SSA - Advance notice of proposed rulemaking on hearing impairments ( 1 of 3 )

[Nesmuth]

I think it's something many of you maybe missed.

Richard

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[Federal Register: April 13, 2005 (Volume 70, Number 70)]
[Proposed Rules]
[Page 19353-19356]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13ap05-31]

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SOCIAL SECURITY ADMINISTRATION

20 CFR Parts 404 and 416

[Regulation Nos. 4 and 16]
RIN 0960-AG20


Revised Medical Criteria for Evaluating Hearing Impairments and
Disturbance of Labyrinthine-Vestibular Function

AGENCY: Social Security Administration.

ACTION: Advance notice of proposed rulemaking.

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SUMMARY: We are planning to update and revise the rules we use to
evaluate hearing impairments and disturbance of labyrinthine-vestibular
function of adults and children who apply for, or receive, disability
benefits under title II and Supplemental Security Income (SSI) payments
based on disability under title XVI of the Social Security Act (the
Act). The rules we plan on revising are in sections 2.00 and 102.00 in
the Listing of Impairments in appendix 1 to subpart P of part 404 of
our regulations (the listings). We invite you to send us comments and
suggestions for updating and revising these rules.
After we have considered your comments and suggestions, as well as
information about advances in medical knowledge, treatment, and methods
of evaluating hearing impairments and disturbance of labyrinthine-
vestibular function, and our program experience, we intend to publish
for public comment a Notice of Proposed Rulemaking (NPRM) that will
propose specific revisions to the rules.
As part of our long-term planning for the disability programs, we
are also interested in your ideas for how we may be able to improve our
programs for people who have hearing impairments or disturbance of
labyrinthine-vestibular function, especially those who would like to
work.

DATES: To be sure your comments are considered, we must receive them by
June 13, 2005.

[[Page 19354]]


ADDRESSES: You may give us your comments by: using our Internet site
facility (i.e., Social Security Online) at http://policy.ssa.gov/pnpublic.nsf/LawsRegs, or the Federal eRulemaking Portal at http://www.regulations.gov
; e-mail to regulations@ssa.gov; telefax to (410)

966-2830; or letter to the Commissioner of Social Security, P.O. Box
17703, Baltimore, Maryland 21235-7703. You may also deliver them to the
Office of Regulations, Social Security Administration, 107 Altmeyer
Building, 6401 Security Boulevard, Baltimore, Maryland 21235-6401,
between 8 a.m. and 4:30 p.m. on regular business days. Comments are
posted in our Internet site at http://policy.ssa.gov/pnpublic.nsf/LawsRegs
, or you may inspect them on regular business days by making

arrangements with the contact person shown in this preamble.
Electronic Version: The electronic file of this document is
available on the date of publication in the Federal Register at http://www.gpoaccess.gov/fr/index.html.
It is also available on the Internet

site for SSA (i.e., Social Security Online) at http://policy.ssa.gov/pnpublic.nsf/LawsRegs
.


FOR FURTHER INFORMATION CONTACT: Robert J. Augustine, Social Insurance
Specialist, Office of Regulations, Social Security Administration, 107
Altmeyer Building, 6401 Security Boulevard, Baltimore, Maryland 21235-
6401, (410) 965-0020 or TTY (410) 966-5609. 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 Web site,
Social Security Online, at http://www.socialsecurity.gov.


SUPPLEMENTARY INFORMATION:

What Is the Purpose of This Notice?

We are planning to update and revise the rules that we use to
evaluate hearing impairments and disturbance of labyrinthine-vestibular
function of adults and children who apply for, or receive, disability
benefits under title II and Supplemental Security Income (SSI) payments
based on disability under title XVI of the Act. The purpose of this
notice is to give you an opportunity to send us comments and
suggestions for updating and revising those rules as we begin the
rulemaking process. We are also asking for your comments and ideas
about how we can improve our disability programs in the future for
people with hearing impairments or disturbance of labyrinthine-
vestibular function.

Who Should Send Us Comments and Suggestions?

We invite comments and suggestions from anyone who has an interest
in the rules we use to evaluate claims for benefits filed by people who
have hearing impairments or disturbance of labyrinthine-vestibular
function. We are interested in getting comments and suggestions from
people who apply for or receive benefits from us, members of the
general public, advocates and organizations who advocate for people who
have hearing impairments or disturbance of labyrinthine-vestibular
function, experts in the evaluation of hearing impairment or
disturbance of labyrinthine-vestibular function, researchers, people
who make disability determinations and decisions for us, and any other
individuals who may have ideas for us to consider.

Will We Respond to Your Comments From This Notice?

No, we will not respond directly to comments you send us because of
this notice. However, after we consider your comments in response to
this notice, along with other information, such as results of current
medical research and our program experience, we will decide how to
revise the rules we use to evaluate hearing impairments and disturbance
of labyrinthine-vestibular function. When we propose specific revisions
to the rules, we will publish an NPRM in the Federal Register. In
accordance with the usual rulemaking procedures we follow, you will
have a chance to comment on the revisions we propose when we publish
the NPRM, and we will summarize and respond to the significant comments
on the NPRM in the preamble to any final rules.

( Continued )

 

[Nesmuth]

SSA - Advance notice of proposed rulemaking on hearing impairments ( 2 of 3 )

Which Rules Are We Considering for Updating and Revision?

We are considering for updating and revision the listings for
hearing impairments in sections 2.00 and 102.00 and the listing for
disturbance of labyrinthine-vestibular function in section 2.00.
Sections 2.00 and 102.00 contain the listings for special senses and
speech for adults (Part A, 2.00) and children (Part B, 102.00). Section
2.00 also has listings for disorders of vision and loss of speech.
Section 102.00 also has a listing for disorders of vision. We are not
asking for comments on the listings for disorders of vision or loss of
speech in this notice. We intend to publish separately proposed rules
that would update the criteria for those disorders.

Where Can You Find These Rules on the Internet?

You can find these rules on our Internet site at these locations:
Sections 2.00 and 102.00 are in the Listing of Impairments
in appendix 1 to subpart P of part 404 of our regulations at http://www.ssa.gov/OP_Home/cfr20/404/404-ap10.htm
.

You can also look up sections 2.00 and 102.00 of the
listings at http://www.ssa.gov/disability/professionals/bluebook/.

If you do not have Internet access, you can find the Code
of Federal Regulations in some public libraries, Federal depository
libraries, and public law libraries.

Why Are We Updating and Revising Our Rules for Evaluating Hearing
Impairments and Disturbance of Labyrinthine-Vestibular Function?

We last published final rules making comprehensive revisions to the
part A listings for evaluating hearing impairments and disturbance of
labyrinthine-vestibular function on March 27, 1979 (44 FR 18170). We
last published final rules making comprehensive revisions to the part B
listings for evaluating hearing impairments on March 16, 1977 (42 FR
14705). On April 24, 2002, we made a technical revision to the
introductory text in section 2.00B2, ``Vertigo associated with
disturbances of labyrinthine-vestibular function, including Meniere's
disease,'' to incorporate imaging techniques other than x-rays (67 FR
20018). However, we have not comprehensively revised the part A rules
since 1979 or the part B rules since 1977.
The current listings for hearing impairments for adults (2.00) and
children (102.00), and the current listing for disturbance of
labyrinthine-vestibular function for adults (2.00), will no longer be
effective on July 1, 2005, unless we extend them or revise and
promulgate them again.

What Should You Comment About?

We are interested in any comments and suggestions you have about
the listings for hearing impairments and disturbance of labyrinthine-
vestibular function in sections 2.00 and 102.00 of our listings. For
example, with regard to our listings, we are interested in knowing if:
You think we should continue to have these listings, but
you have concerns about the current listings; such as whether you think
we should change any of our medical criteria or whether you think the
listings are difficult to use or understand.

[[Page 19355]]

You would like to see these listings include something
that they do not include now; such as separate criteria for individuals
who have had cochlear implants, or a listing for disturbance of
labyrinthine-vestibular function for children.
In addition to your comments about our regulations, we are also
interested in any ideas you have about how the disability requirements
of the Act and our regulations affect people who have hearing
impairments or disturbance of vestibular-labyrinthine function,
especially those who would like to work, full-time or part-time, with
supports. Your ideas can address our existing rules and regulations or
suggest changes to the law. For example, we know that many people who
have disturbance of labyrinthine-vestibular function might not need
benefits from us if they could get treatment before their disease or
injury makes them unable to work. Others may be unable to work but may
not need to stay out of work indefinitely if they could get treatment
or other interventions. Many people with permanent impairments can work
if they have a supporting safety net (including title II disability
benefits and SSI payments). Work can also be therapeutic for some
people. Although the Act and our regulations include some access to
health care through Medicare and Medicaid, some provisions for
vocational rehabilitation, and a number of work incentives, these
provisions are generally for people who already qualify for benefits
under our disability programs.
We will consider your ideas as we develop the NPRM we intend to
publish for public comment, and, where applicable, as part of our long-
term planning for the disability program.

What Other Information Will We Consider?

We will also be considering information from other sources,
including the following recent documents, for relevance to our policy
for evaluating hearing impairments or disturbances of labyrinthine-
vestibular impairments.
National Research Council, Committee on Disability
Determinations for Individuals with Hearing Impairments. Hearing Loss:
Determining Eligibility for Social Security Benefits. Washington DC:
The National Academies Press, 2004 (available at http://www.nap.edu/catalog/11099.html
).

David C. Dale and Daniel D. Federman, eds. ``Neurology.''
ACP Medicine (2004), Elliot M. Frohman, New York: WebMD Professional
Publishing, 2004.
Michael Cunningham and Edward O. Cox. ``Hearing Assessment
in Infants and Children: Recommendations Beyond Neonatal Screening.''
Pediatrics, 111(2), February 2003:436-440.
Joint Committee on Infant Hearing. ``Year 2000 Position
Statement: Principles and Guidelines for Early Hearing Detection and
Intervention Programs.'' Pediatrics, 106(4), October 2000:798-817.
American Speech-Language Hearing Association (2004).
Guidelines for the Audiologic Assessment of Children from Birth to 5
Years of Age [Guidelines]. (Available at http://www.asha.org/members/deskref-journals/deskref/default
.

Other Information:

Who Can Get Disability Benefits?

Under title II of the Act, we provide for the payment of disability
benefits if you are disabled and belong to one of the following three
groups:
Workers insured under the Act,
Children of insured workers, and
Widows, widowers, and surviving divorced spouses (see
Sec. 404.336) of insured workers.
Under title XVI of the Act, we provide for Supplemental Security
Income (SSI) payments on the basis of disability if you are disabled
and have limited income and resources.

( Continued )

 

[Nesmuth]

SSA - Advance notice of proposed rulemaking on hearing impairments ( 3 of 3 )

How Do We Define Disability?

Under both the title II and title XVI programs, disability must be
the result of any medically determinable physical or mental impairment
or combination of impairments that is expected to result in death or
which has lasted or is expected to last for a continuous period of at
least 12 months. Our definitions of disability are shown in the
following table:

------------------------------------------------------------------------
disability
meansyou have a
medically
determinable
If you file a claim under . . . and you are . . . impairment(s) as
described above
and that results
in . . .
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title II........................ an adult or child. the inability to
do any
substantial
gainful activity
(SGA).
title XVI....................... a person age 18 or the inability to
older. do any SGA.
title XVI....................... a person under age marked and severe
18. functional
limitations.
------------------------------------------------------------------------

How Do We Decide Whether You Are Disabled?

If you are seeking benefits under title II of the Act, or if you
are an adult seeking benefits under title XVI of the Act, we use a
five-step ``sequential evaluation process'' to decide whether you are
disabled. We describe this five-step process in our regulations at
Sec. Sec. 404.1520 and 416.920. We follow the five steps in order and
stop as soon as we can make a determination or decision. The steps are:
1. Are you working, and is the work you are doing substantial
gainful activity? If you are working and the work you are doing is
substantial gainful activity, we will find that you are not disabled,
regardless of your medical condition or your age, education, and work
experience. If you are not, we will go on to step 2.
2. Do you have a ``severe'' impairment? If you do not have an
impairment or combination of impairments that significantly limits your
physical or mental ability to do basic work activities, we will find
that you are not disabled. If you do, we will go on to step 3.
3. Do you have an impairment(s) that meets or medically equals the
severity of an impairment in the listings? If you do, and the
impairment(s) meets the duration requirement, we will find that you are
disabled. If you do not, we will go on to step 4.
4. Do you have the residual functional capacity to do your past
relevant work? If you do, we will find that you are not disabled. If
you do not, we will go on to step 5.
5. Does your impairment(s) prevent you from doing any other work
that exists in significant numbers in the national economy, considering
your residual functional capacity, age, education, and work experience?
If it does, and it meets the duration requirement, we will find that
you are disabled. If it does not, we will find that you are not
disabled.
We use a different sequential evaluation process for children who
apply for payments based on disability under title XVI of the Act. We
describe that sequential evaluation process in Sec. 416.924 of our
regulations.
If you are already receiving benefits, we also use a different
sequential evaluation process when we decide whether your disability
continues. See Sec. Sec. 404.1594, 416.994, and 416.994a of our
regulations. All of the sequential evaluation processes, however,
include steps at which we consider whether your impairment(s) meets or
medically equals one of our listings.

[[Page 19356]]

What Are the Listings?

The listings are examples of impairments that we consider severe
enough to prevent you as an adult from doing any gainful activity. If
you are a child seeking SSI payments based on disability, the listings
describe impairments that we consider severe enough to result in marked
and severe functional limitations. Although the listings are contained
only in appendix 1 to subpart P of part 404 of our regulations, we
incorporate them by reference in the SSI program in Sec. 416.925 of
our regulations, and apply them to claims under both title II and title
XVI of the Act.

How Do We Use the Listings?

The listings are in two parts. There are listings for adults (part
A) and for children (part B). If you are a person age 18 or over, we
apply the listings in part A when we assess your claim, and we never
use the listings in part B.
If you are a person under age 18, we first use the criteria in part
B of the listings. If the listings in part B do not apply, and the
specific disease process(es) has a similar effect on adults and
children, we then use the criteria in part A. (See Sec. Sec. 404.1525
and 416.925.)
If your impairment(s) does not meet any listing, we will also
consider whether it medically equals any listing; that is, whether it
is as medically severe. (See Sec. Sec. 404.1526 and 416.926.)

What If You Do Not Have an Impairment(s) That Meets or Medically Equals
a Listing?

We use the listings only to decide that you are disabled or that
you are still disabled. We will never deny your claim or decide that
you no longer qualify for benefits because your impairment(s) does not
meet or medically equal a listing. If you have a severe impairment(s)
that does not meet or medically equal any listing, we may still find
you disabled based on other rules in the ``sequential evaluation
process'' described above. Likewise, we will not decide that your
disability has ended only because your impairment(s) does not meet or
medically equal a listing.

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, Aged, Blind, Disability
benefits, Public assistance programs, Reporting and recordkeeping
requirements, Supplemental Security Income (SSI).

Dated: March 21, 2005.
Jo Anne B. Barnhart,
Commissioner of Social Security.
[FR Doc. 05-7355 Filed 4-12-05; 8:45 am]

BILLING CODE 4191-02-P