Evidence of Disability

RAILROAD RETIREMENT BOARD <CFR>20 CFR Part 220</CFR> <RIN>RIN 3220-AB71</RIN> <SUBJECT>Evidence of Disability</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Railroad Retirement Board. <HD SOURCE="HED">ACTION:</HD> Proposed rule; request for comments. <SUM> <HD SOURCE="HED">SUMMARY:</HD> 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. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> Submit comments on or before August 20, 2024. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> You may submit comments, identified by RIN 3320-AB71, through any of the following methods: 1. Internet—Send inquiries via email to <E T="03">SecretarytotheBoard@rrb.gov.</E> 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. <E T="03">Caution:</E> 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 information, such as Social Security numbers or medical information. <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Peter J. Orlowicz, Senior Counsel, (312) 751-4922, TTD (312) 751-4701, <E T="03">Peter.Orlowicz@rrb.gov.</E> </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">I. Background Information</HD> 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. <E T="03">Bowers</E> v. <E T="03">Railroad Retirement Board,</E> 922 F.2d 1485, 1488 (D.C. Cir. 1992); <E T="03">Goodwin</E> v. <E T="03">Railroad Retirement Board,</E> 546 F.2d 1169, 1172 (5th Cir. 1977); <E T="03">Romaker</E> v. <E T="03">Railroad Retirement Board,</E> 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. <HD SOURCE="HD1">II. Proposing To Add New Acceptable Medical Sources</HD> 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. 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 matter of administrative convenience and efficiency the RRB could accept a group of records from the Department of Veterans Affairs or from a large multi-physician medical practice without having to request records from each individual medical practitioner participating in a claimant's care. The persuasive weight assigned to evidence received in this way would still be evaluated according to the factors outlined in 20 CFR 220.14 for disability from a claimant's regular railroad occupation and in 20 CFR 220.46 for disability from all regular employment. <HD SOURCE="HD1">III. Clarification of Existing RRB Policy for Evaluating Non ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 19k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━