[Federal Register: August 13, 2008 (Volume 73, Number 157)]
[Proposed Rules]
[Page 47103-47113]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13au08-22]
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SOCIAL SECURITY ADMINISTRATION
20 CFR Part 404
[Docket No. SSA-2008-0016]
RIN 0960-AG20
Revised Medical Criteria for Evaluating Hearing Loss
AGENCY: Social Security Administration.
ACTION: Notice of proposed rulemaking.
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SUMMARY: We propose to revise the criteria in the Listing of
Impairments (the listings) that we use to evaluate claims involving
hearing loss. We apply these criteria when you claim benefits based on
disability under title II and title XVI of the Social Security Act (the
Act). The proposed revisions reflect current medical knowledge,
treatment, and methods of evaluating hearing loss, as well as our
adjudicative experience since the publication of the current rules.
DATES: To be sure that your comments are considered, we must receive
them by October 14, 2008.
ADDRESSES: You may submit comments by any one of four methods--
Internet, facsimile, regular mail, or hand-delivery. Commenters should
not submit the same comments multiple times or by more than one method.
Regardless of which of the following methods you choose, please state
that your comments refer to Docket No. SSA-2008-0016 to ensure that we
can associate your comments with the correct regulation:
1. Federal eRulemaking portal at http://www.regulations.gov. (This
is the most expedient method for submitting your comments, and we
strongly urge you to use it.) In the Comment or Submission section of
the webpage, type ``SSA-2008-0016,'' select ``Go,'' and then click
``Send a Comment or
[[Page 47104]]
Submission.'' The Federal eRulemaking portal issues you a tracking
number when you submit a comment.
2. Telefax to (410) 966-2830.
3. Letter to the Commissioner of Social Security, P.O. Box 17703,
Baltimore, MD 21235-7703.
4. Deliver your comments to the Office of Regulations, Social
Security Administration, 922 Altmeyer Building, 6401 Security
Boulevard, Baltimore, MD 21235-6401, between 8 a.m. and 4:30 p.m. on
regular business days.
All comments are posted on the Federal eRulemaking portal, although
they may not appear for several days after receipt of the comment. You
may also inspect the comments on regular business days by making
arrangements with the contact person shown in this preamble.
Caution: All comments we receive from members of the public are
available for public viewing in their entirety on the Federal
eRulemaking portal at http://www.regulations.gov. Therefore, you should
be careful to include in your comments only information that you wish
to make publicly available on the Internet. We strongly urge you not to
include any personal information, such as your Social Security number
or medical information, in your comments.
FOR FURTHER INFORMATION CONTACT: Diane Braunstein, Director, Office of
Compassionate Allowances and Listings Improvement, 6401 Security
Boulevard, Baltimore, MD 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 Web site,
Social Security Online, at http://www.socialsecurity.gov.
SUPPLEMENTARY INFORMATION:
Electronic Version
The electronic file of this document is available on the date of
publication in the Federal Register at http://www.gpoaccess.gov/fr/
index.html.
Why are we proposing to revise the listings for hearing loss?
We are proposing to revise the listings for hearing loss to update
the medical criteria in the listings, to provide more information about
how we evaluate hearing loss, and to reflect our adjudicative
experience. The listings for hearing loss are in the special senses and
speech body system. That body system also includes listings for visual
disorders, disturbances of labyrinthine-vestibular function, and loss
of speech. In this Notice of Proposed Rulemaking (NPRM), we are
proposing changes only to the listings for hearing loss. We published
final rules revising the listings for visual disorders in the Federal
Register on November 20, 2006 (71 FR 67037). We intend to publish
separately proposed rules that would update the criteria for
disturbances of labyrinthine-vestibular function and loss of speech.
Prior to the publication of the final rules for evaluating visual
disorders mentioned above, we last published final rules making
comprehensive revisions to the part A special senses and speech
listings in the Federal Register on March 27, 1979 (44 FR 18170), and
final rules making comprehensive revisions to the part B special senses
and speech listings in the Federal Register on March 16, 1977 (42 FR
14705). The current special senses and speech listings will no longer
be effective on February 20, 2015, unless we extend them, or revise and
issue them again.
How did we develop these proposed rules?
We developed these proposed rules based on our adjudicative
experience and advances in medical knowledge, treatment, and methods of
evaluating hearing loss. These proposed rules also reflect comments we
asked the public to provide to help us develop the proposals.
We published an advance notice of proposed rulemaking (ANPRM) in
the Federal Register on April 13, 2005 (70 FR 19353). The purpose of
the ANPRM was to inform the public that we were planning to update and
revise the rules we use to evaluate hearing impairments and disturbance
of labyrinthine-vestibular function and to invite interested
individuals and organizations to send us comments and suggestions for
updating and revising the listings for these disorders. In the ANPRM,
we provided a 60-day period for comments and suggestions; that period
ended on June 13, 2005. We received 13 letters and e-mails from medical
experts, advocates, and State agencies that adjudicate claims for us,
commenting on our criteria for hearing loss. Although we are not
summarizing or responding to the comments in this notice, we read and
considered them carefully. We are proposing changes to our rules for
evaluating hearing loss based on some of the suggestions we received.
We also hosted a policy conference on ``Hearing Impairments and
Disturbance of Labyrinthine-Vestibular Function'' at Gallaudet
University in Washington, DC, on November 7 and 8, 2005. At this
conference, we heard comments and suggestions for updating and revising
the rules we use to evaluate these disorders from individuals who have
hearing loss or vestibular disorders, their family members, physicians
who treat them, other professionals who work with them, and advocates
who represent them. The transcript of this conference is available on
our Web site at http://policy.ssa.gov/erm/rules.nsf/
5da82b031a6677dc85256b41006b7f8d/
9314dd803ad5579885256fe200496264!OpenDocument.
Several of the changes to the criteria for evaluating hearing loss
that we propose in these rules are based on information we obtained
from individuals at this conference.
How are we proposing to change the introductory text to the special
senses and speech listings for adults?
2.00 Special Senses and Speech
We propose to reorganize and expand the second through fifth
paragraphs of current 2.00B1, ``Hearing impairment,'' to provide
additional guidance. We propose to remove the guidance in the first
paragraph of current 2.00B1, which states that hearing ability should
be evaluated in terms of the person's ability to hear and distinguish
speech. Because our current and proposed listings provide for using
tones to evaluate hearing loss, this language may be misleading. We
also propose to remove the guidance in the last paragraph of current
2.00B1, which provides that cases of alleged ``deaf mutism'' should be
documented by a hearing evaluation. This guidance refers only to the
evaluation of deaf mutism as a hearing impairment; however, we can also
evaluate cases of alleged mutism under listing 2.09, for loss of
speech. In that case, we would not need a hearing test. We are not
proposing special requirements for evaluating hearing loss if you have
deaf mutism; we would require the same documentation as for other
hearing disorders.
We also propose to redesignate current 2.00B2, ``Vertigo associated
with disturbances of labyrinthine-vestibular function, including
Meniere's disease,'' as proposed 2.00C, and to redesignate current
2.00B3, ``Loss of speech,'' as proposed 2.00D. We are proposing
separate sections for these disorders to recognize that they are not
always associated with hearing loss. Although we are not proposing any
substantive changes to these sections at this time, we are proposing to
make minor editorial changes so that the format of these sections will
be consistent with other sections of the introductory text in these
proposed rules. Because of these changes, we also propose to
redesignate
[[Page 47105]]
current 2.00C, ``How do we evaluate impairments that do not meet one of
the special senses and speech listings?'' as proposed 2.00E.
The following is a detailed explanation of proposed 2.00B.
Proposed 2.00B--How do we evaluate hearing loss?
Proposed 2.00B1--What evidence do we need to evaluate hearing loss?
This proposed section revises the fourth and fifth paragraphs of
current 2.00B1as follows:
The fourth paragraph of current 2.00B1 provides that an
otolaryngologic examination should precede audiometric testing. We
propose to remove the requirement for an otolaryngologic examination
and instead require a complete otologic examination. We would make this
change because an otolaryngologic examination contains elements, such
as an evaluation of the head, face, and neck, that are not needed to
assess hearing loss. As we describe in proposed 2.00B1b, a complete
otologic examination must include the medical history, a description of
how the hearing loss affects the individual, a description of the
appearance of the external ear (pinna and the external ear canal), an
evaluation of the tympanic membrane, and an assessment of any middle
ear abnormalities.
We also propose to revise the guidance in the current
rules that the otolaryngologic examination should precede the
audiometric testing and instead provide that the audiometric testing
should be performed within 2 months of the complete otologic
examination. Having the otologic examination precede the audiometric
testing can help identify conditions that could interfere with the
audiometric testing. However, having the otologic examination follow
the audiometric testing will allow the physician to consider the
results of that testing in reaching his or her conclusions about the
individual's hearing loss. We believe that either sequence is
acceptable for determining whether the individual has a medically
determinable impairment that has resulted in hearing loss. However, we
would appreciate having specific comments on this change, replacing an
otolaryngologic examination with an otologic examination.
Lastly, we propose to revise the current requirement in
the fifth paragraph of 2.00B1 that an otolaryngologic examination be
performed in conjunction with any audiometric testing used to assess
the severity of the hearing loss. As indicated above, we propose to
require a complete otologic examination instead of an otolaryngologic
examination. Additionally, we propose that the complete otologic
examination be required only to establish that a medically determinable
impairment exists. After the impairment is established, we propose to
allow the severity of the hearing loss to be determined based on
audiometric testing without another complete otologic examination.
Proposed 2.00B2--What audiometric testing do we need when you do not
have a cochlear implant?
This proposed section expands and clarifies the guidance in the
second, third, and fifth paragraphs of current 2.00B1 as follows:
We would replace the term ``speech discrimination'' with
``word recognition testing'' to reflect current medical terminology. In
addition, we would add a parenthetical statement to explain that this
testing may also be referred to as word discrimination or speech
discrimination testing.
We would clarify that we require that pure tone air
conduction and bone conduction testing must be conducted in accordance
with the most recently published American National Standards Institute
(ANSI) standards for air conduction and bone conduction stimuli. Our
current rules provide that audiometric testing be conducted in
accordance with the 1969 and 1972 ANSI standards or subsequent
comparable revisions.
We would clarify that each ear must be tested separately
and that hearing aids must not be worn during the testing. Our reasons
for proposing to remove the current requirement that hearing be tested
with aids in place are discussed in our explanation of proposed listing
2.10 below. We also propose to require that the testing be conducted in
a soundproof booth. Our current rules require that hearing measurements
be performed in an environment which meets the 1977 ANSI standard for
maximal permissible background sound.
We would require that an otoscopic examination be
performed immediately before the audiometric testing to ensure that
there are no conditions present that would prevent valid testing. In
proposed 2.00B2b, we explain that an otoscopic examination provides a
description of the appearance of the external ear canal and an
evaluation of the tympanic membrane.
We would describe the frequencies at which pure tone air
conduction and bone conduction are usually measured.
We would incorporate the guidance in current listing 2.08A
that explains that we average the pure tone hearing thresholds for air
conduction and bone conduction at 500, 1000, and 2000 Hertz (Hz) to
determine whether the listing criteria are met.
We would explain that the speech reception threshold (SRT)
is generally within 10 decibels (dB) of the average pure tone air
conduction hearing thresholds at 500, 1000, and 2000 Hz. If it is not,
the reason for the discrepancy should be documented.
We would expand the guidance on word recognition testing
and clarify that the words should be presented at a level of
amplification that will measure your maximum discrimination ability,
which is usually 35 to 40 dB above your SRT. We would also provide that
the amplification level used in the testing must be medically
appropriate and that you must be able to tolerate it.
Proposed 2.00B3--What audiometric testing do we need when you have a
cochlear implant?
In this new section, we propose to explain that we will consider
you to be disabled until 1 year after implantation of a cochlear
implant. We propose to add this criterion to recognize the length of
the rehabilitation and training period needed to use a cochlear implant
effectively.
After that period, we propose to evaluate your hearing loss by
measuring your word recognition ability on the Hearing in Noise Test
(HINT). We propose to use the HINT because the American Academy of
Neurology indicated in their comments in response to our ANPRM that the
HINT is the ``accepted standard used to assess hearing outcome after
cochlear implantation.'' We would also explain our requirements for how
that testing should be conducted. Our proposed requirements are based
on recommendations we received at our policy conference.
Proposed 2.00B4--How do we evaluate your word recognition ability if
you are not fluent in English?
Word recognition testing should be conducted using an appropriate
word list. If you are not fluent in English, the testing should be
conducted using an appropriate word list for the language in which you
are most fluent. However, appropriate word lists are not available in
all languages. Additionally, the individual conducting the test should
also be fluent in the language used for
[[Page 47106]]
the test. If the test needs to be conducted in a language other than
English, there may not be individuals available who are qualified to
perform the testing in that language. Therefore, we propose to add this
section to provide guidance on how we would evaluate your word
recognition ability if you are not fluent in English.
In this new section, we would provide that, if you are not fluent
in English, it may not be possible to measure your word recognition
ability. We would also explain that, if we cannot measure your word
recognition ability because you are not fluent in English, your hearing
loss cannot meet listing 2.10B or 2.11B. In this situation, we would
consider the facts of your case to determine whether you have
difficulty understanding words in the language in which you are most
fluent, and if so, whether that degree of difficulty medically equals
listing 2.10B or 2.11B. For example, we will consider how you interact
with family members, interpreters, and other individuals who speak the
language in which you are most fluent.
We welcome and are very interested in receiving comments about
other methods that you think we can use to evaluate word recognition
ability for individuals who are not fluent in English and who have
listing-level hearing disorders.
How are we proposing to change the criteria in the special senses and
speech listings for adults?
2.01 Category of Impairments, Special Senses and Speech
Under our current listings, we do not consider the effects of
treatment with cochlear implantation on an individual's hearing loss.
Due to advances in the technology used in cochlear implants, we believe
it is now appropriate to consider the effects of cochlear implantation
on an individual's hearing loss. Therefore, we propose to add a
separate listing to evaluate hearing loss treated with cochlear
implantation. Because we are proposing to add a listing, we also
propose to renumber the listings for ease of reference. We would revise
current listing 2.08, ``Hearing impairments,'' renumber it as listing
2.10, ``Hearing loss not treated with cochlear implantation,'' and add
listing 2.11, ``Hearing loss treated with cochlear implantation.''
Proposed Listing 2.10--Hearing Loss Not Treated With Cochlear
Implantation
In this proposed listing, we would revise current listing 2.08,
``Hearing impairments,'' and specify that these criteria apply to
individuals who do not have cochlear implants.
Current listing 2.08 provides that a hearing loss is of listing-
level severity when ``hearing [is] not restorable by a hearing aid''
and satisfies either of the criteria in the listing. Our longstanding
interpretation of the phrase ``hearing not restorable by a hearing
aid'' is that the hearing loss is so severe that a hearing aid would
not improve it to a level at which it no longer satisfies the listing
criteria. To determine this, we need testing with a hearing aid.
We propose to remove the requirement for testing with hearing aids
for the following reasons:
At our policy conference, we were advised that aided
hearing testing is not usually performed in clinical practice.
Audiometric testing with a hearing aid does not
demonstrate whether the individual will be able to use the aid
effectively.
When we published the current listings, generic hearing
aids were available for testing purposes. However, advances in
technology have resulted in hearing aids that are programmed to address
each individual's specific hearing loss. Due to this degree of
specificity, generic aids are no longer widely available.
Although we propose to no longer require aided testing, we are not
proposing to change the level of hearing loss needed to demonstrate a
listing-level impairment. Based on our adjudicative experience and the
comments we received in response to our ANPRM and at our policy
conference, we have determined that individuals with this level of
hearing loss do not usually obtain significant improvement in their
ability to hear and communicate from hearing aids. Therefore, we
believe that without a cochlear implant, a hearing loss at the level
specified in the current listing is indicative of listing-level
severity even if the individual were to use hearing aids.
Current listing 2.08A requires ``[a]verage hearing threshold
sensitivity for air conduction of 90 decibels or greater, and for bone
conduction to corresponding maximal levels, in the better ear,
determined by the simple average of hearing threshold levels at 500,
1000, and 2000 hz.'' We would clarify the criterion in current listing
2.08A for ``bone conduction to corresponding maximal levels'' by
specifying that this means that the average bone conduction hearing
threshold must be 60 dB or greater in the better ear.
Current listing 2.08B requires ``[s]peech discrimination scores of
40 percent or less in the better ear.'' As we mentioned above, ``speech
discrimination'' is now referred to as ``word recognition testing.''
When we published the current rules, word recognition testing was
usually conducted using a standardized list of phonetically balanced
monosyllabic words. Other types of word recognition testing, such as
sentence testing, are now available. Therefore, we propose to specify
the type of word recognition testing to be used.
Proposed Listing 2.11--Hearing Loss Treated With Cochlear Implantation
We propose to add criteria to evaluate individuals who have
cochlear implants. Cochlear implants are devices that attempt to
replace the function of damaged inner ear hair cells. The implant may
destroy any remaining hearing in the implanted ear.
Cochlear implants are not hearing aids. Hearing aids amplify sound,
while cochlear implants provide direct electrical stimulation of the
auditory nerve. Therefore, even individuals with profound hearing loss
may receive enough benefit from a cochlear implant to be able to engage
in gainful activity. However, we recognize that if you are treated with
cochlear implantation, you will need a period of rehabilitation and
training to use the implant effectively. Therefore, if you have a
cochlear implant, we propose to consider you to be under a disability
for one year from the date of implantation.
After the 1-year period, we propose to determine whether your
hearing loss meets the listing by assessing your word recognition
ability using the HINT. We propose to use the HINT to assess your word
recognition ability because, as mentioned in our discussion of proposed
section 2.00B3, the American Academy of Neurology indicated in their
comments in response to our ANPRM that the HINT is the ``accepted
standard used to assess hearing outcome after cochlear implantation.''
The HINT is a sentence test. Individuals generally have higher word
recognition scores when tested with a sentence test as opposed to a
monosyllabic word test because sentences provide context for the words
in them. Therefore, we propose to find that your hearing loss meets the
listing if your word recognition score on the HINT is 60 percent or
less.
[[Page 47107]]
How are we proposing to change the introductory text to the special
senses and speech listings for children?
102.00 Special Senses and Speech
We have repeated much of the introductory text of proposed 2.00B in
the introductory text to proposed 102.00B. This is because the same
basic rules for evaluating hearing loss in adults also apply to
evaluating hearing loss in children age 5 and older. Because we have
already described these provisions under the explanation of proposed
2.00B, the following discussion of proposed 102.00B describes only
those provisions that apply to children under age 5, are unique to the
childhood rules, or require further explanation specific to evaluating
disability in children.
We propose to remove the first paragraph of current 102.00B,
``Hearing impairments in children.'' This paragraph explains that the
criteria for hearing impairments in children take into account that a
lesser impairment in hearing which occurs at an early age may result in
a severe speech or language disorder. While this paragraph does explain
why we use a lower threshold for children, it is not needed in the
introductory text as it does not provide any guidance about how to
evaluate hearing loss under these listings.
We also propose to remove the second paragraph of current 102.00B.
This paragraph provides guidance on how to consider improvement in
hearing due to use of a hearing aid. As we discussed in our explanation
of proposed listing 2.10 above, we are proposing to remove the
requirement for aided hearing testing. Therefore, this guidance is no
longer needed.
Proposed 102.00B2--What audiometric testing do we need when you do not
have a cochlear implant?
This proposed section expands and clarifies the guidance in the
third and fourth paragraphs of current 102.00B as follows:
We would clarify that we generally need behavioral or
physiologic testing (other than screening testing) that is appropriate
for your age at the time of testing.
We would clarify that we require that audiometric testing
be conducted in accordance with the most recently published American
National Standards Institute (ANSI) standards for air conduction and,
if appropriate, bone conduction stimuli. Our current rules provide that
audiometric testing be conducted in accordance with the 1969 and 1972
ANSI standards or subsequent comparable revisions.
We would provide that hearing aids not be used during
audiometric testing.
We would require that an otoscopic examination be
performed immediately before the audiometric testing to ensure that
there are no conditions present that would prevent valid testing.
We would provide that we will not purchase physiologic
testing. We are proposing this rule because such testing may require
sedation.
We would describe the hearing testing that is appropriate
for children in the age ranges of birth to the attainment of age 6
months, age 6 months to the attainment of age 2, age 2 to the
attainment of age 5, and age 5 to the attainment of age 18. The
proposed guidance for hearing testing for children age 5 to the
attainment of age 18 is similar to the proposed guidance for hearing
testing in adults, except for the frequencies needed to determine the
hearing threshold.
We would revise the frequency levels used to determine the
pure tone air conduction or bone conduction threshold from 500, 1000,
2000, and 3000 Hz to 500, 1000, 2000, and 4000 Hz. We received several
comments in response to our ANPRM recommending that we make this change
in how we determine the hearing threshold. Additionally, our
adjudicative experience has shown that testing is often not done at
3000 Hz. We considered using the same hearing thresholds as in adults,
but propose to continue to use 4000 Hz because of the importance of
hearing at higher frequencies to a child's ability to learn speech.
We would describe screening tests, such as otoacoustic
emissions (OAE), and explain how we use them. We propose to provide
this guidance because hearing screening tests are commonly given to
children in newborn nurseries and schools. We do not propose to add
this guidance to the introductory text for adults because hearing
screening tests are not commonly given to adults.
Proposed 102.00B3--What audiometric testing do we need when you have a
cochlear implant?
This new section is similar to proposed 2.00B3 except that we
provide that a child who has a cochlear implant will be disabled until
age 5 or until 1 year after implantation, whichever is later. We
propose to consider children with cochlear implants to be disabled
until age 5 because of the extensive rehabilitation and training needed
for young children with cochlear implants to acquire speech and
language skills.
We would also explain that after that period, we will evaluate your
hearing loss by measuring your word recognition ability on the HINT or
the Hearing in Noise Test for Children (HINT-C).
Proposed 102.00B5--What do we mean by a marked limitation in speech or
language as used in 102.10B2?
In this new section, we explain when we will consider you to have a
marked limitation in speech or language.
How are we proposing to change the criteria in the special senses and
speech listings for children?
102.01 Category of Impairments, Special Senses and Speech
For the reasons mentioned in our discussion of 2.01 above, we
propose to add a separate listing to evaluate hearing loss treated with
cochlear implantation. Because we are proposing to add a listing, we
also propose to renumber the listings for ease of reference. We would
revise current listing 102.08, ``Hearing impairments,'' renumber it as
listing 102.10, ``Hearing loss not treated with cochlear
implantation,'' and add listing 102.11, ``Hearing loss treated with
cochlear implantation.''
Proposed 102.10--Hearing Loss Not Treated With Cochlear Implantation
This proposed listing would revise current listing 102.08,
``Hearing impairments,'' and specify that it applies to children who do
not have cochlear implants.
The current childhood listing requires that we assess your ability
to hear with a hearing aid unless we determine that you are not able to
use the aid effectively. For the reasons we stated in the discussion of
proposed listing 2.10 above, we propose to no longer require aided
hearing testing to determine if your hearing loss meets the listing.
Proposed listing 102.10A would replace current listing 102.08A.
This proposed listing contains the criterion for evaluating hearing
loss in children under age 5 who do not have a cochlear implant. We
propose to replace the current criterion for an aided average hearing
threshold of 40 dB in the better ear with a criterion for an unaided
average air conduction hearing threshold of 50 dB or greater in the
better ear. We propose to use a threshold of 50 dB because we believe
that, even with the use of a hearing aid, a child under age 5 who has a
50 dB hearing loss will also have a marked limitation in speech or
language.
[[Page 47108]]
Proposed listing 102.10B would replace current listing 102.08B.
This proposed listing contains the criteria for evaluating hearing loss
in children from age 5 to the attainment of age 18. For the reasons we
explained earlier, we propose to no longer require aided hearing
testing.
Proposed listing 102.10B1 would correspond to current listing
102.08B1. Current listing 102.08B1 generally requires an aided average
air conduction hearing threshold of 70 dB or greater in the better ear.
We would expect hearing loss at that level to have a sensorineural
component. (A sensorineural hearing loss is caused by permanent damage
to the inner ear or to the nerve pathways from the inner ear to the
brain.) We propose to replace the criterion in current listing 102.08B1
with an unaided average air conduction hearing threshold of 70 dB or
greater in the better ear. In order to ensure that hearing loss at this
level has a sensorineural component, we also propose to add a criterion
in proposed listing 102.10B1 for an average bone conduction hearing
threshold of 40 dB or greater in the better ear. We would continue to
use a 70 dB average air conduction hearing threshold because we believe
a hearing loss with a sensorineural component at this level will
significantly affect a child's ability to engage in learning. Also, we
do not use the same hearing threshold levels for children from age 5 to
the attainment of age 18 as we use for adults because of the importance
of hearing to a child's ability to communicate and learn.
Proposed listing 102.10B2 would correspond to current listing
102.08B2. We propose to make the same editorial changes as we did in
proposed listing 2.10B.
Proposed listing 102.10B3 would correspond to current listing
102.08B3. As we discussed in our explanation of proposed listing
102.10A above, we propose to use an unaided hearing threshold of 50 dB
in the better ear. Because children typically acquire basic speech and
language skills by age 5, we believe that it is not appropriate to
presume that a child over age 5 who has a 50 dB hearing loss will also
have a marked limitation in speech or language. Therefore, for children
over age 5, we also propose to require an assessment of speech and
language skills.
Proposed 102.11--Hearing Loss Treated With Cochlear Implantation
This proposed listing is similar to proposed listing 2.11 except
that we propose to consider you to be under a disability until age 5,
or for 1 year after implantation, whichever is later. We also propose
to use either the HINT or the HINT-C to assess your word recognition
ability.
What programs would these proposed regulations affect?
These proposed rules would affect disability determinations and
decisions that we make under titles II and XVI of the Act. In addition,
to the extent that Medicare entitlement and Medicaid eligibility are
based on whether you qualify for disability benefits under title II or
title XVI, these proposed rules would also affect the Medicare and
Medicaid programs.
Who can get disability benefits?
Under title II of the Act, we provide for the payment of disability
benefits if you are disabled and belong to one of the following three
groups:
Workers insured under the Act,
Children of insured workers, and
Widows, widowers, and surviving divorced spouses (see
Sec. 404.336) of insured workers.
Under title XVI of the Act, we provide for Supplemental Security
Income (SSI) payments on the basis of disability if you are disabled
and have limited income and resources.
How do we define disability?
Under both the title II and title XVI programs, disability must be
the result of any medically determinable physical or mental impairment
or combination of impairments that is expected to result in death or
which has lasted or can be expected to last for a continuous period of
at least 12 months. Our definitions of disability are shown in the
following table:
------------------------------------------------------------------------
Disability means you
have a medically
If you file a claim under . . And you are . . . determinable
. impairment(s) as
described above and
that results in . . .
------------------------------------------------------------------------
title II...................... an adult or a the inability to do
child. any substantial
gainful activity
(SGA).
title XVI..................... an individual age the inability to do
18 or older. any SGA.
title XVI..................... an individual marked and severe
under age 18. functional
limitations.
------------------------------------------------------------------------
How do we decide whether you are disabled?
If you are applying for benefits under title II of the Act, or if
you are an adult applying for payments under title XVI of the Act, we
use a five-step ``sequential evaluation process'' to decide whether you
are disabled. We describe this five-step process in our regulations at
Sec. Sec. 404.1520 and 416.920. We follow the five steps in order and
stop as soon as we can make a determination or decision. The steps are:
1. Are you working, and is the work you are doing substantial
gainful activity? If you are working and the work you are doing is
substantial gainful activity, we will find that you are not disabled,
regardless of your medical condition or your age, education, and work
experience. If you are not, we will go on to step 2.
2. Do you have a ``severe'' impairment? If you do not have an
impairment or combination of impairments that significantly limits your
physical or mental ability to do basic work activities, we will find
that you are not disabled. If you do, we will go on to step 3.
3. Do you have an impairment(s) that meets or medically equals the
severity of an impairment in the listings? If you do, and the
impairment(s) meets the duration requirement, we will find that you are
disabled. If you do not, we will go on to step 4.
4. Do you have the residual functional capacity (RFC) to do your
past relevant work? If you do, we will find that you are not disabled.
If you do not, we will go on to step 5.
5. Does your impairment(s) prevent you from doing any other work
that exists in significant numbers in the national economy, considering
your RFC, age, education, and work experience? If it does, and it meets
the duration requirement, we will find that you are disabled. If it
does not, we will find that you are not disabled.
We use a different sequential evaluation process for children who
apply for payments based on disability under SSI. If you are already
receiving benefits, we also use a different sequential evaluation
process when we decide whether your disability continues. See
Sec. Sec. 404.1594, 416.924, 416.994, and 416.994a of our regulations.
However, all of these
[[Page 47109]]
processes include steps at which we consider whether your impairment(s)
meets or medically equals one of our listings.
What are the listings?
The listings are examples of impairments that we consider severe
enough to prevent you as an adult from doing any gainful activity. If
you are a child seeking SSI payments based on disability, the listings
describe impairments that we consider severe enough to result in marked
and severe functional limitations. Although the listings are contained
only in appendix 1 to subpart P of part 404 of our regulations, we
incorporate them by reference in the SSI program in Sec. 416.925 of
our regulations and apply them to claims under both title II and title
XVI of the Act.
How do we use the listings?
The listings are in two parts. There are listings for adults (part
A) and for children (part B). If you are an individual age 18 or over,
we apply the listings in part A when we assess your claim, and we never
use the listings in part B.
If you are an individual under age 18, we first use the criteria in
part B of the listings. Part B contains criteria that apply only to
individuals who are under age 18. If the criteria in part B do not
apply, we may use the criteria in part A when those criteria give
appropriate consideration to the effects of the impairment(s) in
children. (See Sec. Sec. 404.1525 and 416.925.)
If your impairment(s) does not meet any listing, we will also
consider whether it medically equals any listing; that is, whether it
is as medically severe as an impairment in the listings. (See
Sec. Sec. 404.1526 and 416.926.)
What if you do not have an impairment(s) that meets or medically equals
a listing?
We use the listings only to decide that you are disabled or that
you are still disabled. We will not deny your claim or decide that you
no longer qualify for benefits because your impairment(s) does not meet
or medically equal a listing. If you have a severe impairment(s) that
does not meet or medically equal any listing, we may still find you
disabled based on other rules in the ``sequential evaluation process.''
Likewise, we will not decide that your disability has ended only
because your impairment(s) no longer meets or medically equals a
listing.
Also, when we conduct reviews to determine whether your disability
continues, we will not find that your disability has ended because we
have changed a listing. Our regulations explain that, when we change
our listings, we continue to use our prior listings when we review your
case, if you qualified for disability benefits or SSI payments based on
our determination or decision that your impairment(s) met or medically
equaled a listing. In these cases, we determine whether you have
experienced medical improvement, and if so, whether the medical
improvement is related to the ability to work. If your condition(s) has
medically improved so that your impairment(s) no longer meets or
medically equals the prior listing, we evaluate your case further to
determine whether you are currently disabled. We may find that you are
currently disabled, depending on the full circumstances of your case.
See Sec. Sec. 404.1594(c)(3)(i) and 416.994(b)(2)(iv)(A). If you are a
child who is eligible for SSI payments, we follow a similar rule when
we decide that you have experienced medical improvement in your
condition(s). See Sec. 416.994a(b)(2).
When will we start to use these rules?
We will not use these rules until we evaluate the public comments
we receive on them, determine whether they should be issued as final
rules, and issue final rules in the Federal Register. If we publish
final rules, we will explain in the preamble how we will apply them,
and summarize and respond to the public comments. Until the effective
date of any final rules, we will continue to use our current rules.
How long would these proposed rules be effective?
If we publish these proposed rules as final rules, they will remain
in effect for 8 years after the date they became effective, unless we
extend them, or revise and issue them again.
Clarity of these proposed rules Executive Order 12866, as amended,
requires each agency to write all rules in plain language. In addition
to your substantive comments on these proposed rules, we invite your
comments on how to make them easier to understand.
For example:
Have we organized the material to suit your needs?
Are the requirements in the rules clearly stated?
Do the rules contain technical language or jargon that is
not clear?
Would a different format (grouping and order of sections,
use of headings, paragraphing) make the rules easier to understand?
Would more (but shorter) sections be better?
Could we improve clarity by adding tables, lists, or
diagrams?
What else could we do to make the rules easier to
understand?
Regulatory Procedures
Executive Order 12866
We have consulted with the Office of Management and Budget (OMB)
and determined that these proposed rules meet the requirements for a
significant regulatory action under Executive Order 12866, as amended.
Thus, they were subject to OMB review.
Regulatory Flexibility Act
We certify that these proposed rules would not have a significant
economic impact on a substantial number of small entities because they
affect only individuals. Thus, a regulatory flexibility analysis as
provided in the Regulatory Flexibility Act, as amended, is not
required.
Paperwork Reduction Act
In these regulations, we are proposing to: (1) Revise the listings
for hearing loss to update the medical criteria in the listings; (2)
provide more information about how we evaluate hearing loss; and (3)
reflect our adjudicative experience. The listings for hearing loss are
in the special senses and speech body system. That body system also
includes listings for visual disorders, disturbances of labyrinthine-
vestibular function and loss of speech. In this NPRM, we are proposing
changes only to the listings for hearing loss. As part of the listings,
we identify specific documentation requirements used in evaluating
impairments within a body system, including medical and other evidence.
The documentation and evidentiary requirements are public reporting
burdens that must be cleared by OMB under the Paperwork Reduction Act.
However, the public reporting burdens are accounted for in the
Information Collection Requests for the various forms that the public
uses to submit the information to SSA. Consequently, we are reporting
no burden for this regulation aside from a 1-hour placeholder burden
shown in the chart below, for the sections listed.
[[Page 47110]]
Part 404--Federal Old-Age, Survivors and Disability Insurance
----------------------------------------------------------------------------------------------------------------
Average
Annual number Frequency of burden per Estimated
Title/section & collection description of response response annual burden
respondents (minutes) (hours)
----------------------------------------------------------------------------------------------------------------
Hearing Loss (2.00B and 102.00B)................ .............. .............. .............. 1
----------------------------------------------------------------------------------------------------------------
An Information Collection Request has been submitted to OMB for
clearance. We are soliciting comments 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 collection techniques or
other forms of information technology. Requests for the Information
Collection Request package and/or comments should be directed to SSA
and OMB at the following addresses/phone numbers:
Office of Management and Budget, Attn: Desk Officer for SSA, Fax
Number: 202-395-6974, E-mail address: OIRA_Submission@omb.eop.gov.
Social Security Administration, Attn: Reports Clearance Officer, 1333
Annex Building, 6401 Security Blvd., Baltimore, MD 21235, Fax: 410-965-
6400, E-mail address: OPLM.RCO@ssa.gov.
Comments on the paperwork burdens associated with this rule can be
received for up to 60 days after publication of this notice and will be
most useful if received within 30 days of publication. This does not
affect the deadline for the public to comment to SSA on the proposed
regulations. These information collection requirements will not become
effective until approved by OMB. When OMB has approved these
information collection requirements, SSA will publish a notice in the
Federal Register.
List of References
During the development of these proposed rules, we reviewed the
following information:
American Speech-Language-Hearing Association (ASHA). (2004).
Guidelines for the audiologic assessment of children from birth to 5
years of age [Guidelines]. (Available at http://www.asha.org/NR/
rdonlyres/0BB7C840-27D2-4DC6-861B-1709ADD78BAF/0/
v2GLAudAssessChild.pdf.)
ASHA. (2004). Technical report: Cochlear implants. ASHA Supplement
24. (Available at http://www.asha.org/NR/rdonlyres/215CC9B8-6831-
494F-83ED-E02A6832A8A9/0/v2TRcochlearimplants.pdf.)
Centers for Medicare & Medicaid Services. (2005). MLN Matters Number
MM3796: Cochlear Implantation. (Available at http://
www.cms.hhs.gov/MLNMattersArticles/downloads/MM3796.pdf.)
Cunningham. M. and Cox, E.O. (2003). Hearing assessment in infants
and children: Recommendations beyond neonatal screening. Pediatrics,
111(2), 436-440.
Dale, D.C. and Federman, D.D., eds. Neurology. ACP Medicine. (2004)
Elliot M. Frohman, New York: WebMD Professional Publishing.
Gifford, R.H. and Shallop, J.K. (2007). Hearing preservation in
patients with a cochlear implant. The ASHA Leader, 12(14), 15, 17,
34.
Gorga, M.P., et al. (2006). Using a combination of click- and tone
burst-evoked auditory brain stem response measurements to estimate
pure-tone thresholds. Ear & Hearing, 27(1), 60-74.
Joint Committee on Infant Hearing. (2000). Year 2000 position
statement: Principles and guidelines for early hearing detection and
intervention programs. Pediatrics, 106(4), 798-817.
Joint Committee on Infant Hearing. (2007). Year 2007 position
statement: Principles and guidelines for early hearing detection and
intervention programs. Pediatrics, 120(4), 898-921.
National Research Council (NRC): Committee on Disability
Determination for Individuals with Hearing Impairments. (2005).
Hearing Loss: Determining Eligibility for Social Security Benefits.
Washington, DC: National Academy Press. (Available at http://
www.nap.edu/catalog.php?record_id=11099#toc.)
Pittman, A.L., & Stelmachowicz, P.G. (2003). Hearing loss in
children and adults: Audiometric configuration, asymmetry, and
progression. Ear & Hearing, 24(3), 198-205.
U.S. Food and Drug Administration, Center for Devices and
Radiological Health. (2007). Benefits and Risks of Cochlear
Implants. (Available at: http://www.fda.gov/cdrh/cochlear/
RiskBenefit.html.)
These references are included in the rulemaking record for these
proposed rules and are available for inspection by interested
individuals making arrangements with the contact person shown in this
preamble.
(Catalog of Federal Domestic Program Nos. 96.001, Social Security--
Disability Insurance; 96.002, Social Security--Retirement Insurance;
96.004, Social Security--Survivors Insurance; and 96.006,
Supplemental Security Income)
List of Subjects in 20 CFR Part 404
Administrative practice and procedure, Blind, Disability benefits,
Old-Age, Survivors, and Disability Insurance, Reporting and
recordkeeping requirements, Social Security.
Dated: May 12, 2008.
Michael J. Astrue,
Commissioner of Social Security.
Editorial Note: This document was received at the Office of the
Federal Register on August 8, 2008.
For the reasons set out in the preamble, we propose to amend part
404 of chapter III of title 20 of the Code of Federal Regulations as
set forth below:
PART 404--FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE
(1950- )
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)
and (i), 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) and (i),
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).
Appendix 1 to Subpart P of Part 404--[Amended]
2. Appendix 1 to subpart P of part 404 is amended as follows:
a. Revise item 3 of the introductory text before part A of appendix
1.
b. Revise section 2.00B of part A of appendix 1.
c. Redesignate section 2.00C of part A of appendix 1 as section
2.00E.
d. Add new sections 2.00C and 2.00D to part A of appendix 1.
e. Remove listing 2.08 of part A of appendix 1.
f. Add listings 2.10 and 2.11 to part A of appendix 1.
g. Revise section 102.00B of part B of appendix 1.
h. Remove listing 102.08 of part B of appendix 1.
i. Add listings 102.10 and 102.11 to part B of appendix 1.
The revised text is set forth as follows:
Appendix 1 to Subpart P of Part 404--Listing of Impairments
* * * * *
[[Page 47111]]
3. Special Senses and Speech (2.00 and 102.00): [Insert date 8
years from the effective date of the final rules].
* * * * *
Part A
* * * * *
2.00 Special Senses and Speech
* * * * *
B. How do we evaluate hearing loss?
1. What evidence do we need to evaluate hearing loss?
a. To establish that you have a medically determinable impairment
that causes your hearing loss, we require both a complete otologic
examination and audiometric testing. The audiometric testing should be
performed within 2 months of the complete otologic examination.
b. A complete otologic examination must include your medical
history, your description of how your hearing loss affects you, a
description of the appearance of the external ear (pinna and the
external ear canal), an evaluation of the tympanic membrane, and an
assessment of any middle ear abnormalities.
c. After your impairment has been established, we can use the
results of subsequent audiometric testing to assess the severity of
your hearing loss without another complete otologic examination.
d. Audiometric testing must be performed by, or under the
supervision of, an otolaryngologist or by an audiologist qualified to
perform such tests. We consider an audiologist to be qualified if the
audiologist is currently and fully licensed or registered as a clinical
audiologist by the state or U.S. territory in which he or she
practices. If no licensure or registration is available, the
audiologist must be currently certified by the American Board of
Audiology or have a Certificate of Clinical Competence (CCC-A) from the
American Speech-Language-Hearing Association (ASHA).
2. What audiometric testing do we need when you do not have a
cochlear implant?
a. We generally need pure tone air conduction and bone conduction
testing, speech reception threshold (SRT) testing, and word recognition
testing. (Word recognition testing may be referred to as word
discrimination or speech discrimination testing.) This testing must be
conducted in a soundproof booth and each ear must be tested separately.
Pure tone air conduction and bone conduction testing must be conducted
in accordance with the most recently published standards of the
American National Standards Institute (ANSI) for air conduction and
bone conduction stimuli.
b. You must not wear hearing aids during the testing. Additionally,
we require that an otoscopic examination be performed immediately
before the audiometric testing. An otoscopic examination provides a
description of the appearance of the external ear canal and an
evaluation of the tympanic membrane. The otoscopic examination must
also show that there are no conditions present that would prevent valid
audiometric testing. Examples of such conditions are fluid in the ear,
an ear infection, or an obstruction in the ear canal.
c. An audiological examination usually includes pure tone air
conduction and bone conduction testing measured at 250, 500, 1000,
2000, and 4000 Hertz (Hz). To determine whether your hearing loss meets
the air conduction criterion in 2.10A, we will average the air
conduction hearing thresholds at 500, 1000, and 2000 Hz. To determine
whether your hearing loss meets the bone conduction criterion in 2.10A,
we will average the bone conduction hearing thresholds at 500, 1000,
and 2000 Hz.
d. The SRT is the minimal decibel (dB) level required for you to
recognize a standard list of words. The SRT is usually within 10 dB of
the average pure tone air conduction hearing thresholds at 500, 1000,
and 2000 Hz. If the SRT is not within 10 dB of the average pure tone
air conduction threshold, the reason for the discrepancy should be
documented.
e. Word recognition testing determines your ability to recognize a
standardized list of phonetically balanced monosyllabic words in the
absence of any visual cues. This testing must be performed in quiet.
The words should be presented at a level of amplification that will
measure your maximum ability to discriminate words, usually 35 to 40 dB
above your SRT. However, the amplification level used in the testing
must be medically appropriate and you must be able to tolerate it. The
individual who performs the test should report your word recognition
testing score at your highest comfortable level of amplification.
3. What audiometric testing do we need when you have a cochlear
implant?
a. If you have a cochlear implant, we will consider you to be
disabled until 1 year after implantation.
b. After that period, we need word recognition testing performed
with the Hearing in Noise Test (HINT). This testing must be conducted
in quiet in a sound field with your implant adjusted to your normal
settings. The sentences should be presented at 60 dB HL (hearing level)
and without any visual cues.
4. How do we evaluate your word recognition ability if you are not
fluent in English?
If you are not fluent in English, it may not be possible to measure
your word recognition ability. If your word recognition ability cannot
be measured, your hearing loss cannot meet 2.10B or 2.11B. Instead, we
will consider the facts of your case to determine whether you have
difficulty understanding words in the language in which you are most
fluent, and if so, whether that degree of difficulty medically equals
2.10B or 2.11B. For example, we will consider how you interact with
family members, interpreters, and other individuals who speak the
language in which you are most fluent.
C. How do we evaluate vertigo associated with disturbances of
labyrinthine-vestibular function, including Meniere's disease?
1. These disturbances of balance are characterized by a
hallucination of motion or a loss of position sense and a sensation of
dizziness which may be constant or may occur in paroxysmal attacks.
Nausea, vomiting, ataxia, and incapacitation are frequently observed,
particularly during the acute attack. It is important to differentiate
the report of rotary vertigo from that of ``dizziness,'' which is
described as light-headedness, unsteadiness, confusion, or syncope.
2. Meniere's disease is characterized by paroxysmal attacks of
vertigo, tinnitus, and fluctuating hearing loss. Remissions are
unpredictable and irregular, but may be long-lasting; hence, the
severity of the impairment is best determined after prolonged
observation and serial reexaminations.
3. The diagnosis of a vestibular disorder requires a comprehensive
neuro-otolaryngologic examination with a detailed description of the
vertiginous episodes, including notation of frequency, severity, and
duration of the attacks. Pure tone and speech audiometry with the
appropriate special examinations, such as Bekesy audiometry, are
necessary. Vestibular function is assessed by positional and caloric
testing, preferably by electronystagmography. When polytomograms,
contrast radiography, or other special tests have been performed,
copies of the reports of these tests should be obtained in addition to
appropriate medically acceptable imaging reports of the skull and
temporal bone. Medically acceptable imaging includes, but is not
limited to, x-ray imaging, computerized axial tomography (CAT scan) or
magnetic resonance imaging (MRI), with or
[[Page 47112]]
without contrast material, myelography, and radionuclear bone scans.
``Appropriate'' means that the technique is the proper one to support
the evaluation and diagnosis of the impairment.
D. Loss of speech. In evaluating the loss of speech, the ability to
produce speech by any means includes the use of mechanical or
electronic devices that improve voice or articulation. Impairments of
speech may also be evaluated under the body system for the underlying
disorders, such as neurological disorders, 11.00ff.
* * * * *
2.01 Category of Impairments, Special Senses and Speech
* * * * *
2.10 Hearing loss not treated with cochlear implantation.
A. An average air conduction hearing threshold of 90 decibels or
greater in the better ear and an average bone conduction hearing
threshold of 60 decibels or greater in the better ear (see 2.00B2c); or
B. A word recognition score of 40 percent or less in the better ear
determined using a standardized list of phonetically balanced
monosyllabic words (see 2.00B2e).
2.11 Hearing loss treated with cochlear implantation.
A. Consider under a disability for 1 year after implantation; or
B. If more than 1 year after implantation, a word recognition score
of 60 percent or less determined using the HINT (see 2.00B3b).
* * * * *
Part B
* * * * *
102.00 Special Senses and Speech
* * * * *
B. How do we evaluate hearing loss?
1. What evidence do we need to evaluate hearing loss?
a. To establish that you have a medically determinable impairment
that causes your hearing loss, we require both a complete otologic
examination and audiometric testing. The audiometric testing should be
performed within 2 months of the complete otologic examination.
b. A complete otologic examination must include your medical
history, your description of how your hearing loss affects you, a
description of the appearance of the external ear (pinna and the
external ear canal), an evaluation of the tympanic membrane, and an
assessment of any middle ear abnormalities.
c. After your impairment has been established, we can use the
results of subsequent audiometric testing to assess the severity of
your hearing loss without another complete otologic examination.
d. Audiometric testing must be performed by, or under the
supervision of, an otolaryngologist or by an audiologist qualified to
perform such tests. We consider an audiologist to be qualified if the
audiologist is currently and fully licensed or registered as a clinical
audiologist by the state or U.S. territory in which he or she
practices. If no licensure or registration is available, the
audiologist must be currently certified by the American Board of
Audiology or have a Certificate of Clinical Competence (CCC-A) from the
American Speech-Language-Hearing Association (ASHA).
2. What audiometric testing do we need when you do not have a
cochlear implant?
a. General. We generally need behavioral or physiologic testing
(other than screening testing, see 102.00B3g) that is appropriate for
your age at the time of testing. We will make every reasonable effort
to obtain the results of physiologic testing that has been done.
However, if this testing has not been done, or, if we cannot obtain the
results, we will not purchase it. In these situations, we will evaluate
your hearing loss based on the other evidence in your case record.
b. Testing requirements. The testing must be conducted in
accordance with the most recently published standards of the American
National Standards Institute (ANSI) for air conduction stimuli, and if
appropriate, bone conduction stimuli. You must not wear hearing aids
during the testing. Additionally, we require that an otoscopic
examination be performed immediately before the audiometric testing. An
otoscopic examination provides a description of the appearance of the
external ear canal and an evaluation of the tympanic membrane. The
otoscopic examination must also show that there are no conditions
present that would prevent valid audiometric testing. Examples of such
conditions are fluid in the ear, an ear infection, or an obstruction in
the ear canal.
c. Children from birth to the attainment of age 6 months.
i. We need physiologic testing, such as auditory brainstem response
(ABR) testing, that measures the frequencies needed to recognize
speech; that is, the range from 500 to 4000 Hertz (Hz). We also need an
acoustic immittance assessment; that is, a tympanogram and acoustic
reflex testing.
ii. To determine whether your hearing loss meets listing 102.10A,
we will average the hearing thresholds at 500, 1000, 2000, and 4000 Hz.
d. Children from age 6 months to the attainment of age 2.
i. We need air conduction thresholds determined by a behavioral
assessment, usually visual reinforcement audiometry (VRA), and an
acoustic immittance assessment. We can use ABR testing results if the
behavioral assessment cannot be completed or if the results of the
behavioral assessment are inconclusive or unreliable.
ii. To determine whether your hearing loss meets listing 102.10A,
we will average the hearing thresholds at 500, 1000, 2000, and 4000 Hz.
iii. For this age group, behavioral assessments are often performed
in a sound field, and each ear is not tested separately. If each ear is
not tested separately, we will consider the test results to represent
the hearing in the better ear.
e. Children from age 2 to the attainment of age 5.
i. We need air conduction thresholds determined by a behavioral
assessment, such as conditioned play audiometry (CPA), tangible or
visually reinforced operant conditioning audiometry (TROCA, VROCA), or
VRA, and an acoustic immittance assessment. We can use ABR testing
results if the behavioral assessment cannot be completed or if the
results of the behavioral assessment are inconclusive or unreliable.
ii. To determine whether your hearing loss meets listing 102.10A,
we will average the hearing thresholds at 500, 1000, 2000, and 4000 Hz.
iii. For this age group, behavioral assessments are often performed
in a sound field and each ear is not tested separately. If each ear is
not tested separately, we will consider the test results to represent
the hearing in the better ear.
f. Children from age 5 to the attainment of age 18.
i. We generally need pure tone air conduction and bone conduction
testing, speech reception threshold (SRT) testing, and word recognition
testing. (Word recognition testing may be referred to as word
discrimination or speech discrimination testing.) This testing must be
conducted in a soundproof booth and each ear must be tested separately.
ii. An audiological examination usually includes pure tone air
conduction and bone conduction testing measured at 250, 500, 1000,
2000, and 4000 Hz. To determine whether your hearing loss meets the air
conduction criterion in 102.10B1 or 102.10B3, we will average the air
conduction hearing thresholds at 500, 1000, 2000, and 4000
[[Page 47113]]
Hz. To determine whether your hearing loss meets the bone conduction
criterion in 102.10B1, we will average the bone conduction hearing
thresholds at 500, 1000, 2000, and 4000 Hz.
iii. The SRT is the minimal decibel (dB) level required for you to
recognize a standard list of words. The SRT is usually within 10 dB of
the average pure tone air conduction hearing thresholds at 500, 1000,
and 2000 Hz. If the SRT is not within 10 dB of the average pure tone
air conduction threshold, the reason for the discrepancy should be
documented.
iv. Word recognition testing determines your ability to recognize a
standardized list of phonetically balanced monosyllabic words in the
absence of any visual cues. This testing must be performed in quiet.
The words should be presented at a level of amplification that will
measure your maximum ability to discriminate words, usually 35 to 40 dB
above your SRT. However, the amplification level used in the testing
must be medically appropriate and you must be able to tolerate it. The
individual who performs the test should report your word recognition
testing score at your highest comfortable level of amplification.
g. Screening Testing. ABR and other physiologic testing, such as
otoacoustic emissions (OAE), can be used as hearing screening tests.
When such testing is used as hearing screening tests, we will not use
the results to determine that your hearing loss meets or medically
equals a listing, or to assess functional limitations due to your
hearing loss. We can, however, consider normal results from hearing
screening tests to determine whether your hearing loss is severe when
these test results are consistent with the other evidence in your case
record. See Sec. 416.924(c).
3. What audiometric testing do we need when you have a cochlear
implant?
a. If you have a cochlear implant, we will consider you to be
disabled until age 5, or for 1 year after implantation, whichever is
later.
b. After that period, we need word recognition testing performed
with the Hearing in Noise Test (HINT) or the Hearing in Noise Test for
Children (HINT-C). This testing must be conducted in quiet in a sound
field with your implant adjusted to your normal settings. The sentences
should be presented at 60 dB HL (hearing level) and without any visual
cues.
4. How do we evaluate your word recognition ability if you are not
fluent in English? If you are not fluent in English, it may not be
possible to measure your word recognition ability. If your word
recognition ability cannot be measured, your hearing loss cannot meet
102.10B2 or 102.11B. Instead, we will consider the facts of your case
to determine whether you have difficulty understanding words in the
language in which you are most fluent, and if so, whether that degree
of difficulty medically equals 102.10B2 or 102.11B. For example, we
will consider how you interact with family members, interpreters, and
other individuals who speak the language in which you are most fluent.
5. What do we mean by a marked limitation in speech or language as
used in 102.10B3?
a. We will consider you to have a marked limitation in speech if:
i. According to the unfamiliar listener, entire phrases or
sentences in your conversation are intelligible approximately 60
percent of the time or less on the first attempt; and
ii. Your sound production or phonological patterns (the ways in
which you combine speech sounds) are atypical for your age.
b. We will consider you to have a marked limitation in language
when your current and valid test score on an appropriate comprehensive,
standardized test of overall language functioning is at least two
standard deviations below the mean. In addition, the evidence of your
daily communication functioning must be consistent with your test
score. If you are not fluent in English, it may not be possible to test
your language performance. If we cannot test your language performance,
your hearing loss cannot meet 102.10B3. Instead, we will consider the
facts of your case to determine whether your hearing loss medically
equals 102.10B3.
* * * * *
102.01 Category of Impairments, Special Senses and Speech
* * * * *
102.10 Hearing loss not treated with cochlear implantation.
A. For children from birth to the attainment of age 5, an average
air conduction hearing threshold of 50 decibels or greater in the
better ear (see 102.00B2); or
B. For children from age 5 to the attainment of age 18:
1. An average air conduction hearing threshold of 70 decibels or
greater in the better ear and an average bone conduction hearing
threshold of 40 decibels or greater in the better ear (see 102.00B2f);
or
2. A word recognition score of 40 percent or less in the better ear
determined using a standardized list of phonetically balanced
monosyllabic words (see 102.00B2f); or
3. An average air conduction hearing threshold of 50 decibels or
greater in the better ear and a marked limitation in speech or language
(see 102.00B2f and 102.00B5).
102.11 Hearing loss treated with cochlear implantation.
A. Consider under a disability until the attainment of age 5, or
for 1 year after implantation, whichever is later; or
B. Upon the attainment of age 5 or 1 year after implantation,
whichever is later, a word recognition score of 60 percent or less
determined using the HINT or the HINT-C (see 102.00B3b).
* * * * *
[FR Doc. E8-18718 Filed 8-12-08; 8:45 am]
BILLING CODE 4191-02-P