[Federal Register Volume 71, Number 40 (Wednesday, March 1, 2006)]
[Proposed Rules]
[Pages 10456-10459]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-2852]


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SOCIAL SECURITY ADMINISTRATION

20 CFR Parts 404 and 416

[Regulation Nos. 4 and 16]
RIN 0960-AG05


Optometrists as Acceptable Medical Sources to Establish a 
Medically Determinable Impairment

AGENCY: Social Security Administration.

ACTION: Notice of proposed rulemaking.

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SUMMARY: We propose to revise the Social Security and Supplemental 
Security Income (SSI) disability regulations regarding sources of 
evidence for establishing a medically determinable impairment under 
titles II and XVI of the Social Security Act (the Act). The revised 
regulations would expand the situations in which we consider licensed 
optometrists to be ``acceptable medical sources''.

DATES: To be sure that your comments are considered, we must receive 
them by May 1, 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]; telefax to 
(410) 966-2830; or letter to the Commissioner of Social Security, P.O. 
Box 17703, Baltimore, MD 21235-7703. You may also deliver them to the 
Office of

[[Page 10457]]

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://policy.ssa.gov/erm/rules.nsf/Rules+Open+To+Comment.

FOR FURTHER INFORMATION CONTACT: Rosemarie A. Greenwald, Social 
Insurance Specialist, Social Security Administration, 100 Altmeyer 
Building, 6401 Security Boulevard, Baltimore, MD 21235-6401, (410) 966-
7813 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 an ``acceptable medical source''?

    Our rules provide that you must show that you have a medically 
determinable impairment with evidence from an acceptable medical 
source. An acceptable medical source is an individual who has the 
training and expertise to provide us with the signs and laboratory 
findings based on medically acceptable clinical and laboratory 
diagnostic techniques that establish a medically determinable physical 
or mental impairment. Our regulations identify professionals whom we 
consider to be acceptable medical sources. (See Sec. Sec.  404.1513(a) 
and 416.913(a).) They are:
     Licensed physicians (medical or osteopathic doctors);
     Licensed or certified psychologists. Included are school 
psychologists, or other licensed or certified individuals with other 
titles who perform the same function as a school psychologist in a 
school setting, for purposes of establishing mental retardation, 
learning disabilities, and borderline intellectual functioning only;
     Licensed optometrists, for the measurement of visual 
acuity and visual fields (for claims under title II, we may need a 
report from a physician to determine other aspects of eye diseases);
     Licensed podiatrists, for purposes of establishing 
impairments of the foot, or foot and ankle only, depending on whether 
the State in which the podiatrist practices permits the practice of 
podiatry on the foot only, or the foot and ankle;
     Qualified speech-language pathologists, for purposes of 
establishing speech or language impairments only.
    Our current rules in Sec. Sec.  404.1513(d) and 416.913(d) provide 
that, once we have established that you have a medically determinable 
impairment, we consider all other relevant evidence from other medical 
and non-medical sources, including your own statements, to determine 
its severity and how it affects you.

Why are we proposing to change our rules?

    As medical science changes, it is our duty to review our policies 
and make appropriate revisions. In the early 1990s, we discussed 
expanding the role of optometrists as acceptable medical sources with 
the American Optometric Association (AOA). However, because licensing 
regulations varied considerably among jurisdictions at that time, we 
found that it was not feasible for us to revise our policy.
    Recently, we met with representatives of the AOA again and obtained 
information about the education, qualifications, and state scope-of-
practice laws related to optometrists. Based on our review of 
accreditation requirements and practice guidelines, we have determined 
that, with the exception of the U.S. Virgin Islands, the licensing 
requirements, scope of treatment, and diagnostic protocols for licensed 
optometrists are sufficient to qualify virtually all licensed 
optometrists as acceptable medical sources for visual disorders. 
Therefore, we believe it is now appropriate to propose to revise our 
regulations to authorize licensed optometrists as acceptable medical 
sources for visual disorders in all jurisdictions but the U.S. Virgin 
Islands.\1\
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    \1\ The U.S. Virgin Islands do not allow optometrists to 
administer or prescribe pharmaceuticals, including topical 
application of pharmaceuticals for diagnostic or treatment purposes. 
Because a complete evaluation of the eye includes the use of 
diagnostic pharmaceuticals, optometrists in the U.S. Virgin Islands 
are not qualified to perform a complete evaluation of the eye.
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Why was this solution chosen?

    The revised regulations would expand the situations in which we 
consider licensed optometrists to be ``acceptable medical sources''. We 
would be able to make more decisions based on medical evidence of 
record, rather than having to purchase time-consuming and expensive 
consultative examinations. Therefore, these regulations would help some 
individuals with visual disorders qualify for benefits more quickly.

What rules are we proposing to revise?

    We propose to revise Sec. Sec.  404.1513(a)(3) and 416.913(a)(3) to 
provide that, except in the U.S. Virgin Islands, licensed optometrists 
would be acceptable medical sources for purposes of establishing a 
medically determinable impairment for visual disorders only. However, 
we will maintain our current rules for licensed optometrists in the 
U.S. Virgin Islands, where they will continue to be acceptable medical 
sources for measurement of visual acuity and visual fields only.

What programs would these proposed regulations affect?

    These proposed rules would affect disability and blindness 
determinations and decisions that we make under titles II and XVI of 
the Act. In addition, to the extent that Medicare entitlement and 
Medicaid eligibility are based on whether you qualify for disability 
benefits under title II or disability or blindness under title XVI, 
these proposed rules would also affect the Medicare and Medicaid 
programs.

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 II of the Act, you may qualify for a period of 
disability if you are insured for disability under Social Security and 
are under a disability as defined in section 216(i)(1) of the Act. That 
section defines disability to include statutory blindness, for purposes 
of establishing a period of disability under title II. If we find that 
you are blind and you meet the insured status requirement, we may 
establish a period of disability for you regardless of whether you can 
do substantial gainful activity (SGA). A period of disability protects 
your earnings record under Social Security so that the time you are 
disabled will not count against you in

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determining whether you will have worked long enough to qualify for 
benefits and the amount of your benefits. See Sec. Sec.  404.320, 
404.1505, 404.1581, and 404.1582.
    Under title XVI of the Act, we provide for Supplemental Security 
Income (SSI) payments on the basis of disability or blindness if you 
are disabled or blind and have limited income and resources.

How do we define blindness?

    For both the title II and title XVI programs, the Act defines 
blindness as ``central visual acuity of 20/200 or less in the better 
eye with the use of a correcting lens. An eye which is accompanied by a 
limitation in the fields of vision such that the widest diameter of the 
visual field subtends an angle no greater than 20 degrees shall be 
considered * * * as having a central visual acuity of 20/200 or less.'' 
(See sections 216(i)(1) and 1614(a)(2) of the Act.)
    Title II of the Act does not provide a separate category of 
benefits based on blindness. However, you may be entitled to benefits 
based on disability under title II of the Act if you are blind.
    By contrast, title XVI of the Act provides for a category of 
payments based on blindness as well as a category of payments based on 
disability. If you are blind and meet the SSI income and resources 
requirements, you may be eligible for SSI payments based on blindness. 
Your blindness does not have to meet a 12-month duration requirement 
for you to be eligible for these payments. Also, there is no 
requirement that you be unable to do any SGA. However, if you are 
working, we will consider your earnings to determine if you are 
eligible for SSI payments.

How do we decide whether you are disabled?

    If you are applying for disability benefits under title II of the 
Act, section 404.1513(a) of our regulations provides that we need 
evidence from acceptable medical sources to establish whether you have 
a medically determinable impairment(s). Therefore, in general, to be 
entitled to disability benefits under title II, your blindness must 
result from a medically determinable impairment and meet the 12-month 
duration requirement. (See Sec. Sec.  404.1508, 404.1513, and 
404.1581.) Also, if you are under age 55, you must be unable to do any 
SGA. (See Sec. Sec.  404.1582 and 404.1584(b).) Even though you are 
doing SGA, we may still find that you are entitled to title II 
disability benefits if--
     You are blind;
     You are age 55 or older; and
     You are unable to use the skills or abilities like the 
ones you used in any SGA which you did regularly and for a substantial 
period of time. However, we will not pay you any cash benefits for any 
month in which you are doing SGA. (See Sec. Sec.  404.1583 and 
404.1584(c).)
    Section 416.913(a) of our regulations states that if you are 
claiming benefits under title XVI on the basis of disability, not 
blindness, your disability must result from a medically determinable 
impairment documented by acceptable medical sources. However, blindness 
is treated differently under title XVI of the Act. Under title XVI, 
blindness and disability are separate categories of SSI payments, and 
the requirements for eligibility based on blindness are different from 
the requirements for eligibility based on disability. Under title XVI, 
the only evidence we need to establish statutory blindness is evidence 
showing that your visual acuity or visual field, in the better eye, 
meets the criteria described in the section ``How do we define 
blindness?'' provided that those measurements are consistent with the 
other evidence in your case record. We do not need to determine the 
cause of your blindness for you to be eligible for SSI payments based 
on blindness. Also, there is no duration requirement for statutory 
blindness under title XVI (See Sec. Sec.  416.981 and 416.983). Section 
416.913(f) provides that if you are applying for benefits under title 
XVI on the basis of statutory blindness, we will require an examination 
by a physician skilled in diseases of the eye or by an optometrist, 
whichever you may select.

What is a ``medically determinable impairment''?

    We will not consider you to be disabled or blind unless you furnish 
medical and other evidence that we need to show that you are disabled 
or blind. (See sections 223(d)(5)(A) and 1614(a)(3)(H)(i) of the Act, 
and Sec. Sec.  404.1512(a) and 416.912(a) of our regulations.) The Act 
requires that you show that your disability results from a medically 
determinable physical or mental impairment. A physical or mental 
impairment is an impairment that results from anatomical, 
physiological, or psychological abnormalities which are demonstrable by 
medically acceptable clinical and laboratory diagnostic techniques. 
(See sections 223(d)(3) and 1614(a)(3)(D) of the Act.) Our regulations 
provide that a physical or mental impairment must be established by 
medical evidence consisting of signs, symptoms, and laboratory 
findings. (See Sec. Sec.  404.1508 and 416.908.)

What is our authority to make rules and set procedures for determining 
whether a person is disabled under the statutory definition?

    Section 205(a) of the Act and, by reference to section 205(a), 
section 1631(d)(1) provides that:
    The Commissioner of Social Security shall have full power and 
authority to make rules and regulations and to establish procedures, 
not inconsistent with the provisions of this title, which are necessary 
or appropriate to carry out such provisions, and shall adopt reasonable 
and proper rules and regulations to regulate and provide for the nature 
and extent of the proofs and evidence and the method of taking and 
furnishing the same in order to establish the right to benefits 
hereunder.

When will we start to use these rules?

    We will not use these rules until we evaluate the public comments 
we receive on them, determine whether they should be issued as final 
rules, and issue final rules in the Federal Register. If we publish 
final rules, we will explain in the preamble how we will apply them, 
and summarize and respond to the public comments. Until the effective 
date of any final rules, we will continue to use our current rules.

Clarity of these proposed rules

    Executive Order 12866, as amended by Executive Order 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 them 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 meet the requirements for a 
significant regulatory action under Executive Order

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12866, as amended by Executive Order 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 
would 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 rules do not impose any new reporting requirements 
on the public.

List of References

    During development of these proposed rules, we reviewed the 
following information:
     Council on Optometric Education, Accreditation Manual: 
Professional Optometric Degree Programs, St. Louis, MO, 10/1998.
     American Optometric Association, State/Territory Statutory 
Language the Practice of Optometry, 3/2002.
     American Optometric Association, Optometric Clinical 
Practice Guidelines.
    1. Comprehensive Adult Eye and Vision Examination, St. Louis, MO, 
5/1/1994.
    2. Care of the Patient with Primary Angle Closure Glaucoma, St. 
Louis, MO, 6/23/1994.
    3. Care of the Patient with Anterior Uveitis, St. Louis, MO, 6/23/
1994.
    4. Care of the Patient with Age-Related Macular Degeneration, St. 
Louis, MO, 6/23/1994.
    5. Care of the Patient with Amblyopia, St. Louis, MO, 6/29/1994.
    6. Care of the Patient with Open Angle Glaucoma, St. Louis, MO, 3/
23/1995.
    7. Care of the Patient with Retinal Detachment and Related 
Peripheral Vitreoretinal Disease, St. Louis, MO, 4/27/1995.
    8. Care of the Patient with Strabismus: Esotropia and Exotropia, 
St. Louis, MO, 6/28/1995.
    9. Care of the Adult Patient with Cataract, St. Louis, MO, 6/28/
1995.
    10. Care of the Patient with Diabetes Mellitus, St. Louis, MO, 5/1/
1998.
     National Board of Examiners in Optometry, ``Topic outline 
of national test'', http://www.optometry.org.
    These references are included in the rulemaking record for these 
proposed rules and are available for inspection by interested 
individuals making arrangements with the contact person shown in this 
preamble.

(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: December 20, 2006.
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: Secs. 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)); sec. 211(b), Pub. L. 104-193, 110 
Stat. 2105, 2189.

    2. Revise Sec.  404.1513(a)(3) to read as follows:


Sec.  404.1513  Medical and other evidence of your impairment(s).

    (a) * * *
    (3) Licensed optometrists, for purposes of establishing visual 
disorders only (except, in the U.S. Virgin Islands, licensed 
optometrists, for the measurement of visual acuity and visual fields 
only);
* * * * *

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

Subpart I--[Amended]

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


    Authority: Secs. 702(a)(5), 1611, 1614, 1619, 1631(a), (c), and 
(d)(1), and (p), and 1633 of the Social Security Act (42 U.S.C. 
902(a)(5), 1382, 1382c, 1382h, 1383(a), (c), and (d)(1), and (p), 
and 1383b; 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, 423 
note, 1382h note).

    4. Revise Sec.  416.913(a)(3) to read as follows:


Sec.  416.913  Medical and other evidence of your impairment(s).

    (a) * * *
    (3) Licensed optometrists, for purposes of establishing visual 
disorders only (except, in the U.S. Virgin Islands, licensed 
optometrists, for the measurement of visual acuity and visual fields 
only). (See paragraph (f) of this section for the evidence needed for 
statutory blindness);
* * * * *

[FR Doc. E6-2852 Filed 2-28-06; 8:45 am]
BILLING CODE 4191-02-P