[Federal Register Volume 76, Number 136 (Friday, July 15, 2011)]
[Rules and Regulations]
[Pages 41685-41687]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-17859]



20 CFR Part 416

[Docket No. SSA-2009-0027]
RIN 0960-AH02

Electronic Substitutions for Form SSA-538

AGENCY: Social Security Administration.

ACTION: Final rule with request for comments.


SUMMARY: We are revising our regulations to reflect our use of 
electronic case processing at the initial and reconsideration levels of 
our administrative review process. Our prior rule required adjudicators 
at these levels to complete a Form SSA-538, Childhood Disability 
Evaluation Form, in all cases of children alleging disability or 
continuing disability under title XVI of the Social Security Act (Act). 
However, we developed and now use a Web-based tool that assists our 
adjudicators in making disability determinations in several States, and 
we plan to expand its use to other States. We are revising our 
regulation to reflect the new tool. We are not changing the requirement 
that State agency medical and psychological consultants must affirm the 
accuracy and completeness of their findings of fact and discussion of 
the supporting evidence, only the manner in which they may provide the 
required findings and affirmation. We expect that this revision will 
improve our efficiency by increasing our use of electronic resources.

DATES: These rules are effective on July 15, 2011. Comment Date: To 
ensure that your comments are considered, we must receive them no later 
than September 13, 2011.

ADDRESSES: You may submit comments by any one of three methods--
Internet, fax, mail. Do not submit the same comments multiple times or 
by more than one method. Regardless of which method you choose, please 
state that your comments refer to Docket No. SSA-2009-0027 so that we 
may associate your comments with the correct regulation.
    Caution: You should be careful to include in your comments only 
information that you wish to make publicly available. We strongly urge 
you not to include in your comments any personal information, such as 
Social Security numbers or medical information.
     Internet: We strongly recommend that you submit your 
comments via the Internet. Please visit the Federal eRulemaking portal 
at http://www.regulations.gov. Use the Search function to find docket 
number SSA-2009-0027. The system will issue a tracking number to 
confirm your submission. You will not be able to view your comment 
immediately because we must post each comment manually. It may take up 
to a week for your comment to be viewable.
     Fax: Fax comments to (410) 966-2830.

[[Page 41686]]

     Mail: Address your comments to the Office of Regulations, 
Social Security Administration, 107 Altmeyer Building, 6401 Security 
Boulevard, Baltimore, Maryland 21235-6401.
    Comments are available for public viewing on the Federal 
eRulemaking portal at http://www.regulations.gov or in person, during 
regular business hours, by arranging with the contact person identified 

FOR FURTHER INFORMATION CONTACT: Cheryl Williams, Office of Medical 
Listings Improvement, Social Security Administration, 6401 Security 
Boulevard, Baltimore, Maryland 21235-6401, (410) 965-1020. For 
information on eligibility or filing for benefits, call our national 
toll-free number, 1-800-772-1213, or TTY 1-800-325-0778, or visit our 
Internet site, Social Security Online, at http://www.socialsecurity.gov.


What revision are we making?

    We are revising paragraph (g) in Sec.  416.924 of our regulations. 
This paragraph explains how adjudicators at each level of our 
administrative review process must explain their findings about whether 
a child is disabled or continues to be disabled under the Supplemental 
Security Income (SSI) program. As currently drafted, that paragraph 
requires us to complete a standard Form SSA-538, Childhood Disability 
Evaluation Form, when we make an initial or reconsideration 
determination. The form outlines the steps of the sequential evaluation 
process for children under SSI, and we use it to explain our findings.
    We are removing the requirement that we complete a specific form, 
the SSA-538. Instead, we are revising Sec.  416.924(g) to provide that 
adjudicators at the initial and reconsideration levels will indicate 
their findings ``in writing in a manner that we prescribe.''

Why are we making this revision?

    We are making this revision because we process some of our cases 
electronically, and we plan eventually to process all of our cases 
electronically. The State agencies that are already processing cases 
electronically use a web-based tool we developed to indicate their 
findings. The web-based tool does not include an exact copy of our 
paper Form SSA-538,\1\ although it includes all of the major elements 
of the SSA-538 at appropriate points as the program leads adjudicators 
(including State agency medical and psychological consultants) through 
the decisionmaking process in SSI childhood cases. Both the SSA-538 and 
the web-based tool include choices of possible case dispositions and 
space in which to explain the disposition. When a functional assessment 
is required, both the SSA-538 and the web-based tool provide: (1) Space 
for explaining the assessment of the child's limitation in each of the 
six functional domains (Sec.  416.926a(b)(1)); (2) choices for 
indicating the severity of the limitation of any affected domains; and 
(3) selections for whether a child's impairment or combination of 
impairments functionally equals the listings. They also require the 
State agency medical or psychological consultant with overall 
responsibility for the findings to affirm that:

    \1\ In some cases, adjudicators still complete the paper Form 
SSA-538 and include a scanned copy of the form in the electronic 
case record. We plan eventually to end this practice and to use only 
the electronic tool.

     He or she considered essential policy factors and 
evidence,\2\ and

    \2\ We list the same factors in the web-based tool that we list 
on form SSA-538.

     The determination is accurate and complete.

    The tool also requires affirmations from any other medical or 
psychological consultant(s) who provided input for the findings.
    Since we do not yet use electronic programs to process cases in all 
State agencies, we are not eliminating the Form SSA-538, only removing 
reference to it from Sec.  416.924(g). We are revising the paragraph 
only to provide us with the flexibility we need to use electronic 
programs in making disability determinations for children under SSI.

Regulatory Procedures

    We follow the Administrative Procedure Act (APA) rulemaking 
procedures specified in 5 U.S.C. 553 when we develop regulations. 
Social Security Act, section 702(a)(5). The APA provides exceptions to 
its notice and public comment procedures when an agency finds that 
there is good cause for dispensing with such procedures because they 
are impracticable, unnecessary, or contrary to the public interest.
    We find that there is good cause under 5 U.S.C. 553(b)(B) for 
dispensing with notice and public comment procedures because notice and 
public comment are unnecessary. As we indicated above, the only change 
we are making in these rules is to remove our requirement to use a 
specific paper form, which will allow State agency adjudicators to 
show, explain, and affirm their findings in other ways. We are not 
making any substantive changes to the information they must provide or 
to our signature requirements. As we explained in more detail earlier 
in this preamble, the web-based tool includes all of the essential 
elements of the SSA-538; it simply does not include an electronic 
version of a ``Form SSA-538'' or contain web pages that look exactly 
like the paper form.
    For the same reason, we also find good cause for dispensing with 
the 30-day delay in the effective date of a final rule under 5 U.S.C. 
553(d). The change represents merely another option for recording and 
affirming our findings and does not change the substance of what we 
require adjudicators to record. Therefore, we find that it is 
unnecessary to delay the effective date of these rules.

Executive Order 12866, as supplemented by Executive Order 13563

    We consulted with the Office of Management and Budget (OMB) and 
determined that this final rule meets the criteria for a significant 
regulatory action under Executive Order 12866, as supplemented by 
Executive Order 13563. Therefore, OMB reviewed it.

Regulatory Flexibility Act

    We certify that this final rule does not have a significant 
economic impact on a substantial number of small entities because it 
affects only persons or States. Thus, a regulatory flexibility analysis 
as provided in the Regulatory Flexibility Act, as amended, is not 

Paperwork Reduction Act

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

(Catalog of Federal Domestic Program No. 96.006, Supplemental 
Security Income.)

List of Subjects in 20 CFR Part 416

    Administrative practice and procedure, Aged, blind, disability 
benefits, Public assistance programs, Reporting and recordkeeping 
requirements, Supplemental security income (SSI).

Michael J. Astrue,
Commissioner of Social Security.

    For the reasons set out in the preamble, we amend title 20 of the 
Code of Federal Regulations, chapter III, part 416, subpart I as 

[[Page 41687]]


Subpart I--[Amended]

1. 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, and 1382h note).

2. Amend Sec.  416.924 by revising paragraph (g) to read as follows:

Sec.  416.924  How we determine disability for children.

* * * * *
    (g) How we will explain our findings. When we make a determination 
or decision whether you are disabled under this section or whether your 
disability continues under Sec.  416.994a, we will indicate our 
findings at each step of the sequential evaluation process as we 
explain in this paragraph. At the initial and reconsideration levels of 
the administrative review process, State agency medical and 
psychological consultants will indicate their findings in writing in a 
manner that we prescribe. The State agency medical or psychological 
consultant (see Sec.  416.1016) or other designee of the Commissioner 
has overall responsibility for completing the prescribed writing and 
must sign the prescribed writing to attest that it is complete, 
including the findings of fact and any discussion of supporting 
evidence. Disability hearing officers, administrative law judges and 
the administrative appeals judges on the Appeals Council (when the 
Appeals Council makes a decision) will indicate their findings at each 
step of the sequential evaluation process in their determinations or 
decisions. In claims adjudicated under the procedures in part 405 of 
this chapter, administrative law judges will also indicate their 
findings at each step of the sequential evaluation process in their 

[FR Doc. 2011-17859 Filed 7-14-11; 8:45 am]