David Camp, NOSSCR Senior Policy Advisor & General Counsel

The MegaReg Looms and Rumors Abound

Hopefully many of you have an opportunity, later today, to hear from Steve Rollins—a former NOSSCR member who went on to work for many years within Social Security, including being in charge of disability policy. For those of you who miss the session, I’ll use this column to give you an outline of what we know. As always, feel free to reach out to us if you have more questions—we’re here to keep you informed.

Is this a statute? No. Is this a regulation? Not yet. What’s up? The “MegaReg” is a large package of proposed regulation changes that have been in development for years. It’s been the subject of leaks, rumors, public comments, lobbying, and media reports for as long as I’ve been practicing. Generally, the topics are summarized online in the “Unified Agenda” of upcoming proposals—this one is 0960-A167—found here.

SSA’s summary is “We are proposing improvements to the disability adjudication process to ensure our disability program remains current and can be more efficiently administered. This includes proposing policy updates to occupational data sources and optimizing their use to serve our customers and preserve the trust funds.” The timetable has been moved many times, and it now projects publication in December 2025—but we very much doubt that timeline.

When I say this regulatory package has been a topic since I started to practice, that’s because it covers the move away from the DOT and to the new DOL-contracted data, known as ORS. After several years of receiving stakeholder feedback (remember “OIDAP”?) from NOSSCR and others, SSA has been looking to sunset reliance on the DOT for more than a generation. NOSSCR has always been supportive of ending use of the DOT, but insistent that any new data needs to capture the true functional restrictions experienced by our clients (time off task, absenteeism, attendance issues, etc.) while avoiding a repeat of the statistical validity problems of the DOT and various methods such as “equal distribution.” We believe this package will introduce full reliance on updated data from DOL—but much remains to be seen about how that is accomplished.

We believe the MegaReg includes language providing RFC-based methods for establishing an inability to adjust to other work particularly for younger individuals suffering from impairments in focus, reliability, sensory impairment, social interaction, or other restrictions that commonly frame “no jobs” hypothetical questions in ALJ hearings. These updates—combined with the longer periods of eligibility for younger beneficiaries—could explain the rumors that the most recent informal “scorings” of this package are that it results in an increase in total SSDI benefits issued.

We’re concerned the MegaReg could address the recent improvement in the period considered for past relevant work—a topic that NOSSCR and Mark Warshawky disagreed about in congressional testimony in 2023. We support the current 5-year assessment as both theoretically sound (the modern job market changes rapidly) and efficient (gathering information about jobs farther back is inaccurate and costly). If the MegaReg increases the past relevant work period it will harm both claimants and SSA, with decreased accuracy.

We share the significant concern raised by many other advocacy groups (including leaders on the Hill) that the MegaReg is likely to eliminate some or all of the Medical-Vocational Guidelines (“grids”). Rumors for years have described this package as eliminating consideration of age in the grids and elsewhere—such as the “adverse vocational status” rules. This, combined with new definitions of education and skill levels, likely will have a negative impact on the decisions issued to older claimants—while economic and disability-focused researchers strongly disagree that such a change is warranted. We’re keenly interested to see what other regulatory structure SSA proposes instead of the efficient tables we use now. Not everything needs to be in the form of a grid—but older claimants find that age is a barrier to returning to work and SSA’s regulations must reflect that reality. Given the significance of this topic and the public’s concern, SSA would be well-served by more collaborative stakeholder feedback and studying the issue openly prior to proposing regulatory changes. The last solicitation of comments on this issue was a decade ago, and since then the labor market has obviously changed.

Earlier leaks describe this regulatory package as updating standards for full time work (from 40 hours to 30 to match the surveyed data for job incidence), considering work done abroad in PRW, disregarding licensure, and other changes that will be the subject of NOSSCR’s careful review for whether there is justification for such changes.

This package of regulation updates has been in the works through more than a half dozen Commissioners and multiple Presidential administrations. While the political discussion will focus on the Commissioner who signs off on publication and the President who appointed him—NOSSCR’s membership should know that this is actually a very long advocacy effort on many topics, combined with years of work from those within SSA’s policy component. The work won’t end with publication of proposed rules. That’s the beginning of a comment period (we are already outlining ours) and review on a large political and media stage. Extensive disability regulations such as this have a history of significant SSA edits in response to comments.

This package could end up being published on time (December), later (the shutdown has certainly stalled SSA staff’s work on regulations), much later at a more politically expedient time (e.g., after an election), pulled off the Unified Agenda completely, or broken into parts for publication as a series of connected regulatory updates (e.g., one package on vocational evidence, another on past relevant work, another on mental aspects of RFC, and another on age). With many possible options, we advise skepticism about pronouncements of final wins or losses on this front—many of the component parts of this set of regulations cannot go away forever because they are the mandatory modernization work SSA performs by statute. With uncertainty as to what will happen and when, the constant work of advocacy remains for NOSSCR and all of our allied groups in a community. One aspect is comforting—it will take time before a regulation becomes final. You’ll have many months (possibly more than a year) to adjust accordingly.