89 FR 120 pgs. 51990-51993 - Evidence of Disability
Type: PRORULEVolume: 89Number: 120Pages: 51990 - 51993
Pages: 51990, 51991, 51992, 51993FR document: [FR Doc. 2024-13554 Filed 6-20-24; 8:45 am]
Agency: Railroad Retirement Board
Official PDF Version: PDF Version
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RAILROAD RETIREMENT BOARD
20 CFR Part 220
RIN 3220-AB71
Evidence of Disability
AGENCY:
Railroad Retirement Board.
ACTION:
Proposed rule; request for comments.
SUMMARY:
The Railroad Retirement Board (RRB) proposes to amend its regulations to designate additional acceptable medical sources in disability claims under the Railroad Retirement Act. This change recognizes the evolution of how medical care and treatment are delivered and aligns the RRB's acceptable medical sources with recently amended regulations of the Social Security Administration (SSA). Additionally, the changes clarify existing RRB policy regarding how evidence from medical sources, other than those designated as acceptable medical sources, will be evaluated.
DATES:
Submit comments on or before August 20, 2024.
ADDRESSES:
You may submit comments, identified by RIN 3320-AB71, through any of the following methods:
1. Internet-Send inquiries via email to SecretarytotheBoard@rrb.gov.
2. Fax-(312) 751-7102.
3. Mail-Secretary to the Board, Railroad Retirement Board, 844 N Rush Street, Chicago, Illinois 60611-1275.
Do not submit the same comment multiple times or by more than one method. Regardless of which method you choose, please indicate that your comments refer to RIN number 3220-AB71.
[top] Caution: You should be careful to include in your comments only information that you wish to make publicly available as comments are posted without change with any personal information provided. The RRB strongly urges you not to include in your comments any personal
FOR FURTHER INFORMATION CONTACT:
Peter J. Orlowicz, Senior Counsel, (312) 751-4922, TTD (312) 751-4701, Peter.Orlowicz@rrb.gov.
SUPPLEMENTARY INFORMATION:
I. Background Information
The RRB proposes to amend §?220.46 of its regulations to designate additional acceptable medical sources (AMS) in disability claims under the Railroad Retirement Act. Although the RRB will accept and evaluate evidence from any relevant source, including medical sources not designated as an AMS, the RRB requires evidence about a claimant's impairment from an AMS to adjudicate a claim of disability. Currently, AMSs consist of licensed physicians, licensed osteopaths, licensed or certified psychologists, licensed optometrists (for the limited purpose of measuring visual acuity and visual fields), and persons authorized to furnish a copy or summary of the records of a medical facility.
Both the RRB and federal courts have long recognized the equivalence between entitlement to disability insurance benefits under section 223 of the Social Security Act and entitlement to a disability annuity based on inability to engage in any regular employment under section 2(a)(1)(v) of the Railroad Retirement Act. Bowers v. Railroad Retirement Board, 922 F.2d 1485, 1488 (D.C. Cir. 1992); Goodwin v. Railroad Retirement Board, 546 F.2d 1169, 1172 (5th Cir. 1977); Romaker v. Railroad Retirement Board, 733 F.2d 639 (8th Cir. 1984) (collecting cases). As a result, the RRB carefully examines when the SSA modifies its own rules regarding disability claims and medical evidence and may independently adopt SSA's rationales and supporting evidence as equally persuasive when applied to disability under the Railroad Retirement Act.
Additionally, in some instances the RRB must make its own independent determinations whether an individual could currently be entitled to disability insurance benefits under section 223 of the Social Security Act. This is also referred to as establishing a period of disability. These determinations are necessary for the RRB to determine who must be certified to the Commissioner of Social Security as a qualified railroad retirement beneficiary entitled to Medicare hospital insurance benefits under section 7(d)(2) of the Railroad Retirement Act and section 226(a)(2)(B) of the Social Security Act. In these cases, the RRB must apply the regulations of the SSA when making its determination. 20 CFR 220.35. The RRB treats any application for an employee disability annuity under the Railroad Retirement Act as a simultaneous application for a period of disability. 20 CFR 220.36(b)(6)(i). Accordingly, reducing discrepancies between RRB rules and SSA rules regarding evaluation of disability, including in identification of AMSs, reduces the likelihood of disability adjudicator confusion over where the standards differ and promotes consistent outcomes between the RRB and the SSA across the same medical evidence.
II. Proposing To Add New Acceptable Medical Sources
As relevant to the RRB's proposed changes to 20 CFR 220.46, the SSA has revised its rules regarding medical evidence in disability claims under the Social Security Act to expand the list of AMSs who can establish the existence of a medically determinable impairment on two occasions. First, on October 9, 1998, the SSA proposed to revise its regulations to add podiatrists as AMSs for foot impairments or foot and ankle purposes, depending on the scope of practice in the State the podiatrist practices in. The SSA also proposed adding qualified speech-language pathologists as AMSs for speech and language impairments. 63 FR 54417. The rule was finalized on June 1, 2000. 65 FR 4950. Second, on September 9, 2016, the SSA proposed to revise its regulations to add audiologists and Advanced Practice Registered Nurses (a category that includes nurse practitioners) as AMSs. 81 FR 62560. The rule was finalized on January 18, 2017. 82 FR 5844.
The RRB shares the sense of the SSA, as reflected in the supplementary information for their proposed rule on Sep. 9, 2016 (81 FR 62560, 62568), that medical evidence in disability cases is increasingly originating from primary care providers who do not meet the current RRB definition of an AMS due to the evolving ways medical care is being delivered in the United States. For the same reasons identified by the SSA in their October 9, 1998, proposed rule (63 FR 54417), as modified by the responses to comments articulated in the June 1, 2000, final rule (65 FR 34950), and in their September 9, 2016, proposed rule (81 FR 62560, 62568), as modified by the responses to comments articulated in the January 18, 2017, final rule (82 FR 5844, 5845), the RRB proposes to recognize the following medical sources as AMSs:
(1) Licensed or certified school psychologists, or other licensed or certified individuals with another title who performs the same function as a school psychologist in a school setting, for impairments of intellectual disability, learning disabilities, and borderline intellectual functioning only;
(2) Licensed podiatrists, for impairments of the foot or of the foot and ankle, depending on the scope of practice in the State in which the podiatrist practices;
(3) Qualified speech-language pathologists, for speech and language impairments only, and when either licensed by a State professional licensing agency, fully certified by a State education agency where the individual practices, or holding a Certificate of Clinical Competence in Speech-Language Pathology from the American Speech-Language-Hearing Association;
(4) Licensed audiologists, for impairments of hearing loss, auditory processing disorders, and balance disorders when such disorders are within the individual's licensed scope of practice;
(5) Licensed Advanced Practice Registered Nurses or other licensed advance practice nurses with another title, within the individual's scope of practice (this category includes, but is not limited to, Certified Nurse Midwives, Nurse Practitioners, Certified Registered Nurse Anesthetists, and Clinical Nurse Specialists); and
(6) Licensed Physician Assistants, for impairments within the individual's licensed scope of practice.
As articulated in the SSA rulemakings, these medical sources are generally professionally licensed, certified, or otherwise qualified by external authorities to a high and generally consistent level to be considered an AMS for the purposes of evaluating disability claims.
The RRB also seeks to clarify that, consistent with SSA policy, psychologists are required to be licensed at an independent practice level to be considered an AMS, but school psychologists are not subject to this requirement.
[top] Finally, the RRB maintains its existing inclusion of individuals authorized to furnish a copy or summary of the records of a medical facility, when such copy or summary is certified as accurate by the appropriate records custodian or by an authorized employee of the RRB, the SSA, the Department of Veterans Affairs, or a State agency. Under our definitions, AMSs are individuals, not institutions; a medical practice or hospital cannot be an AMS. By permitting authorized records custodians to be treated as AMSs, as a
III. Clarification of Existing RRB Policy for Evaluating Non-AMS Evidence
In its current regulation, the RRB distinguishes between AMS and all other sources, but does not have a separate discussion of non-AMS medical sources. In order to better articulate how the RRB actually evaluates non-AMS medical sources, the RRB proposes to add a new paragraph (b) to 20 CFR 220.46, which adopts the SSA's definition of "medical source" other than the enumerated AMSs in §?220.46(a) and explains that the RRB will continue to accept and consider evidence about a claimant's impairments from non-AMS medical sources, but the presence of a medically determinable impairment must be established with objective evidence from an AMS. This is not a change from current practice since the current regulation at 20 CFR 220.46(e)(3) lists "other practitioners" as a source that the RRB may accept evidence from.
The RRB also proposes to amend its discussion about evidence from treating medical sources to change the nomenclature from "treating physician" to "treating medical source". As discussed in part II above, the RRB acknowledges the increasing frequency of health care being provided by non-physicians. This nomenclature change recognizes this evolution without any substantive change to the way evidence from treating medical sources will be evaluated.
Finally, with the proposed insertion of the discussion of other non-AMS medical sources at 20 CFR 220.46(b), the RRB proposes to delete the mention of other practitioners from 20 CFR 220.46(e) and revise the list of other sources to more closely align with the list of examples in the SSA's regulations. The list of other sources is illustrative only and is non-exclusive, so no substantive change to the scope of other sources is intended by this change.
Regulatory Analysis
Executive Order 12866, as Supplemented by Executive Order 13563
The RRB, with the Office of Management and Budget, has determined that this is not a significant regulatory action under Executive Order 12866, as supplemented by Executive Order 13563. Therefore, no regulatory impact analysis is required.
Executive Order 13132 (Federalism)
This proposed rule will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, the RRB believes that this proposed rule will not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.
Regulatory Flexibility Act
The RRB certifies that this proposed rule would not have a significant economic impact on a substantial number of small entities because the rulemaking affects individuals only. Therefore, a regulatory flexibility analysis is not required under the Regulatory Flexibility Act, as amended.
Paperwork Reduction Act
This proposed rule imposes no reporting or recordkeeping requirements subject to Office of Management and Budget clearance.
List of Subjects in 20 CFR Part 220
Disability benefits, Railroad employees, Railroad retirement.
For the reasons set out in the preamble, the Railroad Retirement Board proposes to amend 20 CFR part 220 as follows:
PART 220-DETERMINING DISABILITY
1. The authority citation for part 220 continues to read as follows:
Authority:
45 U.S.C. 231a; 45 U.S.C. 231f.
2. Amend §?220.46 by:
a. Revising paragraph (a);
b. Redesignating paragraphs (b), (c), (d), and (e) as paragraphs (c), (d), (e), and (f) respectively;
c. Adding new paragraph (b); and
d. Revising newly redesignated paragraphs (e) and (f).
The revisions and addition read as follows:
§?220.46 Medical evidence.
(a) Acceptable medical sources. The Board needs reports about the claimant's impairment(s) from acceptable medical sources. Acceptable medical sources are-
(1) Licensed physicians (medical or osteopathic doctors);
(2) Licensed or certified psychologists at the independent practice level;
(3) Licensed or certified school psychologists, or other licensed or certified individuals with another title who perform the same function as a school psychologist in a school setting (for impairments of intellectual disability, learning disabilities, and borderline intellectual functioning only);
(4) Licensed optometrists (for impairments of visual disorders, or for the measurement of visual acuity and visual fields only, depending on the scope of practice in the State in which the optometrist practices);
(5) Licensed podiatrists (for impairments of the foot only, or foot and ankle only, depending on the scope of practice in the State in which the podiatrist practices);
(6) Qualified speech-language pathologists (for speech or language impairments only.) For this source, qualified means that the speech-language pathologist must be licensed by the State professional licensing agency, or be fully certified by the State education agency in the State in which the speech-language pathologist practices, or hold a Certificate of Clinical Competence in Speech-Language Pathology from the American Speech-Language-Hearing Association;
(7) Licensed audiologists (for impairments of hearing loss, auditory processing disorders, and balance disorders within the licensed scope of practice only);
(8) Licensed Advanced Practice Registered Nurses or other licensed advance practice nurses with another title (for impairments within the individual's licensed scope of practice only);
(9) Licensed Physician Assistants (for impairments within the individual's licensed scope of practice); or
(10) Persons authorized to furnish a copy or summary of the records of a medical facility. Generally, the copy or summary should be certified as accurate by the custodian or by any authorized employee of the Railroad Retirement Board, Social Security Administration, Department of Veterans Affairs, or State agency.
[top] (b) Other medical sources. Individuals who are licensed as healthcare workers by a State and are working within the
(e) Evidence from treating medical sources. A statement by or the opinion of the claimant's treating medical source will not determine whether the claimant is disabled. However, the medical evidence provided by a treating medical source will be considered by the Board in making a disability decision. A treating medical source is a medical source to whom the claimant has been going for treatment on a continuing basis. The claimant may have more than one treating medical source. The Board may use consulting physicians or other medical consultants for specialized examinations or tests, to obtain more complete evidence, and to resolve any conflicts. A consulting physician is a doctor (often a specialist) to whom the claimant is referred for an examination once or on a limited basis. (See §?220.50 for an explanation of when the Board may request a consultative examination.)
(f) Information from non-medical sources. Information from other sources may also help the Board understand how an impairment affects the claimant's ability to work. Other sources include-
(1) Public and private social welfare agency personnel;
(2) Family members, caregivers, friends, and neighbors of the claimant;
(3) Educational personnel such as teachers, counselors, and daycare center workers;
(4) Railroad and nonrailroad employers; and,
(5) The claimant themselves.
Dated: June 14, 2024.
By Authority of the Board.
Stephanie Hillyard,
Secretary to the Board.
[FR Doc. 2024-13554 Filed 6-20-24; 8:45 am]
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