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Federal Register / Vol. 86, No. 139 / Friday, July 23, 2021 / Rules and Regulations
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individuals. 31 Even if they receive the same benefits at a later date, these individuals may suffer from long term or permanent consequences of the lost income during the period of delay.
We also find that delaying immediate implementation of this temporary final rule to obtain public comment would be contrary to the public interest because it would prolong the time it would take to adjudicate claims and provide benefits to claimants. This rule is intended to provide us with flexibility to determine that an individuals musculoskeletal disorder meets the requirements of the listings, considering the emerging evidence regarding changes in healthcare delivery that have resulted from the COVID19 national public health emergency. It also provides for claimants to receive needed benefits at a time when they are financially and medically vulnerable due to onset of disability and the COVID19 pandemic, based on the evidence that is likely to be in their file during the pandemic.
Providing the opportunity for public comment before we implement this rule would prevent us from acting within a meaningful timeframe to account for current access-to-care limitations that prevent claimants who may meet the listing from establishing requisite evidence to show it, because the pandemic-related barriers to access of care that this rule attempts to alleviate would continue to occur. Providing opportunity for prior public comment could also result in the rule taking effect only after the proposed expiration date, when access to care has returned to prepandemic norms, which would negate the need for the rule. Consequently, if we offered the opportunity for public comment prior to immediate temporary implementation, we would be unable to 31 See Deshpande, Manasi, Tal Gross, and Yalun Su. 2021. Disability and Distress: The Effect of Disability Programs on Financial Outcomes.
American Economic Journal: Applied Economics, 13 2: 15178, https pubs.aeaweb.org/doi/
pdfplus/10.1257/app.20190709, which found that rates of bankruptcy, foreclosure, and eviction among disability applicants are higher than in the general population; rates of these adverse financial events increase leading up to the application date and peak around the application date; and rates of these adverse financial events decline for both allowed and denied applicants after the initial disability decision, but they decline more for the allowed. This suggests that delaying the disability decision can cause long-term or permanent financial harm at a time when applicants are most vulnerable. In fact, the researchers concluded that awarding disability benefits sooner could avert a substantial amount of financial distress among applicants. See also Gross, T., & Trenkamp, B.
2015. Risk of Bankruptcy among Applicants to Disability Insurance. Journal of health care for the poor and underserved, 264, 11491156. https
doi.org/10.1353/hpu.2015.0118, which found that SSDI benefits decrease the risk of bankruptcy to a statistically significant degree among all age groups.

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offer relief to affected claimants in a timely manner, and we would be required to delay our adjudications of certain disability claims impacted by this temporary final rule and be unable to pay needed benefits to affected individuals in a timely manner. The delay associated with a public comment period would also be contrary to the public interest because it would reduce the effectiveness of the rule and the more flexible timeframe we are establishing. Prior public comment would therefore defeat the purpose of this rule, which is to provide effective and timely relief and ensure economic security to individuals affected by the changed nature of healthcare delivery.
In addition, for the reasons cited above, we find good cause for dispensing with the 30-day delay in the date of this rule provided for in 5 U.S.C.
553d3. So, we are making this temporary final rule effective upon publication.
We are making this temporary final rule effective on the date of publication.
However, we invite public comment on all aspects of the temporary final rule as they may apply after the effective date, including: The definition of the pandemic period during which we will apply expanded flexibility in the close proximity of time standard; the appropriate standard for close proximity of time to account for barriers to access to care; information about barriers to access to care and disproportionate burdens faced by any subset of the population; and the expiration date of this rule. Please share any supporting information that you might have. We will consider any substantive comments we receive within 60 days of the publication of this temporary final rule and will issue a revised final rule if necessary after we consider the public comments. We will also study the application of this temporary final rule in our program.
Executive Order 12866, as Supplemented by Executive Order 13563
We consulted with the Office of Management and Budget OMB and determined that this temporary final rule meets the criteria for a significant regulatory action under Executive Order 12866 and is subject to OMB review.
Executive Order 13132 Federalism We analyzed this rule under the principles and criteria established by Executive Order 13132 and determined that the rule will not have sufficient Federalism implications to warrant the preparation of a Federalism assessment.
We also determined that this rule will
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not preempt any State law or State regulation or affect the States abilities to discharge traditional State governmental functions.
Regulatory Flexibility Act We certify that this rule will not have a significant economic impact on a substantial number of small entities, because it affects only individuals.
Therefore, a Regulatory Flexibility Act, as amended, does not require us to prepare a regulatory flexibility analysis.
Anticipated Costs to Our Programs:
Our Office of the Chief Actuary OCACT was not able to provide a specific cost estimate for this temporary final rule, as it does not have any reliable information on which to base program cost estimates. Additionally, this temporary final rule is to be in effect until 6 months after the Secretary of Health and Human Services determines the COVID19 national public health emergency no longer exists, and it is unknown how long it will be until such declaration is made.
Anticipated Administrative Costs to SSA: Our Office of Budget, Finance, and Management notes the unknown magnitude on allowance rates and ambiguity in the effective time period for this temporary final rule, but expects this change will have a minimal administrative effect on the agency.
Paperwork Reduction Act This rule does not create any new or affect any existing collections and, therefore, does not require Office of Management and Budget approval under the Paperwork Reduction Act.
Catalog of Federal Domestic Assistance Program Nos. 96.001, Social Security Disability Insurance; 96.002, Social SecurityRetirement Insurance; 96.004, Social SecuritySurvivors Insurance; and 96.006, Supplemental Security Income
List of Subjects 20 CFR Part 404
Administrative practice and procedure; Blind, Disability benefits;
Old-age, survivors, and disability insurance; Reporting and recordkeeping requirements; Social Security.
20 CFR Part 416
Administrative practice and procedure; Aged, Blind, Disability cash payments; Public assistance programs;
Reporting and recordkeeping requirements; Supplemental Security Income SSI.
The Acting Commissioner of Social Security, Kilolo Kijakazi, having reviewed and approved this document, is delegating the authority to electronically sign this document to
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