreme’ level of functional impairment,” said James Scully, MD, who is CEO and medical director of the APA. “Without more specific guidance for assigning functional limitations on this scale, which is not currently contained in the proposed rule, we believe use of the five-point scale could bring a false level of precision to determining functional impairment.”