[Federal Register Volume 81, Number 217 (Wednesday, November 9, 2016)]
[Proposed Rules]
[Pages 78757-78759]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-27060]


=======================================================================
-----------------------------------------------------------------------

RAILROAD RETIREMENT BOARD

20 CFR Part 220

RIN 3220-AB68


Providing Evidence of Disability

AGENCY: Railroad Retirement Board.

ACTION: Notice of proposed rulemaking (NPRM).

-----------------------------------------------------------------------

SUMMARY: We propose to amend our regulations regarding the submission 
of evidence in disability claims to require you to inform us or submit 
all evidence known to you that ``relates to'' your disability claims 
with exceptions for privileged communications and duplicates. This 
requirement would include the duty to submit all evidence obtained from 
any source in its entirety, subject to one of these exceptions. These 
modifications to our regulations would better describe your duty to 
submit all evidence that relates to your disability claim and will 
enable us to have a more complete case record which will allow us to 
make more accurate determinations of your disability status.

DATES: Submit comments on or before January 9, 2017.

ADDRESSES: You may submit comments, identified by [3220-AB68], by any 
of the following three methods--Internet, fax, or mail. Do not submit 
the same comments multiple times or by more than one method. Regardless 
of which method you choose, please state that your comments refer to 
RIN number 3220-AB68.
    Caution: You should be careful to include in your comments only 
information that you wish to make publicly available as comments are 
posted without change, with any personal information provided. We

[[Page 78758]]

strongly urge you not to include in your comments any personal 
information, such as Social Security numbers or medical information.
    1. Internet: Email comments to the Secretary to the Board at 
[email protected].
    2. Fax: Fax comments to (312) 751-7102.
    3. Mail: Address your comments to the Secretary to the Board, 
Railroad Retirement Board, 844 N. Rush Street, Chicago, Illinois 60611-
2092.
    Comments are available for public viewing on the Federal 
eRulemaking portal at http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Marguerite P. Dadabo, Assistant 
General Counsel, Railroad Retirement Board, 844 North Rush Street, 
Chicago, IL 60611-2092, (312) 751-4945, TTD (312) 751-4701.

SUPPLEMENTARY INFORMATION: 

Background

    The Railroad Retirement Act (Act) gives the Railroad Retirement 
three member Board (Board) the authority to issue regulations governing 
the production of evidence used to adjudicate both occupational 
disability and total and permanent disability claims under the Act.\1\
---------------------------------------------------------------------------

    \1\ See 45 U.S.C. 231a(a)(2) and (3).
---------------------------------------------------------------------------

    There has been recent interest by members of Congress in ensuring 
that Railroad Retirement disability benefits are reserved for only 
those who are truly disabled under either the standards of the 
occupational disability or total and permanent disability programs.\2\ 
Additionally, the Social Security Administration (SSA) has recently 
published new regulations requiring the comprehensive submission of all 
evidence known to the claimant that `relates to' the claimant's 
disability claims with exceptions for privileged communications and 
duplicates. Previously, Social Security disability claimants were 
required to submit evidence that was `material' to the disability 
determination. The effect of the SSA's new regulations is to require 
that claimants submit evidence that is both favorable and unfavorable 
to their claims.\3\
---------------------------------------------------------------------------

    \2\ See, e.g., Is the Railroad Retirement Board Doing Enough to 
Protect Against Fraud? Hearing Before the H. Comm. on Oversight and 
Government Reform: Subcommittee on Government Operations, 114th 
Cong. (2015), https://www.congress.gov/congressional-record/2015/5/1/daily-digest.
    \3\ Submission of Evidence in Disability Claims, 80 FR 14828, 
March 20, 2015.
---------------------------------------------------------------------------

    The analogy between total and permanent disability under the 
Railroad Retirement Act and the Social Security Act (SS Act) is well-
established. See, e.g. Webb v. Railroad Retirement Board, 358 F. 2d 451 
(6th Cir. 1966); Peppers v. Railroad Retirement Board, 728 F. 2d 404 
(7th Cir. 1984); Goodwin v. Railroad Retirement Board, 546 F. 2d 1169 
(5th Cir. 1977).
    Additionally, the Railroad Retirement Board's (RRB) occupational 
disability program incorporates the records requirements of the total 
and permanent disability program.\4\ The SSA's regulations specify a 
broader scope for claimants when providing records in support of his or 
her disability claim than the RRB's current regulations. Revising the 
RRB's regulations would allow the RRB to similarly obtain more complete 
case records and adjudicate disability claims more precisely.
---------------------------------------------------------------------------

    \4\ See 20 CFR 222.12.
---------------------------------------------------------------------------

Proposed Changes

Providing Evidence of Disability

    We propose to revise Sec.  220.45(a) to require you to inform the 
Board about or submit all evidence known to you that relates to your 
claimed disability.\5\ The RRB's current regulations require that the 
``[t]he claimant for a disability annuity is responsible for providing 
evidence of the claimed disability and the effect of the disability on 
the ability to do work.'' 20 CFR 220.45(a). Additionally, RRB's 
regulations require that ``[t]he claimant must provide medical evidence 
showing that he or she has an impairment(s) and how severe it is during 
the time the claimant claims to be disabled.'' 20 CFR 220.45(b).
---------------------------------------------------------------------------

    \5\ Under the Act, a claimant will be considered to be 
occupationally disabled if he or she has a current connection to the 
railroad industry and a permanent physical and mental condition such 
as to be disabling for work in his or her regular occupation. 45 
U.S.C. 231a(a)(1)(iv). A claimant will be considered to be totally 
and permanently disabled if his or her permanent physical or mental 
condition is such that he or she is unable to engage in any regular 
employment. 45 U.S.C. 231a(a)(1)(v).
---------------------------------------------------------------------------

    The RRB's regulations further state that the Board may ask the 
claimant to provide evidence about his or her- (1) Age; (2) Education 
and training; (3) Work experience; (4) Daily activities both before and 
after the date the claimant says that he or she became disabled; (5) 
Efforts to work; and (6) Any other evidence showing how the claimant's 
impairment(s) affects his or her ability to work.'' 20 CFR 220.45(b)(1) 
through (6).
    The proposed rule would amend Sec.  220.45(a) by adding ``you must 
inform the Board about or submit all evidence known to you that relates 
to the claimed disability. This duty is ongoing and requires you to 
disclose any additional related evidence about which you become aware. 
This duty applies at each level of the administrative review process, 
including the appeals level, if the evidence relates to the period on 
or before the date of the hearings officer's decision.''
    The proposed rule would also amend Sec.  220.45(b) by expanding the 
explanation of the kinds of evidence to be submitted and excluding 
certain information protected by attorney-client privilege or by the 
attorney work product doctrine.

Clarity of This Proposed Rule

    Executive Order 12866, as supplemented by Executive Order 13563, 
requires each agency to write all rules in plain language. In addition 
to your substantive comments on this proposed rule, we invite your 
comments on how to make it easier to understand.
    For example:
     Are the requirements for the rule clearly stated?
     Have we organized the material to meet your needs?
     What else could we do to make the rule easier to 
understand?
     Does the rule contain technical language or jargon that is 
not clear?
     Would a different format make the rule easier to 
understand?

When will we start to use this rule?

    We will not use this proposed rule until we evaluate public 
comments and publish a final rule in the Federal Register. All final 
rules we issue include an effective date. We will continue to use our 
current rules until that date. If we publish a final rule, we will 
include a summary of relevant comments we received, if any, and 
responses to them. We will also include an explanation of how we will 
apply the new rule.

Regulatory Procedures

Executive Order 12866, as Supplemented by Executive Order 13563

    The Board, with the concurrence of the Office of Management and 
Budget, has determined that this is not a significant regulatory action 
under Executive Order 12866, as supplemented by Executive Order 13563. 
Therefore, no regulatory impact analysis is required.

Regulatory Flexibility Act

    We certify that this proposed rule would not have a significant 
economic impact on a substantial number of small entities because it 
affects individuals only. Therefore, a regulatory flexibility analysis 
is not required under the Regulatory Flexibility Act, as amended.

[[Page 78759]]

Paperwork Reduction Act

    This NPRM imposes no reporting or recordkeeping requirements 
subject to OMB clearance.

List of Subjects in 20 CFR Part 220

    Disability benefits, Railroad retirement.

    The Railroad Retirement Board proposes to amend title 20, chapter 
II, subchapter F, part 220 of the Code of Federal Regulations as 
follows:

PART 220 DETERMINING DISABILITY

0
1. The authority citation for part 220 continues to read as follows:

    Authority: 45 U.S.C. 231a(1); 45 U.S.C. 231f.

0
2. Revise Sec.  220.45 to read as follows:


Sec.  220.45   Providing evidence of disability.

    (a) General. You are responsible for providing all evidence of the 
claimed disability and the effect of the disability on your ability to 
work. You must inform the Board about or submit all evidence known to 
you that relates to the claimed disability. This duty is ongoing and 
requires you to disclose any additional related evidence about which 
you become aware. This duty applies at each level of the administrative 
review process, including the appeals level, if the evidence relates to 
the period on or before the date of the hearings officer's decision. 
The Board will assist you, when necessary, in obtaining the required 
evidence. At its discretion, the Board will arrange for an examination 
by a consultant at the expense of the Board as explained in Sec. Sec.  
220.50 and 220.51.
    (b) Kind of evidence. (1) You must provide medical evidence proving 
that you have an impairment(s) and how severe it is during the time you 
claim to be disabled. The Board will consider only impairment(s) you 
claim to have or about which the Board receives evidence. Before 
deciding your disability status, the Board will develop a complete 
medical history (i.e., evidence from the records of the your medical 
sources) covering at least the preceding 12 months, unless you say that 
your disability began less than 12 months before you filed an 
application. The Board will make every reasonable effort to help you in 
getting medical reports from your own medical sources when you give the 
Board permission to request them. Every reasonable effort means that 
the Board will make an initial request and, after 20 days, one follow-
up request to your medical source to obtain the medical evidence 
necessary to make a determination before the Board evaluates medical 
evidence obtained from another source on a consultative basis. The 
medical source will have 10 days from the follow-up request to reply 
(unless experience indicates that a longer period is advisable in a 
particular case). In order to expedite processing, the Board may order 
a consultative exam from a non-treating source while awaiting receipt 
of medical source evidence. If the Board asks you to do so, you must 
contact the medical sources to help us get the medical reports.
    (2) Exceptions. Notwithstanding paragraph (a) of this section, 
evidence does not include:
    (i) Oral or written communications between you and your 
representative that are subject to the attorney-client privilege, 
unless you voluntarily disclose the communication to us; or
    (ii) Your representative's analysis of your claim, unless he or she 
voluntarily discloses it to us. Your representative's ``analysis of 
your claim,'' means information that is subject to the attorney work 
product doctrine, but it does not include medical evidence, medical 
source opinions, or any other factual matter that we may consider in 
determining whether or not you are entitled to benefits (See paragraph 
(b)(2)(iv) of this section).
    (iii) The provisions of paragraph (b)(2)(i) of this section apply 
to communications between you and your non-attorney representative only 
if the communications would be subject to the attorney-client 
privilege, if your non-attorney representative were an attorney. The 
provisions of paragraph (b)(2)(ii) of this section apply to the 
analysis of your claim by your non-attorney representative only if the 
analysis of your claim would be subject to the attorney work product 
doctrine, if your non-attorney representative were an attorney.
    (iv) The attorney-client privilege generally protects confidential 
communications between an attorney and his or her client that are 
related to providing or obtaining legal advice. The attorney work 
product doctrine generally protects an attorney's analysis, theories, 
mental impressions, and notes. In the context of your disability claim, 
neither the attorney-client privilege nor the attorney work product 
doctrine allows you to withhold factual information, medical source 
opinions, or other medical evidence that we may consider in determining 
whether or not you are entitled to benefits. For example, if you tell 
your representative about the medical sources you have seen, your 
representative cannot refuse to disclose the identity of those medical 
sources to us based on the attorney-client privilege. As another 
example, if your representative asks a medical source to complete an 
opinion form related to your impairment(s), symptoms, or limitations, 
your representative cannot withhold the completed opinion form from us 
based on the attorney work product doctrine. The attorney work product 
doctrine would not protect the source's opinions on the completed form, 
regardless of whether or not your representative used the form in his 
or her analysis of your claim or made handwritten notes on the face of 
the report.
    (c) Your responsibility. You must inform us about or submit all 
evidence known to you that relates to whether or not you are blind or 
disabled. When you submit evidence received from another source, you 
must submit that evidence in its entirety, unless you previously 
submitted the same evidence to us or we instruct you otherwise. The 
Board may also ask you to provide evidence about:
    (1) Your age;
    (2) Your education and training;
    (3) Your work experience;
    (4) Your daily activities both before and after the date you say 
that you became disabled;
    (5) Your efforts to work; and
    (6) Any other evidence showing how your impairment(s) affects your 
ability to work. (In Sec. Sec.  220.125 through 220.134, we discuss in 
more detail the evidence the Board needs when it considers vocational 
factors.)

    Dated: November 3, 2016.

    By Authority of the Board.
Martha P. Rico,
Secretary to the Board.
[FR Doc. 2016-27060 Filed 11-8-16; 8:45 am]
 BILLING CODE P