Federal Register / Vol. 73, No. 157 / Wednesday, August 13, 2008 / Proposed Rules 47103 

of the safety, power quality, or 

reliability on the borrower’s electric 

power system or other electric power 

systems interconnected to the 

borrower’s electric power system. The 

Agency encourages borrowers to 

consider model policy templates 

developed by knowledgeable and expert 

institutions, such as, but not limited to, 

the National Association of Regulatory 

Utility Commissioners, the Federal 

Energy Regulatory Commission and the 

National Rural Electric Cooperative 

Association. The Agency encourages all 

related electric borrowers to cooperate 

in the development of a common 

Distributed Resource policy. 

§ 1730.62 Definitions. 

‘‘Distributed Resources’’ as used in 

this subpart means sources of electric 

power that are not directly connected to 

a bulk power transmission system, 

having an installed capacity of not more 

than 10 MVA, connected to the 

borrower’s electric power system 

through a point of common coupling. 

Distributed resources include both 

generators and energy storage 

technologies. 

‘‘Responsible Party’’ as used in this 

subpart means the owner, operator or 

any other person or entity that is 

accountable to the borrower under the 

borrower’s interconnection policy for 

Distributed Resources. 

§ 1730.63 IDR policy criteria. 

(a) General. 

(1) The borrower’s IDR policy and 

procedures shall be readily available to 

the public and include, but not limited 

to, a standard application, application 

process, application fees, and 

agreement. 

(2) All costs to be recovered from the 

applicant regarding the application 

process or the actual interconnection are 

to be clearly explained to the applicant 

and authorized by the applicant prior to 

the borrower incurring these costs. The 

borrower may require separate 

nonrefundable deposits sufficient to 

insure serious intent by the applicant 

prior to proceeding either with the 

application or actual interconnection 

process. 

(3) IDR policies must be approved by 

the borrower’s Board of Directors. 

(4) The borrower may establish a new 

rate classification for customers with 

Distributed Resources. 

(5) IDR policies must provide for 

reconsideration and updates every three 

years or more frequently as 

circumstances warrant. 

(b) Technical requirements. 

(1) IDR policies must be consistent 

with prudent electric utility practice. 

(2) IDR policies must incorporate the 

standard 1547 as promulgated and 

amended by the Institute of Electrical 

and Electronic Engineers (IEEE). The 

title of IEEE Standard 1547 is ‘‘IEEE 

Standard for Interconnecting Distributed 

Resources with Electric Power 

Systems’’. You may obtain a copy of 

IEEE Standard 1547 from: IEEE, 3 Park 

Avenue, New York, NY 10016–5997. 

(3) IDR policies must provide for 

appropriate electric power system 

disconnect facilities, as determined by 

the borrower, which shall include a 

lockable disconnect, a visible open, and 

fusing, that are readily accessible to and 

operable by authorized personnel at all 

times. 

(4) IDR policies must provide for 

borrower access to the Distributed 

Resources facility during normal 

business hours and all emergency 

situations. 

(c) Responsible party obligations. IDR 

policies must provide for appropriate 

Responsible Parties to assume the 

following risks and responsibilities: 

(1) A Responsible Party must agree to 

maintain appropriate liability insurance 

as outlined in the borrower’s 

interconnection policy. 

(2) A Responsible Party must be 

responsible for the Distributed 

Resources compliance with all national, 

State, local government requirements 

and electric utility standards for the 

safety of the public and personnel 

responsible for utility electric power 

system operations, maintenance and 

repair. 

(3) A Responsible Party must be 

responsible for the safe and effective 

operation and maintenance of the 

facility. 

(4) Only Responsible Parties may 

apply for interconnection and the 

Responsible Party must demonstrate the 

financial and managerial capability to 

develop, construct and operate the 

distributed resources. 

§ 1730.64 Power purchase agreements. 

Nothing in this subpart requires the 

borrower to enter into purchase power 

arrangements with the owner of the 

Distributed Resources. 

§ 1730.65 Effective dates. 

(a) Each electric program borrower 

with an approved electric program loan 

as of [DATE OF PUBLICATION OF THE 

FINAL RULE] shall have an IDR policy 

board approved and in effect no later 

than [DATE 2 YEARS FROM DATE OF 

PUBLICATION OF THE FINAL RULE]. 

(b) An electric program borrower that 

submits an application to the Agency for 

financial assistance on or after [DATE 2 

YEARS FROM DATE OF PUBLICATION 

OF THE FINAL RULE] shall include 

with its application package a letter of 

certification executed by the General 

Manager that the borrower meets the 

requirements of this subpart. 

§ 1730.66 Administrative waiver. 

The Administrator may waive in all or 

part, for good cause, the requirements 

and procedures of this subpart. 

§§ 1730.67–1730.99 [Reserved] 

Dated: July 11, 2008. 

James M. Andrew, 

Administrator, Rural Utilities Service. 

[FR Doc. E8–18800 Filed 8–12–08; 8:45 am] 

BILLING CODE 3410–15–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: Notice of proposed rulemaking. 

SUMMARY: We propose to revise the 

criteria in the Listing of Impairments 

(the listings) that we use to evaluate 

claims involving hearing loss. We apply 

these criteria when you claim benefits 

based on disability under title II and 

title XVI of the Social Security Act (the 

Act). The proposed revisions reflect 

current medical knowledge, treatment, 

and methods of evaluating hearing loss, 

as well as our adjudicative experience 

since the publication of the current 

rules. 

DATES: To be sure that your comments 

are considered, we must receive them 

by October 14, 2008. 

ADDRESSES: You may submit comments 

by any one of four methods—Internet, 

facsimile, regular mail, or handdelivery. Commenters should not 

submit the same comments multiple 

times or by more than one method. 

Regardless of which of the following 

methods you choose, please state that 

your comments refer to Docket No. 

SSA–2008–0016 to ensure that we can 

associate your comments with the 

correct regulation: 

1. Federal eRulemaking portal at 

http://www.regulations.gov. (This is the 

most expedient method for submitting 

your comments, and we strongly urge 

you to use it.) In the Comment or 

Submission section of the webpage, type 

‘‘SSA–2008–0016,’’ select ‘‘Go,’’ and 

then click ‘‘Send a Comment or 


hsrobinson on PROD1PC76 with PROPOSALS
47104 Federal Register / Vol. 73, No. 157 / Wednesday, August 13, 2008 / Proposed Rules 

Submission.’’ The Federal eRulemaking 

portal issues you a tracking number 

when you submit a comment. 

2. Telefax to (410) 966–2830. 

3. Letter to the Commissioner of 

Social Security, P.O. Box 17703, 

Baltimore, MD 21235–7703. 

4. Deliver your comments to the 

Office of Regulations, Social Security 

Administration, 922 Altmeyer Building, 

6401 Security Boulevard, Baltimore, MD 

21235–6401, between 8 a.m. and 4:30 

p.m. on regular business days. 

All comments are posted on the 

Federal eRulemaking portal, although 

they may not appear for several days 

after receipt of the comment. You may 

also inspect the comments on regular 

business days by making arrangements 

with the contact person shown in this 

preamble. 

Caution: All comments we receive 

from members of the public are 

available for public viewing in their 

entirety on the Federal eRulemaking 

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

Therefore, you should be careful to 

include in your comments only 

information that you wish to make 

publicly available on the Internet. We 

strongly urge you not to include any 

personal information, such as your 

Social Security number or medical 

information, in your comments. 

FOR FURTHER INFORMATION CONTACT: 

Diane Braunstein, Director, Office of 

Compassionate Allowances and Listings 

Improvement, 6401 Security Boulevard, 

Baltimore, MD 21235–6401, (410) 965–

1020. For information on eligibility or 

filing for benefits, call our national tollfree 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. 

Why are we proposing to revise the 

listings for hearing loss? 

We are proposing to revise the listings 

for hearing loss to update the medical 

criteria in the listings, to provide more 

information about how we evaluate 

hearing loss, and to reflect our 

adjudicative experience. The listings for 

hearing loss are in the special senses 

and speech body system. That body 

system also includes listings for visual 

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

In this Notice of Proposed Rulemaking 

(NPRM), we are proposing changes only 

to the listings for hearing loss. We 

published final rules revising the 

listings for visual disorders in the 

Federal Register on November 20, 2006 

(71 FR 67037). We intend to publish 

separately proposed rules that would 

update the criteria for disturbances of 

labyrinthine-vestibular function and 

loss of speech. 

Prior to the publication of the final 

rules for evaluating visual disorders 

mentioned above, we last published 

final rules making comprehensive 

revisions to the part A special senses 

and speech listings in the Federal 

Register on March 27, 1979 (44 FR 

18170), and final rules making 

comprehensive revisions to the part B 

special senses and speech listings in the 

Federal Register on March 16, 1977 (42 

FR 14705). The current special senses 

and speech listings will no longer be 

effective on February 20, 2015, unless 

we extend them, or revise and issue 

them again. 

How did we develop these proposed 

rules? 

We developed these proposed rules 

based on our adjudicative experience 

and advances in medical knowledge, 

treatment, and methods of evaluating 

hearing loss. These proposed rules also 

reflect comments we asked the public to 

provide to help us develop the 

proposals. 

We published an advance notice of 

proposed rulemaking (ANPRM) in the 

Federal Register on April 13, 2005 (70 

FR 19353). The purpose of the ANPRM 

was to inform the public that we were 

planning to update and revise the rules 

we use to evaluate hearing impairments 

and disturbance of labyrinthinevestibular function and to invite 

interested individuals and organizations 

to send us comments and suggestions 

for updating and revising the listings for 

these disorders. In the ANPRM, we 

provided a 60-day period for comments 

and suggestions; that period ended on 

June 13, 2005. We received 13 letters 

and e-mails from medical experts, 

advocates, and State agencies that 

adjudicate claims for us, commenting on 

our criteria for hearing loss. Although 

we are not summarizing or responding 

to the comments in this notice, we read 

and considered them carefully. We are 

proposing changes to our rules for 

evaluating hearing loss based on some 

of the suggestions we received. 

We also hosted a policy conference on 

‘‘Hearing Impairments and Disturbance 

of Labyrinthine-Vestibular Function’’ at 

Gallaudet University in Washington, 

DC, on November 7 and 8, 2005. At this 

conference, we heard comments and 

suggestions for updating and revising 

the rules we use to evaluate these 

disorders from individuals who have 

hearing loss or vestibular disorders, 

their family members, physicians who 

treat them, other professionals who 

work with them, and advocates who 

represent them. The transcript of this 

conference is available on our Web site 

at http://policy.ssa.gov/erm/rules.nsf/

5da82b031a6677dc85256b41006b7f8d/

9314dd803ad5579885256fe200496264

!OpenDocument. 

Several of the changes to the criteria 

for evaluating hearing loss that we 

propose in these rules are based on 

information we obtained from 

individuals at this conference. 

How are we proposing to change the 

introductory text to the special senses 

and speech listings for adults? 

2.00 Special Senses and Speech 

We propose to reorganize and expand 

the second through fifth paragraphs of 

current 2.00B1, ‘‘Hearing impairment,’’

to provide additional guidance. We 

propose to remove the guidance in the 

first paragraph of current 2.00B1, which 

states that hearing ability should be 

evaluated in terms of the person’s 

ability to hear and distinguish speech. 

Because our current and proposed 

listings provide for using tones to 

evaluate hearing loss, this language may 

be misleading. We also propose to 

remove the guidance in the last 

paragraph of current 2.00B1, which 

provides that cases of alleged ‘‘deaf 

mutism’’ should be documented by a 

hearing evaluation. This guidance refers 

only to the evaluation of deaf mutism as 

a hearing impairment; however, we can 

also evaluate cases of alleged mutism 

under listing 2.09, for loss of speech. In 

that case, we would not need a hearing 

test. We are not proposing special 

requirements for evaluating hearing loss 

if you have deaf mutism; we would 

require the same documentation as for 

other hearing disorders. 

We also propose to redesignate 

current 2.00B2, ‘‘Vertigo associated with 

disturbances of labyrinthine-vestibular 

function, including Meniere’s disease,’’

as proposed 2.00C, and to redesignate 

current 2.00B3, ‘‘Loss of speech,’’ as 

proposed 2.00D. We are proposing 

separate sections for these disorders to 

recognize that they are not always 

associated with hearing loss. Although 

we are not proposing any substantive 

changes to these sections at this time, 

we are proposing to make minor 

editorial changes so that the format of 

these sections will be consistent with 

other sections of the introductory text in 

these proposed rules. Because of these 

changes, we also propose to redesignate 


hsrobinson on PROD1PC76 with PROPOSALS
Federal Register / Vol. 73, No. 157 / Wednesday, August 13, 2008 / Proposed Rules 47105 

current 2.00C, ‘‘How do we evaluate 

impairments that do not meet one of the 

special senses and speech listings?’’ as 

proposed 2.00E. 

The following is a detailed 

explanation of proposed 2.00B. 

Proposed 2.00B—How do we evaluate 

hearing loss? 

Proposed 2.00B1—What evidence do we 

need to evaluate hearing loss? 

This proposed section revises the 

fourth and fifth paragraphs of current 

2.00B1as follows: 

• The fourth paragraph of current 

2.00B1 provides that an otolaryngologic 

examination should precede 

audiometric testing. We propose to 

remove the requirement for an 

otolaryngologic examination and 

instead require a complete otologic 

examination. We would make this 

change because an otolaryngologic 

examination contains elements, such as 

an evaluation of the head, face, and 

neck, that are not needed to assess 

hearing loss. As we describe in 

proposed 2.00B1b, a complete otologic 

examination must include the medical 

history, a description of how the hearing 

loss affects the individual, a description 

of the appearance of the external ear 

(pinna and the external ear canal), an 

evaluation of the tympanic membrane, 

and an assessment of any middle ear 

abnormalities. 

• We also propose to revise the 

guidance in the current rules that the 

otolaryngologic examination should 

precede the audiometric testing and 

instead provide that the audiometric 

testing should be performed within 2 

months of the complete otologic 

examination. Having the otologic 

examination precede the audiometric 

testing can help identify conditions that 

could interfere with the audiometric 

testing. However, having the otologic 

examination follow the audiometric 

testing will allow the physician to 

consider the results of that testing in 

reaching his or her conclusions about 

the individual’s hearing loss. We believe 

that either sequence is acceptable for 

determining whether the individual has 

a medically determinable impairment 

that has resulted in hearing loss. 

However, we would appreciate having 

specific comments on this change, 

replacing an otolaryngologic 

examination with an otologic 

examination. 

• Lastly, we propose to revise the 

current requirement in the fifth 

paragraph of 2.00B1 that an 

otolaryngologic examination be 

performed in conjunction with any 

audiometric testing used to assess the 

severity of the hearing loss. As indicated 

above, we propose to require a complete 

otologic examination instead of an 

otolaryngologic examination. 

Additionally, we propose that the 

complete otologic examination be 

required only to establish that a 

medically determinable impairment 

exists. After the impairment is 

established, we propose to allow the 

severity of the hearing loss to be 

determined based on audiometric 

testing without another complete 

otologic examination. 

Proposed 2.00B2—What audiometric 

testing do we need when you do not 

have a cochlear implant? 

This proposed section expands and 

clarifies the guidance in the second, 

third, and fifth paragraphs of current 

2.00B1 as follows: 

• We would replace the term ‘‘speech 

discrimination’’ with ‘‘word recognition 

testing’’ to reflect current medical 

terminology. In addition, we would add 

a parenthetical statement to explain that 

this testing may also be referred to as 

word discrimination or speech 

discrimination testing. 

• We would clarify that we require 

that pure tone air conduction and bone 

conduction testing must be conducted 

in accordance with the most recently 

published American National Standards 

Institute (ANSI) standards for air 

conduction and bone conduction 

stimuli. Our current rules provide that 

audiometric testing be conducted in 

accordance with the 1969 and 1972 

ANSI standards or subsequent 

comparable revisions. 

• We would clarify that each ear must 

be tested separately and that hearing 

aids must not be worn during the 

testing. Our reasons for proposing to 

remove the current requirement that 

hearing be tested with aids in place are 

discussed in our explanation of 

proposed listing 2.10 below. We also 

propose to require that the testing be 

conducted in a soundproof booth. Our 

current rules require that hearing 

measurements be performed in an 

environment which meets the 1977 

ANSI standard for maximal permissible 

background sound. 

• We would require that an otoscopic 

examination be performed immediately 

before the audiometric testing to ensure 

that there are no conditions present that 

would prevent valid testing. In 

proposed 2.00B2b, we explain that an 

otoscopic examination provides a 

description of the appearance of the 

external ear canal and an evaluation of 

the tympanic membrane. 

• We would describe the frequencies 

at which pure tone air conduction and 

bone conduction are usually measured. 

• We would incorporate the guidance 

in current listing 2.08A that explains 

that we average the pure tone hearing 

thresholds for air conduction and bone 

conduction at 500, 1000, and 2000 Hertz 

(Hz) to determine whether the listing 

criteria are met. 

• We would explain that the speech 

reception threshold (SRT) is generally 

within 10 decibels (dB) of the average 

pure tone air conduction hearing 

thresholds at 500, 1000, and 2000 Hz. If 

it is not, the reason for the discrepancy 

should be documented. 

• We would expand the guidance on 

word recognition testing and clarify that 

the words should be presented at a level 

of amplification that will measure your 

maximum discrimination ability, which 

is usually 35 to 40 dB above your SRT. 

We would also provide that the 

amplification level used in the testing 

must be medically appropriate and that 

you must be able to tolerate it. 

Proposed 2.00B3—What audiometric 

testing do we need when you have a 

cochlear implant? 

In this new section, we propose to 

explain that we will consider you to be 

disabled until 1 year after implantation 

of a cochlear implant. We propose to 

add this criterion to recognize the length 

of the rehabilitation and training period 

needed to use a cochlear implant 

effectively. 

After that period, we propose to 

evaluate your hearing loss by measuring 

your word recognition ability on the 

Hearing in Noise Test (HINT). We 

propose to use the HINT because the 

American Academy of Neurology 

indicated in their comments in response 

to our ANPRM that the HINT is the 

‘‘accepted standard used to assess 

hearing outcome after cochlear 

implantation.’’ We would also explain 

our requirements for how that testing 

should be conducted. Our proposed 

requirements are based on 

recommendations we received at our 

policy conference. 

Proposed 2.00B4—How do we evaluate 

your word recognition ability if you are 

not fluent in English? 

Word recognition testing should be 

conducted using an appropriate word 

list. If you are not fluent in English, the 

testing should be conducted using an 

appropriate word list for the language in 

which you are most fluent. However, 

appropriate word lists are not available 

in all languages. Additionally, the 

individual conducting the test should 

also be fluent in the language used for 


hsrobinson on PROD1PC76 with PROPOSALS
47106 Federal Register / Vol. 73, No. 157 / Wednesday, August 13, 2008 / Proposed Rules 

the test. If the test needs to be 

conducted in a language other than 

English, there may not be individuals 

available who are qualified to perform 

the testing in that language. Therefore, 

we propose to add this section to 

provide guidance on how we would 

evaluate your word recognition ability if 

you are not fluent in English. 

In this new section, we would provide 

that, if you are not fluent in English, it 

may not be possible to measure your 

word recognition ability. We would also 

explain that, if we cannot measure your 

word recognition ability because you are 

not fluent in English, your hearing loss 

cannot meet listing 2.10B or 2.11B. In 

this situation, we would 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 

listing 2.10B or 2.11B. For example, we 

will consider how you interact with 

family members, interpreters, and other 

individuals who speak the language in 

which you are most fluent. 

We welcome and are very interested 

in receiving comments about other 

methods that you think we can use to 

evaluate word recognition ability for 

individuals who are not fluent in 

English and who have listing-level 

hearing disorders. 

How are we proposing to change the 

criteria in the special senses and speech 

listings for adults? 

2.01 Category of Impairments, Special 

Senses and Speech 

Under our current listings, we do not 

consider the effects of treatment with 

cochlear implantation on an 

individual’s hearing loss. Due to 

advances in the technology used in 

cochlear implants, we believe it is now 

appropriate to consider the effects of 

cochlear implantation on an 

individual’s hearing loss. Therefore, we 

propose to add a separate listing to 

evaluate hearing loss treated with 

cochlear implantation. Because we are 

proposing to add a listing, we also 

propose to renumber the listings for ease 

of reference. We would revise current 

listing 2.08, ‘‘Hearing impairments,’’

renumber it as listing 2.10, ‘‘Hearing 

loss not treated with cochlear 

implantation,’’ and add listing 2.11, 

‘‘Hearing loss treated with cochlear 

implantation.’’

Proposed Listing 2.10—Hearing Loss 

Not Treated With Cochlear Implantation 

In this proposed listing, we would 

revise current listing 2.08, ‘‘Hearing 

impairments,’’ and specify that these 

criteria apply to individuals who do not 

have cochlear implants. 

Current listing 2.08 provides that a 

hearing loss is of listing-level severity 

when ‘‘hearing [is] not restorable by a 

hearing aid’’ and satisfies either of the 

criteria in the listing. Our longstanding 

interpretation of the phrase ‘‘hearing not 

restorable by a hearing aid’’ is that the 

hearing loss is so severe that a hearing 

aid would not improve it to a level at 

which it no longer satisfies the listing 

criteria. To determine this, we need 

testing with a hearing aid. 

We propose to remove the 

requirement for testing with hearing 

aids for the following reasons: 

• At our policy conference, we were 

advised that aided hearing testing is not 

usually performed in clinical practice. 

• Audiometric testing with a hearing 

aid does not demonstrate whether the 

individual will be able to use the aid 

effectively. 

• When we published the current 

listings, generic hearing aids were 

available for testing purposes. However, 

advances in technology have resulted in 

hearing aids that are programmed to 

address each individual’s specific 

hearing loss. Due to this degree of 

specificity, generic aids are no longer 

widely available. 

Although we propose to no longer 

require aided testing, we are not 

proposing to change the level of hearing 

loss needed to demonstrate a listinglevel impairment. Based on our 

adjudicative experience and the 

comments we received in response to 

our ANPRM and at our policy 

conference, we have determined that 

individuals with this level of hearing 

loss do not usually obtain significant 

improvement in their ability to hear and 

communicate from hearing aids. 

Therefore, we believe that without a 

cochlear implant, a hearing loss at the 

level specified in the current listing is 

indicative of listing-level severity even 

if the individual were to use hearing 

aids. 

Current listing 2.08A requires 

‘‘[a]verage hearing threshold sensitivity 

for air conduction of 90 decibels or 

greater, and for bone conduction to 

corresponding maximal levels, in the 

better ear, determined by the simple 

average of hearing threshold levels at 

500, 1000, and 2000 hz.’’ We would 

clarify the criterion in current listing 

2.08A for ‘‘bone conduction to 

corresponding maximal levels’’ by 

specifying that this means that the 

average bone conduction hearing 

threshold must be 60 dB or greater in 

the better ear. 

Current listing 2.08B requires 

‘‘[s]peech discrimination scores of 40 

percent or less in the better ear.’’ As we 

mentioned above, ‘‘speech 

discrimination’’ is now referred to as 

‘‘word recognition testing.’’ When we 

published the current rules, word 

recognition testing was usually 

conducted using a standardized list of 

phonetically balanced monosyllabic 

words. Other types of word recognition 

testing, such as sentence testing, are 

now available. Therefore, we propose to 

specify the type of word recognition 

testing to be used. 

Proposed Listing 2.11—Hearing Loss 

Treated With Cochlear Implantation 

We propose to add criteria to evaluate 

individuals who have cochlear 

implants. Cochlear implants are devices 

that attempt to replace the function of 

damaged inner ear hair cells. The 

implant may destroy any remaining 

hearing in the implanted ear. 

Cochlear implants are not hearing 

aids. Hearing aids amplify sound, while 

cochlear implants provide direct 

electrical stimulation of the auditory 

nerve. Therefore, even individuals with 

profound hearing loss may receive 

enough benefit from a cochlear implant 

to be able to engage in gainful activity. 

However, we recognize that if you are 

treated with cochlear implantation, you 

will need a period of rehabilitation and 

training to use the implant effectively. 

Therefore, if you have a cochlear 

implant, we propose to consider you to 

be under a disability for one year from 

the date of implantation. 

After the 1-year period, we propose to 

determine whether your hearing loss 

meets the listing by assessing your word 

recognition ability using the HINT. We 

propose to use the HINT to assess your 

word recognition ability because, as 

mentioned in our discussion of 

proposed section 2.00B3, the American 

Academy of Neurology indicated in 

their comments in response to our 

ANPRM that the HINT is the ‘‘accepted 

standard used to assess hearing outcome 

after cochlear implantation.’’

The HINT is a sentence test. 

Individuals generally have higher word 

recognition scores when tested with a 

sentence test as opposed to a 

monosyllabic word test because 

sentences provide context for the words 

in them. Therefore, we propose to find 

that your hearing loss meets the listing 

if your word recognition score on the 

HINT is 60 percent or less. 


hsrobinson on PROD1PC76 with PROPOSALS
Federal Register / Vol. 73, No. 157 / Wednesday, August 13, 2008 / Proposed Rules 47107 

How are we proposing to change the 

introductory text to the special senses 

and speech listings for children? 

102.00 Special Senses and Speech 

We have repeated much of the 

introductory text of proposed 2.00B in 

the introductory text to proposed 

102.00B. This is because the same basic 

rules for evaluating hearing loss in 

adults also apply to evaluating hearing 

loss in children age 5 and older. 

Because we have already described 

these provisions under the explanation 

of proposed 2.00B, the following 

discussion of proposed 102.00B 

describes only those provisions that 

apply to children under age 5, are 

unique to the childhood rules, or 

require further explanation specific to 

evaluating disability in children. 

We propose to remove the first 

paragraph of current 102.00B, ‘‘Hearing 

impairments in children.’’ This 

paragraph explains that the criteria for 

hearing impairments in children take 

into account that a lesser impairment in 

hearing which occurs at an early age 

may result in a severe speech or 

language disorder. While this paragraph 

does explain why we use a lower 

threshold for children, it is not needed 

in the introductory text as it does not 

provide any guidance about how to 

evaluate hearing loss under these 

listings. 

We also propose to remove the second 

paragraph of current 102.00B. This 

paragraph provides guidance on how to 

consider improvement in hearing due to 

use of a hearing aid. As we discussed in 

our explanation of proposed listing 2.10 

above, we are proposing to remove the 

requirement for aided hearing testing. 

Therefore, this guidance is no longer 

needed. 

Proposed 102.00B2—What audiometric 

testing do we need when you do not 

have a cochlear implant? 

This proposed section expands and 

clarifies the guidance in the third and 

fourth paragraphs of current 102.00B as 

follows: 

• We would clarify that we generally 

need behavioral or physiologic testing 

(other than screening testing) that is 

appropriate for your age at the time of 

testing. 

• We would clarify that we require 

that audiometric testing be conducted in 

accordance with the most recently 

published American National Standards 

Institute (ANSI) standards for air 

conduction and, if appropriate, bone 

conduction stimuli. Our current rules 

provide that audiometric testing be 

conducted in accordance with the 1969 

and 1972 ANSI standards or subsequent 

comparable revisions. 

• We would provide that hearing aids 

not be used during audiometric testing. 

• We would require that an otoscopic 

examination be performed immediately 

before the audiometric testing to ensure 

that there are no conditions present that 

would prevent valid testing. 

• We would provide that we will not 

purchase physiologic testing. We are 

proposing this rule because such testing 

may require sedation. 

• We would describe the hearing 

testing that is appropriate for children 

in the age ranges of birth to the 

attainment of age 6 months, age 6 

months to the attainment of age 2, age 

2 to the attainment of age 5, and age 5 

to the attainment of age 18. The 

proposed guidance for hearing testing 

for children age 5 to the attainment of 

age 18 is similar to the proposed 

guidance for hearing testing in adults, 

except for the frequencies needed to 

determine the hearing threshold. 

• We would revise the frequency 

levels used to determine the pure tone 

air conduction or bone conduction 

threshold from 500, 1000, 2000, and 

3000 Hz to 500, 1000, 2000, and 4000 

Hz. We received several comments in 

response to our ANPRM recommending 

that we make this change in how we 

determine the hearing threshold. 

Additionally, our adjudicative 

experience has shown that testing is 

often not done at 3000 Hz. We 

considered using the same hearing 

thresholds as in adults, but propose to 

continue to use 4000 Hz because of the 

importance of hearing at higher 

frequencies to a child’s ability to learn 

speech. 

• We would describe screening tests, 

such as otoacoustic emissions (OAE), 

and explain how we use them. We 

propose to provide this guidance 

because hearing screening tests are 

commonly given to children in newborn 

nurseries and schools. We do not 

propose to add this guidance to the 

introductory text for adults because 

hearing screening tests are not 

commonly given to adults. 

Proposed 102.00B3—What audiometric 

testing do we need when you have a 

cochlear implant? 

This new section is similar to 

proposed 2.00B3 except that we provide 

that a child who has a cochlear implant 

will be disabled until age 5 or until 1 

year after implantation, whichever is 

later. We propose to consider children 

with cochlear implants to be disabled 

until age 5 because of the extensive 

rehabilitation and training needed for 

young children with cochlear implants 

to acquire speech and language skills. 

We would also explain that after that 

period, we will evaluate your hearing 

loss by measuring your word 

recognition ability on the HINT or the 

Hearing in Noise Test for Children 

(HINT–C). 

Proposed 102.00B5—What do we mean 

by a marked limitation in speech or 

language as used in 102.10B2? 

In this new section, we explain when 

we will consider you to have a marked 

limitation in speech or language. 

How are we proposing to change the 

criteria in the special senses and speech 

listings for children? 

102.01 Category of Impairments, 

Special Senses and Speech 

For the reasons mentioned in our 

discussion of 2.01 above, we propose to 

add a separate listing to evaluate 

hearing loss treated with cochlear 

implantation. Because we are proposing 

to add a listing, we also propose to 

renumber the listings for ease of 

reference. We would revise current 

listing 102.08, ‘‘Hearing impairments,’’

renumber it as listing 102.10, ‘‘Hearing 

loss not treated with cochlear 

implantation,’’ and add listing 102.11, 

‘‘Hearing loss treated with cochlear 

implantation.’’

Proposed 102.10—Hearing Loss Not 

Treated With Cochlear Implantation 

This proposed listing would revise 

current listing 102.08, ‘‘Hearing 

impairments,’’ and specify that it 

applies to children who do not have 

cochlear implants. 

The current childhood listing requires 

that we assess your ability to hear with 

a hearing aid unless we determine that 

you are not able to use the aid 

effectively. For the reasons we stated in 

the discussion of proposed listing 2.10 

above, we propose to no longer require 

aided hearing testing to determine if 

your hearing loss meets the listing. 

Proposed listing 102.10A would 

replace current listing 102.08A. This 

proposed listing contains the criterion 

for evaluating hearing loss in children 

under age 5 who do not have a cochlear 

implant. We propose to replace the 

current criterion for an aided average 

hearing threshold of 40 dB in the better 

ear with a criterion for an unaided 

average air conduction hearing 

threshold of 50 dB or greater in the 

better ear. We propose to use a 

threshold of 50 dB because we believe 

that, even with the use of a hearing aid, 

a child under age 5 who has a 50 dB 

hearing loss will also have a marked 

limitation in speech or language. 


hsrobinson on PROD1PC76 with PROPOSALS
47108 Federal Register / Vol. 73, No. 157 / Wednesday, August 13, 2008 / Proposed Rules 

Proposed listing 102.10B would 

replace current listing 102.08B. This 

proposed listing contains the criteria for 

evaluating hearing loss in children from 

age 5 to the attainment of age 18. For the 

reasons we explained earlier, we 

propose to no longer require aided 

hearing testing. 

Proposed listing 102.10B1 would 

correspond to current listing 102.08B1. 

Current listing 102.08B1 generally 

requires an aided average air conduction 

hearing threshold of 70 dB or greater in 

the better ear. We would expect hearing 

loss at that level to have a sensorineural 

component. (A sensorineural hearing 

loss is caused by permanent damage to 

the inner ear or to the nerve pathways 

from the inner ear to the brain.) We 

propose to replace the criterion in 

current listing 102.08B1 with an 

unaided average air conduction hearing 

threshold of 70 dB or greater in the 

better ear. In order to ensure that 

hearing loss at this level has a 

sensorineural component, we also 

propose to add a criterion in proposed 

listing 102.10B1 for an average bone 

conduction hearing threshold of 40 dB 

or greater in the better ear. We would 

continue to use a 70 dB average air 

conduction hearing threshold because 

we believe a hearing loss with a 

sensorineural component at this level 

will significantly affect a child’s ability 

to engage in learning. Also, we do not 

use the same hearing threshold levels 

for children from age 5 to the attainment 

of age 18 as we use for adults because 

of the importance of hearing to a child’s 

ability to communicate and learn. 

Proposed listing 102.10B2 would 

correspond to current listing 102.08B2. 

We propose to make the same editorial 

changes as we did in proposed listing 

2.10B. 

Proposed listing 102.10B3 would 

correspond to current listing 102.08B3. 

As we discussed in our explanation of 

proposed listing 102.10A above, we 

propose to use an unaided hearing 

threshold of 50 dB in the better ear. 

Because children typically acquire basic 

speech and language skills by age 5, we 

believe that it is not appropriate to 

presume that a child over age 5 who has 

a 50 dB hearing loss will also have a 

marked limitation in speech or 

language. Therefore, for children over 

age 5, we also propose to require an 

assessment of speech and language 

skills. 

Proposed 102.11—Hearing Loss Treated 

With Cochlear Implantation 

This proposed listing is similar to 

proposed listing 2.11 except that we 

propose to consider you to be under a 

disability until age 5, or for 1 year after 

implantation, whichever is later. We 

also propose to use either the HINT or 

the HINT–C to assess your word 

recognition ability. 

What programs would these proposed 

regulations affect? 

These proposed rules would affect 

disability determinations and decisions 

that we make under titles II and XVI of 

the Act. In addition, to the extent that 

Medicare entitlement and Medicaid 

eligibility are based on whether you 

qualify for disability benefits under title 

II or title XVI, these proposed rules 

would also affect the Medicare and 

Medicaid programs. 

Who can get disability benefits? 

Under title II of the Act, we provide 

for the payment of disability benefits if 

you are disabled and belong to one of 

the following three groups: 

• Workers insured under the Act, 

• Children of insured workers, and 

• Widows, widowers, and surviving 

divorced spouses (see § 404.336) of 

insured workers. 

Under title XVI of the Act, we provide 

for Supplemental Security Income (SSI) 

payments on the basis of disability if 

you are disabled and have limited 

income and resources. 

How do we define disability? 

Under both the title II and title XVI 

programs, disability must be the result 

of any medically determinable physical 

or mental impairment or combination of 

impairments that is expected to result in 

death or which has lasted or can be 

expected to last for a continuous period 

of at least 12 months. Our definitions of 

disability are shown in the following 

table: 

If you file a claim under . . . And you are . . . Disability means you have a medically determinable impairment(s) as 

described above and that results in . . . 

title II ................................................ an adult or a child .......................... the inability to do any substantial gainful activity (SGA). 

title XVI ............................................ an individual age 18 or older ......... the inability to do any SGA. 

title XVI ............................................ an individual under age 18 ............ marked and severe functional limitations. 

How do we decide whether you are 

disabled? 

If you are applying for benefits under 

title II of the Act, or if you are an adult 

applying for payments under title XVI of 

the Act, we use a five-step ‘‘sequential 

evaluation process’’ to decide whether 

you are disabled. We describe this fivestep process in our regulations at 

§§ 404.1520 and 416.920. We follow the 

five steps in order and stop as soon as 

we can make a determination or 

decision. The steps are: 

1. Are you working, and is the work 

you are doing substantial gainful 

activity? If you are working and the 

work you are doing is substantial 

gainful activity, we will find that you 

are not disabled, regardless of your 

medical condition or your age, 

education, and work experience. If you 

are not, we will go on to step 2. 

2. Do you have a ‘‘severe’’

impairment? If you do not have an 

impairment or combination of 

impairments that significantly limits 

your physical or mental ability to do 

basic work activities, we will find that 

you are not disabled. If you do, we will 

go on to step 3. 

3. Do you have an impairment(s) that 

meets or medically equals the severity 

of an impairment in the listings? If you 

do, and the impairment(s) meets the 

duration requirement, we will find that 

you are disabled. If you do not, we will 

go on to step 4. 

4. Do you have the residual functional 

capacity (RFC) to do your past relevant 

work? If you do, we will find that you 

are not disabled. If you do not, we will 

go on to step 5. 

5. Does your impairment(s) prevent 

you from doing any other work that 

exists in significant numbers in the 

national economy, considering your 

RFC, age, education, and work 

experience? If it does, and it meets the 

duration requirement, we will find that 

you are disabled. If it does not, we will 

find that you are not disabled. 

We use a different sequential 

evaluation process for children who 

apply for payments based on disability 

under SSI. If you are already receiving 

benefits, we also use a different 

sequential evaluation process when we 

decide whether your disability 

continues. See §§ 404.1594, 416.924, 

416.994, and 416.994a of our 

regulations. However, all of these 


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Federal Register / Vol. 73, No. 157 / Wednesday, August 13, 2008 / Proposed Rules 47109 

processes include steps at which we 

consider whether your impairment(s) 

meets or medically equals one of our 

listings. 

What are the listings? 

The listings are examples of 

impairments that we consider severe 

enough to prevent you as an adult from 

doing any gainful activity. If you are a 

child seeking SSI payments based on 

disability, the listings describe 

impairments that we consider severe 

enough to result in marked and severe 

functional limitations. Although the 

listings are contained only in appendix 

1 to subpart P of part 404 of our 

regulations, we incorporate them by 

reference in the SSI program in 

§ 416.925 of our regulations and apply 

them to claims under both title II and 

title XVI of the Act. 

How do we use the listings? 

The listings are in two parts. There 

are listings for adults (part A) and for 

children (part B). If you are an 

individual age 18 or over, we apply the 

listings in part A when we assess your 

claim, and we never use the listings in 

part B. 

If you are an individual under age 18, 

we first use the criteria in part B of the 

listings. Part B contains criteria that 

apply only to individuals who are under 

age 18. If the criteria in part B do not 

apply, we may use the criteria in part A 

when those criteria give appropriate 

consideration to the effects of the 

impairment(s) in children. (See 

§§ 404.1525 and 416.925.) 

If your impairment(s) does not meet 

any listing, we will also consider 

whether it medically equals any listing; 

that is, whether it is as medically severe 

as an impairment in the listings. (See 

§§ 404.1526 and 416.926.) 

What if you do not have an 

impairment(s) that meets or medically 

equals a listing? 

We use the listings only to decide that 

you are disabled or that you are still 

disabled. We will not deny your claim 

or decide that you no longer qualify for 

benefits because your impairment(s) 

does not meet or medically equal a 

listing. If you have a severe 

impairment(s) that does not meet or 

medically equal any listing, we may still 

find you disabled based on other rules 

in the ‘‘sequential evaluation process.’’

Likewise, we will not decide that your 

disability has ended only because your 

impairment(s) no longer meets or 

medically equals a listing. 

Also, when we conduct reviews to 

determine whether your disability 

continues, we will not find that your 

disability has ended because we have 

changed a listing. Our regulations 

explain that, when we change our 

listings, we continue to use our prior 

listings when we review your case, if 

you qualified for disability benefits or 

SSI payments based on our 

determination or decision that your 

impairment(s) met or medically equaled 

a listing. In these cases, we determine 

whether you have experienced medical 

improvement, and if so, whether the 

medical improvement is related to the 

ability to work. If your condition(s) has 

medically improved so that your 

impairment(s) no longer meets or 

medically equals the prior listing, we 

evaluate your case further to determine 

whether you are currently disabled. We 

may find that you are currently 

disabled, depending on the full 

circumstances of your case. See 

§§ 404.1594(c)(3)(i) and 

416.994(b)(2)(iv)(A). If you are a child 

who is eligible for SSI payments, we 

follow a similar rule when we decide 

that you have experienced medical 

improvement in your condition(s). See 

§ 416.994a(b)(2). 

When will we start to use these rules? 

We will not use these rules until we 

evaluate the public comments we 

receive on them, determine whether 

they should be issued as final rules, and 

issue final rules in the Federal Register. 

If we publish final rules, we will 

explain in the preamble how we will 

apply them, and summarize and 

respond to the public comments. Until 

the effective date of any final rules, we 

will continue to use our current rules. 

How long would these proposed rules 

be effective? 

If we publish these proposed rules as 

final rules, they will remain in effect for 

8 years after the date they became 

effective, unless we extend them, or 

revise and issue them again. 

Clarity of these proposed rules 

Executive Order 12866, as amended, 

requires each agency to write all rules in 

plain language. In addition to your 

substantive comments on these 

proposed rules, we invite your 

comments on how to make them easier 

to understand. 

For example: 

• Have we organized the material to 

suit your needs? 

• Are the requirements in the rules 

clearly stated? 

• Do the rules contain technical 

language or jargon that is not clear? 

• Would a different format (grouping 

and order of sections, use of headings, 

paragraphing) make the rules easier to 

understand? 

• Would more (but shorter) sections 

be better? 

• Could we improve clarity by adding 

tables, lists, or diagrams? 

• What else could we do to make the 

rules easier to understand? 

Regulatory Procedures 

Executive Order 12866 

We have consulted with the Office of 

Management and Budget (OMB) and 

determined that these proposed rules 

meet the requirements for a significant 

regulatory action under Executive Order 

12866, as amended. Thus, they were 

subject to OMB review. 

Regulatory Flexibility Act 

We certify that these proposed rules 

would not have a significant economic 

impact on a substantial number of small 

entities because they affect only 

individuals. Thus, a regulatory 

flexibility analysis as provided in the 

Regulatory Flexibility Act, as amended, 

is not required. 

Paperwork Reduction Act 

In these regulations, we are proposing 

to: (1) Revise the listings for hearing loss 

to update the medical criteria in the 

listings; (2) provide more information 

about how we evaluate hearing loss; and 

(3) reflect our adjudicative experience. 

The listings for hearing loss are in the 

special senses and speech body system. 

That body system also includes listings 

for visual disorders, disturbances of 

labyrinthine-vestibular function and 

loss of speech. In this NPRM, we are 

proposing changes only to the listings 

for hearing loss. As part of the listings, 

we identify specific documentation 

requirements used in evaluating 

impairments within a body system, 

including medical and other evidence. 

The documentation and evidentiary 

requirements are public reporting 

burdens that must be cleared by OMB 

under the Paperwork Reduction Act. 

However, the public reporting burdens 

are accounted for in the Information 

Collection Requests for the various 

forms that the public uses to submit the 

information to SSA. Consequently, we 

are reporting no burden for this 

regulation aside from a 1-hour 

placeholder burden shown in the chart 

below, for the sections listed. 


hsrobinson on PROD1PC76 with PROPOSALS
47110 Federal Register / Vol. 73, No. 157 / Wednesday, August 13, 2008 / Proposed Rules 

PART 404—FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE

Title/section & 

collection description 

Annual 

number 

of respondents 

Frequency 

of response 

Average 

burden per 

response 

(minutes) 

Estimated 

annual 

burden (hours) 

Hearing Loss (2.00B and 102.00B) ................................................................. ........................ ........................ ........................ 1 

An Information Collection Request 

has been submitted to OMB for 

clearance. We are soliciting comments 

on the burden estimate; the need for the 

information; its practical utility; ways to 

enhance its quality, utility and clarity; 

and ways to minimize the burden on 

respondents, including the use of 

automated collection techniques or 

other forms of information technology. 

Requests for the Information Collection 

Request package and/or comments 

should be directed to SSA and OMB at 

the following addresses/phone numbers: 

Office of Management and Budget, Attn: 

Desk Officer for SSA, Fax Number: 

202–395–6974, E-mail address: OIRA_

Submission@omb.eop.gov. 

Social Security Administration, Attn: 

Reports Clearance Officer, 1333 

Annex Building, 6401 Security Blvd., 

Baltimore, MD 21235, Fax: 410–965–

6400, E-mail address: 

OPLM.RCO@ssa.gov. 

Comments on the paperwork burdens 

associated with this rule can be received 

for up to 60 days after publication of 

this notice and will be most useful if 

received within 30 days of publication. 

This does not affect the deadline for the 

public to comment to SSA on the 

proposed regulations. These information 

collection requirements will not become 

effective until approved by OMB. When 

OMB has approved these information 

collection requirements, SSA will 

publish a notice in the Federal Register. 

List of References 

During the development of these 

proposed rules, we reviewed the 

following information: 

American Speech-Language-Hearing 

Association (ASHA). (2004). Guidelines for 

the audiologic assessment of children from 

birth to 5 years of age [Guidelines]. 

(Available at http://www.asha.org/NR/

rdonlyres/0BB7C840–27D2–4DC6–861B–

1709ADD78BAF/0/v2GLAudAssess

Child.pdf.) 

ASHA. (2004). Technical report: Cochlear 

implants. ASHA Supplement 24. 

(Available at http://www.asha.org/NR/

rdonlyres/215CC9B8–6831–494F–83ED–

E02A6832A8A9/0/v2TRcochlear

implants.pdf.) 

Centers for Medicare & Medicaid Services. 

(2005). MLN Matters Number MM3796: 

Cochlear Implantation. (Available at http:// 

www.cms.hhs.gov/MLNMattersArticles/

downloads/MM3796.pdf.) 

Cunningham. M. and Cox, E.O. (2003). 

Hearing assessment in infants and 

children: Recommendations beyond 

neonatal screening. Pediatrics, 111(2), 436–

440. 

Dale, D.C. and Federman, D.D., eds. 

Neurology. ACP Medicine. (2004) Elliot M. 

Frohman, New York: WebMD Professional 

Publishing. 

Gifford, R.H. and Shallop, J.K. (2007). 

Hearing preservation in patients with a 

cochlear implant. The ASHA Leader, 

12(14), 15, 17, 34. 

Gorga, M.P., et al. (2006). Using a 

combination of click- and tone burstevoked auditory brain stem response 

measurements to estimate pure-tone 

thresholds. Ear & Hearing, 27(1), 60–74. 

Joint Committee on Infant Hearing. (2000). 

Year 2000 position statement: Principles 

and guidelines for early hearing detection 

and intervention programs. Pediatrics, 

106(4), 798–817. 

Joint Committee on Infant Hearing. (2007). 

Year 2007 position statement: Principles 

and guidelines for early hearing detection 

and intervention programs. Pediatrics, 

120(4), 898–921. 

National Research Council (NRC): Committee 

on Disability Determination for Individuals 

with Hearing Impairments. (2005). Hearing 

Loss: Determining Eligibility for Social 

Security Benefits. Washington, DC: 

National Academy Press. (Available at 

http://www.nap.edu/ 

catalog.php?record_id=11099#toc.) 

Pittman, A.L., & Stelmachowicz, P.G. (2003). 

Hearing loss in children and adults: 

Audiometric configuration, asymmetry, 

and progression. Ear & Hearing, 24(3), 

198–205. 

U.S. Food and Drug Administration, Center 

for Devices and Radiological Health. 

(2007). Benefits and Risks of Cochlear 

Implants. (Available at: http:// 

www.fda.gov/cdrh/cochlear/ 

RiskBenefit.html.) 

These references are included in the 

rulemaking record for these proposed 

rules and are available for inspection by 

interested individuals making 

arrangements with the contact person 

shown in this preamble. 

(Catalog of Federal Domestic Program Nos. 

96.001, Social Security—Disability 

Insurance; 96.002, Social Security—

Retirement Insurance; 96.004, Social 

Security—Survivors Insurance; and 96.006, 

Supplemental Security Income) 

List of Subjects in 20 CFR Part 404 

Administrative practice and 

procedure, Blind, Disability benefits, 

Old-Age, Survivors, and Disability 

Insurance, Reporting and recordkeeping 

requirements, Social Security. 

Dated: May 12, 2008. 

Michael J. Astrue, 

Commissioner of Social Security. 

Editorial Note: This document was 

received at the Office of the Federal Register 

on August 8, 2008. 

For the reasons set out in the 

preamble, we propose to amend 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. Appendix 1 to subpart P of part 404 

is amended 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. Add new sections 2.00C and 2.00D 

to part A of appendix 1. 

e. Remove listing 2.08 of part A of 

appendix 1. 

f. Add listings 2.10 and 2.11 to part 

A of appendix 1. 

g. Revise section 102.00B of part B of 

appendix 1. 

h. Remove listing 102.08 of part B of 

appendix 1. 

i. 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 

* * * * * 


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3. Special Senses and Speech (2.00 

and 102.00): [Insert date 8 years from 

the effective date of the final rules]. 

* * * * * 

Part A 

* * * * * 

2.00 Special Senses and Speech 

* * * * * 

B. How do we evaluate hearing loss? 

1. What evidence do we need to 

evaluate hearing loss? 

a. To establish that you have a 

medically determinable impairment that 

causes your hearing loss, we require 

both a complete otologic examination 

and audiometric testing. The 

audiometric testing should be 

performed within 2 months of the 

complete otologic examination. 

b. A complete otologic examination 

must include your medical history, your 

description of how your hearing loss 

affects you, a description of the 

appearance of the external ear (pinna 

and the external ear canal), an 

evaluation of the tympanic membrane, 

and an assessment of any middle ear 

abnormalities. 

c. After your impairment has been 

established, we can use the results of 

subsequent audiometric testing to assess 

the severity of your hearing loss without 

another complete otologic examination. 

d. Audiometric testing must be 

performed by, or under the supervision 

of, an otolaryngologist or by an 

audiologist qualified to perform such 

tests. We consider an audiologist to be 

qualified if the audiologist 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, and word recognition 

testing. (Word recognition testing may 

be referred to as word discrimination or 

speech discrimination testing.) This 

testing must be conducted in a 

soundproof booth and each ear must be 

tested separately. Pure tone air 

conduction and bone conduction testing 

must be conducted in accordance with 

the most recently published standards 

of the American National Standards 

Institute (ANSI) for air conduction and 

bone conduction stimuli. 

b. You must not wear hearing aids 

during the testing. Additionally, we 

require that an otoscopic examination 

be performed immediately before the 

audiometric testing. An otoscopic 

examination provides a description of 

the appearance of the external ear canal 

and an evaluation of the tympanic 

membrane. The otoscopic examination 

must also show that there are no 

conditions present that would prevent 

valid audiometric testing. Examples of 

such conditions are fluid in the ear, an 

ear infection, or an obstruction in the 

ear canal. 

c. An audiological examination 

usually includes pure tone air 

conduction and bone conduction testing 

measured at 250, 500, 1000, 2000, and 

4000 Hertz (Hz). To determine whether 

your hearing loss meets the air 

conduction criterion in 2.10A, we will 

average the air conduction hearing 

thresholds at 500, 1000, and 2000 Hz. 

To determine whether your hearing loss 

meets the bone conduction criterion in 

2.10A, we will average the bone 

conduction hearing thresholds at 500, 

1000, and 2000 Hz. 

d. The SRT is the minimal decibel 

(dB) level required for you to recognize 

a standard list of words. 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 should be 

documented. 

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 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. The individual 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 implantation. 

b. After that period, we need word 

recognition testing performed with the 

Hearing in Noise Test (HINT). This 

testing must be conducted in quiet in a 

sound field with your implant 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, 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 

individuals 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? 

1. These disturbances of balance are 

characterized by a hallucination of 

motion or a loss of position sense and 

a sensation of dizziness which may be 

constant or may occur in paroxysmal 

attacks. Nausea, vomiting, ataxia, and 

incapacitation are frequently observed, 

particularly during the acute attack. It is 

important to differentiate the report of 

rotary vertigo from that of ‘‘dizziness,’’

which is described as light-headedness, 

unsteadiness, confusion, or syncope. 

2. Meniere’s disease is characterized 

by paroxysmal attacks of vertigo, 

tinnitus, and fluctuating hearing loss. 

Remissions are unpredictable and 

irregular, but may be long-lasting; 

hence, the severity of the impairment is 

best determined after prolonged 

observation and serial reexaminations. 

3. The diagnosis of a vestibular 

disorder requires a comprehensive 

neuro-otolaryngologic examination with 

a detailed description of the vertiginous 

episodes, including notation of 

frequency, severity, and duration of the 

attacks. Pure tone and speech 

audiometry with the appropriate special 

examinations, such as Bekesy 

audiometry, are necessary. Vestibular 

function is assessed by positional and 

caloric testing, preferably by 

electronystagmography. When 

polytomograms, contrast radiography, or 

other special tests have been performed, 

copies of the reports of these tests 

should be obtained in addition to 

appropriate medically acceptable 

imaging reports of the skull and 

temporal bone. Medically acceptable 

imaging includes, but is not limited to, 

x-ray imaging, computerized axial 

tomography (CAT scan) or magnetic 

resonance imaging (MRI), with or 


hsrobinson on PROD1PC76 with PROPOSALS
47112 Federal Register / Vol. 73, No. 157 / Wednesday, August 13, 2008 / Proposed Rules 

without contrast material, myelography, 

and radionuclear bone scans. 

‘‘Appropriate’’ means that the technique 

is the proper one to support the 

evaluation and diagnosis of the 

impairment. 

D. Loss of speech. In evaluating the 

loss of speech, the ability to produce 

speech by any means includes the use 

of mechanical or electronic devices that 

improve voice or articulation. 

Impairments of speech may also be 

evaluated under the body system for the 

underlying disorders, such as 

neurological disorders, 11.00ff. 

* * * * * 

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 implantation; or 

B. If more than 1 year after 

implantation, a word recognition score 

of 60 percent or less determined using 

the HINT (see 2.00B3b). 

* * * * * 

Part B 

* * * * * 

102.00 Special Senses and Speech 

* * * * * 

B. How do we evaluate hearing loss? 

1. What evidence do we need to 

evaluate hearing loss? 

a. To establish that you have a 

medically determinable impairment that 

causes your hearing loss, we require 

both a complete otologic examination 

and audiometric testing. The 

audiometric testing should be 

performed within 2 months of the 

complete otologic examination. 

b. A complete otologic examination 

must include your medical history, your 

description of how your hearing loss 

affects you, a description of the 

appearance of the external ear (pinna 

and the external ear canal), an 

evaluation of the tympanic membrane, 

and an assessment of any middle ear 

abnormalities. 

c. After your impairment has been 

established, we can use the results of 

subsequent audiometric testing to assess 

the severity of your hearing loss without 

another complete otologic examination. 

d. Audiometric testing must be 

performed by, or under the supervision 

of, an otolaryngologist or by an 

audiologist qualified to perform such 

tests. We consider an audiologist to be 

qualified if the audiologist 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 generally need 

behavioral or physiologic testing (other 

than screening testing, see 102.00B3g) 

that is appropriate for your age at the 

time of testing. We will make every 

reasonable effort to obtain the results of 

physiologic testing that has been done. 

However, if this testing has not been 

done, or, if we cannot obtain the results, 

we will not purchase it. In these 

situations, we will evaluate your 

hearing loss based on the other evidence 

in your case record. 

b. Testing requirements. The testing 

must be conducted in accordance with 

the most recently published standards 

of the American National Standards 

Institute (ANSI) for air conduction 

stimuli, and if appropriate, bone 

conduction stimuli. You must not wear 

hearing aids during the testing. 

Additionally, we require that an 

otoscopic examination be performed 

immediately before the audiometric 

testing. An otoscopic examination 

provides a description of the appearance 

of the external ear canal and an 

evaluation of the tympanic membrane. 

The otoscopic examination must also 

show that there are no conditions 

present that would prevent valid 

audiometric testing. Examples of such 

conditions are fluid in the ear, an ear 

infection, or an obstruction in the ear 

canal. 

c. Children from birth to the 

attainment of age 6 months. 

i. We need physiologic testing, such 

as auditory brainstem response (ABR) 

testing, that measures the frequencies 

needed to recognize speech; that is, the 

range from 500 to 4000 Hertz (Hz). We 

also need an acoustic immittance 

assessment; that is, a tympanogram and 

acoustic reflex testing. 

ii. To determine whether your hearing 

loss meets listing 102.10A, we will 

average the hearing thresholds at 500, 

1000, 2000, and 4000 Hz. 

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), and an acoustic 

immittance assessment. We can use 

ABR testing results if the behavioral 

assessment cannot be completed or if 

the results of the behavioral assessment 

are inconclusive or unreliable. 

ii. To determine whether your hearing 

loss meets listing 102.10A, we will 

average the hearing thresholds at 500, 

1000, 2000, and 4000 Hz. 

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, and an 

acoustic immittance assessment. We can 

use ABR testing results if the behavioral 

assessment cannot be completed or if 

the results of the behavioral assessment 

are inconclusive or unreliable. 

ii. To determine whether your hearing 

loss meets listing 102.10A, we will 

average the hearing thresholds at 500, 

1000, 2000, and 4000 Hz. 

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, and word recognition 

testing. (Word recognition testing may 

be referred to as word discrimination or 

speech discrimination testing.) This 

testing must be conducted in a 

soundproof booth and each ear must be 

tested separately. 

ii. An audiological examination 

usually includes pure tone air 

conduction and bone conduction testing 

measured at 250, 500, 1000, 2000, and 

4000 Hz. To determine whether your 

hearing loss meets the air conduction 

criterion in 102.10B1 or 102.10B3, we 

will average the air conduction hearing 

thresholds at 500, 1000, 2000, and 4000 


hsrobinson on PROD1PC76 with PROPOSALS
Federal Register / Vol. 73, No. 157 / Wednesday, August 13, 2008 / Proposed Rules 47113 

Hz. To determine whether your hearing 

loss meets the bone conduction criterion 

in 102.10B1, we will average the bone 

conduction hearing thresholds at 500, 

1000, 2000, and 4000 Hz. 

iii. The SRT is the minimal decibel 

(dB) level required for you to recognize 

a standard list of words. 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 should be 

documented. 

iv. 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 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. The individual who performs 

the test should report your word 

recognition testing score at your highest 

comfortable level of amplification. 

g. Screening Testing. ABR and other 

physiologic testing, such as otoacoustic 

emissions (OAE), can be used as hearing 

screening tests. When such testing is 

used as hearing screening tests, we will 

not use the results to determine that 

your hearing loss meets or medically 

equals a listing, or to assess functional 

limitations due to your hearing loss. We 

can, however, consider normal results 

from hearing screening tests to 

determine whether your hearing loss is 

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 implantation, 

whichever is later. 

b. After that period, we need word 

recognition testing performed with the 

Hearing in Noise Test (HINT) or the 

Hearing in Noise Test for Children 

(HINT–C). This testing must be 

conducted in quiet in a sound field with 

your implant 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, 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 individuals 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. According to the unfamiliar listener, 

entire phrases or sentences in your 

conversation are intelligible 

approximately 60 percent of the time or 

less on the 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 implantation, whichever is later; or 

B. Upon the attainment of age 5 or 1 

year after 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. E8–18718 Filed 8–12–08; 8:45 am] 

BILLING CODE 4191–02–P 

LIBRARY OF CONGRESS 

Copyright Office 

37 CFR Part 201 and 255 

[Docket No. RM 2000–7] 

Compulsory License for Making and 

Distributing Phonorecords, Including 

Digital Phonorecord Deliveries 

AGENCY: Copyright Office, Library of 

Congress. 

ACTION: Extension of time to file 

comments and reply comments; Notice 

of Hearing. 

SUMMARY: The Copyright Office is 

extending the time in which comments 

and reply comments may be filed in 

response to its Notice of Proposed 

Rulemaking proposing to amend its 

regulations to clarify the scope and 

application of the Section 115 

compulsory license to make and 

distribute phonorecords of a musical 

work by means of digital phonorecord 

deliveries. 73 FR 40802. The Office is 

also announcing a hearing on the 

proposed rulemaking to take place on 

September 19, 2008. 

DATES: Comments must be received in 

the Office of the General Counsel of the 

Copyright Office no later than Thursday, 

August 28, 2008 at 5:00 p.m. Reply 

Comments must be received no later 

than Monday, September 15, 2008 at 

5:00 p.m. The hearing will take place on 

Friday, September 19, 2008, 

commencing at 10:00 a.m. in the 

Copyright Hearing Room at the Library 

of Congress, Room LM–408, 4th Floor, 

James Madison Building, 101 

Independence Avenue, SE, Washington, 

DC. Requests to testify at the hearing 

must be received in writing no later 


hsrobinson on PROD1PC76 with PROPOSALS