Evidence From Excluded Medical Sources of Evidence

SUMMARY: In accordance with section 812 of the Bipartisan Budget Act of 2015 (BBA section 812), these rules explain how we will address evidence furnished by medical sources that meet one of BBA section 812's exclusionary categories (excluded medical sources of evidence) as described below. Under these new rules, we will not consider evidence furnished by an excluded medical source of evidence unless we find good cause to do so. We identify five circumstances in which we may find good cause. In these rules, we also require excluded medical sources of evidence to notify us of their excluded status under section 223(d)(5)(C)(i) of the Social Security Act (Act), as amended, in writing each time they furnish evidence to us that relates to a claim for initial or continuing benefits under titles II or XVI of the Act. These rules will allow us to fulfill obligations that we have under BBA section 812.

EFFECTIVE DATE: These final rules will be effective on November 2, 2016.

FOR FURTHER INFORMATION CONTACT: Dan O'Brien, Office of Disability Policy, Social Security Administration, 6401 Security Boulevard, Baltimore, Maryland 21235-6401, (410) 597-1632. 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 www.socialsecurity.gov.

SUPPLEMENTARY INFORMATION: On June 10, 2016, we published a notice of proposed rulemaking (NPRM) in which we proposed to implement BBA section 812 by adding new sections to our rules that would explain when we would not consider evidence from an excluded medical source of evidence under section 223(d)(5)(C)(i) of the Act, as amended. /1/ We also identified five circumstances in which we proposed to find good cause to consider evidence that would otherwise be excluded. In addition, we proposed to require that excluded medical sources of evidence notify us of their excluded status under section 223(d)(5)(C)(i) of the Act, as amended, in writing, each time they furnish evidence to us in relation to a claim for initial or continuing benefits under titles II or XVI of the Act. We are adopting these proposed rules as final rules.

FOOTNOTE 1 Public Law 114-74, sec. 812, 129 Stat. 584, 602; 81 FR 37557. END FOOTNOTE

Congress enacted the BBA on November 2, 2015. /2/ BBA section 812 amended section 223(d)(5) of the Act, 42 U.S.C. 423(d)(5), by adding a new paragraph "C." Under this provision, when we make a disability determination or decision or when we conduct a continuing disability review (CDR) under titles II or XVI of the Act, we cannot consider evidence furnished by certain medical sources unless we have good cause. /3/ Under these new rules, we may find good cause to consider evidence furnished by an excluded medical source of evidence in the following five situations:

FOOTNOTE 2 Public Law 114-74, 129 Stat. 584. END FOOTNOTE

FOOTNOTE 3 Public Law 114-74, sec. 812, 129 Stat. 584, 602. The exclusion of evidence under BBA section 812 does not constitute an exclusion of a medical source from Social Security programs under section 1136 of the Act, 42 U.S.C. 1320b-6. END FOOTNOTE

* The evidence furnished by the medical source consists of evidence of treatment that occurred before the date the source was convicted of a felony under section 208 or under section 1632 of the Act;

* the evidence furnished by the medical source consists of evidence of treatment that occurred during a period in which the source was not excluded from participation in any Federal health care program under section 1128 of the Act;

* the evidence furnished by the medical source consists of evidence of treatment that occurred before the date the source received a final decision imposing a civil monetary penalty (CMP), assessment, or both, for submitting false evidence under section 1129 of the Act;

* the sole basis for the medical source's exclusion under section 223(d)(5)(C)(i) of the Act, as amended, is that the source cannot participate in any Federal health care program under section 1128 of the Act, but the Office of Inspector General of the Department of Health and Human Services (HHS' OIG) granted a waiver of the section 1128 exclusion; or

* the evidence is a laboratory finding about a physical impairment and there is no indication that the finding is unreliable.

We may find good cause to consider evidence furnished by an excluded medical source of evidence in any of these five enumerated situations when we make a disability determination or decision or when we conduct a CDR.

As we stated in our NPRM, our long-term solution to the administration of BBA section 812 is to implement automated evidence matching within our case processing system(s) to identify excludable evidence. As part of our efforts to comply with BBA section 812's implementation deadline of November 2, 2016, we will require that excluded medical sources of evidence inform us in writing of the facts or event(s) triggering BBA section 812 each time they submit evidence to us that relates to a claim for initial or continuing benefits under titles II or XVI of the Act.

Regarding the content of the written statement, excluded medical sources of evidence will be required to include a heading that states,

WRITTEN STATEMENT REGARDING SECTION 223(d)(5)(C) OF THE SOCIAL SECURITY ACT--DO NOT REMOVE.

Immediately following this heading, sources will also need to include their name, title, and the applicable event(s) that triggered the application of BBA section 812. Sources convicted of a felony under section 208 or 1632 of the Act will also need to provide the date of their felony conviction. Similarly, sources that have been imposed with a CMP, an assessment, or both for submitting false evidence under section 1129 of the Act will need to provide the date of the final imposition of the CMP, assessment, or both. Sources that cannot participate in any Federal health care program under section 1128 of the Act will need to include the basis for the exclusion, its effective date and anticipated length, and whether HHS' OIG waived it.

Our reporting requirement will apply only to excluded medical sources of evidence that furnish evidence to us directly or indirectly through a representative, claimant, or other individual or entity. Further, we will require that no individual or entity be permitted to remove an excluded medical source of evidence's written statement prior to submitting the source's evidence to us. We also reserve the right to request that excluded medical sources of evidence provide additional information or clarify any information they submit regarding the circumstances or events that trigger section 223(d)(5)(C)(i) of the Act, as amended. If excluded medical sources of evidence do not inform us of their excluded status, we may refer them to our Office of the Inspector General for any action it deems appropriate, including investigation and CMP pursuit.

Additional information and discussion can be found in the preamble to our NPRM. /4/

FOOTNOTE 4 81 FR 37557. END FOOTNOTE

Public Comments and Discussion

On June 10, 2016, we published an NPRM in the Federal Register at 81 FR 37557 and provided a 60-day comment period. We received six timely submitted comments that addressed issues within the scope of our proposed rules. Below, we present all of the views received and address all of the relevant and significant issues raised by the commenters. We carefully considered the concerns expressed in these comments, but did not make any changes to our rules as a result of the comments.

Comment: One commenter expressed concern about our excluding evidence furnished by an excluded medical source of evidence relating to a claim for initial or continuing benefits under titles II or XVI of the Act. The commenter asserted that such a procedure is inconsistent with the rules of evidence of most states and the Federal courts. Specifically, the commenter stated that "[t]ypically, the question is not whether the opinion is admissible, but what weight should be given to each opinion."

Response: Our disability determination procedures are governed by the Act and the rules we issue under the authority mandated in the Act, rather than the rules of evidence in State or Federal court. /5/ Section 223(d)(5)(C)(i) of the Act, as amended by BBA section 812, mandates that, absent good cause, we may not consider evidence furnished by certain sources of evidence. Our new rules identify the five situations where we may find good cause to consider evidence furnished by excluded medical sources of evidence. The rules we are adopting here are required by, and are consistent with, section 223(d)(5)(C)(i) of the Act.

FOOTNOTE 5 Section 205 of the Act, 42 U.S.C. 405; 20 CFR 404.1501, et seq., 416.901, et seq. Under section 205(b)(1) of the Act, 42 U.S.C. 405(b)(1), the rules of evidence that apply in court proceedings do not apply to our determinations or decisions. END FOOTNOTE

Comment: One commenter generally approved of our rules, but sought clarification about whether we would impose sanctions against an excluded medical source of evidence prior to the source's conviction.

--This is a summary of a Federal Register article originally published on the page number listed below--

Final rules.

CFR Part: "20 CFR Parts 404 and 416"

RIN Number: "RIN 0960-AH92"

Citation: "81 FR 65536"

Document Number: "Docket No. SSA-2016-0015"

Federal Register Page Number: "65536"

"Rules and Regulations"