[Federal Register Volume 72, Number 53 (Tuesday, March 20, 2007)]
[Proposed Rules]
[Pages 13053-13055]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-4958]


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SOCIAL SECURITY ADMINISTRATION

20 CFR Parts 404 and 416

[Docket No. SSA 2006-0109]
RIN 0960-AG41


Consultative Examination--Annual Onsite Review of Medical 
Providers

AGENCY: Social Security Administration.

ACTION: Notice of proposed rulemaking.

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SUMMARY: We propose to revise the threshold billing amount that 
triggers annual onsite reviews of medical providers who conduct 
consultative examinations (CEs) for our disability programs under 
titles II and XVI of the Social Security Act (the Act). The proposed 
revision would raise the threshold amount to reflect the increase in 
billing amounts since we first established the threshold amount in 
1991. This proposed revision is intended to restore the level of 
oversight originally required by our rules.

DATES: To be sure that your comments are considered, we must receive 
them by May 21, 2007.

ADDRESSES: You may give us your comments by: Internet through 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 Regulations, Social 
Security Administration, 107 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 the Federal eRulemaking 
Portal, or you may inspect them on regular business days by making 
arrangements with the contact person shown in this preamble.

FOR FURTHER INFORMATION CONTACT: Charles M. Urban, Social Insurance 
Specialist, Social Security Administration, Office of Disability 
Programs, 6401 Security Boulevard, Baltimore, MD 21235-6401, (410) 965-
9029 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 site, Social Security Online, at 
http://www.socialsecurity.gov.

SUPPLEMENTARY INFORMATION:

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.

Why are we proposing to change our rules?

    Since 1991, we have provided in Sec. Sec.  404.1519s(d) and 
416.919s(d) of our regulations that each State agency that makes 
disability determinations for us is responsible for comprehensive 
oversight management of its consultative examination program with 
special emphasis on key providers. A consultative examination is a 
medical examination or test that we purchase at our expense when we 
need additional information to make a disability determination and we 
cannot obtain that information from existing medical sources. See 
Sec. Sec.  404.1517, 404.1519, 416.917, and 416.919 of our regulations.
    In Sec. Sec.  404.1519s(e) and 416.919s(e) of our regulations, we 
explain that a ``key consultative examination provider'' is a provider 
that meets at least one of the following conditions:
    (1) Any consultative examination provider with an estimated annual 
billing to the Social Security disability programs of at least 
$100,000; or
    (2) Any consultative examination provider with a practice directed 
primarily towards evaluation examinations rather than the treatment of 
patients; or
    (3) Any consultative examination provider that does not meet the 
above criteria, but is one of the top five consultative examination 
providers in the State by dollar volume, as evidenced by prior year 
data.
    We are proposing to change the threshold billing amount that 
triggers onsite review of medical providers in Sec. Sec.  
404.1519s(e)(1) and 416.919s(e)(1) in order to ensure that we annually 
review the largest providers of CEs. We have not changed the current 
threshold amount of $100,000 in billings since we first published this 
provision in 1991. However, costs have risen in the more than 15 years 
since we first published this rule so that now many CE providers who 
perform relatively few CEs are subject to mandatory onsite reviews. 
This is contrary to the intent of the provision, which is to ensure 
that each State agency do periodic onsite reviews of the largest CE 
providers in its State. We believe that raising the amount to $150,000 
will continue to satisfy the intent to monitor our largest CE 
providers. We chose this amount by multiplying the $100,000 threshold 
established in 1991 by the increase in the consumer price index for 
urban wage earners and clerical workers from 1991 (134.3) to November 
2006 (196.8) and then, for administrative convenience, rounding the 
resulting amount ($146,537.60) to $150,000.

What rules are we proposing to revise?

    We propose to revise Sec. Sec.  404.1519s(e)(1) and 416.919s(e)(1). 
The revisions would specify a new threshold billing amount that will 
trigger the need for annual onsite review of CE providers.

[[Page 13054]]

What programs would these proposed regulations affect?

    These proposed rules would affect disability determinations and 
decisions that we make under titles II and XVI of the Act.

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) provide 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.

What is our authority to require States to conduct onsite reviews of CE 
providers?

    Section 221(a)(2) of the Act provides that the ``Commissioner of 
Social Security shall promulgate regulations specifying, in such detail 
as the Commissioner deems appropriate, performance standards and 
administrative requirements and procedures to be followed'' by State 
agencies that make disability determinations for us. In addition, with 
regard to the CE process, section 221(j)(3) of the Act provides that 
the ``Commissioner of Social Security shall prescribe regulations which 
set forth, in detail * * * procedures by which the Commissioner of 
Social Security will monitor both the [CE] referral processes used and 
the product of professionals to whom cases are referred.'' These 
authorities are made applicable to title XVI as well by reference in 
section 1633(a) of the Act.

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 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 States. Thus, a regulatory flexibility analysis as 
provided in the Regulatory Flexibility Act, as amended, is not 
required.

Paperwork Reduction Act

    These proposed regulations will impose no additional reporting or 
recordkeeping requirements requiring OMB clearance.

Federalism and the Unfunded Mandates Reform Act

    We have reviewed the proposed rules under the threshold criteria of 
Executive Order 13132 (Federalism) and the Unfunded Mandates Reform Act 
of 1995. These proposed rules would change the threshold billing amount 
above which the State agencies that make determinations of disability 
for the Commissioner under titles II and XVI of the Act perform an 
annual onsite review of CE providers. Although the State agencies 
perform these reviews, they do so as part of a voluntary agreement with 
us, and the Social Security Administration fully funds the necessary 
costs of providing this service. We have determined that these proposed 
rules would not have substantial direct effects on States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government.

(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: January 8, 2007.
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 is revised to 
read as follows:

    Authority: Secs. 202, 205(a), (b), and (d)-(h), 216(i), 221(a), 
(i) and (j), 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), (i) 
and (j), 422(c), 423, 425, and 902(a)(5)); sec. 211(b), Pub. L. 104-
193, 110 Stat. 2105, 2189; sec. 202, Pub. L. 108-203, 118 Stat. 509 
(42 U.S.C. 902 note).
    2. Revise paragraph (e)(1) of Sec.  404.1519s to read as follows:


Sec.  404.1519s  Authorizing and monitoring the consultative 
examination.

* * * * *
    (e) * * *
    (1) Any consultative examination provider with an estimated annual 
billing to the disability programs we administer of at least $150,000; 
or
* * * * *

[[Page 13055]]

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. 221(m), 702(a)(5), 1611, 1614, 1619, 1631(a), 
(c), (d)(1), and (p), and 1633 of the Social Security Act (42 U.S.C. 
421(m), 902(a)(5), 1382, 1382c, 1382h, 1383(a), (c), (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 paragraph (e)(1) of Sec.  416.919s to read as follows:


Sec.  416.919s  Authorizing and monitoring the consultative 
examination.

* * * * *
    (e) * * *
    (1) Any consultative examination provider with an estimated annual 
billing to the disability programs we administer of at least $150,000; 
or
* * * * *
[FR Doc. E7-4958 Filed 3-19-07; 8:45 am]
BILLING CODE 4191-02-P