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[Federal Register Volume 90, Number 11 (Friday, January 17, 2025)]
[Rules and Regulations]
[Pages 5582-5590]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-01283]

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SOCIAL SECURITY ADMINISTRATION

20 CFR Parts 404 and 416

[Docket No. SSA-2024-0056]
RIN 0960-AI93

Further Extension of the Flexibility in Evaluating ``Close 
Proximity of Time'' To Evaluate Ongoing Changes in Healthcare

AGENCY: Social Security Administration.

ACTION: Temporary final rule with request for comments.

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SUMMARY: We are extending the flexibility in the ``close proximity of 
time'' standard, as defined in two prior temporary final rules (TFR), 
through May 11, 2029. We issued a TFR providing the ``close proximity 
of time'' flexibility on July 23, 2021, because the COVID-19 national 
public health emergency (PHE) caused many individuals to experience 
barriers that prevented them from timely accessing in-person 
healthcare. On September 29, 2023, we extended the flexibility to 
evaluate evolving healthcare practices and consumption in a post-PHE 
environment. We determined that we need additional time to fully 
evaluate still-evolving healthcare practices after the PHE. We are 
therefore issuing this TFR to extend the ``close proximity of time'' 
flexibility until May 11, 2029, so we can continue to 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 February 18, 2025.
    Comment date: We invite written comments. Comments must be 
submitted no later than March 18, 2025.
    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, 2029.

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-2024-
0056 so that we may associate your comment(s) with the correct rule.
    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-2024-0056. 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 21235-6401.
    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 https://www.ssa.gov/.

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

[[Page 5583]]

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 could 
reasonably expect the findings on imaging to have been present at the 
date of impairment or date of onset.'' \8\
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    \1\ 85 FR 78164 (2020).
    \2\ For 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).
    \3\ Radford v. Colvin, 734 F.3d 288 (4th Cir. 2013).
    \4\ Id. at 294.
    \5\ See Acquiescence Ruling 15-1(4). We rescinded that 
Acquiescence Ruling after we revised the listings in 2020. 85 FR 
79063 (2020).
    \6\ Listings 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.
    \7\ See 85 FR 78164 (2020) (revising 20 CFR part 404, subpart P, 
Appendix 1, 1.00C7c and 101.00C7c).
    \8\ Id.
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    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 then 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\ In response, a number of commenters raised 
concerns regarding barriers to accessing medical providers or 
documenting medical listing criterion.\12\ However, none of the 
commenters submitted studies or data. 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,\13\ the general standard of care,\14\ and the frequency of 
healthcare visits by individuals with musculoskeletal conditions.\15\ 
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.\16\
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    \9\ See 85 FR at 78169-78170.
    \10\ 83 FR 20646 (2018).
    \11\ Id. at 20647.
    \12\ See, e.g., comment from Community Legal Services of 
Philadelphia on Document SSA-2006-0112-0010, https://www.regulations.gov/comment/SSA-2006-0112-0046.
    \13\ 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).
    \14\ 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.0b013e318241e5de).
    \15\ 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/fourth-edition/viiic2/utilization-condition-group).
    \16\ See 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).
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Onset of COVID-19

    In 2020, the COVID-19 virus began to spread throughout the country, 
prompting the Secretary of Health and Human Services (HHS) to declare a 
national PHE on January 31, 2020.\17\ 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) \18\ 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.
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    \17\ 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).
    \18\ Centers for Medicare & Medicaid Services (CMS) 
Recommendations: Re-opening Facilities to Provide Non-emergent Non-
COVID-19 Healthcare (https://www.cms.gov/files/document/covid-recommendations-reopening-facilities-provide-non-emergent-care.pdf); 
see also Non-Emergent, Elective Medical Services, and Treatment 
Recommendations (https://www.cms.gov/files/document/cms-non-emergent-elective-medical-recommendations.pdf).
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    In July 2021, we published a TFR entitled Flexibility in Evaluating 
``Close Proximity of Time'' Due to COVID-19 Related Barriers to 
Healthcare \19\ (2021 TFR). We acknowledged at that time 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 in-person medical visits with telehealth 
visits.\20\ 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, might have become unable to seek, or might have chosen 
not to seek, care for their condition in the same manner and frequency. 
Affected individuals whose impairments might have previously met the 
applicable listing requirements might have subsequently failed 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.
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    \19\ 86 FR 38920 (2021).
    \20\ Id.
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    The 2021 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.'' \21\ We further 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 and 
provision to normalize and return to pre-pandemic period levels as well 
as to account for potential backlogs in medical care that may have 
continued to interfere with

[[Page 5584]]

access to the relevant care and documentation needed to satisfy the 
listing criteria. We also indicated that we would study the application 
of ``close proximity of time'' flexibility on our programs.\22\
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    \21\ 86 FR at 38925.
    \22\ 86 FR at 38924.
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    When we published the 2021 TFR in the Federal Register, we provided 
the public with a 60-day comment period, which ended on September 21, 
2021. We specifically contemplated the possibility of extending the 
flexibility 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) \23\ that encouraged us to 
make the temporary 12-month standard permanent. The commenter also 
recommended, if we chose not to make the 12-month standard permanent, 
that we extend the period 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.
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    \23\ See Comment from National Organization of Social Security 
Claimants' Representatives on Document SSA-2021-0010-0001, https://www.regulations.gov/comment/SSA-2021-0010-0002.
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Issuance of the 2023 TFR Extending the 12-Month Standard

    The 2021 TFR was effective until six months after the effective 
date of a determination by the Secretary of HHS that a PHE resulting 
from the COVID-19 pandemic ended. The Secretary of HHS made that 
determination on May 11, 2023.\24\ Consequently, the 2021 TFR was set 
to expire in November 2023.
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    \24\ Becarra, 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/hhs-secretary-xavier-becerra-statement-on-end-of-the-covid-19-public-health-emergency.html.
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    On September 29, 2023, we extended the ``close proximity of time'' 
flexibility through May 11, 2025.\25\ We explained at the time that we 
intended the extension to allow for time to study changes in healthcare 
access and provision, and to account for the ongoing increased use of 
telehealth services following the PHE. We further explained that we 
would continue to 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.\26\
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    \25\ 88 FR 67081 (2023).
    \26\ 88 FR 67082.
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    In issuing the extension, we also discussed the public comment we 
received from NOSSCR about the 2021 TFR, encouraging us to make the 12-
month standard permanent or extend it to apply for one year after the 
end of the PHE. We explained that by May 2025, we expected to determine 
whether we should extend the TFR again, make the flexibility in the TFR 
permanent, as the commenter recommended, propose a different standard, 
or let the TFR expire and revert to the 4-month ``close proximity of 
time'' standard. Additionally, we noted that while the commenter raised 
issues regarding general barriers to accessing care that disability 
benefit applicants may be disproportionally likely to experience, we 
considered the comment outside the scope of the second TFR and 
committed to addressing these comments in a future venue.

Public Comment on the 2023 TFR

    When we extended the flexibility again in 2023, we received one 
comment, from The Connected Health Initiative. The commenter was 
supportive of us extending the flexibility provided in the TFR and our 
commitment to continuing to study the appropriate time period for 
``close proximity of findings,'' noting that ``data indicates that, 
going forward, telehealth will likely replace some in-person visits for 
some people with musculoskeletal disorders post-PHE, which could lead 
to extended revisit intervals between thorough examinations.'' \27\ We 
appreciate this commenter's feedback and, consistent with the comment, 
intend to continue studying these impacts.
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    \27\ See Comment from The Connected Health Initiative on 
Document SSA-2023-0023-0002, https://www.regulations.gov/comment/SSA-2023-0023-0002.
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Rationale for This Rule

    We are extending the ``close proximity of time'' flexibility 
through May 11, 2029, 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 PHE. We will 
evaluate these evolving practices and their effects to determine the 
appropriate time standard to include in the musculoskeletal disorders 
listings going forward.
    The PHE caused changes in healthcare provision and access, which 
led to a decrease in health care use and a shift from in-person 
healthcare to telehealth (phone or video). In response, we published 
the 2021 TFR, which temporarily amended the introductory text of the 
musculoskeletal disorders listings to define the ``close proximity of 
time'' standard as presence of the required findings in the record 
within a consecutive 12-month period. This flexibility was limited to 
the ``pandemic period,'' originally defined as the period beginning 
April 2, 2021, until 6 months after the end of the COVID-19 national 
PHE, November 11, 2023. Due to the ongoing increased use of telehealth 
services following the PHE and the many changes to healthcare rules and 
legislation that were set to be phased out over a two-year period, we 
concluded that healthcare would be in a state of rapid change in the 
period immediately following the PHE, so we would need to study the 
changes in healthcare provision before defining the appropriate ``close 
proximity of time'' interval going forward. We thus published an 
extension of the flexibility provided in the TFR by redefining the 
``pandemic period'' to end on May 11, 2025, two years after the end of 
the PHE.
    After studying the available data regarding the changes in 
healthcare immediately following the PHE, we have concluded that a 
further extension is necessary because healthcare access and provision 
remains different from what it was prior to the PHE and we are 
continuing to evaluate whether the 4-month period is supported. There 
is still uncertainty and change in the medical and legal framework 
regarding telehealth, and the limited data available about telehealth 
use immediately after the PHE shows ongoing increased telehealth use 
compared to the period prior to the PHE. For example, Medicare data 
shows that telehealth usage across all medical specialties increased 
significantly during the pandemic, and while telehealth usage gradually 
declined from its peak, it has not returned to pre-pandemic levels.\28\
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    \28\ Centers for Medicare & Medicaid Services (2024, July). 
Medicare Telehealth Trends Report. Centers for Medicare and Medicaid 
Services, U.S. Department of Health & Human Services (HHS). .https:/
/data.cms.gov/sites/default/files/2024-09/c213a5e9-9e70-4b46-b5f1-2fb941ea0f6c/Medicare%20Telehealth%20Trends%20Snapshot%2020240827_508.pdf.
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    Telehealth examinations may provide continuity of care, but they 
generally cannot provide all the medical findings required under the 
musculoskeletal disorders listings. Additionally, anecdotal evidence 
from after the PHE suggests that healthcare costs and workforce 
shortages, which were exacerbated by the pandemic, have led

[[Page 5585]]

to deferment of care and long wait times to see providers. These issues 
are projected to get worse over the next decade,\29\ which could result 
in further delays in accessing in-person examinations, which provide 
the evidence we need to evaluate musculoskeletal disorders. We need 
further data to establish a permanent definition for ``close proximity 
of time.''
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    \29\ See, e.g., Blumenthal, D., Gumas, E., & Shah, A. (2024). 
The Failing U.S. Health System. The New England journal of medicine, 
391(17), 1566-1568. https://doi.org/10.1056/NEJMp2410855, and 
GlobalData Plc. (2024, March) The Complexities of Physician Supply 
and Demand: Projections From 2021 to 2036. AAMC; https://www.aamc.org/media/75236/download?attachment.
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    Available research and data on post-PHE healthcare provides an 
uncertain picture of the long-term impact of the COVID-19 pandemic. 
Although the PHE ended on May 11, 2023, several flexibilities provided 
during the PHE to increase telehealth access have been extended through 
March 31, 2025 (e.g., Medicare coverage of audio-only telehealth, 
telehealth originating at a patient's home, and 
telerehabilitation).\30\ Additionally, Congress is considering 
permanent changes to provide additional flexibilities for 
telehealth.\31\ In addition to the evolving nature of telehealth, there 
are also significant delays in care provision due to healthcare 
workforce shortages and access issues that have persisted and, in many 
cases, worsened after the PHE.
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    \30\ HHS (2023, May 10). HHS Fact Sheet: Telehealth 
Flexibilities and Resources and the COVID-19 Public Health 
Emergency. HHS https://www.hhs.gov/about/news/2023/05/10/hhs-fact-sheet-telehealth-flexibilities-resources-covid-19-public-health-emergency.html; see also American Physical Therapy Association 
(2023, May) Three Years of Physical Therapy in a Public Health 
Emergency: the Impact of the COVID-19 Pandemic on the Physical 
Therapy Profession. APTA and The American Relief Act of 2025, Public 
Law 118-158. BILLS-118hr10545eh.pdf. https://www.apta.org/contentassets/143242e710e147cfa30c0405f5c8ef64/apta_covid19_report2023.pdf.
    \31\ Cottrill, A. & Cubanski, J. & Neuman, T., (2024, October 
2). What to Know about Medicare Coverage of Telehealth. The Kaiser 
Family Foundation. https://www.kff.org/medicare/issue-brief/what-to-know-about-medicare-coverage-of-telehealth/.
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    Although the research is still developing and most professional 
organizations still have yet to update their clinical practice 
guidelines for post-pandemic healthcare, the emerging research and data 
suggest that the increased use of telehealth (including in place of 
some in-person visits) is generally appreciated by patients and 
providers and expected to continue for some time, but at a lower level 
than at the height of the pandemic.\32\ This appears true for both 
audio-only and audio-visual telehealth modalities, and for specialties 
that previously only sparingly used telehealth, such as orthopedic 
surgery, spine surgery, and rehabilitation.\33\ In the field of 
rehabilitation, the American Physical Therapy Association recently 
published clinical practice guidelines supporting telerehabilitation as 
a mode of delivering physical therapist services to patients who would 
benefit from services and whose barriers can be accommodated. At the 
same time, they noted that additional telerehabilitation research is 
needed for all ages, digital health applications, physical therapist 
measures, and interventions.\34\ Nevertheless, there is a yearslong 
research lag that limits availability of post-PHE data, making it 
difficult to fully quantify the post-PHE utilization of telehealth and 
in-person care in practice.\35\
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    \32\ Shaver J. (2022). The State of Telehealth Before and After 
the COVID-19 Pandemic. Primary care, 49(4), 517-530. https://doi.org/10.1016/j.pop.2022.04.002.
    \33\ Bartelt, K., Piff, A., Allen, S., & Barkley, E. (2023, 
November 21). Telehealth Utilization Higher Than Pre-Pandemic 
Levels, but Down from Pandemic Highs. Epic Research. https://epicresearch.org/articles/telehealth-utilization-higher-than-pre-pandemic-levels-but-down-from-pandemic-highs. Accessed on November 
27, 2024.
    \34\ Lee, A.C., Deutsch, J.E., Holdsworth, L., Kaplan, S.L., 
Kosakowski, H., Latz, R., McNeary, L.L., O'Neil, J., Ronzio, O., 
Sanders, K., Sigmund-Gaines, M., Wiley, M., & Russell, T. (2024). 
Telerehabilitation in Physical Therapist Practice: A Clinical 
Practice Guideline From the American Physical Therapy Association. 
Physical therapy, 104(5), pzae045. https://doi.org/10.1093/ptj/pzae045.
    \35\ Standaert, Christopher, M.D. COVID Disruptions and their 
Impact on Musculoskeletal Care. Presentation to the Standing 
Committee of the National Academies of Science and Medicine Health 
and Medicine Division, on June 20, 2024.
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    The initial data from CMS and the Department of Veterans Affairs 
(VA) appears to show that rates of telehealth use for the first few 
months after the end of the PHE remained steady and generally 
consistent with utilization rates in late 2021 and 2022.\36\ VA data 
showed an overall increase in the proportion of telehealth visits from 
20 percent prior to the pandemic to about 35 percent leading up to and 
for the first few months after the end of the PHE. Researchers 
analyzing the VA data through August 2023 indicated that telehealth 
rates stabilized around May 2021 and that ``although primary care and 
subspecialty telemedicine is often limited by the need for in-person 
evaluations (for example, physical examinations), about 10% of in-
person primary and subspecialty care has converted to telemedicine.'' 
\37\ Additionally, Medicare data trends through the second quarter of 
2024 showed rates of telehealth stabilizing between 12 and 15 percent 
of Medicare users in 2022 through June 2024, compared to 7 percent of 
users prior to the pandemic. They also showed differences in telehealth 
use by race, ethnicity, age, disability status, and dual enrollment 
status with Medicaid. The data shows that Medicare users who were 
disabled or who were dually eligible for Medicare and Medicaid tended 
to use telehealth more both during and after the PHE.\38\
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    \36\ Ferguson, J.M., Wray, C.M., Van Campen, J., & Zulman, D.M. 
(2024). A New Equilibrium for Telemedicine: Prevalence of In-Person, 
Video-Based, and Telephone-Based Care in the Veterans Health 
Administration, 2019-2023. Annals of internal medicine, 177(2), 262-
264. https://doi.org/10.7326/M23-2644; see also Centers for Medicare 
& Medicaid Services (2022, December). Medicare Telehealth Trends 
Report. Centers for Medicare & Medicaid Services, HHS. https://data.cms.gov/sites/default/files/2022-12/a7c3a319-5ded-4baf-ad7c-9aa2a897263a/MedicareTelehealthTrendsSnapshot20221201.pdf.
    \37\ Ferguson, J.M., Wray, C.M., Van Campen, J., & Zulman, D.M. 
(2024). A New Equilibrium for Telemedicine: Prevalence of In-Person, 
Video-Based, and Telephone-Based Care in the Veterans Health 
Administration, 2019-2023. Annals of internal medicine, 177(2), 262-
264. https://doi.org/10.7326/M23-2644.
    \38\ Centers for Medicare & Medicaid Services (2024, November). 
Medicare Telehealth Trends Report. Centers for Medicare & Medicaid 
Services, HHS https://data.cms.gov/sites/default/files/2024-12/f5b35fbf-002a-425d-924d-f99aa362a63f/Medicare%20Telehealth%20Trends%20Snapshot%2020241127_508.pdf; see 
also Centers for Medicare & Medicaid Services (2024, May). Medicare 
Telehealth Trends Report. Centers for Medicare & Medicaid Services, 
HHS https://data.cms.gov/sites/default/files/2024-05/Medicare%20Telehealth%20Trends%20Snapshot%2020240528_508.pdf.
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    Anecdotal evidence supports that telehealth is still being used at 
higher rates than prior to the pandemic, but that additional research 
is needed to describe the role of telehealth in healthcare after the 
PHE. At their presentation to the National Academies of Science, 
Engineering, and Medicine (NASEM) Standing Committee of Medical and 
Vocational Experts for the Social Security Administration's Disability 
Programs, two experts in musculoskeletal care affirmed that although 
telehealth is more common now than prior to the pandemic and provides 
benefits for those who use it, there is no currently available data 
that provides a picture of telehealth use following the PHE. They 
concluded that there is not an industry standard for telehealth 
utilization at this time, with more research, consensus, and 
standardization needed in the field.\39\

[[Page 5586]]

The conclusions of the experts are supported by a report from the 
Outcomes Planning Committee of the VHA Office of Health Services 
Research and Development's State-of-the-Art Conference on Virtual Care. 
The report concluded that there is a need for additional research to 
identify the specific scenarios in which virtual care can be leveraged 
to improve patient outcomes, and that additional research regarding the 
use of hybrid models ``will be critical in determining whether virtual 
visits should function primarily as periodic check-ins before patients 
can receive certain examinations or procedures in-person, or whether 
virtual care can fully replace in-person care in specific clinical 
scenarios.'' \40\
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    \39\ Standaert, Christopher, M.D. COVID Disruptions and their 
Impact on Musculoskeletal Care. Presentation to the Standing 
Committee of the National Academies of Science and Medicine Health 
and Medicine Division, on June 20, 2024; see also Escorpizo, Reuben, 
P.T., M.Sc., D.P.T. Musculoskeletal Health, and Telehealth--Rapid 
Overview. Presentation to the Standing Committee of the National 
Academies of Science and Medicine Health and Medicine Division, on 
June 20, 2024.
    \40\ Connolly, S.L., Sherman, S.E., Dardashti, N., Duran, E., 
Bosworth, H.B., Charness, M.E., Newton, T.J., Reddy, A., Wong, E.S., 
Zullig, L.L., & Gutierrez, J. (2024). Defining and Improving 
Outcomes Measurement for Virtual Care: Report from the VHA State-of-
the-Art Conference on Virtual Care. Journal of general internal 
medicine, 39(Suppl 1), 29-35. https://doi.org/10.1007/s11606-023-08464-1.
---------------------------------------------------------------------------

    Although many individuals access telehealth visits successfully, 
the clinical signs and findings required by some of the musculoskeletal 
disorders listings may not be present in the telehealth record due to 
the limitations of telemedicine. While testing by the patient is 
possible through telehealth, there are limits in provocative testing 
(testing that manipulates the areas where an individual has pain in 
order to reproduce the pain), discrete palpation (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), and strength or stability testing.\41\ During the 
beginning of the COVID-19 pandemic, orthopedists created guidelines for 
virtual examinations of patients through telemedicine, and found that 
while the patient could perform many tests, there are inherent 
limitations to testing in this manner. For example, the authors 
recommend using another person to hold the camera during gait 
examination to get a better view of the patient's gait mechanics, which 
is not always possible.\42\ Further, the VHA has found that although 
patients appreciate telehealth, many are unable to complete exams that 
require precise measurements, such as range of motion or reflexes.\43\ 
While it appears that since the end of the PHE there have been some 
post-surgical innovations to conduct follow-up spine care virtually, 
such as applications that can be used on a smartphone,\44\ a recent 
survey of orthopedic trauma care providers shows that concerns still 
exist about the generalizability of telemedicine to the field of 
orthopedic trauma care, as a majority of orthopedic physicians felt 
that virtual physical examinations allowed for only limited 
information.\45\ Thus, the utility of telehealth examination in the 
specific context of surgical and/or orthopedic trauma care remains 
uncertain.
---------------------------------------------------------------------------

    \41\ Tanaka, M.J., Oh, L.S., Martin, S.D., & Berkson, E.M. 
(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.
    \42\ Laskowski, E.R., Johnson, S.E., Shelerud, R.A., Lee, J.A., 
Rabatin, A.E., Driscoll, S.W., Moore, B.J., Wainberg, M.C., & 
Terzic, C.M. (2020). The Telemedicine Musculoskeletal Examination. 
Mayo Clinic Proc. 95(8). doi: https://doi.org/10.1016/j.mayocp.2020.05.026.
    \43\ Baus, Shanna, PA-C. Telehealth & Disability Items: Veterans 
Health Administration. Presentation to the Standing Committee of the 
National Academies of Science and Medicine Health and Medicine 
Division, on December 1, 2020; see also Cannedy, S., Leung, L., 
Wyte-Lake, T., Balut, M.D., Dobalian, A., Heyworth, L., Paige, N.M., 
& Der-Martirosian, C. (2023). Primary Care Team Perspectives on the 
Suitability of Telehealth Modality (Phone vs Video) at the Veterans 
Health Administration. Journal of primary care & community health, 
14, 21501319231172897. https://doi.org/10.1177/21501319231172897.
    \44\ Leyendecker, J., Prasse, T., Bieler, E., Yap, N., Eysel, 
P., Bredow, J., Hofstetter, C.P., & Members of the Endoscopic Spine 
Research Group (ESRG) (2024). Smartphone applications for remote 
patient monitoring reduces clinic utilization after full-endoscopic 
spine surgery. Journal of telemedicine and telecare, 
1357633X241229466. Advance online publication. https://doi.org/10.1177/1357633X241229466.; see also Murhekar, S., Relwani, S., Lau, 
S., & Virani, S. (2024). Evaluation of the Effectiveness of Virtual 
Telephone Consultations Against Traditional Face-to-Face 
Consultations in Spine Surgery Using an Objective Metric. Cureus, 
16(9), e69433. https://doi.org/10.7759/cureus.69433.
    \45\ Gammel, J., Rivas, G., Horn, R., Munford, J., Reid, K., & 
Harstock, L. (2024, September 4). A survey of telehealth and its 
role in orthopaedic trauma during and after COVID-19. Journal of 
Public Health (Berl.) https://doi.org/10.1007/s10389-024-02347-3.
---------------------------------------------------------------------------

    Additionally, an increasing number of people are unable to access 
needed healthcare due to cost as the PHE flexibilities are phased out. 
Medicaid redeterminations restarted at the end of the PHE, leading to 
an increase in the uninsured, and the enhanced health insurance 
marketplace subsidies will expire in 2025.\46\ According to data from 
the Kaiser Family Foundation (KFF), over 25 million people have been 
disenrolled from Medicaid since April 2023, when the ``unwinding'' of 
the continuous enrollment provision began, leading to an increase in 
the uninsured population.\47\
---------------------------------------------------------------------------

    \46\ Tolbert, J., & Corallo, B. (2024, September 18). An 
examination of Medicaid Renewal Outcomes and enrollment changes at 
the end of the Unwinding. The Kaiser Family Foundation. https://www.kff.org/medicaid/issue-brief/an-examination-of-medicaid-renewal-outcomes-and-enrollment-changes-at-the-end-of-the-unwinding/; See 
also Minicozzi, A., & Masi, S. (2024, June 18). CBO Publishes New 
Projections Related to Health Insurance for 2024 to 2034, CBO. 
https://www.cbo.gov/publication/60383.
    \47\ Tolbert, J., & Corallo, B. (2024, September 18). An 
examination of Medicaid Renewal Outcomes and enrollment changes at 
the end of the Unwinding. The Kaiser Family Foundation. https://www.kff.org/medicaid/issue-brief/an-examination-of-medicaid-renewal-outcomes-and-enrollment-changes-at-the-end-of-the-unwinding/.
---------------------------------------------------------------------------

    The Congressional Budget Office predicts an increase in the share 
and number of people without insurance over the next decade, with a 
predicted increase in the uninsured population from 24 million in 2023 
to 32 million in 2027, primarily driven by changes in Medicaid and 
Children's Health Insurance Program (CHIP) enrollment over the next few 
years resulting from the expiration of PHE-era programs.\48\ National 
surveys from KFF and the Federal Reserve in 2022 and 2023 showed that a 
large percentage of people (25 to 28 percent) postponed or went without 
needed medical care due to cost regardless of insurance status, and 
that the uninsured population was significantly more likely to forego 
or postpone care (42 to 60 percent) than the insured population.\49\
---------------------------------------------------------------------------

    \48\ Hale, J., Hong, N., Hopkins, B., Lyons, S., Molloy, E., & 
The Congressional Budget Office Coverage Team (2024). Health 
Insurance Coverage Projections for the US Population and Sources Of 
Coverage, By Age, 2024-34. Health affairs (Project Hope), 43(7), 
922-932. https://doi.org/10.1377/hlthaff.2024.00460.
    \49\ Tolbert, J., & Corallo, B. (2024, September 18). An 
examination of Medicaid Renewal Outcomes and enrollment changes at 
the end of the Unwinding. The Kaiser Family Foundation. https://www.kff.org/medicaid/issue-brief/an-examination-of-medicaid-renewal-outcomes-and-enrollment-changes-at-the-end-of-the-unwinding/.
---------------------------------------------------------------------------

    The Commonwealth Fund's 2024 report, which compared the performance 
of health systems of 10 high-income countries using data from 2020 or 
later and is the first such report to account for the effects of the 
COVID-19 pandemic, found that the United States ranked last on several 
measures, including access to care, and this was attributed largely to 
cost-related barriers, such as the percentage of uninsured residents as 
well as inadequate coverage and high deductibles and copayments.\50\ 
The Commonwealth Fund's 2023 survey noted that nearly half of adults 
with lower or average incomes in the U.S., and nearly one of three with 
higher incomes, reported at least one cost-related problem accessing 
health care in the prior year. The problems included

[[Page 5587]]

having a medical issue but not visiting a doctor, skipping a medical 
test, treatment, or follow-up that was recommended by a doctor, not 
filling a prescription, or skipping medication doses.\51\ Given the 
projected increases in the uninsured population and the impact of cost 
and insurance status on access to care, postponed and foregone health 
care is expected to remain an issue for the foreseeable future, 
potentially limiting the frequency of visits.
---------------------------------------------------------------------------

    \50\ Blumenthal, D., Gumas, E., & Shah, A. (2024). The Failing 
U.S. Health System. The New England journal of medicine, 391(17), 
1566-1568. https://doi.org/10.1056/NEJMp2410855.
    \51\ Gunja MZ, Gumas ED, Williams RD II, Doty MM, Shah A, Fields 
K. The cost of not getting care: income disparities in the 
affordability of health services across high-income countries. New 
York: Commonwealth Fund, November 16, 2023 (https://www.commonwealthfund.org/publications/surveys/2023/nov/cost-not-getting-care-income-disparities-affordability-health).
---------------------------------------------------------------------------

    Additional research suggests that certain individuals, such as 
those who are uninsured or low-income, may face barriers to regular or 
recommended health care treatment, and that these barriers appear to 
have increased after the pandemic, which may warrant a longer standard 
to allow for developing the necessary evidence. In a separate 
publication, summarizing recent research, KFF notes that studies 
repeatedly demonstrate that uninsured individuals are less likely than 
those with insurance to receive preventive care and services for major 
health conditions and chronic diseases.\52\ For example, a 2023 KFF 
survey found that 61 percent of uninsured adults skipped or postponed 
getting treatment due to cost compared to 21 percent for insured 
adults.\53\ Similarly, a 2019 National Center for Health Statistics 
survey found that 36.5 percent of uninsured adults delayed or did not 
receive needed medical care due to cost as compared to eight percent of 
insured individuals.\54\ That same study found that over 20 percent of 
individuals living at or below 200 percent of the federal poverty 
threshold delayed or did not receive medical care due to cost as 
compared to 8.5 percent of all individuals. Notably, the 2019 study 
showed fewer people missing care than the 2023 KFF survey, again 
suggesting that problems accessing care have been exacerbated by the 
pandemic. Given that individuals who apply for disability benefits are 
disproportionately uninsured \55\ or low-income, a standard which helps 
to accommodate cost barriers to healthcare access may be appropriate.
---------------------------------------------------------------------------

    \52\ Tolbert, J, Drake, P., & Damic, A., (2023, December 18). 
Key Facts about the Uninsured Population. The Kaiser Family 
Foundation. https://www.kff.org/report-section/key-facts-about-the-uninsured-population-issue-brief/#endnote_link_607642-9.
    \53\ Lopes, L., Montero, A., Presiado, M., & Hamel, L. (2024, 
March 01). Americans' Challenges with Health Care Costs. The Kaiser 
Family Foundation. https://www.kff.org/health-costs/issue-brief/americans-challenges-with-health-care-costs/
    \54\ National Center for Health Statistics, National Health 
Interview Survey. See Sources and Definitions, National Health 
Interview Survey (NHIS) and Health, United States, 2020-2021 Table 
UnmtNd.
    \55\ For example, a 2009 study found that recent SSDI recipients 
were uninsured at substantially higher rates than the general 
population. See, Livermore, G., Stapleton, D., & Claypool, H. Health 
Insurance and Health Care Access Before and After SSDI Entry. New 
York: Commonwealth Fund, May 20, 2009. https://www.commonwealthfund.org/publications/fund-reports/2009/may/health-insurance-and-health-care-access-and-after-ssdi-entry.
---------------------------------------------------------------------------

    Healthcare workforce analyses have also shown significant 
healthcare workforce shortages and delays in care, exacerbated by the 
pandemic, and have projected ongoing healthcare workforce shortages for 
at least a decade, further impacting access to care, with disparate 
access to care for different communities.\56\ Preliminary data from the 
pandemic shows that stress during the pandemic led to burnout and 
retirement earlier than projected for many physicians and nurses, 
exacerbating workforce shortages that were already increasing due to an 
aging healthcare workforce.\57\ At the same time, healthcare demand has 
increased and is expected to continue to increase due to population 
growth, the increase in individuals with multiple chronic conditions, 
and the aging population.\58\ Experts in musculoskeletal care 
presenting to the NASEM Standing Committee reported significant 
persisting delays in specialty care appointments compared to pre-
pandemic norms.\59\ The Commonwealth Fund's 2024 report also noted that 
timely access to care in the United States is limited by a worsening 
shortage of primary care clinicians and the time spent by healthcare 
providers on administrative issues related to billing.\60\
---------------------------------------------------------------------------

    \56\ GlobalData Plc. (2024, March). The Complexities of 
Physician Supply and Demand: Projections From 2021 to 2036. AAMC; 
https://www.aamc.org/media/75236/download?attachment.
    \57\ Martin, B., Kaminski-Ozturk, N., O'Hara, C., & Smiley, R. 
(2023). Examining the Impact of the COVID-19 Pandemic on Burnout and 
Stress Among U.S. Nurses. Journal of nursing regulation, 14(1), 4-
12. https://doi.org/10.1016/S2155-8256(23)00063-7.
    \58\ GlobalData Plc. (2024, March). The Complexities of 
Physician Supply and Demand: Projections From 2021 to 2036. AAMC; 
https://www.aamc.org/media/75236/download?attachment.
    \59\ Standaert, Christopher, M.D. COVID Disruptions and their 
Impact on Musculoskeletal Care. Presentation to the Standing 
Committee of the National Academies of Science and Medicine Health 
and Medicine Division, on June 20, 2024; see also Escorpizo, Reuben, 
P.T., M.Sc., D.P.T. Musculoskeletal Health, and Telehealth--Rapid 
Overview. Presentation to the Standing Committee of the National 
Academies of Science and Medicine Health and Medicine Division, on 
June 20, 2024.
    \60\ Blumenthal, D., Gumas, E., & Shah, A. (2024). The Failing 
U.S. Health System. The New England journal of medicine, 391(17), 
1566-1568. https://doi.org/10.1056/NEJMp2410855.
---------------------------------------------------------------------------

    The Health Resources and Services Administration (HRSA) reported in 
November 2023 that approximately 102 million Americans live in a 
primary care health professional shortage area and that maldistribution 
of the healthcare workforce results in severe shortages in rural 
communities.\61\ Additionally, a 2024 HRSA report projects average 
physician shortages of 56 percent in non-metro areas by 2036.\62\ 
Similarly, the Association of American Medical Colleges recently 
projected a shortage of up to 139,000 physicians by 2033 and concluded 
that if communities historically underserved by our health care system 
had fewer access barriers and comparable access was provided for all, 
the shortfall would be three to six times the magnitude of current 
estimates.\63\
---------------------------------------------------------------------------

    \61\ National Center for Health Workforce Analysis (2024, May). 
State of the U.S. Health Care Workforce, 2023 HRSA; https://bhw.hrsa.gov/sites/default/files/bureau-health-workforce/data-research/state-of-the-health-workforce-report-2023.pdf.
    \62\ Bureau of Health Workforce. (2024, November). Health 
Workforce Projections. HRSA; Retrieved November 22, 2024, from 
https://bhw.hrsa.gov/data-research/projecting-health-workforce-supply-demand.
    \63\ GlobalData Plc. (2024, March) The Complexities of Physician 
Supply and Demand: Projections From 2021 to 2036. AAMC; https://www.aamc.org/media/75236/download?attachment.
---------------------------------------------------------------------------

    Any ongoing decrease in the frequency of, or increase in wait times 
for, in-person medical visits could lead to additional barriers or 
delays in documenting certain findings in the medical record that are 
needed to meet or equal the musculoskeletal disorders listings. This is 
true even if the decrease in in-person visits is offset with telehealth 
visits that make healthcare more accessible for some, because 
telehealth visits cannot reliably provide all the findings provided 
during in-person visits. The anecdotal evidence we have suggests the 
possibility of ongoing changes in healthcare related to the pandemic, 
including significant post-PHE delays in in-person care and ongoing 
telehealth utilization at a higher rate than prior to the pandemic. 
Although this evidence may support additional flexibility in the 
proximity standard, there is also an overall lack of published and 
available data on healthcare access and utilization following the PHE 
on which to rely. Therefore, an extension until May 11,

[[Page 5588]]

2029, is necessary to ensure a sufficient research base for a permanent 
standard.
    We are extending the flexibility until May 11, 2029, to provide 
time for published research to demonstrate utilization data after the 
PHE. Experts in musculoskeletal care presenting to the NASEM Standing 
Committee in June 2024 noted that there was almost no published 
research about musculoskeletal health care utilization in 2022 and 
beyond. One expert explained that this is largely due to the logistics 
of scientific research, where data is collected in large databases on a 
delay, and researchers must obtain funding and access to the database, 
analyze the data, and seek peer review and publication, which typically 
takes several years.\64\ Therefore, in order to provide time for 
development of the evidence base and for full notice-and-comment 
rulemaking, we are extending the flexibility in the proximity standard 
until May 11, 2029. However, we will begin the rulemaking process for a 
permanent proximity standard as soon as the evidence base is available.
---------------------------------------------------------------------------

    \64\ Standaert, Christopher, M.D. COVID Disruptions and their 
Impact on Musculoskeletal Care. Presentation to the Standing 
Committee of the National Academies of Science and Medicine Health 
and Medicine Division, on June 20, 2024.
---------------------------------------------------------------------------

Evidence to Review

    We will continue to use the extension period to study the changes 
in healthcare access and provision after the expiration of the PHE. 
During the extension period, we will also continue to review 
information about disparities in access to care or modalities of care. 
We expect this additional period will allow us to consider whether we 
should revert to the 4-month ``close proximity of time'' standard, 
adopt a permanent change to the consecutive 12-month ``close proximity 
of time'' period, or use a different timeframe, to account for ongoing 
changes in healthcare access and delivery.
    We will also continue to study the application of the ``close 
proximity of time'' rule in our programs. In addition, we will 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, and the justification or evidence for the standard the 
commenter identifies as appropriate;
     Research, evidence, or information about barriers to 
access to care, changes in healthcare delivery, and disproportionate 
burdens faced by any subset of the population and how that impacts an 
individual's ability to provide the required evidence for a medical 
listing; 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 define a new term, ``post-
pandemic evaluation period,'' to mean ``the period beginning on May 12, 
2025, and ending on May 11, 2029.'' We are adding this new term because 
we are extending the more flexible ``close proximity of time'' standard 
to six years after the end of the PHE. This rule also revises sections 
1.00C7c and 101.00C7c to indicate that, for claims determined or 
decided during the pandemic period or the post-pandemic evaluation 
period, ``within a close proximity of time'' means that all the 
relevant criteria must appear in the medical record within a 
consecutive 12-month period.
    We are making changes based on the Commissioner of Social 
Security's rulemaking authority specified in sections 205(a), 
702(a)(5), 1631(d)(1), 1631(e)(1)(A), and 1633(a) of the Social 
Security Act. Under those sections, the Commissioner may adopt rules 
regarding, among other things, the nature and extent of evidence needed 
to establish benefit eligibility, as well as methods of taking and 
furnishing such evidence.

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 and public comment.\65\ We have been following the more flexible 
12-month ``close proximity of time'' standard for over three years, and 
it would be impracticable and contrary to the public interest to 
disrupt our claims adjudications by delaying implementation of this 
TFR. Delayed implementation of this TFR would require us to either 
delay adjudicating affected claims, potentially resulting in delayed 
benefits to vulnerable individuals,\66\ or 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. If we applied the 4-month standard, 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. Implementing this TFR, without prior notice 
and public comment, will allow us to maintain this more flexible 
standard while we review and adapt to new clinical practices and 
healthcare data that emerge in a post-PHE landscape.
---------------------------------------------------------------------------

    \65\ In our first 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 first TFR to one year after the end of the PHE. 
Similarly, in our second TFR we provided notice that we would 
consider extending the expiration date of the rule, and we invited 
public comments on the expiration date. 88 FR at 67081, 67088. As 
discussed above, we received a public comment from The Connected 
Health Initiative which supported our decision to extend the 
original TFR to continue to study the impacts of the PHE and 
barriers to healthcare.
    \66\ 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.
---------------------------------------------------------------------------

    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.\67\ An 
unnecessary delay

[[Page 5589]]

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.
---------------------------------------------------------------------------

    \67\ 42 U.S.C. 1382(a); 20 CFR 416.202.
---------------------------------------------------------------------------

    Delaying implementation of this final rule to provide an 
opportunity for prior notice and public comment is also unnecessary. As 
noted above, we have applied the more flexible 12-month ``close 
proximity of time'' standard for over three years, and its effects have 
been negligible, merely resulting in more streamlined, faster 
disability determinations for a very small number of claimants.
    Moreover, we have given interested parties an opportunity to 
provide public comment on the 12-month standard--including soliciting 
comments about a possible extension--on two prior occasions: first when 
we published the 2021 TFR and then, when we extended the flexibility in 
September 2023. Altogether, we received two public comments. The first 
commenter supported making the 12-month standard permanent or, 
alternatively, extending it, and the second commenter supported an 
extension of the 12-month standard. Accordingly, delaying 
implementation of this rule to obtain further public comment is 
unnecessary.
    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 non- significant 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 Cost-Savings 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:
     Providing a more flexible 12-month ``close proximity of 
time'' standard in the musculoskeletal disorders listings will 
potentially result in streamlined, faster disability determinations for 
a small number of claimants. Absent this policy, a small number of 
determinations might be delayed due to a need for additional medical or 
vocational development.
Anticipated Costs
    We do not believe there are 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.
Congressional Review Act
    This final rule is not a major rule as defined by the Congressional 
Review Act.\68\
---------------------------------------------------------------------------

    \68\ 5 U.S.C. 801 et seq.
---------------------------------------------------------------------------

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

20 CFR Part 404

    Administrative practice and procedure; Blind, Disability benefits; 
Old-age, survivors, and disability insurance; Reporting and 
recordkeeping requirements; Social Security.

20 CFR Part 416

    Administrative practice and procedure; Aged, Blind, Disability cash 
payments; Public assistance programs; Reporting and recordkeeping 
requirements; Supplemental Security Income (SSI).

    The Acting Commissioner of Social Security, Carolyn W. Colvin, 
having reviewed and approved this document, is delegating the authority 
to electronically sign this document to Erik Hansen, who is a Federal 
Register Liaison for the Social Security Administration, for purposes 
of publication in the Federal Register.

Erik Hansen,
Associate Commissioner, Office of Legislative Development and 
Operations, Social Security Administration.

    For the reasons stated in the preamble, we are amending subpart P 
of

[[Page 5590]]

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

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1. The authority citation for subpart P of part 404 continues 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).

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2. In appendix 1 to subpart P of part 404:
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a. In part A, amend section 1.00C7 by revising paragraphs a and c; and
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b. In part B, amend section 101.00C7 by revising paragraphs a and c.
    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. The term 
post-pandemic evaluation period as used in 1.00C7c means the period 
beginning on May 12, 2025, and ending on May 11, 2029.
* * * * *
    c. For 1.15, 1.16, 1.17, 1.18, 1.20C, 1.20D, 1.22, and 1.23, all 
of the required criteria must be present simultaneously, or within a 
close proximity of time, to satisfy the level of severity needed to 
meet the listing. The phrase ``within a close proximity of time'' 
means that all of the relevant criteria must appear in the medical 
record within a consecutive 4-month period, except for claims 
determined or decided during the pandemic period or post-pandemic 
evaluation period. For claims determined or decided during the 
pandemic period or post-pandemic evaluation period, all of the 
relevant criteria must appear in the medical record within a 
consecutive 12-month period. When 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. For listings 
that use the word ``and'' to link the elements of the required 
criteria, the medical record must establish the simultaneous 
presence, or presence within a close proximity of time, of all the 
required medical criteria. Once this level of severity is 
established, the medical record must also show that this level of 
severity has continued, or is expected to continue, for a continuous 
period of at least 12 months.
* * * * *

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. The 
term post-pandemic evaluation period as used in 101.00C7c means the 
period beginning on May 12, 2025, and ending on May 11, 2029.
* * * * *
    c. For 101.15, 101.16, 101.17, 101.18, 101.20C, 101.20D, 101.22, 
and 101.23, all of the required criteria must be present 
simultaneously, or within a close proximity of time, to satisfy the 
level of severity needed to meet the listing. The phrase ``within a 
close proximity of time'' means that all of the relevant criteria 
must appear in the medical record within a consecutive 4-month 
period, except for claims determined or decided during the pandemic 
period or post-pandemic evaluation period. For claims determined or 
decided during the pandemic period or post-pandemic evaluation 
period, all of the relevant criteria must appear in the medical 
record within a consecutive 12-month period. When 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. For listings that use the word ``and'' to link the elements 
of the required criteria, the medical record must establish the 
simultaneous presence, or presence within a close proximity of time, 
of all the required medical criteria. Once this level of severity is 
established, the medical record must also show that this level of 
severity has continued, or is expected to continue, for a continuous 
period of at least 12 months.
* * * * *
[FR Doc. 2025-01283 Filed 1-16-25; 8:45 am]
BILLING CODE 4191-02-P
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