[Federal Register Volume 70, Number 232 (Monday, December 5, 2005)]
[Proposed Rules]
[Pages 72416-72419]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-23615]


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SOCIAL SECURITY ADMINISTRATION

20 CFR Parts 404 and 416

[Regulation Nos. 4 and 16]
RIN 0960-AG19


Continuing Disability Review Failure To Cooperate Process

AGENCY: Social Security Administration.

ACTION: Notice of proposed rulemaking.

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SUMMARY: We propose to amend our regulations to provide that we will 
suspend your disability benefits before we make a determination during 
a continuing disability review (CDR) under title II and title XVI of 
the Social Security Act (the Act) when you fail to comply with our 
request for necessary information. Should you remain non-compliant for 
a period of one year following your suspension, we will then terminate 
your disability benefits. Although our current title XVI regulations 
generally provide for the termination of payments after 12 months of 
suspension, we are proposing to amend our regulations by adding this 
policy to our title II regulations and by restating it in the title XVI 
CDR regulatory provisions.

DATES: To be sure that your comments are considered, we must receive 
them no later than February 3, 2006.

ADDRESSES: You may give us your comments by: using our Internet site 
facility (i.e., Social Security Online) at http://policy.ssa.gov/erm/rules.nsf/Rules+Open+To+Comment or the Federal eRulemaking Portal at 
http://www.regulations.gov; e-mail to [email protected]; by telefax 
to (410) 966-2830; or by letter to the Commissioner of Social Security, 
P.O. Box 17703, Baltimore, MD 21235-7703. You may also deliver them to 
the Office of Regulations, Social Security Administration, 100 Altmeyer 
Building, 6401 Security Boulevard, Baltimore, MD 21235-6401, between 8 
a.m. and 4:30 p.m. on regular business days. Comments are posted on our 
Internet site, at http://policy.ssa.gov/erm/rules.nsf/Rules+Open+To+Comment, 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://www.policy.ssa.gov/erm/rules.nsf/Rules+Open+To+Comment.

FOR FURTHER INFORMATION CONTACT: Don Harvey, Social Insurance 
Specialist, Office of Program Development and Research, Social Security 
Administration, 6401 Security Boulevard, Baltimore, MD 21235-6401, 
(410) 597-1026 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:

Statutory Background

    Sections 221(i) and 1614(a)(3)(H)(ii)(I) of the Act and Sec. Sec.  
404.1589, 416.987 and 416.989 of our regulations require that after we 
find that you are disabled, we evaluate your impairment(s) from time to 
time to determine if you remain disabled. We call this evaluation a 
continuing disability review (CDR). If the medical and other evidence 
shows that you are not disabled under the standards set out in sections 
223(f) and 1614(a)(4) of the Act, we will end the

[[Page 72417]]

payment of cash benefits and terminate your period of disability.
    Section 1614(a)(3)(H)(iii) of the Act and Sec.  416.987 of our 
regulations require that if you are eligible for payments as a child 
under title XVI by reason of disability, we redetermine that 
eligibility during the one-year period beginning on your 18th birthday, 
or, in lieu of a CDR, whenever we determine that your case is subject 
to such a review. We call this evaluation an age-18 redetermination. If 
the medical and other evidence shows that you are not disabled under 
the standards set out in section 1614(a)(3)(A)-(B) of the Act, we will 
end the payment of cash payments and terminate your period of 
disability.
    Sections 223(f) and 1614(a)(4) of the Act provide that, in general, 
if you receive disability benefits under titles II and/or XVI of the 
Act, we may find that you are no longer disabled if substantial 
evidence shows that there has been medical improvement in your 
impairment or combination of impairments, and you are now able to do 
substantial gainful activity. Under title XVI, if you are a child (an 
individual under age 18), substantial evidence must show that there has 
been medical improvement in your impairment or combination of 
impairments, and the impairment(s) must no longer cause marked and 
severe functional limitations. We call this the medical improvement 
review standard (MIRS), and we apply it whenever we do a CDR for an 
adult or child. The statute also provides, however, for several 
exceptions to the ``medical improvement'' requirement where we will not 
apply the MIRS. One of those exceptions to applying the MIRS is the 
situation where you fail, without good cause, to cooperate with us when 
we do a CDR.

Continuing Disability Review and Age-18 Redetermination Processes Under 
Our Current Regulations

    When we begin a CDR or an age-18 redetermination, we notify you 
that we are reviewing your eligibility for disability benefits and 
explain why we are reviewing your eligibility; what standard will 
apply, either the MIRS in a CDR or the initial claims criteria in an 
age-18 redetermination; that our review could result in the termination 
of your benefits; and that you have the right to submit medical and 
other evidence for us to consider during the CDR or the age-18 
redetermination. Before we determine whether you are still disabled, we 
develop a complete medical history covering at least the 12 months 
preceding the date that you complete a report about your continuing 
disability status. If our review shows that we should stop your 
benefits, we notify you in writing and give you the opportunity to 
appeal. (See Sec. Sec.  404.1589 and 416.989 of our regulations.) We 
explain when and how often we will do a CDR in Sec. Sec.  404.1590 and 
404.1591 of our title II regulations and in Sec. Sec.  416.990 and 
416.991 of our title XVI regulations. We explain when we will do an 
age-18 redetermination in Sec.  416.987 of our title XVI regulations.
    When we do a CDR, Sec. Sec.  404.1594(e)(2), 416.987(e)(3), 
416.994(b)(4)(ii) and 416.994a(f)(2) of our regulations set out the 
general principle that is reflected in sections 223(f) and 1614(a)(4) 
of the Act; i.e., that you have the responsibility to cooperate with 
us, or take any required action that we decide is necessary to allow us 
to complete the CDR or age-18 redetermination. If you do not cooperate 
with us, and you do not have good cause as defined in Sec. Sec.  
404.911 and 416.1411 of our regulations for not cooperating, we will 
find that your disability has ended.
    We currently have no provision in our regulations that allows us to 
suspend your benefits under title II of the Act if you fail to 
cooperate with us when we request necessary information during a CDR. 
However, Sec.  416.1322 of our title XVI regulations provides general 
authority that allows us to suspend your payments under title XVI of 
the Act, whenever you fail to cooperate with our requests for 
information, including during a CDR.
    When we suspend your title XVI payments for such failure to 
cooperate under Sec.  416.1322, we follow Sec.  416.714(b) of our 
regulations, which gives you thirty days from the date of our written 
request to comply with the request for information. We also follow 
Sec.  416.1336 of our regulations, which provides that before we 
suspend, reduce, or terminate your title XVI payments, we will give you 
advance notice of our intent and provide you with appeal rights and 
payment continuation rights pending resolution of the appeal. When we 
terminate your title XVI payments due to continuous suspension of 
payments, we follow Sec.  416.1335 of our regulations, which provides 
that we will terminate your eligibility for payments following 12 
consecutive months of payment suspension.

Why Are We Proposing To Revise Our Regulations?

    We are continually exploring ways to improve the disability 
process. These proposed rule changes would allow us to make our rules 
consistent for all beneficiaries under both titles II and XVI, 
implement a more efficient CDR process, encourage beneficiaries to 
cooperate during the CDR process, and make the process less burdensome.
    As a result of the proposed revisions, your failure to cooperate in 
the CDR process would result initially in a suspension rather than a 
termination of benefits based on a determination that you are no longer 
entitled to benefits. To have your benefits resumed, you would only 
have to contact your local Social Security office and provide the 
requested information and you would have up to 12 months to do so. 
Accordingly, you would not have to file an appeal in order to have your 
benefits resumed. In addition, you would not have to request, prepare 
for, and attend a hearing for your benefits to be resumed.

How Are We Proposing To Change Our Regulations?

    We propose to revise Sec. Sec.  404.1587 and 404.1596 of our title 
II regulations and to add new Sec.  416.992 to our title XVI 
regulations. With respect to Sec.  404.1587, we propose to revise the 
title to reflect that your benefits may be terminated as well as 
suspended. In addition, we propose to designate the current paragraph 
as paragraph (a) and add a heading to it. We also propose to add new 
paragraphs (b) and (c). Under proposed Sec.  404.1587(b), we would 
suspend your benefits during a CDR when you do not cooperate with us by 
failing to comply with our written request for any necessary 
information. If you subsequently give us the information that we 
requested, we would reinstate your benefits and continue with the CDR 
process. We would reinstate your benefits for any previous month for 
which they are otherwise payable. Under proposed Sec.  404.1587(c), we 
would terminate your benefits following 12 consecutive months of 
benefit suspension when you fail to comply with our written request for 
any necessary information made during a CDR. This termination would be 
effective with the start of the 13th month after your benefits were 
stopped because you failed to cooperate. You would have the right to 
appeal the termination, but you would not have benefit continuation 
rights.
    Under the proposed revisions to Sec.  404.1596, we would revise the 
title to reflect that your benefits may be terminated as well as 
suspended. We also would remove current paragraphs (c)(1) and (c)(2) 
and add new paragraphs (d) and (e) to explain that we would not make a 
medical determination when you do not cooperate with us by failing to 
comply with our written request for

[[Page 72418]]

any necessary information. We would suspend your benefits only after we 
give you advance notice. (See Sec.  404.1595.) The advance notice would 
tell you what you need to do so that your benefits are not suspended as 
outlined in Sec.  404.1595(b)(3) of our regulations.
    Under the proposed revisions to Sec.  404.1596(d), we are adding 
language to explain that if we suspend your benefits because you fail 
to cooperate and you subsequently give us the information that we 
requested, we would reinstate your benefits and continue with the CDR 
process. We would reinstate your benefits for any previous months for 
which they are otherwise payable.
    With respect to Sec.  404.1596(e), we propose to explain that if we 
suspend your benefits because you do not give us the information that 
we need and you fail to respond during the subsequent 12-month period, 
we would terminate your benefits. The termination would be effective 
with the start of the 13th month after your benefits were stopped 
because you failed to cooperate. You would have the right to appeal the 
termination, but you would not have benefit continuation rights.
    We are proposing to add a new Sec.  416.992 to explain what would 
happen if you fail to comply with our request for information during a 
CDR or age-18 redetermination. We would suspend your payments before we 
make a determination regarding your continuing eligibility for 
disability payments if you fail to comply with our request for 
information for your CDR or age-18 redetermination. We would suspend 
your payments only after we give you advance notice as described in 
Sec.  416.995. The advance notice would tell you what you need to do so 
that your payments are not suspended as outlined in Sec.  416.1336 of 
our regulations. If we suspend your payments because you fail to 
cooperate and you subsequently give us the information that we 
requested, we would reinstate your payments and continue with the CDR 
or age-18 redetermination process. We would reinstate your payments for 
any previous month for which they are otherwise payable. If we suspend 
your payments because you do not give us the information that we need 
and you fail to respond during the subsequent 12-month period, we would 
terminate your payments. The termination would be effective with the 
start of the 13th month after your payments were stopped because you 
failed to cooperate. You would have the right to appeal the 
termination, but you would not have payment continuation rights.

Clarity of These Proposed Rules

    Executive Order (E.O.) 12866, as amended by E.O.13258, requires 
each agency to write all rules in plain language. In addition to your 
substantive comments on these proposed rules, we invite your comments 
on how to make these proposed rules easier to understand. For example:

 Have we organized the material to suit your needs?
 Are the requirements in the rules clearly stated?
 Do the rules contain technical language or jargon that is not 
clear?
 Would a different format (grouping and order of sections, use 
of headings, paragraphing) make the rules easier to understand?
 Would more (but shorter) sections be better?
 Could we improve clarity by adding tables, lists, or diagrams?
 What else could we do to make the rules easier to understand?

Regulatory Procedures

Executive Order 12866

    We have consulted with the Office of Management and Budget (OMB) 
and determined that these proposed rules would meet the criteria for a 
significant regulatory action under E.O. 12866, as amended by E.O. 
13258. Thus they were subject to OMB review.

Regulatory Flexibility Act

    We certify that these proposed rules would not have a significant 
economic impact on a substantial number of small entities because they 
affect only individuals. Thus, a regulatory flexibility analysis as 
provided in the Regulatory Flexibility Act, as amended, is not 
required.

Paperwork Reduction Act

    These proposed regulations impose no reporting requirements subject 
to OMB clearance.

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

    Dated: November 28, 2005.
Jo Anne B. Barnhart,
Commissioner of Social Security.

    For the reasons set out in the preamble, we propose to amend 
subpart P of part 404 and subpart I of part 416 of chapter III of title 
20 of the Code of Federal Regulations, as set forth below:

PART 404--FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE 
(1950-)

Subpart P--[Amended]

    1. The authority citation for subpart P of part 404 continues to 
read as follows:

    Authority: Sections 202, 205(a), (b), and (d)-(h), 216(i), 
(221(a) and (i), 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 (i), 422(c), 423, 425, and 902(a)(5)); section 211(b), 
Pub. L. 104-193, 110 Stat. 2105, 2189.

    2. Section 404.1587 is revised to read as follows:


Sec.  404.1587  Circumstances under which we may suspend and terminate 
your benefits before we make a determination.

    (a) We will suspend your benefits if you are not disabled. We will 
suspend your benefits if all of the information we have clearly shows 
that you are not disabled and we will be unable to complete a 
determination soon enough to prevent us from paying you more monthly 
benefits than you are entitled to. This may occur when you are blind as 
defined in the law and age 55 or older and you have returned to work 
similar to work you previously performed.
    (b) We will suspend your benefits if you fail to comply with our 
request for necessary information. We will suspend your benefits 
effective with the month in which it is determined in accordance with 
Sec.  404.1596(b)(2)(i) that your disability benefits should stop due 
to your failure, without good cause, to comply with our request for 
necessary information. When we have received the information, we will 
continue with the CDR process and reinstate your benefits for any 
previous month for which they are otherwise payable.
    (c) We will terminate your benefits. We will terminate your 
benefits following 12 consecutive months of benefit suspension because 
you did not comply with our request for information

[[Page 72419]]

in accordance with Sec.  404.1596(b)(2)(i). We will count the 12-month 
suspension period from the start of the first month that you stopped 
receiving benefits (see paragraph (b) of this section). This 
termination is effective with the start of the 13th month after the 
suspension began because you failed to cooperate.
    3. Section 404.1596 is amended by revising the section heading, 
removing paragraphs (c)(1) and (c)(2), redesignating paragraphs (c)(3) 
and (c)(4) as paragraphs (c)(1) and (c)(2), and adding new paragraphs 
(d) and (e) to read as follows:


Sec.  404.1596  Circumstances under which we may suspend and terminate 
your benefits before we make a determination.

* * * * *
    (d) When the suspension is effective. We will suspend your benefits 
effective with the month in which it is determined in accordance with 
Sec.  404.1596(b)(2)(i) that your disability benefits should stop due 
to your failure, without good cause, to comply with our request for 
necessary information for your continuing disability review. This 
review is to determine whether or not you continue to meet the 
disability requirements of the law. When we have received the 
information, we will continue with the CDR process and reinstate your 
benefits for any previous month for which they are otherwise payable.
    (e) When we will terminate your benefits. We will terminate your 
benefits following 12 consecutive months of benefit suspension because 
you did not comply with our request for information in accordance with 
Sec.  404.1596(b)(2)(i). We will count the 12-month suspension period 
from the start of the first month that you stopped receiving benefits 
(see paragraph (d) of this section). This termination is effective with 
the start of the 13th month after the suspension began because you 
failed to cooperate.

PART 416--SUPPLEMENTAL SECURITY INCOME FOR THE AGED, BLIND, AND 
DISABLED

Subpart I--[Amended]

    4. The authority citation for subpart I of part 416 continues to 
read as follows:

    Authority: Sections 702(a)(5), 1611, 1614, 1619, 1631(a), (c), 
and (d)(1), and 1633 of the Social Security Act (42 U.S.C. 
902(a)(5), 1382, 1382c, 1382h, 1383(a), (c), and (d)(1), and 
1383(b); 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, 1382h 
note).

    5. Section 416.992 is added to read as follows:


Sec.  416.992  What happens if you fail to comply with our request for 
information.

    We will suspend your payments before we make a determination 
regarding your continued eligibility for disability payments if you 
fail to comply with our request for information for your continuing 
disability review or age-18 redetermination. The suspension is 
effective with the month in which it is determined in accordance with 
Sec.  416.1322 that your eligibility for disability payments has ended 
due to your failure to comply with our request for necessary 
information. When we have received the information, we will continue 
with the CDR or age-18 redetermination process, and reinstate your 
payments for any previous month for which they are otherwise payable. 
We will terminate your eligibility for payments following 12 
consecutive months of payment suspension as discussed in Sec.  
416.1335.

[FR Doc. 05-23615 Filed 12-2-05; 8:45 am]
BILLING CODE 4191-02-P