Federal Register / Vol. 75, No. 105 / Wednesday, June 2, 2010 / Rules and Regulations 30693 

1This means that we will use these final rules on 

and after their effective date in any case in which 

we make a determination or decision. We expect 

that Federal courts will review our final decisions 

using the rules that were in effect at the time we 

issued the decisions. If a court reverses the 

Commissioner’s final decision and remands a case 

for further administrative proceedings after the 

effective date of these final rules, we will apply 

these final rules to the entire period at issue in the 

decision we make after the court’s remand. 

statement in the Federal Register 

published on April 11, 2000 (Volume 

65, Number 70; Pages 19477–78) or you 

may visit http://DocketsInfo.dot.gov. 

Small Business Regulatory Enforcement 

Fairness Act 

The Small Business Regulatory 

Enforcement Fairness Act (SBREFA) of 

1996 requires FAA to comply with 

small entity requests for information or 

advice about compliance with statutes 

and regulations within its jurisdiction. If 

you are a small entity and you have a 

question regarding this document, you 

may contact your local FAA official, or 

the person listed under the FOR FURTHER

INFORMATION CONTACT heading at the 

beginning of the preamble. You can find 

out more about SBREFA on the Internet 

at http://www.faa.gov/ 

regulations_policies/rulemaking/ 

sbre_act/. 

List of Subjects in 14 CFR Part 406 

Administrative procedure and review, 

Commercial space transportation, 

Enforcement, Investigations, Penalties, 

Rules of adjudication. 

The Amendment 

■ In consideration of the foregoing, the 

Federal Aviation Administration 

amends part 406 of Title 14, Code of 

Federal Regulations as follows: 

PART 406—INVESTIGATIONS, 

ENFORCEMENT, AND 

ADMINISTRATIVE REVIEW 

■ 1. The authority citation for part 406 

continues to read as follows: 

Authority: 49 U.S.C. 70101–70121. 

■ 2. Amend § 406.9 by revising 

paragraph (a) to read as follows: 

§ 406.9 Civil penalties. 

(a) Civil penalty liability. Under 49 

U.S.C. 70115(c), a person found by the 

FAA to have violated a requirement of 

the Act, a regulation issued under the 

Act, or any term or condition of a 

license or permit issued or transferred 

under the Act, is liable to the United 

States for a civil penalty of not more 

than $110,000 for each violation, as 

adjusted for inflation. A separate 

violation occurs for each day the 

violation continues. 

* * * * * 

Issued in Washington, DC, on May 25, 

2010. 

J. Randolph Babbitt, 

Administrator. 

[FR Doc. 2010–13218 Filed 6–1–10; 8:45 am] 

BILLING CODE 4910–13–P 

SOCIAL SECURITY ADMINISTRATION 

20 CFR Part 404 

[Docket No. SSA–2008–0016] 

RIN 0960–AG20 

Revised Medical Criteria for Evaluating 

Hearing Loss 

AGENCY: Social Security Administration. 

ACTION: Final rules. 

SUMMARY: We are revising the criteria in 

the Listing of Impairments (the listings) 

that we use to evaluate claims involving 

hearing loss under titles II and XVI of 

the Social Security Act (Act). The 

revisions reflect our adjudicative 

experience, advances in medical 

knowledge, treatment, and methods of 

evaluating hearing loss, and public 

comments we received in response to a 

Notice of Proposed Rulemaking 

(NPRM). 

DATES: These rules are effective August 

2, 2010. 

FOR FURTHER INFORMATION CONTACT: Tiya 

Marshall, Social Insurance Specialist, 

Office of Medical Listings Improvement, 

Social Security Administration, 6401 

Security Boulevard, Baltimore, 

Maryland 21235–6401, (410) 965–9291. 

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 Web 

site, Social Security Online, at http:// 

www.socialsecurity.gov. 

SUPPLEMENTARY INFORMATION: 

Electronic Version 

The electronic file of this document is 

available on the date of publication in 

the Federal Register at http:// 

www.gpoaccess.gov/fr/index.html. 

Background 

We are revising and making final the 

rules for evaluating hearing loss we 

proposed in an NPRM we published in 

the Federal Register on August 13, 2008 

(73 FR 47103). The preamble to the 

NPRM discussed the changes from the 

current rules and our reasons for 

proposing those changes. To the extent 

that we are adopting the proposed rules 

as published, we are not repeating that 

information here. Interested readers may 

refer to the preamble to the NPRM, 

available at http://www.regulations.gov. 

We are making a number of changes 

from the NPRM as a result of public 

comments. We explain those changes in 

our summary of the public comments 

and our responses later in this 

preamble. 

Why are we revising the listings for 

hearing loss? 

We are revising the listings for 

hearing loss to update the medical 

criteria, provide more information about 

how we evaluate hearing loss, and 

reflect our adjudicative experience. The 

listings for hearing loss are in the 

special senses and speech body system, 

which also includes listings for visual 

disorders, disturbances of labyrinthinevestibular function, and loss of speech. 

In the NPRM, we proposed changes only 

to the listings for hearing loss and their 

accompanying introductory text. We 

published final rules revising the 

listings for visual disorders in the 

Federal Register on November 20, 2006 

(71 FR 67037). We intend to separately 

publish proposed rules for disturbances 

of labyrinthine-vestibular function and 

loss of speech. 

When will we use these final rules? 

We will use these final rules 

beginning on their effective date. We 

will continue to use the current listings 

until the date these final rules become 

effective. We will apply the final rules 

to new applications filed on or after the 

effective date of the final rules and to 

claims that are pending on and after the 

effective date.1

How long will the rules in the special 

senses and speech body system be in 

effect? 

We are extending the effective date of 

the special senses and speech body 

system in parts A and B of the listings 

until 5 years after the effective date of 

these final rules, except we intend to 

revise the Disturbance of labyrinthinevestibular function and Loss of speech 

listings before then. The rules will 

remain in effect only until that date 

unless we extend them. We will 

continue to monitor the rules and may 

revise them before the end of the 5-year 

period. 

Public Comments on the NPRM 

In the NPRM, we provided the public 

with a 60-day comment period, which 

ended on October 14, 2008. We received 

17 public comment letters. The 

comments came from national medical 

organizations, advocacy groups, a 

national group representing Social 

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30694 Federal Register / Vol. 75, No. 105 / Wednesday, June 2, 2010 / Rules and Regulations 

2While we included the sections on vertigo 

associated with disturbances of labyrinthinevestibular function and loss of speech in the NPRM, 

we indicated that we were not proposing any 

substantive changes. 73 FR at 47104. Although we 

are not responding to comments on those sections, 

we will consider them as we develop NPRMs for 

the disorders they address. 

3The revision is also consistent with the 

statement we made in the NPRM that ‘‘[h]aving the 

otologic examination precede the audiometric 

testing can help identify conditions that could 

interfere with the audiometric testing.’’ 73 FR 

47103, 47105 (2008). 

Security disability consultants, a 

national group representing disability 

examiners in the State agencies that 

make disability determinations for us, 

individual State agencies, and members 

of the public. 

We provide below summaries of the 

significant comments that were relevant 

to this rulemaking and our responses to 

those comments. We tried to present the 

commenters’ concerns and suggestions 

accurately and completely. 

Some commenters supported the 

proposed changes and noted provisions 

with which they agreed. We appreciate 

those comments, but have not 

summarized or responded to them 

below because they do not require a 

response. Some commenters also sent us 

comments on subjects that were 

unrelated to the proposed rules; for 

example, several commenters suggested 

changes to the rules we use to evaluate 

claims involving vertigo and speech 

disorders. As we have already noted, we 

intend to publish a separate NPRM for 

disturbances of labyrinthine-vestibular 

function and loss of speech.2

Establishing the Existence and Severity 

of Impairments That Cause Hearing 

Loss 

Three commenters thought that our 

proposed requirements to establish that 

a person has a medically determinable 

impairment that causes hearing loss 

were unclear. The commenters pointed 

out that we referred to both audiometric 

testing within 2 months of a complete 

otologic examination and ‘‘subsequent’’ 

audiometric testing. Another commenter 

asked whether we would use otoscopy 

(a description of the appearance of the 

external ear canals and an evaluation of 

the tympanic membrane) performed by 

an audiologist to establish a medically 

determinable impairment. 

We agreed with the commenters that 

the proposed provisions could have 

been clearer and revised and 

reorganized proposed 2.00B1 and 

102.00B1 in response to these 

comments. Proposed (now final) 2.00B1 

and 102.00B1 provided information 

about two issues regarding evidence 

under these listings: How we establish 

a medically determinable impairment 

that causes hearing loss and how we 

establish the severity of that 

impairment. We generally require both 

a complete otologic examination and 

audiometric testing within 2 months of 

the complete otologic examination to 

establish a medically determinable 

impairment. After that, we do not 

require a complete otologic examination 

to assess the severity of the hearing loss; 

audiometry is sufficient. Otoscopy is 

part of the complete otologic 

examination, and we require otoscopy 

before audiometry to determine if there 

are any conditions that would prevent 

valid testing. 

We will not substitute otoscopy 

performed by an audiologist for a 

complete otologic examination 

performed by a licensed physician 

(medical or osteopathic doctor) to 

establish a medically determinable 

impairment. We also will not use 

audiometric testing that was performed 

without otoscopy to find that a hearing 

impairment meets or medically equals a 

listing. 

In revising proposed 2.00B1 and 

102.00B1 in response to these comments 

and a comment we summarize below, 

we realized that our proposal to require 

both a complete otologic examination 

and audiometric testing to establish a 

medically determinable impairment 

would be unnecessary in some cases. 

For example, there are some 

impairments, such as congenital 

abnormalities, that are clearly 

observable by otologic examination. In 

the final rules, therefore, we provide 

that we ‘‘generally’’ require a complete 

otologic examination and audiometry to 

establish that you have a medically 

determinable impairment that causes 

your hearing loss. 

Several commenters recommended 

that we use audiometric testing 

performed more than 2 months from the 

complete otologic examination in 

determining whether there is a 

medically determinable impairment that 

causes hearing loss. Some of these 

commenters recommended alternative 

periods. A commenter also asked 

whether a report of audiometry in a 

person’s existing medical evidence (that 

is, one that we did not purchase by 

consultative examination (CE)) would 

be acceptable if there were no recent 

otologic examination. 

We did not adopt these comments 

because the proposed (now final) rules 

already allow use of audiometric testing 

performed more than 2 months from the 

date of the otologic examination in 

determining whether you have a 

medically determinable impairment that 

causes hearing loss. The rules provide 

that the testing ‘‘should’’ be performed 

within 2 months of the complete 

otologic examination to allow our 

adjudicators to use evidence that is 

outside the period in appropriate cases. 

Such cases could include the situation 

mentioned by one of the commenters in 

which there is properly performed 

audiometric testing in a person’s 

evidence that is not within 2 months of 

an otologic examination. We use the 

word ‘‘should’’ in these rules to indicate 

our preference and ‘‘must’’ to indicate an 

absolute requirement. We prefer the 2- 

month rule because it ensures the most 

accurate and reliable findings about the 

existence of the impairment. 

In the NPRM, we invited the public to 

comment on a proposed change to our 

prior rule that provided that an 

otolaryngologic examination should 

precede audiometric testing. The 

proposed rules for adults and children 

provided that a person could have 

audiometric testing either before or after 

the complete otologic examination to 

establish a medically determinable 

impairment. Two commenters 

recommended that this audiometric 

testing always precede the complete 

otologic examination. They indicated 

that physicians generally need the 

results of audiometric testing to make 

comprehensive findings about a 

person’s hearing loss. They believed 

that such a rule would be more efficient 

because a physician would likely order 

audiometric testing if he or she did not 

already have it. 

After considering these comments, we 

decided to make final the proposed rule 

that allows audiometric testing either 

before or after complete otologic 

examination. We believe this rule will 

provide flexibility for our adjudicators 

to establish the existence of a medically 

determinable impairment as soon as 

practicable. The purpose of the rule is 

only to establish the presence of some 

medically determinable impairment that 

would account for the hearing loss, and 

as we explained in the preamble to the 

NPRM, there are advantages to 

audiometric testing before or after the 

otologic examination. In addition, we 

realized that, in some cases, we could 

establish the medically determinable 

impairment based on the otologic 

examination alone. As we indicated 

above, we made a revision in final 

2.00B1 and 102.00B1 to recognize this 

possibility.3

Otologic Examinations 

A commenter recommended that we 

specify that otolaryngologists certified 

by the American Board of 

Otolaryngology should perform otologic 

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Federal Register / Vol. 75, No. 105 / Wednesday, June 2, 2010 / Rules and Regulations 30695 

4SSR 06–3p: Titles II and XVI: Considering 

Opinions and Other Evidence from Sources Who 

Are Not ‘‘Acceptable Medical Sources’’ in Disability 

Claims; Considering Decisions on Disability by 

Other Governmental and Nongovernmental 

Agencies, 71 FR 45593 (2006), also available at: 

http://www.socialsecurity.gov/OP_Home/rulings/di/ 

01/SSR2006–03-di-01.html. 

examinations. We partially adopted the 

comment by specifying in final 2.00B1b 

and 102.00B1b that a licensed physician 

(medical or osteopathic doctor) must 

perform the complete otologic 

examination to establish whether a 

person has a medically determinable 

impairment. For our purposes, licensed 

physicians have the necessary 

education, training, and experience to 

perform the otologic examination. 

One commenter recommended that 

we remove from proposed 2.00B1b and 

102.00B1b the description of the pinnae 

(the outer, visible parts of the ears) from 

the requirements for a complete otologic 

examination. The commenter believed 

that the pinnae do not contribute to 

hearing disability. We did not adopt the 

comment because abnormalities of the 

pinnae are associated with a number of 

conditions that affect hearing, and such 

abnormalities may be signs of a 

medically determinable impairment. 

Abnormalities of the pinnae can also 

influence how sound waves are directed 

to the middle ear. 

Another commenter said that our 

description of an otologic examination 

was incomplete. The commenter said 

that otologists do, and should, examine 

the nasopharynx, nose, oral pharynx, 

mouth, and neck when they evaluate 

hearing loss. While we agree that 

otologists do examine these areas, we do 

not include them in these final rules 

because we are describing only findings 

that we need to determine whether a 

person has a medically determinable 

impairment that could cause hearing 

loss. A physician does not need to 

examine the areas suggested by the 

commenter to establish such an 

impairment. 

Otoscopic Examinations 

Two commenters recommended that 

we specify who may perform the 

otoscopic examination described in 

final 2.00B2b and 102.00B2b. We 

adopted the recommendation by stating 

in 2.00B2b and 102.00B2b that the 

medical professional described in final 

2.00B1c and 102.00B1c must conduct 

the audiometric testing. In addition, in 

response to a comment pointing out that 

‘‘otoscopic inspection’’ is the term 

usually used when audiologists conduct 

otoscopic examinations, we explain in 

final 2.00B2b and 102.00B2b that our 

term ‘‘otoscopic examination’’ includes 

‘‘otoscopic inspection.’’ This addition 

clarifies that audiologists and other nonphysicians may do the otoscopic 

examination that we require before 

audiometric testing. 

One commenter said that the 

requirement for an evaluation of the 

tympanic membrane immediately before 

an audiometric examination might add 

expense and time to a CE. The 

commenter was especially concerned 

that, when the otoscopic examination 

shows cerumen (earwax), we would 

need to ask a physician or audiologist to 

remove it before we could continue with 

the audiological testing. In particular, 

the commenter was concerned about 

cerumen that only partially obscures the 

view of the tympanic membrane. The 

commenter said that this condition does 

not necessarily equate to invalid 

audiometric testing. We agree that 

cerumen can, but does not always, 

interfere with audiometric testing, and 

we will rely on the person who 

conducts the test to decide whether to 

remove cerumen. We will address this 

issue in our internal operating 

instructions. 

Audiometric Testing 

One commenter recommended that 

we clarify the provision in proposed 

2.00B1d and 102.00B1d (final 2.00B1c 

and 102.00B1c) that permitted 

audiometric testing by a non-audiologist 

‘‘under the supervision of’’ an 

otolaryngologist. The commenter 

recommended that we require nonaudiologists to conduct testing only 

under ‘‘direct’’ supervision, in 

accordance with Medicare regulations 

requiring the physician to be present in 

the office suite when the service is being 

performed and to assist if necessary. We 

adopted the recommendation. We will 

provide guidance to our adjudicators on 

how to apply the rule in our 

instructions and training. 

Two commenters recommended that 

we accept the results of audiometric 

testing conducted independently by 

hearing aid specialists—also called 

Hearing Instrument Specialists (HIS)— 

in addition to the professionals 

described in proposed 2.00B1d and 

102.00B1d. We did not adopt this 

comment because the educational and 

other qualifications required for 

licensure or certification as an HIS are 

less comprehensive than those of 

otolaryngologists and audiologists and 

can vary from place to place. Therefore, 

we cannot be assured that all HISs 

would have the expertise needed to 

independently perform the audiometric 

testing we require under these listings. 

If an HIS conducts the testing under the 

direct supervision of an 

otolaryngologist, the evidence would be 

acceptable audiometric testing both for 

establishing a medically determinable 

impairment and for assessing its 

severity. We may also consider an HIS’ 

evidence when we assess severity in the 

same way that we consider evidence 

from other sources who are not 

acceptable medical sources as defined 

in §§ 404.1513(d) and 416.913(d) of our 

regulations and Social Security Ruling 

(SSR) 06–3p.4

Another commenter recommended 

that we accept the results of audiometric 

testing conducted solely by clinical 

audiologists. We did not adopt this 

comment because otolaryngologists 

have the requisite education, training, 

and experience to perform and 

supervise the audiometric testing we 

require. 

A few commenters questioned our 

requirement in proposed 2.00B2a and 

102.00B2f(i) for audiometric testing in a 

soundproof booth. Some of these 

commenters suggested we revise our 

rules to require testing in a soundtreated booth or room. We agreed with 

these commenters and made this change 

in final 2.00B2a and 102.00B2f(i). 

One commenter noted that several 

types of sound are used for audiometric 

testing in a sound field. The commenter 

also noted that air and bone conduction 

testing is not sound field testing and 

asked us to clarify the type of sound that 

we require for air and bone conduction 

testing. The type of sound used for air 

and bone conduction testing is referred 

to as ‘‘pure tone’’ sound. Our rules 

require that air and bone conduction 

testing be conducted in accordance with 

the most recently published standards 

of the American National Standards 

Institute (ANSI). Those standards 

describe the type of sound that should 

be used. Therefore, we do not believe it 

is necessary to specify the type of sound 

used. 

One commenter asked us to clarify 

how we would evaluate tests that report 

a vibrotactile (VT) response, rather than 

a hearing response, at 500 Hertz (Hz) 

during bone conduction testing, or no 

response at one or more frequencies 

during air or bone conduction testing. A 

VT response may occur during bone 

conduction testing when the person 

does not have an auditory response but 

perceives the sensation from the 

oscillator; we consider a VT response to 

be a ‘‘no response.’’ To address this 

issue, we added guidance in final 

2.00B2c, 102.00B2c(ii), 102.00B2d(ii), 

102.00B2e(ii), and 102.00B2f(ii). In the 

final rule, we now clarify that when 

there is no response at one or more 

frequencies during air or bone 

conduction testing, we will use 5 dB 

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30696 Federal Register / Vol. 75, No. 105 / Wednesday, June 2, 2010 / Rules and Regulations 

5Spondee words, such as ‘‘baseball’’ and 

‘‘airplane,’’ have equal stress on each syllable. 

over the limit of the audiometer used for 

the test to compute the average 

threshold. 

One commenter indicated that our 

definition of speech reception threshold 

(SRT) in proposed 2.00B2d and 

102.00B2f(iii) was not entirely correct. 

The commenter stated that SRT is the 

minimum dB level required to recognize 

‘‘spondee words 50 percent of the time,’’ 

not ‘‘the minimal decibel (dB) level 

required * * * to recognize a standard 

list of words.’’ 5 The commenter also 

recommended that we replace the term 

‘‘speech reception threshold’’ with 

‘‘spondee threshold’’ to ensure 

standardization of testing material. We 

agreed with the first comment and 

revised the definition of SRT in final 

2.00B2d and 102.00B2f(iii) accordingly. 

We also added a parenthetical statement 

in final 2.00B2a and 102.00B2f(i) 

explaining that SRT is also called 

‘‘spondee threshold’’ or ‘‘ST.’’ We did not 

change the term SRT because it is the 

more common name for this type of 

testing, and we believe our adjudicators 

are more likely to see it in the medical 

evidence. 

One commenter recommended that 

we require certain specific Department 

of Veterans Affairs’ recordings of 50- 

word lists, presented at 70 dB in quiet, 

for measuring the word recognition 

ability of persons with hearing loss not 

treated with cochlear implantation. 

Another commenter also recommended 

that, for children, the word list should 

be appropriately normed. We did not 

adopt the first recommendation because 

there are several appropriate tests 

available to measure a person’s word 

recognition ability, and we want to 

provide our adjudicators with flexibility 

in obtaining this evidence to determine 

disability. We adopted the suggestion to 

provide that word lists for children 

must be appropriately normed. In the 

NPRM, we said that the lists must be 

‘‘standardized.’’ We intended this word 

to include the idea that the tests must 

be appropriately normed for age. 

However, to be clearer, we are adding 

the words ‘‘age-appropriate’’ in response 

to this comment. 

One commenter asked us to clarify 

whether the word recognition testing in 

proposed 2.00B2e and 102.00B2f(iv) 

should be done using live presentation 

or recorded material. Another 

commenter suggested we require testing 

with recorded material, unless there is 

documentation indicating why live 

presentation was necessary. In the 

proposed rules, we did not specify the 

method of presentation because we will 

accept either method; however, we 

added text to final 2.00B2e and 

102.00B2f(iv) to clarify this intent. 

Although word recognition testing 

usually uses recorded material, we do 

not believe that the method of 

presentation will affect our ability to 

determine whether a person has a 

listing-level hearing loss. Therefore, we 

did not adopt the second comment. 

Two commenters recommended that 

we require word recognition testing 

conducted with background noise, not 

only in quiet (see final 2.00B2e, 

2.00B3b, 102.00B2f(iv), and 102.00B3b). 

These commenters also recommended 

that the words be presented at a normal 

conversational level. We did not adopt 

the comments. We require testing under 

optimal circumstances (that is, in quiet 

and at a level of amplification that 

allows us to measure a person’s 

maximum ability to discriminate words) 

to ensure that the impairment is of 

listing-level severity. 

One commenter suggested that we 

replace the term ‘‘amplification level’’ in 

proposed 2.00B2e and 102.00B2f(iv) 

with ‘‘presentation level.’’ The 

commenter asked whether we require 

that word recognition testing be done at 

the ‘‘phonetically balanced maximum’’ 

(PB Max), which the commenter 

believed is equivalent to the ‘‘most 

comfortable level’’ (MCL). Another 

commenter recommended that we use 

the term ‘‘supra-threshold’’ instead of 

specifying the level of amplification we 

require for word recognition testing. 

We did not adopt the first suggestion 

because we believe that ‘‘amplification 

level’’ describes more precisely the test 

parameters we require for word 

recognition testing. With respect to the 

second comment, we note that PB Max 

and MCL are not the same. PB Max is 

the hearing level at which the maximum 

percentage of words is correctly 

repeated during testing with a list of 

phonetically balanced monosyllabic 

words, such as ‘‘chew’’ and ‘‘knees.’’ It 

may not be the listener’s MCL, which is 

the hearing level at which speech is 

most comfortable for the listener. As we 

indicate in final 2.00B2e and 

102.00B2f(iv), the words must be 

presented at a level of amplification that 

will measure a person’s ‘‘maximum 

ability’’ to discriminate words, usually 

35 to 40 dB above the SRT. This level 

of amplification is often a person’s PB 

Max; when it is not, it is still sufficient 

for us to determine whether there is 

listing-level hearing loss. However, in 

response to this comment, we clarified 

in final 2.00B2e and 102.00B2f(iii) that, 

if a person cannot be tested at 35 to 40 

dB above his or her SRT, the person 

who performs the test should report the 

word recognition testing score at the 

highest comfortable level of 

amplification. We did not adopt the 

comment to refer to testing at 35 to 40 

dB above the SRT as ‘‘supra-threshold’’ 

testing because we prefer to specify our 

criteria for word recognition testing. 

We received several comments about 

acoustic immittance assessment (AIA), 

that is, a tympanogram and acoustic 

reflex testing. In the proposed rules, we 

required an AIA for children from birth 

to the attainment of age 5. One 

commenter recommended that we 

require an AIA for adults to rule out 

conductive pathology, which is 

amenable to treatment, and to aid in 

detecting situations in which a person 

may be feigning a serious hearing loss. 

Another commenter questioned our 

proposal to require an AIA for children 

because listing 102.10A uses only air 

conduction thresholds. A third 

commenter recommended that we 

require high-frequency tympanometry 

for children under age 5 months. 

We did not adopt the comment to 

require an AIA for adults because the 

bone conduction criterion in final 

listing 2.10A ensures that there is a 

significant sensorineural component to 

the hearing loss. Sensorineural hearing 

loss results from permanent damage to 

the inner ear or to the nerve pathways 

from the inner ear to the brain. Persons 

with the degree of sensorineural hearing 

loss required in final listing 2.10A do 

not usually obtain significant 

improvement with hearing aids. We also 

believe that an AIA is unnecessary to 

detect deception because the 

professionals referenced in final 

2.00B1c who may conduct audiometric 

testing are trained to detect whether a 

person is feigning hearing loss and to 

recognize test results that may suggest 

such deception. We agreed with the 

second commenter that we do not need 

an AIA to determine disability for 

children under age 5 and did not 

include it in final 102.00B2c(i), 

102.00B2d(i), and 102.00B2e(i). We 

proposed to require an AIA for these 

children to identify conditions that 

would prevent valid audiometric 

testing. However, the otoscopic 

examination we require will detect any 

conditions revealed by AIA. Since we 

removed the requirement for an AIA for 

children under age 5 we are not 

adopting the third comment. 

Two commenters recommended that 

we require audiologists who conduct 

audiometric testing for us to complete 

hearing checklists recommended in a 

2005 National Research Council report 

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Federal Register / Vol. 75, No. 105 / Wednesday, June 2, 2010 / Rules and Regulations 30697 

6National Research Council (NRC): Committee on 

Disability Determination for Individuals with 

Hearing Impairments. (2005). Hearing Loss: 

Determining Eligibility for Social Security Benefits. 

Action Recommendation 4–5. (Complete citation at 

73 FR at 47110.) 7See, for example, Program Operations Manual 

Systems (POMS) DI 25205.015, available at: 

https://secure.ssa.gov/apps10/poms.nsf/lnx/ 

0425205015!opendocument. 

8SSR 09–2p: Title XVI: Determining Childhood 

Disability—Documenting a Child’s ImpairmentRelated Limitations, 74 FR 7625 (2009), also 

available at: http://www.socialsecurity.gov/ 

OP_Home/rulings/ssi/02/SSR2009–02-ssi-02.html. 

9 73 FR 47107 (2008). 

10 70 FR 19353 (2005). 

(‘‘NRC report’’).6 The commenters said 

the checklists would ensure the quality 

of the data collected and provide useful 

information for evaluating disability at 

later steps in the sequential evaluation 

process. We considered these checklists 

at the time we developed the proposed 

rules and determined we did not need 

them. We believe we have adequately 

specified in these final rules the 

information we need to evaluate 

whether a person’s hearing impairment 

meets or medically equals one of the 

hearing listings. Finally, we also specify 

qualifications for audiologists that will 

ensure the quality of the data they 

collect. 

Issues Specific to Audiometric Testing 

of Children 

One commenter recommended that 

we should strongly prefer audiometric 

testing by an experienced pediatric 

audiologist when evaluating hearing 

loss in children. While we generally 

agree with the comment, we did not 

make any changes in the final rules 

because we do not believe it is 

necessary to include this guidance in 

the regulations. We have a general 

preference for obtaining evidence from 

appropriate specialists in childhood 

cases, and we believe that our internal 

operating instructions are sufficient for 

this purpose.7

One commenter recommended that 

we reference the American Academy of 

Audiology’s pediatric protocols for 

audiological evaluation of children. We 

did not adopt the comment because we 

believe the audiometric testing we 

require in these final rules is sufficient 

for evaluating hearing loss in children. 

Two commenters wrote about our 

statement in proposed 102.00B2a that 

we would not purchase physiologic 

hearing tests for children and would 

instead consider ‘‘other evidence’’ when 

such testing was not done or when it 

was done, we could not obtain the 

results. One of these commenters 

requested clarification of what ‘‘other 

evidence’’ we would consider and asked 

whether we may purchase physiologic 

testing that does not require sedation. 

The other commenter stated that 

physiologic testing would be necessary 

for infants, some toddlers, and some 

children with certain developmental 

disorders that preclude participation in 

behavioral testing. This commenter also 

recommended that we should use all 

information gathered during testing to 

evaluate functioning if the impairment 

does not meet or medically equal a 

listing. 

When we evaluated these comments, 

we determined that our guidance in 

proposed 102.00B2a was unclear and 

contrary to our intent because it implied 

that a hearing impairment could meet 

listing 102.10 without physiological or 

behavioral testing. The proposed 

guidance was not for determining 

whether hearing loss met a listing; we 

intended it to apply only to evaluations 

of medical and functional equivalence. 

To clarify that listing 102.10 requires 

physiologic testing, we removed the 

word ‘‘generally’’ from proposed 

102.00B2a and removed the proposed 

guidance indicating that we will 

evaluate a person’s hearing loss based 

on other evidence in the case record. 

We also removed unnecessary and 

potentially confusing language in 

102.00B2a. In the proposed rules, we 

said that we would use other evidence 

when physiologic testing had not been 

done or we could not obtain the results 

of testing that had been done. However, 

there was a third possibility: We have 

the results of physiologic testing, but we 

need new testing. Since our intent was 

only to say that we would not purchase 

physiologic testing, we simplified the 

rule to say just that. This rule applies 

regardless of whether such testing 

requires sedation. 

We did not adopt the comment that 

recommended we use all information 

gathered during testing to evaluate 

functioning if the impairment does not 

meet or medically equal a listing. We 

already use all of the relevant 

information we gather in connection 

with testing when we determine 

whether a child’s impairment(s) 

functionally equals the listings. We have 

other rules that explain how we 

consider medical and other evidence 

when we evaluate a child’s functioning. 

See §§ 416.924a and 416.926a, and SSR 

09–2p.8

One commenter recommended that 

we require otoacoustic emissions (OAE) 

testing in addition to the physiologic 

testing we required in proposed 

102.00B2c(i) for children from birth to 

the attainment of age 6 months to 

identify children with auditory 

dyssynchrony or auditory neuropathy. 

Another commenter pointed out that, 

when testing indicates that an infant 

may have auditory neuropathy (that is, 

normal OAE but no response on 

Auditory Brainstem Response (ABR) 

testing), we should presume the child 

disabled until it is possible to perform 

age-appropriate behavioral testing, 

generally by age 6 months. We did not 

adopt these comments. Test results 

showing normal OAE, but no response 

on ABR testing are uncommon and 

nearly always involve children who 

have other impairments that we would 

find disabling under the criteria of a 

listing in another body system. We will 

evaluate the small number of children 

who do not have such other 

impairments on an individual basis. If 

we cannot make a fully favorable 

determination in those cases, we will 

defer them until the child is age 6 

months and can participate in 

behavioral testing. 

One commenter suggested that it 

would be helpful to list some of the 

other types of physiologic testing—such 

as Brainstem Auditory Evoked Response 

(BAER)—in addition to ABR testing. We 

did not adopt the recommendation. We 

cite only the ABR because, as the 

commenter noted, ABR testing is the 

most commonly used physiologic test 

and is the one that adjudicators are most 

likely to see. 

One commenter recommended that 

we determine the pure tone air and bone 

conduction thresholds in children by 

testing at 3000 Hz in addition to 500, 

1000, 2000, and 4000 Hz. We did not 

adopt the comment because, as we 

explained in the NPRM,9 our 

adjudicative experience has shown that 

testing is often not done at 3000 Hz. 

Moreover, several commenters on the 

April 13, 2005, Advance Notice of 

Proposed Rulemaking 10 recommended 

that we remove the current requirement 

to test at 3000 Hz. We agreed with those 

commenters and believe the findings we 

require in these final rules are adequate 

for our purposes. 

One commenter noted that we 

provided in proposed 102.00B2g that we 

can consider normal results from 

hearing screening tests, such as OAE, to 

determine that a child’s hearing loss is 

not ‘‘severe’’ when these test results are 

consistent with the other evidence in 

the case record. The commenter asked 

whether we could use normal results 

from a pure tone screen by a speechlanguage pathologist in the same way. 

We can use such evidence in the same 

way as other screening tests. In response 

to this comment, we revised the 

guidance in final 102.00B2g to include 

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11 73 FR at 47111. 

12 73 FR at 47106. 

13 73 FR at 47105–06. 

pure tone testing as a type of screening 

test. 

Validity of Audiometric Testing 

One commenter commented on our 

proposed requirements for otoscopic 

examination together with pure tone 

average and SRT testing to document 

the validity of audiometry and 

suggested that we instead require only 

a statement of reliability, validity, or 

inter-test reliability. The commenter 

believed that such a statement would 

also cover issues such as patient 

cooperation and the attention of a child. 

We partially adopted the comment: 

We do not consider test results in 

isolation. Therefore, in response to this 

comment and another comment we 

describe later, we added a sentence in 

final 2.00B1a and 102.00B1a stating that 

we will consider your test scores 

together with any other relevant 

information we have about your 

hearing, including information from 

outside of the test setting. This is our 

basic policy for considering any test 

results. 

In final 2.00B2b and 102.00B2b, we 

provide that the person who performs 

the audiometry should report on any 

factors in addition to the factors 

observable on otoscopy that can affect 

the interpretation of the test results. As 

this commenter suggested, we used 

patient cooperation as an example in the 

adult rule and a child’s ability to 

maintain attention as an example in the 

childhood rule. It is common practice to 

report such observations, so the 

provisions in the final rules will not be 

an additional burden on our CE 

providers. We also expect to find such 

observations in existing reports of 

audiometric testing. 

We did not adopt the general 

statement the commenter suggested, 

because general statements about 

reliability and validity are too vague to 

assure us that the results of audiometric 

testing are reliable and valid. 

One commenter asked whether 

adjudicators must reject the results of all 

audiometric testing when the person’s 

SRT is not within 10 dB of the average 

pure tone air conduction thresholds at 

500, 1000, and 2000 Hz. In proposed 

2.00B2d and 102.00B2f(iii), we 

indicated only that the reason for such 

a discrepancy should be documented. 

Another commenter suggested that we 

highlight or strengthen the guidance in 

these sections. In response to these 

comments, we revised the guidance in 

final 2.00B2d and 102.00B2f(iii) to 

explain that, if we cannot determine a 

medical basis for the discrepancy we 

will not use the results of the testing to 

determine that a person’s hearing loss 

meets the listing. We also clarified that 

we require an explanation of the 

discrepancy, by using ‘‘must’’ in the final 

rule instead of the proposed ‘‘should.’’ 

Two commenters recommended that 

we require a check of the cochlear 

implant before testing to ensure that it 

is turned on and functioning properly. 

One of these commenters also 

recommended that we require 

corroborating behavioral evidence that 

correlates with the Hearing in Noise 

Test (HINT) results to ensure the 

validity and reliability of the testing. In 

the NPRM, we said that word 

recognition testing ‘‘must be conducted 

in quiet in a sound field with your 

implant adjusted to your normal 

settings.’’ 11 We intended this 

requirement to include verification that 

the person’s cochlear implant is turned 

on and functioning properly. However, 

to be clearer, we added in final 2.00B3b 

and 102.003B3b a requirement that the 

person’s implant must be functioning 

properly. In response to the second 

comment and another comment we have 

already described, we added sentences 

in final 2.00B1a and 102.00B1a 

providing that we consider test results 

together with all relevant evidence in 

the case record. 

Issues Regarding Audiometric Testing of 

Persons Who Are Not Fluent in English 

Several commenters responded to our 

request in the NPRM for suggestions 

about other methods we could use to 

evaluate the word recognition ability of 

persons who are not fluent in English.12

One commenter noted that our proposed 

rules did not recognize recorded speech 

testing in foreign languages. As we have 

already noted in response to an earlier 

comment, we accept word recognition 

testing using recorded material, and that 

includes recorded material in a foreign 

language. While considering this 

comment, however, we noticed that we 

inadvertently omitted requirements for 

word recognition testing when a person 

is not fluent in English from the 

proposed rules, although we included 

the requirements in the preamble to the 

NPRM.13 We have included the omitted 

text in the final rules. As in the 

preamble to the NPRM, the final rules 

explain that testing of a person who is 

not fluent in English should be 

conducted using an appropriate word 

list for the language in which the person 

is most fluent, and the person 

conducting the testing should be fluent 

in the language used for the test. 

Another commenter suggested that we 

consider a person’s contact with treating 

sources, other health care professionals, 

and other third parties, such as past 

employers, to see whether the person is 

able to communicate with them either 

directly or through the use of an 

interpreter. We did not add this 

guidance. In some cases, the persons 

referenced by the commenter are 

already included in the clause ‘‘other 

persons who speak the language in 

which you are the most fluent’’ in final 

2.00B4 and 102.00B4. In other cases, we 

do not need to consider the person’s 

ability to communicate with such 

persons when we evaluate word 

recognition ability under the final 

listings. 

A third commenter approved of our 

guidance in proposed 2.00B4 and 

102.00B4 regarding word recognition 

testing for a person who is not fluent in 

English, but thought it might be difficult 

to obtain the testing we need. We 

understand this concern and to address 

it include the guidance in final 2.00B4 

and 102.00B4 concerning medical 

equivalence. 

Another commenter recommended 

that we include physiologic testing, 

such as frequency-specific evoked 

potentials, for persons who do not speak 

English. We did not adopt this 

suggestion because this testing does not 

test word recognition ability. 

One commenter noted that, while the 

HINT is available in 12 languages, our 

requirement that a person who performs 

audiometric testing ‘‘must be fluent’’ in 

the claimant’s native language would 

create a problem for obtaining the test. 

As we explained above, the person 

administering the test ‘‘should’’ be fluent 

in the language. We do not have an 

absolute rule that the person who 

administers the test must be fluent in 

the language, although that is our 

preference. We also provide that the 

inability to measure a person’s word 

recognition ability means only that his 

or her hearing impairment cannot meet 

final listing 2.11B or 102.11B. If a 

person with a severe impairment(s) has 

difficulty understanding words in the 

language in which he or she is most 

fluent and we are unable to measure his 

or her word recognition ability, we will 

consider whether the degree of 

difficulty (either alone or in 

combination with another 

impairment(s)) medically equals final 

listing 2.11B or 102.11B. If not, we 

consider the person’s difficulty 

understanding words when we assess 

residual functional capacity for adults 

or functional equivalence for children. 

One commenter suggested that we 

should acknowledge in the childhood 

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Federal Register / Vol. 75, No. 105 / Wednesday, June 2, 2010 / Rules and Regulations 30699 

14SSR 98–1p: ‘‘Policy Interpretation Ruling: Title 

XVI: Determining Medical Equivalence in 

Childhood Disability Claims When a Child Has 

Marked Limitations in Cognition and Speech,’’ 63 

FR 15248 (1998), also available at: http:// 

www.socialsecurity.gov/OP_Home/rulings/ssi/02/ 

SSR98-01-ssi-02.html. 

15American Psychiatric Association, Diagnostic 

and Statistical Manual of Mental Disorders, Fourth 

Edition, Text Revision (DSM–IV–TR). Washington, 

DC (2000); World Health Organization, Division of 

Mental Health and Substance Abuse, ICD–10 Guide 

for Mental Retardation, Geneva (1996), available at: 

http://www.who.int/mental_health/media/en/ 

69.pdf. See also: http://apps.who.int/classifications/ 

apps/icd/icd10online/. 

listings that the ‘‘speech education and 

articulation’’ of children in bilingual or 

multilingual environments differs from 

those of children in monolingual 

environments. The commenter believed 

that most speech tests conducted for 

children who are bilingual or 

multilingual would be invalid. We did 

not adopt this comment. We agree that 

children who are bilingual or 

multilingual do not always develop in 

the same way as children who are 

monolingual, but we do not agree that 

all speech testing of such children is 

invalid. Moreover, we do not rely on 

test scores alone, but consider all of the 

relevant evidence when we evaluate a 

child’s functioning. See 

§ 416.924a(a)(1)(ii). 

Listing Criteria for Hearing Loss Not 

Treated With Cochlear Implantation 

We received several comments about 

the criteria in proposed listings 2.10 and 

102.10. One commenter said that we 

should change the criteria in listings 

2.10B and 102.10B2 from a word 

recognition score of 40 percent or less 

in the better ear to a score of 70 percent 

or less. Another commenter noted that 

our proposed listings did not address 

the variability in word recognition 

scores, that is, that a score higher than 

40 percent might not be statistically 

different from a score of 40 percent or 

less. Some commenters also 

recommended various changes to listing 

102.10A. They recommended that we: 

• Use the average air conduction 

threshold criteria in Table 7–2 of the 

NRC report; 

• Use the speech and language 

criteria in Tables 7–2 and 7–3 of the 

NRC report; 

• Change the criterion for children 

from birth to age 5 in proposed listing 

102.10A to 25–30 dB, and use the same 

criterion for children ages 5–12; and 

• Use an unaided air conduction 

threshold of 50 dB for children ages 12– 

18. 

We did not adopt any of these 

suggestions because we believe they 

would require us to find some adults 

and children who do not have listinglevel impairments disabled under the 

listings. We set the levels of hearing loss 

in these final rules for adults and 

children at levels that reflect very 

serious hearing loss; we use the listings 

only to deem persons disabled without 

considering any other factors that may 

contribute to their inability to work or 

to function age-appropriately in the case 

of children. It is important to remember, 

however, that we do not deny benefits 

to anyone solely because his or her 

impairment(s) does not meet a listing. 

We may still find that a person’s 

impairment(s) is disabling based on 

medical equivalence or based on an 

individualized assessment when we 

evaluate an adult’s residual functional 

capacity, age, education, and work 

experience, or functional equivalence in 

children. 

One commenter requested that we 

include listing criteria for adults with 

precipitous hearing loss who have an 

impairment(s) that does not meet the 

pure tone criteria in listing 2.10A but 

who have significant limitations in the 

ability to discriminate words. The 

commenter also requested that we 

include criteria for children over age 5 

who have an unaided hearing threshold 

of 50 dB in the better ear and normal 

speech and language development but 

do not have the ability to listen 

accurately in distant and noisechallenged situations. The commenter 

suggested we use the HINT or HINT–C 

for children to evaluate these persons. 

We did not adopt these comments 

because we had already proposed 

criteria for determining when a 

limitation in word recognition ability is 

of listing-level severity in listings 2.10B 

and 102.10B2. The final rules, which are 

the same as the proposed rules, require 

results from a phonetically balanced 

monosyllabic word list for persons who 

do not have cochlear implants, 

regardless of the type or level of their 

hearing loss. We specify this type of test 

because it is the one most often used in 

clinical practice. 

One commenter recommended that 

we consider first-time hearing aid users 

under a disability for 1 year because 

they may need a period of rehabilitation 

and training to use the aid effectively. 

This commenter also recommended a 1- 

year period of disability for persons 

with sudden hearing loss, rapidly 

deteriorating hearing, or fluctuating 

hearing because they may need time to 

adjust to the challenges of 

communication. We did not adopt these 

recommendations because some persons 

with the conditions described by the 

commenter will not have impairments 

that meet our definition of disability, 

including the 12-month duration 

requirement. 

One commenter noted that visual 

reinforcement audiometry (VRA), which 

we indicate is the usual method of 

testing for children from age 6 months 

to the attainment of age 2, is only an 

estimate of the hearing threshold. The 

commenter recommended that we raise 

the average air conduction threshold in 

proposed listing 102.10A to ensure that 

children in this age range are truly 

disabled. While we acknowledge that 

VRA provides only an estimate of 

hearing loss, it is the most reliable 

method for testing children from age 6 

months to the attainment of age 2, and 

we believe that—even as an estimate— 

an average air conduction threshold of 

50 dB or greater in the better ear does 

indicate listing-level severity in these 

young children. 

One commenter noted an 

inconsistency between our definition of 

‘‘marked’’ limitation in speech in 

proposed 102.00B5a and our definition 

of the term in SSR 98–1p.14 The 

commenter recommended that we use 

unintelligibility on the first attempt 67 

percent (two-thirds) of the time as the 

threshold for a marked limitation 

instead of 60 percent. We adopted the 

comment by changing the rule to ‘‘at 

least 50 percent (half) of the time but no 

more than 67 percent (two-thirds) of the 

time.’’ This is the same range that we 

use in our definitions of ‘‘marked’’ in 

SSR 98–1p and other rules, that is, onehalf to two-thirds. 

One commenter recommended that 

we consider children with ‘‘marked 

mental retardation’’ who cannot be 

evaluated for speech or language to be 

disabled when their impairment meets 

the hearing criterion alone. We were not 

certain what the commenter intended by 

‘‘marked mental retardation’’ because the 

American Psychiatric Association (APA) 

and World Health Organization (WHO) 

currently use the terms ‘‘mild,’’ 

‘‘moderate,’’ ‘‘severe,’’ and ‘‘profound’’ to 

describe the levels of the disorder.15 We 

assume that the commenter meant at 

least ‘‘moderate’’ mental retardation, 

which in the APA’s definition is mental 

retardation generally with an IQ of 35– 

55; the WHO’s is similar, with an IQ of 

35–49. In either case, the mental 

retardation by itself meets listing 

112.05C in the mental disorders listings, 

and depending on the facts of the case, 

may meet listing 112.05B. It is not 

necessary for a child to also have 

hearing loss to qualify under either of 

those listings. 

Listing Criteria for Hearing Loss Treated 

With Cochlear Implantation 

We received several comments about 

our proposal to find disability for 1 year 

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16Like the proposed rule, final listing 102.11A 

provides for a finding of disability after cochlear 

implantation until age 5 or for 1 year after 

implantation ‘‘whichever is later.’’ We will find that 

some children are disabled under this listing for 

more than 1 year. 

17See sections 223(f) and 1614(a)(4) of the Act, 

and §§ 404.1594, 416.994, and 416.994a of our 

regulations. 

following cochlear implantation under 

listing 2.11A and, for some children, 

listing 102.11A.16 The commenters said 

that the 1-year period was arbitrary and 

that it may be insufficient because it 

does not account for variation in 

treatment outcomes or allow for 

maximal improvement. The commenters 

recommended that we extend the period 

by various amounts of time ranging from 

18 months to 3 years. Another 

commenter suggested that we provide 

the option of extending the period of 

disability past 1 year as necessary, 

particularly for persons who also have 

vision impairments and may require a 

longer period of adjustment because of 

their multiple impairments. 

We did not adopt these comments. 

While some persons will still have 

listing-level impairments 1 year after 

implantation, many will have improved, 

so we must reexamine their status to see 

whether they remain disabled. Our rule 

is not arbitrary: most therapy programs 

following cochlear implantation involve 

a period of rehabilitation and training 

for about 1 year. 

Moreover, the 1-year rule does not 

mean that disability automatically ends 

after 1 year. Under the Act and our 

regulations, we generally cannot find 

that a person’s disability has ended 

unless his or her impairment has 

medically improved and the person is 

no longer disabled.17 After 1 year, we 

must consider whether the 

impairment(s) is disabling under the 

criteria in listing 2.11B or 102.11B, or if 

not, under other listings or our other 

disability criteria. 

Two commenters sent us questions 

about various adjudication scenarios 

involving cochlear implants. With one 

exception, we did not add more detailed 

guidance to the rules to address these 

situations because they are uncommon 

and we can address them in training 

and other instructions. We did clarify 

that we count the 1-year period for 

which we presume disability from the 

date of the initial implantation 

procedure when a person has had more 

than one implant. This rule will apply 

regardless of whether the person had an 

implant in the other ear or replacement 

of the initial implant. See final 2.00B3a 

and 102.00B3a and final listings 2.11 

and 102.11. 

Two commenters were concerned 

about our requirement in proposed 

listings 2.11B and 102.11B that we use 

the HINT or HINT–C to evaluate a 

person’s hearing loss after cochlear 

implantation. The commenters 

indicated that we would have difficulty 

obtaining a HINT or HINT–C because 

most audiologists do not have the test. 

One commenter was concerned that 

residents of rural areas might be 

disadvantaged because these tests are 

available primarily at medical centers 

that perform cochlear implants. The 

second commenter, who acknowledged 

that the HINT is the accepted standard 

for assessing hearing outcome after 

cochlear implantation, indicated that 

the original CD version of this test was 

noted to have limitations and has been 

replaced with computerized software 

versions (such as the HINT for Windows 

and the HINT®Pro) that contain 

improvements and enhancements. The 

commenter asked what version of the 

HINT we would accept. The commenter 

further noted that literature from the 

manufacturer of the HINT®Pro indicates 

that this test is normed for anyone who 

reads at a first grade level and for 

children as young as age 6. The 

commenter asked whether this test 

could also be used for children between 

the ages of 5 and 6 and for adults who 

have literacy problems. The commenter 

also stated that other speech-in-noise 

tests are used more frequently and asked 

whether we would use the results of 

those other tests. 

We do not share the commenters’ 

concerns about the availability of the 

HINT or HINT–C. As one of the 

commenters noted, the HINT is the 

accepted standard for assessing hearing 

outcome after cochlear implantation, 

and we believe this testing is likely to 

be in the evidence we obtain from a 

person’s medical sources. If not, or if we 

need more recent testing, we believe 

that in most instances we will be able 

to purchase it from these sources or 

from audiologists who do have the 

HINT or HINT–C. We acknowledge 

there may be a few cases in which we 

will not be able to get testing for a 

resident of a rural area. In those cases, 

we will use other evidence to determine 

whether the person is disabled. 

In response to the concerns raised by 

the second commenter, we are 

providing in final 2.00B3b and 

102.00B3b that we will use ‘‘any 

version’’ of the HINT or, for children, 

any age-appropriate version of the HINT 

or HINT–C. We will use results only 

from the HINT or HINT–C to determine 

that an impairment meets one of the 

final listings. We can use results from 

other tests to determine whether the 

impairment(s) medically equals a listing 

or to assess residual functional capacity 

in adults or functional equivalence in 

children. With respect to the age and 

literacy issues, we can use versions of 

the HINT that have been normed for 

children as young as age 6 to test 

children between age 5 and 6 and, when 

appropriate, to test adults with literacy 

problems. 

One commenter believed that we 

should use the same word recognition 

tests and test-score criteria to evaluate 

hearing loss in persons who have 

cochlear implants as we use to evaluate 

hearing loss in persons who have 

hearing aids. We did not adopt the 

comment because the final listings 

reflect the way that persons are 

ordinarily tested. Persons who do not 

have cochlear implants are ordinarily 

tested with phonetically balanced 

monosyllabic word lists. The HINT is 

the accepted test for assessing persons 

with cochlear implants. The HINT is a 

sentence test, and persons generally 

have higher word recognition scores 

when tested with a sentence test 

because sentences provide context for 

the words used. Therefore, we must 

require a higher word recognition score 

for cochlear implant users. 

Terminology Issues 

One commenter recommended that 

we use the term ‘‘audiometric 

evaluation’’ rather than ‘‘audiometric 

testing’’ throughout these final rules to 

reflect the full scope of the audiologist’s 

identification and assessment of hearing 

disorders. We did not adopt the 

comment. While we recognize that the 

scope of an audiologist’s practice is not 

limited to audiometric testing, the term 

‘‘audiometric testing’’ describes the type 

of evidence we require from 

audiologists under these listings. 

Two commenters recommended that 

we consistently use the abbreviation dB 

HL (decibel hearing level) throughout 

the final rules wherever we used the 

abbreviation dB (decibel) in the 

proposed rules. We did not adopt the 

recommendation because, in these final 

rules, the ‘‘dB HL’’ designation is 

relevant only to word recognition 

testing for persons with cochlear 

implants. The sound used to test 

persons with cochlear implants can be 

delivered by two methods, referred to as 

‘‘HL’’ and ‘‘SPL’’ (sound pressure level). 

Both of these methods are expressed in 

dB, but a specific dB HL is not the same 

level of loudness as the same dB SPL. 

To ensure that we use a consistent 

standard to evaluate every person with 

a cochlear implant, we use the 

abbreviation ‘‘dB HL’’ only in final 

2.00B3b and 102.00B3b. 

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18 73 FR 47106 (2008). 

Hearing Loss in Combination With 

Another Impairment(s) 

One commenter wrote to us about 

persons with hearing loss together with 

other medical conditions, such as visual 

or cognitive disorders, that compromise 

their ability to compensate for their 

hearing loss. The commenter said that 

some of these persons have greater 

difficulty functioning than persons with 

worse hearing loss but no other 

impairments. The commenter believed 

that such persons may not be disabled 

under our listings, but would still have 

difficulty responding to the 

communication challenges of daily 

living, and that we should consider 

them disabled. This commenter was 

also concerned that some persons with 

hearing loss whose impairments do not 

meet the criteria of the final listings may 

have difficulty functioning and should 

also be considered disabled. 

In these final rules, we include 

revisions only to our listings for hearing 

loss. We have other listings and other 

rules that we use to find many persons 

disabled, including persons like those 

described by the commenter. In 

addition, our regulations require us to 

consider the combined impact of 

multiple impairments throughout the 

disability determination process. See 

§§ 404.1523, 416.923, and 416.924. 

Some persons with a combination of 

hearing loss and other impairments will 

have impairments that meet or 

medically equal listings in other body 

systems. Others may be found disabled 

at a later step of the sequential 

evaluation process. 

Accounting for Improvement With 

Hearing Aids 

While most commenters agreed with 

our proposal to remove the requirement 

for testing with hearing aids, one 

commenter believed that we should not 

determine disability without accounting 

for any improvement in functioning that 

a person may derive from the use of 

such aids. Another commenter 

suggested that we include some 

functional criteria in the listings to 

account for persons who have 

individualized hearing aids that 

improve their functioning. 

As we explained in the NPRM,18 we 

determined that persons with the level 

of hearing loss specified in the listings 

do not usually obtain significant 

improvement in their ability to hear and 

communicate with the use of hearing 

aids. In other words, the severity criteria 

we provide in the final listings make 

testing with a hearing aid unnecessary. 

Therefore, we believe that it is 

appropriate to eliminate the 

requirement for aided testing and that it 

is not necessary to add functional 

criteria to the listings for the evaluation 

of persons with listing-level hearing loss 

who have individualized hearing aids. 

Need for Listings for Hearing Loss 

Citing testimony from our 2005 policy 

conference regarding the number of 

persons with deafness who work, one 

commenter believed that we should not 

presume that all persons whose hearing 

impairments meet the criteria in these 

listings are disabled. The commenter 

indicated that we should document that 

the proposed rules correctly identify 

persons who meet the definition of 

disability in the Act and our regulations. 

When we developed our proposed rules 

for evaluating claims involving hearing 

loss, we consulted with some of the 

most renowned experts in the field of 

hearing disorders. We also received 

comments from experts who supported 

our proposed rules. Based on this 

information, we believe it is appropriate 

to presume disability in persons whose 

hearing impairments meet the criteria in 

these final rules. In addition, the 

testimony from our policy conference 

regarding persons with deafness who 

work did not fully address the issue of 

work independence (for example, 

special accommodations) and other 

factors (such as levels of earnings); 

therefore, the testimony was not 

specifically relevant to the issue in this 

comment. Moreover, when persons with 

listing-level hearing loss work at the 

substantial gainful activity level, we 

find them not disabled at the first step 

of the sequential evaluation process. 

Other Changes From the NPRM 

We made a number of nonsubstantive, 

editorial corrections and changes in the 

final rules from the language of the 

NPRM, such as changing some 

sentences from the passive into the 

active voice. 

What is our authority to make rules and 

set procedures for determining whether 

a person is disabled under our statutory 

definition? 

Under the Act, we have full power 

and authority to make rules and 

regulations and to establish necessary 

and appropriate procedures to carry out 

such provisions. Sections 205(a), 

702(a)(5), and 1631(d)(1). 

Regulatory Procedures 

Executive Order 12866 

We have consulted with the Office of 

Management and Budget (OMB) and 

determined that these final rules meet 

the requirements for a significant 

regulatory action under Executive Order 

12866 and were subject to OMB review. 

Regulatory Flexibility Act 

We certify that these final rules have 

no significant economic impact on a 

substantial number of small entities 

because they affect only individuals. 

Therefore, a regulatory flexibility 

analysis was 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. 

(Catalog of Federal Domestic Assistance 

Program Nos. 96.001, Social SecurityDisability Insurance; 96.002, Social SecurityRetirement 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. 

Michael J. Astrue, 

Commissioner of Social Security. 

■ For the reasons set out in the 

preamble, we amend appendix 1 to 

subpart P of 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– ) 

■ 1. The authority citation for subpart P 

of part 404 continues to read as follows: 

Authority: Secs. 202, 205(a), (b), and (d)– 

(h), 216(i), 221(a) and (i), 222(c), 223, 225, 

and 702(a)(5) of the Social Security Act (42 

U.S.C. 402, 405(a), (b), and (d)–(h), 416(i), 

421(a) and (i), 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). 

Appendix 1 to Subpart P of Part 404— 

[Amended] 

■ 2. Amend appendix 1 to subpart P of 

part 404 as follows: 

■ a. Revise item 3 of the introductory 

text before part A of appendix 1. 

■ b. Revise section 2.00B of part A of 

appendix 1. 

■ c. Redesignate section 2.00C of part A 

of appendix 1 as section 2.00E. 

■ d. Redesignate section 2.00B2 of part 

A of appendix 1 as section 2.00C, revise 

the heading, and designate the 

undesignated paragraphs as sections 

2.00C1, 2.00C2, and 2.00C3. 

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30702 Federal Register / Vol. 75, No. 105 / Wednesday, June 2, 2010 / Rules and Regulations 

■ e. Redesignate section 2.00B3 of part 

A of appendix 1 as section 2.00D. 

■ f. Remove listing 2.08 of part A of 

appendix 1. 

■ g. Add listings 2.10 and 2.11 to part 

A of appendix 1. 

■ h. Revise section 102.00B of part B of 

appendix 1. 

■ i. Remove listing 102.08 of part B of 

appendix 1. 

■ j. Add listings 102.10 and 102.11 to 

part B of appendix 1. 

The revised text is set forth as follows: 

Appendix 1 to Subpart P of Part 404— 

Listing of Impairments 

* * * * * 

3. Special Senses and Speech (2.00 and 

102.00): August 3, 2015. 

* * * * * 

Part A 

* * * * * 

2.00 SPECIAL SENSES AND SPEECH 

* * * * * 

B. How do we evaluate hearing loss? 

1. What evidence do we need? 

a. We need evidence showing that you 

have a medically determinable impairment 

that causes your hearing loss and 

audiometric measurements of the severity of 

your hearing loss. We generally require both 

a complete otologic examination and 

audiometric testing to establish that you have 

a medically determinable impairment that 

causes your hearing loss. You should have 

this audiometric testing within 2 months of 

the complete otologic examination. Once we 

have evidence that you have a medically 

determinable impairment, we can use the 

results of later audiometric testing to assess 

the severity of your hearing loss without 

another complete otologic examination. We 

will consider your test scores together with 

any other relevant information we have about 

your hearing, including information from 

outside of the test setting. 

b. The complete otologic examination must 

be performed by a licensed physician 

(medical or osteopathic doctor). It must 

include your medical history, your 

description of how your hearing loss affects 

you, and the physician’s description of the 

appearance of the external ears (pinnae and 

external ear canals), evaluation of the 

tympanic membranes, and assessment of any 

middle ear abnormalities. 

c. Audiometric testing must be performed 

by, or under the direct supervision of, an 

otolaryngologist or by an audiologist 

qualified to perform such tests. We consider 

an audiologist to be qualified if he or she is 

currently and fully licensed or registered as 

a clinical audiologist by the State or U.S. 

territory in which he or she practices. If no 

licensure or registration is available, the 

audiologist must be currently certified by the 

American Board of Audiology or have a 

Certificate of Clinical Competence (CCC–A) 

from the American Speech-Language-Hearing 

Association (ASHA). 

2. What audiometric testing do we need when 

you do not have a cochlear implant? 

a. We generally need pure tone air 

conduction and bone conduction testing, 

speech reception threshold (SRT) testing 

(also referred to as ‘‘spondee threshold’’ or 

‘‘ST’’ testing), and word recognition testing 

(also referred to as ‘‘word discrimination’’ or 

‘‘speech discrimination’’ testing). This testing 

must be conducted in a sound-treated booth 

or room and must be in accordance with the 

most recently published standards of the 

American National Standards Institute 

(ANSI). Each ear must be tested separately. 

b. You must not wear hearing aids during 

the testing. Additionally, a person described 

in 2.00B1c must perform an otoscopic 

examination immediately before the 

audiometric testing. (An otoscopic 

examination provides a description of the 

appearance of your external ear canals and an 

evaluation of the tympanic membranes. In 

these rules, we use the term to include 

otoscopic examinations performed by 

physicians and otoscopic inspections 

performed by audiologists and others.) The 

otoscopic examination must show that there 

are no conditions that would prevent valid 

audiometric testing, such as fluid in the ear, 

ear infection, or obstruction in an ear canal. 

The person performing the test should also 

report on any other factors, such as your 

cooperation with the test, that can affect the 

interpretation of the test results. 

c. To determine whether your hearing loss 

meets the air and bone conduction criteria in 

2.10A, we will average your air and bone 

conduction hearing thresholds at 500, 1000, 

and 2000 Hertz (Hz). If you do not have a 

response at a particular frequency, we will 

use a threshold of 5 decibels (dB) over the 

limit of the audiometer. 

d. The SRT is the minimum dB level 

required for you to recognize 50 percent of 

the words on a standard list of spondee 

words. (Spondee words are two-syllable 

words that have equal stress on each 

syllable.) The SRT is usually within 10 dB of 

the average pure tone air conduction hearing 

thresholds at 500, 1000, and 2000 Hz. If the 

SRT is not within 10 dB of the average pure 

tone air conduction threshold, the reason for 

the discrepancy must be documented. If we 

cannot determine that there is a medical 

basis for the discrepancy, we will not use the 

results of the testing to determine whether 

your hearing loss meets a listing. 

e. Word recognition testing determines 

your ability to recognize a standardized list 

of phonetically balanced monosyllabic words 

in the absence of any visual cues. This testing 

must be performed in quiet. The list may be 

recorded or presented live, but in either case 

the words should be presented at a level of 

amplification that will measure your 

maximum ability to discriminate words, 

usually 35 to 40 dB above your SRT. 

However, the amplification level used in the 

testing must be medically appropriate, and 

you must be able to tolerate it. If you cannot 

be tested at 35 to 40 dB above your SRT, the 

person who performs the test should report 

your word recognition testing score at your 

highest comfortable level of amplification. 

3. What audiometric testing do we need when 

you have a cochlear implant? 

a. If you have a cochlear implant, we will 

consider you to be disabled until 1 year after 

initial implantation. 

b. After that period, we need word 

recognition testing performed with any 

version of the Hearing in Noise Test (HINT) 

to determine whether your impairment meets 

2.11B. This testing must be conducted in 

quiet in a sound field. Your implant must be 

functioning properly and adjusted to your 

normal settings. The sentences should be 

presented at 60 dB HL (Hearing Level) and 

without any visual cues. 

4. How do we evaluate your word recognition 

ability if you are not fluent in English? 

If you are not fluent in English, you should 

have word recognition testing using an 

appropriate word list for the language in 

which you are most fluent. The person 

conducting the test should be fluent in the 

language used for the test. If there is no 

appropriate word list or no person who is 

fluent in the language and qualified to 

perform the test, it may not be possible to 

measure your word recognition ability. If 

your word recognition ability cannot be 

measured, your hearing loss cannot meet 

2.10B or 2.11B. Instead, we will consider the 

facts of your case to determine whether you 

have difficulty understanding words in the 

language in which you are most fluent, and 

if so, whether that degree of difficulty 

medically equals 2.10B or 2.11B. For 

example, we will consider how you interact 

with family members, interpreters, and other 

persons who speak the language in which 

you are most fluent. 

C. How do we evaluate vertigo associated 

with disturbances of labyrinthine-vestibular 

function, including Meniere’s disease? 

* * * * * 

2.01 Category of Impairments, Special 

Senses and Speech 

* * * * * 

2.10 Hearing Loss Not Treated With 

Cochlear Implantation 

A. An average air conduction hearing 

threshold of 90 decibels or greater in the 

better ear and an average bone conduction 

hearing threshold of 60 decibels or greater in 

the better ear (see 2.00B2c). 

OR 

B. A word recognition score of 40 percent 

or less in the better ear determined using a 

standardized list of phonetically balanced 

monosyllabic words (see 2.00B2e). 

2.11 Hearing Loss Treated With Cochlear 

Implantation 

A. Consider under a disability for 1 year 

after initial implantation. 

OR 

B. If more than 1 year after initial 

implantation, a word recognition score of 60 

percent or less determined using the HINT 

(see 2.00B3b). 

* * * * * 

Part B 

* * * * * 

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Federal Register / Vol. 75, No. 105 / Wednesday, June 2, 2010 / Rules and Regulations 30703 

102.00 SPECIAL SENSES AND SPEECH 

* * * * * 

B. How do we evaluate hearing loss? 

1. What evidence do we need? 

a. We need evidence showing that you 

have a medically determinable impairment 

that causes your hearing loss and 

audiometric measurements of the severity of 

your hearing loss. We generally require both 

a complete otologic examination and 

audiometric testing to establish that you have 

a medically determinable impairment that 

causes your hearing loss. You should have 

this audiometric testing within 2 months of 

the complete otologic examination. Once we 

have evidence that you have a medically 

determinable impairment, we can use the 

results of later audiometric testing to assess 

the severity of your hearing loss without 

another complete otologic examination. We 

will consider your test scores together with 

any other relevant information we have about 

your hearing, including information from 

outside of the test setting. 

b. The complete otologic examination must 

be performed by a licensed physician 

(medical or osteopathic doctor). It must 

include your medical history, your 

description of how your hearing loss affects 

you, and the physician’s description of the 

appearance of the external ears (pinnae and 

external ear canals), evaluation of the 

tympanic membranes, and assessment of any 

middle ear abnormalities. 

c. Audiometric testing must be performed 

by, or under the direct supervision of, an 

otolaryngologist or by an audiologist 

qualified to perform such tests. We consider 

an audiologist to be qualified if he or she is 

currently and fully licensed or registered as 

a clinical audiologist by the State or U.S. 

territory in which he or she practices. If no 

licensure or registration is available, the 

audiologist must be currently certified by the 

American Board of Audiology or have a 

Certificate of Clinical Competence (CCC–A) 

from the American Speech-Language-Hearing 

Association (ASHA). 

2. What audiometric testing do we need when 

you do not have a cochlear implant? 

a. General. We need either physiologic or 

behavioral testing (other than screening 

testing, see 102.00B2g) that is appropriate for 

your age at the time of testing. See 

102.00B2c–102.00B2f. We will make every 

reasonable effort to obtain the results of 

physiologic testing that has been done; 

however, we will not purchase such testing. 

b. Testing requirements. The testing must 

be conducted in accordance with the most 

recently published standards of the American 

National Standards Institute (ANSI). You 

must not wear hearing aids during the 

testing. Additionally, a person described in 

102.00B1c must perform an otoscopic 

examination immediately before the 

audiometric testing. (An otoscopic 

examination provides a description of the 

appearance of your external ear canals and an 

evaluation of the tympanic membranes. In 

these rules, we use the term to include 

otoscopic examinations performed by 

physicians and otoscopic inspections 

performed by audiologists and others.) The 

otoscopic examination must show that there 

are no conditions that would prevent valid 

audiometric testing, such as fluid in the ear, 

ear infection, or obstruction in an ear canal. 

The person performing the test should also 

report on any other factors, such as your 

ability to maintain attention, that can affect 

the interpretation of the test results. 

c. Children From Birth to the Attainment of 

Age 6 Months 

(i) We need physiologic testing, such as 

auditory brainstem response (ABR) testing. 

(ii) To determine whether your hearing loss 

meets 102.10A, we will average your hearing 

thresholds at 500, 1000, 2000, and 4000 Hertz 

(Hz). If you do not have a response at a 

particular frequency, we will use a threshold 

of 5 decibels (dB) over the limit of the 

audiometer. 

d. Children From Age 6 Months to the 

Attainment of Age 2 

(i) We need air conduction thresholds 

determined by a behavioral assessment, 

usually visual reinforcement audiometry 

(VRA). We can use ABR testing if the 

behavioral assessment cannot be completed 

or if the results are inconclusive or 

unreliable. 

(ii) To determine whether your hearing loss 

meets 102.10A, we will average your hearing 

thresholds at 500, 1000, 2000, and 4000 Hz. 

If you do not have a response at a particular 

frequency, we will use a threshold of 5 dB 

over the limit of the audiometer. 

(iii) For this age group, behavioral 

assessments are often performed in a sound 

field, and each ear is not tested separately. 

If each ear is not tested separately, we will 

consider the test results to represent the 

hearing in the better ear. 

e. Children From Age 2 to the Attainment of 

Age 5 

(i) We need air conduction thresholds 

determined by a behavioral assessment, such 

as conditioned play audiometry (CPA), 

tangible or visually reinforced operant 

conditioning audiometry (TROCA, VROCA), 

or VRA. If you have had ABR testing, we can 

use the results of that testing if the behavioral 

assessment cannot be completed or the 

results are inconclusive or unreliable. 

(ii) To determine whether your hearing loss 

meets 102.10A, we will average your hearing 

thresholds at 500, 1000, 2000, and 4000 Hz. 

If you do not have a response at a particular 

frequency, we will use a threshold of 5 dB 

over the limit of the audiometer. 

(iii) For this age group, behavioral 

assessments are often performed in a sound 

field and each ear is not tested separately. If 

each ear is not tested separately, we will 

consider the test results to represent the 

hearing in the better ear. 

f. Children From Age 5 to the Attainment of 

Age 18 

(i) We generally need pure tone air 

conduction and bone conduction testing, 

speech reception threshold (SRT) testing 

(also referred to as ‘‘spondee threshold’’ or 

‘‘ST’’ testing), and word recognition testing 

(also referred to as ‘‘word discrimination’’ or 

‘‘speech discrimination’’ testing). This testing 

must be conducted in a sound-treated booth 

or room and must be in accordance with the 

most recently published ANSI standards. 

Each ear must be tested separately. 

(ii) To determine whether your hearing loss 

meets the air and bone conduction criterion 

in 102.10B1 or 102.10B3, we will average 

your hearing thresholds at 500, 1000, 2000, 

and 4000 Hz. If you do not have a response 

at a particular frequency, we will use a 

threshold of 5 dB over the limit of the 

audiometer. 

(iii) The SRT is the minimum dB level 

required for you to recognize 50 percent of 

the words on a standard list of spondee 

words. (Spondee words are two-syllable 

words that have equal stress on each 

syllable.) The SRT is usually within 10 dB of 

the average pure tone air conduction hearing 

thresholds at 500, 1000, and 2000 Hz. If the 

SRT is not within 10 dB of the average pure 

tone air conduction threshold, the reason for 

the discrepancy must be documented. If we 

cannot determine that there is a medical 

basis for the discrepancy, we will not use the 

results of the testing to determine whether 

your hearing loss meets a listing. 

(iv) Word recognition testing determines 

your ability to recognize an age-appropriate, 

standardized list of phonetically balanced 

monosyllabic words in the absence of any 

visual cues. This testing must be performed 

in quiet. The list may be recorded or 

presented live, but in either case, the words 

should be presented at a level of 

amplification that will measure your 

maximum ability to discriminate words, 

usually 35 to 40 dB above your SRT. 

However, the amplification level used in the 

testing must be medically appropriate, and 

you must be able to tolerate it. If you cannot 

be tested at 35 to 40 dB above your SRT, the 

person who performs the test should report 

your word recognition testing score at your 

highest comfortable level of amplification. 

g. Screening testing. Physiologic testing, 

such as ABR and otoacoustic emissions 

(OAE), and pure tone testing can be used as 

hearing screening tests. We will not use these 

tests to determine that your hearing loss 

meets or medically equals a listing, or to 

assess functional limitations due to your 

hearing loss, when they are used only as 

screening tests. We can consider normal 

results from hearing screening tests to 

determine that your hearing loss is not 

‘‘severe’’ when these test results are 

consistent with the other evidence in your 

case record. See § 416.924(c). 

3. What audiometric testing do we need when 

you have a cochlear implant? 

a. If you have a cochlear implant, we will 

consider you to be disabled until age 5, or for 

1 year after initial implantation, whichever is 

later. 

b. After that period, we need word 

recognition testing performed with any ageappropriate version of the Hearing in Noise 

Test (HINT) or the Hearing in Noise Test for 

Children (HINT–C) to determine whether 

your impairment meets 102.11B. This testing 

must be conducted in quiet in a sound field. 

Your implant must be functioning properly 

and adjusted to your normal settings. The 

sentences should be presented at 60 dB HL 

(Hearing Level) and without any visual cues. 

WReier-Aviles on DSKGBLS3C1PROD with RULES

30704 Federal Register / Vol. 75, No. 105 / Wednesday, June 2, 2010 / Rules and Regulations 

4. How do we evaluate your word recognition 

ability if you are not fluent in English? 

If you are not fluent in English, you should 

have word recognition testing using an 

appropriate word list for the language in 

which you are most fluent. The person 

conducting the test should be fluent in the 

language used for the test. If there is no 

appropriate word list or no person who is 

fluent in the language and qualified to 

perform the test, it may not be possible to 

measure your word recognition ability. If 

your word recognition ability cannot be 

measured, your hearing loss cannot meet 

102.10B2 or 102.11B. Instead, we will 

consider the facts of your case to determine 

whether you have difficulty understanding 

words in the language in which you are most 

fluent, and if so, whether that degree of 

difficulty medically equals 102.10B2 or 

102.11B. For example, we will consider how 

you interact with family members, 

interpreters, and other persons who speak the 

language in which you are most fluent. 

5. What do we mean by a marked limitation 

in speech or language as used in 102.10B3? 

a. We will consider you to have a marked 

limitation in speech if: 

(i) Entire phrases or sentences in your 

conversation are intelligible to unfamiliar 

listeners at least 50 percent (half) of the time 

but no more than 67 percent (two-thirds) of 

the time on your first attempt; and 

(ii) Your sound production or phonological 

patterns (the ways in which you combine 

speech sounds) are atypical for your age. 

b. We will consider you to have a marked 

limitation in language when your current and 

valid test score on an appropriate 

comprehensive, standardized test of overall 

language functioning is at least two standard 

deviations below the mean. In addition, the 

evidence of your daily communication 

functioning must be consistent with your test 

score. If you are not fluent in English, it may 

not be possible to test your language 

performance. If we cannot test your language 

performance, your hearing loss cannot meet 

102.10B3. Instead, we will consider the facts 

of your case to determine whether your 

hearing loss medically equals 102.10B3. 

* * * * * 

102.01 Category of Impairments, Special 

Senses and Speech 

* * * * * 

102.10 Hearing Loss Not Treated With 

Cochlear Implantation 

A. For children from birth to the 

attainment of age 5, an average air 

conduction hearing threshold of 50 decibels 

or greater in the better ear (see 102.00B2). 

OR 

B. For children from age 5 to the 

attainment of age 18: 

1. An average air conduction hearing 

threshold of 70 decibels or greater in the 

better ear and an average bone conduction 

hearing threshold of 40 decibels or greater in 

the better ear (see 102.00B2f); or 

2. A word recognition score of 40 percent 

or less in the better ear determined using a 

standardized list of phonetically balanced 

monosyllabic words (see 102.00B2f); or 

3. An average air conduction hearing 

threshold of 50 decibels or greater in the 

better ear and a marked limitation in speech 

or language (see 102.00B2f and 102.00B5). 

102.11 Hearing Loss Treated With Cochlear 

Implantation 

A. Consider under a disability until the 

attainment of age 5 or for 1 year after initial 

implantation, whichever is later. 

OR 

B. Upon the attainment of age 5 or 1 year 

after initial implantation, whichever is later, 

a word recognition score of 60 percent or less 

determined using the HINT or the HINT–C 

(see 102.00B3b). 

* * * * * 

[FR Doc. 2010–13094 Filed 6–1–10; 8:45 am] 

BILLING CODE 4191–02–P 

FEDERAL MEDIATION AND 

CONCILIATION SERVICE 

29 CFR Part 1404 

RIN 3076–AA12 

Arbitration Services 

AGENCY: Federal Mediation and 

Conciliation Service. 

ACTION: Final rule. 

SUMMARY: This final rule amends the 

Federal Mediation and Conciliation 

Service (FMCS) rules pertaining to 

arbitration services. It revises rules 

addressing the removal of arbitrators 

from the FMCS roster, the process 

relating to complaints about arbitrators, 

procedures for requesting lists and 

panels, arbitrators’ inactive status, the 

selection by parties and appointment of 

arbitrators, and arbitrators’ obligation to 

provide FMCS with certain case 

information. The final rule also provides 

that FMCS may decline to service any 

request by a party for an arbitration list 

or panel based on the party’s nonpayment of arbitrator fees. In addition, 

the final rule raises the annual listing 

fee for all arbitrators on the FMCS 

roster. The changes will promote more 

efficient and effective procedures 

involving arbitrator retention and 

arbitration services. The increased 

annual listing fee more accurately 

reflects FMCS’s costs of maintaining 

and responding to requests for 

arbitrators’ biographical data. The final 

rule withdraws the proposed revisions 

to § 1404.9(b). 

DATES: This final rule is effective July 2, 

2010. 

FOR FURTHER INFORMATION CONTACT: 

Vella M. Traynham, Director, Office of 

Arbitration Services, FMCS, 2100 K 

Street, NW., Washington, DC 20427. 

Telephone: (202) 606–5111. 

SUPPLEMENTARY INFORMATION: Pursuant 

to 29 U.S.C. 171(b) and 29 CFR part 

1404, FMCS maintains a roster of 

qualified labor arbitrators to hear 

disputes arising under collective 

bargaining agreements and provide fact 

finding and interest arbitration. FMCS 

amends its rules pertaining to such 

arbitration services as follows: The 

revised rule relating to the removal of 

arbitrators from the roster provides that 

FMCS will give written notice of 

removal to the affected arbitrator. The 

revised rule relating to complaints 

against arbitrators provides that 

complaints should be in writing and 

directed to the director of the office of 

arbitration services, and should cite 

specific sections of the professional 

code or FMCS rules allegedly violated 

by the arbitrator. The revised rule on 

arbitrators’ inactive status clarifies the 

applicable annual listing fee and 

suggests that arbitrators use inactive 

status to assist them in certain 

scheduling circumstances. The revised 

rule on procedures for requesting panels 

and lists provides that FMCS may 

decline to service any request from a 

party for arbitration lists or panels based 

on the party’s non-payment of arbitrator 

fees. The revised rule on the selection 

by parties and appointment of 

arbitrators provides that arbitrators must 

provide FMCS with certain information 

upon being selected by a party. The 

revised rules describe the methods of 

arbitrator selection that FMCS will 

accept, where the parties’ collective 

agreement is silent on the manner of 

selection. These changes are intended to 

make FMCS’s arbitration procedures 

more efficient and effective. 

FMCS also amends Appendix to Part 

1404 to increase the annual listing fee 

from $100 to $150 for all arbitrators on 

the FMCS roster. With increasing 

frequency, parties have been requesting 

that FMCS furnish arbitration panels 

that are individualized to the dispute at 

issue. This requires detailed research 

and review of arbitrators’ biographies. 

The increased listing fee reflects the cost 

in staff time necessary to be responsive 

to these requests as well as the costs 

associated with updating arbitrator 

biographies. 

This rule is not a significant 

regulatory action for the purposes of 

Executive Order 12866 and has not been 

reviewed by the Office of Management 

and Budget. As required by the 

Regulatory Flexibility Act, I certify that 

this rule will not have a significant 

impact on a substantial number of small 

entities. This regulation does not have 

any federalism or tribal implications. 

Background: On August 6, 2008, 

FMCS published a Notice of Proposed 

WReier-Aviles on DSKGBLS3C1PROD with RULES