[Federal Register Volume 84, Number 222 (Monday, November 18, 2019)]
[Proposed Rules]
[Pages 63588-63601]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-24700]


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SOCIAL SECURITY ADMINISTRATION

20 CFR Parts 404 and 416

[Docket No. SSA-2018-0026]
RIN 0960-AI27


Rules Regarding the Frequency and Notice of Continuing Disability 
Reviews

AGENCY: Social Security Administration.

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: We propose to revise our regulations regarding when and how 
often we conduct continuing disability reviews (CDR), which are 
periodic reviews of eligibility required for benefit continuation. The 
proposed rules would add a category to the existing medical diary 
categories that we use to schedule CDRs and revise the criteria for 
assigning each of the medical diary categories to cases. The proposed 
rules would also change the frequency with which we perform a CDR for 
claims with the medical diary category for permanent impairments. The 
revised changes would ensure that we continue to maintain appropriate 
stewardship of the disability program and identify medical improvement 
(MI) at its earliest point.

DATES: To ensure your comments are considered we must receive your 
comments by January 17, 2020.

ADDRESSES: You may submit comments by any one of 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 Docket No. SSA-2018-0026 so 
that we may associate your comments with the correct regulation.

    CAUTION:  You should be careful to include in your comments only 
information that you wish to make publicly available. We strongly 
urge you not to include in your comments any personal information, 
such as Social Security numbers or medical information.

    1. Internet: We strongly recommend that you submit your comments 
via the internet. Please visit the Federal eRulemaking portal at http://www.regulations.gov. Use the Search function to find docket number 
SSA-2018-0026 and then submit your comments. The system will issue you 
a tracking number to confirm your submission. You will not be able to 
view your comment immediately because we must post each submission 
manually. It may take up to a week for your comments to be viewable.
    2. Fax: Fax comments to (410) 966-2830.
    3. Mail: Address your comments to the Office of Regulations and 
Reports Clearance, Social Security Administration, 3100 West High Rise 
Building, 6401 Security Boulevard, Baltimore, Maryland 21235-6401.
    Comments are available for public viewing on the Federal 
eRulemaking portal at http://www.regulations.gov or in person, during 
regular business hours, by arranging with the contact person identified 
below.

FOR FURTHER INFORMATION CONTACT: Cheryl A. Williams, Office of 
Disability Policy, Social Security Administration, 6401 Security 
Boulevard, Baltimore, MD 21235-6401, (410) 965-1020. 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:

I. Background

    Section 221(i) of the Social Security Act (Act) provides that, when 
we determine a person is disabled, we periodically review the case to 
ensure that the individual continues to meet the disability eligibility 
requirements of the Act. We must complete these periodic reviews at 
least once every 3 years, except when we determine the requirement 
should be waived, or when we determine that the disability is 
permanent, in which case, we can perform the review when we deem 
appropriate. We call the periodic reviews required under the Act 
``continuing disability reviews'' (CDR).
    Section 221(i)(2) of the Act also requires that we report this 
activity to Congress annually. In the most recent report we submitted 
to Congress, we reported that:

. . . we spent $717 million to complete 1,971,812 periodic CDRs. Of 
this total, we completed 1,172,799 mailer CDRs. We also completed 
799,013 full medical reviews. . . . Our Office of the Chief Actuary 
(OCAct) . . . estimates that the periodic CDRs completed in FY 2015 
will result in a present value of $14.3 billion in lifetime net 
Federal program benefits saved. For FY 2015, the estimated ratio of 
net program savings to administrative costs is approximately $19.9 
to $1.\1\
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    \1\ Social Security Administration, Annual Report on Medical 
Continuing Disability Reviews, Fiscal Year 2015 (2019). Available 
at: https://www.ssa.gov/legislation/FY%202015%20CDR%20Report.pdf.

A. Why We Conduct CDRs--A Brief History

    We conduct CDRs to determine whether a person who receives Social 
Security disability benefits \2\ under title II of the Act or 
Supplemental Security Income (SSI) payments under title XVI of the Act 
continues to meet the disability or blindness requirements of the 
law.\3\
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    \2\ We pay three benefits based on disability under title II: 
disability insurance benefits (DIB), disabled widow(er) benefits, 
and childhood disability benefits.
    \3\ Sec. 221(i)(2) of the Act; 42 U.S.C. 421(i)(2); 20 CFR 
404.1590(a), 416.990(a).
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    Prior to the Social Security Disability Amendments of 1980 (1980 
Amendments),\4\ we did not conduct CDRs on all of our beneficiaries to 
ensure that they continued to meet the Act's definition of disability. 
Instead, our procedures at the time provided that we conducted CDRs 
only on a limited set of beneficiaries who had conditions that we 
expected to improve.\5\ In the 1970s, the disability incidence rate 
(the number of disability awards in relation to the population) 
increased significantly, with substantial increases in the cost of the 
disability program. During this period, the Social Security Amendments 
of 1972 (1972 Amendments) extended Medicare coverage to disability 
beneficiaries, with the opportunity for improved disability 
outcomes.\6\ Congress held numerous hearings and considered a package 
of legislative actions to strengthen the integrity of the disability 
program and improve program administration. The 1980 Amendments added 
section 221(i) to the Act, which required us to conduct CDRs at least 
once every 3 years for all title II disability beneficiaries with

[[Page 63589]]

nonpermanent impairments, and at our discretion for all title II 
disability beneficiaries with permanent impairments.\7\ Section 221(i) 
of the Act established the periodic review or CDR requirement as one of 
the most valuable program integrity tools that allows us to maintain 
good stewardship of taxpayer dollars by ensuring only those who 
continue to meet our standards for disability continue to receive 
benefits.
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    \4\ Public Law 96-265, section 311, 94 Stat. 441, 460.
    \5\ H.R. Rep. No. 96-944, at 60 (1980) (Conf. Rep.) Available at 
https://www.ssa.gov/history/pdf/Downey%20PDFs/Social%20Security%20Disability%20Amendments%20of%201980%20Vol%202.pdf
.
    \6\ Public Law 92-603, sec. 201, 86 Stat. 1329, 1371.
    \7\ Id.
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    In 1983, Congress amended section 221(i) of the Act to allow us to 
determine how many CDRs we conduct annually in each State based on the 
backlog of pending reviews, the projected number of new disability 
applications, and State staffing levels.\8\
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    \8\ Public Law 97-455, sec. 3, 96 Stat. 2497, 2499; sec. 
221(i)(2) of the Act.
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    In October 1984, Congress passed the Social Security Disability 
Benefits Reform Act of 1984, which mandated that we publish regulations 
establishing standards to be used in determining the frequency of 
CDRs.\9\ Congress did so for several reasons. First, Congress expressed 
concern that people who are found eligible for benefits after a lengthy 
administrative appeal not find themselves subjected to a second 
eligibility review after only a relatively brief period. On the other 
hand, Congress was also concerned that we not neglect our 
responsibility to review the cases of even those beneficiaries who have 
impairments that we categorized as permanent.\10\
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    \9\ Public Law 98-460, sec. 15, 98 Stat. 1794, 1808.
    \10\ ``Conversely, with the number of people now classified 
administratively as being permanently impaired approaching 40 
percent of the disabled-worker benefit rolls, the Committee is 
concerned that the responsibility to assess the continuing 
eligibility of such beneficiaries not be neglected. A failure to 
periodically review eligibility in these cases could seriously 
undermine the intent of the 1980 legislation.'' S. Rep. No. 98-466, 
at 28 (1984). Available at https://www.ssa.gov/history/pdf/Downey%20PDFs/Downey%20Book%201984%20PL%2098-460.pdf.
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    In May 1986, we published final rules that revised four sections 
and added one new section to our regulations that set forth the 
standards for conducting CDRs in title II disability and title XVI SSI 
cases.\11\ In the 1986 final rules, we explained that, although section 
221(i) of the Act applied only to title II disability cases, we would 
apply the new rules applied to title XVI SSI cases to provide 
consistency in the operation of the disability programs. We did this 
based on our broad regulatory authority under title XVI of the Act, 
sections 1631(d)(1) and 1633, and the legislative history of the 1980 
Amendments.\12\
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    \11\ 51 FR 16818, May 7, 1986; 20 CFR 404.1589, 404.1590, 
416.989, 416.989a, 416.990.
    \12\ 51 FR at 16819. In the final rules, we note that ``[t]he 
report of the Senate Committee on Finance states: ``The committee 
believes that such [periodic review] procedures should be applied on 
the same basis to the DI and SSI programs.''
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    When we implemented the current rules in 1986, we established a 
process of administrative controls to keep track of the review cycle 
for each case, including the impairment(s) and its type (permanent or 
nonpermanent) and the review category assigned. We refer to this 
process of controls as ``CDR diaries.''
    Since we published the 1986 final rules, we have revised our rules 
to reflect statutory changes. The Personal Responsibility and Work 
Opportunity Reconciliation Act of 1996 \13\ requires us to conduct CDRs 
at age 1 for children with low birth weight when low birth weight is a 
contributing factor material to our determination that they were 
disabled.\14\ The Balanced Budget Act of 1997 \15\ modified the 
requirement for a CDR at age 1 to allow the Commissioner to schedule 
the CDR at a later date if the child's impairment is not expected to 
improve by age 1 and to revise our definition of a permanent impairment 
for title XVI child recipients.\16\ We incorporated these provisions 
into our rules on February 11, 1997, and September 11, 2000, 
respectively.\17\
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    \13\ Public Law 104-193, sec. 212(c), 110 Stat. 2105, 2193.
    \14\ 62 FR at 6430, 65 FR at 54790.
    \15\ Public Law 105-33, sec. 5522(a), 111 Stat. 251, 622.
    \16\ 62 FR at 6430, February 11, 1997.
    \17\ 62 FR 6430, Feb. 11, 1997; 65 FR 54790, Sept. 11, 2000.
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    The Ticket to Work and Work Incentives Improvement Act of 1999 \18\ 
included two provisions that affect the scheduling of CDRs. Under the 
first provision, we will not initiate a CDR while the person is using a 
Ticket to Work.\19\ Under the second provision, we will not initiate a 
CDR based solely on work activity for beneficiaries who have been 
entitled to benefits under title II for at least 24 months. We will 
initiate regularly scheduled CDRs that are not triggered by work.\20\
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    \18\ Public Law 106-170, sec. 111(a), 113 Stat. 1860, 1881.
    \19\ 42 U.S.C. 1320b-19(i), 20 CFR 411.165.
    \20\ 71 FR 66856, Nov. 17, 2006.
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B. When and How We Conduct CDRs

    We conduct periodic program integrity reviews to ensure title II 
beneficiaries and title XVI SSI disability recipients continue to meet 
each program's respective eligibility criteria. After we initially find 
that a claimant is disabled, we schedule the periodic review required 
by the Act to determine if the person is still medically eligible for 
payments based on disability. As we explained earlier, this evaluation 
is known as a CDR. The frequency of a medical CDR depends on the 
beneficiary's prospective MI. MI is categorized into one of three 
``medical diary categories.'' \21\
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    \21\ 20 CFR 404.1590(b)(1)-(2), 416.990(b)(1)-(2).
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    1. Medical Improvement Expected (MIE). The medical diary category 
that requires us to conduct a CDR most frequently is the MIE medical 
diary category. We generally conduct a CDR on a case with a MIE diary 
in not less than 6 months, but not more than 18 months.\22\ We use the 
MIE diary category for cases in which we expect the person's disabling 
impairment(s) to improve, so that the person will be able to engage in 
substantial gainful activity (SGA). We also use the MIE diary category 
for title XVI SSI childhood disability cases in which we expect the 
child's impairment(s) to improve, so the impairment(s) no longer 
results in marked and severe functional limitations.\23\ Examples of 
impairments that receive a MIE diary include fractures, cancers with 
bone marrow or stem cell transplantation, chronic kidney disease with a 
kidney transplant, and low birth weight. We set an MIE diary for most 
infants who are allowed based on their low birth weight because we are 
required by the Act to review such cases when they reach age 1 unless 
the facts of the case indicate that medical improvement before age 1 is 
not expected.\24\ We set the diary for all other cases receiving a MIE 
diary based on the facts of the case, with most diaries set at 12 
months.
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    \22\ 20 CFR 404.1590(c), (d); 416.990(c), (d).
    \23\ See section 1614(a)(4)(B)(i) of the Act.
    \24\ See section 1613(a)(3)(H)(iv) of the Act.
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    2. Medical Improvement Possible (MIP). The MIP medical diary 
category requires us to conduct a CDR regularly, but less frequently 
than for claims in the MIE diary category. For cases in the MIP diary 
category, we conduct a CDR at least once every 3 years.\25\ We use the 
MIP diary category for those cases in which any medical improvement is 
possible, that is, nonpermanent impairments. We use this diary category 
for impairments in both adults and children for which we cannot predict 
improvement of the impairment(s) based on current experience and the 
facts of the case.\26\ Examples of impairments that frequently receive 
a MIP diary include Crohn's Disease (regional enteritis), sickle cell 
disease,

[[Page 63590]]

chronic ulcerative colitis, epilepsy, and schizophrenia.
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    \25\ 20 CFR 404.1590(d), 416.990(d).
    \26\ 20 CFR 404.1590(c), 416.990(c).
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    3. Medical Improvement Not Expected (MINE). The MINE medical diary 
category requires us to conduct a CDR less frequently than the 
preceding two diary categories.\27\ Under this category, we conduct a 
CDR for a title II disability or a title XVI case at least once every 7 
years, but no more frequently than once every 5 years.\28\ We use the 
MINE diary category for cases with disabling impairments that, based on 
medical knowledge and practices, and our administrative experience, we 
determine to be ``at least static, but more likely to be progressively 
disabling either by itself or by reason of impairment complications, 
and unlikely to improve so as to permit the person to engage in 
substantial gainful activity.'' \29\ We use this category for title XVI 
disabled children who have an impairment(s) that is unlikely to improve 
to the point that they no longer have marked and severe functional 
limitations.\30\ Based on our analysis of case outcomes for CDRs on 
older beneficiaries, we also use this category for cases in which the 
person would be age 54\1/2\ or older when a CDR diary would be due. We 
provide examples of impairments that we consider permanent in the 
current rule, including amyotrophic lateral sclerosis (ALS), 
Parkinsonian Syndrome (Parkinson's disease), diffuse pulmonary fibrosis 
in a person age 55 or over, and amputation of the leg at the hip. We 
provide additional guidance about permanent impairments in our current 
operating instructions.\31\
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    \27\ Id.
    \28\ 20 CFR 404.1590(d), 416.990(d).
    \29\ 20 CFR 404.1590(c), 416.990(c).
    \30\ 20 CFR 416.990(c).
    \31\ Program Operations Manual System (POMS) DI 26525.045 at: 
https://secure.ssa.gov/apps10/poms.nsf/lnx/0426525045.
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    We establish the medical diary category when we first determine 
that a person is disabled under our rules. We notify the beneficiary 
about the timing of the initial CDR in the award notice we send. We 
also notify the beneficiary about the timing of the next CDR in the 
notice that we send about the CDR determination. When we conduct a CDR, 
we may change the medical diary category for future reviews based on 
the evidence we receive during the CDR.
    We may also revise the frequency of review for certain impairments 
because of improved tests, treatment, or other medical advances 
concerning the impairments.\32\ When we change the diary category for 
specific impairments, we incorporate the changes into our employee 
operating instructions, which are publically accessible.
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    \32\ 20 CFR 404.1590(e), 416.990(e).
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    For people who are found eligible to receive or continue to receive 
disability benefits based on a decision by an administrative law judge, 
the Appeals Council, or a Federal court, we do not conduct a CDR 
earlier than 3 years after that decision unless the case meets the 
criteria for a MIE diary.\33\ In any case, however, we may conduct a 
CDR earlier than the diary date if a question of continuing disability 
is raised.\34\
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    \33\ 20 CFR 404.1590(f), 416.990(f). We may also establish a 
diary before 3 years if the person should be scheduled for a 
vocational reexamination diary or if a question of continuing 
disability arises under 20 CFR 404.1590(b) or 416.990(b).
    \34\ Additional guidance for initiating a CDR is in 20 CFR 
404.1590(b)(3)--(10) and 416.990(b)(3)-(10). In most instances, we 
will identify the CDR issue at the field office level. If there is 
any question about the appropriateness of initiating a CDR, the 
field office will request assistance from SSA's regional or central 
office staff or the state disability determination services before 
taking any action.
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    When a medical review diary matures, we conduct periodic CDRs using 
one of two methods. We decide whether to initiate a full medical review 
(FMR) or send a mailer after profiling all cases to identify the 
likelihood of MI. We send cases with a higher likelihood of MI to the 
State Disability Determination Services (DDS) for FMRs. For those cases 
with a lower likelihood of MI, we send mailers to obtain more 
information from the beneficiaries, which we evaluate to determine if 
there is any indication of MI. If we find an indication of MI, we send 
the case to a DDS for a FMR. Otherwise, we set a new medical review 
diary and schedule the case for a future CDR. If a mailer results in a 
deferral, we reset the diary date based on the original category. If a 
FMR results in a continuance, we will determine whether there is a 
change in classification of the impairment as permanent or nonpermanent 
and set a new diary accordingly. We use the mailer process for 
approximately 65 percent of the periodic CDRs we conduct each year.

II. The Changes We Are Proposing

    We want to ensure that we continue to identify MI at its earliest 
point through the CDR process. We also want to have the flexibility to 
adjust the scheduling of CDRs when there have been advances in 
treatment for a person's impairment(s) that improve the ability to work 
or, for children receiving title XVI payments, that improve overall 
health and functioning. Therefore, we are proposing to make three 
changes to our current rules on when and how often we conduct CDRs. 
First, we propose to add a fourth medical diary category. Next, we 
propose to revise the criteria we follow to assign a medical diary to 
each case. Finally, we propose to retain the frequency for the MIE and 
MIP diary categories (6 to 18 months and 3 years, respectively) and 
revise the frequency with which we perform a CDR for the MINE diary 
category.
    The flexibility these proposed changes would allow us to determine 
MI at an earlier point than we can under our current rules. 
Consequently, we expect that the changes we are proposing would enhance 
program integrity and ensure that only those who continue to qualify 
for benefits will receive them.

A. Expanding the Medical Diary Categories From Three to Four

    When we evaluate a person's continuing disability during a 
scheduled review, we consider whether there has been MI in the 
condition that resulted in the finding of disability. We use the 
medical diary categories to capture MI at the earliest point.
    We propose adding a new medical diary category, the Medical 
Improvement Likely (MIL) diary category. When we assign a case to the 
MIL diary category, we would review it approximately every two years, 
which is less frequently than cases in the MIE diary category, but more 
frequently than cases in the MIP and MINE diary categories. We schedule 
cases for a FMR or a mail questionnaire based on our predictive model 
that identifies the cases most likely to exhibit MI (i.e., where MI is 
most likely to have occurred).
    This proposed expansion of the diary categories reflects changes 
brought by our experience over time administering CDRs in the existing 
three categories. When we analyzed CDR case outcomes for MIE diaries, 
we noticed that there were some types of cases where the MIE category 
resulted in a continuance for the first CDR but resulted in a cessation 
\35\ for the subsequent CDR.\36\ This was often an indication that the 
first CDR was conducted too early to identify MI. We also realized that 
our employee operating instructions already recognize that the 6 to 18 
month period for MIE diaries is not adequate for some impairments we 
expect to improve.\37\ In particular, we set longer MIE diaries (2

[[Page 63591]]

years) for several impairments, such as leukemia, lymphoma, and 
malignant solid tumors in children. Based on the number of cases that 
seemed to fall between the MIE and MIP diary periods, we analyzed CDR 
outcomes for certain conditions, their assigned diary categories, and 
their associated MI rates. We identified several conditions that could 
have diaries in either the MIE or MIP categories. The MI rates were 
similar between both diary categories, suggesting that the MIP diary 
may not have captured MI at the optimum time.\38\ As a result, we are 
proposing to add a fourth category between MIE and MIP that would allow 
us to align our CDRs more directly to when certain conditions are more 
likely to medically improve. Additionally, adjusting the frequency of 
review for several diary categories reflects our experience for what 
timeframes are more likely to result in identifying MI at the earliest 
point, as we discuss in section C.
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    \35\ A cessation is a determination or decision that the 
disabled individual no longer meets the definition of disability and 
is not eligible to continue to receive benefits or payments see 20 
CFR 404.1597 and 416.995.
    \36\ See the Supporting Document ``Cessation Rates by 
Impairment'' under Docket No. SSA-2018-0026 at: www.regulations.gov.
    \37\ POMS DI 26525.030 at: https://secure.ssa.gov/apps10/poms.nsf/lnx/0426525030.
    \38\ See the Supporting Document ``Cessation Rates by Diary 
Category'' under Docket No. SSA-2018-0026 at: www.regulations.gov.
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    For many disabling impairments, the key element for MI is a 
person's receipt of treatment that can decrease the severity of the 
impairment and its effects. When people do not receive adequate 
treatment, any MI in the disabling impairment(s) may not occur when we 
would otherwise expect it for impairments likely to improve. This is 
especially important in light of the data documenting the percentage of 
individuals with unmet health care needs. In 2015, 31.4 percent of 
people with two or more chronic conditions delayed, or did not obtain, 
needed medical care due to a cost or other non-cost reason (even if 
they had health insurance).\39\ Scheduling a CDR under the MIE category 
(6 to 18 months) may be premature when MI does not occur as expected 
due to unmet health care needs. The MIL diary category will allow us to 
assess MI after some beneficiaries benefit from access to health care 
through Medicare or Medicaid to determine if they continue to be 
eligible for benefits.
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    \39\ Ward, B.W., ``Barriers to health care for adults with 
multiple chronic conditions: United States, 2012-2015.'' NCHS data 
brief, no. 275. Hyattsville, MD: National Center for Health 
Statistics, 2017.
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    When we identify and evaluate MI at its earliest point, 
beneficiaries know the CDR outcome and can make plans for their return 
to the labor force within a shorter period of time. We believe that 
there may be positive employment effects as a result of these proposed 
rules, although we cannot currently quantify them. For example, using 
our administrative data \40\ on entitlement periods and earnings for a 
group of beneficiaries and recipients whose benefits terminated due to 
a 1997 statutory change, a researcher at the National Bureau of 
Economic Research looked at the effect of the loss of benefit 
eligibility on work activity during the year of benefit termination and 
the next 11 years (1997 through 2008).\41\ Overall, about 22 percent 
returned to work at an SGA level during the first three years following 
benefit termination.
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    \40\ Supplemental Security Record--March and June 1996 DA&A 
Extracts; Supplemental Security Record--Longitudinal File; Master 
Beneficiary Record--810 File; Disability Master File/831 File; 
Numident File; Master Earnings File. See Moore, T. J., ``The 
employment effects of terminating disability benefits,'' Journal of 
Public Economics, vol. 124(C), 2015, Appendix A.
    \41\ Id., pp. 30-43.
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    In many cases, shortening the time a person spends out of the labor 
force may improve work outcomes. Our analysis of our administrative 
data confirms that the majority of all working-age people in the 
general population \42\ who spend one year or more out of the work 
force \43\ do not return to work at an SGA level.\44\ However for those 
people who do return to the work force, employment rates are higher the 
shorter the time a person is out of the work force. For example, in 
2013, 35.5 percent of the 40-year-old adults who had been out of the 
work force for 1 year returned to work at an SGA level. The percentage 
of the 40-year-olds who returned to work at an SGA level dropped to 
27.1 percent after 2 years out of the work force, 17 percent after 3 
years, and to only 7.4 percent after 7 years. In the same year, 30.7 
percent of the 50-year-old adults out of the work force for 1 year 
returned to work at an SGA level, 23.5 percent after 2 years, 14 
percent after 3 years, and only 5.5 percent after 7 years out of the 
work force.\45\ Although the data shows a modest correlation between 
the length of time outside of the workforce and likelihood of 
reentering at an SGA level, the data does not provide evidence of 
causality between the two.
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    \42\ This group includes people who are not SSA beneficiaries, 
as well as people who are SSA beneficiaries.
    \43\ ``Time out of the labor market'' means years without 
earnings above $1,000.
    \44\ See SSA Office of Research, Evaluation, and Statistics 
(ORES) analysis of data from the Continuous Work History Sample, 
Likelihood of Returning to Employment by Age and Time Out of the 
Labor Market. Available at regulations.gov as supporting and related 
material for docket SSA-2018-0026.
    \45\ Id.
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    The employment response to Social Security Disability Income (SSDI) 
and SSI income loss is supported by recent research by our Office of 
Research, Demonstration, and Employment Support (ORDES), that looked at 
earnings for the 5-year period after SSDI and SSI beneficiaries had 
their benefits ceased following a FMR.\46\ The ORDES researchers found 
that ``[t]he majority of ceased beneficiaries have some earnings in the 
5 years after a FMR cessation.'' \47\ In this research, the researchers 
also found that the percentage of former beneficiaries with earnings 
from work 5 years after a FMR cessation declines with age from 
``[n]early 90% of ceased beneficiaries aged 18 to 30'' to ``below 60% 
for beneficiaries aged 50 to 59.'' \48\ They also analyzed employment 
outcomes based on the type of diaries established on the cases and 
found that beneficiaries who had a MIE diary set (with a higher 
probability of MI) had higher rates of employment and earnings 
following benefit termination than those who had a MIP or MINE diary.
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    \46\ Hemmeter, J. and Bailey, M.S., ``Earnings after DI: 
evidence from full medical continuing disability reviews,'' IZA 
Journal of Labor Policy, vol. 5 (1), 1-22. doi:http://dx.doi.org/10.1186/s40173-016-0066-9.
    \47\ Id., p. 15.
    \48\ Id., p. 12.
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    Further, there is evidence that parents of SSI children who 
medically improve offset the loss of SSI benefits through earned 
income. Research on the effect of SSI payments on household income and 
earnings found that ``. . . a [household] loss of $1,000 in the child's 
SSI payment [due to the loss of payments after a CDR \49\] increases 
parental earnings--by $700 to $1,400.'' \50\ Furthermore, there was ``. 
. . some evidence that the volatility [variability] of parental 
earnings decreases in response to the child's removal from SSI.'' \51\ 
The evidence did not demonstrate a similar rise in income from other 
unearned income sources, including other disability income sources. The 
evidence also showed that the loss of the child's SSI payments 
decreased the number of SSDI and SSI applications from other members of 
the household. These responses to the loss of SSI payments suggest that 
there may be a shift in the reliance on SSDI and SSI as a permanent, 
reliable income source for the household.
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    \49\ The loss of benefits was due to MI in the child's 
conditions identified through the CDR process.
    \50\ Deshpande, M., ``The effect of disability payments on 
household earnings and income: Evidence from the SSI children's 
program, The Review of Economics and Statistics, 98(4), (2016), p. 
639. Available at: https://www.mitpressjournals.org/doi/pdf/10.1162/REST_a_00609.
    \51\ Id.

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[[Page 63592]]

B. Revising the Criteria We Follow To Assign Each Case to Each Diary 
Category

    We propose revising the criteria we use to assign a diary for a 
case. We provided broad descriptions of the types of cases in each 
diary category when we established the three diary categories in 
1986.\52\ We have provided detailed guidance on specific impairments to 
be assigned to each category in our employee operating 
instructions.\53\ Although we intend to continue that practice, we will 
also revise our guidance on the types of impairments considered in the 
three existing diary categories to accommodate the addition of the MIL 
diary category. In making these revisions, we will consider advances in 
medical technology and treatment that has improved outcomes for many 
impairments. For example, improvements in medication regimens for 
individuals with human immunodeficiency virus (HIV) infection have 
resulted in a change from a disease that was invariably fatal to a 
chronic condition that ``allows high levels of functioning and 
prolonged survival.'' \54\ When we revised our rules for evaluating HIV 
in 2016,\55\ we revised our operating instructions for setting CDR 
diaries. We now establish the CDR diary based on the facts of the case 
and no longer set a MINE diary automatically. We have only made one 
other change in diary category for a specific impairment: Changing lung 
transplants from MIE to MIP--lengthening the review period based on 
outcomes and mortality data. Prior to these two recent changes, the 
last set of changes we made were in the mid- to late-1990s based on 
administrative data.
---------------------------------------------------------------------------

    \52\ 51 FR 16818 (May 7, 1986).
    \53\ POMS DI 26525.000 at: https://secure.ssa.gov/apps10/poms.nsf/lnx/0426525000.
    \54\ Institute of Medicine (2010). HIV and Disability: Updating 
the Social Security Listings. Washington, DC: The National Academies 
Press. Retrieved from: https://www.nap.edu/read/12941/chapter/1#ix.
    \55\ 81 FR 86915, December 2, 2016.
---------------------------------------------------------------------------

    We also propose to modify the criteria for the existing diary 
categories (MIE, MIP, and MINE) and establishing criteria for the new 
category as described below. We initially selected the medical 
conditions based on when our predictive model suggests improvement and 
medical evidence. We solicit public comment on information that would 
help inform impairment classification to most effectively align medical 
criteria with the correct diary category.
    1. MIE diary: We currently set an MIE diary for a case if we expect 
the disabling impairment to improve. Several factors can prompt an MIE 
diary, such as current significant, sustained, and progressive 
improvement; recent or planned interventions or treatment that should 
result in significant and sustained MI; onset of the disabling 
impairment within the last 12 months with no irreversible organ or 
structural damage and favorable response to current treatment; or 
recent or planned surgery that is expected to resolve the 
impairment.\56\ We also establish a MIE diary for favorable 
determinations and decisions based on medical listings that include a 
specified period of disability as set out in the regulations (e.g., 
3.03, Asthma, 6.04, Chronic kidney disease, with kidney transplant, 
103.03, Asthma, and 106.04, Chronic kidney disease, with kidney 
transplant) and for most cases allowed based on an infant's low birth 
weight.
---------------------------------------------------------------------------

    \56\ POMS DI 26525.025 at: https://secure.ssa.gov/apps10/poms.nsf/lnx/0426525025.
---------------------------------------------------------------------------

    We propose to continue to use the MIE diary category for allowances 
we make based on medical listings that include a specified period of 
disability as indicated above and for allowances based on an infant's 
low birth weight. With the exception of claims we allow based on low 
birth weight, the criteria for establishing MIE diaries will be the 
same for adults and children.
    We will publish and include in our publicly accessible employee 
operating instructions those impairments for which an MIE diary is 
appropriate because we expect them to improve.\57\ We will still 
evaluate whether disability continues for a person with an impairment 
or combination of impairments in the MIE category using our existing 
rules.
---------------------------------------------------------------------------

    \57\ POMS at: https://secure.ssa.gov/poms.nsf/Home?readform.
---------------------------------------------------------------------------

    We may revise the frequency of review for certain impairments 
because of improved tests, treatment, or other medical advances 
concerning the impairments.\58\ We may also revise the frequency of 
review for certain impairments based on our predictive modeling. When 
we change the diary category for specific impairments, we will update 
the list of impairments in the MIE, MIL, and MINE diary categories that 
we maintain in our employee operating instructions, which are publicly 
accessible.\59\
---------------------------------------------------------------------------

    \58\ 20 CFR 404.1590(e), 416.990(e).
    \59\ POMS DI 26525.000 at: https://secure.ssa.gov/apps10/poms.nsf/lnx/0426525000.
---------------------------------------------------------------------------

    When combined with the frequency changes described in section C, we 
anticipate completing about 1.2 million FMRs (out of approximately 7.3 
million total), as well as 56,000 mailer deferral reviews (out of 
approximately 12 million total) from fiscal years (FY) 2020-2029 in the 
MIE category. Additionally, of the 1.2 million FMRs, 746,000 would 
affect title II beneficiaries, and 459,000 would affect title XVI 
recipients (including 240,000 child CDRs,\60\ 15,000 age 18 
redeterminations,\61\ and 204,000 adult medical reviews over 10 years). 
Similarly, of the 56,000 mailer deferral reviews, review for 35,000 
title II beneficiaries and 22,000 recipients would result in 
deferrals.\62\
---------------------------------------------------------------------------

    \60\ This figure includes 115,000 CDRs for low birth weight 
infants.
    \61\ Age 18 redeterminations are considered a part of the CDR 
workload for planning and budget purposes. However, the assigned 
diary category does not affect the selection for review. 
Furthermore, all age 18 redeterminations receive a FMR.
    \62\ The total mailer deferral reviews does not equal the sum of 
components due to rounding.
---------------------------------------------------------------------------

    We based the workload estimates on the impairments we expect to 
include in the MIE diary category as explained in this NPRM. We 
identified the impairments to be included in the MIE diary category on 
our recent data and experience with CDR outcomes.\63\ Once we implement 
the final rules, we may change the impairments included in the MIE 
category based on the comments we receive on this NPRM, advances in 
medical knowledge, our predictive modeling, and our data on CDR 
outcomes.
---------------------------------------------------------------------------

    \63\ The impairments tentatively identified for inclusion in the 
MIE diary category are included in the Supporting Document 
``Underlying Assumptions on Impairments in CDR Diary Categories,'' 
under Docket No. SSA-2018-0026 at: www.regulations.gov. These 
characteristics were used in the underlying assumptions to estimate 
changes in the programmatic and administrative cost for this 
proposed rule.
---------------------------------------------------------------------------

    2. MIL diary: This is a new diary category. We propose to use the 
MIL diary category, instead of the MIE or MIP diary categories, to 
conduct reviews for specific impairments that typically do not result 
in permanent, irreversible structural damage and are amenable to 
improving with treatment. This category will apply to impairments in 
both adults and children, and will include some claims that currently 
fall into the MIE and MIP diary categories. Some examples of claims 
that we expect to include in this category are favorable determinations 
and decisions for both adults and children based on cancer listings 
that include a specified minimum period of disability (for example, 
leukemia, lymphoma), anxiety disorders, speech impairments, and 
malignant solid tumors in children. This category will also include 
cases in which we make a favorable determination or decision based on 
the

[[Page 63593]]

inability to adjust to other work (i.e., allowances at step 5 of the 
sequential evaluation process \64\). We would include step 5 allowances 
in the MIL diary category unless we would establish a MINE diary based 
on the impairment and specific case characteristics identified in 
section B.4 below.
---------------------------------------------------------------------------

    \64\ See 20 CFR 404.1520(a)(4)(v) and 416.920(a)(4)(v).
---------------------------------------------------------------------------

    We will also include some childhood disability claims in this 
category for children who are approaching a chronological age with key 
developmental activities, for example, age 6 with a transition into 
formal education, and at age 12 with a transition into adolescence.
    We will publish and include in our publicly accessible employee 
operating instructions those impairments that for which an MIL diary is 
appropriate because they are amenable to treatment and likely to 
improve.\65\ As in any other case, we will evaluate whether disability 
continues for a person with an impairment or combination of impairments 
in the MIL category using our existing rules.
---------------------------------------------------------------------------

    \65\ POMS at: https://secure.ssa.gov/poms.nsf/Home?readform.
---------------------------------------------------------------------------

    When combined with the frequency changes described in section C, we 
anticipate completing about 1.8 million FMRs (out of approximately 7.3 
million total), as well as 2.6 million mailer deferral reviews (out of 
approximately 12 million total) from FYs 2020-2029 in the MIL category. 
Additionally, of the 1.8 million FMRs, 579,000 would affect title II 
beneficiaries, and 1.2 million would affect title XVI beneficiaries 
(including 627,000 child CDRs, 152,000 age 18 redeterminations, and 
406,000 adult CDRs over 10 years). Similarly, of the 2.6 million mailer 
deferral reviews, reviews of 1.8 million title II beneficiaries and 
814,000 title XVI recipients would result in deferrals.
    Our Office of the Chief Actuary based the workload estimates on the 
impairments we expect to include in the MIL category as explained in 
this NPRM. We identified the impairments to be included in the MIL 
diary category on our recent data and experience with CDR outcomes. 
Once we implement the final rules, we may change the impairments 
included in the MIL category based on the comments we receive on this 
NPRM, medical advances, predicative modeling, and our data on CDR 
outcomes.\66\
---------------------------------------------------------------------------

    \66\ The impairments or other case characteristics, tentatively 
identified for inclusion in the MIL diary category are included in 
the Supporting Document ``Underlying Assumptions on Impairments in 
CDR Diary Categories,'' under Docket No. SSA-2018-0026 at: 
www.regulations.gov. These characteristics were used in the 
underlying assumptions to estimate changes in the programmatic and 
administrative cost for this proposed rule.
---------------------------------------------------------------------------

    3. MIP diary: We currently establish a MIP diary when the case does 
not meet the criteria for establishing a MIE, MINE, or vocational 
reexamination diary.\67\ We also establish MIP diaries for most 
favorable determinations based on cancer, except when we based the 
favorable determination on a cancer listing that includes a specified 
minimum period of disability. For example, under listing criterion 
13.06, Leukemia, we consider the person ``under a disability until at 
least 24 months from the date of diagnosis or relapse.''
---------------------------------------------------------------------------

    \67\ A vocational reexamination diary is set to review a case at 
a later date because the person is undergoing vocational therapy, 
training, or an educational program that is expected to improve the 
ability to work to the extent that the person is no longer disabled.
---------------------------------------------------------------------------

    Although we propose using specific claim characteristics to 
determine cases in the MIE, MIL, and MINE diary categories, most cases 
would receive a MIP diary because the impairment(s) does not meet the 
criteria for establishing a MIE, MIL, or MINE diary. In effect, it 
would be the diary of ``last resort'' for impairments that do not fit 
into the other three diary categories. We would retain our current 
policy using the MIP diary category for cases that are allowed based on 
meeting or equaling a cancer listing if section 13.00H2 applies, that 
is, ``we will consider an impairment(s) . . . disabling until at least 
3 years after onset of complete remission.'' \68\
---------------------------------------------------------------------------

    \68\ 20 CFR part 404, subpart P, appendix 1.
---------------------------------------------------------------------------

    When combined with the frequency changes described in section C, we 
anticipate completing about 3.7 million FMR (out of approximately 7.3 
million total), as well as 6.5 million mailer deferral reviews (out of 
approximately 12 million total) from FYs 2020-2029 in the MIP category. 
Additionally, of the 3.7 million FMRs, 1.3 million would affect title 
II beneficiaries, and 2.4 million would affect title XVI beneficiaries 
(including 1.1 million child CDRs, 427,000 age 18 redeterminations, and 
908,000 adult CDRs over 10 years). Similarly, of the 6.5 million mailer 
deferral reviews, reviews of 4.7 million title II beneficiaries and 1.9 
million title XVI recipients would result in deferrals.\69\
---------------------------------------------------------------------------

    \69\ The total mailer deferral reviews does not equal the sum of 
components due to rounding.
---------------------------------------------------------------------------

    These estimates are based on the assumptions that, if the case does 
not meet any of the MIE or MIL criteria, then current rules for MIP 
diary category continue to apply and the diary will be determined 
according to current rules.
    4. MINE diary: We currently set a MINE diary when the person has a 
chronic or progressive impairment or a combination of impairments, with 
permanent, irreversible structural damage or functional loss for which 
there is no known effective therapy, treatment, or surgical 
intervention. Generally, impairments with permanent, irreversible 
structural damage or functional loss will meet or medically equal a 
listing in the Listing of Impairments.\70\ Both children and adults may 
have an impairment in the MINE diary category. Examples of impairments 
in the MINE diary category that occur in both children and adults 
include muscular dystrophy, Down syndrome, cerebral palsy, and chronic 
kidney disease with dialysis. Examples of impairments in the MINE diary 
category that generally occur only in adults include amyotrophic 
lateral sclerosis, multiple sclerosis, and Huntington's disease. We may 
also set a MINE diary currently for a case where the person has an 
impairment, or combination of impairments, that is static or 
progressive, and, when considered with vocational factors, may be 
considered permanent.
---------------------------------------------------------------------------

    \70\ Id.
---------------------------------------------------------------------------

    We propose to retain the category criteria for cases with a chronic 
or progressive impairment, or combination of impairments, with 
permanent, irreversible structural damage or functional loss and for 
which there is no known effective therapy, treatment, or surgical 
intervention. Most of the impairments we consider permanent will meet 
or equal a listing in the Listing of Impairments.\71\ For impairments 
that do not meet or equal a listing, we propose to retain consideration 
of the interaction of a person's age, functional limitations resulting 
from the impairment(s), and the time since the person last engaged in 
SGA when we decide if the person's impairment(s) is permanent and, 
thus, subject to a MINE diary. For example, we would consider a 
person's schizophrenia to be a permanent impairment and subject to a 
MINE diary if the person was age 46\1/2\ at the time of review and the 
onset was at least five years before the determination.\72\
---------------------------------------------------------------------------

    \71\ Id.
    \72\ POMS DI 26525.045B at: https://secure.ssa.gov/apps10/poms.nsf/lnx/0426525045.
---------------------------------------------------------------------------

    We currently identify 10 impairments that would receive a MINE 
diary based on the interaction of age and functional limitations and an 
additional seven based on the interaction of age,

[[Page 63594]]

functional limitations, and time out of the workforce. Step 5 
allowances based on these 17 impairments would continue to receive a 
MINE diary. The table below describes our proposed sub-regulatory 
guidance for the 17 impairments that will be assigned a MINE diary 
based on vocational factors in combination with specific impairments. 
These impairments are subject to change with advancements in medical 
treatments and findings from our predictive model.

------------------------------------------------------------------------
                                       Age, functional limitations, and
   Age and functional limitations          time out of the workforce
------------------------------------------------------------------------
Amyotrophic lateral sclerosis         Depressive, bipolar and related
Angina                                 disorders.
Late effects of injuries to the       Huntington's disease.
 nervous system                       Intellectual disorder.
Multiple sclerosis                    Late effects of cerebrovascular
Other diseases of the spinal cord      disease.
Parkinsonian syndrome                 Neurocognitive disorders.
Peripheral arterial disease           Other cerebral degenerations.
Phlebitis                             Schizophrenia spectrum and other
Rheumatoid arthritis                   psychotic disorders.
Spondylitis
------------------------------------------------------------------------

    When combined with the frequency changes described in section C, we 
anticipate completing about 559,000 FMRs (out of approximately 7.3 
million total), as well as 2.8 million mailer deferral reviews (out of 
approximately 12 million total) from FYs 2020-2029 in the MINE 
category. Additionally, of the 559,000 FMRs, 223,000 would affect title 
II beneficiaries, and 336,000 would affect title XVI recipients 
(including 33,000 child CDRs, 188,000 age 18 redeterminations, and 
115,000 adult CDRs over 10 years). Similarly, of the 2.8 million mailer 
deferral reviews, reviews of 2.0 million title II beneficiaries and 
826,000 title XVI recipients would result in deferrals.
---------------------------------------------------------------------------

    \73\ 20 CFR 404.1590(c), (d), 416.990(c), (d).
---------------------------------------------------------------------------

    These estimates are based on the assumptions that, if the case does 
not meet any of the proposed criteria for the MIE and MIL diary 
categories, then current rules for the MINE diary category continue to 
apply and the diary will be determined according to current rules.

C. The Frequency of a CDR for Each of the Four Medical Diary Categories

    Finally, we propose to retain two and revise one of our existing 
medical diary categories rules on how often we perform a CDR. The 
following table summarizes the differences between the current and 
proposed policies:

------------------------------------------------------------------------
       Diary category            Current policy        Proposed policy
------------------------------------------------------------------------
MIE.........................  6-18 months.........  6-18 months
                                                     (unchanged).
MIL.........................  NA..................  2 years.
MIP.........................  3 years.............  3 years (unchanged).
MINE........................  5 to 7 years........  6 years.
------------------------------------------------------------------------

    As stated earlier, unless a question of continuing disability is 
raised in a particular case, we currently schedule CDRs to be performed 
every 6-18 months for cases in the MIE diary category, at least once 
every 3 years for cases in the MIP diary category, and no less 
frequently than once every 7 years but no more frequently than once 
every 5 years for cases in the MINE diary category.\73\ We propose to 
retain the current timeframes for cases in the MIE diary category (6-18 
months) and the MIP diary category (at least once every 3 years) 
because we structured the new diary category to identify the cases 
likely to improve between 18 months and 3 years. The timeframe for 
cases in the proposed MIL diary category will be at least once every 2 
years.
    We propose to revise the timeframe for cases in the MINE diary 
category from no less frequently than once every 7 years but no more 
frequently than once every 5 years, to at least once every 6 years. 
When we published the current rules in 1986, we stated that ``[a]ll 
individuals with permanent impairments will be assigned a 7-year review 
cycle.'' \74\ We also noted that the rules established flexibility in 
the frequency of review ``to permit assigning different review periods 
to different permanent impairment categories should future experience 
indicate it to be more appropriate to review certain impairments on 
different time cycles than others.'' \75\
---------------------------------------------------------------------------

    \74\ 51 FR 16821 (May 7, 1985).
    \75\ Id.
---------------------------------------------------------------------------

    Since we began using the current rules in 1986, we have not used a 
shorter review period for permanent impairments. When we have 
identified the need to change the diary categories for specific 
impairments, it has involved a change in classification from permanent 
to nonpermanent impairments. For example, we changed the overall 
classification of HIV from a permanent to nonpermanent impairment. We 
have not identified any permanent impairments for which a 5-year review 
period is medically appropriate. Based on this experience, we believe 
that maintaining the variable period of review for permanent 
impairments is not necessary. Therefore, we propose to set the review 
period for permanent impairments, that is, the MINE diary, at 6 years 
in order to identify such improvement at its earliest point while 
providing enhanced consistency and clarity surrounding the review 
cycle's timeline.
    We propose to revise the timeframes for the frequency of the 
medical diary categories as described above for the same reasons we 
propose to expand the medical diary categories, to ensure that we 
continue to identify MI at its earliest point so that beneficiaries who 
have medically improved and are no longer disabled return to the 
workforce at the earliest point possible.
    As a result of the addition of the MIL category and the change in 
frequency for certain categories, we expect the following workload 
shifts in the anticipated number of full medical CDRs completed over 
the 10-year period from FYs 2020-2029:

----------------------------------------------------------------------------------------------------------------
                                                  CDRs under      CDRs under                     Percent change
                Diary category                      current        proposed     Net change \1\     vs. current
                                                 category \1\    category \1\                    category total
----------------------------------------------------------------------------------------------------------------
MIE...........................................             986           1,205             219              22.2

[[Page 63595]]

 
MIL...........................................  ..............           1,764           1,764  ................
MIP...........................................           4,605           3,738            -867             -18.8
MINE..........................................             559             559  ..............  ................
                                               -----------------------------------------------------------------
    Total.....................................           6,150           7,267           1,116              18.1
----------------------------------------------------------------------------------------------------------------
\1\ Calculated in thousands.

    Although we are proposing to revise the criteria for assigning 
diary categories to cases and to revise the frequency of CDRs for some 
cases, we are not changing the manner in which we conduct CDRs. We will 
continue to decide whether to initiate a FMR or send a mailer after 
profiling all cases to identify the likelihood of MI, as described in 
section I.B. above.

D. Additional Technical Changes

    We propose to remove Sec. Sec.  404.1577 Disability defined for 
widows, widowers, and surviving divorced spouses for monthly benefits 
payable for months prior to January 1991, 404.1578 How we determine 
disability for widows, widowers, and surviving divorced spouses for 
monthly benefits payable for months prior to January 1991, and 404.1579 
How we will determine whether your disability continues or ends. The 
rules in these sections apply to determining disability or continuing 
disability for widows, widowers, or surviving divorced spouses monthly 
benefits \76\ payable for months prior to January 1991. All widows, 
widowers, and surviving divorced spouses who were affected by this 
regulation have reached full retirement age and are receiving monthly 
benefits based on age, not disability. Therefore, the regulations are 
obsolete and no longer needed.
---------------------------------------------------------------------------

    \76\ See 20 CFR 404.335(c).
---------------------------------------------------------------------------

    We also propose to revise Sec.  404.1511 Definition of disabling 
impairment, which refers to the standard for widows, widowers, and 
surviving divorced spouses for monthly benefits for months prior to 
January 1991. In alignment with the removal of Sec.  404.1579, we 
propose to revise Sec.  404.1501 Scope of subpart, Sec.  404.1505 Basic 
definition of disability, Sec.  404.1529 How we evaluate symptoms, 
including pain, and Sec.  404.1593 Medical evidence in continuing 
disability review cases, which refer to Sec.  404.1579. Finally, we 
propose to revise Sec.  404.335 How do I become entitled to widow's or 
widower's benefits?, Sec.  404.336 How do I become entitled to widow's 
or widower's benefits as a surviving divorced spouse?, and Sec.  
404.1576 Impairment-related work expenses, which refer to Sec.  
404.1577 or Sec.  404.1578.
    We propose to revise current Sec. Sec.  404.1590(f)-(g) and 
416.990(f)-(g) (proposed Sec. Sec.  404.1590(e)-(f) and 416.990(e)-(f)) 
to improve readability. We also propose to remove the reference to the 
Social Security Disability Benefits Reform Act of 1984 (Pub. L. 98-460) 
in current Sec. Sec.  404.1590(g) and 416.990(g) because the reviews 
required by this law were a one-time workload and have been completed.
    We propose to make conforming changes in proposed Sec. Sec.  
404.1590(h) and 416.990(h) to reflect the redesignation of current 
Sec. Sec.  404.1590(b)(4)-(b)(8), 404.1590(i), 416.990(b)(4)-(b)(8), 
and 416.990(i).

E. What Rules Are Not Changing

    We are not changing the Medical Improvement Review Standard that we 
use to determine whether a person continues to meet the disability 
requirements of the Act.\77\
---------------------------------------------------------------------------

    \77\ 42 U.S.C. 423(f); 20 CFR 404.1594, 416.994, 416.994a.
---------------------------------------------------------------------------

    The rule that we will not initiate a medical CDR during any period 
in which a person is using a ticket under the Ticket to Work program 
remains in place with no change.\78\ The primary purpose of this 
provision is to ensure that Ticket to Work program participants are not 
inhibited in their attempts to work or pursue an employment plan by the 
fear that such activities will increase the likelihood that their 
benefits will be terminated in a medical review. This provision allows 
people to seek the services they need to work without increasing the 
likelihood that their benefits will be terminated by a CDR. This 
protection from a CDR will remain available for people who are using a 
ticket to work, and the incentive to participate enhanced.
---------------------------------------------------------------------------

    \78\ 42 U.S.C. 1320b-19; 20 CFR 404.1590(h), 411.165-411.226, 
416.990(h).
---------------------------------------------------------------------------

    We are also not changing the rule that exempts work activity as the 
sole basis for initiating a medical CDR for people who work and receive 
benefits based on disability under title II of the Act.\79\ This 
protection will continue for people who work and have received 
disability benefits under title II. As noted in section I.A. above, we 
will initiate regularly scheduled medical CDRs that are not triggered 
by work.
---------------------------------------------------------------------------

    \79\ 42 U.S.C. 421(m); 20 CFR 404.1590(i), 416.990(i).
---------------------------------------------------------------------------

III. Other Considerations

A. How Long These Proposed Rules Would Remain in Effect

    If we publish these proposed rules as final rules, they would 
remain in effect until we revise or rescind them.

B. Clarity of These Proposed Rules

    Executive Order 12866, as supplemented by Executive Order 13563, 
requires each agency to write all rules in plain language. Therefore, 
in addition to substantive comments on these proposed rules, we invite 
comments on how to make them easier to understand.
    For example:
     Would more, but shorter, sections be better?
     Are the requirements in the rules clearly stated?
     Is there clarity surrounding how diary assignments would 
change?
     Do we have the correct classifications for impairments 
that would shift into the MIL or other diary categories?
     Have we organized the material to suit the needs of the 
reader?
     Could we improve clarity by adding tables, lists, or 
diagrams?
     What else could we do to make the rules easier to 
understand?
     Do the rules contain technical language or jargon that is 
not clear?
     Would a different format make the rules easier to 
understand, e.g., grouping and order of sections, use of headings, 
paragraphing?
When will we start to use these rules?
    We will not use these rules until we evaluate public comments and 
publish final rules 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 final rules, we will include a summary 
of those relevant comments we received along with responses and

[[Page 63596]]

an explanation of how we will apply the new rules.

IV. Regulatory Procedures

Executive Order 12866, as Supplemented by Executive Order 13563

    We consulted with the Office of Management and Budget (OMB) on the 
significance of these proposed rules. Because the projected 10-year 
administrative costs of these proposed rules are $1.8 billion, we 
determined that this NPRM meets the criteria for a significant economic 
regulatory action under Executive Order 12866, section 3(f)(1), as 
supplemented by Executive Order 13563. Therefore, OMB reviewed it.

Executive Order 13132 (Federalism)

    We analyzed this NPRM in accordance with the principles and 
criteria established by Executive Order 13132, and determined that the 
proposed rules will not have sufficient Federalism implications to 
warrant the preparation of a Federalism assessment. We also determined 
that this NPRM will not preempt any State law or State regulation or 
affect the States' abilities to discharge traditional State 
governmental functions.

Regulatory Flexibility Act

    We certify that this NPRM will 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.

Executive Order 13771

    Based upon the criteria established in Executive Order 13771, we 
have identified the anticipated program costs and administrative costs 
as the following. These estimates are based on the sub-regulatory 
assumptions detailed in the diary category descriptions in the 
preceding pages and the supplemental document titled: ``Underlying 
Assumptions on Impairments in CDR Diary Categories.''

Anticipated Costs to Our Programs

    We estimate, based on the best available data, that this proposed 
rule, assuming that rediarying under the proposal would be implemented 
for all medical determinations or decisions made on or after June 1, 
2020, would result in a net increase of roughly 2.6 million additional 
CDRs over the period from FY 2020-2029--1.1 million (an 18.4 percent 
increase) additional FMRs and 1.5 million additional CDR mailer 
reviews. The additional FMRs are estimated to result in a net reduction 
in Old-Age, Survivors, and Disability Insurance benefit payments of 
$2.0 billion and a net decrease in federal SSI payments of $0.6 billion 
over that same period.

Anticipated Costs to the Public

    As discussed previously, we anticipate conducting an additional 1.1 
million additional full medical reviews from FYs 2020-2029 and an 
additional 1.5 million CDR mailer reviews when we implement these 
proposed rules following publication of final rules. We estimate that 
these additional CDRs will result in increased public ``opportunity 
costs'' of $16,352,000 over a 10-year period. This figure represents an 
estimated hourly average Disability Insurance (DI) payment (in lieu of 
an hourly wage, since respondents to this collection are not generally 
employed) of $10.22 multiplied by the additional annual burden hours 
resulting from the increased use of the two CDR Information Collection 
Requests (ICR) (OMB No. 0960-0072, full medical review and OMB No. 
0960-0511, CDR Mailer) x 10 (representing a 10-year period). To 
clarify, this figure does not represent actual costs that SSA is 
imposing on recipients of Social Security payments to complete a CDR 
ICR; rather, these are theoretical opportunity costs for the additional 
time respondents will spend to complete OMB No. 0960-0072 or OMB No. 
0960-0511 as a result of this policy.
    In some, though not all, cases, we may need to ask respondents' 
medical offices to provide us with updated medical records to 
supplement the CDR documentation submitted by the respondents. The time 
these offices' administrative staff spend to gather and submit files to 
us represents another potential source of opportunity costs. However, 
since we do not have data on the percentage of cases in which we need 
to request additional information, it is not currently possible for us 
to estimate lost opportunity costs in this area. However, if the public 
wishes to submit comments on this issue, we will take them under 
consideration for future opportunity cost calculations.
    The ``Paperwork Reduction Act'' section below in the preamble 
provides full burden calculations, including the time burden 
computations that informed the theoretical cost figure above. As 
discussed in that section, we are soliciting any additional feedback on 
assumptions made regarding the time burden of this collection and the 
theoretical opportunity cost to beneficiaries.

Anticipated Administrative Costs to SSA

    Our Office of Budget, Finance, and Management estimates increased 
administrative program integrity costs, in addition to current costs, 
of approximately $1.8 billion for the 10-year period from FYs 2020-
2029. The costs are driven largely by a projected net increase of 
roughly 2.6 million CDRs over the 10-year timeframe. This NPRM assumes 
the fully-loaded costs of performing the full medical CDRs, work CDRs, 
and mailers, consistent with methodology used in the budget.

Paperwork Reduction Act

    We use two existing OMB-approved ICRs as part of the medical review 
process: OMB No. 0960-0072 (``Continuing Disability Review Report,'' 
which is the full CDR form) and OMB No. 0960-0511 (``Disability Report 
Update,'' which is the abbreviated mailer CDR). We will not be changing 
these ICRs in any way to support these proposed rules. However, because 
the core policy of these proposed rules will cause a change in the 
frequency of use of these forms, increasing their public reporting 
burden for the first 10 years after implementation of the final rules, 
we are seeking OMB re-approval under the Paperwork Reduction Act for 
these ICRs. While the public is able to comment on any aspects of these 
ICRs, since we are only changing their frequency of use, not their 
content, comments speaking to the former issue would be most useful.
    Below are charts showing current burden estimates (time and 
associated opportunity costs) for both ICRs, as well as the total 
expected increase (the difference between the current and new 
estimates) resulting from implementation of the final rules. These 
estimates also helped to drive the opportunity cost figures cited in 
the ``Anticipated Costs to the Public'' section above.

[[Page 63597]]



             Table 1--Current and Projected New Annual Burden Figures for CDR ICR OMB No. 0960-0072
                                          [``Full'' CDR; Form SSA-454]
----------------------------------------------------------------------------------------------------------------
                                                                                                      Total
                                                                 Burden hours                      opportunity
                                  Number of     Response time   (respondents x     Opportunity    costs (burden
                                 respondents      (minutes)     response time/     costs/hour        hours x
                                                                      60)                          opportunity
                                                                                                  cost per hour)
----------------------------------------------------------------------------------------------------------------
Current Burden...............         703,000              60  703,000 hours...        * $10.22  $7,184,660.
Projected New Annual Burden           813,000              60  813,000 hours...         * 10.22  8,308,860.
 Upon Publication of a Final
 Rule for this Proposal.
Burden Change Resulting from          110,000  ..............  +110,00 burden    ..............  +$1,124,200
 Regulation.                                                    hours.                            opportunity
                                                                                                  costs.
----------------------------------------------------------------------------------------------------------------


             Table 2--Current and Projected New Annual Burden Figures for CDR ICR OMB No. 0960-0511
                                         [``Mailer'' CDR; Form SSA-455]
----------------------------------------------------------------------------------------------------------------
                                                                                                      Total
                                                                 Burden hours                      opportunity
                                  Number of     Response time   (respondents x     Opportunity    costs (burden
                                 respondents      (minutes)     response time/     costs/hour        hours x
                                                                      60)                          opportunity
                                                                                                  cost per hour)
----------------------------------------------------------------------------------------------------------------
Current Burden...............       1,100,000              15  275,000 hours...        * $10.22  $2,810,500
Projected New Annual Burden         1,300,000              15  325,000 hours...         * 10.22  3,321,500
 Upon Publication of a Final
 Rule for this Proposal.
Burden Change Resulting from          200,000  ..............  50,000 burden     ..............  +$511,000
 Regulation.                                                    hours.
----------------------------------------------------------------------------------------------------------------
* Calculated based on average DI payments.

Total Costs Associated With Implementation of These Proposed Rules Upon 
Publication in Final
     Time Burden: 160,000 burden hours (110,000 burden hour 
increase for OMB No. 0960-0072 plus 50,000 burden hour increase for OMB 
No. 0960-0511);
     Opportunity Cost Burden: $1,635,200 ($1,124,200 burden-
associated opportunity cost increase for OMB No. 0960-0072 plus 
$511,000 for burden-associated opportunity cost increase for OMB No. 
0960-0511).
    We are submitting an ICR for clearance to OMB. We are soliciting 
comments on the burden estimate; the need for the information; its 
practical utility; ways to enhance its quality, utility, and clarity; 
and ways to minimize the burden on respondents, including the use of 
automated techniques or other forms of information technology. If you 
would like to submit comments, please send them to the following 
locations:

Office of Management and Budget, Attn: Desk Officer for SSA, Fax 
Number: 202-395-6974, Email address: [email protected].
Social Security Administration, OLCA, Attn: Reports Clearance Director, 
3100 West High Rise, 6401 Security Blvd., Baltimore, MD 21235, Fax: 
410-966-2830, Email address: [email protected].

    You can submit comments until January 17, 2020, which is 60 days 
after the publication of this NPRM. To receive a copy of the OMB 
clearance package, contact the SSA Reports Clearance Officer using any 
of the above contact methods. We prefer to receive comments by email or 
fax.

(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, Reporting and recordkeeping 
requirements, Social security, Supplemental Security Income (SSI).

Andrew Saul,
Commissioner of Social Security.

    For the reasons stated in the preamble, we propose to amend 20 CFR, 
chapter III, part 404, subparts D and P, and part 416, subpart I, as 
set forth below:

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

Subpart D--Old-Age, Disability, Dependents' and Survivors' 
Insurance Benefits; Period of Disability

0
1. The authority citation for subpart D of part 404 continues to read 
as follows:

    Authority:  Secs. 202, 203(a) and (b), 205(a), 216, 223, 225, 
and 702(a)(5) of the Social Security Act (42 U.S.C. 402, 403(a) and 
(b), 405(a), 416, 423, 425, and 902(a)(5)).

0
2. Amend Sec.  404.335 by revising the paragraph (b) introductory text 
and removing paragraph (b)(4):


Sec.  404.335  How do I become entitled to widow's or widower's 
benefits?

* * * * *
    (b) You apply, except that you need not apply again if you meet one 
of the conditions in paragraphs (b)(1) through (3) of this section:
* * * * *
0
3. Amend Sec.  404.336 by revising the paragraph (b) introductory text 
and removing paragraph (b)(4):


Sec.  404.336  How do I become entitled to widow's or widower's 
benefits as a surviving divorced spouse?

* * * * *
    (b) You apply, except that you need not apply again if you meet one 
of the conditions in paragraphs (b)(1) through (3) of this section:
* * * * *

[[Page 63598]]

Subpart P--Determining Disability and Blindness

0
4. 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 
(h)-(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) and (h)-(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).

0
5. Amend Sec.  404.1501 by revising paragraph (i) and the first 
sentence of paragraph (j) to read as follows:


Sec.  404.1501   Scope of subpart.

* * * * *
    (i) In Sec. Sec.  404.1581 through 404.1587 we discuss disability 
due to blindness.
    (j) Our rules on when disability continues and stops are contained 
in Sec. Sec.  404.1588 through 404.1598. * * *
* * * * *
0
6. Amend Sec.  404.1505 by revising paragraph (b) to read as follows:


Sec.  404.1505   Basic definition of disability.

* * * * *
    (b) There are different rules for determining disability for 
individuals who are statutorily blind. We discuss these in Sec. Sec.  
404.1581 through 404.1587.
* * * * *


Sec.  404.1511  [Amended]

0
7. Amend Sec.  404.1511 by removing and reserving paragraph (b).
0
8. Amend Sec.  404.1529 by revising the last sentence of paragraph (d) 
introductory text to read as follows:


Sec.  404.1529  How we evaluate symptoms, including pain.

* * * * *
    (d) * * * Section 404.1594 explains the procedure we follow in 
reviewing whether your disability continues.
* * * * *
0
9. Amend Sec.  404.1576 by revising paragraph (b)(1) to read as 
follows:


Sec.  404.1576   Impairment-related work expenses.

* * * * *
    (b) * * *
    (1) You are otherwise disabled as defined in Sec. Sec.  404.1505 
and 404.1581-404.1583;
* * * * *


Sec.  404.1577   [Removed and Reserved]

0
10. Remove and reserve Sec.  404.1577.


Sec.  404.1578  [Removed and Reserved]

0
11. Remove and reserve Sec.  404.1578.


Sec.  404.1579   [Removed and Reserved]

0
12. Remove and reserve Sec.  404.1579.
0
13. Amend Sec.  404.1590 by:
0
a. Revising paragraph (a);
0
b. Revising the introductory text of paragraph (b), and revising 
paragraph (b)(1);
0
c. Removing paragraph (b)(2);
0
d. Redesignating paragraphs (b)(3) through (b)(10) as (b)(2) through 
(b)(9);
0
e. Removing the parenthetical sentence in redesignated paragraph 
(b)(2);
0
f. Revising redesignated paragraph (b)(6);
0
g. Revising paragraph (c);
0
h. Removing paragraph (d);
0
i. Redesignating paragraphs (e) through (i) as paragraphs (d) through 
(h);
0
j. Revising the second sentence in newly redesignated paragraph (d);
0
k. Revising redesignated paragraphs (e) and (f);
0
l. Revising the introductory text of newly redesignated paragraph 
(h)(1), and paragraph (h)(1)(ii);
0
m. Revising the first sentence of newly redesignated paragraph 
(h)(2)(i);
0
n. Revising the first sentence of newly redesignated paragraph 
(h)(2)(ii);
0
o. Revising the first sentence of newly redesignated paragraph (h)(3);
0
p. Revising newly redesignated paragraph (h)(4); and
0
q. Revising newly redesignated paragraph (h)(5)(i).
    The revisions to read as follows.


Sec.  404.1590  When and how often we will conduct a continuing 
disability review.

    (a) General. We conduct continuing disability reviews to determine 
whether or not you continue to meet the disability requirements of the 
law. Payment of cash benefits or a period of disability ends if the 
medical or other evidence shows that you are not disabled as determined 
under the standards set out in section 223(f) of the Social Security 
Act. In paragraphs (b) through (f) of this section, we explain when and 
how often we conduct continuing disability reviews for most people. In 
paragraph (g) of this section, we explain special rules for some people 
who are participating in the Ticket to Work program. In paragraph (h) 
of this section, we explain special rules for some people who work.
    (b) When we will conduct a continuing disability review. Except as 
provided in paragraphs (g) and (h) of this section, we will start a 
continuing disability review if--
    (1) You have been scheduled for one of the following diary reviews:
    (i) A medical improvement expected diary review;
    (ii) A medical improvement likely diary review;
    (iii) A medical improvement possible diary review; or
    (iv) A medical improvement not expected diary review;
* * * * *
    (6) Your employment network under the Ticket to Work program or 
State Vocational Rehabilitation Agency tells us that:
    (i) * * *
* * * * *
    (c) Definitions. As used in this section--
    Medical improvement expected (MIE) diary refers to a diary set for 
a case, which we schedule for review because your impairment(s) is 
expected to improve. Generally, the MIE diary period is set for not 
less than 6 months or for not more than 18 months. We publish and 
maintain a list of impairments that we expect to improve in our 
employee operating instructions, which are publicly accessible.
    Medical improvement likely (MIL) diary refers to a diary set for a 
case, which we schedule for review because your impairment(s) is likely 
to improve. We may also include determinations or decisions that we 
make at step 5 of the sequential evaluation process (see Sec.  
404.1520(a)(4)(v) and (g) of this chapter. Generally, the MIL diary 
period is set for 2 years. We publish and maintain a list of 
impairments that we consider likely to improve in our employee 
operating instructions, which are publicly accessible.
    Medical improvement possible (MIP) diary refers to a diary set for 
a case, which we schedule for review because your nonpermanent 
impairment(s) will possibly improve but we cannot determine with 
certainty that it is likely to improve. Generally, the MIP diary period 
is set for 3 years. We will assign this diary if your impairment(s) is 
nonpermanent and is not on the lists of impairments that we publish and 
maintain for MIE and MIL diaries.
    Medical improvement not expected (MINE) diary refers to a diary set 
for a case, which we schedule for review when we consider your 
impairment(s) permanent and for which we do not expect medical 
improvement in your impairment(s). We may consider the interaction of 
your age, consequences of your impairment(s), and lack of recent 
attachment to the labor market in determining whether to set a MINE 
diary. Generally, the MINE diary period is set for 6 years. We publish 
and maintain a list of impairments that we consider likely to improve 
in our employee operating instructions, which are publicly accessible.
    Nonpermanent impairment means an impairment that we do not consider

[[Page 63599]]

permanent and for which improvement is expected, likely, or possible, 
but cannot be predicted based on current experience and the facts of 
the particular case. We assign cases with nonpermanent impairments to 
one of the following diary categories: MIE, MIL, and MIP.
    Permanent impairment means an impairment for which we do not expect 
medical improvement. A permanent impairment is an extremely severe 
condition determined on the basis of our experience in administering 
the disability programs to be at least static, but more likely to be 
progressively disabling, either by itself or by reason of impairment 
complications, and unlikely to improve so as to permit you to engage in 
substantial gainful activity. Improvement which is considered temporary 
under Sec.  404.1594(c)(3)(iv) of this subpart will not be considered 
in deciding if an impairment is permanent. We assign cases with 
permanent impairments to the MINE diary category.
    Vocational reexamination diary refers to a case, which is scheduled 
for review at a later date because you are undergoing vocational 
therapy, training or an educational program which may improve your 
ability to work so that the disability or blindness requirement of the 
law is no longer met. Generally, the diary period will be set for the 
length of the training, therapy, or program of education.
    (d) * * * A change in the classification of your impairment may 
change the frequency with which we will review your case. * * *
    (e) Review after administrative appeal. If you were found eligible 
to receive or to continue to receive, disability benefit payments on 
the basis of a decision by an administrative law judge, the Appeals 
Council or a Federal court, we will not conduct a continuing disability 
review earlier than 3 years after that decision unless--
    (1) Your case should be scheduled for a MIE, MIL, or vocational 
reexamination diary review; or
    (2) A question of continuing disability is raised under paragraph 
(b) of this section.
    (f) Waiver of timeframes. We will review all cases with a 
nonpermanent impairment at least once every 3 years unless we, after 
consultation with the State agency, determine that the requirement 
should be waived to ensure that only the appropriate number of cases 
are reviewed. We will base the appropriate number of cases we will 
review on such considerations as the number of pending reviews, the 
projected number of new applications, and projected staffing levels. We 
will grant such waiver only after good faith effort on the part of the 
State to meet staffing requirements and to process the reviews on a 
timely basis. We may also consider availability of independent medical 
resources. A waiver in this context refers to our administrative 
discretion to determine the appropriate number of cases to be reviewed 
on a State-by-State basis. Therefore, under certain circumstances, we 
may delay your continuing disability review longer than 3 years 
following our original determination or decision or other review. We 
would base the delay on our need to ensure that pending reviews and new 
disability claims workloads are accomplished within available medical 
and other resources in the State agency and that such reviews are done 
carefully and accurately.
* * * * *
    (h) * * *
    (1) General. Notwithstanding the provisions in paragraphs (b)(3), 
(b)(4), (b)(5)(ii), (b)(6)(ii), and (b)(7)(iii) of this section, we 
will not start a continuing disability review based solely on your work 
activity if:
* * * * *
    (ii) You have received such benefits for at least 24 months (see 
paragraph (h)(2) of this section).
    (2) The 24-month requirement. (i) The months for which you have 
actually received disability insurance benefits as a disabled worker, 
child's insurance benefits based on disability, or widow's or widower's 
insurance benefits based on disability that you were due under title II 
of the Social Security Act, or for which you have constructively 
received such benefits, will count for the 24-month requirement under 
paragraph (h)(1)(ii) of this section, regardless of whether the months 
were consecutive. * * *
    (ii) In determining whether paragraph (h)(1) of this section 
applies, we consider whether you have received disability insurance 
benefits as a disabled worker, child's insurance benefits based on 
disability, or widow's or widower's insurance benefits based on 
disability under title II of the Social Security Act for at least 24 
months as of the date on which we start a continuing disability review. 
* * *
    (3) When we may start a continuing disability review even if you 
have received social security disability benefits for at least 24 
months. Even if you meet the requirements of paragraph (h)(1) of this 
section, we may still start a continuing disability review for a 
reason(s) other than your work activity. * * *
    (4) Reviews to determine whether the work you have done shows that 
you are able to do substantial gainful activity. Paragraph (h)(1) of 
this section does not apply to reviews we conduct using the rules in 
Sec. Sec.  404.1571-404.1576 of this subpart to determine whether the 
work you have done shows that you are able to do substantial gainful 
activity and are, therefore, no longer disabled.
    (5) * * *
    (i) You provide us evidence that establishes that you met the 
requirements of paragraph (h)(1) of this section as of the date of the 
start of your continuing disability review and that the start of the 
review was erroneous; and
* * * * *
0
14. Amend Sec.  404.1593 by revising the last sentence of paragraph (a) 
to read as follows:


Sec.  404.1593  Medical evidence in continuing disability review cases.

    (a) * * * See Sec.  404.1594.
* * * * *

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

Subpart I--Determining Disability and Blindness

0
15. The authority citation for subpart I of part 416 continues to read 
as follows:

    Authority:  Sec. 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, and 1382h note).

0
16. Amend Sec.  416.990 by:
0
a. Revising paragraph (a);
0
b. Revising the introductory text of paragraph (b), and paragraph 
(b)(1);
0
c. Removing paragraph (b)(2);
0
d. Redesignating paragraphs (b)(3) through (b)(10) as (b)(2) through 
(b)(9);
0
e. Removing the parenthetical sentence in newly redesignated paragraph 
(b)(2);
0
f. Revising newly redesignated paragraph (b)(6);
0
g. Revising paragraph (c);
0
h. Removing paragraph (d);
0
i. Redesignating paragraphs (e) through (i) as paragraphs (d) through 
(h);
0
j. Revising the second sentence in newly redesignated paragraph (d);
0
k. Revising newly redesignated paragraphs (e) and (f);
0
l. Revising newly redesignated paragraph (h) by revising the 
introductory text of paragraph (h)(1);

[[Page 63600]]

0
m. Revising newly redesignated paragraph (h)(1)(ii);
0
n. Revising the first sentence of newly redesignated paragraph 
(h)(2)(i);
0
o. Revising the first sentence of newly redesignated paragraph 
(h)(2)(ii);
0
p. Revising the first sentence of newly redesignated paragraph (h)(3); 
and
0
q. Revising newly redesignated paragraph (h)(4)(i).


Sec.  416.990.  When and how often we will conduct a continuing 
disability review.

    (a) General. We conduct continuing disability reviews to determine 
whether or not you continue to meet the disability or blindness 
requirements of the law. Payment ends if the medical or other evidence 
shows that you are not disabled or blind as determined under the 
standards set out in section 1614(a) of the Social Security Act if you 
receive benefits based on disability or Sec.  416.986 of this subpart 
if you receive benefits based on blindness. In paragraphs (b) through 
(f) of this section, we explain when and how often we conduct 
continuing disability reviews for most people. In paragraph (g) of this 
section, we explain special rules for some individuals who are 
participating in the Ticket to Work program. In paragraph (h) of this 
section, we explain special rules for some people who work and have 
received social security benefits as well as supplemental security 
income payments.
    (b) When we will conduct a continuing disability review. Except as 
provided in paragraphs (g) and (h) of this section, we will start a 
continuing disability review if--
    (1) You have been scheduled for one of the following diary reviews:
    (i) A medical improvement expected diary review;
    (ii) A medical improvement likely diary review;
    (iii) A medical improvement possible diary review; or
    (iv) A medical improvement not expected diary review;
* * * * *
    (6) Your employment network under the Ticket to Work program or 
State Vocational Rehabilitation Agency tells us that:
    (i) * * *
* * * * *
    (c) Definitions. As used in this section--
    Medical improvement expected (MIE) diary refers to a diary set for 
a case, which we schedule for review because your impairment(s) is 
expected to improve. Generally, the MIE diary period is set for not 
less than 6 months or for not more than 18 months. We publish and 
maintain a list of impairments that we expect to improve in our 
employee operating instructions, which are publicly accessible.
    Medical improvement likely (MIL) diary refers to a diary set for a 
case, which we schedule for review because your impairment(s) is likely 
to improve. We also include determinations made at step 5 of the 
sequential evaluation process (see Sec. Sec.  416.920(a)(4)(v) and (g) 
of this chapter). Generally, the MIL diary period is set for 2 years. 
We publish and maintain a list of impairments that we consider likely 
to improve in our employee operating instructions, which are publicly 
accessible.
    Medical improvement possible (MIP) diary refers to a diary set for 
a case, which we schedule for review because your impairment(s) will 
possibly improve but we cannot determine with certainty that it is 
likely to improve. Generally, the MIP diary period is set for 3 years. 
We will assign this diary if your impairment(s) is nonpermanent and is 
not on the lists of impairments that we publish and maintain for MIE 
and MIL diaries.
    Medical improvement not expected (MINE) diary refers to a diary set 
for a case, which we schedule for review when we consider your 
impairment(s) permanent and for which we do not expect medical 
improvement in your impairment(s). We may consider the interaction of 
your age, consequences of your impairment(s), and lack of recent 
attachment to the labor market in determining whether to set a MINE 
diary. Generally, the MINE diary period is set for 6 years. We publish 
and maintain a list of impairments that we consider permanent in our 
employee operating instructions, which are publicly accessible.
    Nonpermanent impairment means an impairment that we do not consider 
permanent and for which improvement is expected, likely, or possible, 
but cannot be predicted based on current experience and the facts of 
the particular case. We assign cases with nonpermanent impairments to 
one of the following diary categories: MIE, MIL, and MIP.
    Permanent impairment means an impairment for which we do not expect 
medical improvement. A permanent impairment is an extremely severe 
condition determined on the basis of our experience in administering 
the disability programs to be at least static, but more likely to be 
progressively disabling either by itself or by reason of impairment 
complications, and unlikely to improve so as to permit you to engage in 
substantial gainful activity, or if you are a child, unlikely to 
improve to the point that you will no longer have marked and severe 
limitations. Improvement which is considered temporary under Sec.  
416.994(b)(2)(iv)(D) or Sec.  416.994a(c)(3) of this subpart, will not 
be considered in deciding if an impairment is permanent. We assign 
cases with permanent impairments to the MINE diary category.
    Vocational reexamination diary refers to a case, which is scheduled 
for review at a later date because the individual is undergoing 
vocational therapy, training or an educational program which may 
improve his or her ability to work so that the disability or blindness 
requirement of the law is no longer met. Generally, the diary period 
will be set for the length of the training, therapy, or program of 
education.
    (d) * * * A change in the classification of your impairment may 
change the frequency with which we will review your case. * * *
    (e) Review after administrative appeal. If you were found eligible 
to receive or to continue to receive, disability benefit payments on 
the basis of a decision by an administrative law judge, the Appeals 
Council or a Federal court, we will not conduct a continuing disability 
review earlier than 3 years after that decision unless--
    (1) Your case should be scheduled for a MIE, MIL, or vocational 
reexamination diary review; or
    (2) A question of continuing disability is raised under paragraph 
(b) of this section.
    (f) Waiver of timeframes. We will review all cases with a 
nonpermanent impairment at least once every 3 years unless we, after 
consultation with the State agency, determine that the requirement 
should be waived to ensure that only the appropriate number of cases 
are reviewed. We will base the appropriate number of cases we will 
review on such considerations as the number of pending reviews, the 
projected number of new applications, and projected staffing levels. We 
will grant such waiver only after good faith effort on the part of the 
State to meet staffing requirements and to process the reviews on a 
timely basis. We may also consider availability of independent medical 
resources. A waiver in this context refers to our administrative 
discretion to determine the appropriate number of cases to be reviewed 
on a State-by-State basis. Therefore, under certain circumstances, we 
may delay your continuing disability review longer than 3-years 
following our original determination or decision or other review. We 
would base the delay on our need to ensure that pending reviews and new 
disability claims workloads are

[[Page 63601]]

accomplished within available medical and other resources in the State 
agency and that such reviews are done carefully and accurately.
* * * * *
    (h) * * *
    (1) General. Notwithstanding the provisions in paragraphs (b)(3), 
(b)(4), (b)(5)(ii), (b)(6)(ii), and (b)(7)(iii) of this section, we 
will not start a continuing disability review based solely on your work 
activity if:
* * * * *
    (ii) You have received such benefits for at least 24 months (see 
paragraph (h)(2) of this section).
    (2) * * * (i) The months for which you have actually received 
disability insurance benefits as a disabled worker, child's insurance 
benefits based on disability, or widow's or widower's insurance 
benefits based on disability that you were due under title II of the 
Social Security Act, or for which you have constructively received such 
benefits, will count for the 24-month requirement under paragraph 
(h)(1)(ii) of this section, regardless of whether the months were 
consecutive. * * *
    (ii) In determining whether paragraph (h)(1) of this section 
applies, we consider whether you have received disability insurance 
benefits as a disabled worker, child's insurance benefits based on 
disability, or widow's or widower's insurance benefits based on 
disability under title II of the Social Security Act for at least 24 
months as of the date on which we start a continuing disability review. 
* * *
    (3) When we may start a continuing disability review even if you 
have received social security disability benefits for at least 24 
months. Even if you meet the requirements of paragraph (h)(1) of this 
section, we may still start a continuing disability review for a 
reason(s) other than your work activity. * * *
    (4) * * *
    (i) You provide us evidence that establishes that you met the 
requirements of paragraph (h)(1) of this section as of the date of the 
start of your continuing disability review and that the start of the 
review was erroneous; and
* * * * *
[FR Doc. 2019-24700 Filed 11-15-19; 8:45 am]
 BILLING CODE 4191-02-P