Executive Order (E.O.) 13563 emphasizes the importance of maintaining a consistent culture of retrospective review and analysis throughout the Executive Branch. Before a rule has been tested, it is difficult to be absolutely certain of its consequences, including its costs and savings. E.O. 13563 charges federal agencies to devise a plan to retrospectively analyze significant rules that meet the review criteria in the Executive Order. The criteria primarily concern the effects of regulations on private-sector businesses, especially small businesses.
The Social Security Administration (SSA) generally does not regulate the private-sector marketplace. Our regulations primarily describe how persons qualify for benefits under the programs we administer. In performing a retrospective review, we can look for opportunities to reduce the burden on the beneficiaries and applicants that we serve. One way to reduce that burden is through reduced complexity. To help facilitate this effort, our plan describes a methodology and schedule to identify significant rules that may need periodic updating and details several initiatives to improve SSA’s forms and reduce the paperwork burden on the public.
Scope of Plan
Although our regulations do not generally address economic competitiveness or job creation, our Plan reflects the principles of E.O. 13563. The regulations cited in our Plan embrace public participation (section 2 of the E.O.), objectivity of scientific information (section 5 of the E.O.), and retrospective analysis of rules that may need updating (section 6 of the E.O.). A special priority is increased transparency and simplification.
This final plan focuses on existing medical listings that we use to determine disability under the Social Security and Supplemental Security Income programs. The listings appear in our regulations at 20 CFR Part 404, Subpart P, Appendix 1.
We are also including two initiatives that will reduce paperwork burdens on the public. In the Revised Work Activity Reports project, we are making the Work Activity Reports easier to complete by streamlining instructions and removing unnecessary or duplicative questions. For the SSA-827 e-Authorization initiative, we are expediting the authorization process by developing an electronic alternative to the wet signature currently required. These initiatives represent SSA’s continued commitment to help the public transact business with us as quickly and smoothly as possible.
Public Access and Participation
Developing the Preliminary Plan
On January 25, 2011, we took the following steps:
We received over 400 messages to the “RegsReview” e-mail box, nearly all of which addressed issues other than the retrospective review. We received a few messages from persons asking for their circumstances to be added to our regulations (e.g., add their medical impairment to our listings).
Requesting Comments on the Preliminary Plan
On May 26, 2011, we posted our Preliminary Plan on our Open Government web page and requested public comments on our Plan. The Plan was also posted on the White House’s web page. Furthermore, we sent messages to over 900 stakeholder groups and individuals who have expressed interest in our development of the medical listings to alert them to our Plan and our request for comments. Finally, we published a notice in the Federal Register on June 2, 2011 (76 FR 31892), requested public comments on the Plan, and provided a comment period.
Public Comments on the Preliminary Plan
We received three public comments on the Preliminary Plan. Two of the comments were from advocacy groups, and the other was from an individual in his capacity in an organization of disability examiners. Below, we condense, summarize and respond to the comments.
Comment: The Sjögren’s Syndrome Foundation expressed its appreciation for the opportunity to work with us on listings updates. The Foundation suggested that we continue to work closely with advocacy groups to ensure we include top experts in the field.
Response: We agree. We routinely update the listings to reflect our program experience, advances in medical knowledge, and comments we receive from medical experts, advocacy groups, patients, adjudicators, and at public outreach policy conferences. [Comment: This is from the preliminary plan.] The information we obtain from medical experts and advocacy groups is an integral part of our process to update the listings.
Comment: A doctor affiliated with the National Association of Disability Examiners and who has participated in two Institute of Medicine Consensus Committees supported the Preliminary Plan. He urged us to follow the review schedule outlined in the Preliminary Plan and observed that the State Disability Determination Services must apply the listings uniformly.
Response: We agree and remain on course to complete the entire first comprehensive refreshment of the listings by the end of calendar year 2012.
Comment: The HIV Law Project suggested that we offer an informal public comment period on an Institute of Medicine report immediately after we receive it and before we propose revised listings. Doing so would give members of the public the “opportunity to comment on the assumptions, findings, and conclusions of the [Institute of Medicine] report, before these become integrated into proposed revisions to the listings.”
Response: We partially agree with the comment. The Institute of Medicine already posts its final reports on its website for the public to review. We agree that, when we receive a final report from the Institute of Medicine, we will post on our website a link to the report on the Institute of Medicine’s website. This action will facilitate the public’s ability to review the report.
However, we do not believe that we need to provide a separate review and comment period for an Institute of Medicine report. We have no editorial control over Institute of Medicine Consensus Committee reports. Institute of Medicine reports are not SSA work products, and we do not adopt or reject findings in Institute of Medicine reports. We may use information in reports from the Institute of Medicine as one source of guidance when we develop our proposals to revise the listings, just as we may use other guidance from other sources. When we publish a notice of proposed rulemaking proposing changes to our listings, we also provide the public with a list of the references on which we relied in developing the proposed rules, and we invite the public to comment on those references. Thus, we already offer numerous and robust opportunities for comment, both formal and informal.
Current Efforts Independent of E.O. 13563
The medical listings help ensure disability determinations have a sound medical basis, claimants receive equal treatment based on specific criteria, and disabled individuals can be readily identified and awarded benefits if appropriate. We screen all disability claimants who do not perform substantial gainful activity and have severe impairments to quickly identify individuals who clearly meet the definition of disability.
As we noted above, we routinely update the listings to reflect our program experience, advances in medical knowledge, and comments we receive from medical experts, advocacy groups, patients, adjudicators, and at public outreach policy conferences. We also update the listings to reflect the universal standard of care in the medical field. For example, we update our listings to reflect the standards and types of medical evidence we receive nationwide, making our requests for medical evidence more targeted.
Regular updates of our medical listings benefits claimants because they receive decisions faster and need to file fewer appeals. We can allow claims earlier in the sequential evaluation process using the medical listings step based on updated and accurate medical criteria.
We already have a detailed process in place to review our medical listings. Since 1985, we have established “sunset” dates in the rules for the medical listings that we use as part of the sequential evaluation process we use to determine if persons are disabled under the Social Security and Supplemental Security Income programs. We organize the medical listings by body system and use the schedule of the sunset dates to periodically analyze whether the existing medical listings need updating to reflect advances in medical knowledge, practice, and treatment, and our program experience.
Our business plan for updating the listings provides for:
We use the Administrative Procedure Act’s public-notice-and-comment process to propose and issue changes to the listings.
We provide a more detailed explanation of our business plan for the medical listings in the Appendix to this Plan.
Elements of Final Plan/Compliance with E.O. 13563
Over the next two years, we anticipate reviewing the following medical listings, for which we may issue notices of proposed rulemaking (NPRM) or final rules as appropriate. The listings we expect to review are:
The high-level agency official responsible for retrospective analysis is Dean Landis, Deputy Chief of Staff (Dean.Landis@ssa.gov). The Deputy Chief of Staff position is located in the Office of the Commissioner, which oversees the subordinate components responsible for writing and implementing regulations.
As noted above, we plan our retrospective analysis based on the schedule of approaching sunset dates of the various body system listings. We will use the analysis to determine if we need to revise specific medical listings.
Components of Retrospective Cost-Benefit Analysis (CBA)
We generally do not issue the kind of regulations that require a cost-benefit analysis as defined by the Office of Management and Budget. Nonetheless, when we analyze medical listings one year after we issued them as final rules, we compare the allowance rate before and after we issued the final rules. We use the results of this analysis to make additional revisions to the listings based on our programmatic experience.
In addition, we will also consider how regulations might be designed and written in ways that facilitate evaluation of their consequences and thus promote retrospective analyses and the measurement of actual results. For example, we may consider using experimental or quasi-experimental designs, including randomized controlled trials, when promoting the empirical testing of the effects of rules.
Reducing Paperwork Burdens
We are committed to reducing the burden we place on the public to the greatest extent possible. We take seriously our obligation to develop innovative solutions that eliminate unjustified complexity for applications and that reduce the public reporting burden. Initiatives such as the two new activities described below illustrate our commitment to that obligation. They are:
Social Security disability beneficiaries and Supplemental Security Income (SSI) recipients receive payments based on their inability to engage in substantial gainful activity because of a physical or mental condition. When beneficiaries or SSI recipients resume work, they must report the work so we can evaluate and determine if they continue to meet the disability requirements of the law. We use the SSA-820-F4, Work Activity Report-Self-Employed Person, and SSA-821-BK, Work Activity Report-Employee, to obtain work activity information.
We plan to streamline our Work Activity Reports, the SSA-820-F4 and SSA-821-BK, to provide better instruction and to make them easier to understand and complete. We also plan to revise our procedures to eliminate unnecessary questions in certain self-employment cases. By streamlining the forms and eliminating certain procedures, we anticipate simplifying the process and reducing the current paperwork burden for these collections. We estimate this initiative will save 37,500 hours.
When claimants file for Social Security disability insurance or SSI benefits, they generally sign form SSA-827 (Authorization to Disclose Information to SSA), which serves as the claimants’ written request to a medical provider or other source to release information to us. Currently, claimants generally sign the SSA-827 so we can obtain medical and other records related to the claim. Acquiring a signature on this form can often take weeks, causing unnecessary delays in processing claims for one of the most vulnerable segments of our population.
In fiscal year (FY) 2009, we began developing an electronic authorization process that eliminates the need for a signature on the paper form SSA-827. Our new process will allow respondents to use an electronic signature process similar to the one we currently use in many of our electronic forms systems. An electronic authorization process supports faster processing of disability claims and improves service to the public by eliminating the need to wait for the claimant to sign and return the paper form to us. We estimate this initiative will save 42,166 hours.
In addition to these initiatives, we continue to develop new electronic platforms to reduce the public burden and make working with us easier. Our efforts enable faster and more efficient communication with the public, which is an integral part of our public service mandate. For example, we continue to search for ways to expand the services we offer on-line. We invite public comments about possible new initiatives, also designed to reduce complexity and burdens. It is important to note that although we serve nearly every member of the American public, we account for less than half a percent of the total public reporting burden.
Executive Order 13563 calls not for a single exercise, but for “periodic review of existing significant regulations,” with close reference to empirical evidence. It explicitly states that “retrospective analyses, including supporting data, should be released online wherever possible.” Consistent with the commitment to periodic review and to public participation, we will continue to assess our existing significant regulations in accordance with the requirements of Executive Order 13563. We welcome public suggestions about appropriate reforms, which you may send to us via facsimile at (410) 966-2830. If, at any time, members of the public identify possible reforms to streamline requirements and to reduce existing burdens, we will give those suggestions careful consideration.
Publishing the Agency’s Plan On-line
SSA will publish the retrospective review plan on its Open Government website.
Appendix: Business Plan for updating the medical listings