Rules Regarding the Frequency and Notice of Continuing Disability Reviews
| Citation | 84 FR 63588 |
| Record Number | 2019-24700 |
| Published date | 18 November 2019 |
| Court | Social Security Administration |
Federal Register, Volume 84 Issue 222 (Monday, November 18, 2019)
[Federal Register Volume 84, Number 222 (Monday, November 18, 2019)]
[Proposed Rules]
[Pages 63588-63601]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-24700]
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SOCIAL SECURITY ADMINISTRATION
20 CFR Parts 404 and 416
[Docket No. SSA-2018-0026]
RIN 0960-AI27
Rules Regarding the Frequency and Notice of Continuing Disability
Reviews
AGENCY: Social Security Administration.
ACTION: Notice of proposed rulemaking (NPRM).
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SUMMARY: We propose to revise our regulations regarding when and how
often we conduct continuing disability reviews (CDR), which are
periodic reviews of eligibility required for benefit continuation. The
proposed rules would add a category to the existing medical diary
categories that we use to schedule CDRs and revise the criteria for
assigning each of the medical diary categories to cases. The proposed
rules would also change the frequency with which we perform a CDR for
claims with the medical diary category for permanent impairments. The
revised changes would ensure that we continue to maintain appropriate
stewardship of the disability program and identify medical improvement
(MI) at its earliest point.
DATES: To ensure your comments are considered we must receive your
comments by January 17, 2020.
ADDRESSES: You may submit comments by any one of three methods--
internet, fax, or mail. Do not submit the same comments multiple times
or by more than one method. Regardless of which method you choose,
please state that your comments refer to Docket No. SSA-2018-0026 so
that we may associate your comments with the correct regulation.
CAUTION: You should be careful to include in your comments only
information that you wish to make publicly available. We strongly
urge you not to include in your comments any personal information,
such as Social Security numbers or medical information.
1. Internet: We strongly recommend that you submit your comments
via the internet. Please visit the Federal eRulemaking portal at http://www.regulations.gov. Use the Search function to find docket number
SSA-2018-0026 and then submit your comments. The system will issue you
a tracking number to confirm your submission. You will not be able to
view your comment immediately because we must post each submission
manually. It may take up to a week for your comments to be viewable.
2. Fax: Fax comments to (410) 966-2830.
3. Mail: Address your comments to the Office of Regulations and
Reports Clearance, Social Security Administration, 3100 West High Rise
Building, 6401 Security Boulevard, Baltimore, Maryland 21235-6401.
Comments are available for public viewing on the Federal
eRulemaking portal at http://www.regulations.gov or in person, during
regular business hours, by arranging with the contact person identified
below.
FOR FURTHER INFORMATION CONTACT: Cheryl A. Williams, Office of
Disability Policy, Social Security Administration, 6401 Security
Boulevard, Baltimore, MD 21235-6401, (410) 965-1020. For information on
eligibility or filing for benefits, call our national toll-free number,
1-800-772-1213 or TTY 1-800-325-0778, or visit our internet site,
Social Security Online, at http://www.socialsecurity.gov.
SUPPLEMENTARY INFORMATION:
I. Background
Section 221(i) of the Social Security Act (Act) provides that, when
we determine a person is disabled, we periodically review the case to
ensure that the individual continues to meet the disability eligibility
requirements of the Act. We must complete these periodic reviews at
least once every 3 years, except when we determine the requirement
should be waived, or when we determine that the disability is
permanent, in which case, we can perform the review when we deem
appropriate. We call the periodic reviews required under the Act
``continuing disability reviews'' (CDR).
Section 221(i)(2) of the Act also requires that we report this
activity to Congress annually. In the most recent report we submitted
to Congress, we reported that:
. . . we spent $717 million to complete 1,971,812 periodic CDRs. Of
this total, we completed 1,172,799 mailer CDRs. We also completed
799,013 full medical reviews. . . . Our Office of the Chief Actuary
(OCAct) . . . estimates that the periodic CDRs completed in FY 2015
will result in a present value of $14.3 billion in lifetime net
Federal program benefits saved. For FY 2015, the estimated ratio of
net program savings to administrative costs is approximately $19.9
to $1.\1\
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\1\ Social Security Administration, Annual Report on Medical
Continuing Disability Reviews, Fiscal Year 2015 (2019). Available
at: https://www.ssa.gov/legislation/FY%202015%20CDR%20Report.pdf.
A. Why We Conduct CDRs--A Brief History
We conduct CDRs to determine whether a person who receives Social
Security disability benefits \2\ under title II of the Act or
Supplemental Security Income (SSI) payments under title XVI of the Act
continues to meet the disability or blindness requirements of the
law.\3\
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\2\ We pay three benefits based on disability under title II:
disability insurance benefits (DIB), disabled widow(er) benefits,
and childhood disability benefits.
\3\ Sec. 221(i)(2) of the Act; 42 U.S.C. 421(i)(2); 20 CFR
404.1590(a), 416.990(a).
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Prior to the Social Security Disability Amendments of 1980 (1980
Amendments),\4\ we did not conduct CDRs on all of our beneficiaries to
ensure that they continued to meet the Act's definition of disability.
Instead, our procedures at the time provided that we conducted CDRs
only on a limited set of beneficiaries who had conditions that we
expected to improve.\5\ In the 1970s, the disability incidence rate
(the number of disability awards in relation to the population)
increased significantly, with substantial increases in the cost of the
disability program. During this period, the Social Security Amendments
of 1972 (1972 Amendments) extended Medicare coverage to disability
beneficiaries, with the opportunity for improved disability
outcomes.\6\ Congress held numerous hearings and considered a package
of legislative actions to strengthen the integrity of the disability
program and improve program administration. The 1980 Amendments added
section 221(i) to the Act, which required us to conduct CDRs at least
once every 3 years for all title II disability beneficiaries with
[[Page 63589]]
nonpermanent impairments, and at our discretion for all title II
disability beneficiaries with permanent impairments.\7\ Section 221(i)
of the Act established the periodic review or CDR requirement as one of
the most valuable program integrity tools that allows us to maintain
good stewardship of taxpayer dollars by ensuring only those who
continue to meet our standards for disability continue to receive
benefits.
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\4\ Public Law 96-265, section 311, 94 Stat. 441, 460.
\5\ H.R. Rep. No. 96-944, at 60 (1980) (Conf. Rep.) Available at
https://www.ssa.gov/history/pdf/Downey%20PDFs/Social%20Security%20Disability%20Amendments%20of%201980%20Vol%202.pdf
.
\6\ Public Law 92-603, sec. 201, 86 Stat. 1329, 1371.
\7\ Id.
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In 1983, Congress amended section 221(i) of the Act to allow us to
determine how many CDRs we conduct annually in each State based on the
backlog of pending reviews, the projected number of new disability
applications, and State staffing levels.\8\
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\8\ Public Law 97-455, sec. 3, 96 Stat. 2497, 2499; sec.
221(i)(2) of the Act.
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In October 1984, Congress passed the Social Security Disability
Benefits Reform Act of 1984, which mandated that we publish regulations
establishing standards to be used in determining the frequency of
CDRs.\9\ Congress did so for several reasons. First, Congress expressed
concern that people who are found eligible for benefits after a lengthy
administrative appeal not find themselves subjected to a second
eligibility review after only a relatively brief period. On the other
hand, Congress was also concerned that we not neglect our
responsibility to review the cases of even those beneficiaries who have
impairments that we categorized as permanent.\10\
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\9\ Public Law 98-460, sec. 15, 98 Stat. 1794, 1808.
\10\ ``Conversely, with the number of people now classified
administratively as being permanently impaired approaching 40
percent of the disabled-worker benefit rolls, the Committee is
concerned that the responsibility to assess the continuing
eligibility of such beneficiaries not be neglected. A failure to
periodically review eligibility in these cases could seriously
undermine the intent of the 1980 legislation.'' S. Rep. No. 98-466,
at 28 (1984). Available at https://www.ssa.gov/history/pdf/Downey%20PDFs/Downey%20Book%201984%20PL%2098-460.pdf.
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In May 1986, we published final rules that revised four sections
and added one new section to our regulations that set forth the
standards for conducting CDRs in title II disability and title XVI SSI
cases.\11\ In the 1986 final rules, we explained that, although section
221(i) of the Act applied only to title II disability cases, we would
apply the new rules applied to title XVI SSI cases to provide
consistency in the operation of the disability programs. We did this
based on our broad regulatory authority under title XVI of the Act,
sections 1631(d)(1) and 1633, and the legislative history of the 1980
Amendments.\12\
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\11\ 51 FR 16818, May 7, 1986; 20 CFR 404.1589, 404.1590,
416.989, 416.989a, 416.990.
\12\ 51 FR at 16819. In the final rules, we note that ``[t]he
report of the Senate Committee on Finance states: ``The committee
believes that such [periodic review] procedures should be applied on
the same basis to the DI and SSI programs.''
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When we implemented the current rules in 1986, we established a
process of administrative controls to keep track of the review cycle
for each case, including the impairment(s) and its type (permanent or
nonpermanent) and the review category assigned. We refer to this
process of controls as ``CDR diaries.''
Since we published the 1986 final rules, we have revised our rules
to reflect statutory changes. The Personal Responsibility and Work
Opportunity Reconciliation Act of 1996 \13\ requires us to conduct CDRs
at age 1 for children with low birth weight when low birth weight is a
contributing factor material to our determination that they were
disabled.\14\ The Balanced Budget Act of 1997 \15\ modified the
requirement for a CDR at age 1 to allow the Commissioner to schedule
the CDR at a later date if the child's impairment is not expected to
improve by age 1 and to revise our definition of a permanent impairment
for title XVI child recipients.\16\ We incorporated these provisions
into our rules on February 11, 1997, and September 11, 2000,
respectively.\17\
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\13\ Public Law 104-193, sec. 212(c), 110 Stat. 2105, 2193.
\14\ 62 FR at 6430, 65 FR at 54790.
\15\ Public Law 105-33, sec. 5522(a), 111 Stat. 251, 622.
\16\ 62 FR at 6430, February 11, 1997.
\17\ 62 FR 6430, Feb. 11, 1997; 65 FR 54790, Sept. 11, 2000.
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The Ticket to Work and Work Incentives Improvement Act of 1999 \18\
included two provisions that affect the scheduling of CDRs. Under the
first provision, we will not initiate a CDR while the person is using a
Ticket to Work.\19\ Under the second provision, we will not initiate a
CDR based solely on work activity for beneficiaries who have been
entitled to benefits under title II for at least 24 months. We will
initiate regularly scheduled CDRs that are not triggered by work.\20\
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\18\ Public Law 106-170, sec. 111(a), 113 Stat. 1860, 1881.
\19\ 42 U.S.C. 1320b-19(i), 20 CFR 411.165.
\20\ 71 FR 66856, Nov. 17, 2006.
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B. When and How We Conduct CDRs
We conduct periodic program integrity reviews to ensure title II
beneficiaries and title XVI SSI disability recipients continue to meet
each program's respective eligibility criteria. After we initially find
that a claimant is disabled, we schedule the periodic review required
by the Act to determine if the person is still medically eligible for
payments based on disability. As we explained earlier, this evaluation
is known as a CDR. The frequency of a medical CDR depends on the
beneficiary's prospective MI. MI is categorized into one of three
``medical diary categories.'' \21\
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\21\ 20 CFR 404.1590(b)(1)-(2), 416.990(b)(1)-(2).
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1. Medical Improvement Expected (MIE). The medical diary category
that requires us to conduct a CDR most frequently is the MIE medical
diary category. We generally conduct a CDR on a case with a MIE diary
in not less than 6 months, but not more than 18 months.\22\ We use the
MIE diary category for cases in which we expect the person's disabling
impairment(s) to improve, so that the person will be able to engage in
substantial gainful activity (SGA). We also use the MIE diary category
for title XVI SSI childhood disability cases in which we expect the
child's impairment(s) to improve, so the impairment(s) no longer
results in marked and severe functional limitations.\23\ Examples of
impairments that receive a MIE diary include fractures, cancers with
bone marrow or stem cell transplantation, chronic kidney disease with a
kidney transplant, and low birth weight. We set an MIE diary for most
infants who are allowed based on their low birth weight because we are
required by the Act to review such cases when they reach age 1 unless
the facts of the case indicate that medical improvement before age 1 is
not expected.\24\ We set the diary for all other cases receiving a MIE
diary based on the facts of the case, with most diaries set at 12
months.
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\22\ 20 CFR 404.1590(c), (d); 416.990(c), (d).
\23\ See section 1614(a)(4)(B)(i) of the Act.
\24\ See section 1613(a)(3)(H)(iv) of the Act.
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2. Medical Improvement Possible (MIP). The MIP medical diary
category requires us to conduct a CDR regularly, but less frequently
than for claims in the MIE diary category. For cases in the MIP diary
category, we conduct a CDR at least once every 3 years.\25\ We use the
MIP diary category for those cases in which any medical improvement is
possible, that is, nonpermanent impairments. We use this diary category
for impairments in both adults and children for which we cannot predict
improvement of the impairment(s) based on current experience and the
facts of the case.\26\ Examples of impairments that frequently receive
a MIP diary include Crohn's Disease (regional enteritis), sickle cell
disease,
[[Page 63590]]
chronic ulcerative colitis, epilepsy, and schizophrenia.
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\25\ 20 CFR 404.1590(d), 416.990(d).
\26\ 20 CFR 404.1590(c), 416.990(c).
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3. Medical Improvement Not Expected (MINE). The MINE medical diary
category requires us to conduct a CDR less frequently than the
preceding two diary categories.\27\ Under this category, we conduct a
CDR for a title II disability or a title XVI case at least once every 7
years, but no more frequently than once every 5 years.\28\ We use the
MINE diary category for cases with disabling impairments that, based on
medical knowledge and practices, and our administrative experience, we
determine to be ``at least static, but more likely to be progressively
disabling either by itself or by reason of impairment complications,
and unlikely to improve so as to permit the person to engage in
substantial gainful activity.'' \29\ We use this category for title XVI
disabled children who have an impairment(s) that is unlikely to improve
to the point that they no longer have marked and severe functional
limitations.\30\ Based on our analysis of case outcomes for CDRs on
older beneficiaries, we also use this category for cases in which the
person would be age 54\1/2\ or older when a CDR diary would be due. We
provide examples of impairments that we consider permanent in the
current rule, including amyotrophic lateral sclerosis (ALS),
Parkinsonian Syndrome (Parkinson's disease), diffuse pulmonary fibrosis
in a person age 55 or over, and amputation of the leg at the hip. We
provide additional guidance about permanent impairments in our current
operating instructions.\31\
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\27\ Id.
\28\ 20 CFR 404.1590(d), 416.990(d).
\29\ 20 CFR 404.1590(c), 416.990(c).
\30\ 20 CFR 416.990(c).
\31\ Program Operations Manual System (POMS) DI 26525.045 at:
https://secure.ssa.gov/apps10/poms.nsf/lnx/0426525045.
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We establish the medical diary category when we first determine
that a person is disabled under our rules. We notify the beneficiary
about the timing of the initial CDR in the award notice we send. We
also notify the beneficiary about the timing of the next CDR in the
notice that we send about the CDR determination. When we conduct a CDR,
we may change the medical diary category for future reviews based on
the evidence we receive during the CDR.
We may also revise the frequency of review for certain impairments
because of improved tests, treatment, or other medical advances
concerning the impairments.\32\ When we change the diary category for
specific impairments, we incorporate the changes into our employee
operating instructions, which are publically accessible.
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\32\ 20 CFR 404.1590(e), 416.990(e).
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For people who are found eligible to receive or continue to receive
disability benefits based on a decision by an administrative law judge,
the Appeals Council, or a Federal court, we do not conduct a CDR
earlier than 3 years after that decision unless the case meets the
criteria for a MIE diary.\33\ In any case, however, we may conduct a
CDR earlier than the diary date if a question of continuing disability
is raised.\34\
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\33\ 20 CFR 404.1590(f), 416.990(f). We may also establish a
diary before 3 years if the person should be scheduled for a
vocational reexamination diary or if a question of continuing
disability arises under 20 CFR 404.1590(b) or 416.990(b).
\34\ Additional guidance for initiating a CDR is in 20 CFR
404.1590(b)(3)--(10) and 416.990(b)(3)-(10). In most instances, we
will identify the CDR issue at the field office level. If there is
any question about the appropriateness of initiating a CDR, the
field office will request assistance from SSA's regional or central
office staff or the state disability determination services before
taking any action.
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When a medical review diary matures, we conduct periodic CDRs using
one of two methods. We decide whether to initiate a full medical review
(FMR) or send a mailer after profiling all cases to identify the
likelihood of MI. We send cases with a higher likelihood of MI to the
State Disability Determination Services (DDS) for FMRs. For those cases
with a lower likelihood of MI, we send mailers to obtain more
information from the beneficiaries, which we evaluate to determine if
there is any indication of MI. If we find an indication of MI, we send
the case to a DDS for a FMR. Otherwise, we set a new medical review
diary and schedule the case for a future CDR. If a mailer results in a
deferral, we reset the diary date based on the original category. If a
FMR results in a continuance, we will determine whether there is a
change in classification of the impairment as permanent or nonpermanent
and set a new diary accordingly. We use the mailer process for
approximately 65 percent of the periodic CDRs we conduct each year.
II. The Changes We Are Proposing
We want to ensure that we continue to identify MI at its earliest
point through the CDR process. We also want to have the flexibility to
adjust the scheduling of CDRs when there have been advances in
treatment for a person's impairment(s) that improve the ability to work
or, for children receiving title XVI payments, that improve overall
health and functioning. Therefore, we are proposing to make three
changes to our current rules on when and how often we conduct CDRs.
First, we propose to add a fourth medical diary category. Next, we
propose to revise the criteria we follow to assign a medical diary to
each case. Finally, we propose to retain the frequency for the MIE and
MIP diary categories (6 to 18 months and 3 years, respectively) and
revise the frequency with which we perform a CDR for the MINE diary
category.
The flexibility these proposed changes would allow us to determine
MI at an earlier point than we can under our current rules.
Consequently, we expect that the changes we are proposing would enhance
program integrity and ensure that only those who continue to qualify
for benefits will receive them.
A. Expanding the Medical Diary Categories From Three to Four
When we evaluate a person's continuing disability during a
scheduled review, we consider whether there has been MI in the
condition that resulted in the finding of disability. We use the
medical diary categories to capture MI at the earliest point.
We propose adding a new medical diary category, the Medical
Improvement Likely (MIL) diary category. When we assign a case to the
MIL diary category, we would review it approximately every two years,
which is less frequently than cases in the MIE diary category, but more
frequently than cases in the MIP and MINE diary categories. We schedule
cases for a FMR or a mail questionnaire based on our predictive model
that identifies the cases most likely to exhibit MI (i.e., where MI is
most likely to have occurred).
This proposed expansion of the diary categories reflects changes
brought by our experience over time administering CDRs in the existing
three categories. When we analyzed CDR case outcomes for MIE diaries,
we noticed that there were some types of cases where the MIE category
resulted in a continuance for the first CDR but resulted in a cessation
\35\ for the subsequent CDR.\36\ This was often an indication that the
first CDR was conducted too early to identify MI. We also realized that
our employee operating instructions already recognize that the 6 to 18
month period for MIE diaries is not adequate for some impairments we
expect to improve.\37\ In particular, we set longer MIE diaries (2
[[Page 63591]]
years) for several impairments, such as leukemia, lymphoma, and
malignant solid tumors in children. Based on the number of cases that
seemed to fall between the MIE and MIP diary periods, we analyzed CDR
outcomes for certain conditions, their assigned diary categories, and
their associated MI rates. We identified several conditions that could
have diaries in either the MIE or MIP categories. The MI rates were
similar between both diary categories, suggesting that the MIP diary
may not have captured MI at the optimum time.\38\ As a result, we are
proposing to add a fourth category between MIE and MIP that would allow
us to align our CDRs more directly to when certain conditions are more
likely to medically improve. Additionally, adjusting the frequency of
review for several diary categories reflects our experience for what
timeframes are more likely to result in identifying MI at the earliest
point, as we discuss in section C.
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\35\ A cessation is a determination or decision that the
disabled individual no longer meets the definition of disability and
is not eligible to continue to receive benefits or payments see 20
CFR 404.1597 and 416.995.
\36\ See the Supporting Document ``Cessation Rates by
Impairment'' under Docket No. SSA-2018-0026 at: www.regulations.gov.
\37\ POMS DI 26525.030 at: https://secure.ssa.gov/apps10/poms.nsf/lnx/0426525030.
\38\ See the Supporting Document ``Cessation Rates by Diary
Category'' under Docket No. SSA-2018-0026 at: www.regulations.gov.
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For many disabling impairments, the key element for MI is a
person's receipt of treatment that can decrease the severity of the
impairment and its effects. When people do not receive adequate
treatment, any MI in the disabling impairment(s) may not occur when we
would otherwise expect it for impairments likely to improve. This is
especially important in light of the data documenting the percentage of
individuals with unmet health care needs. In 2015, 31.4 percent of
people with two or more chronic conditions delayed, or did not obtain,
needed medical care due to a cost or other non-cost reason (even if
they had health insurance).\39\ Scheduling a CDR under the MIE category
(6 to 18 months) may be premature when MI does not occur as expected
due to unmet health care needs. The MIL diary category will allow us to
assess MI after some beneficiaries benefit from access to health care
through Medicare or Medicaid to determine if they continue to be
eligible for benefits.
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\39\ Ward, B.W., ``Barriers to health care for adults with
multiple chronic conditions: United States, 2012-2015.'' NCHS data
brief, no. 275. Hyattsville, MD: National Center for Health
Statistics, 2017.
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When we identify and evaluate MI at its earliest point,
beneficiaries know the CDR outcome and can make plans for their return
to the labor force within a shorter period of time. We believe that
there may be positive employment effects as a result of these proposed
rules, although we cannot currently quantify them. For example, using
our administrative data \40\ on entitlement periods and earnings for a
group of beneficiaries and recipients whose benefits terminated due to
a 1997 statutory change, a researcher at the National Bureau of
Economic Research looked at the effect of the loss of benefit
eligibility on work activity during the year of benefit termination and
the next 11 years (1997 through 2008).\41\ Overall, about 22 percent
returned to work at an SGA level during the first three years following
benefit termination.
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\40\ Supplemental Security Record--March and June 1996 DA&A
Extracts; Supplemental Security Record--Longitudinal File; Master
Beneficiary Record--810 File; Disability Master File/831 File;
Numident File; Master Earnings File. See Moore, T. J., ``The
employment effects of terminating disability benefits,'' Journal of
Public Economics, vol. 124(C), 2015, Appendix A.
\41\ Id., pp. 30-43.
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In many cases, shortening the time a person spends out of the labor
force may improve work outcomes. Our analysis of our administrative
data confirms that the majority of all working-age people in the
general population \42\ who spend one year or more out of the work
force \43\ do not return to work at an SGA level.\44\ However for those
people who do return to the work force, employment rates are higher the
shorter the time a person is out of the work force. For example, in
2013, 35.5 percent of the 40-year-old adults who had been out of the
work force for 1 year returned to work at an SGA level. The percentage
of the 40-year-olds who returned to work at an SGA level dropped to
27.1 percent after 2 years out of the work force, 17 percent after 3
years, and to only 7.4 percent after 7 years. In the same year, 30.7
percent of the 50-year-old adults out of the work force for 1 year
returned to work at an SGA level, 23.5 percent after 2 years, 14
percent after 3 years, and only 5.5 percent after 7 years out of the
work force.\45\ Although the data shows a modest correlation between
the length of time outside of the workforce and likelihood of
reentering at an SGA level, the data does not provide evidence of
causality between the two.
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\42\ This group includes people who are not SSA beneficiaries,
as well as people who are SSA beneficiaries.
\43\ ``Time out of the labor market'' means years without
earnings above $1,000.
\44\ See SSA Office of Research, Evaluation, and Statistics
(ORES) analysis of data from the Continuous Work History Sample,
Likelihood of Returning to Employment by Age and Time Out of the
Labor Market. Available at regulations.gov as supporting and related
material for docket SSA-2018-0026.
\45\ Id.
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The employment response to Social Security Disability Income (SSDI)
and SSI income loss is supported by recent research by our Office of
Research, Demonstration, and Employment Support (ORDES), that looked at
earnings for the 5-year period after SSDI and SSI beneficiaries had
their benefits ceased following a FMR.\46\ The ORDES researchers found
that ``[t]he majority of ceased beneficiaries have some earnings in the
5 years after a FMR cessation.'' \47\ In this research, the researchers
also found that the percentage of former beneficiaries with earnings
from work 5 years after a FMR cessation declines with age from
``[n]early 90% of ceased beneficiaries aged 18 to 30'' to ``below 60%
for beneficiaries aged 50 to 59.'' \48\ They also analyzed employment
outcomes based on the type of diaries established on the cases and
found that beneficiaries who had a MIE diary set (with a higher
probability of MI) had higher rates of employment and earnings
following benefit termination than those who had a MIP or MINE diary.
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\46\ Hemmeter, J. and Bailey, M.S., ``Earnings after DI:
evidence from full medical continuing disability reviews,'' IZA
Journal of Labor Policy, vol. 5 (1), 1-22. doi:http://dx.doi.org/10.1186/s40173-016-0066-9.
\47\ Id., p. 15.
\48\ Id., p. 12.
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Further, there is evidence that parents of SSI children who
medically improve offset the loss of SSI benefits through earned
income. Research on the effect of SSI payments on household income and
earnings found that ``. . . a [household] loss of $1,000 in the child's
SSI payment [due to the loss of payments after a CDR \49\] increases
parental earnings--by $700 to $1,400.'' \50\ Furthermore, there was ``.
. . some evidence that the volatility [variability] of parental
earnings decreases in response to the child's removal from SSI.'' \51\
The evidence did not demonstrate a similar rise in income from other
unearned income sources, including other disability income sources. The
evidence also showed that the loss of the child's SSI payments
decreased the number of SSDI and SSI applications from other members of
the household. These responses to the loss of SSI payments suggest that
there may be a shift in the reliance on SSDI and SSI as a permanent,
reliable income source for the household.
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\49\ The loss of benefits was due to MI in the child's
conditions identified through the CDR process.
\50\ Deshpande, M., ``The effect of disability payments on
household earnings and income: Evidence from the SSI children's
program, The Review of Economics and Statistics, 98(4), (2016), p.
639. Available at: https://www.mitpressjournals.org/doi/pdf/10.1162/REST_a_00609.
\51\ Id.
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[[Page 63592]]
B. Revising the Criteria We Follow To Assign Each Case to Each Diary
Category
We propose revising the criteria we use to assign a diary for a
case. We provided broad descriptions of the types of cases in each
diary category when we established the three diary categories in
1986.\52\ We have provided detailed guidance on specific impairments to
be assigned to each category in our employee operating
instructions.\53\ Although we intend to continue that practice, we will
also revise our guidance on the types of impairments considered in the
three existing diary categories to accommodate the addition of the MIL
diary category. In making these revisions, we will consider advances in
medical technology and treatment that has improved outcomes for many
impairments. For example, improvements in medication regimens for
individuals with human immunodeficiency virus (HIV) infection have
resulted in a change from a disease that was invariably fatal to a
chronic condition that ``allows high levels of functioning and
prolonged survival.'' \54\ When we revised our rules for evaluating HIV
in 2016,\55\ we revised our operating instructions for setting CDR
diaries. We now establish the CDR diary based on the facts of the case
and no longer set a MINE diary automatically. We have only made one
other change in diary category for a specific impairment: Changing lung
transplants from MIE to MIP--lengthening the review period based on
outcomes and mortality data. Prior to these two recent changes, the
last set of changes we made were in the mid- to late-1990s based on
administrative data.
---------------------------------------------------------------------------
\52\ 51 FR 16818 (May 7, 1986).
\53\ POMS DI 26525.000 at: https://secure.ssa.gov/apps10/poms.nsf/lnx/0426525000.
\54\ Institute of Medicine (2010). HIV and Disability: Updating
the Social Security Listings. Washington, DC: The National Academies
Press. Retrieved from: https://www.nap.edu/read/12941/chapter/1#ix.
\55\ 81 FR 86915, December 2, 2016.
---------------------------------------------------------------------------
We also propose to modify the criteria for the existing diary
categories (MIE, MIP, and MINE) and establishing criteria for the new
category as described below. We initially selected the medical
conditions based on when our predictive model suggests improvement and
medical evidence. We solicit public comment on information that would
help inform impairment classification to most effectively align medical
criteria with the correct diary category.
1. MIE diary: We currently set an MIE diary for a case if we expect
the disabling impairment to improve. Several factors can prompt an MIE
diary, such as current significant, sustained, and progressive
improvement; recent or planned interventions or treatment that should
result in significant and sustained MI; onset of the disabling
impairment within the last 12 months with no irreversible organ or
structural damage and favorable response to current treatment; or
recent or planned surgery that is expected to resolve the
impairment.\56\ We also establish a MIE diary for favorable
determinations and decisions based on medical listings that include a
specified period of disability as set out in the regulations (e.g.,
3.03, Asthma, 6.04, Chronic kidney disease, with kidney transplant,
103.03, Asthma, and 106.04, Chronic kidney disease, with kidney
transplant) and for most cases allowed based on an infant's low birth
weight.
---------------------------------------------------------------------------
\56\ POMS DI 26525.025 at: https://secure.ssa.gov/apps10/poms.nsf/lnx/0426525025.
---------------------------------------------------------------------------
We propose to continue to use the MIE diary category for allowances
we make based on medical listings that include a specified period of
disability as indicated above and for allowances based on an infant's
low birth weight. With the exception of claims we allow based on low
birth weight, the criteria for establishing MIE diaries will be the
same for adults and children.
We will publish and include in our publicly accessible employee
operating instructions those impairments for which an MIE diary is
appropriate because we expect them to improve.\57\ We will still
evaluate whether disability continues for a person with an impairment
or combination of impairments in the MIE category using our existing
rules.
---------------------------------------------------------------------------
\57\ POMS at: https://secure.ssa.gov/poms.nsf/Home?readform.
---------------------------------------------------------------------------
We may revise the frequency of review for certain impairments
because of improved tests, treatment, or other medical advances
concerning the impairments.\58\ We may also revise the frequency of
review for certain impairments based on our predictive modeling. When
we change the diary category for specific impairments, we will update
the list of impairments in the MIE, MIL, and MINE diary categories that
we maintain in our employee operating instructions, which are publicly
accessible.\59\
---------------------------------------------------------------------------
\58\ 20 CFR 404.1590(e), 416.990(e).
\59\ POMS DI 26525.000 at: https://secure.ssa.gov/apps10/poms.nsf/lnx/0426525000.
---------------------------------------------------------------------------
When combined with the frequency changes described in section C, we
anticipate completing about 1.2 million FMRs (out of approximately 7.3
million total), as well as 56,000 mailer deferral reviews (out of
approximately 12 million total) from fiscal years (FY) 2020-2029 in the
MIE category. Additionally, of the 1.2 million FMRs, 746,000 would
affect title II beneficiaries, and 459,000 would affect title XVI
recipients (including 240,000 child CDRs,\60\ 15,000 age 18
redeterminations,\61\ and 204,000 adult medical reviews over 10 years).
Similarly, of the 56,000 mailer deferral reviews, review for 35,000
title II beneficiaries and 22,000 recipients would result in
deferrals.\62\
---------------------------------------------------------------------------
\60\ This figure includes 115,000 CDRs for low birth weight
infants.
\61\ Age 18 redeterminations are considered a part of the CDR
workload for planning and budget purposes. However, the assigned
diary category does not affect the selection for review.
Furthermore, all age 18 redeterminations receive a FMR.
\62\ The total mailer deferral reviews does not equal the sum of
components due to rounding.
---------------------------------------------------------------------------
We based the workload estimates on the impairments we expect to
include in the MIE diary category as explained in this NPRM. We
identified the impairments to be included in the MIE diary category on
our recent data and experience with CDR outcomes.\63\ Once we implement
the final rules, we may change the impairments included in the MIE
category based on the comments we receive on this NPRM, advances in
medical knowledge, our predictive modeling, and our data on CDR
outcomes.
---------------------------------------------------------------------------
\63\ The impairments tentatively identified for inclusion in the
MIE diary category are included in the Supporting Document
``Underlying Assumptions on Impairments in CDR Diary Categories,''
under Docket No. SSA-2018-0026 at: www.regulations.gov. These
characteristics were used in the underlying assumptions to estimate
changes in the programmatic and administrative cost for this
proposed rule.
---------------------------------------------------------------------------
2. MIL diary: This is a new diary category. We propose to use the
MIL diary category, instead of the MIE or MIP diary categories, to
conduct reviews for specific impairments that typically do not result
in permanent, irreversible structural damage and are amenable to
improving with treatment. This category will apply to impairments in
both adults and children, and will include some claims that currently
fall into the MIE and MIP diary categories. Some examples of claims
that we expect to include in this category are favorable determinations
and decisions for both adults and children based on cancer listings
that include a specified minimum period of disability (for example,
leukemia, lymphoma), anxiety disorders, speech impairments, and
malignant solid tumors in children. This category will also include
cases in which we make a favorable determination or decision based on
the
[[Page 63593]]
inability to adjust to other work (i.e., allowances at step 5 of the
sequential evaluation process \64\). We would include step 5 allowances
in the MIL diary category unless we would establish a MINE diary based
on the impairment and specific case characteristics identified in
section B.4 below.
---------------------------------------------------------------------------
\64\ See 20 CFR 404.1520(a)(4)(v) and 416.920(a)(4)(v).
---------------------------------------------------------------------------
We will also include some childhood disability claims in this
category for children who are approaching a chronological age with key
developmental activities, for example, age 6 with a transition into
formal education, and at age 12 with a transition into adolescence.
We will publish and include in our publicly accessible employee
operating instructions those impairments that for which an MIL diary is
appropriate because they are amenable to treatment and likely to
improve.\65\ As in any other case, we will evaluate whether disability
continues for a person with an impairment or combination of impairments
in the MIL category using our existing rules.
---------------------------------------------------------------------------
\65\ POMS at: https://secure.ssa.gov/poms.nsf/Home?readform.
---------------------------------------------------------------------------
When combined with the frequency changes described in section C, we
anticipate completing about 1.8 million FMRs (out of approximately 7.3
million total), as well as 2.6 million mailer deferral reviews (out of
approximately 12 million total) from FYs 2020-2029 in the MIL category.
Additionally, of the 1.8 million FMRs, 579,000 would affect title II
beneficiaries, and 1.2 million would affect title XVI beneficiaries
(including 627,000 child CDRs, 152,000 age 18 redeterminations, and
406,000 adult CDRs over 10 years). Similarly, of the 2.6 million mailer
deferral reviews, reviews of 1.8 million title II beneficiaries and
814,000 title XVI recipients would result in deferrals.
Our Office of the Chief Actuary based the workload estimates on the
impairments we expect to include in the MIL category as explained in
this NPRM. We identified the impairments to be included in the MIL
diary category on our recent data and experience with CDR outcomes.
Once we implement the final rules, we may change the impairments
included in the MIL category based on the comments we receive on this
NPRM, medical advances, predicative modeling, and our data on CDR
outcomes.\66\
---------------------------------------------------------------------------
\66\ The impairments or other case characteristics, tentatively
identified for inclusion in the MIL diary category are included in
the Supporting Document ``Underlying Assumptions on Impairments in
CDR Diary Categories,'' under Docket No. SSA-2018-0026 at:
www.regulations.gov. These characteristics were used in the
underlying assumptions to estimate changes in the programmatic and
administrative cost for this proposed rule.
---------------------------------------------------------------------------
3. MIP diary: We currently establish a MIP diary when the case does
not meet the criteria for establishing a MIE, MINE, or vocational
reexamination diary.\67\ We also establish MIP diaries for most
favorable determinations based on cancer, except when we based the
favorable determination on a cancer listing that includes a specified
minimum period of disability. For example, under listing criterion
13.06, Leukemia, we consider the person ``under a disability until at
least 24 months from the date of diagnosis or relapse.''
---------------------------------------------------------------------------
\67\ A vocational reexamination diary is set to review a case at
a later date because the person is undergoing vocational therapy,
training, or an educational program that is expected to improve the
ability to work to the extent that the person is no longer disabled.
---------------------------------------------------------------------------
Although we propose using specific claim characteristics to
determine cases in the MIE, MIL, and MINE diary categories, most cases
would receive a MIP diary because the impairment(s) does not meet the
criteria for establishing a MIE, MIL, or MINE diary. In effect, it
would be the diary of ``last resort'' for impairments that do not fit
into the other three diary categories. We would retain our current
policy using the MIP diary category for cases that are allowed based on
meeting or equaling a cancer listing if section 13.00H2 applies, that
is, ``we will consider an impairment(s) . . . disabling until at least
3 years after onset of complete remission.'' \68\
---------------------------------------------------------------------------
\68\ 20 CFR part 404, subpart P, appendix 1.
---------------------------------------------------------------------------
When combined with the frequency changes described in section C, we
anticipate completing about 3.7 million FMR (out of approximately 7.3
million total), as well as 6.5 million mailer deferral reviews (out of
approximately 12 million total) from FYs 2020-2029 in the MIP category.
Additionally, of the 3.7 million FMRs, 1.3 million would affect title
II beneficiaries, and 2.4 million would affect title XVI beneficiaries
(including 1.1 million child CDRs, 427,000 age 18 redeterminations, and
908,000 adult CDRs over 10 years). Similarly, of the 6.5 million mailer
deferral reviews, reviews of 4.7 million title II beneficiaries and 1.9
million title XVI recipients would result in deferrals.\69\
---------------------------------------------------------------------------
\69\ The total mailer deferral reviews does not equal the sum of
components due to rounding.
---------------------------------------------------------------------------
These estimates are based on the assumptions that, if the case does
not meet any of the MIE or MIL criteria, then current rules for MIP
diary category continue to apply and the diary will be determined
according to current rules.
4. MINE diary: We currently set a MINE diary when the person has a
chronic or progressive impairment or a combination of impairments, with
permanent, irreversible structural damage or functional loss for which
there is no known effective therapy, treatment, or surgical
intervention. Generally, impairments with permanent, irreversible
structural damage or functional loss will meet or medically equal a
listing in the Listing of Impairments.\70\ Both children and adults may
have an impairment in the MINE diary category. Examples of impairments
in the MINE diary category that occur in both children and adults
include muscular dystrophy, Down syndrome, cerebral palsy, and chronic
kidney disease with dialysis. Examples of impairments in the MINE diary
category that generally occur only in adults include amyotrophic
lateral sclerosis, multiple sclerosis, and Huntington's disease. We may
also set a MINE diary currently for a case where the person has an
impairment, or combination of impairments, that is static or
progressive, and, when considered with vocational factors, may be
considered permanent.
---------------------------------------------------------------------------
\70\ Id.
---------------------------------------------------------------------------
We propose to retain the category criteria for cases with a chronic
or progressive impairment, or combination of impairments, with
permanent, irreversible structural damage or functional loss and for
which there is no known effective therapy, treatment, or surgical
intervention. Most of the impairments we consider permanent will meet
or equal a listing in the Listing of Impairments.\71\ For impairments
that do not meet or equal a listing, we propose to retain consideration
of the interaction of a person's age, functional limitations resulting
from the impairment(s), and the time since the person last engaged in
SGA when we decide if the person's impairment(s) is permanent and,
thus, subject to a MINE diary. For example, we would consider a
person's schizophrenia to be a permanent impairment and subject to a
MINE diary if the person was age 46\1/2\ at the time of review and the
onset was at least five years before the determination.\72\
---------------------------------------------------------------------------
\71\ Id.
\72\ POMS DI 26525.045B at: https://secure.ssa.gov/apps10/poms.nsf/lnx/0426525045.
---------------------------------------------------------------------------
We currently identify 10 impairments that would receive a MINE
diary based on the interaction of age and functional limitations and an
additional seven based on the interaction of age,
[[Page 63594]]
functional limitations, and time out of the workforce. Step 5
allowances based on these 17 impairments would continue to receive a
MINE diary. The table below describes our proposed sub-regulatory
guidance for the 17 impairments that will be assigned a MINE diary
based on vocational factors in combination with specific impairments.
These impairments are subject to change with advancements in medical
treatments and findings from our predictive model.
------------------------------------------------------------------------
Age, functional limitations, and
Age and functional limitations time out of the workforce
------------------------------------------------------------------------
Amyotrophic lateral sclerosis Depressive, bipolar and related
Angina disorders.
Late effects of injuries to the Huntington's disease.
nervous system Intellectual disorder.
Multiple sclerosis Late effects of cerebrovascular
Other diseases of the spinal cord disease.
Parkinsonian syndrome Neurocognitive disorders.
Peripheral arterial disease Other cerebral degenerations.
Phlebitis Schizophrenia spectrum and other
Rheumatoid arthritis psychotic disorders.
Spondylitis
------------------------------------------------------------------------
When combined with the frequency changes described in section C, we
anticipate completing about 559,000 FMRs (out of approximately 7.3
million total), as well as 2.8 million mailer deferral reviews (out of
approximately 12 million total) from FYs 2020-2029 in the MINE
category. Additionally, of the 559,000 FMRs, 223,000 would affect title
II beneficiaries, and 336,000 would affect title XVI recipients
(including 33,000 child CDRs, 188,000 age 18 redeterminations, and
115,000 adult CDRs over 10 years). Similarly, of the 2.8 million mailer
deferral reviews, reviews of 2.0 million title II beneficiaries and
826,000 title XVI recipients would result in deferrals.
---------------------------------------------------------------------------
\73\ 20 CFR 404.1590(c), (d), 416.990(c), (d).
---------------------------------------------------------------------------
These estimates are based on the assumptions that, if the case does
not meet any of the proposed criteria for the MIE and MIL diary
categories, then current rules for the MINE diary category continue to
apply and the diary will be determined according to current rules.
C. The Frequency of a CDR for Each of the Four Medical Diary Categories
Finally, we propose to retain two and revise one of our existing
medical diary categories rules on how often we perform a CDR. The
following table summarizes the differences between the current and
proposed policies:
------------------------------------------------------------------------
Diary category Current policy Proposed policy
------------------------------------------------------------------------
MIE......................... 6-18 months......... 6-18 months
(unchanged).
MIL......................... NA.................. 2 years.
MIP......................... 3 years............. 3 years (unchanged).
MINE........................ 5 to 7 years........ 6 years.
------------------------------------------------------------------------
As stated earlier, unless a question of continuing disability is
raised in a particular case, we currently schedule CDRs to be performed
every 6-18 months for cases in the MIE diary category, at least once
every 3 years for cases in the MIP diary category, and no less
frequently than once every 7 years but no more frequently than once
every 5 years for cases in the MINE diary category.\73\ We propose to
retain the current timeframes for cases in the MIE diary category (6-18
months) and the MIP diary category (at least once every 3 years)
because we structured the new diary category to identify the cases
likely to improve between 18 months and 3 years. The timeframe for
cases in the proposed MIL diary category will be at least once every 2
years.
We propose to revise the timeframe for cases in the MINE diary
category from no less frequently than once every 7 years but no more
frequently than once every 5 years, to at least once every 6 years.
When we published the current rules in 1986, we stated that ``[a]ll
individuals with permanent impairments will be assigned a 7-year review
cycle.'' \74\ We also noted that the rules established flexibility in
the frequency of review ``to permit assigning different review periods
to different permanent impairment categories should future experience
indicate it to be more appropriate to review certain impairments on
different time cycles than others.'' \75\
---------------------------------------------------------------------------
\74\ 51 FR 16821 (May 7, 1985).
\75\ Id.
---------------------------------------------------------------------------
Since we began using the current rules in 1986, we have not used a
shorter review period for permanent impairments. When we have
identified the need to change the diary categories for specific
impairments, it has involved a change in classification from permanent
to nonpermanent impairments. For example, we changed the overall
classification of HIV from a permanent to nonpermanent impairment. We
have not identified any permanent impairments for which a 5-year review
period is medically appropriate. Based on this experience, we believe
that maintaining the variable period of review for permanent
impairments is not necessary. Therefore, we propose to set the review
period for permanent impairments, that is, the MINE diary, at 6 years
in order to identify such improvement at its earliest point while
providing enhanced consistency and clarity surrounding the review
cycle's timeline.
We propose to revise the timeframes for the frequency of the
medical diary categories as described above for the same reasons we
propose to expand the medical diary categories, to ensure that we
continue to identify MI at its earliest point so that beneficiaries who
have medically improved and are no longer disabled return to the
workforce at the earliest point possible.
As a result of the addition of the MIL category and the change in
frequency for certain categories, we expect the following workload
shifts in the anticipated number of full medical CDRs completed over
the 10-year period from FYs 2020-2029:
----------------------------------------------------------------------------------------------------------------
CDRs under CDRs under Percent change
Diary category current proposed Net change \1\ vs. current
category \1\ category \1\ category total
----------------------------------------------------------------------------------------------------------------
MIE........................................... 986 1,205 219 22.2
[[Page 63595]]
MIL........................................... .............. 1,764 1,764 ................
MIP........................................... 4,605 3,738 -867 -18.8
MINE.......................................... 559 559 .............. ................
-----------------------------------------------------------------
Total..................................... 6,150 7,267 1,116 18.1
----------------------------------------------------------------------------------------------------------------
\1\ Calculated in thousands.
Although we are proposing to revise the criteria for assigning
diary categories to cases and to revise the frequency of CDRs for some
cases, we are not changing the manner in which we conduct CDRs. We will
continue to decide whether to initiate a FMR or send a mailer after
profiling all cases to identify the likelihood of MI, as described in
section I.B. above.
D. Additional Technical Changes
We propose to remove Sec. Sec. 404.1577 Disability defined for
widows, widowers, and surviving divorced spouses for monthly benefits
payable for months prior to January 1991, 404.1578 How we determine
disability for widows, widowers, and surviving divorced spouses for
monthly benefits payable for months prior to January 1991, and 404.1579
How we will determine whether your disability continues or ends. The
rules in these sections apply to determining disability or continuing
disability for widows, widowers, or surviving divorced spouses monthly
benefits \76\ payable for months prior to January 1991. All widows,
widowers, and surviving divorced spouses who were affected by this
regulation have reached full retirement age and are receiving monthly
benefits based on age, not disability. Therefore, the regulations are
obsolete and no longer needed.
---------------------------------------------------------------------------
\76\ See 20 CFR 404.335(c).
---------------------------------------------------------------------------
We also propose to revise Sec. 404.1511 Definition of disabling
impairment, which refers to the standard for widows, widowers, and
surviving divorced spouses for monthly benefits for months prior to
January 1991. In alignment with the removal of Sec. 404.1579, we
propose to revise Sec. 404.1501 Scope of subpart, Sec. 404.1505 Basic
definition of disability, Sec. 404.1529 How we evaluate symptoms,
including pain, and Sec. 404.1593 Medical evidence in continuing
disability review cases, which refer to Sec. 404.1579. Finally, we
propose to revise Sec. 404.335 How do I become entitled to widow's or
widower's benefits?, Sec. 404.336 How do I become entitled to widow's
or widower's benefits as a surviving divorced spouse?, and Sec.
404.1576 Impairment-related work expenses, which refer to Sec.
404.1577 or Sec. 404.1578.
We propose to revise current Sec. Sec. 404.1590(f)-(g) and
416.990(f)-(g) (proposed Sec. Sec. 404.1590(e)-(f) and 416.990(e)-(f))
to improve readability. We also propose to remove the reference to the
Social Security Disability Benefits Reform Act of 1984 (Pub. L. 98-460)
in current Sec. Sec. 404.1590(g) and 416.990(g) because the reviews
required by this law were a one-time workload and have been completed.
We propose to make conforming changes in proposed Sec. Sec.
404.1590(h) and 416.990(h) to reflect the redesignation of current
Sec. Sec. 404.1590(b)(4)-(b)(8), 404.1590(i), 416.990(b)(4)-(b)(8),
and 416.990(i).
E. What Rules Are Not Changing
We are not changing the Medical Improvement Review Standard that we
use to determine whether a person continues to meet the disability
requirements of the Act.\77\
---------------------------------------------------------------------------
\77\ 42 U.S.C. 423(f); 20 CFR 404.1594, 416.994, 416.994a.
---------------------------------------------------------------------------
The rule that we will not initiate a medical CDR during any period
in which a person is using a ticket under the Ticket to Work program
remains in place with no change.\78\ The primary purpose of this
provision is to ensure that Ticket to Work program participants are not
inhibited in their attempts to work or pursue an employment plan by the
fear that such activities will increase the likelihood that their
benefits will be terminated in a medical review. This provision allows
people to seek the services they need to work without increasing the
likelihood that their benefits will be terminated by a CDR. This
protection from a CDR will remain available for people who are using a
ticket to work, and the incentive to participate enhanced.
---------------------------------------------------------------------------
\78\ 42 U.S.C. 1320b-19; 20 CFR 404.1590(h), 411.165-411.226,
416.990(h).
---------------------------------------------------------------------------
We are also not changing the rule that exempts work activity as the
sole basis for initiating a medical CDR for people who work and receive
benefits based on disability under title II of the Act.\79\ This
protection will continue for people who work and have received
disability benefits under title II. As noted in section I.A. above, we
will initiate regularly scheduled medical CDRs that are not triggered
by work.
---------------------------------------------------------------------------
\79\ 42 U.S.C. 421(m); 20 CFR 404.1590(i), 416.990(i).
---------------------------------------------------------------------------
III. Other Considerations
A. How Long These Proposed Rules Would Remain in Effect
If we publish these proposed rules as final rules, they would
remain in effect until we revise or rescind them.
B. Clarity of These Proposed Rules
Executive Order 12866, as supplemented by Executive Order 13563,
requires each agency to write all rules in plain language. Therefore,
in addition to substantive comments on these proposed rules, we invite
comments on how to make them easier to understand.
For example:
Would more, but shorter, sections be better?
Are the requirements in the rules clearly stated?
Is there clarity surrounding how diary assignments would
change?
Do we have the correct classifications for impairments
that would shift into the MIL or other diary categories?
Have we organized the material to suit the needs of the
reader?
Could we improve clarity by adding tables, lists, or
diagrams?
What else could we do to make the rules easier to
understand?
Do the rules contain technical language or jargon that is
not clear?
Would a different format make the rules easier to
understand, e.g., grouping and order of sections, use of headings,
paragraphing?
When will we start to use these rules?
We will not use these rules until we evaluate public comments and
publish final rules in the Federal Register. All final rules we issue
include an effective date. We will continue to use our current rules
until that date. If we publish final rules, we will include a summary
of those relevant comments we received along with responses and
[[Page 63596]]
an explanation of how we will apply the new rules.
IV. Regulatory Procedures
Executive Order 12866, as Supplemented by Executive Order 13563
We consulted with the Office of Management and Budget (OMB) on the
significance of these proposed rules. Because the projected 10-year
administrative costs of these proposed rules are $1.8 billion, we
determined that this NPRM meets the criteria for a significant economic
regulatory action under Executive Order 12866, section 3(f)(1), as
supplemented by Executive Order 13563. Therefore, OMB reviewed it.
Executive Order 13132 (Federalism)
We analyzed this NPRM in accordance with the principles and
criteria established by Executive Order 13132, and determined that the
proposed rules will not have sufficient Federalism implications to
warrant the preparation of a Federalism assessment. We also determined
that this NPRM will not preempt any State law or State regulation or
affect the States' abilities to discharge traditional State
governmental functions.
Regulatory Flexibility Act
We certify that this NPRM will not have a significant economic
impact on a substantial number of small entities because it affects
individuals only. Therefore, a regulatory flexibility analysis is not
required under the Regulatory Flexibility Act, as amended.
Executive Order 13771
Based upon the criteria established in Executive Order 13771, we
have identified the anticipated program costs and administrative costs
as the following. These estimates are based on the sub-regulatory
assumptions detailed in the diary category descriptions in the
preceding pages and the supplemental document titled: ``Underlying
Assumptions on Impairments in CDR Diary Categories.''
Anticipated Costs to Our Programs
We estimate, based on the best available data, that this proposed
rule, assuming that rediarying under the proposal would be implemented
for all medical determinations or decisions made on or after June 1,
2020, would result in a net increase of roughly 2.6 million additional
CDRs over the period from FY 2020-2029--1.1 million (an 18.4 percent
increase) additional FMRs and 1.5 million additional CDR mailer
reviews. The additional FMRs are estimated to result in a net reduction
in Old-Age, Survivors, and Disability Insurance benefit payments of
$2.0 billion and a net decrease in federal SSI payments of $0.6 billion
over that same period.
Anticipated Costs to the Public
As discussed previously, we anticipate conducting an additional 1.1
million additional full medical reviews from FYs 2020-2029 and an
additional 1.5 million CDR mailer reviews when we implement these
proposed rules following publication of final rules. We estimate that
these additional CDRs will result in increased public ``opportunity
costs'' of $16,352,000 over a 10-year period. This figure represents an
estimated hourly average Disability Insurance (DI) payment (in lieu of
an hourly wage, since respondents to this collection are not generally
employed) of $10.22 multiplied by the additional annual burden hours
resulting from the increased use of the two CDR Information Collection
Requests (ICR) (OMB No. 0960-0072, full medical review and OMB No.
0960-0511, CDR Mailer) x 10 (representing a 10-year period). To
clarify, this figure does not represent actual costs that SSA is
imposing on recipients of Social Security payments to complete a CDR
ICR; rather, these are theoretical opportunity costs for the additional
time respondents will spend to complete OMB No. 0960-0072 or OMB No.
0960-0511 as a result of this policy.
In some, though not all, cases, we may need to ask respondents'
medical offices to provide us with updated medical records to
supplement the CDR documentation submitted by the respondents. The time
these offices' administrative staff spend to gather and submit files to
us represents another potential source of opportunity costs. However,
since we do not have data on the percentage of cases in which we need
to request additional information, it is not currently possible for us
to estimate lost opportunity costs in this area. However, if the public
wishes to submit comments on this issue, we will take them under
consideration for future opportunity cost calculations.
The ``Paperwork Reduction Act'' section below in the preamble
provides full burden calculations, including the time burden
computations that informed the theoretical cost figure above. As
discussed in that section, we are soliciting any additional feedback on
assumptions made regarding the time burden of this collection and the
theoretical opportunity cost to beneficiaries.
Anticipated Administrative Costs to SSA
Our Office of Budget, Finance, and Management estimates increased
administrative program integrity costs, in addition to current costs,
of approximately $1.8 billion for the 10-year period from FYs 2020-
2029. The costs are driven largely by a projected net increase of
roughly 2.6 million CDRs over the 10-year timeframe. This NPRM assumes
the fully-loaded costs of performing the full medical CDRs, work CDRs,
and mailers, consistent with methodology used in the budget.
Paperwork Reduction Act
We use two existing OMB-approved ICRs as part of the medical review
process: OMB No. 0960-0072 (``Continuing Disability Review Report,''
which is the full CDR form) and OMB No. 0960-0511 (``Disability Report
Update,'' which is the abbreviated mailer CDR). We will not be changing
these ICRs in any way to support these proposed rules. However, because
the core policy of these proposed rules will cause a change in the
frequency of use of these forms, increasing their public reporting
burden for the first 10 years after implementation of the final rules,
we are seeking OMB re-approval under the Paperwork Reduction Act for
these ICRs. While the public is able to comment on any aspects of these
ICRs, since we are only changing their frequency of use, not their
content, comments speaking to the former issue would be most useful.
Below are charts showing current burden estimates (time and
associated opportunity costs) for both ICRs, as well as the total
expected increase (the difference between the current and new
estimates) resulting from implementation of the final rules. These
estimates also helped to drive the opportunity cost figures cited in
the ``Anticipated Costs to the Public'' section above.
[[Page 63597]]
Table 1--Current and Projected New Annual Burden Figures for CDR ICR OMB No. 0960-0072
[``Full'' CDR; Form SSA-454]
----------------------------------------------------------------------------------------------------------------
Total
Burden hours opportunity
Number of Response time (respondents x Opportunity costs (burden
respondents (minutes) response time/ costs/hour hours x
60) opportunity
cost per hour)
----------------------------------------------------------------------------------------------------------------
Current Burden............... 703,000 60 703,000 hours... * $10.22 $7,184,660.
Projected New Annual Burden 813,000 60 813,000 hours... * 10.22 8,308,860.
Upon Publication of a Final
Rule for this Proposal.
Burden Change Resulting from 110,000 .............. +110,00 burden .............. +$1,124,200
Regulation. hours. opportunity
costs.
----------------------------------------------------------------------------------------------------------------
Table 2--Current and Projected New Annual Burden Figures for CDR ICR OMB No. 0960-0511
[``Mailer'' CDR; Form SSA-455]
----------------------------------------------------------------------------------------------------------------
Total
Burden hours opportunity
Number of Response time (respondents x Opportunity costs (burden
respondents (minutes) response time/ costs/hour hours x
60) opportunity
cost per hour)
----------------------------------------------------------------------------------------------------------------
Current Burden............... 1,100,000 15 275,000 hours... * $10.22 $2,810,500
Projected New Annual Burden 1,300,000 15 325,000 hours... * 10.22 3,321,500
Upon Publication of a Final
Rule for this Proposal.
Burden Change Resulting from 200,000 .............. 50,000 burden .............. +$511,000
Regulation. hours.
----------------------------------------------------------------------------------------------------------------
* Calculated based on average DI payments.
Total Costs Associated With Implementation of These Proposed Rules Upon
Publication in Final
Time Burden: 160,000 burden hours (110,000 burden hour
increase for OMB No. 0960-0072 plus 50,000 burden hour increase for OMB
No. 0960-0511);
Opportunity Cost Burden: $1,635,200 ($1,124,200 burden-
associated opportunity cost increase for OMB No. 0960-0072 plus
$511,000 for burden-associated opportunity cost increase for OMB No.
0960-0511).
We are submitting an ICR for clearance to OMB. We are soliciting
comments on the burden estimate; the need for the information; its
practical utility; ways to enhance its quality, utility, and clarity;
and ways to minimize the burden on respondents, including the use of
automated techniques or other forms of information technology. If you
would like to submit comments, please send them to the following
locations:
Office of Management and Budget, Attn: Desk Officer for SSA, Fax
Number: 202-395-6974, Email address: [email protected].
Social Security Administration, OLCA, Attn: Reports Clearance Director,
3100 West High Rise, 6401 Security Blvd., Baltimore, MD 21235, Fax:
410-966-2830, Email address: [email protected].
You can submit comments until January 17, 2020, which is 60 days
after the publication of this NPRM. To receive a copy of the OMB
clearance package, contact the SSA Reports Clearance Officer using any
of the above contact methods. We prefer to receive comments by email or
fax.
(Catalog of Federal Domestic Assistance Program Nos. 96.001, Social
Security Disability Insurance; 96.002, Social Security Retirement
Insurance; 96.004, Social Security Survivors Insurance; 96.006,
Supplemental Security Income)
List of Subjects
20 CFR Part 404
Administrative practice and procedure, Blind, Disability benefits,
Old-age, Survivors and disability insurance, Reporting and
recordkeeping requirements, Social security.
20 CFR Part 416
Administrative practice and procedure, Reporting and recordkeeping
requirements, Social security, Supplemental Security Income (SSI).
Andrew Saul,
Commissioner of Social Security.
For the reasons stated in the preamble, we propose to amend 20 CFR,
chapter III, part 404, subparts D and P, and part 416, subpart I, as
set forth below:
PART 404--FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE
(1950)
Subpart D--Old-Age, Disability, Dependents' and Survivors'
Insurance Benefits; Period of Disability
0
1. The authority citation for subpart D of part 404 continues to read
as follows:
Authority: Secs. 202, 203(a) and (b), 205(a), 216, 223, 225,
and 702(a)(5) of the Social Security Act (42 U.S.C. 402, 403(a) and
(b), 405(a), 416, 423, 425, and 902(a)(5)).
0
2. Amend Sec. 404.335 by revising the paragraph (b) introductory text
and removing paragraph (b)(4):
Sec. 404.335 How do I become entitled to widow's or widower's
benefits?
* * * * *
(b) You apply, except that you need not apply again if you meet one
of the conditions in paragraphs (b)(1) through (3) of this section:
* * * * *
0
3. Amend Sec. 404.336 by revising the paragraph (b) introductory text
and removing paragraph (b)(4):
Sec. 404.336 How do I become entitled to widow's or widower's
benefits as a surviving divorced spouse?
* * * * *
(b) You apply, except that you need not apply again if you meet one
of the conditions in paragraphs (b)(1) through (3) of this section:
* * * * *
[[Page 63598]]
Subpart P--Determining Disability and Blindness
0
4. The authority citation for subpart P of part 404 continues to read
as follows:
Authority: Secs. 202. 205(a)-(b) and (d)-(h), 216(i), 221(a) and
(h)-(j), 222(c), 223, 225, and 702(a)(5) of the Social Security Act
(42 U.S.C. 402, 405(a--(b) and (d)-(h), 416(i), 421(a) and (h)-(j),
422(c), 423, 425, and 902(a)(5)); sec. 211(b), Pub. L. 104-193, 110
Stat. 2105, 2189; sec. 202, Pub. L. 108-203, 118 Stat. 509 (42
U.S.C. 902 note).
0
5. Amend Sec. 404.1501 by revising paragraph (i) and the first
sentence of paragraph (j) to read as follows:
Sec. 404.1501 Scope of subpart.
* * * * *
(i) In Sec. Sec. 404.1581 through 404.1587 we discuss disability
due to blindness.
(j) Our rules on when disability continues and stops are contained
in Sec. Sec. 404.1588 through 404.1598. * * *
* * * * *
0
6. Amend Sec. 404.1505 by revising paragraph (b) to read as follows:
Sec. 404.1505 Basic definition of disability.
* * * * *
(b) There are different rules for determining disability for
individuals who are statutorily blind. We discuss these in Sec. Sec.
404.1581 through 404.1587.
* * * * *
Sec. 404.1511 [Amended]
0
7. Amend Sec. 404.1511 by removing and reserving paragraph (b).
0
8. Amend Sec. 404.1529 by revising the last sentence of paragraph (d)
introductory text to read as follows:
Sec. 404.1529 How we evaluate symptoms, including pain.
* * * * *
(d) * * * Section 404.1594 explains the procedure we follow in
reviewing whether your disability continues.
* * * * *
0
9. Amend Sec. 404.1576 by revising paragraph (b)(1) to read as
follows:
Sec. 404.1576 Impairment-related work expenses.
* * * * *
(b) * * *
(1) You are otherwise disabled as defined in Sec. Sec. 404.1505
and 404.1581-404.1583;
* * * * *
Sec. 404.1577 [Removed and Reserved]
0
10. Remove and reserve Sec. 404.1577.
Sec. 404.1578 [Removed and Reserved]
0
11. Remove and reserve Sec. 404.1578.
Sec. 404.1579 [Removed and Reserved]
0
12. Remove and reserve Sec. 404.1579.
0
13. Amend Sec. 404.1590 by:
0
a. Revising paragraph (a);
0
b. Revising the introductory text of paragraph (b), and revising
paragraph (b)(1);
0
c. Removing paragraph (b)(2);
0
d. Redesignating paragraphs (b)(3) through (b)(10) as (b)(2) through
(b)(9);
0
e. Removing the parenthetical sentence in redesignated paragraph
(b)(2);
0
f. Revising redesignated paragraph (b)(6);
0
g. Revising paragraph (c);
0
h. Removing paragraph (d);
0
i. Redesignating paragraphs (e) through (i) as paragraphs (d) through
(h);
0
j. Revising the second sentence in newly redesignated paragraph (d);
0
k. Revising redesignated paragraphs (e) and (f);
0
l. Revising the introductory text of newly redesignated paragraph
(h)(1), and paragraph (h)(1)(ii);
0
m. Revising the first sentence of newly redesignated paragraph
(h)(2)(i);
0
n. Revising the first sentence of newly redesignated paragraph
(h)(2)(ii);
0
o. Revising the first sentence of newly redesignated paragraph (h)(3);
0
p. Revising newly redesignated paragraph (h)(4); and
0
q. Revising newly redesignated paragraph (h)(5)(i).
The revisions to read as follows.
Sec. 404.1590 When and how often we will conduct a continuing
disability review.
(a) General. We conduct continuing disability reviews to determine
whether or not you continue to meet the disability requirements of the
law. Payment of cash benefits or a period of disability ends if the
medical or other evidence shows that you are not disabled as determined
under the standards set out in section 223(f) of the Social Security
Act. In paragraphs (b) through (f) of this section, we explain when and
how often we conduct continuing disability reviews for most people. In
paragraph (g) of this section, we explain special rules for some people
who are participating in the Ticket to Work program. In paragraph (h)
of this section, we explain special rules for some people who work.
(b) When we will conduct a continuing disability review. Except as
provided in paragraphs (g) and (h) of this section, we will start a
continuing disability review if--
(1) You have been scheduled for one of the following diary reviews:
(i) A medical improvement expected diary review;
(ii) A medical improvement likely diary review;
(iii) A medical improvement possible diary review; or
(iv) A medical improvement not expected diary review;
* * * * *
(6) Your employment network under the Ticket to Work program or
State Vocational Rehabilitation Agency tells us that:
(i) * * *
* * * * *
(c) Definitions. As used in this section--
Medical improvement expected (MIE) diary refers to a diary set for
a case, which we schedule for review because your impairment(s) is
expected to improve. Generally, the MIE diary period is set for not
less than 6 months or for not more than 18 months. We publish and
maintain a list of impairments that we expect to improve in our
employee operating instructions, which are publicly accessible.
Medical improvement likely (MIL) diary refers to a diary set for a
case, which we schedule for review because your impairment(s) is likely
to improve. We may also include determinations or decisions that we
make at step 5 of the sequential evaluation process (see Sec.
404.1520(a)(4)(v) and (g) of this chapter. Generally, the MIL diary
period is set for 2 years. We publish and maintain a list of
impairments that we consider likely to improve in our employee
operating instructions, which are publicly accessible.
Medical improvement possible (MIP) diary refers to a diary set for
a case, which we schedule for review because your nonpermanent
impairment(s) will possibly improve but we cannot determine with
certainty that it is likely to improve. Generally, the MIP diary period
is set for 3 years. We will assign this diary if your impairment(s) is
nonpermanent and is not on the lists of impairments that we publish and
maintain for MIE and MIL diaries.
Medical improvement not expected (MINE) diary refers to a diary set
for a case, which we schedule for review when we consider your
impairment(s) permanent and for which we do not expect medical
improvement in your impairment(s). We may consider the interaction of
your age, consequences of your impairment(s), and lack of recent
attachment to the labor market in determining whether to set a MINE
diary. Generally, the MINE diary period is set for 6 years. We publish
and maintain a list of impairments that we consider likely to improve
in our employee operating instructions, which are publicly accessible.
Nonpermanent impairment means an impairment that we do not consider
[[Page 63599]]
permanent and for which improvement is expected, likely, or possible,
but cannot be predicted based on current experience and the facts of
the particular case. We assign cases with nonpermanent impairments to
one of the following diary categories: MIE, MIL, and MIP.
Permanent impairment means an impairment for which we do not expect
medical improvement. A permanent impairment is an extremely severe
condition determined on the basis of our experience in administering
the disability programs to be at least static, but more likely to be
progressively disabling, either by itself or by reason of impairment
complications, and unlikely to improve so as to permit you to engage in
substantial gainful activity. Improvement which is considered temporary
under Sec. 404.1594(c)(3)(iv) of this subpart will not be considered
in deciding if an impairment is permanent. We assign cases with
permanent impairments to the MINE diary category.
Vocational reexamination diary refers to a case, which is scheduled
for review at a later date because you are undergoing vocational
therapy, training or an educational program which may improve your
ability to work so that the disability or blindness requirement of the
law is no longer met. Generally, the diary period will be set for the
length of the training, therapy, or program of education.
(d) * * * A change in the classification of your impairment may
change the frequency with which we will review your case. * * *
(e) Review after administrative appeal. If you were found eligible
to receive or to continue to receive, disability benefit payments on
the basis of a decision by an administrative law judge, the Appeals
Council or a Federal court, we will not conduct a continuing disability
review earlier than 3 years after that decision unless--
(1) Your case should be scheduled for a MIE, MIL, or vocational
reexamination diary review; or
(2) A question of continuing disability is raised under paragraph
(b) of this section.
(f) Waiver of timeframes. We will review all cases with a
nonpermanent impairment at least once every 3 years unless we, after
consultation with the State agency, determine that the requirement
should be waived to ensure that only the appropriate number of cases
are reviewed. We will base the appropriate number of cases we will
review on such considerations as the number of pending reviews, the
projected number of new applications, and projected staffing levels. We
will grant such waiver only after good faith effort on the part of the
State to meet staffing requirements and to process the reviews on a
timely basis. We may also consider availability of independent medical
resources. A waiver in this context refers to our administrative
discretion to determine the appropriate number of cases to be reviewed
on a State-by-State basis. Therefore, under certain circumstances, we
may delay your continuing disability review longer than 3 years
following our original determination or decision or other review. We
would base the delay on our need to ensure that pending reviews and new
disability claims workloads are accomplished within available medical
and other resources in the State agency and that such reviews are done
carefully and accurately.
* * * * *
(h) * * *
(1) General. Notwithstanding the provisions in paragraphs (b)(3),
(b)(4), (b)(5)(ii), (b)(6)(ii), and (b)(7)(iii) of this section, we
will not start a continuing disability review based solely on your work
activity if:
* * * * *
(ii) You have received such benefits for at least 24 months (see
paragraph (h)(2) of this section).
(2) The 24-month requirement. (i) The months for which you have
actually received disability insurance benefits as a disabled worker,
child's insurance benefits based on disability, or widow's or widower's
insurance benefits based on disability that you were due under title II
of the Social Security Act, or for which you have constructively
received such benefits, will count for the 24-month requirement under
paragraph (h)(1)(ii) of this section, regardless of whether the months
were consecutive. * * *
(ii) In determining whether paragraph (h)(1) of this section
applies, we consider whether you have received disability insurance
benefits as a disabled worker, child's insurance benefits based on
disability, or widow's or widower's insurance benefits based on
disability under title II of the Social Security Act for at least 24
months as of the date on which we start a continuing disability review.
* * *
(3) When we may start a continuing disability review even if you
have received social security disability benefits for at least 24
months. Even if you meet the requirements of paragraph (h)(1) of this
section, we may still start a continuing disability review for a
reason(s) other than your work activity. * * *
(4) Reviews to determine whether the work you have done shows that
you are able to do substantial gainful activity. Paragraph (h)(1) of
this section does not apply to reviews we conduct using the rules in
Sec. Sec. 404.1571-404.1576 of this subpart to determine whether the
work you have done shows that you are able to do substantial gainful
activity and are, therefore, no longer disabled.
(5) * * *
(i) You provide us evidence that establishes that you met the
requirements of paragraph (h)(1) of this section as of the date of the
start of your continuing disability review and that the start of the
review was erroneous; and
* * * * *
0
14. Amend Sec. 404.1593 by revising the last sentence of paragraph (a)
to read as follows:
Sec. 404.1593 Medical evidence in continuing disability review cases.
(a) * * * See Sec. 404.1594.
* * * * *
PART 416--SUPPLEMENTAL SECURITY INCOME FOR THE AGED, BLIND, AND
DISABLED
Subpart I--Determining Disability and Blindness
0
15. The authority citation for subpart I of part 416 continues to read
as follows:
Authority: Sec. 221(m), 702(a)(5), 1611, 1614, 1619, 1631(a),
(c), (d)(1), and (p), and 1633 of the Social Security Act (42 U.S.C.
421(m), 902(a)(5), 1382, 1382c, 1382h, 1383(a), (c), (d)(1), and
(p), and 1383b); secs. 4(c) and 5, 6(c)-(e), 14(a), and 15, Pub. L.
98-460, 98 Stat. 1794, 1801, 1802, and 1808 (42 U.S.C. 421 note, 423
note, and 1382h note).
0
16. Amend Sec. 416.990 by:
0
a. Revising paragraph (a);
0
b. Revising the introductory text of paragraph (b), and paragraph
(b)(1);
0
c. Removing paragraph (b)(2);
0
d. Redesignating paragraphs (b)(3) through (b)(10) as (b)(2) through
(b)(9);
0
e. Removing the parenthetical sentence in newly redesignated paragraph
(b)(2);
0
f. Revising newly redesignated paragraph (b)(6);
0
g. Revising paragraph (c);
0
h. Removing paragraph (d);
0
i. Redesignating paragraphs (e) through (i) as paragraphs (d) through
(h);
0
j. Revising the second sentence in newly redesignated paragraph (d);
0
k. Revising newly redesignated paragraphs (e) and (f);
0
l. Revising newly redesignated paragraph (h) by revising the
introductory text of paragraph (h)(1);
[[Page 63600]]
0
m. Revising newly redesignated paragraph (h)(1)(ii);
0
n. Revising the first sentence of newly redesignated paragraph
(h)(2)(i);
0
o. Revising the first sentence of newly redesignated paragraph
(h)(2)(ii);
0
p. Revising the first sentence of newly redesignated paragraph (h)(3);
and
0
q. Revising newly redesignated paragraph (h)(4)(i).
Sec. 416.990. When and how often we will conduct a continuing
disability review.
(a) General. We conduct continuing disability reviews to determine
whether or not you continue to meet the disability or blindness
requirements of the law. Payment ends if the medical or other evidence
shows that you are not disabled or blind as determined under the
standards set out in section 1614(a) of the Social Security Act if you
receive benefits based on disability or Sec. 416.986 of this subpart
if you receive benefits based on blindness. In paragraphs (b) through
(f) of this section, we explain when and how often we conduct
continuing disability reviews for most people. In paragraph (g) of this
section, we explain special rules for some individuals who are
participating in the Ticket to Work program. In paragraph (h) of this
section, we explain special rules for some people who work and have
received social security benefits as well as supplemental security
income payments.
(b) When we will conduct a continuing disability review. Except as
provided in paragraphs (g) and (h) of this section, we will start a
continuing disability review if--
(1) You have been scheduled for one of the following diary reviews:
(i) A medical improvement expected diary review;
(ii) A medical improvement likely diary review;
(iii) A medical improvement possible diary review; or
(iv) A medical improvement not expected diary review;
* * * * *
(6) Your employment network under the Ticket to Work program or
State Vocational Rehabilitation Agency tells us that:
(i) * * *
* * * * *
(c) Definitions. As used in this section--
Medical improvement expected (MIE) diary refers to a diary set for
a case, which we schedule for review because your impairment(s) is
expected to improve. Generally, the MIE diary period is set for not
less than 6 months or for not more than 18 months. We publish and
maintain a list of impairments that we expect to improve in our
employee operating instructions, which are publicly accessible.
Medical improvement likely (MIL) diary refers to a diary set for a
case, which we schedule for review because your impairment(s) is likely
to improve. We also include determinations made at step 5 of the
sequential evaluation process (see Sec. Sec. 416.920(a)(4)(v) and (g)
of this chapter). Generally, the MIL diary period is set for 2 years.
We publish and maintain a list of impairments that we consider likely
to improve in our employee operating instructions, which are publicly
accessible.
Medical improvement possible (MIP) diary refers to a diary set for
a case, which we schedule for review because your impairment(s) will
possibly improve but we cannot determine with certainty that it is
likely to improve. Generally, the MIP diary period is set for 3 years.
We will assign this diary if your impairment(s) is nonpermanent and is
not on the lists of impairments that we publish and maintain for MIE
and MIL diaries.
Medical improvement not expected (MINE) diary refers to a diary set
for a case, which we schedule for review when we consider your
impairment(s) permanent and for which we do not expect medical
improvement in your impairment(s). We may consider the interaction of
your age, consequences of your impairment(s), and lack of recent
attachment to the labor market in determining whether to set a MINE
diary. Generally, the MINE diary period is set for 6 years. We publish
and maintain a list of impairments that we consider permanent in our
employee operating instructions, which are publicly accessible.
Nonpermanent impairment means an impairment that we do not consider
permanent and for which improvement is expected, likely, or possible,
but cannot be predicted based on current experience and the facts of
the particular case. We assign cases with nonpermanent impairments to
one of the following diary categories: MIE, MIL, and MIP.
Permanent impairment means an impairment for which we do not expect
medical improvement. A permanent impairment is an extremely severe
condition determined on the basis of our experience in administering
the disability programs to be at least static, but more likely to be
progressively disabling either by itself or by reason of impairment
complications, and unlikely to improve so as to permit you to engage in
substantial gainful activity, or if you are a child, unlikely to
improve to the point that you will no longer have marked and severe
limitations. Improvement which is considered temporary under Sec.
416.994(b)(2)(iv)(D) or Sec. 416.994a(c)(3) of this subpart, will not
be considered in deciding if an impairment is permanent. We assign
cases with permanent impairments to the MINE diary category.
Vocational reexamination diary refers to a case, which is scheduled
for review at a later date because the individual is undergoing
vocational therapy, training or an educational program which may
improve his or her ability to work so that the disability or blindness
requirement of the law is no longer met. Generally, the diary period
will be set for the length of the training, therapy, or program of
education.
(d) * * * A change in the classification of your impairment may
change the frequency with which we will review your case. * * *
(e) Review after administrative appeal. If you were found eligible
to receive or to continue to receive, disability benefit payments on
the basis of a decision by an administrative law judge, the Appeals
Council or a Federal court, we will not conduct a continuing disability
review earlier than 3 years after that decision unless--
(1) Your case should be scheduled for a MIE, MIL, or vocational
reexamination diary review; or
(2) A question of continuing disability is raised under paragraph
(b) of this section.
(f) Waiver of timeframes. We will review all cases with a
nonpermanent impairment at least once every 3 years unless we, after
consultation with the State agency, determine that the requirement
should be waived to ensure that only the appropriate number of cases
are reviewed. We will base the appropriate number of cases we will
review on such considerations as the number of pending reviews, the
projected number of new applications, and projected staffing levels. We
will grant such waiver only after good faith effort on the part of the
State to meet staffing requirements and to process the reviews on a
timely basis. We may also consider availability of independent medical
resources. A waiver in this context refers to our administrative
discretion to determine the appropriate number of cases to be reviewed
on a State-by-State basis. Therefore, under certain circumstances, we
may delay your continuing disability review longer than 3-years
following our original determination or decision or other review. We
would base the delay on our need to ensure that pending reviews and new
disability claims workloads are
[[Page 63601]]
accomplished within available medical and other resources in the State
agency and that such reviews are done carefully and accurately.
* * * * *
(h) * * *
(1) General. Notwithstanding the provisions in paragraphs (b)(3),
(b)(4), (b)(5)(ii), (b)(6)(ii), and (b)(7)(iii) of this section, we
will not start a continuing disability review based solely on your work
activity if:
* * * * *
(ii) You have received such benefits for at least 24 months (see
paragraph (h)(2) of this section).
(2) * * * (i) The months for which you have actually received
disability insurance benefits as a disabled worker, child's insurance
benefits based on disability, or widow's or widower's insurance
benefits based on disability that you were due under title II of the
Social Security Act, or for which you have constructively received such
benefits, will count for the 24-month requirement under paragraph
(h)(1)(ii) of this section, regardless of whether the months were
consecutive. * * *
(ii) In determining whether paragraph (h)(1) of this section
applies, we consider whether you have received disability insurance
benefits as a disabled worker, child's insurance benefits based on
disability, or widow's or widower's insurance benefits based on
disability under title II of the Social Security Act for at least 24
months as of the date on which we start a continuing disability review.
* * *
(3) When we may start a continuing disability review even if you
have received social security disability benefits for at least 24
months. Even if you meet the requirements of paragraph (h)(1) of this
section, we may still start a continuing disability review for a
reason(s) other than your work activity. * * *
(4) * * *
(i) You provide us evidence that establishes that you met the
requirements of paragraph (h)(1) of this section as of the date of the
start of your continuing disability review and that the start of the
review was erroneous; and
* * * * *
[FR Doc. 2019-24700 Filed 11-15-19; 8:45 am]
BILLING CODE 4191-02-P
