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[Federal Register Volume 90, Number 10 (Thursday, January 16, 2025)]
[Rules and Regulations]
[Pages 4626-4628]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-00515]

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RAILROAD RETIREMENT BOARD

20 CFR Part 220

RIN 3220-AB71

Evidence of Disability

AGENCY: Railroad Retirement Board.

ACTION: Final rule.

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SUMMARY: The Railroad Retirement Board (RRB) amends its regulations to 
designate additional acceptable medical sources in disability claims 
under the Railroad Retirement Act. This change recognizes the evolution 
of how medical care and treatment are delivered and aligns the RRB's 
acceptable medical sources with recently amended regulations of the 
Social Security Administration (SSA). Additionally, the changes clarify 
existing RRB policy regarding how evidence from medical sources, other 
than those designated as acceptable medical sources, will be evaluated.

DATES: This rule is effective March 17, 2025.

FOR FURTHER INFORMATION CONTACT: Peter J. Orlowicz, Senior Counsel, 
(312) 751-4922, [email protected].

SUPPLEMENTARY INFORMATION:

I. Background Information

    The RRB published a Notice of Proposed Rulemaking (NPRM) in the 
Federal Register on June 21, 2024 (89 FR 51990). The preamble to the 
NPRM discussed the changes from our current rules and our reasons for 
proposing those changes. In the NPRM, we proposed to designate 
additional acceptable medical sources (AMS) in disability claims under 
the Railroad Retirement Act. Although the RRB will accept and evaluate 
evidence from any relevant source, including medical sources not 
designated as an AMS, the RRB requires evidence about a claimant's 
impairment from an AMS to adjudicate a claim of disability.
    The additional AMS we proposed to add are:
    (1) Licensed or certified school psychologists, or other licensed 
or certified individuals with another title who perform the same 
function as a school psychologist in a school setting, for impairments 
of intellectual disability, learning disabilities, and borderline 
intellectual functioning only;
    (2) Licensed podiatrists, for impairments of the foot or of the 
foot and ankle, depending on the scope of practice in the State in 
which the podiatrist practices;
    (3) Qualified speech-language pathologists, for speech and language 
impairments only, and when either licensed by a State professional 
licensing agency, fully certified by a State education agency where the 
individual practices, or holding a Certificate of Clinical Competence 
in Speech-Language Pathology from the American Speech-Language-Hearing 
Association;
    (4) Licensed audiologists, for impairments of hearing loss, 
auditory processing disorders, and balance disorders when such 
disorders are within the individual's licensed scope of practice;
    (5) Licensed Advanced Practice Registered Nurses or other licensed 
advance practice nurses with another title, within the individual's 
scope of practice (this category includes, but is not limited to, 
Certified Nurse Midwives, Nurse Practitioners, Certified Registered 
Nurse Anesthetists, and Clinical Nurse Specialists); and
    (6) Licensed Physician Assistants, for impairments within the 
individual's licensed scope of practice.
    We provided 60 days for the public to comment on the NPRM. We 
received three comments: two comments were submitted by professional 
organizations representing medical providers who would be added as AMS 
under the proposed rule, and one comment was submitted by a public 
policy research group. All three comments were supportive of the 
proposed changes, with two commenters providing

[[Page 4627]]

additional suggestions as described below. We also identified and fixed 
two minor grammatical errors that do not affect the substance of the 
rule.

II. Public Comments

    Comment: The American Academy of Physician Associates (AAPA) 
recommended that the regulation include ``physician assistant'' and 
``physician associate'' as equivalent titles and list both in the 
regulation to avoid confusion. The AAPA explained the titles both refer 
to individuals who graduate from programs accredited by the same 
accrediting body, are certified by the same certifying organization, 
and have the same scope of practice. Individuals in this profession 
have historically been identified as ``physician assistants,'' but the 
official title is now recognized as ``physician associate'' as 
reflected in the title of the AAPA, other professional organizations, 
professional training programs, and state laws regarding licensure. 
Because the title change will take time to be formalized in all 
jurisdictions, the AAPA recommends that both ``physician assistant'' 
and ``physician associate'' be listed.
    Response: We agree with this comment, and we revised the final 
regulatory text accordingly. Specifically, we revised the proposed 
regulatory text for PAs as AMS in final 220.46(a)(9) to read, 
``Licensed Physician Assistants/Physician Associates (for impairments 
within the individual's licensed scope of practice).'' We do not view 
this as a substantive change in the scope of individuals the rule is 
intended to cover, nor do we understand the AAPA to be suggesting such 
a change in scope.
    Comment: One commenter recommended clarifying who may qualify as an 
``other licensed or certified individual . . . who perform the same 
function as a school psychologist in a school setting.'' The commenter 
expressed concern that special education teachers may possess certain 
state certifications to teach children with learning disabilities, but 
that state certification standards for special education teachers vary 
from state to state and a significant proportion of special education 
teachers may be teaching with a provisional or emergency appointment 
without having the necessary certification or experience to provide 
medical reports of intellectual disability, learning disabilities, or 
borderline intellectual functioning.
    Response: We did not adopt this comment. Special education teachers 
and school psychologists are different and distinct professions with 
different certification standards. Section 8002(19) of the Every 
Student Succeeds Act, Public Law 114-95 (Dec. 10, 2015) identifies 
school psychologists as ``specialized instructional support personnel'' 
along with school counselors, school social workers, school nurses, 
speech language pathologists, and school librarians. In Organizational 
Principle 3 of its 2020 Professional Standards, the National 
Association of School Psychologists recommends the ratio of school 
psychologists to students should not exceed 1 school psychologist for 
every 500 students. While school psychologists work with other school 
personnel, including special education teachers, to perform their 
function, a special education teacher would not normally be performing 
the same function as a school psychologist in the school setting. We 
believe the residual clause for other licensed or certified individuals 
with different titles who are performing the same function in a school 
setting is sufficiently clear. An individual who lacks a certification 
or license equivalent to a school psychologist and who does not perform 
the same function as a school psychologist would not qualify as an AMS 
under this paragraph.
    Comment: One commenter agreed with the addition of licensed 
podiatrists as AMS for impairments of the foot or foot and ankle, but 
advocated for the inclusion of other orthopedic specialists who are 
certified and trained to address issues of other skeletal structures.
    Response: We did not adopt this comment. Many orthopedic 
specialists will qualify as an AMS because they are licensed medical or 
osteopathic doctors. To the extent that skeletal structure-related 
impairments are within the scope of practice for an Advanced Practice 
Registered Nurse or a Physician Assistant/Physician Associate, those 
individuals would also be qualified as an AMS without the need for 
separate discussion. In the case of other individuals who hold 
themselves out as orthopedic specialists but would not otherwise 
qualify as an AMS under those other categories, Sec.  220.46(b) in the 
final rule acknowledges we will accept and consider evidence from such 
a medical source about the claimant's impairment(s) and the effect on 
the claimant's ability to work, but the presence of a medically 
determinable physical or mental impairment must be established with 
objective medical evidence from an AMS.

Regulatory Analysis

Executive Order 12866, as Supplemented by Executive Order 13563

    The RRB, with the Office of Management and Budget, has determined 
that this is not a significant regulatory action under Executive Order 
12866, as supplemented by Executive Order 13563. Therefore, no 
regulatory impact analysis is required.

Executive Order 13132 (Federalism)

    This proposed rule will not have substantial direct effects on the 
States, on the relationship between the National Government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with section 6 
of Executive Order 13132, the RRB believes that this proposed rule will 
not have sufficient federalism implications to warrant the preparation 
of a federalism summary impact statement.

Regulatory Flexibility Act

    The RRB certifies that this rule will not have a significant 
economic impact on a substantial number of small entities because the 
rulemaking affects individuals only. Therefore, a regulatory 
flexibility analysis is not required under the Regulatory Flexibility 
Act, as amended.

Paperwork Reduction Act

    This rule does not create any new or affect any existing 
collections and, therefore, does not require Office of Management and 
Budget approval under the Paperwork Reduction Act.

List of Subjects in 20 CFR Part 220

    Disability benefits, Railroad employees, Railroad retirement.

    For the reasons set out in the preamble, the Railroad Retirement 
Board amends 20 CFR part 220 as follows:

PART 220--DETERMINING DISABILITY

0
1. The authority citation for part 220 continues to read as follows:

    Authority:  45 U.S.C. 231a; 45 U.S.C. 231f.

0
2. Amend Sec.  220.46 by:
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a. Revising paragraph (a);
0
b. Redesignating paragraphs (b) through (e) as paragraphs (c) through 
(f) respectively;
0
c. Adding new paragraph (b); and
0
d. Revising newly redesignated paragraphs (c)(6)(i), (c)(6)(ii) 
introductory text, (d) introductory text, (e), and (f).

[[Page 4628]]

    The revisions and addition read as follows:

Sec.  220.46  Medical evidence.

    (a) Acceptable medical sources. The Board needs reports about the 
claimant's impairment(s) from acceptable medical sources. Acceptable 
medical sources are--
    (1) Licensed physicians (medical or osteopathic doctors);
    (2) Licensed or certified psychologists at the independent practice 
level;
    (3) Licensed or certified school psychologists, or other licensed 
or certified individuals with another title who perform the same 
function as a school psychologist in a school setting (for impairments 
of intellectual disability, learning disabilities, and borderline 
intellectual functioning only);
    (4) Licensed optometrists (for impairments of visual disorders, or 
for the measurement of visual acuity and visual fields only, depending 
on the scope of practice in the State in which the optometrist 
practices);
    (5) Licensed podiatrists (for impairments of the foot only, or foot 
and ankle only, depending on the scope of practice in the State in 
which the podiatrist practices);
    (6) Qualified speech-language pathologists (for speech or language 
impairments only.) For this source, qualified means that the speech-
language pathologist must be licensed by the State professional 
licensing agency, or be fully certified by the State education agency 
in the State in which the speech-language pathologist practices, or 
hold a Certificate of Clinical Competence in Speech-Language Pathology 
from the American Speech-Language-Hearing Association;
    (7) Licensed audiologists (for impairments of hearing loss, 
auditory processing disorders, and balance disorders within the 
licensed scope of practice only);
    (8) Licensed Advanced Practice Registered Nurses or other licensed 
advance practice nurses with another title (for impairments within the 
individual's licensed scope of practice only);
    (9) Licensed Physician Assistants/Physician Associates (for 
impairments within the individual's licensed scope of practice); or
    (10) Persons authorized to furnish a copy or summary of the records 
of a medical facility. Generally, the copy or summary should be 
certified as accurate by the custodian or by any authorized employee of 
the Railroad Retirement Board, Social Security Administration, 
Department of Veterans Affairs, or State agency.
    (b) Other medical sources. Individuals who are licensed as 
healthcare workers by a State and are working within the scope of 
practice permitted under State or Federal law, other than acceptable 
medical sources identified in paragraph (a) of this section, are other 
medical sources. Examples include licensed clinical social workers, 
naturopaths, and chiropractors. The Board will accept and consider 
evidence from other medical sources about the claimant's impairment(s) 
and the effect on the claimant's ability to work, but the presence of a 
medically determinable physical or mental impairment must be 
established with objective medical evidence from an acceptable medical 
source as defined in paragraph (a) of this section.
    (c) * * *
    (6) * * *
    (i) Statements about what the claimant can still do despite his or 
her impairment(s) based on the medical source's findings on factors in 
paragraphs (c)(1) through (5) of this section (except in disability 
claims for remarried widow's and surviving divorced spouses). (See 
Sec.  220.112).
    (ii) Statements about what the claimant can still do (based on the 
medical source's findings on factors in paragraphs (c)(1) through (5) 
of this section) should describe--
* * * * *
    (d) Completeness. The medical evidence, including the clinical and 
laboratory findings, must be complete and detailed enough for the Board 
to determine whether the claimant is disabled. Specifically, it must 
allow the Board to determine--
* * * * *
    (e) Evidence from treating medical sources. A statement by or the 
opinion of the claimant's treating medical source will not determine 
whether the claimant is disabled. However, the medical evidence 
provided by a treating medical source will be considered by the Board 
in making a disability decision. A treating medical source is a medical 
source to whom the claimant has been going for treatment on a 
continuing basis. The claimant may have more than one treating medical 
source. The Board may use consulting physicians or other medical 
consultants for specialized examinations or tests, to obtain more 
complete evidence, and to resolve any conflicts. A consulting physician 
is a doctor (often a specialist) to whom the claimant is referred for 
an examination once or on a limited basis. (See Sec.  220.50 for an 
explanation of when the Board may request a consultative examination.)
    (f) Information from non-medical sources. Information from other 
sources may also help the Board understand how an impairment affects 
the claimant's ability to work. Other sources include--
    (1) Public and private social welfare agency personnel;
    (2) Family members, caregivers, friends, and neighbors of the 
claimant;
    (3) Educational personnel such as teachers, counselors, and daycare 
center workers;
    (4) Railroad and nonrailroad employers; and,
    (5) The claimants themselves.

    Dated: January 7, 2025.

    By Authority of the Board.
Stephanie Hillyard,
Secretary to the Board.
[FR Doc. 2025-00515 Filed 1-15-25; 8:45 am]
BILLING CODE 7905-01-P
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