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Federal Register / Vol. 86, No. 139 / Friday, July 23, 2021 / Rules and Regulations before the COVID19 national public health emergency may now have more difficulty producing evidence to meet the standard. It is possible that, in light of the pandemic and the temporary changes in healthcare described above, claimants have scheduled fewer clinical visits or have been afforded fewer appointments that would allow them to provide the necessary evidence. Because such a claimant would lack the necessary documentation to meet the listing in the absence of this temporary change, we would not find the claimant disabled under the listings, although we could make a finding of disability at later steps of our sequential evaluation process in appropriate cases.
In recognition of the economic and social services crisis caused by the COVID19 national public health emergency, the President published Executive Order 14002 Economic Relief Related to the COVID19 Pandemic,27
which directed Federal agencies to consider actions to improve access to and reduce unnecessary barriers to Federally-funded programs. We are issuing this rule in furtherance of the goals in the Executive Order.
This rule will remain in effect until 6
months after the effective date of a determination by the Secretary of Health and Human Services under section 319
of the Public Health Service Act, 42
U.S.C. 247d, that the national public health emergency resulting from the COVID19 pandemic no longer exists, which will afford claimants the opportunity to attend scheduled appointments that may have been delayed during the national public health emergency, allow us time to adjudicate claims affected by the rule, and allow sufficient time to notify the adjudicative community of the change.
We will continue to apply the consecutive 12-month period until 6
months after the Secretary of HHS
determines that the COVID19 national public health emergency no longer exists to allow time for health care access to normalize back to prepandemic period levels and to account for potential backlogs in medical care that may continue to interfere with access to the relevant care and documentation needed to satisfy the listing criteria. Additionally, the expiration date included in this temporary final rule will provide us with the time necessary to publish a document in the Federal Register to advise the public of the date on which this rule will no longer be effective, communicate the change to adjudicators and the public, update our materials 27 86

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that reference the consecutive 12-month period, and process claims where the medical care was received prior to the end of the COVID19 national public health emergency.
Summary of the Changes This rule adds a new section 1.00C7a and 101.00C7a to the musculoskeletal disorders listings. The rule also redesignates current sections 1.00C7a and 1.00C7b as 1.00C7b and 1.00C7c, respectively, and 101.00C7a and 101.00C7b as 101.00C7b and 101.00C7c, respectively. New sections 1.00C7a and 101.00C7a define the term pandemic period to mean the period beginning on April 2, 2021 and ending on the date that is 6 months after the effective date of a determination by the Secretary of Health and Human Services under section 319 of the Public Health Service Act, 42 U.S.C. 247d, that the national public health emergency resulting from the COVID19 pandemic no longer exists. Redesignated and revised sections 1.00C7c and 101.00C7c provide that, for purposes of listings 1.15, 1.16, 1.17, 1.18, 1.20C, 1.20D, 1.22, 1.23, 101.15, 101.16, 101.17, 101.18, 101.20C, 101.20D, 101.22, and 101.23, the phrase within a close proximity of time means that all of the relevant criteria must appear in the medical record within a consecutive 4-month period, except for claims determined or decided during the pandemic period. For claims that we determine or decide during the pandemic period, we provide that all of the relevant criteria must appear in the medical record within a consecutive 12month period.
Regulatory Procedures Justification for Issuing a Rule Without Notice and Comment We follow the Administrative Procedure Acts APA rulemaking procedures specified in 5 U.S.C. 553
when we develop regulations.
Generally, the APA requires that an agency provide prior notice and opportunity for public comment before issuing a final rule. The APA provides exceptions to its notice and public comment procedures when an agency finds there is good cause for dispensing with such procedures because they are impracticable, unnecessary, or contrary to the public interest 5 U.S.C.
553bB.
We find that there is good cause under 5 U.S.C. 553bB to issue this rule without prior public comment because prior public comment is impracticable and contrary to public interest.

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We find that public comment is impracticable because the delay associated with the public comment process would impede our ability to provide this flexibility to claimants affected by the changed nature of healthcare. The delay associated with the public comment process would also affect our ability to operate efficiently and provide appropriate public service because it would require us to hold or readjudicate cases affected by this change, possibly delaying benefits to disabled individuals. People eligible for disability benefits are, by definition, not able to engage in substantial gainful activity.28 Therefore, many applicants may experience immediate and severe financial hardship,29 placing them at risk of losing their homes, means of transportation, access to health care, and other important resources, in addition to experiencing increased stress as they await the outcome of their case and their award of benefits. This is particularly true for the population that is eligible for Supplemental Security Income SSI benefits, which has, by definition, severely limited income and financial resources.30 An unnecessary delay during this vulnerable period, particularly in the context of the economic and other hardships caused by the pandemic, would cause significant harm and detract substantially from the effectiveness of the disability program in providing meaningful economic relief for disabled 28 42 U.S.C. 223d1 and 1614a3A, 20 CFR
404.1505, 404.1572, 416.905, 416.972.
29 See Bailey, Michelle Stegman and Jeffrey Hemmeter. Characteristics of Noninstitutionalized DI and SSI Program Participants, 2013 Update, Research and Statistics Note No. 201502.
Washington, DC: Office of Research, Evaluation, and Statistics, Office of Retirement and Disability Policy, Social Security Administration, September 2015, https www.ssa.gov/policy/docs/rsnotes/
rsn2015-02.html, which shows that 51 percent of DI
beneficiaries and 63 percent of SSI beneficiaries have household incomes below the poverty level, excluding their DI and SSI payments. The study also found that DI payments represented an 85
percent reduction in the poverty gap and SSI
payments represented a 68 percent reduction in the poverty gap for beneficiaries. See also SSA Social Security Administration, National Beneficiary Survey: Disability Statistics, 2015, SSA Publication No. 1311826. Washington, DC: SSA. https
www.ssa.gov/policy/docs/statcomps/nbs/2015/nbsstatistics-2015.pdf, which shows that over 45
percent of disability beneficiaries have a household income lower than the poverty level. Additionally, see Mathews v. Eldridge, 424 U.S. 319, 342 1976
in view of . . . the typically modest resources of the family unit of the physically disabled worker, the hardship imposed upon the erroneously terminated disability recipient may be significant.; White v. Mathews, 559 F.2d 852 2d Cir. 1977 The disability insurance program is designed to alleviate the immediate and often severe hardships that result from a wage-earners disability. In that context, delays . . . detract seriously from the effectiveness of the program..
30 42 U.S.C. 1611a, 20 CFR 416.202.

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