Consultative Examination-Annual Onsite Review of Medical Providers

Summary:

We propose to revise the threshold billing amount that triggers annual onsite reviews of medical providers who conduct consultative examinations (CEs) for our disability programs under titles II and XVI of the Social Security Act (the Act). The proposed revision would raise the threshold amount to reflect the increase in billing amounts since we first established the threshold amount in 1991. This proposed revision is intended to restore the level of oversight originally required by our rules.

Table of Contents

Dates:

To be sure that your comments are considered, we must receive them by May 21, 2007.

Addresses:

You may give us your comments by: Internet through the Federal eRulemaking Portal at http://www.regulations.gov; e-mail to regulations@ssa.gov; telefax to (410) 966-2830; or letter to the Commissioner of Social Security, P.O. Box 17703, Baltimore, MD 21235-7703. You may also deliver them to the Office of Regulations, Social Security Administration, 107 Altmeyer Building, 6401 Security Boulevard, Baltimore, MD 21235-6401, between 8 a.m. and 4:30 p.m. on regular business days. Comments are posted on the Federal eRulemaking Portal, or you may inspect them on regular business days by making arrangements with the contact person shown in this preamble.

For further information contact:

Charles M. Urban, Social Insurance Specialist, Social Security Administration, Office of Disability Programs, 6401 Security Boulevard, Baltimore, MD 21235-6401, (410) 965-9029 or TTY 410-966-5609. For information on eligibility or filing for benefits, call our national toll-free number 1-800-772-1213 or TTY 1-800-325-0778, or visit our Internet site, Social Security Online, at http://www.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 change our rules?

Since 1991, we have provided in §§ 404.1519s(d) and 416.919s(d) of our regulations that each State agency that makes disability determinations for us is responsible for comprehensive oversight management of its consultative examination program with special emphasis on key providers. A consultative examination is a medical examination or test that we purchase at our expense when we need additional information to make a disability determination and we cannot obtain that information from existing medical sources. See §§ 404.1517, 404.1519, 416.917, and 416.919 of our regulations.

In §§ 404.1519s(e) and 416.919s(e) of our regulations, we explain that a “key consultative examination provider” is a provider that meets at least one of the following conditions:

(1) Any consultative examination provider with an estimated annual billing to the Social Security disability programs of at least $100,000; or

(2) Any consultative examination provider with a practice directed primarily towards evaluation examinations rather than the treatment of patients; or

(3) Any consultative examination provider that does not meet the above criteria, but is one of the top five consultative examination providers in the State by dollar volume, as evidenced by prior year data.

We are proposing to change the threshold billing amount that triggers onsite review of medical providers in §§ 404.1519s(e)(1) and 416.919s(e)(1) in order to ensure that we annually review the largest providers of CEs. We have not changed the current threshold amount of $100,000 in billings since we first published this provision in 1991. However, costs have risen in the more than 15 years since we first published this rule so that now many CE providers who perform relatively few CEs are subject to mandatory onsite reviews. This is contrary to the intent of the provision, which is to ensure that each State agency do periodic onsite reviews of the largest CE providers in its State. We believe that raising the amount to $150,000 will continue to satisfy the intent to monitor our largest CE providers. We chose this amount by multiplying the $100,000 threshold established in 1991 by the increase in the consumer price index for urban wage earners and clerical workers from 1991 (134.3) to November 2006 (196.8) and then, for administrative convenience, rounding the resulting amount ($146,537.60) to $150,000.

What rules are we proposing to revise?

We propose to revise §§ 404.1519s(e)(1) and 416.919s(e)(1). The revisions would specify a new threshold billing amount that will trigger the need for annual onsite review of CE providers.

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.

What is our authority to make rules and set procedures for determining whether a person is disabled under the statutory definition?

Section 205(a) of the Act and, by reference to section 205(a), section 1631(d)(1) provide that:

The Commissioner of Social Security shall have full power and authority to make rules and regulations and to establish procedures, not inconsistent with the provisions of this title, which are necessary or appropriate to carry out such provisions, and shall adopt reasonable and proper rules and regulations to regulate and provide for the nature and extent of the proofs and evidence and the method of taking and furnishing the same in order to establish the right to benefits hereunder.

What is our authority to require States to conduct onsite reviews of CE providers?

Section 221(a)(2) of the Act provides that the “Commissioner of Social Security shall promulgate regulations specifying, in such detail as the Commissioner deems appropriate, performance standards and administrative requirements and procedures to be followed” by State agencies that make disability determinations for us. In addition, with regard to the CE process, section 221(j)(3) of the Act provides that the “Commissioner of Social Security shall prescribe regulations which set forth, in detail * * * procedures by which the Commissioner of Social Security will monitor both the [CE] referral processes used and the product of professionals to whom cases are referred.” These authorities are made applicable to title XVI as well by reference in section 1633(a) of the Act.

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.

Clarity of These Proposed Rules

Executive Order 12866, as amended by Executive Order 13258, 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 by Executive Order 13258. 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 would affect only States. Thus, a regulatory flexibility analysis as provided in the Regulatory Flexibility Act, as amended, is not required.

Paperwork Reduction Act

These proposed regulations will impose no additional reporting or recordkeeping requirements requiring OMB clearance.

Federalism and the Unfunded Mandates Reform Act

We have reviewed the proposed rules under the threshold criteria of Executive Order 13132 (Federalism) and the Unfunded Mandates Reform Act of 1995. These proposed rules would change the threshold billing amount above which the State agencies that make determinations of disability for the Commissioner under titles II and XVI of the Act perform an annual onsite review of CE providers. Although the State agencies perform these reviews, they do so as part of a voluntary agreement with us, and the Social Security Administration fully funds the necessary costs of providing this service. We have determined that these proposed rules would not have substantial direct effects on States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

(Catalog of Federal Domestic Assistance Program Nos. 96.001, Social Security—Disability Insurance; 96.002, Social Security—Retirement Insurance; 96.004, Social Security—Survivors Insurance; 96.006, Supplemental Security Income.)

List of subjects

Administrative practice and procedure, Blind, Disability benefits, Old-Age, Survivors, and Disability Insurance, Reporting and recordkeeping requirements, Social Security.

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

Dated: January 8, 2007. Jo Anne B. Barnhart,

Commissioner of Social Security.

For the reasons set out in the preamble, we propose to amend subpart P of part 404 and subpart I of part 416 of chapter III of title 20 of the Code of Federal Regulations as set forth below:

Part 404—federal old-age, survivors and disability insurance (1950- )

Subpart p—[amended]

1. The authority citation for subpart P of part 404 is revised to read as follows:

Authority:

Secs. 202, 205(a), (b), and (d)-(h), 216(i), 221(a), (i) and (j), 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), (i) and (j), 422(c), 423, 425, and 902(a)(5)); sec. 211(b), Pub. L. 104-193, 110 Stat. 2105, 2189; sec. 202, Pub. L. 108-203, 118 Stat. 509 (42 U.S.C. 902 note).

2. Revise paragraph (e)(1) of § 404.1519s to read as follows:

§ 404.1519s * * * * *

(e) * * *

(1) Any consultative examination provider with an estimated annual billing to the disability programs we administer of at least $150,000; or

* * * * *

Part 416—supplemental security income for the aged, blind, and disabled

Subpart i—[amended]

3. The authority citation for subpart I of part 416 continues to read as follows:

Authority:

Secs. 221(m), 702(a)(5), 1611, 1614, 1619, 1631(a), (c), (d)(1), and (p), and 1633 of the Social Security Act (42 U.S.C. 421(m), 902(a)(5), 1382, 1382c, 1382h, 1383(a), (c), (d)(1), and (p), and 1383b); secs. 4(c) and 5, 6(c)-(e), 14(a), and 15, Pub. L. 98-460, 98 Stat. 1794, 1801, 1802, and 1808 (42 U.S.C. 421 note, 423 note, 1382h note).

4. Revise paragraph (e)(1) of § 416.919s to read as follows:

§ 416.919s * * * * *

(e) * * *

(1) Any consultative examination provider with an estimated annual billing to the disability programs we administer of at least $150,000; or

* * * * *

References

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