On November 18, 2019, SSA proposed changes to its continuing disability review (CDR) process that raised widespread concern and prompted a torrent of comments in opposition. The proposed regulations, “Rules Regarding the Frequency and Notice of Continuing Disability Reviews,” 84 Fed. Reg. 63588, propose adding a new diary category that would increase the frequency of review and result in most claimants being subject to CDR every two years.
Current CDR rules provide for each disability claim to be assigned to one of the following three diary categories:
- Medical Improvement Expected (MIE) – review after 6-18 months;
- Medical Improvement Possible (MIP) – review after 3 years; and
- Medical Improvement Not Expected (MINE) – review after 5 to 7 years.
SSA now proposes a new category of “Medical Improvement Likely” (MIL) that requires review after only two years. It would to apply to impairments that “typically do not result in permanent, irreversible structural damage and are amenable to improving with treatment.”
SSA has not specified how many claimants would be affected by this. But based on background material published with the Notice of Proposed Rule Making (NPRM), the new MIL category would appear to capture most people, including all claimants found disabled at Step 5. Among the diagnoses SSA expects to include are cancers found to be disabling for a specified period and anxiety disorders. With this new scheme, MIP would become the diary “of last resort.” SSA also proposes to change the diary for MINE to six years.
An overwhelming number of comments have been filed in opposition to the proposals. As this newsletter went to press a few days before the comment deadline of January 31st, over 100,000 comments had been lodged. While the authors of this newsletter have not reviewed them all, all indications are that most comments are in strong opposition. This is indicated by coverage so far, including several news articles by local and national outlets, and a prominent op-ed in the New York Times. There has also been significant social media coverage.
One point made frequently in comments and in the press has been the similarity of these proposals to rules enacted in the 1980s when the Reagan Administration initiated a program of mass CDRs. The policy was considered by many to be a scandal and a disaster, resulting in benefits termination of over 300,000 claimants. There was a massive public outcry that ultimately resulted in several statutory reforms and the current rules for CDRs.
This time around, advocates and claimants appear to have mobilized in advance of the rules being finalized. It is not impossible for SSA to reverse its course and it is encouraging that it did so with its proposal to eliminate a claimant’s right to opt out of Video Teleconferencing (VTC). For now it remains to be seen if the agency will heed the lessons from history and the comments of over 100,000 (and counting).