Federal Register / Vol. 88, No. 188 / Friday, September 29, 2023 / Rules and Regulations 67081 

1 85 FR 78164 (2020). 

2For adults, the listings describe, for each of the 

major body systems, impairments that we consider 

to be severe enough to prevent an individual from 

doing any gainful activity regardless of his or her 

age, education, or work experience. 20 CFR 

404.1525(a) and 416.925(a). For children, the 

listings describe impairments we consider severe 

enough to cause marked and severe functional 

limitations. 20 CFR 416.925(a). We use the listings 

at step 3 of the sequential evaluation process to 

identify claims in which the individual is clearly 

disabled under our rules. 20 CFR 404.1520, 

416.920, and 416.924). We do not deny a claim 

when a person’s medical impairment(s) does not 

satisfy the criteria of a listing. Instead, we continue 

the sequential evaluation process. 20 CFR 

404.1520(a)(4) and 416.920(a)(4). 

3Radford v. Colvin, 734 F.3d 288 (4th Cir. 2013). 

4 Id. at 294. 

5See Acquiescence Ruling 15–1(4). We rescinded 

that Acquiescence Ruling after we revised the 

listings in 2020. 85 FR 79063 (2020). 

6Listings 1.15, 1.16, 1.17, 1.18, 1.20C, 1.20D, 

1.22, 1.23, 101.15, 101.16, 101.17, 101.18, 101.20C, 

101.20D, 101.22, and 101.23. 

7See 85 FR 78164 (2020) (revising 20 CFR part 

404, subpart P, Appendix 1, 1.00C7c and 

101.00C7c). 

The revisions read as follows: 

§ 351.408 Calculation of normal value of 

merchandise from nonmarket economy 

countries. 

* * * * * 

(c) * * * 

(2) Valuation in a single country. The 

Secretary normally will value all factors 

in a single surrogate country. 

(3) Manufacturing overhead, general 

expenses, and profit. For manufacturing 

overhead, general expenses, and profit, 

the Secretary normally will use nonproprietary information gathered from 

producers of identical or comparable 

merchandise in the surrogate country. 

[FR Doc. 2023–21516 Filed 9–28–23; 8:45 am] 

BILLING CODE 3510–DS–P 

SOCIAL SECURITY ADMINISTRATION 

20 CFR Part 404 

[Docket No. SSA–2023–0023] 

RIN 0960–AI85 

Extension of the Flexibility in 

Evaluating ‘‘Close Proximity of Time’’ 

To Evaluate Changes in Healthcare 

Following the COVID–19 Public Health 

Emergency 

AGENCY: Social Security Administration. 

ACTION: Temporary final rule with 

request for comments. 

SUMMARY: On July 23, 2021, we issued 

a temporary final rule (TFR) with 

request for comments to lengthen the 

‘‘close proximity of time’’ standard in 

the Listing of Impairments (the listings) 

for musculoskeletal disorders because 

the COVID–19 national public health 

emergency (PHE) caused many 

individuals to experience barriers that 

prevented them from timely accessing 

in-person healthcare. That prior TFR is 

effective until six months after the 

effective date of a determination by the 

Secretary of Health and Human Services 

(HHS) that a PHE resulting from the 

COVID–19 pandemic no longer exists. 

The Secretary of HHS made that 

determination, and the COVID–19 

national PHE ended on May 11, 2023. 

However, healthcare practices in a postPHE world are still evolving. We are 

therefore issuing this new TFR to extend 

the flexibility provided by the prior TFR 

until May 11, 2025, so we can evaluate 

changes in healthcare practices and 

determine the proper ‘‘close proximity 

of time’’ standard for the 

musculoskeletal disorders listings. 

DATES: 

Effective date: This TFR is effective 

on October 30, 2023. 

Comment date: We invite written 

comments. Comments must be 

submitted no later than November 28, 

2023. 

Expiration date: Unless we extend the 

provisions of this TFR by a final rule 

published in the Federal Register, it 

will cease to be effective on May 11, 

2025. 

ADDRESSES: You may submit comments 

by any one of three methods—internet, 

fax, or mail. Do not submit the same 

comment(s) multiple times or by more 

than one method. Regardless of which 

method you choose, please state that 

your comment(s) refer to Docket No. 

SSA–2023–0023 so that we may 

associate your comment(s) with the 

correct regulation. 

Caution: You should be careful to 

include in your comment(s) only 

information that you wish to make 

publicly available. We strongly urge you 

not to include any personal information 

in your comment(s), such as Social 

Security numbers or medical 

information. 

1. Internet: We strongly recommend 

that you submit your comment(s) via the 

internet. Please visit the Federal 

eRulemaking portal at https://

www.regulations.gov. Use the ‘‘search’’ 

function to find docket number SSA– 

2023–0023. The system will issue a 

tracking number to confirm your 

submission. You will not be able to 

view your comment(s) immediately 

because we must post each comment 

manually. It may take up to one week 

for your comment(s) to be viewable. 

2. Fax: Fax comments to 1–833–410– 

1631. 

3. Mail: Mail your comments to the 

Office of Legislation and Congressional 

Affairs Regulations and Reports 

Clearance Staff, Mail Stop 3253, 

Altmeyer, 6401 Security Blvd., 

Baltimore, MD 21235. 

Comments are available for public 

viewing on the Federal eRulemaking 

portal at https://www.regulations.gov or 

in person, during regular business 

hours, by arranging with the contact 

person identified below. 

FOR FURTHER INFORMATION CONTACT: 

Michael J. Goldstein, Office of Disability 

Policy, Social Security Administration, 

6401 Security Boulevard, Baltimore, MD 

21235–6401, (410) 965–1020. 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 http://

www.ssa.gov. 

SUPPLEMENTARY INFORMATION: 

Background 

On December 3, 2020, we published 

the final rule, Revised Medical Criteria 

for Evaluating Musculoskeletal 

Disorders (final rule),1 which became 

effective on April 2, 2021. This final 

rule revised the criteria in the listings 

that we use to evaluate disability claims 

involving musculoskeletal disorders in 

adults and children at the third step of 

our sequential evaluation process under 

titles II and XVI of the Social Security 

Act (Act).2 The final rule, among other 

things, revised the listings in response 

to the decision in Radford v. Colvin,3

which interpreted former listing 1.04A 

to require a disability claimant to show 

only ‘‘that each of the symptoms are 

present, and that the claimant has 

suffered or can be expected to suffer 

from [the condition] continuously for at 

least 12 months.’’ 4 Under the court’s 

interpretation of the former listing, a 

claimant did not need to show that each 

necessary criterion was present 

simultaneously or in particularly close 

proximity, as required by our 

interpretation of that listing.5 The final 

rule clarified that, for the purposes of 

applying certain musculoskeletal 

disorders listings,6 all of the required 

medical criteria must be present 

simultaneously, or within a close 

proximity of time, to satisfy the level of 

severity needed for the impairment to 

meet the listing. The final rule further 

defined the phrase ‘‘within a close 

proximity of time’’ to mean ‘‘that all of 

the relevant criteria must appear in the 

medical record within a consecutive 4- 

month period’’ (emphasis in original).7

We also provided that ‘‘[w]hen the 

criterion is imaging, we mean that we 


lotter on DSK11XQN23PROD with RULES1
67082 Federal Register / Vol. 88, No. 188 / Friday, September 29, 2023 / Rules and Regulations 

8 Id. 

9See 85 FR at 78169–78170. 

10 83 FR 20646 (2018). 

11 Id. at 20647. 

12 85 FR at 78169 n.37 (citing Bavafa, H., Savin, 

S., & Terwiesch, C. (2019). Redesigning Primary 

Care Delivery: Customized Office Revisit Intervals 

and E-Visits. https://dx.doi.org/10.2139/ssrn.

2363685. Paper referenced by Bavafa: Schectman, 

G., G. Barnas, P. Laud, L. Cantwell, M. Horton, E.J. 

Zarling. 2005. Prolonging the return visit interval in 

primary care. The American Journal of Medicine, 

118(4) 393–399). 

13 85 FR at 78169 n.34 (citing Gore, M., Sadosky, 

A., Stacey, B.R., Tai, K.S., & Leslie, D. (2012). The 

burden of chronic low back pain: Clinical 

comorbidities, treatment patterns, and health care 

costs in usual care settings. Spine, 37(11), E668– 

E677. https://doi.org/10.1097/BRS.0b013e318241

e5de). 

14 85 FR at 78169 n.35 (citing BMUS: The Burden 

of Musculoskeletal Diseases in the United States. In: 

BMUS: The Burden of Musculoskeletal Diseases in 

the United States [internet]. [cited 15 July 2020]. 

https://www.boneandjointburden.org/fourthedition/viiic2/utilization-condition-group). 

15See 85 FR at 78169 n.36 (citing J Gen Intern 

Med. 1999 Apr; 14(4): 230–235. doi: 10.1046/ 

j.1525–1497.1999.00322.x Lisa M Schwartz, MD, 

MS, Steven Woloshin, MD, MS, John H Wasson, 

MD, Roger A Renfrew, MD, and H Gilbert Welch, 

MD, MPH, Dartmouth Primary Care Cooperative 

Research Network). 

16 Determination That A Public Health Emergency 

Exists by Alex M. Azar II, Secretary of Health & 

Human Services (Jan. 31. 2020) (https://

aspr.hhs.gov/legal/PHE/Pages/2019-nCoV.aspx). 

17Centers for Medicare & Medicaid Services 

(CMS) Recommendations: Re-opening Facilities to 

Provide Non-emergent Non-COVID–19 Healthcare 

(https://www.cms.gov/files/document/covidrecommendations-reopening-facilities-provide-nonemergent-care.pdf); see also Non-Emergent, Elective 

Medical Services, and Treatment Recommendations 

(https://www.cms.gov/files/document/cms-nonemergent-elective-medical-recommendations.pdf). 

18 86 FR 38920 (2021). 

19 Id. 

20 86 FR at 38925. 

21 86 FR at 38924. 

22See Comment from National Organization of 

Social Security Claimants’ Representatives on 

Document SSA–2021–0010–0001, https://

www.regulations.gov/comment/SSA-2021-0010- 

0002. 

could reasonably expect the findings on 

imaging to have been present at the date 

of impairment or date of onset.’’ 8

We established the consecutive 4- 

month period as a criterion to meet the 

level of severity in some of the 

musculoskeletal disorders listings based 

on our research of relevant medical 

literature and clinical guidelines.9

When we proposed this requirement as 

part of a notice of proposed rulemaking 

(NPRM),10 we specifically asked 

interested members of the public to 

comment on this issue and provide us 

with any studies and data that 

supported their comments for a different 

standard; 11 however, no studies or data 

were submitted in response. In the final 

rule, we concluded that the consecutive 

4-month period was consistent with the 

timeframe medical providers were 

generally trained to use for scheduling 

their patients,12 the general standard of 

care,13 and the frequency of healthcare 

visits by individuals with 

musculoskeletal conditions.14 At the 

same time, the consecutive 4-month 

period provided some leeway for 

claimants, because the standard for 

patient revisits was once every 3 

months.15 Our rules recognize that one 

visit alone may not ensure all necessary 

criteria required for a medical listing 

will be appropriately documented; 

however, the consecutive 4-month time 

period provided a sufficient period to 

ensure the criteria were present ‘‘within 

a close proximity of time’’ and that the 

musculoskeletal disorder met the 

requisite severity for the listing. 

Onset of COVID–19 

In 2020, COVID–19 began to spread 

throughout the country, prompting the 

Secretary of Health and Human Services 

to declare a national PHE on January 31, 

2020.16 With the outbreak of COVID–19, 

access to and the provision of healthcare 

changed significantly. Throughout the 

PHE, individuals across the country— 

including those with musculoskeletal 

disorders—altered their frequency and 

manner of seeking access to healthcare. 

This was due in part to healthcare 

organizations and government agencies 

such as the Centers for Medicare & 

Medicaid Services (CMS) 17 prioritizing 

the most urgent services and 

encouraging patients to delay other 

procedures during the PHE. Likewise, 

many individuals delayed or deferred 

important treatments due to closures of 

medical offices, fears of contracting 

COVID–19 infection (including fear of 

exposing high-risk individuals living in 

their household to infection), and other 

challenges created or exacerbated by the 

pandemic, such as difficulty accessing 

transportation. 

In July 2021, we published a TFR 

entitled Flexibility in Evaluating ‘‘Close 

Proximity of Time’’ Due to COVID–19 

Related Barriers to Healthcare 18 (prior 

TFR), which recognized the changes in 

healthcare provision and consumption 

described above. In the prior TFR, we 

acknowledged that the response to the 

COVID–19 pandemic dramatically 

changed the provision of, and access to, 

healthcare services throughout the 

country, and we cited evidence showing 

that significant numbers of people had 

foregone or delayed care, or replaced inperson medical visits with telehealth 

visits.19 Therefore, we concluded that 

individuals with musculoskeletal 

impairments who, before the pandemic, 

would have sought and received 

healthcare at a frequency consistent 

with the standards in our final rule, now 

might be unable or choose not to seek 

care for their condition in the same 

manner and frequency. Affected 

individuals whose impairments might 

have previously met the listings 

requirements may now fail to meet the 

‘‘close proximity of time’’ standard 

because of the changes in the provision 

of healthcare resulting from COVID–19. 

We therefore extended the timeframe for 

an individual’s record to demonstrate 

the necessary listing criteria throughout 

the pandemic period. 

The prior TFR defined the ‘‘pandemic 

period’’ for the purposes of our 

regulations and provided that during the 

pandemic period, the phrase ‘‘within a 

close proximity of time’’ meant that all 

of the relevant criteria must appear in 

the medical record within a consecutive 

12-month period.’’ 20 The prior TFR 

defined the ‘‘pandemic period’’ as 

beginning on April 2, 2021 and ending 

6 months after the Secretary of HHS 

determined that the COVID–19 national 

PHE no longer existed. We extended the 

‘‘pandemic period’’ for 6 months after 

the end of the COVID–19 national PHE 

to allow time for healthcare access to 

normalize and return to pre-pandemic 

period levels as well as to account for 

potential backlogs in medical care that 

may continue to interfere with access to 

the relevant care and documentation 

needed to satisfy the listing criteria. We 

also indicated that we would study the 

application of the TFR on our 

programs.21

Public Comment on the Prior TFR 

When we published the prior TFR in 

the Federal Register, we provided the 

public with a 60-day comment period, 

which ended on September 21, 2021. 

We specifically contemplated extending 

the prior TFR, and we invited comments 

on all aspects of the rule, including the 

definition of ‘‘pandemic period’’ and the 

expiration date. We received one 

comment from the National 

Organization of Social Security 

Claimants’ Representatives (NOSSCR) 22

that encouraged us to make permanent 

the temporary 12-month standard. The 

commenter also recommended, if we 

chose not to make the 12-month 

standard permanent, that we extend the 

period covered by the prior TFR to one 

year after the end of the PHE. They 

argued that access to care issues exist 

regardless of the pandemic and that it 

would take longer than 6 months for 

healthcare delivery to normalize after 

the end of the PHE. 

With this temporary rule, we are 

partially adopting this comment. 

Although we provided support for the 

consecutive 4-month period in our 2020 


lotter on DSK11XQN23PROD with RULES1
Federal Register / Vol. 88, No. 188 / Friday, September 29, 2023 / Rules and Regulations 67083 

23See, e.g., Neri, A. J., Whitfield, G. P., 

Umeakunne, E. T., Hall, J. E., DeFrances, C. J., Shah, 

A. B., Sandhu, P. K., Demeke, H. B., Board, A. R., 

Iqbal, N. J., Martinez, K., Harris, A. M., & Strona, 

F. V. (2022). Telehealth and Public Health Practice 

in the United States-Before, During, and After the 

COVID–19 Pandemic. Journal of public health 

management and practice: JPHMP, 28(6), 650–656. 

https://doi.org/10.1097/PHH.0000000000001563. 

24 20 CFR part 404, subpart P, Appendix 1, 

1.00C7c and 101.00C7c. 

25Becarra, X. (2023, May 11). Statement on End 

of the COVID–19 Public Health Emergency. 

Department of Health and Human Services. https:// 

www.hhs.gov/about/news/2023/05/11/hhssecretary-xavier-becerra-statement-on-end-of-thecovid-19-public-health-emergency.html. 

26Tsai, D. (2023, Jan 5). CMS Informational 

Bulletin: Key Dates Related to the Medicaid 

Continuous Enrollment Condition Provisions in the 

Consolidated Appropriations Act, 2023. Centers for 

Medicare & Medicaid Services, U.S. Department of 

Health & Human Services. https://

www.medicaid.gov/federal-policy-guidance/ 

downloads/cib010523.pdf. 

27See, e.g., Samson, L., Tarazi, W., Turrini, G., 

Sheingold, S. (2021, Dec.). Medicare Beneficiaries’ 

Use of Telehealth Services in 2020—Trends by 

Beneficiary Characteristics and Location (Issue Brief 

No. HP–2021-27). Office of the Assistant Secretary 

for Planning & Evaluation, U.S. Department of 

Health & Human Services. https://aspe.hhs.gov/ 

sites/default/files/documents/

a1d5d810fe3433e18b192be42dbf2351/medicaretelehealth-report.pdf ; Centers for Medicare & 

Medicaid Services (2022, Dec.). Medicare 

Telehealth Trends Report. Centers for Medicare & 

Medicaid Services, U.S. Department of Health & 

Human Services. https://data.cms.gov/sites/default/ 

files/2022-12/a7c3a319-5ded-4baf-ad7c9aa2a897263a/MedicareTelehealth

TrendsSnapshot20221201.pdf; Patel, S. Y., 

Mehrotra, A., Huskamp, H. A., Uscher-Pines, L., 

Ganguli, I., & Barnett, M. L. (2021). Trends in 

Outpatient Care Delivery and Telemedicine During 

the COVID–19 Pandemic in the US. JAMA internal 

medicine, 181(3), 388–391. https://doi.org/10.1001/ 

jamainternmed.2020.5928; Cortez, C., Mansour, O., 

Qato, D. M., Stafford, R. S., & Alexander, G. C. 

(2021). Changes in Short-term, Long-term, and 

Preventive Care Delivery in US Office-Based and 

Telemedicine Visits During the COVID–19 

Pandemic. JAMA health forum, 2(7), e211529. 

https://doi.org/10.1001/jamahealthforum.

2021.1529. 

28 86 FR 38920 (2021) (citing Tanaka et al. (2020). 

Telemedicine in the Era of COVID–19: The Virtual 

Orthopaedic Examination. The Journal of bone and 

joint surgery. American volume, 102(12), e57. 

http://dx.doi.org/10.2106/JBJS.20.00609). 

final rule, we agree with NOSSCR that 

some of the changes in healthcare 

caused by the COVID–19 pandemic may 

last longer than 6 months after the end 

of the PHE and that some changes may 

become permanent, including the 

increased use of telehealth, the nature of 

which limits documentation of clinical 

findings needed for certain listings. 

However, as discussed in the Rationale 

for this Rule section below, the 

healthcare data that was captured 

during the PHE has limitations both in 

data collection and in the ability to 

make ultimate conclusions about postPHE healthcare delivery, particularly in 

light of policy changes affecting 

healthcare that will occur throughout 

calendar years 2023 and 2024.23

Therefore, we are extending the 

flexibility provided in the prior TFR by 

extending the definition of ‘‘pandemic 

period’’ through May 11, 2025, so we 

can continue to review emerging 

evidence about post-PHE healthcare 

access and use. At the conclusion of that 

period, we expect to be able to 

determine whether we should extend 

the TFR again, make the flexibility in 

the TFR permanent, as the commenter 

recommended, propose a different 

standard for ‘‘close proximity of time,’’ 

or let the TFR expire, so that we would 

revert to the 4-month rule on ‘‘close 

proximity of time’’ in our 2020 final 

rule. The commenter also raised issues 

regarding general barriers to accessing 

care that disability benefit applicants 

may be disproportionally likely to 

experience. These comments are outside 

the scope of this very limited TFR, so 

we are not addressing them here. We 

will address these comments in a future 

venue. We also note that although the 

commenter provided significant 

discussion of the wait times for imaging, 

including citing research about these 

wait times, they appear to have 

mischaracterized the ‘‘close proximity 

of time’’ requirement for imaging. The 

listings specify at 1.00C7c and 

101.00C7c that ‘‘[w]hen the criterion is 

imaging, we mean that we could 

reasonably expect the findings on 

imaging to have been present at the date 

of impairment or date of onset.’’ 24

Therefore, in listings that have an 

imaging criterion, we do not require the 

imaging to have been taken within a 

close proximity of time to the other 

required elements, as long as we can 

reasonably expect the findings on 

imaging to have been present within a 

close proximity of time to the other 

required elements. 

Rationale for This Rule 

We are extending the flexibility 

provided by the prior TFR through May 

11, 2025 to allow for additional time to 

study changes in healthcare access and 

provision, and to account for the 

ongoing increased use of telehealth 

services following the COVID–19 PHE. 

We will evaluate these evolving 

practices and their effects to determine 

the appropriate ‘‘close proximity of 

time’’ standard to include in the 

musculoskeletal disorders listings going 

forward. 

We published the prior TFR to 

provide a more flexible 12-month ‘‘close 

proximity of time’’ standard in the 

musculoskeletal disorders listings to 

account for changes in the provision of 

and access to healthcare during the 

COVID–19 PHE. Although the PHE has 

now ended,25 the state of healthcare has 

not fully returned to pre-pandemic 

norms and the impact of ending the PHE 

and related flexibilities will not be fully 

understood for some time. For example, 

and as discussed in more detail below, 

studies and reports from multiple 

government agencies as well as 

professional medical associations 

document an ongoing prevalence of 

telehealth service methodologies at 

higher levels than seen pre-PHE. In 

addition, several PHE-related policy 

flexibilities aimed at increasing 

healthcare access through telehealth 

have been extended through 2023 or 

2024. At the same time, Medicaid and 

the Children’s Health Insurance 

Program’s (CHIP) continuous coverage 

protections, which had required states 

to maintain ongoing eligibility for 

Medicaid and CHIP for individuals who 

were enrolled on or after March 18, 

2020, ended on March 31, 2023, leaving 

states until May 31, 2024, to complete 

eligibility redeterminations,26

potentially leading to an increase in 

uninsured individuals. These factors 

suggest that U.S. healthcare will be in a 

state of rapid change in the period 

immediately following the PHE, so we 

will need to study the changes in 

healthcare provision before defining the 

appropriate ‘‘close proximity of time’’ 

interval going forward. 

As we discussed in the prior TFR, 

after the initial sharp drop in total 

healthcare capacity due to PHE-related 

closures and disruptions of care, policy 

flexibilities around telehealth provision 

and reimbursement allowed for the use 

of telehealth to increase substantially 

from pre-pandemic norms, partially 

offsetting the decline in in-person care, 

particularly for management of chronic 

conditions and for established 

patients.27 Although telehealth visits 

can provide the information that 

clinicians need to care for patients, 

audio-only telehealth appointments do 

not provide clinical signs and findings, 

and video telehealth musculoskeletal 

examinations have inherent limitations, 

including in provocative testing (that is, 

testing that manipulates the areas where 

an individual has pain in order to 

reproduce the pain), discrete palpation 

(that is, a technique that uses targeted 

pressure to identify and quantify the 

abnormalities of the musculoskeletal 

system, such as warmth, swelling, pain, 

tenderness, and trigger points), strength 

or stability testing, and precise 

measurements, such as range of motion 

or reflexes.28 Therefore, use of 

telehealth in place of in-person visits 

may make it more difficult for some 


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67084 Federal Register / Vol. 88, No. 188 / Friday, September 29, 2023 / Rules and Regulations 

29 Veterans Health Administration (2022, Dec. 5). 

VHA COVID–19 Response Report, Annex C. 

Veterans Health Administration, U.S. Department 

of Veterans Affairs. https://www.va.gov/HEALTH/ 

docs/VHA-COVID-19-Response-2022-Annex-C.pdf. 

30Centers for Medicare & Medicaid Services 

(2022, Dec.). Medicare Telehealth Trends Report. 

Centers for Medicare & Medicaid Services, U.S. 

Department of Health & Human Services. https://

data.cms.gov/sites/default/files/2022-12/a7c3a319- 

5ded-4baf-ad7c-9aa2a897263a/MedicareTelehealth

TrendsSnapshot20221201.pdf. 

31 Karimi, M., Lee, E., Couture, S., Gonzales, A., 

Grigorescu, V., Smith, S., De Lew, N., and Sommers, 

B. (2022, Feb.). National Trends in Telehealth Use 

in 2021: Disparities in Utilization and Audio vs. 

Video Services. (Research Report No. HP–2022–04). 

Office of the Assistant Secretary for Planning & 

Evaluation, U. S. Department of Health & Human 

Services. https://aspe.hhs.gov/sites/default/files/ 

documents/4e1853c0b4885112b2994680a58af9ed/ 

telehealth-hps-ib.pdf. 

32American Medical Association (2022). 2021 

Telehealth Survey Report. American Medical 

Association. https://www.ama-assn.org/system/ 

files/telehealth-survey-report.pdf. 

33Mazarakis, N. K., Koutsarnakis, C., Komaitis, S., 

Drosos, E., & Demetriades, A. K. (2022). Reflections 

on the future of telemedicine and virtual spinal 

clinics in the post COVID–19 era. Brain & spine, 2, 

100930. https://doi.org/10.1016/j.bas.2022.100930; 

Greven, A. C. M., McGinley, B. M., Guisse, N. F., 

McGee, L. J., Pirkle, S., Malcolm, J. G., Rodts, G. E., 

Refai, D., & Gary, M. F. (2021). Telemedicine in the 

Evaluation and Management of Neurosurgical Spine 

Patients: Questionnaire Assessment of 346 

Consecutive Patients. Spine, 46(7), 472–477. 

https://doi.org/10.1097/BRS.0000000000003821 ; 

Kolcun, J. P. G., Ryu, W. H. A., & Traynelis, V. C. 

(2020). Systematic review of telemedicine in spine 

surgery. Journal of neurosurgery. Spine, 1–10. 

Advance online publication. https://doi.org/ 

10.3171/2020.6.SPINE20863; Satin, A. M., Shenoy, 

K., Sheha, E. D., Basques, B., Schroeder, G. D., 

Vaccaro, A. R., Lieberman, I. H., Guyer, R. D., & 

Derman, P. B. (2022). Spine Patient Satisfaction 

With Telemedicine During the COVID–19 

Pandemic: A Cross-Sectional Study. Global spine 

journal, 12(5), 812–819. https://doi.org/10.1177/

2192568220965521. 

34Hurley, E. T., Haskel, J. D., Bloom, D. A., 

Gonzalez-Lomas, G., Jazrawi, L. M., Bosco, J. A., III, 

& Campbell, K. A. (2021). The Use and Acceptance 

of Telemedicine in Orthopedic Surgery During the 

COVID–19 Pandemic. Telemedicine journal and ehealth: the official journal of the American 

Telemedicine Association, 27(6), 657–662. https:// 

doi.org/10.1089/tmj.2020.0255. 

35Cascella, M., Miceli, L., Cutugno, F., Di 

Lorenzo, G., Morabito, A., Oriente, A., Massazza, G., 

Magni, A., Marinangeli, F., Cuomo, A., & on behalf 

of the Delphi Panel (2021). A Delphi Consensus 

Approach for the Management of Chronic Pain 

during and after the COVID–19 Era. International 

journal of environmental research and public 

health, 18(24), 13372. https://doi.org/10.3390/

ijerph182413372. 

36Mazarakis, N. K., Koutsarnakis, C., Komaitis, S., 

Drosos, E., & Demetriades, A. K. (2022). Reflections 

on the future of telemedicine and virtual spinal 

clinics in the post COVID–19 era. Brain & spine, 2, 

100930. https://doi.org/10.1016/j.bas.2022.100930. 

claimants to provide the necessary 

findings in the medical record to satisfy 

some of the musculoskeletal disorders 

listing criteria within a consecutive 4- 

month period. 

Trends suggest telehealth usage will 

continue into the foreseeable future. 

Since the prior TFR was published, the 

use of telehealth as a percentage of total 

use has remained stable, with total 

healthcare visits and in-person visits 

trending higher than in 2020, but with 

an increased use of telehealth compared 

to pre-PHE norms. For example, the 

Veterans’ Health Administration’s 

(VHA) update to Congress covering the 

period from August 2021 to March 2022 

showed that total visits had surpassed 

pre-PHE 2019 visits during this period, 

but in-person visits remained below prePHE totals, with both video and audio 

telehealth visits showing steady use 

over the period. VHA concluded that 

the data marked ‘‘positive progress for 

resumption of services with continued 

use of telehealth encounters.’’ 29

Similarly, Medicare data showed 

telehealth use leveling off between 16 

and 19 percent of eligible users in all 

quarters beginning in the second quarter 

of 2021 and through the second quarter 

of 2022, which is significantly higher 

than the 7 percent of eligible users who 

used telehealth services in the first 

quarter of 2020.30 An HHS summary of 

national survey trends from the Census 

Bureau’s April to October 2021 

Household Pulse Survey found that 23.1 

percent of respondents reported use of 

telehealth in the previous four weeks, 

with the data showing a leveling off 

around the 20 percent mark in July 

2021.31 The results of these studies 

suggest that the changes in healthcare 

delivery related to the PHE have 

continued, and we may not know the 

long-term effects of those changes before 

the prior TFR expires. Consequently, we 

are extending the expiration date of the 

TFR so we can continue to analyze 

evolving changes and new norms in 

healthcare delivery, including the use of 

telehealth, and devise the appropriate 

definition of ‘‘close proximity of time’’ 

for the musculoskeletal disorders 

listings. We will also continue to study 

other related factors such as those raised 

by the commenter. 

Extending the TFR will further allow 

us to review and adapt to new clinical 

guidelines evolving in a post-PHE 

landscape. Although the research is still 

developing and most professional 

organizations have yet to update their 

clinical practice guidelines for a postPHE ‘‘new normal,’’ the emerging 

research and data suggest that patients 

and providers generally appreciate the 

increased use of telehealth, and such 

increased use is expected to continue 

post-PHE. This increased use appears 

true for both audio-only and video 

telehealth modalities and includes 

specialties, such as orthopedic surgery 

and spine surgery, that previously used 

telehealth only sparingly. For example, 

an American Medical Association 

(AMA) survey of 2,232 physicians 

released in 2022 revealed that 85 

percent of responding physicians 

continued to use telehealth, that nearly 

70 percent of respondents reported their 

organization was motivated to continue 

using telehealth in their practice, that 

physicians felt telehealth increased 

timely access to care, and that 

physicians anticipated providing 

telehealth services for chronic disease 

management and ongoing medical 

management, care coordination, mental/ 

behavioral health, and specialty care 

after the pandemic.32

Similarly, studies specific to the field 

of spine medicine generally found that 

practitioners and patients expected to 

continue using telehealth and that the 

majority of patients and providers only 

felt a need for in-person visits for the 

initial encounter and, if applicable, the 

pre-operative visit.33 Studies of 

orthopedic medicine showed similar 

results, with a large study of orthopedic 

surgeons reporting that physician use of 

telehealth has increased significantly as 

a result of the COVID–19 pandemic 

(from 21 percent using telehealth prior 

to the pandemic to 85 percent using it 

during the pandemic), and the majority 

of surgeons were satisfied with its use 

in their practice and planned on 

incorporating telehealth in their 

practices beyond the pandemic, 

particularly for follow-up or 

postoperative patients.34 In the realm of 

chronic pain, a Delphi consensus article 

about management of chronic pain 

concluded that telemedicine and remote 

monitoring improves management of 

chronic pain and that the remote 

management of chronic diseases can 

improve access to care, but that at least 

the first assessment should be 

performed in person.35

Some clinical practice organizations 

have provided recommendations or 

policy statements regarding the use of 

telehealth after the acute phase of the 

pandemic, suggesting an ongoing, but 

potentially more limited, role in 

healthcare provision for people with 

musculoskeletal disorders going 

forward. An international set of 

recommendations published in June 

2022, and endorsed by the North 

American Spine Society, included a 

recommendation to expand telehealth 

for spine care in order to help patients 

with spinal diseases obtain timely 

advice toward alleviating pain and 

recognizing critical symptoms that need 

urgent care, and thus obtain treatment 

in a timely manner.36 Additionally, the 

American College of Rheumatology 

(ACR) released a 2023 health policy 

statement in which it supported ongoing 


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37American College of Rheumatology (2023). 

2023 ACR Health Policy Statements. American 

College of Rheumatology. https://

assets.contentstack.io/v3/assets/

bltee37abb6b278ab2c/bltd84782969d741aba/acrhealth-policy-statements.pdf. 

38American Medical Association (2022). AMA 

Future of Health Closing the Digital Health 

Disconnect: A Blueprint for Optimizing Digitally 

Enabled Care. American Medical Association. 

https://www.ama-assn.org/system/files/ama-futurehealth-report.pdf. (Accessed March 22, 2023). 

39 85 FR at 78169 n.38 (2020) (citing Veterans 

Health Administration & Department of Defense. 

(2001). VHA/DoD Clinical Practice Guideline for 

the Management of Medically Unexplained 

Symptoms: Chronic Pain and Fatigue. https://

www.healthquality.va.gov/guidelines/MR/mus/ 

mus_fulltext.pdf). See also 86 FR at 38922 (2021). 

40 Id. 

41 Veterans Health Administration & Department 

of Defense (2021). VA/DoD Clinical Practice 

Guideline for the Management of Chronic 

Multisystem Illness, Version 3.0–2021. https://

www.healthquality.va.gov/guidelines/MR/cmi/

VADoDCMICPG508.pdf. 

42 85 FR at 78169–70 (citing Veterans Health 

Administration & Department of Defense. (2017). 

VA/DoD Clinical Practice Guideline for Diagnosis 

and Treatment of Low Back Pain. https://

www.healthquality.va.gov/guidelines/Pain/lbp/

VADoDLBPCPG092917.pdf.) 

43 Veterans Health Administration & Department 

of Defense (2022, Feb.). VA/DoD Clinical Practice 

Guideline for Diagnosis and Treatment of Low Back 

Pain (Version 3.0–2022). https://www.healthquality.

va.gov/guidelines/Pain/lbp/

VADoDLBPCPGFinal508.pdf. 

44 87 FR 69404 at 69466. 

45U.S. Department of Health & Human Services 

(2023, Feb. 9). Fact Sheet: COVID–19 Public Health 

Emergency Transition Roadmap. https://

www.hhs.gov/about/news/2023/02/09/fact-sheetcovid-19-public-health-emergency-transitionroadmap.html. 

46U.S. Department of Health & Human Services 

(2023, May 9). Fact Sheet: End of the COVID–19 

Public Health Emergency https://www.hhs.gov/ 

about/news/2023/05/09/fact-sheet-end-of-the-covid19-public-health-emergency.html. 

47Centers for Medicare & Medicaid Services 

(2023, May 5). Frequently Asked Questions: CMS 

Waivers, Flexibilities, and the End of the COVID– 

19 Public Health Emergency. Centers for Medicare 

& Medicaid Services, U.S. Department of Health & 

Human Services. https://www.cms.gov/files/ 

document/frequently-asked-questions-cms-waiversflexibilities-and-end-covid-19-public-healthemergency.pdf; See also American Hospital 

Association (2023, Feb. 7). Special Bulletin: Public 

Health Emergency to End May 11. American 

Hospital Association. https://www.aha.org/system/ 

files/media/file/2023/02/Special-Bulletin-PublicHealth-Emergency-to-End-May-11.pdf. 

48Office of the Assistant Secretary for Planning & 

Evaluation (2022, August 19). Unwinding the 

Continued 

expanded use of telehealth as a ‘‘tool 

that can increase access and improve 

outcomes for patients with rheumatic 

diseases when used [with] face-to-face 

assessments.’’ However, it cautioned 

that telehealth should not replace 

essential face-to-face assessments 

conducted at medically appropriate 

intervals.37 The AMA also released a 

blueprint for digitally-enabled care, in 

which it recommended fully integrated 

in-person and virtual care models that 

based the type of care on clinical 

appropriateness and other factors, such 

as convenience and cost, and focused on 

health equity and centering the needs of 

patients and providers.38

The expected shift towards greater use 

of telehealth in medical practice after 

the PHE, compared to prior to the PHE, 

could mean that the evidence upon 

which we based the consecutive 4- 

month ‘‘close proximity of time’’ period 

may no longer accurately describe the 

standard frequency of in-person 

healthcare visits. In fact, some of the 

sources cited in the 2020 final rule and 

prior TFR have provided new guidance 

that removed specific revisit intervals. 

For example, in both rules, we noted 

that our use of the consecutive 4-month 

proximity of time requirement was also 

consistent with the standard recognized 

by the VHA and Department of Defense 

(DoD), as set out in their clinical 

practice guidelines.39 We noted that the 

VHA and DoD’s Clinical Practice 

Guideline for the Management of 

Medically Unexplained Symptoms: 

Chronic Pain and Fatigue directed 

initial revisits at 2 to 3 week intervals, 

with visits every 3 to 4 months once the 

patient is doing well.40 However, a 2021 

updated VHA and DoD Clinical Practice 

Guideline for Management of Chronic 

Multisymptom Illness (formerly known 

as Medically Unexplained Symptoms) 

does not provide suggested revisit 

intervals. Instead, it includes 

recommendations to ‘‘[d]evelop 

personal health plan and timeline for 

follow-up and monitor progress toward 

personal goals’’ and ‘‘[m]aintain 

continuity and [a] caring relationship 

via in-person and/or virtual modalities,’’ 

without specifying intervals.41

Similarly, the previous version of the 

VHA’s and DoD’s Clinical Practice 

Guideline for Diagnosis and Treatment 

of Low Back Pain, which we also cited 

in our prior rulemaking, described the 

duration of time for intervention, based 

on a systematic review, as requiring a 

minimum follow-up for effectiveness of 

12 weeks and recommended monthly 

reassessment after initiation of therapy 

if low back pain continued and no 

serious specific underlying cause of low 

back pain was found.42 However, the 

updated 2022 version of this guideline 

allows for a more flexible, patientcentered approach and has replaced the 

specific interval language with 

recommendations to ‘‘assess response as 

appropriate’’ and ‘‘reassess as 

appropriate.’’ 43 We need the additional 

time provided by this TFR to assess 

whether and how these changes in 

clinical practice guidelines may affect 

the period we chose to use in our 2020 

final rule. 

In addition to the extension of 

telehealth flexibilities, other policy 

changes related to the end of the PHE 

may impact healthcare use and create a 

period of rapid changes in healthcare. 

Some national telehealth flexibilities 

have been extended until the end of 

calendar year 2023 (for example, 

payment parity for audio and video 

telehealth visits, which allows providers 

to be reimbursed for telehealth visits 

originated at the patient’s home at the 

same rate and using the same ‘‘place of 

service’’ code as they would be if 

provided in-person).44 Other 

flexibilities have been extended through 

December 31, 2024 (for example, 

Medicare coverage of audio-only and of 

video telehealth services no matter 

where in the United States a patient 

lives, rather than covering telehealth 

services for beneficiaries living in rural 

areas only, and with the ability to access 

telehealth services from their home, 

rather than going to a health care 

facility).45 Conversely, certain other 

flexibilities, such as flexibilities related 

to telehealth platforms and the 

continuous enrollment provision for 

Medicaid, began winding down at the 

end of the PHE.46 Extra federal 

payments to hospitals during the PHE, 

including a 20 percent increase in the 

Medicare payment rate for inpatient 

treatment of patients diagnosed with 

COVID–19 and the ability to charge 

‘‘facility fees’’ for telehealth services to 

patients who are not located at the 

hospital, were also phased out at the 

end of the PHE,47 putting additional 

financial strain on the medical system. 

In particular, the expected substantial 

rise in the uninsured population after 

the PHE-related Medicaid and CHIP 

continuous enrollment provision ends 

will exacerbate access to care challenges 

during this transitional time, making it 

more difficult to predict revisit intervals 

and use of healthcare, particularly for 

people facing barriers to healthcare. 

An HHS issue brief published in 2022 

projected that 17.4 percent of Medicaid 

and CHIP enrollees (approximately 15 

million individuals) will leave the 

programs after the continuous 

enrollment provisions end based on 

historical patterns of coverage loss, 

including 7.9 percent (6.8 million) of 

Medicaid enrollees losing Medicaid 

coverage despite still being eligible 

(sometimes referred to as 

‘‘administrative churning’’). HHS 

predicted there would be a 

disproportionate impact on historically 

underserved populations, although they 

noted they were taking steps to reduce 

that outcome.48 Information from the 


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67086 Federal Register / Vol. 88, No. 188 / Friday, September 29, 2023 / Rules and Regulations 

Medicaid Continuous Enrollment Provision: 

Projected Enrollment Effects and Policy Approaches 

(Issue Brief HP–2022–20). Office of the Assistant 

Secretary for Planning & Evaluation, U.S. 

Department of Health & Human Services. Accessed 

on March 3, 2023 at: https://aspe.hhs.gov/sites/ 

default/files/documents/404a7572048090

ec1259d216f3fd617e/aspe-end-mcaid-continuouscoverage_IB.pdf. 

49National Center for Health Statistics. 

Percentage of being uninsured at the time of 

interview for adults aged 18–64, United States, 2019 

Q1, Jan-Mar—2022 Q3, Jul-Sep. National Health 

Interview Survey. Generated interactively: Mar 06 

2023 from https://wwwn.cdc.gov/

NHISDataQueryTool/ER_Quarterly/index_

quarterly.html. 

50 Kaiser Family Foundation (2023, June 13). 

Medicaid Enrollment and Unwinding Tracker. 

Kaiser Family Foundation. https://www.kff.org/ 

medicaid/issue-brief/medicaid-enrollment-andunwinding-tracker/. 

51McGough, M., Krutika, A., & Cox, C., (2023, Jan. 

24). How has healthcare utilization changed since 

the pandemic? Peterson Center on HealthcareKaiser Family Foundation Health System Tracker. 

https://www.healthsystemtracker.org/chartcollection/how-has-healthcare-utilization-changedsince-the-pandemic/. 

52Brenan, Megan (2023, Jan. 17). Record High in 

U.S. Put Off Medical Care Due to Cost in 2022. 

Gallup. https://news.gallup.com/poll/468053/ 

record-high-put-off-medical-care-due-cost2022.aspx. 

53 Karimi, M., Lee, E., Couture, S., Gonzales, A., 

Grigorescu, V., Smith, S., De Lew, N., and Sommers, 

B. (2022, Feb.). National Trends in Telehealth Use 

in 2021: Disparities in Utilization and Audio vs. 

Video Services. (Research Report No. HP–2022–04). 

Office of the Assistant Secretary for Planning and 

Evaluation, U.S. Department of Health and Human 

Services. https://aspe.hhs.gov/sites/default/files/ 

documents/4e1853c0b4885112b2994680a58af9ed/ 

telehealth-hps-ib.pdf. 

54Bipartisan Policy Center, Ananya Health 

Solutions LLC, and L&M Policy Research (2022, 

Oct.). Medicare Telehealth Utilization and 

Spending Impacts 2019–2021. Bipartisan Policy 

Center. https://bipartisanpolicy.org/download/ 

?file=/wp-content/uploads/2022/09/BPC-MedicareTelehealth-Utilization-and-Spending-Impacts-2019- 

2021-October-2022.pdf. 

55 Gurewich, D., Beilstein-Wedel, E., Shwartz, M., 

Davila, H., & Rosen, A.K. (2023). Disparities in Wait 

Times for Care Among US Veterans by Race and 

Ethnicity. JAMA network open, 6(1), e2252061. 

https://doi.org/10.1001/jamanetworkopen.

2022.52061. 

56Neri, A.J., Whitfield, G.P., Umeakunne, E.T., 

Hall, J.E., DeFrances, C.J., Shah, A.B., Sandhu, P.K., 

Demeke, H.B., Board, A.R., Iqbal, N.J., Martinez, K., 

Harris, A.M., & Strona, F.V. (2022). Telehealth and 

Public Health Practice in the United States—Before, 

During, and After the COVID–19 Pandemic. Journal 

of public health management and practice: JPHMP, 

28(6), 650–656. https://doi.org/10.1097/

PHH.0000000000001563. 

57U.S. Government Accountability Office (2022, 

Sept. 26). Medicare Telehealth: Actions Needed to 

Strengthen Oversight and Help Providers Educate 

Patients on Privacy and Security Risks (GAO–22– 

104454). Accessed March 3, 2023 at: https://

www.gao.gov/products/gao-22-104454. 

Centers for Disease Control and 

Prevention (CDC) already shows an 

uptick in the uninsured population 

beginning in late 2022, with the 

uninsured population increasing to 12.6 

percent of adults in the United States in 

the third quarter of 2022 from a low of 

11.8 percent in the first quarter of 

2022.49 Initial data on the end of 

Medicaid’s continuous enrollment 

provision from 20 states provided by the 

Kaiser Family Foundation demonstrated 

that over 1 million people had already 

been disenrolled from Medicaid, with 

many disenrolled for procedural 

reasons, as of June 12, 2023.50 Data 

analyzed by the Kaiser Family 

Foundation found that the uninsured 

population was the only population that 

had delayed or foregone care due to cost 

more than due to the pandemic, 

suggesting that gaps in access to care 

will remain high for a growing 

uninsured population even as 

pandemic-related concerns are expected 

to decrease.51 Additionally, a Gallup 

poll released in January 2023 noted that 

a record high 38 percent of Americans 

reported putting off medical treatment 

due to cost, up 12 percentage points 

from 2021, and that lower-income 

adults, younger adults, and women were 

more likely than their counterparts to 

say they or a family member have 

delayed care for a serious medical 

condition.52

Initial evidence also suggests that the 

ongoing impacts of the COVID–19 PHE 

and the increased use of telehealth may 

also affect certain populations 

differently. For example, the HHS’ 

summary of national survey trends from 

the Census Bureau’s April to October 

2021 Household Pulse Survey found 

that the highest rates of telehealth visits 

were among those with Medicaid 

(29.3%) and Medicare (27.4%), Black 

individuals (26.8%), and those earning 

less than $25,000 (26.7%). The report 

found disparities in use of telehealth 

services, including the use of video 

versus audio modalities, along 

dimensions including race and 

ethnicity, age, education, income, and 

health insurance.53 Similarly, an 

October 2022 report on telehealth use in 

Medicare from 2019 to 2021, issued by 

the Bipartisan Policy Center, found that, 

although the distribution of 

beneficiaries using telehealth by race 

and ethnicity was roughly proportionate 

to the distribution of the overall study 

population by race and ethnicity, there 

was variation in the telehealth visit rates 

for those who used telehealth across 

racial and ethnic groups. They noted 

that telehealth visit rates for American 

Indian/Alaska Native (AI/AN), Black/ 

African American (AA), and Hispanic 

beneficiaries exceeded the overall 

telehealth rates, with AI/AN 

beneficiaries having the highest audioonly visit rates, and that non-Hispanic/ 

White beneficiary telehealth visit rates 

were lower than the overall telehealth 

visit rates by 2 percent, on average, 

across the study period.54 Further, a 

cross-sectional study of over a million 

veterans published in the Journal of the 

American Medical Association (JAMA) 

in January 2023 found that wait time 

disparities increased significantly from 

the pre–COVID–19 period (October 1, 

2018 to March 10, 2020) to the COVID– 

19 period (March 11, 2020 to September 

30, 2021) for Black and Hispanic 

veterans, and that disparities in mean 

wait times for orthopedic services were 

statistically significant both before and 

after the COVID–19 period.55

In sum, the emerging data suggests 

that an increased use of telehealth will 

likely replace some in-person visits for 

some people with musculoskeletal 

disorders even after the end of the PHE 

and that other policy and healthcare 

changes could impact access to care 

during the period immediately 

following the end of the PHE, possibly 

leading to extended revisit intervals 

between thorough examinations. 

However, evidence on expanded 

telehealth use and its expected longterm effect on healthcare quality and the 

use of in-person examinations is 

limited, partially by data challenges, 

although the research base is expected 

to grow during the period immediately 

following the end of the PHE. For 

example, a report published by CDC 

experts in 2022 stated that ‘‘one of the 

central public health issues in the U.S. 

identified by CDC was the absence of 

telehealth identifiers in many datasets, 

including most of CDC’s national 

surveillance datasets.’’ The report 

authors stated that the CDC was working 

to improve access to data related to 

healthcare and telehealth.56 To this end, 

Medicare provided for additional use of 

telehealth identifiers in its 2023 fee 

schedule, including identifiers for 

audio-only telehealth.57

There are also inherent limitations in 

relying on healthcare use data gathered 

during the PHE to determine post-PHE 

outcomes. For example, in an October 

2022 report, the Bipartisan Policy 

Center concluded that studies of 

telehealth use during the PHE would 

not provide enough information to 

understand the impact of permanently 

expanded telehealth use on healthcare 

utilization, quality, equity, cost, and 

other factors due to confounding 

pandemic-related changes in healthcare 

needs, and they urged further study of 

telehealth during the period following 

the end of the PHE. The report 

recommended a two-year extension of 

telehealth flexibilities after the end of 

the PHE and indicated that researchers 

should evaluate the benefits of hybrid 

(in-person and virtual) care models for 


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58Bipartisan Policy Center & Ananya Health 

Solutions LLC (2022, Oct.). The Future of 

Telehealth After COVID–19. Bipartisan Policy 

Center. https://bipartisanpolicy.org/download/

?file=/wp-content/uploads/2022/09/BPC-TheFuture-of-Telehealth-After-COVID-19-October2022.pdf. 

59The Medicare Payment Advisory Commission 

(2022, Sept. 29). MedPAC Mandatory report: Study 

on the Expansion of Telehealth. https://

www.medpac.gov/wp-content/uploads/2021/10/ 

Telehealth-MedPAC-29-Sept-2022.pdf. 

60Samson, L., Tarazi, W., Turrini, G., Sheingold, 

S. (2021, Dec.). Medicare Beneficiaries’ Use of 

Telehealth Services in 2020—Trends by Beneficiary 

Characteristics and Location (Issue Brief No. HP– 

2021–27). Office of the Assistant Secretary for 

Planning and Evaluation, U.S. Department of 

Health and Human Services. https://aspe.hhs.gov/ 

sites/default/files/documents/a1d5d810fe3433

e18b192be42dbf2351/medicare-telehealthreport.pdf. 

61The Consolidated Appropriations Act, 2023, 

Public Law 117–328. 62 86 FR 7009 (2021). 

63 In our prior TFR, we provided notice that we 

would consider extending the expiration date of the 

rule, and we invited public comments on the 

expiration date. 86 FR at 38920, 38924. As 

discussed above, we received a public comment 

from NOSSCR that encouraged us to make the 

temporary 12-month standard permanent or, if we 

chose not to make the 12-month standard 

permanent, to extend the period covered by the 

prior TFR to one year after the end of the PHE. 

64 Individuals who are eligible for disability 

benefits are, by definition, not able to engage in 

substantial gainful activity, which means they may 

experience immediate and severe financial 

hardship. 

primary and specialty care, including 

for which conditions and specialties it 

is most effective; further evaluate full 

telehealth flexibilities in the context of 

value-based payment models; and 

rigorously assess the quality of audioonly care.58 Similarly, in September 

2022, the Medicare Payment Advisory 

Commission (MedPAC), an independent 

congressional agency that advises 

Congress on Medicare payment policy, 

recommended using a one- to two-year 

period of extended flexibilities after the 

PHE to allow policymakers to gather 

more evidence about the impact of 

telehealth on access, quality, and cost, 

which could inform permanent changes 

to telehealth policies.59 Along these 

lines, a 2021 Medicare telehealth report 

concluded that more research is needed 

on the impact of telehealth on health 

outcomes, stating that ‘‘if telehealth 

flexibilities are temporarily extended 

post-pandemic . . . this would allow 

evaluations of whether telehealth use 

during non-pandemic times may 

increase overall healthcare utilization as 

suggested by some studies, or simply 

substitute for in-person services.’’ 60

Recognizing the need for more data on 

telehealth use, Congress required HHS 

to report on Medicare telehealth use 

during the period immediately 

following the end of the PHE, with the 

interim report due in October 2024.61

Because healthcare provision has not 

returned to pre-pandemic norms and 

emerging evidence suggests that ongoing 

changes may lead to decreased use of inperson healthcare, we need to continue 

to evaluate the evidence upon which we 

based the consecutive 4-month ‘‘close 

proximity of time’’ period. We need to 

determine whether the evidence we 

relied on in adopting the 4-month 

standard continues to match the current 

status of healthcare, including the 

standard frequency of in-person 

healthcare visits. Consequently, we are 

extending the flexibility provided in the 

prior TFR until May 11, 2025. 

Evidence To Review 

We will use the extension period to 

study the actual changes in healthcare 

access and provision after the expiration 

of the PHE. We expect this additional 

period will allow us to consider 

whether a permanent change to the 

consecutive 12-month ‘‘close proximity 

of time’’ period, or to a different 

timeframe, would be appropriate to 

account for ongoing changes in 

healthcare access and delivery. During 

the extension period, we will also 

continue to review information about 

disparities in access to care or 

modalities of care for people of color 

and others who have been historically 

underserved, marginalized, and 

adversely affected by persistent poverty 

and inequality and who have been 

affected by the changes in healthcare 

provision during the pandemic. This 

review is consistent with Executive 

Order 13985, entitled ‘‘Advancing 

Racial Equity and Support for 

Underserved Communities Through the 

Federal Government,’’ which directs 

agencies to recognize and work to 

redress inequities in their policies and 

programs that serve as barriers to equal 

opportunity.62

We will also continue to study the 

application of the ‘‘close proximity of 

time’’ rule in our programs after the 

expiration of the PHE. We expect that 

continued review of case trends over 

time can help inform our understanding 

of how the end of the PHE may affect 

claimants’ ability to provide the 

required evidence within a 4-month or 

12-month period for the applicable 

musculoskeletal disorders. We will also 

continue to monitor the quality of our 

determinations and decisions to inform 

our policy decision and ensure the 

appropriate adjudication of claims for 

people with musculoskeletal disorders. 

Solicitation for Public Comment 

Although we are publishing a 

temporary final rule, we invite public 

comment on all aspects of the rule, 

including: 

• The appropriate standard for ‘‘close 

proximity of time’’ to account for 

barriers to access to care or changes in 

healthcare delivery; 

• Information about barriers to access 

to care, changes in healthcare delivery, 

and disproportionate burdens faced by 

any subset of the population; and 

• The expiration date of this rule. 

Please share any supporting 

information that you might have. We 

will consider any substantive comments 

we receive within 60 days of the 

publication of this TFR. 

Summary of the Changes 

This rule revises sections 1.00C7a and 

101.00C7a of the musculoskeletal 

disorders listings to redefine the term 

‘‘pandemic period’’ to mean ‘‘the period 

beginning on April 2, 2021, and ending 

on May 11, 2025.’’ 

Justification for Foregoing Notice and 

Comment Rulemaking 

We follow the Administrative 

Procedure Act’s (APA) rulemaking 

procedures specified in 5 U.S.C. 553 

when we develop regulations. 

Generally, the APA requires that an 

agency provide prior notice and 

opportunity for public comment before 

issuing a final rule. However, the APA 

provides exceptions to its notice and 

public comment procedures when an 

agency finds there is good cause for 

dispensing with such procedures 

because they are impracticable, 

unnecessary, or contrary to the public 

interest (5 U.S.C. 553(b)(B)). 

We find that there is good cause to 

issue this TFR without prior notice.63

Because we have already been following 

the flexible 12-month ‘‘close proximity 

of time’’ standard, it would be 

impracticable and contrary to the public 

interest to delay implementing this TFR. 

Delayed implementation of this TFR 

would require us to delay adjudicating 

affected claims, potentially resulting in 

delayed benefits to vulnerable 

individuals.64 Otherwise (if we did not 

delay adjudications), we would need to 

apply the 4-month ‘‘close proximity of 

time’’ standard, which does not 

consider changes in healthcare access 

and delivery related to the PHE, as 

discussed in the preamble. Thus, 

individuals might be unable to show 

that they meet a listing under the 4- 

month ‘‘close proximity of time’’ 

standard merely due to changes in how 

the healthcare system works. To give 

individuals the benefit of the flexible 

standard that has already been in place 


lotter on DSK11XQN23PROD with RULES1
67088 Federal Register / Vol. 88, No. 188 / Friday, September 29, 2023 / Rules and Regulations 

65 42 U.S.C. 1382(a); 20 CFR 416.202. 

for over two years, we would delay 

adjudicating affected claims until the 

effective date of this TFR. 

Delay in implementing this TFR 

would be impracticable and contrary to 

the public interest because it may cause 

some applicants to experience 

immediate and severe financial 

hardship, placing them at risk of losing 

their homes, means of transportation, 

access to health care, and other 

important resources, in addition to 

experiencing increased stress as they 

await the outcome of their case and 

their award of benefits. This is 

particularly true for the population that 

is eligible for Supplemental Security 

Income (SSI), which has, by definition, 

severely limited income and financial 

resources.65 An unnecessary delay 

would cause significant harm and 

detract substantially from the 

effectiveness of the disability program 

in providing meaningful economic relief 

for disabled individuals. Even if affected 

claimants received the same benefits at 

a later date, these individuals may suffer 

from long term or permanent 

consequences of the lost income during 

the period of delay. 

For good cause shown, to avoid 

delaying benefits to vulnerable 

individuals while providing appropriate 

flexibility to account for COVID–19- 

related healthcare changes, we are 

dispensing with prior notice and public 

comment on this rule pursuant to 5 

U.S.C. 553(b)(B). 

Regulatory Procedures 

Clarity of This Rule 

Executive Order 12866, as 

supplemented by Executive Orders 

13563 and 14094, requires each agency 

to write all rules in plain language. In 

addition to your substantive comments 

on this rule, we invite your comments 

on how to make the rule easier to 

understand. 

For example: 

• Would more, but shorter, sections 

be better? 

• Are the requirements in the rule 

clearly stated? 

• Have we organized the material to 

suit your needs? 

• Could we improve clarity by adding 

tables, lists, or diagrams? 

• What else could we do to make the 

rule easier to understand? 

• Does the rule contain technical 

language or jargon that is not clear? 

• Would a different format make the 

rule easier to understand, e.g., grouping 

and order of sections, use of headings, 

paragraphing? 

Executive Order 12866, as 

Supplemented by Executive Orders 

13563 and 14094 

We consulted with the Office of 

Management and Budget (OMB) and 

determined that this rule is a nonsignificant regulatory action under 

Executive Order 12866, as 

supplemented by Executive Orders 

13563 and 14094. 

Anticipated Transfers to Our Program 

Our Office of the Chief Actuary 

estimates that implementation of this 

temporary final rule would result in 

negligible changes (i.e., less than 

$500,000) in scheduled Old-Age, 

Survivors, and Disability Insurance 

benefits and Federal SSI payments. 

Anticipated Administrative CostSavings to the Social Security 

Administration 

The Office of Budget, Finance, and 

Management expects the extension 

provided by the TFR will have a 

minimal administrative effect on the 

agency. 

Anticipated Time-Savings and 

Qualitative Benefits 

We anticipate the following 

qualitative benefits generated from this 

policy: 

• Provide a more flexible and 

appropriate 12-month ‘‘close proximity 

of time’’ standard in the 

musculoskeletal disorders listings to 

account for healthcare changes that have 

occurred since the beginning of the 

COVID–19 PHE. 

• Potentially allow for faster 

disability determinations and decisions 

by preventing adjudication delays for 

additional medical development, which 

would also have quantitative financial 

effects. 

Anticipated Costs 

We do not believe there are any more 

than de minimis costs to the public 

associated with this rule. The 

requirements in this rule will not 

impose new additional costs outside of 

the normal course of business for 

applicants or change how the public 

interacts with our disability programs. 

Executive Order 13132 (Federalism) 

We analyzed this temporary final rule 

in accordance with the principles and 

criteria established by Executive Order 

13132 and determined that the rule will 

not have sufficient Federalism 

implications to warrant the preparation 

of a Federalism assessment. We also 

determined that this rule will not 

preempt any State law or State 

regulation or affect the States’ abilities 

to discharge traditional State 

governmental functions. 

Regulatory Flexibility Act 

We certify that this temporary final 

rule will not have a significant 

economic impact on a substantial 

number of small entities because it 

affects individuals only. Therefore, a 

regulatory flexibility analysis is not 

required under the Regulatory 

Flexibility Act, as amended. 

Paperwork Reduction Act 

These rules do not create any new or 

affect any existing collections and, 

therefore, do not require Office of 

Management and Budget approval 

under the Paperwork Reduction Act. 

(Catalog of Federal Domestic Assistance 

Program Nos. 96.001, Social Security– 

Disability Insurance; 96.002, Social Security– 

Retirement Insurance; 96.004, Social 

Security–Survivors Insurance; and 96.006, 

Supplemental Security Income) 

List of Subjects in 20 CFR Part 404 

Administrative practice and 

procedure; Blind, Disability benefits; 

Old-age, survivors, and disability 

insurance; Reporting and recordkeeping 

requirements; Social Security. 

The Acting Commissioner of Social 

Security, Kilolo Kijakazi, Ph.D., M.S.W., 

having reviewed and approved this 

document, is delegating the authority to 

electronically sign this document to 

Faye I. Lipsky, who is the primary 

Federal Register Liaison for the Social 

Security Administration, for purposes of 

publication in the Federal Register. 

Faye I. Lipsky, 

Federal Register Liaison,Office of Legislation 

and Congressional Affairs, Social Security 

Administration. 

For the reasons stated in the 

preamble, we are amending part 404 of 

chapter III of title 20 of the Code of 

Federal Regulations as set forth below: 

PART 404—FEDERAL OLD-AGE, 

SURVIVORS AND DISABILITY 

INSURANCE (1950—) 

Subpart P—Determining Disability and 

Blindness 

■ 1. The authority citation for subpart P 

of part 404 is revised to read as follows: 

Authority: 42 U.S.C. 402, 405(a)–(b) and 

(d)–(h), 416(i), 421(a) and (h)–(j), 422(c), 423, 

425, and 902(a)(5)); sec. 211(b), Pub. L. 104– 

193, 110 Stat. 2105, 2189; sec. 202, Pub. L. 

108–203, 118 Stat. 509 (42 U.S.C. 902 note). 

■ 2. In appendix 1 to subpart P of part 

404: 

■ a. In part A, amend section 1.00C7 by 

revising paragraph a; and 


lotter on DSK11XQN23PROD with RULES1
Federal Register / Vol. 88, No. 188 / Friday, September 29, 2023 / Rules and Regulations 67089 

■ b. In part B, amend section 101.00C7 

by revising paragraph a. 

The revisions read as follows: 

Appendix 1 to Subpart P of Part 404— 

Listing of Impairments 

* * * * * 

Part A 

* * * * * 

1.00 Musculoskeletal Disorders 

* * * * * 

C. * * * 

7. * * * 

a. The term pandemic period as used in 

1.00C7c means the period beginning on April 

2, 2021, and ending on May 11, 2025. 

* * * * * 

Part B 

* * * * * 

101.00 Musculoskeletal Disorders 

* * * * * 

C. * * * 

7. * * * 

a. The term pandemic period as used in 

101.00C7c means the period beginning on 

April 2, 2021, and ending on May 11, 2025. 

* * * * * 

[FR Doc. 2023–21671 Filed 9–28–23; 8:45 am] 

BILLING CODE 4191–02–P 

DEPARTMENT OF THE TREASURY 

Office of Foreign Assets Control 

31 CFR Part 587 

Publication of Russian Harmful 

Foreign Activities Sanctions 

Regulations Web General Licenses 

55A and 72 

AGENCY: Office of Foreign Assets 

Control, Treasury. 

ACTION: Publication of web general 

licenses. 

SUMMARY: The Department of the 

Treasury’s Office of Foreign Assets 

Control (OFAC) is publishing two 

general licenses (GLs) issued pursuant 

to the Russian Harmful Foreign 

Activities Sanctions Regulations: GLs 

55A and 72, each of which was 

previously made available on OFAC’s 

website. 

DATES: GLs 55A and 72 were issued on 

September 14, 2023. See SUPPLEMENTARY

INFORMATION for additional relevant 

dates. 

FOR FURTHER INFORMATION CONTACT: 

OFAC: Assistant Director for Licensing, 

202–622–2480; Assistant Director for 

Regulatory Affairs, 202–622–4855; or 

Assistant Director for Compliance, 202– 

622–2490. 

SUPPLEMENTARY INFORMATION: 

Electronic Availability 

This document and additional 

information concerning OFAC are 

available on OFAC’s website: https://

ofac.treasury.gov. 

Background 

On September 14, 2023, OFAC issued 

GLs 55A and 72 to authorize certain 

transactions otherwise prohibited by the 

Russian Harmful Foreign Activities 

Sanctions Regulations, 31 CFR part 587. 

GL 55A has an expiration date of June 

28, 2024. GL 72 has an expiration date 

of December 13, 2023. Each GL was 

made available on OFAC’s website 

(https://ofac.treasury.gov) at the time of 

publication. The text of these GLs is 

provided below. 

OFFICE OF FOREIGN ASSETS CONTROL 

Russian Harmful Foreign Activities 

Sanctions Regulations 

31 CFR Part 587 

GENERAL LICENSE NO. 55A 

Authorizing Certain Services Related to 

Sakhalin-2 

(a) Except as provided in paragraph (b) of 

this general license, all transactions 

prohibited by the determination of November 

21, 2022 made pursuant to section 1(a)(ii) of 

Executive Order 14071 (‘‘Prohibitions on 

Certain Services as They Relate to the 

Maritime Transport of Crude Oil of Russian 

Federation Origin’’) related to the maritime 

transport of crude oil originating from the 

Sakhalin-2 project (‘‘Sakhalin-2 byproduct’’) 

are authorized through 12:01 a.m. eastern 

daylight time, June 28, 2024, provided that 

the Sakhalin-2 byproduct is solely for 

importation into Japan. 

(b) This general license does not authorize 

any transactions otherwise prohibited by the 

Russian Harmful Foreign Activities Sanctions 

Regulations, 31 CFR part 587 (RuHSR), 

including transactions involving any person 

blocked pursuant to the RuHSR, unless 

separately authorized. 

(c) Effective September 14, 2023, General 

License No. 55, dated November 22, 2022, is 

replaced and superseded in its entirety by 

this General License No. 55A. 

Bradley T. Smith, 

Director, Office of Foreign Assets Control. 

Dated: September 14, 2023. 

OFFICE OF FOREIGN ASSETS CONTROL 

Russian Harmful Foreign Activities 

Sanctions Regulations 

31 CFR Part 587 

GENERAL LICENSE NO. 72 

Authorizing the Wind Down of Transactions 

Involving Certain Entities Blocked on 

September 14, 2023 

(a) Except as provided in paragraph (b) of 

this general license, all transactions 

prohibited by Executive Order (E.O.) 14024 

that are ordinarily incident and necessary to 

the wind down of any transaction involving 

one or more of the following blocked persons 

(collectively, the ‘‘Blocked Entities’’) are 

authorized through 12:01 a.m. eastern 

standard time, December 13, 2023, provided 

that any payment to a Blocked Entity is made 

into a blocked account in accordance with 

the Russian Harmful Foreign Activities 

Sanctions Regulations, 31 CFR part 587 

(RuHSR): 

(1) Joint Stock Company Russian Copper 

Company; 

(2) Joint Stock Company United 

Metallurgical Company; 

(3) Transmashholding JSC; 

(4) Joint Stock Company Avtovaz; 

(5) Joint Stock Company Moscow 

Automotive Factory Moskvich; 

(6) Limited Liability Company Machine 

Building Plant Tonar; 

(7) Publichnoe Aktsionernoe Obschestvo 

Sollers; 

(8) Arctic Transshipment Limited Liability 

Company; or 

(9) Any entity in which one or more of the 

above persons own, directly or indirectly, 

individually or in the aggregate, a 50 percent 

or greater interest. 

(b) This general license does not authorize: 

(1) Any transactions prohibited by 

Directive 2 under E.O. 14024, Prohibitions 

Related to Correspondent or PayableThrough Accounts and Processing of 

Transactions Involving Certain Foreign 

Financial Institutions; 

(2) Any transactions prohibited by 

Directive 4 under E.O. 14024, Prohibitions 

Related to Transactions Involving the Central 

Bank of the Russian Federation, the National 

Wealth Fund of the Russian Federation, and 

the Ministry of Finance of the Russian 

Federation; or 

(3) Any transactions otherwise prohibited 

by the RuHSR, including transactions 

involving any person blocked pursuant to the 

RuHSR other than the Blocked Entities 

described in paragraph (a) of this general 

license, unless separately authorized. 

Bradley T. Smith, 

Director, Office of Foreign Assets Control. 

Dated: September 14, 2023. 

Bradley T. Smith, 

Director, Office of Foreign Assets Control. 

[FR Doc. 2023–21396 Filed 9–28–23; 8:45 am] 

BILLING CODE 4810–AL–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 165 

[Docket Number USCG–2023–0721] 

RIN 1625–AA00 

Safety Zone; Ohio River Mile Markers 

79.5–80, Wellsburg, WV 

AGENCY: Coast Guard, DHS. 

ACTION: Temporary final rule. 


lotter on DSK11XQN23PROD with RULES1