Evidence From Excluded Medical Sources of Evidence, 65536-65541 [2016-22909]

Agencies

• Social Security Administration

[Federal Register Volume 81, Number 185 (Friday, September 23, 2016)]
[Rules and Regulations]
[Pages 65536-65541]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-22909]


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SOCIAL SECURITY ADMINISTRATION

20 CFR Parts 404 and 416

[Docket No. SSA-2016-0015]
RIN 0960-AH92


Evidence From Excluded Medical Sources of Evidence

AGENCY: Social Security Administration.

ACTION: Final rules.

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SUMMARY: In accordance with section 812 of the Bipartisan Budget Act of 
2015 (BBA section 812), these rules explain how we will address 
evidence furnished by medical sources that meet one of BBA section 
812's exclusionary categories (excluded medical sources of evidence) as 
described below. Under these new rules, we will not consider evidence 
furnished by an excluded medical source of evidence unless we find good 
cause to do so. We identify five circumstances in which we may find 
good cause. In these rules, we also require excluded medical sources of 
evidence to notify us of their excluded status under section 
223(d)(5)(C)(i) of the Social Security Act (Act), as amended, in 
writing each time they furnish evidence to us that relates to a claim 
for initial or continuing benefits under titles II or XVI of the Act. 
These rules will allow us to fulfill obligations that we have under BBA 
section 812.

DATES: These final rules will be effective on November 2, 2016.

FOR FURTHER INFORMATION CONTACT: Dan O'Brien, Office of Disability 
Policy, Social Security Administration, 6401 Security Boulevard, 
Baltimore, Maryland 21235-6401, (410) 597-1632. 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 www.socialsecurity.gov.

SUPPLEMENTARY INFORMATION: On June 10, 2016, we published a notice of 
proposed rulemaking (NPRM) in which we proposed to implement BBA 
section 812 by adding new sections to our rules that would explain when 
we would not consider evidence from an excluded medical source of 
evidence under section 223(d)(5)(C)(i) of the Act, as amended.\1\ We 
also identified five circumstances in which we proposed to find good 
cause to consider evidence that would otherwise be excluded. In 
addition, we proposed to require that excluded medical sources of 
evidence notify us of their excluded status under section 
223(d)(5)(C)(i) of the Act, as amended, in writing, each time they 
furnish evidence to us in relation to a claim for initial or continuing 
benefits under titles II or XVI of the Act. We are adopting these 
proposed rules as final rules.
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    \1\ Public Law 114-74, sec. 812, 129 Stat. 584, 602; 81 FR 
37557.
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    Congress enacted the BBA on November 2, 2015.\2\ BBA section 812 
amended section 223(d)(5) of the Act, 42 U.S.C. 423(d)(5), by adding a 
new paragraph ``C.'' Under this provision, when we make a disability 
determination or decision or when we conduct a continuing disability 
review (CDR) under titles II or XVI of the Act, we cannot consider 
evidence furnished by certain medical sources unless we have good 
cause.\3\ Under these new rules, we may find good cause to consider 
evidence furnished by an excluded medical source of evidence in the 
following five situations:
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    \2\ Public Law 114-74, 129 Stat. 584.

    \3\ Public Law 114-74, sec. 812, 129 Stat. 584, 602. The 
exclusion of evidence under BBA section 812 does not constitute an 
exclusion of a medical source from Social Security programs under 
section 1136 of the Act, 42 U.S.C. 1320b-6.

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[[Page 65537]]

     The evidence furnished by the medical source consists of 
evidence of treatment that occurred before the date the source was 
convicted of a felony under section 208 or under section 1632 of the 
Act;
     the evidence furnished by the medical source consists of 
evidence of treatment that occurred during a period in which the source 
was not excluded from participation in any Federal health care program 
under section 1128 of the Act;
     the evidence furnished by the medical source consists of 
evidence of treatment that occurred before the date the source received 
a final decision imposing a civil monetary penalty (CMP), assessment, 
or both, for submitting false evidence under section 1129 of the Act;
     the sole basis for the medical source's exclusion under 
section 223(d)(5)(C)(i) of the Act, as amended, is that the source 
cannot participate in any Federal health care program under section 
1128 of the Act, but the Office of Inspector General of the Department 
of Health and Human Services (HHS' OIG) granted a waiver of the section 
1128 exclusion; or
     the evidence is a laboratory finding about a physical 
impairment and there is no indication that the finding is unreliable.
We may find good cause to consider evidence furnished by an excluded 
medical source of evidence in any of these five enumerated situations 
when we make a disability determination or decision or when we conduct 
a CDR.
    As we stated in our NPRM, our long-term solution to the 
administration of BBA section 812 is to implement automated evidence 
matching within our case processing system(s) to identify excludable 
evidence. As part of our efforts to comply with BBA section 812's 
implementation deadline of November 2, 2016, we will require that 
excluded medical sources of evidence inform us in writing of the facts 
or event(s) triggering BBA section 812 each time they submit evidence 
to us that relates to a claim for initial or continuing benefits under 
titles II or XVI of the Act.
    Regarding the content of the written statement, excluded medical 
sources of evidence will be required to include a heading that states,

WRITTEN STATEMENT REGARDING SECTION 223(d)(5)(C) OF THE SOCIAL 
SECURITY ACT--DO NOT REMOVE.

Immediately following this heading, sources will also need to include 
their name, title, and the applicable event(s) that triggered the 
application of BBA section 812. Sources convicted of a felony under 
section 208 or 1632 of the Act will also need to provide the date of 
their felony conviction. Similarly, sources that have been imposed with 
a CMP, an assessment, or both for submitting false evidence under 
section 1129 of the Act will need to provide the date of the final 
imposition of the CMP, assessment, or both. Sources that cannot 
participate in any Federal health care program under section 1128 of 
the Act will need to include the basis for the exclusion, its effective 
date and anticipated length, and whether HHS' OIG waived it.
    Our reporting requirement will apply only to excluded medical 
sources of evidence that furnish evidence to us directly or indirectly 
through a representative, claimant, or other individual or entity. 
Further, we will require that no individual or entity be permitted to 
remove an excluded medical source of evidence's written statement prior 
to submitting the source's evidence to us. We also reserve the right to 
request that excluded medical sources of evidence provide additional 
information or clarify any information they submit regarding the 
circumstances or events that trigger section 223(d)(5)(C)(i) of the 
Act, as amended. If excluded medical sources of evidence do not inform 
us of their excluded status, we may refer them to our Office of the 
Inspector General for any action it deems appropriate, including 
investigation and CMP pursuit.
    Additional information and discussion can be found in the preamble 
to our NPRM.\4\
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    \4\ 81 FR 37557.
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Public Comments and Discussion

    On June 10, 2016, we published an NPRM in the Federal Register at 
81 FR 37557 and provided a 60-day comment period. We received six 
timely submitted comments that addressed issues within the scope of our 
proposed rules. Below, we present all of the views received and address 
all of the relevant and significant issues raised by the commenters. We 
carefully considered the concerns expressed in these comments, but did 
not make any changes to our rules as a result of the comments.
    Comment: One commenter expressed concern about our excluding 
evidence furnished by an excluded medical source of evidence relating 
to a claim for initial or continuing benefits under titles II or XVI of 
the Act. The commenter asserted that such a procedure is inconsistent 
with the rules of evidence of most states and the Federal courts. 
Specifically, the commenter stated that ``[t]ypically, the question is 
not whether the opinion is admissible, but what weight should be given 
to each opinion.''
    Response: Our disability determination procedures are governed by 
the Act and the rules we issue under the authority mandated in the Act, 
rather than the rules of evidence in State or Federal court.\5\ Section 
223(d)(5)(C)(i) of the Act, as amended by BBA section 812, mandates 
that, absent good cause, we may not consider evidence furnished by 
certain sources of evidence. Our new rules identify the five situations 
where we may find good cause to consider evidence furnished by excluded 
medical sources of evidence. The rules we are adopting here are 
required by, and are consistent with, section 223(d)(5)(C)(i) of the 
Act.
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    \5\ Section 205 of the Act, 42 U.S.C. 405; 20 CFR 404.1501, et 
seq., 416.901, et seq. Under section 205(b)(1) of the Act, 42 U.S.C. 
405(b)(1), the rules of evidence that apply in court proceedings do 
not apply to our determinations or decisions.
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    Comment: One commenter generally approved of our rules, but sought 
clarification about whether we would impose sanctions against an 
excluded medical source of evidence prior to the source's conviction.
    Response: These rules do not impose sanctions on excludable medical 
sources of evidence prior to the source's conviction or other 
excludable event. These rules, however, do not in any way limit our 
ability to seek to impose sanctions under other authority granted by 
the Act or our rules. As required by section 223(d)(5)(C)(i) of the 
Act, our new rules require us to exclude evidence furnished by excluded 
medical sources of evidence unless we find good cause to consider that 
evidence. They also require excluded medical sources of evidence to 
inform us in writing of their excluded status each time they submit 
evidence related to a claim for initial or continuing benefits under 
titles II or XVI of the Act, prohibit any other individual or entity 
from removing that written statement prior to submitting the source's 
evidence to us, and permit us to seek clarification or additional 
information from the excluded medical source of evidence regarding that 
written statement. Additionally, nothing in these new rules affects our 
ability under sections 404.988(c)(1) and 416.1488(c) of our rules, 20 
CFR 404.988(c)(1), 416.1488(c), to reopen at any time a determination 
or decision obtained by fraud or similar fault.
    Comment: One commenter asked how we would handle evidence furnished 
by

[[Page 65538]]

a medical source that later became an excluded medical source of 
evidence.
    Response: Our good cause exceptions are relevant to this comment. 
We will consider evidence furnished by a medical source that later 
becomes an excluded medical source of evidence if that treatment 
occurred (1) before the source was convicted of a felony under sections 
208 or 1632 of the Act, (2) outside the period the source was excluded 
from participating in any Federal health care program under section 
1128 of the Act, or (3) before the source received a final decision 
imposing a CMP, assessment, or both, for submitting false evidence 
under section 1129 of the Act. If a medical source later becomes an 
excluded medical source of evidence and furnishes additional evidence 
to us, the source will be required to include a written statement of 
excluded status with the additional furnished evidence.
    Comment: One commenter sought clarification about whether we would 
notify a claimant of our exclusion of evidence furnished by an excluded 
medical source of evidence where no good cause exception applied.
    Response: We will use the appropriate determination or decisional 
notice to inform a claimant of our exclusion of evidence furnished by 
an excluded medical source of evidence where no good cause exception 
applies.
    Comment: Three commenters generally supported our rules, but they 
requested that we expand the scope of our fifth good cause exception, 
which permits us to consider laboratory findings about a physical 
impairment when there is no indication that the findings are 
unreliable. The commenters proposed that we expand the scope of this 
exception to include laboratory findings about a mental impairment and 
signs about physical or mental impairments.
    Response: We are not adopting the requests that we expand the scope 
of our fifth good cause exception from laboratory findings about a 
physical impairment to laboratory findings about a physical or mental 
impairment and signs about a physical or mental impairment. We are not 
including signs in this exception because they require more subjective 
interpretation by an excluded medical source of evidence than do 
laboratory findings about physical impairments. Laboratory findings are 
based on the use of medically acceptable diagnostic techniques, 
including blood tests, biopsies, and x-rays. Signs, in contrast, are 
abnormalities that can be observed apart from a claimant's statements. 
They would include, for example, an excluded medical source of 
evidence's observation and report that a claimant walked with a limp, 
had decreased range of motion, or showed decreased strength. We believe 
that including these types of observations and reports in our fifth 
good cause exception would not be in keeping with section 
223(d)(5)(C)(i) of the Act, as amended by BBA section 812. Generally, 
the events that trigger application of BBA section 812 (felony 
conviction under section 208 or 1632; exclusion under section 1128, or 
CMP for submitting false evidence under section 1129) can be viewed as 
implicating issues of honesty, integrity, and professional conduct and 
competence. For example, medical sources that fall under section 
223(d)(5)(C)(i) of the Act, as amended, include sources (1) convicted 
of a felony under section 208 or 1632 of the Act for making a false 
statement of material fact used to determine a claimant's right to a 
disability payment, (2) excluded from participating in any Federal 
health care program under section 1128(a)(3) of the Act based on a 
felony conviction related to health care fraud, and (3) imposed with a 
CMP for submitting false evidence to us. Thus, because signs rely more 
heavily on what the excluded medical source of evidence observes and 
reports than laboratory findings do, we believe it would be 
inappropriate to include them in our fifth good cause exception.
    We also note that we are not entirely barring signs furnished by an 
excluded medical source of evidence. If such evidence meets one or more 
of the other enumerated good cause exceptions, we may consider that 
evidence.
    For similar reasons, we also believe it would be inappropriate to 
add laboratory findings about a mental impairment to the fifth good 
cause exception. As we previously stated, we created a good cause 
exception for laboratory findings about a physical impairment because 
we believe such findings to be objective, reliable, and reproducible 
tests that require the least amount of subjective interpretation by a 
medical source. In contrast, our rules explain that standardized 
psychological tests consist of ``standardized sets of tasks or 
questions designed to elicit a range of responses.'' \6\ As such, we 
believe these tests do not have the same level of reproducibility as 
laboratory findings about a physical impairment because they require 
more subjective interpretation by the excluded medical source of 
evidence. Specifically, the excluded medical source of evidence has to 
ask the questions or direct the tasks, observe the responses, and 
accurately report those responses. Conversely, laboratory findings 
related to a physical impairment include tests such as blood tests, 
biopsies, and x-rays, which we believe to be more reproducible by 
medical sources not subject to section 223(d)(5)(C)(i) of the Act, as 
amended, because they require little subjective interpretation. Thus, 
similar to signs, because standardized psychological tests may depend, 
at least in part, on what the excluded medical source of evidence 
observes and reports than do laboratory findings about a physical 
impairment, we believe they are less reproducible and should not be 
included in our fifth good cause exception.
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    \6\ 20 CFR part 404, subpart P, app. 1, section 12.00D.5.b.
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    In addition, we disagree with the commenters' assertion that we 
would exclude a laboratory finding about a physical impairment in the 
evaluation of a mental impairment. Nothing in this good cause exception 
limits how or for what purpose we may consider evidence to which the 
exception applies. Absent any evidence of unreliability, we may use 
laboratory findings about a physical impairment as appropriate, 
including but not limited to, evaluating the severity of a claimant's 
mental impairment(s).
    As is the case for signs, we are not entirely barring laboratory 
findings about a mental impairment furnished by an excluded medical 
source of evidence. If such evidence meets one or more of the other 
enumerated good cause exceptions, we may consider that evidence.
    Finally, we note that even though we will be required to exclude 
evidence unless a good cause exception applies, section 223(d)(5)(C) of 
the Act, as amended by BBA section 812, does not limit our ability to 
purchase a consultative examination, if appropriate under our rules.\7\
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    \7\ 20 CFR 404.1519a, 404.1519b, 416.919a, 416.919b.
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    Comment: Three commenters asked us to clarify several points 
related to our rules. They first sought clarification that we would 
automatically apply good cause exceptions when circumstances dictated, 
and that a claimant or representative would not need to request that we 
apply an exception.
    Response: We will automatically apply the good cause exceptions. In 
our rules, we specifically state in subsection (a) that we will not 
consider evidence furnished by an excluded medical source of evidence 
unless we find good cause. Likewise, in subsection (b), which sets 
forth the good cause

[[Page 65539]]

exceptions, we again state that we may find good cause, and therefore 
apply the applicable exception.
    Comment: Second, the commenters asked us to explain how we would 
notify claimants and representatives about our exclusion of evidence 
furnished by an excluded medical source of evidence so that they could 
contest the exclusion.
    Response: We will use the appropriate determination or decisional 
notice to inform a claimant and representative of our evaluation of 
evidence furnished by an excluded medical source of evidence. A 
claimant or representative may raise in a request for reconsideration, 
hearing before an administrative law judge, or Appeals Council review, 
an issue regarding our evaluation of this evidence.
    Comment: Third, the commenters requested that we clarify that we 
would hold claimants and representatives harmless if they submitted 
evidence furnished by an excluded medical source of evidence that did 
not include the written statement required under our rules, even if it 
was later determined that such a statement should have been included.
    Response: We generally agree with the commenters that we would not 
hold a claimant or representative responsible for submitting evidence 
furnished by an excluded medical source of evidence that did not 
include the written statement required under our rules, even if it was 
later determined that such a statement should have been included. We 
reiterate, however, that no individual or entity may remove the written 
statement required under our rules prior to submitting evidence 
furnished by an excluded medical source of evidence to us. We further 
make clear that should a claimant or representative violate this 
provision, we reserve the right to take any appropriate actions under 
any relevant statute, regulation, ruling, or procedural policy.
    Comment: Two of the commenters asked that we create a public list 
of excluded medical sources of evidence that would also include 
treatment dates for each source that might be subject to a good cause 
exception. The commenters reasoned, ``This will be of assistance to 
claimants who are deciding which providers to use or attempting to 
assess the viability of their claims.''
    Response: We are not adopting the suggestion for several reasons. 
First, we are not the originating source of information about 
individuals or entities that are convicted of felonies under sections 
208 or 1632 of the Act; excluded from participating in any Federal 
health care program under section 1128 of the Act; and subject to CMPs, 
assessments, or both, for submitting false evidence under section 1129 
of the Act. BBA section 812 requires our OIG and HHS to transmit 
information to us related to excluded medical sources of evidence. 
Therefore, if we were to create such a list, there would be risk that 
we could not update it regularly or quickly enough to reflect additions 
or removals as they happen. Further, even if a provider is an excluded 
medical source of evidence, we may consider evidence from that source 
under our fifth good cause exception--laboratory findings about a 
physical impairment where there is no indication of unreliability. 
Creating a list of excluded sources could prove disadvantageous to 
claimants because it would not include information pertaining to this 
fifth good cause exception, which depends on a particular type of 
evidence, not when the evidence is dated. Hence, we are not adopting 
this suggestion.
    Comment: One commenter suggested that we add a sixth, catch-all, 
good cause exception to be used at our discretion.
    Response: We are not adopting the commenter's suggestion that we 
add a sixth, catch-all good cause exception to be used at our 
discretion. Section 223(d)(5)(C)(i) of the Act, as amended by BBA 
section 812, prohibits us from considering evidence furnished by an 
excluded medical source of evidence unless we find good cause to do so. 
We believe that a broad, catch-all exception would be inconsistent with 
section 223(d)(5)(C)(i) of the Act, as amended. Instead, we believe the 
five good cause exceptions that we have enumerated in our rules strike 
the appropriate balance between complying with section 223(d)(5)(C)(i) 
of the Act, as amended, and permitting claimants to prove that they are 
disabled under our rules.

Regulatory Procedures

Executive Order 12866, as Supplemented by Executive Order 13563
    We consulted with the Office of Management and Budget (OMB) and 
determined that these rules do not meet the criteria for a significant 
regulatory action under Executive Order 12866, as supplemented by 
Executive Order 13563. Therefore, OMB has not reviewed them.
Regulatory Flexibility Act
    We certify that these rules will not have a significant economic 
impact on a substantial number of small entities. The only economic 
impact on small entities from these rules results from BBA section 
812's requirement that we not consider evidence furnished by excluded 
medical sources of evidence. As described above and in our Paperwork 
Reduction Act statement, below, we will require excluded medical 
sources of evidence to provide us with a brief self-report containing 
basic information each time they furnish evidence related to a claim 
for initial or continuing benefits under titles II or XVI of the Act. 
Therefore, a regulatory flexibility analysis is not required under the 
Regulatory Flexibility Act, as amended.
Paperwork Reduction Act
    On June 10, 2016, when SSA published an NPRM at 81 FR 37557 for the 
provisions we are now finalizing in this rule, we also solicited 
comment under the Paperwork Reduction Act for an associated Information 
Collection Request (ICR). In that solicitation, we asked for comment on 
the burden estimate; the need for the information; its practical 
utility; ways to enhance its quality, utility, and clarity; and ways to 
minimize the burden on respondents, including the use of automated 
techniques or other forms of information technology. We did not receive 
any public comments in response to this solicitation, and we are not 
making any changes to the ICR. Accordingly, we are re-submitting the 
ICR to OMB, and are requesting approval for it under the Paperwork 
Reduction Act after publication of the Final Rule.

(Catalog of Federal Domestic Assistance Program Nos. 96.001, Social 
Security--Disability Insurance; 96.002, Social Security--Retirement 
Insurance; and 96.004, Social Security--Survivors Insurance)

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, Reporting and recordkeeping 
requirements, Supplemental Security Income (SSI).

Carolyn W. Colvin,
Acting Commissioner of Social Security.

    For the reasons set out in the preamble, we amend 20 CFR part 404 
subpart P and part 416 subpart I as set forth below:

[[Page 65540]]

PART 404--FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE 
(1950-)

Subpart P--Determining Disability and Blindness

0
1. The authority citation for subpart P of part 404 continues 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).


0
2. Add Sec.  404.1503b to read as follows:


Sec.  404.1503b  Evidence from excluded medical sources of evidence.

    (a) General. We will not consider evidence from the following 
medical sources excluded under section 223(d)(5)(C)(i) of the Social 
Security Act (Act), as amended, unless we find good cause under 
paragraph (b) of this section:
    (1) Any medical source that has been convicted of a felony under 
section 208 or under section 1632 of the Act;
    (2) Any medical source that has been excluded from participation in 
any Federal health care program under section 1128 of the Act; or
    (3) Any medical source that has received a final decision imposing 
a civil monetary penalty or assessment, or both, for submitting false 
evidence under section 1129 of the Act.
    (b) Good cause. We may find good cause to consider evidence from an 
excluded medical source of evidence under section 223(d)(5)(C)(i) of 
the Act, as amended, if:
    (1) The evidence from the medical source consists of evidence of 
treatment that occurred before the date the source was convicted of a 
felony under section 208 or under section 1632 of the Act;
    (2) The evidence from the medical source consists of evidence of 
treatment that occurred during a period in which the source was not 
excluded from participation in any Federal health care program under 
section 1128 of the Act;
    (3) The evidence from the medical source consists of evidence of 
treatment that occurred before the date the source received a final 
decision imposing a civil monetary penalty or assessment, or both, for 
submitting false evidence under section 1129 of the Act;
    (4) The sole basis for the medical source's exclusion under section 
223(d)(5)(C)(i) of the Act, as amended, is that the source cannot 
participate in any Federal health care program under section 1128 of 
the Act, but the Office of Inspector General of the Department of 
Health and Human Services granted a waiver of the section 1128 
exclusion; or
    (5) The evidence is a laboratory finding about a physical 
impairment and there is no indication that the finding is unreliable.
    (c) Reporting requirements for excluded medical sources of 
evidence. Excluded medical sources of evidence (as described in 
paragraph (a) of this section) must inform us in writing that they are 
excluded under section 223(d)(5)(C)(i) of the Act, as amended, each 
time they submit evidence related to a claim for initial or continuing 
benefits under titles II or XVI of the Act. This reporting requirement 
applies to evidence that excluded medical sources of evidence submit to 
us either directly or through a representative, claimant, or other 
individual or entity.
    (1) Excluded medical sources of evidence must provide a written 
statement, which contains the following information:
    (i) A heading stating: ``WRITTEN STATEMENT REGARDING SECTION 
223(d)(5)(C) OF THE SOCIAL SECURITY ACT--DO NOT REMOVE''
    (ii) The name and title of the medical source;
    (iii) The applicable excluding event(s) stated in paragraph (a)(1)-
(a)(3) of this section;
    (iv) The date of the medical source's felony conviction under 
sections 208 or 1632 of the Act, if applicable;
    (v) The date of the imposition of a civil monetary penalty or 
assessment, or both, for the submission of false evidence, under 
section 1129 of the Act, if applicable; and
    (vi) The basis, effective date, anticipated length of the 
exclusion, and whether the Office of the Inspector General of the 
Department of Health and Human Services waived the exclusion, if the 
excluding event was the medical source's exclusion from participation 
in any Federal health care program under section 1128 of the Act.
    (2) The written statement provided by an excluded medical source of 
evidence may not be removed by any individual or entity prior to 
submitting evidence to us.
    (3) We may request that the excluded medical source of evidence 
provide us with additional information or clarify any information 
submitted that bears on the medical source's exclusion(s) under section 
223(d)(5)(C)(i) of the Act, as amended.

PART 416--SUPPLEMENTAL SECURITY INCOME FOR THE AGED, BLIND, AND 
DISABLED

Subpart I--Determining Disability and Blindness

0
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, and 1382h note).


0
4. Add Sec.  416.903b to read as follows:


Sec.  416.903b  Evidence from excluded medical sources of evidence.

    (a) General. We will not consider evidence from the following 
medical sources excluded under section 223(d)(5)(C)(i) of the Social 
Security Act (Act), as amended, unless we find good cause under 
paragraph (b) of this section:
    (1) Any medical source that has been convicted of a felony under 
section 208 or under section 1632 of the Act;
    (2) Any medical source that has been excluded from participation in 
any Federal health care program under section 1128 of the Act; or
    (3) Any medical source that has received a final decision imposing 
a civil monetary penalty or assessment, or both, for submitting false 
evidence under section 1129 of the Act.
    (b) Good cause. We may find good cause to consider evidence from an 
excluded medical source of evidence under section 223(d)(5)(C)(i) of 
the Act, as amended, if:
    (1) The evidence from the medical source consists of evidence of 
treatment that occurred before the date the source was convicted of a 
felony under section 208 or under section 1632 of the Act;
    (2) The evidence from the medical source consists of evidence of 
treatment that occurred during a period in which the source was not 
excluded from participation in any Federal health care program under 
section 1128 of the Act;
    (3) The evidence from the medical source consists of evidence of 
treatment that occurred before the date the source received a final 
decision imposing a civil monetary penalty or assessment, or both, for 
submitting false evidence under section 1129 of the Act;
    (4) The sole basis for the medical source's exclusion under section 
223(d)(5)(C)(i) of the Act, as amended, is that the source cannot 
participate in any Federal health care program under section 1128 of 
the Act, but the Office

[[Page 65541]]

of Inspector General of the Department of Health and Human Services 
granted a waiver of the section 1128 exclusion; or
    (5) The evidence is a laboratory finding about a physical 
impairment and there is no indication that the finding is unreliable.
    (c) Reporting requirements for excluded medical sources of 
evidence. Excluded medical sources of evidence (as described in 
paragraph (a) of this section) must inform us in writing that they are 
excluded under section 223(d)(5)(C)(i) of the Act, as amended, each 
time they submit evidence related to a claim for initial or continuing 
benefits under titles II or XVI of the Act. This reporting requirement 
applies to evidence that excluded medical sources of evidence submit to 
us either directly or through a representative, claimant, or other 
individual or entity.
    (1) Excluded medical sources of evidence must provide a written 
statement, which contains the following information:
    (i) A heading stating: ``WRITTEN STATEMENT REGARDING SECTION 
223(d)(5)(C) OF THE SOCIAL SECURITY ACT--DO NOT REMOVE''
    (ii) The name and title of the medical source;
    (iii) The applicable excluding event(s) stated in paragraph (a)(1)-
(a)(3) of this section;
    (iv) The date of the medical source's felony conviction under 
sections 208 or 1632 of the Act, if applicable;
    (v) The date of the imposition of a civil monetary penalty or 
assessment, or both, for the submission of false evidence, under 
section 1129 of the Act, if applicable; and
    (vi) The basis, effective date, anticipated length of the 
exclusion, and whether the Office of the Inspector General of the 
Department of Health and Human Services waived the exclusion, if the 
excluding event was the medical source's exclusion from participation 
in any Federal health care program under section 1128 of the Act.
    (2) The written statement provided by an excluded medical source of 
evidence may not be removed by any individual or entity prior to 
submitting evidence to us.
    (3) We may request that the excluded medical source of evidence 
provide us with additional information or clarify any information 
submitted that bears on the medical source's exclusion(s) under section 
223(d)(5)(C)(i) of the Act, as amended.

[FR Doc. 2016-22909 Filed 9-22-16; 8:45 am]
 BILLING CODE P