[Federal Register Volume 89, Number 120 (Friday, June 21, 2024)]
[Proposed Rules]
[Pages 51990-51993]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-13554]


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

RAILROAD RETIREMENT BOARD

20 CFR Part 220

RIN 3220-AB71


Evidence of Disability

AGENCY: Railroad Retirement Board.

ACTION: Proposed rule; request for comments.

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

SUMMARY: The Railroad Retirement Board (RRB) proposes to amend its 
regulations to designate additional acceptable medical sources in 
disability claims under the Railroad Retirement Act. This change 
recognizes the evolution of how medical care and treatment are 
delivered and aligns the RRB's acceptable medical sources with recently 
amended regulations of the Social Security Administration (SSA). 
Additionally, the changes clarify existing RRB policy regarding how 
evidence from medical sources, other than those designated as 
acceptable medical sources, will be evaluated.

DATES: Submit comments on or before August 20, 2024.

ADDRESSES: You may submit comments, identified by RIN 3320-AB71, 
through any of the following methods:
    1. Internet--Send inquiries via email to 
[email protected].
    2. Fax--(312) 751-7102.
    3. Mail--Secretary to the Board, Railroad Retirement Board, 844 N 
Rush Street, Chicago, Illinois 60611-1275.
    Do not submit the same comment multiple times or by more than one 
method. Regardless of which method you choose, please indicate that 
your comments refer to RIN number 3220-AB71.
    Caution: You should be careful to include in your comments only 
information that you wish to make publicly available as comments are 
posted without change with any personal information provided. The RRB 
strongly urges you not to include in your comments any personal

[[Page 51991]]

information, such as Social Security numbers or medical information.

FOR FURTHER INFORMATION CONTACT: Peter J. Orlowicz, Senior Counsel, 
(312) 751-4922, TTD (312) 751-4701, [email protected].

SUPPLEMENTARY INFORMATION:

I. Background Information

    The RRB proposes to amend Sec.  220.46 of its regulations to 
designate additional acceptable medical sources (AMS) in disability 
claims under the Railroad Retirement Act. Although the RRB will accept 
and evaluate evidence from any relevant source, including medical 
sources not designated as an AMS, the RRB requires evidence about a 
claimant's impairment from an AMS to adjudicate a claim of disability. 
Currently, AMSs consist of licensed physicians, licensed osteopaths, 
licensed or certified psychologists, licensed optometrists (for the 
limited purpose of measuring visual acuity and visual fields), and 
persons authorized to furnish a copy or summary of the records of a 
medical facility.
    Both the RRB and federal courts have long recognized the 
equivalence between entitlement to disability insurance benefits under 
section 223 of the Social Security Act and entitlement to a disability 
annuity based on inability to engage in any regular employment under 
section 2(a)(1)(v) of the Railroad Retirement Act. Bowers v. Railroad 
Retirement Board, 922 F.2d 1485, 1488 (D.C. Cir. 1992); Goodwin v. 
Railroad Retirement Board, 546 F.2d 1169, 1172 (5th Cir. 1977); Romaker 
v. Railroad Retirement Board, 733 F.2d 639 (8th Cir. 1984) (collecting 
cases). As a result, the RRB carefully examines when the SSA modifies 
its own rules regarding disability claims and medical evidence and may 
independently adopt SSA's rationales and supporting evidence as equally 
persuasive when applied to disability under the Railroad Retirement 
Act.
    Additionally, in some instances the RRB must make its own 
independent determinations whether an individual could currently be 
entitled to disability insurance benefits under section 223 of the 
Social Security Act. This is also referred to as establishing a period 
of disability. These determinations are necessary for the RRB to 
determine who must be certified to the Commissioner of Social Security 
as a qualified railroad retirement beneficiary entitled to Medicare 
hospital insurance benefits under section 7(d)(2) of the Railroad 
Retirement Act and section 226(a)(2)(B) of the Social Security Act. In 
these cases, the RRB must apply the regulations of the SSA when making 
its determination. 20 CFR 220.35. The RRB treats any application for an 
employee disability annuity under the Railroad Retirement Act as a 
simultaneous application for a period of disability. 20 CFR 
220.36(b)(6)(i). Accordingly, reducing discrepancies between RRB rules 
and SSA rules regarding evaluation of disability, including in 
identification of AMSs, reduces the likelihood of disability 
adjudicator confusion over where the standards differ and promotes 
consistent outcomes between the RRB and the SSA across the same medical 
evidence.

II. Proposing To Add New Acceptable Medical Sources

    As relevant to the RRB's proposed changes to 20 CFR 220.46, the SSA 
has revised its rules regarding medical evidence in disability claims 
under the Social Security Act to expand the list of AMSs who can 
establish the existence of a medically determinable impairment on two 
occasions. First, on October 9, 1998, the SSA proposed to revise its 
regulations to add podiatrists as AMSs for foot impairments or foot and 
ankle purposes, depending on the scope of practice in the State the 
podiatrist practices in. The SSA also proposed adding qualified speech-
language pathologists as AMSs for speech and language impairments. 63 
FR 54417. The rule was finalized on June 1, 2000. 65 FR 4950. Second, 
on September 9, 2016, the SSA proposed to revise its regulations to add 
audiologists and Advanced Practice Registered Nurses (a category that 
includes nurse practitioners) as AMSs. 81 FR 62560. The rule was 
finalized on January 18, 2017. 82 FR 5844.
    The RRB shares the sense of the SSA, as reflected in the 
supplementary information for their proposed rule on Sep. 9, 2016 (81 
FR 62560, 62568), that medical evidence in disability cases is 
increasingly originating from primary care providers who do not meet 
the current RRB definition of an AMS due to the evolving ways medical 
care is being delivered in the United States. For the same reasons 
identified by the SSA in their October 9, 1998, proposed rule (63 FR 
54417), as modified by the responses to comments articulated in the 
June 1, 2000, final rule (65 FR 34950), and in their September 9, 2016, 
proposed rule (81 FR 62560, 62568), as modified by the responses to 
comments articulated in the January 18, 2017, final rule (82 FR 5844, 
5845), the RRB proposes to recognize the following medical sources as 
AMSs:
    (1) Licensed or certified school psychologists, or other licensed 
or certified individuals with another title who performs the same 
function as a school psychologist in a school setting, for impairments 
of intellectual disability, learning disabilities, and borderline 
intellectual functioning only;
    (2) Licensed podiatrists, for impairments of the foot or of the 
foot and ankle, depending on the scope of practice in the State in 
which the podiatrist practices;
    (3) Qualified speech-language pathologists, for speech and language 
impairments only, and when either licensed by a State professional 
licensing agency, fully certified by a State education agency where the 
individual practices, or holding a Certificate of Clinical Competence 
in Speech-Language Pathology from the American Speech-Language-Hearing 
Association;
    (4) Licensed audiologists, for impairments of hearing loss, 
auditory processing disorders, and balance disorders when such 
disorders are within the individual's licensed scope of practice;
    (5) Licensed Advanced Practice Registered Nurses or other licensed 
advance practice nurses with another title, within the individual's 
scope of practice (this category includes, but is not limited to, 
Certified Nurse Midwives, Nurse Practitioners, Certified Registered 
Nurse Anesthetists, and Clinical Nurse Specialists); and
    (6) Licensed Physician Assistants, for impairments within the 
individual's licensed scope of practice.
    As articulated in the SSA rulemakings, these medical sources are 
generally professionally licensed, certified, or otherwise qualified by 
external authorities to a high and generally consistent level to be 
considered an AMS for the purposes of evaluating disability claims.
    The RRB also seeks to clarify that, consistent with SSA policy, 
psychologists are required to be licensed at an independent practice 
level to be considered an AMS, but school psychologists are not subject 
to this requirement.
    Finally, the RRB maintains its existing inclusion of individuals 
authorized to furnish a copy or summary of the records of a medical 
facility, when such copy or summary is certified as accurate by the 
appropriate records custodian or by an authorized employee of the RRB, 
the SSA, the Department of Veterans Affairs, or a State agency. Under 
our definitions, AMSs are individuals, not institutions; a medical 
practice or hospital cannot be an AMS. By permitting authorized records 
custodians to be treated as AMSs, as a

[[Page 51992]]

matter of administrative convenience and efficiency the RRB could 
accept a group of records from the Department of Veterans Affairs or 
from a large multi-physician medical practice without having to request 
records from each individual medical practitioner participating in a 
claimant's care. The persuasive weight assigned to evidence received in 
this way would still be evaluated according to the factors outlined in 
20 CFR 220.14 for disability from a claimant's regular railroad 
occupation and in 20 CFR 220.46 for disability from all regular 
employment.

III. Clarification of Existing RRB Policy for Evaluating Non-AMS 
Evidence

    In its current regulation, the RRB distinguishes between AMS and 
all other sources, but does not have a separate discussion of non-AMS 
medical sources. In order to better articulate how the RRB actually 
evaluates non-AMS medical sources, the RRB proposes to add a new 
paragraph (b) to 20 CFR 220.46, which adopts the SSA's definition of 
``medical source'' other than the enumerated AMSs in Sec.  220.46(a) 
and explains that the RRB will continue to accept and consider evidence 
about a claimant's impairments from non-AMS medical sources, but the 
presence of a medically determinable impairment must be established 
with objective evidence from an AMS. This is not a change from current 
practice since the current regulation at 20 CFR 220.46(e)(3) lists 
``other practitioners'' as a source that the RRB may accept evidence 
from.
    The RRB also proposes to amend its discussion about evidence from 
treating medical sources to change the nomenclature from ``treating 
physician'' to ``treating medical source''. As discussed in part II 
above, the RRB acknowledges the increasing frequency of health care 
being provided by non-physicians. This nomenclature change recognizes 
this evolution without any substantive change to the way evidence from 
treating medical sources will be evaluated.
    Finally, with the proposed insertion of the discussion of other 
non-AMS medical sources at 20 CFR 220.46(b), the RRB proposes to delete 
the mention of other practitioners from 20 CFR 220.46(e) and revise the 
list of other sources to more closely align with the list of examples 
in the SSA's regulations. The list of other sources is illustrative 
only and is non-exclusive, so no substantive change to the scope of 
other sources is intended by this change.

Regulatory Analysis

Executive Order 12866, as Supplemented by Executive Order 13563

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

Executive Order 13132 (Federalism)

    This proposed rule will not have substantial direct effects on the 
States, on the relationship between the National Government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with section 6 
of Executive Order 13132, the RRB believes that this proposed rule will 
not have sufficient federalism implications to warrant the preparation 
of a federalism summary impact statement.

Regulatory Flexibility Act

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

Paperwork Reduction Act

    This proposed rule imposes no reporting or recordkeeping 
requirements subject to Office of Management and Budget clearance.

List of Subjects in 20 CFR Part 220

    Disability benefits, Railroad employees, Railroad retirement.

    For the reasons set out in the preamble, the Railroad Retirement 
Board proposes to amend 20 CFR part 220 as follows:

PART 220--DETERMINING DISABILITY

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

    Authority: 45 U.S.C. 231a; 45 U.S.C. 231f.

0
2. Amend Sec.  220.46 by:
0
a. Revising paragraph (a);
0
b. Redesignating paragraphs (b), (c), (d), and (e) as paragraphs (c), 
(d), (e), and (f) respectively;
0
c. Adding new paragraph (b); and
0
d. Revising newly redesignated paragraphs (e) and (f).

    The revisions and addition read as follows:


Sec.  220.46  Medical evidence.

    (a) Acceptable medical sources. The Board needs reports about the 
claimant's impairment(s) from acceptable medical sources. Acceptable 
medical sources are--
    (1) Licensed physicians (medical or osteopathic doctors);
    (2) Licensed or certified psychologists at the independent practice 
level;
    (3) Licensed or certified school psychologists, or other licensed 
or certified individuals with another title who perform the same 
function as a school psychologist in a school setting (for impairments 
of intellectual disability, learning disabilities, and borderline 
intellectual functioning only);
    (4) Licensed optometrists (for impairments of visual disorders, or 
for the measurement of visual acuity and visual fields only, depending 
on the scope of practice in the State in which the optometrist 
practices);
    (5) Licensed podiatrists (for impairments of the foot only, or foot 
and ankle only, depending on the scope of practice in the State in 
which the podiatrist practices);
    (6) Qualified speech-language pathologists (for speech or language 
impairments only.) For this source, qualified means that the speech-
language pathologist must be licensed by the State professional 
licensing agency, or be fully certified by the State education agency 
in the State in which the speech-language pathologist practices, or 
hold a Certificate of Clinical Competence in Speech-Language Pathology 
from the American Speech-Language-Hearing Association;
    (7) Licensed audiologists (for impairments of hearing loss, 
auditory processing disorders, and balance disorders within the 
licensed scope of practice only);
    (8) Licensed Advanced Practice Registered Nurses or other licensed 
advance practice nurses with another title (for impairments within the 
individual's licensed scope of practice only);
    (9) Licensed Physician Assistants (for impairments within the 
individual's licensed scope of practice); or
    (10) Persons authorized to furnish a copy or summary of the records 
of a medical facility. Generally, the copy or summary should be 
certified as accurate by the custodian or by any authorized employee of 
the Railroad Retirement Board, Social Security Administration, 
Department of Veterans Affairs, or State agency.
    (b) Other medical sources. Individuals who are licensed as 
healthcare workers by a State and are working within the

[[Page 51993]]

scope of practice permitted under State or Federal law, other than 
acceptable medical sources identified in paragraph (a) of this section, 
are other medical sources. Examples include licensed clinical social 
workers, naturopaths, and chiropractors. The Board will accept and 
consider evidence from other medical sources about the claimant's 
impairment(s) and the effect on the claimant's ability to work, but the 
presence of a medically determinable physical or mental impairment must 
be established with objective medical evidence from an acceptable 
medical source as defined in paragraph (a) of this section.
* * * * *
    (e) Evidence from treating medical sources. A statement by or the 
opinion of the claimant's treating medical source will not determine 
whether the claimant is disabled. However, the medical evidence 
provided by a treating medical source will be considered by the Board 
in making a disability decision. A treating medical source is a medical 
source to whom the claimant has been going for treatment on a 
continuing basis. The claimant may have more than one treating medical 
source. The Board may use consulting physicians or other medical 
consultants for specialized examinations or tests, to obtain more 
complete evidence, and to resolve any conflicts. A consulting physician 
is a doctor (often a specialist) to whom the claimant is referred for 
an examination once or on a limited basis. (See Sec.  220.50 for an 
explanation of when the Board may request a consultative examination.)
    (f) Information from non-medical sources. Information from other 
sources may also help the Board understand how an impairment affects 
the claimant's ability to work. Other sources include--
    (1) Public and private social welfare agency personnel;
    (2) Family members, caregivers, friends, and neighbors of the 
claimant;
    (3) Educational personnel such as teachers, counselors, and daycare 
center workers;
    (4) Railroad and nonrailroad employers; and,
    (5) The claimant themselves.

    Dated: June 14, 2024.

    By Authority of the Board.
Stephanie Hillyard,
Secretary to the Board.
[FR Doc. 2024-13554 Filed 6-20-24; 8:45 am]
BILLING CODE P