NOSSCR provides the latest updates from the Social Security Administration.
TEMPORARY FINAL RULE PUBLISHED ON FLEXIBILITY IN EVALUATING “CLOSE PROXIMITY OF TIME” DUE TO COVID-19 RELATED BARRIERS TO HEALTHCARE
Since the outset of the COVID-19 national public health emergency, many individuals have experienced barriers that prevent them from timely accessing healthcare. In response to those barriers, SSA issued a rule to temporarily revise the requirement in the Listing of Impairments (listings) that, for purposes of applying several of our musculoskeletal disorder listings, all relevant medical criteria be present simultaneously or “within a close proximity of time,” which SSA defines as being “within a consecutive 4-month period.” The rule is effective as of July 23, 2021. While this rule is in effect, SSA will find that the evidence of a musculoskeletal disorder is present “within a close proximity of time” if the available evidence establishes such a condition within a consecutive 12-month period. SSA expects that this temporary change to it’s rules will allow adjudicators to make findings of disability in appropriate cases in which individuals have experienced barriers to access to healthcare because of the COVID-19 national public health emergency. A request for comments was also published in conjunction with this temporary final rule, which are due on September 21, 2021. 86 Fed. Reg. 38920 (July 23, 2021).
FINAL RULES ISSUED CLARIFYING WHEN AND HOW HEARINGS MAY BE HELD BY ADMINISTRATIVE APPEALS JUDGES
SSA issued final rules on November 16,2020 clarifying when and how administrative appeals judges (AAJs) at the Appeals Council may hold hearings and issue decisions. 85 Fed. Reg. 73138. As explained in the final rules, the Appeals Council already had the authority to hold hearings and issue decisions under its existing statute and regulations, but SSA had not exercised this authority or explained the circumstances under which it would be appropriate for the Appeals Council to assume responsibility for holding a hearing and issuing a decision. “This final rule will ensure the Appeals Council is not limited in the type of claims for which it may hold hearings. [SSA] expect[s] that this rule will increase [its] adjudicative capacity when needed, and allow [the agency] to adjust more quickly to fluctuating short-term workloads, such as when an influx of cases reaches the hearing level. [SSA’s] ability to use [its] limited resources more effectively will help [the agency] quickly optimize [its] hearings capacity, which in turn will allow [SSA] to issue accurate, timely, high-quality decisions.” The final rules are effective on December 16, 2020.
INTERIM FINAL RULE ISSUED ON SSA’S WAIVER OF RECOVERY OF CERTAIN OVERPAYMENTS ACCRUING DURING THE COVID-19 PANDEMIC
SSA published an interim final rule with a request for comments on August 27, 2020 on the “Waiver of Recovery of Certain Overpayment Debts Accruing During the COVID-19 Pandemic Period.” The rules revise SSA’s regulations on how the agency waives the recovery of certain overpayment debts. The interim final rule will apply when an affected beneficiary requests waiver of certain overpayments that accrued during a portion of the COVID-19 pandemic. Under the rule, SSA may waive recovery of these overpayments using a streamlined internal process. Specifically, “qualifying overpayment debts include those incurred between March 1 to September 30, 2020 that [SSA] did not manually process as a result of [its] cession of certain activities, and that [the agency] identified by December 31.” This interim final rule is effective on August 27, 2020. Comments must be submitted on or before October 26, 2020.
SSA PUBLISHES RULES FOR REMOVING INABILITY TO COMMUNICATE IN ENGLISH AS AN EDUCATION CATEGORY
On February 25, 2020, SSA published final rules “Removing Inability To Communicate in English as an Education Category.” SSA is finalizing their proposed regulations to eliminate the education category ‘‘inability to communicate in English’’ when it evaluates disability claims for adults under titles II and XVI of the Social Security Act. According to the FRN, this education category is no longer a useful indicator of an individual’s educational attainment or of the vocational impact of an individual’s education because of changes in the national workforce since the rule was adopted more than 40 years ago. The final rule is effective on April 27, 2020.
SSA PUBLISHES RULES FOR ADVANCE DESIGNATION OF REPRESENTATIVE PAYEES FOR SOCIAL SECURITY BENEFICIARIES
On February 11, 2020, SSA published final rules titled “Advance Designation of Representative Payees for Social Security Beneficiaries.” These regulations are effective February 25, 2020. The rules specify the information Social Security beneficiaries and applicants must provide to designate individuals as their possible representative payee in advance of our determination that the beneficiary needs a representative payee. These regulations additionally set forth how SSA will consider an individual’s advance designation when they select a representative payee, and fulfill their obligation under 201 of the Strengthening Protections for Social Security Beneficiaries Act of 2018.
SSA PUBLISHES RULES SETTING THE MANNER FOR THE APPEARANCE OF PARTIES AND WITNESSES AT A HEARING
On December 18, 2019, SSA published final rules”Setting the Manner for the Appearance of Parties and Witnesses at a Hearing.” These regulations are effective January 17, 2020 and are regarding setting the time, place, and manner of appearance for hearings at the administrative law judge (ALJ) level of the administrative review process, with modifications. The final rule states that SSA will determine how parties and witnesses will appear at a hearing before an ALJ, and will set the time and place for the hearing accordingly. SSA will schedule the parties to a hearing to appear by video teleconference (VTC), in person, or, in limited circumstances, by telephone. Under this final rule, they will decide how parties and witnesses will appear at a hearing based on several factors, but the parties to a hearing will continue to have the ability to opt out of appearing by VTC at the ALJ hearings level. Finally, they are revising the rule to state that, at the ALJ hearing level, if they need to send an amended notice of hearing, or if they need to schedule a supplemental hearing, they will send the amended notice or notice of supplemental hearing at least 20 days before the date of the hearing.”
SSA PUBLISHES RULES PROHIBITING PERSONS WITH CERTAIN CRIMINAL CONVICTIONS FROM SERVING AS REPRESENTATIVE PAYEES
On February 15, 2019, SSA published final rules “Prohibiting Persons With Certain Criminal Convictions From Serving as Representative Payees.” These regulations are effective as of March 18, 2019 and codify the requirements of Section 202 of the Strengthening Protections for Social Security Beneficiaries Act of 2018, which require SSA “to conduct background checks on representative payee applicants and to prohibit those representative payee applicants and representative payees with the statutorily enumerated felony convictions from serving as a representative payee… [and] implement the requirement that [SSA] conduct criminal background checks on all currently serving representative payees who do not meet one of the exceptions established in the law, and that [the agency] will continue to do so at least once every five years.”
SSA ISSUES FINAL RULES ON REPRESENTATIVES’ CODE OF CONDUCT
SSA issued final Rules of Conduct and Standards of Responsibility for Appointed Representatives on July 2, 2018. These rules are effective August 1, 2018. In general, the final rules are substantively similar to the proposed rules. Under the final revised Rules of Conduct, restrictions are imposed on representatives’ ability to withdraw from a case after a hearing is scheduled; representatives will have an affirmative duty to disclose to SSA if they referred or suggested that the claimant seek an examination from, treatment by, or the assistance of an individual providing a medical or vocational opinion; representatives must correct a known misconception about whether a representative is an attorney or non-attorney representative; and representatives will be required to “immediately” disclose to SSA if they discover that a claimant is using, or has used, their services to commit fraud against the agency.
FINAL REGS ON THE EVALUATION OF MEDICAL EVIDENCE PUBLISHED
SSA published the final regulations revising the medical evidence rules. Most notably, SSA expanded the list of acceptable medical sources (AMS) and eliminated the long-standing treating physician rule. The final rules are effective on March 27, 2017. Learn more here.
SSA ISSUES FINAL RULES ON NICS GUN CONTROL
SSA issued final rules implementing provisions of the NICS Improvement Amendments Act of 2007 (NIAA) that require Federal agencies to provide relevant records to the Attorney General for inclusion in the National Instant Criminal Background Check System (NICS). Under these final rules, SSA will report individuals to NICS who receive Title II or Title XVI disability benefits based on a finding that the individual’s mental impairment meets or medically equals the requirements of section 12.00 of the Listing of Impairments and requires a representative payee for receipt of benefits. Inclusion on the NICS database restricts the individual’s ability to purchase firearms and certain explosives.
UPDATE: After joint resolution providing for congressional disapproval of the NICS Gun Control rules under the Congressional Review Act (CRA), H.J.Res.40 was signed by the President and became Public Law No: 115-8 on February 28, 2017, effectively overruling the regulation.
PROGRAM UNIFORMITY REGULATIONS (INCLUDING THE FIVE-DAY RULE) FINALIZED
SSA has published final rules that, among other restrictions, close the record 5 business days before a scheduled hearing, with good cause exceptions. In addition, SSA is now required to mail notices of hearings 75 days before the scheduled hearing. Learn more here.
FINAL RULES ON UNSUCCESSFUL WORK ATTEMPTS
SSA’s policy on unsuccessful work attempts will change on November 16, 2016. The final rule is published at 81 Fed. Reg. 71367 (October 17, 2016). It does not make any changes from the proposed rule, which was published at 81 Fed. Reg. 29212 (May 11, 2016). The final rule amends 20 C.F.R. §§ 404.1574(c), 404.1575(c), 416.974(c), and 416.975(d) to remove additional criterial for evaluating work attempts that last between 3 and 6 months. Under the new rule, the current standard for work attempts of under 3 months will apply to all work attempts that last six months or less. In addition to the new unsuccessful work attempt policy, the final rule also changes SSA’s policy on expedited reinstatement (EXR) effective April 17, 2017. It amends 20 C.F.R. §§404.1592c and 416.999a to allow SSDI and SSI beneficiaries to request expedited reinstatement of benefits in the month that they stop performing substantial gainful activity.
FINAL RULES ISSUED ON EXCLUSION OF MEDICAL EVIDENCE FROM CERTAIN PROVIDERS
SSA has announced that, beginning August 18, 2016, all appointed representatives who request direct payment of fees must access their client’s folders electronically. (81 Fed. Reg. 22697 (April 18, 2016)). The rule is summarized here.
SSA PUBLISHES FINAL REGS REGARDING THE DUTY TO SUBMIT ALL EVIDENCE
SSA issued final rules on March 20, 2015 that include the the duty to submit all evidence that relates to a claimant’s disability received from any source in its entirety, unless duplicative. These rules are effective April 20, 2015.
SSA IMPLEMENTS CHANGES ON VIDEO HEARING OPT
SSA has explained how a claimant may object to appearing at a hearing via video teleconferencing. The final rules are effective July 25, 2014. NOSSCR has provided more info here.