Rule2025-00515
Evidence of Disability
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
January 16, 2025
Effective
March 17, 2025
Issuing agencies
Railroad Retirement Board
Abstract
The Railroad Retirement Board (RRB) amends 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.
Full Text
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<title>Federal Register, Volume 90 Issue 10 (Thursday, January 16, 2025)</title>
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[Federal Register Volume 90, Number 10 (Thursday, January 16, 2025)]
[Rules and Regulations]
[Pages 4626-4628]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-00515]
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RAILROAD RETIREMENT BOARD
20 CFR Part 220
RIN 3220-AB71
Evidence of Disability
AGENCY: Railroad Retirement Board.
ACTION: Final rule.
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SUMMARY: The Railroad Retirement Board (RRB) amends 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: This rule is effective March 17, 2025.
FOR FURTHER INFORMATION CONTACT: Peter J. Orlowicz, Senior Counsel,
(312) 751-4922, <a href="/cdn-cgi/l/email-protection#e4b481908196caab96888b938d879ea4969686ca838b92"><span class="__cf_email__" data-cfemail="d585b0a1b0a7fb9aa7b9baa2bcb6af95a7a7b7fbb2baa3">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Background Information
The RRB published a Notice of Proposed Rulemaking (NPRM) in the
Federal Register on June 21, 2024 (89 FR 51990). The preamble to the
NPRM discussed the changes from our current rules and our reasons for
proposing those changes. In the NPRM, we proposed 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.
The additional AMS we proposed to add are:
(1) 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;
(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.
We provided 60 days for the public to comment on the NPRM. We
received three comments: two comments were submitted by professional
organizations representing medical providers who would be added as AMS
under the proposed rule, and one comment was submitted by a public
policy research group. All three comments were supportive of the
proposed changes, with two commenters providing
[[Page 4627]]
additional suggestions as described below. We also identified and fixed
two minor grammatical errors that do not affect the substance of the
rule.
II. Public Comments
Comment: The American Academy of Physician Associates (AAPA)
recommended that the regulation include ``physician assistant'' and
``physician associate'' as equivalent titles and list both in the
regulation to avoid confusion. The AAPA explained the titles both refer
to individuals who graduate from programs accredited by the same
accrediting body, are certified by the same certifying organization,
and have the same scope of practice. Individuals in this profession
have historically been identified as ``physician assistants,'' but the
official title is now recognized as ``physician associate'' as
reflected in the title of the AAPA, other professional organizations,
professional training programs, and state laws regarding licensure.
Because the title change will take time to be formalized in all
jurisdictions, the AAPA recommends that both ``physician assistant''
and ``physician associate'' be listed.
Response: We agree with this comment, and we revised the final
regulatory text accordingly. Specifically, we revised the proposed
regulatory text for PAs as AMS in final 220.46(a)(9) to read,
``Licensed Physician Assistants/Physician Associates (for impairments
within the individual's licensed scope of practice).'' We do not view
this as a substantive change in the scope of individuals the rule is
intended to cover, nor do we understand the AAPA to be suggesting such
a change in scope.
Comment: One commenter recommended clarifying who may qualify as an
``other licensed or certified individual . . . who perform the same
function as a school psychologist in a school setting.'' The commenter
expressed concern that special education teachers may possess certain
state certifications to teach children with learning disabilities, but
that state certification standards for special education teachers vary
from state to state and a significant proportion of special education
teachers may be teaching with a provisional or emergency appointment
without having the necessary certification or experience to provide
medical reports of intellectual disability, learning disabilities, or
borderline intellectual functioning.
Response: We did not adopt this comment. Special education teachers
and school psychologists are different and distinct professions with
different certification standards. Section 8002(19) of the Every
Student Succeeds Act, Public Law 114-95 (Dec. 10, 2015) identifies
school psychologists as ``specialized instructional support personnel''
along with school counselors, school social workers, school nurses,
speech language pathologists, and school librarians. In Organizational
Principle 3 of its 2020 Professional Standards, the National
Association of School Psychologists recommends the ratio of school
psychologists to students should not exceed 1 school psychologist for
every 500 students. While school psychologists work with other school
personnel, including special education teachers, to perform their
function, a special education teacher would not normally be performing
the same function as a school psychologist in the school setting. We
believe the residual clause for other licensed or certified individuals
with different titles who are performing the same function in a school
setting is sufficiently clear. An individual who lacks a certification
or license equivalent to a school psychologist and who does not perform
the same function as a school psychologist would not qualify as an AMS
under this paragraph.
Comment: One commenter agreed with the addition of licensed
podiatrists as AMS for impairments of the foot or foot and ankle, but
advocated for the inclusion of other orthopedic specialists who are
certified and trained to address issues of other skeletal structures.
Response: We did not adopt this comment. Many orthopedic
specialists will qualify as an AMS because they are licensed medical or
osteopathic doctors. To the extent that skeletal structure-related
impairments are within the scope of practice for an Advanced Practice
Registered Nurse or a Physician Assistant/Physician Associate, those
individuals would also be qualified as an AMS without the need for
separate discussion. In the case of other individuals who hold
themselves out as orthopedic specialists but would not otherwise
qualify as an AMS under those other categories, Sec. 220.46(b) in the
final rule acknowledges we will accept and consider evidence from such
a medical source 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 AMS.
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 rule will 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 rule does not create any new or affect any existing
collections and, therefore, does not require Office of Management and
Budget approval under the Paperwork Reduction Act.
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 amends 20 CFR part 220 as follows:
PART 220--DETERMINING DISABILITY
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1. The authority citation for part 220 continues to read as follows:
Authority: 45 U.S.C. 231a; 45 U.S.C. 231f.
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2. Amend Sec. 220.46 by:
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a. Revising paragraph (a);
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b. Redesignating paragraphs (b) through (e) as paragraphs (c) through
(f) respectively;
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c. Adding new paragraph (b); and
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d. Revising newly redesignated paragraphs (c)(6)(i), (c)(6)(ii)
introductory text, (d) introductory text, (e), and (f).
[[Page 4628]]
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/Physician Associates (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 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.
(c) * * *
(6) * * *
(i) Statements about what the claimant can still do despite his or
her impairment(s) based on the medical source's findings on factors in
paragraphs (c)(1) through (5) of this section (except in disability
claims for remarried widow's and surviving divorced spouses). (See
Sec. 220.112).
(ii) Statements about what the claimant can still do (based on the
medical source's findings on factors in paragraphs (c)(1) through (5)
of this section) should describe--
* * * * *
(d) Completeness. The medical evidence, including the clinical and
laboratory findings, must be complete and detailed enough for the Board
to determine whether the claimant is disabled. Specifically, it must
allow the Board to determine--
* * * * *
(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 claimants themselves.
Dated: January 7, 2025.
By Authority of the Board.
Stephanie Hillyard,
Secretary to the Board.
[FR Doc. 2025-00515 Filed 1-15-25; 8:45 am]
BILLING CODE 7905-01-P
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