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6416 Federal Register / Vol. 62, No. 28 / Tuesday, February 11, 1997 / Rules and Regulationsrules (discussed in detail in paragraph(b)(2)) is to consider whether theimpairment(s) that we considered at thetime of our most recent favorabledetermination or decision still meets, oris still equivalent in severity to, thelisting that it met or was equivalent inseverity to at that time, as that listingthen appeared, even if that listing hassince been revised or removed from theListing. If that impairment(s) would stillmeet or equal in severity that listing, wewill find the child still disabled, subjectto certain exceptions discussed inparagraphs (e) and (f) of this section anddiscussed below.If that impairment(s) would not nowmeet or equal in severity that listing, wewill then consider whether the child iscurrently disabled, taking into accountall current impairments, including anythe child did not have or that we did notconsider at the time of our most recentfavorable determination or decision.At this step (discussed in detail inparagraph (b)(3)), we first considerwhether the child has a severeimpairment or combination ofimpairments considering all currentimpairments. If the child does not, wewill find the child not disabled. If so,we then consider whether the child’scurrent impairment(s) meets, or ismedically equivalent or functionallyequivalent in severity to, any listing inthe Listing of Impairments. If so, thechild continues to be disabled; if not,the child is not disabled.We will not always follow these stepsin order. In final paragraph (b), weadded language explaining that we mayskip steps in the sequence if it is clearthis would lead to a more promptfinding that disability continues. Wewill not skip any steps unless it is clearthat a continuance will result. Forexample, we might not consider theissue of medical improvement if it isobvious on the face of the evidence thata current impairment meets the severityof a listed impairment.Final paragraph (c) discussed what wemean by ‘‘medical improvement’’; i.e.,any decrease in the severity of themedical impairment(s) which waspresent at the time of our most recentfavorable determination or decision.This paragraph is largely the sameunder our prior rules, but we haveadded language to make it clear that wewill disregard minor changes in theindividual’s signs, symptoms, andlaboratory findings that obviously donot represent medical improvement andcould not result in a finding that theindividual’s disability has ended. Thisis a longstanding procedure we haveused in cases in which there istechnically medical improvementbecause there is some very slightimprovement in a sign, symptom, orlaboratory finding (e.g., a change in IQfrom 61 to 62) but it is clear that theoutcome will not change.Final paragraph (d), largelyunchanged from prior paragraph (e),explains what we will do if we cannotfind the prior file. First, we willdetermine whether the child is currentlydisabled. If not, we will decide whetherto attempt reconstruction of thoseportions of the missing file that wererelevant to our most recent favorabledetermination or decision, so as to allowa decision whether there has beenmedical improvement since that time. Ifwe do not or cannot reconstruct the file,we will not find medical improvement.Paragraph (e) concerns ‘‘the firstgroup of exceptions to medicalimprovement.’’ The law provideslimited situations in which disabilitycan be found to have ended even thoughmedical improvement has not occurred,if the child’s impairment(s) no longerresults in marked and severe functionallimitations. Two of the exceptions inour prior rules—the ‘‘advances inmedical or vocational therapy ortechnology’’ exception and the‘‘vocational therapy’’ exception—havebeen limited by Public Law 104–193 toindividuals who have attained age 18.The third exception is still applicable: Achild’s disability may be found to haveceased if substantial evidence showsthat, based on new or improveddiagnostic techniques or evaluations,the child’s impairment(s) is not asdisabling as it was considered to be atthe time of the most recent favorabledetermination or decision. We haverevised this exception to conform to thenew definition of disability for children.Final paragraph (f), largely unchangedfrom prior paragraph (g), concerns ‘‘thesecond group of exceptions to medicalimprovement.’’ These exceptionsinclude such issues as fraud and failureto cooperate in obtaining evidence. Ifone of these exceptions applies, we mayfind that disability ceases withoutfinding medical improvement or thatthe child is currently disabled. We haverevised the language concerning theseexceptions to conform to the newdefinition of disability for children.Final paragraph (g) (prior paragraph(h)) concerns the month we will find achild no longer disabled. We revised thelanguage slightly to conform to the newdefinition of disability for children.Final paragraph (h) (prior paragraph,(i)) provides that, before we stopbenefits, we will provide an opportunityfor an appeal, and gives a reference tothe rules on appeals; it is unchangedfrom our prior rules.Final paragraph (i) is new; itimplements provisions in Public Law104–193 requiring that, if a child has arepresentative payee, that payee mustpresent evidence at the time of a CDRshowing that the child is and has beenreceiving treatment to the extentconsidered medically necessary andavailable for the condition(s) that wasthe basis for providing SSI benefits,unless we determine such evidencewould be inappropriate or unnecessary,considering the nature of the child’simpairment(s). If the payee refuseswithout good cause to provide evidence,and it is in the best interests of thechild, we will determine if anotherpayee should be selected or if the childshould receive benefits directly.In paragraph (i)(1), we explain that‘‘medically necessary’’ treatment meanstreatment that is expected to improve orrestore the individual’s functioning andthat was prescribed by a ‘‘treatingsource’’ as defined in § 416.902. If thechild does not have a treating source,we will decide whether there ismedically necessary treatment thatcould have been prescribed by a treatingsource. In paragraph (i)(2), we list somefactors we will consider in evaluatingwhether medically necessary treatmentis available; e.g., the location ofinstitutions or facilities that couldprovide treatment, the availability andcost of transportation to such places, theavailability of local communityresources that would provide freetreatment.In paragraph (i)(3), we explain that wewill not require a payee to show proofof treatment if we decide that thedisabling impairment(s) is not amenableto treatment. In paragraph (i)(4), weexplain that if the representative payeerefuses without good cause to provideevidence of treatment, we will, if it is inthe child’s best interests, remove thepayee and determine if another payeeshould be selected or if the child shouldreceive benefits directly. We furtherexplain that when we consider whethera representative payee had good cause,we will consider factors such as theacceptable reasons for failure to followprescribed treatment in § 416.930(c) andother factors similar to those describinggood cause for missing deadlines in§ 416.1411.Finally, in paragraph (i)(5) we explainthat the requirements of paragraph (i) donot apply to a child who is receiving SSIpayments directly. This is because thetreatment provision in Public Law 104–193 applies only to children who haverepresentative payees. However, wehave also included a reminder that thefailure-to-follow-prescribed-treatmentrules in § 416.930 continue to apply to
Federal Register / Vol. 62, No. 28 / Tuesday, February 11, 1997 / Rules and Regulations6417children who do not have representativepayees.Other ChangesSections that have been changed onlyso that their language will conform tothe new definition of disability forchildren, or to provide references tonew or revised rules, include listingssections 103.00, 104.00, 112.00, and114.00, and §§ 416.901, 416.912,416.913, and 416.919a.Electronic VersionThe electronic file of this document isavailable on the Federal Bulletin Board(FBB) at 9:00 A.M. on the date ofpublication in the Federal Register. Todownload the file, modem dial (202)512–1387. The FBB instructions willexplain how to download the file andthe fee. This file is in WordPerfect andwill remain on the FBB during thecomment period.Regulatory ProceduresPursuant to section 702(a)(5) of theAct, 42 U.S.C. 902(a)(5), the SocialSecurity Administration follows theAdministrative Procedure Act (APA)rulemaking procedures specified in 5U.S.C. 553 in the development of itsregulations. The APA providesexceptions to its Notice of ProposedRulemaking (NPRM) procedures whenan agency finds that there is good causefor dispensing with such procedures onthe basis that they are impracticable,unnecessary, or contrary to the publicinterest. In the case of these interimfinal rules, we have determined thatunder 5 U.S.C. 553(b)(B), good causeexists for waiving the NPRMprocedures.Public Law 104–193 was signed intolaw on August 22, 1996. Sections 211and 212 of the law were effective uponenactment (or with respect to benefitsfor months beginning on or afterenactment) without regard to whetherregulations have been issued. Inaddition, section 215 requires theCommissioner to issue regulationsnecessary to carry out the amendmentsmade by sections 211 and 212, whichare the subject of these interim finalrules, within 3 months after the date ofenactment. Accordingly, to issue theserules as an NPRM would have delayedissuance of final rules until well past 3months after enactment.In light of the Congressional mandatethat we issue regulations needed tocarry out these statutory provisions asexpeditiously as possible (see H.R. Rep.No. 651, 104th Cong., 2d Sess. 1392(1996), reprinted in 1996 U.S. Code,Cong. and Ad. News 2183, 2451), webelieve good cause exists for waiver ofthe NPRM procedures under the APAsince issuance of proposed rules wouldbe impracticable and contrary toCongressional intent. In light of theshort statutory deadline in which toprescribe regulations under section 215of Public Law 104–193, we find that useof the NPRM process is impracticable.Moreover, some of the changes in theserules are technical ones to conform ourrules to the new definition of disabilityfor children. The technical changesmade by these rules are minor and donot represent discretionary policy.Accordingly, we find that prior noticeand comment are unnecessary withrespect to these rules. However, eventhough we are issuing these rules asinterim final regulations, we arerequesting public comments and willissue revised rules if necessary.Executive Order 12866These interim final rules reflect andimplement the disability provisions ofsections 211 and 212 of Public law 104–193. This is a major rule as defined insection 251 of Public Law 104–121, 5U.S.C. 804. The <strong>Office</strong> of Managementand Budget (OMB) has reviewed theseinterim final rules and determined thatthey meet the criteria for a significantregulatory action under Executive Order12866. Therefore, we prepared andsubmitted to OMB, separately fromthese interim final rules, an assessmentof the potential costs and benefits of thisregulatory action. This assessment isavailable for review by members of thepublic.The potential costs and benefits forthe policies reflected in these interimfinal rules follow:Program SavingsIt is estimated that due to the legislation there would be reduced program outlays resulting in the following savings(in millions of dollars) to the SSI program (over $4.7 billion total in a 6-year period):FY1997 FY1998 FY1999 FY2000 FY2001 FY2002 Total¥$120 ¥$715 ¥$945 ¥$1,075 ¥$905 ¥$1,010 ¥$4,775This is the amount we expect to spend (in millions of dollars) on SSI childhood disability benefits:FY1997 FY1998 FY1999 FY2000 FY2001 FY2002 Total$5,425 $5,285 $5,475 $6,300 $5,715 $6,505 $34,705Note: Annual numbers may not add to total due to rounding.It is also estimated that there will be reduced Medicaid program outlays (Federal share) resulting in the followingsavings (in millions of dollars) over a 6-year period:FY1997 FY1998 FY1999 FY2000 FY2001 FY2002 Total¥10 ¥85 ¥110 ¥125 ¥125 ¥135 ¥590There will also be reduced Medicaid program outlays for States.Administrative Costs and SavingsThe administrative cost of conducting the medical redeterminations of the children who might be affected by thenew childhood disability standards is expected to be $185 million in FY 1997 and $130 million in FY 1998. Forthis regulation, the administrative cost of redetermining disability in SSI childhood recipients is assumed to be sameas the cost of a full medical CDR for these individuals, including the additional appellate costs.From FYs 1999–2002, the ongoing Federal workyear savings are from fewer recipients on the rolls, i.e., from thosechildren currently receiving benefits who will be terminated and from those children who will be denied under the
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