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					                                                                  Federal Register / Vol. 73, No. 157 / Wednesday, August 13, 2008 / Proposed Rules                                               47103

                                              of the safety, power quality, or                           (2) IDR policies must incorporate the              OF THE FINAL RULE] shall include
                                              reliability on the borrower’s electric                  standard 1547 as promulgated and                      with its application package a letter of
                                              power system or other electric power                    amended by the Institute of Electrical                certification executed by the General
                                              systems interconnected to the                           and Electronic Engineers (IEEE). The                  Manager that the borrower meets the
                                              borrower’s electric power system. The                   title of IEEE Standard 1547 is ‘‘IEEE                 requirements of this subpart.
                                              Agency encourages borrowers to                          Standard for Interconnecting Distributed
                                              consider model policy templates                         Resources with Electric Power                         § 1730.66   Administrative waiver.
                                              developed by knowledgeable and expert                   Systems’’. You may obtain a copy of                     The Administrator may waive in all or
                                              institutions, such as, but not limited to,              IEEE Standard 1547 from: IEEE, 3 Park                 part, for good cause, the requirements
                                              the National Association of Regulatory                  Avenue, New York, NY 10016–5997.                      and procedures of this subpart.
                                              Utility Commissioners, the Federal                         (3) IDR policies must provide for                  §§ 1730.67–1730.99       [Reserved]
                                              Energy Regulatory Commission and the                    appropriate electric power system
                                              National Rural Electric Cooperative                     disconnect facilities, as determined by                 Dated: July 11, 2008.
                                              Association. The Agency encourages all                  the borrower, which shall include a                   James M. Andrew,
                                              related electric borrowers to cooperate                 lockable disconnect, a visible open, and              Administrator, Rural Utilities Service.
                                              in the development of a common                          fusing, that are readily accessible to and            [FR Doc. E8–18800 Filed 8–12–08; 8:45 am]
                                              Distributed Resource policy.                            operable by authorized personnel at all               BILLING CODE 3410–15–P
                                                                                                      times.
                                              § 1730.62   Definitions.                                   (4) IDR policies must provide for
                                                ‘‘Distributed Resources’’ as used in                  borrower access to the Distributed
                                              this subpart means sources of electric                  Resources facility during normal                      SOCIAL SECURITY ADMINISTRATION
                                              power that are not directly connected to                business hours and all emergency
                                              a bulk power transmission system,                                                                             20 CFR Part 404
                                                                                                      situations.
                                              having an installed capacity of not more                   (c) Responsible party obligations. IDR             [Docket No. SSA–2008–0016]
                                              than 10 MVA, connected to the                           policies must provide for appropriate                 RIN 0960–AG20
                                              borrower’s electric power system                        Responsible Parties to assume the
                                              through a point of common coupling.                     following risks and responsibilities:                 Revised Medical Criteria for Evaluating
                                              Distributed resources include both                         (1) A Responsible Party must agree to              Hearing Loss
                                              generators and energy storage                           maintain appropriate liability insurance
                                              technologies.                                           as outlined in the borrower’s                         AGENCY:   Social Security Administration.
                                                ‘‘Responsible Party’’ as used in this                 interconnection policy.                               ACTION:   Notice of proposed rulemaking.
                                              subpart means the owner, operator or                       (2) A Responsible Party must be
                                              any other person or entity that is                      responsible for the Distributed                       SUMMARY: We propose to revise the
                                              accountable to the borrower under the                   Resources compliance with all national,               criteria in the Listing of Impairments
                                              borrower’s interconnection policy for                   State, local government requirements                  (the listings) that we use to evaluate
                                              Distributed Resources.                                  and electric utility standards for the                claims involving hearing loss. We apply
                                                                                                      safety of the public and personnel                    these criteria when you claim benefits
                                              § 1730.63   IDR policy criteria.                                                                              based on disability under title II and
                                                                                                      responsible for utility electric power
                                                (a) General.                                          system operations, maintenance and                    title XVI of the Social Security Act (the
                                                (1) The borrower’s IDR policy and                     repair.                                               Act). The proposed revisions reflect
                                              procedures shall be readily available to                   (3) A Responsible Party must be                    current medical knowledge, treatment,
                                              the public and include, but not limited                 responsible for the safe and effective                and methods of evaluating hearing loss,
                                              to, a standard application, application                 operation and maintenance of the                      as well as our adjudicative experience
                                              process, application fees, and                          facility.                                             since the publication of the current
                                              agreement.                                                 (4) Only Responsible Parties may                   rules.
                                                (2) All costs to be recovered from the                apply for interconnection and the
                                              applicant regarding the application                                                                           DATES:  To be sure that your comments
                                                                                                      Responsible Party must demonstrate the                are considered, we must receive them
                                              process or the actual interconnection are               financial and managerial capability to
                                              to be clearly explained to the applicant                                                                      by October 14, 2008.
                                                                                                      develop, construct and operate the
                                              and authorized by the applicant prior to                                                                      ADDRESSES: You may submit comments
                                                                                                      distributed resources.
                                              the borrower incurring these costs. The                                                                       by any one of four methods—Internet,
                                              borrower may require separate                           § 1730.64    Power purchase agreements.               facsimile, regular mail, or hand-
                                              nonrefundable deposits sufficient to                      Nothing in this subpart requires the                delivery. Commenters should not
                                              insure serious intent by the applicant                  borrower to enter into purchase power                 submit the same comments multiple
                                              prior to proceeding either with the                     arrangements with the owner of the                    times or by more than one method.
                                              application or actual interconnection                   Distributed Resources.                                Regardless of which of the following
                                              process.                                                                                                      methods you choose, please state that
                                                (3) IDR policies must be approved by                  § 1730.65    Effective dates.                         your comments refer to Docket No.
                                              the borrower’s Board of Directors.                         (a) Each electric program borrower                 SSA–2008–0016 to ensure that we can
                                                (4) The borrower may establish a new                  with an approved electric program loan                associate your comments with the
                                              rate classification for customers with                  as of [DATE OF PUBLICATION OF THE                     correct regulation:
                                              Distributed Resources.                                  FINAL RULE] shall have an IDR policy                     1. Federal eRulemaking portal at
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                                                (5) IDR policies must provide for                     board approved and in effect no later                 http://www.regulations.gov. (This is the
                                              reconsideration and updates every three                 than [DATE 2 YEARS FROM DATE OF                       most expedient method for submitting
                                              years or more frequently as                             PUBLICATION OF THE FINAL RULE].                       your comments, and we strongly urge
                                              circumstances warrant.                                     (b) An electric program borrower that              you to use it.) In the Comment or
                                                (b) Technical requirements.                           submits an application to the Agency for              Submission section of the webpage, type
                                                (1) IDR policies must be consistent                   financial assistance on or after [DATE 2              ‘‘SSA–2008–0016,’’ select ‘‘Go,’’ and
                                              with prudent electric utility practice.                 YEARS FROM DATE OF PUBLICATION                        then click ‘‘Send a Comment or


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                                              47104               Federal Register / Vol. 73, No. 157 / Wednesday, August 13, 2008 / Proposed Rules

                                              Submission.’’ The Federal eRulemaking                   to the listings for hearing loss. We                  the rules we use to evaluate these
                                              portal issues you a tracking number                     published final rules revising the                    disorders from individuals who have
                                              when you submit a comment.                              listings for visual disorders in the                  hearing loss or vestibular disorders,
                                                 2. Telefax to (410) 966–2830.                        Federal Register on November 20, 2006                 their family members, physicians who
                                                 3. Letter to the Commissioner of                     (71 FR 67037). We intend to publish                   treat them, other professionals who
                                              Social Security, P.O. Box 17703,                        separately proposed rules that would                  work with them, and advocates who
                                              Baltimore, MD 21235–7703.                               update the criteria for disturbances of               represent them. The transcript of this
                                                 4. Deliver your comments to the                      labyrinthine-vestibular function and                  conference is available on our Web site
                                              Office of Regulations, Social Security                  loss of speech.                                       at http://policy.ssa.gov/erm/rules.nsf/
                                              Administration, 922 Altmeyer Building,                     Prior to the publication of the final              5da82b031a6677dc85256b41006b7f8d/
                                              6401 Security Boulevard, Baltimore, MD                  rules for evaluating visual disorders                 9314dd803ad5579885256fe200496264
                                              21235–6401, between 8 a.m. and 4:30                     mentioned above, we last published                    !OpenDocument.
                                              p.m. on regular business days.                          final rules making comprehensive                         Several of the changes to the criteria
                                                 All comments are posted on the                       revisions to the part A special senses                for evaluating hearing loss that we
                                              Federal eRulemaking portal, although                    and speech listings in the Federal                    propose in these rules are based on
                                              they may not appear for several days                    Register on March 27, 1979 (44 FR                     information we obtained from
                                              after receipt of the comment. You may                   18170), and final rules making                        individuals at this conference.
                                              also inspect the comments on regular                    comprehensive revisions to the part B
                                                                                                      special senses and speech listings in the             How are we proposing to change the
                                              business days by making arrangements
                                                                                                      Federal Register on March 16, 1977 (42                introductory text to the special senses
                                              with the contact person shown in this
                                                                                                      FR 14705). The current special senses                 and speech listings for adults?
                                              preamble.
                                                 Caution: All comments we receive                     and speech listings will no longer be                 2.00 Special Senses and Speech
                                              from members of the public are                          effective on February 20, 2015, unless
                                                                                                      we extend them, or revise and issue                      We propose to reorganize and expand
                                              available for public viewing in their                                                                         the second through fifth paragraphs of
                                              entirety on the Federal eRulemaking                     them again.
                                                                                                                                                            current 2.00B1, ‘‘Hearing impairment,’’
                                              portal at http://www.regulations.gov.                   How did we develop these proposed                     to provide additional guidance. We
                                              Therefore, you should be careful to                     rules?                                                propose to remove the guidance in the
                                              include in your comments only                                                                                 first paragraph of current 2.00B1, which
                                              information that you wish to make                          We developed these proposed rules
                                                                                                      based on our adjudicative experience                  states that hearing ability should be
                                              publicly available on the Internet. We                                                                        evaluated in terms of the person’s
                                              strongly urge you not to include any                    and advances in medical knowledge,
                                                                                                      treatment, and methods of evaluating                  ability to hear and distinguish speech.
                                              personal information, such as your                                                                            Because our current and proposed
                                              Social Security number or medical                       hearing loss. These proposed rules also
                                                                                                      reflect comments we asked the public to               listings provide for using tones to
                                              information, in your comments.                                                                                evaluate hearing loss, this language may
                                                                                                      provide to help us develop the
                                              FOR FURTHER INFORMATION CONTACT:                        proposals.                                            be misleading. We also propose to
                                              Diane Braunstein, Director, Office of                      We published an advance notice of                  remove the guidance in the last
                                              Compassionate Allowances and Listings                   proposed rulemaking (ANPRM) in the                    paragraph of current 2.00B1, which
                                              Improvement, 6401 Security Boulevard,                   Federal Register on April 13, 2005 (70                provides that cases of alleged ‘‘deaf
                                              Baltimore, MD 21235–6401, (410) 965–                    FR 19353). The purpose of the ANPRM                   mutism’’ should be documented by a
                                              1020. For information on eligibility or                 was to inform the public that we were                 hearing evaluation. This guidance refers
                                              filing for benefits, call our national toll-            planning to update and revise the rules               only to the evaluation of deaf mutism as
                                              free number 1–800–772–1213 or TTY 1–                    we use to evaluate hearing impairments                a hearing impairment; however, we can
                                              800–325–0778, or visit our Internet Web                 and disturbance of labyrinthine-                      also evaluate cases of alleged mutism
                                              site, Social Security Online, at http://                vestibular function and to invite                     under listing 2.09, for loss of speech. In
                                              www.socialsecurity.gov.                                 interested individuals and organizations              that case, we would not need a hearing
                                              SUPPLEMENTARY INFORMATION:                              to send us comments and suggestions                   test. We are not proposing special
                                                                                                      for updating and revising the listings for            requirements for evaluating hearing loss
                                              Electronic Version                                      these disorders. In the ANPRM, we                     if you have deaf mutism; we would
                                                The electronic file of this document is               provided a 60-day period for comments                 require the same documentation as for
                                              available on the date of publication in                 and suggestions; that period ended on                 other hearing disorders.
                                              the Federal Register at http://                         June 13, 2005. We received 13 letters                    We also propose to redesignate
                                              www.gpoaccess.gov/fr/index.html.                        and e-mails from medical experts,                     current 2.00B2, ‘‘Vertigo associated with
                                                                                                      advocates, and State agencies that                    disturbances of labyrinthine-vestibular
                                              Why are we proposing to revise the                                                                            function, including Meniere’s disease,’’
                                                                                                      adjudicate claims for us, commenting on
                                              listings for hearing loss?                                                                                    as proposed 2.00C, and to redesignate
                                                                                                      our criteria for hearing loss. Although
                                                We are proposing to revise the listings               we are not summarizing or responding                  current 2.00B3, ‘‘Loss of speech,’’ as
                                              for hearing loss to update the medical                  to the comments in this notice, we read               proposed 2.00D. We are proposing
                                              criteria in the listings, to provide more               and considered them carefully. We are                 separate sections for these disorders to
                                              information about how we evaluate                       proposing changes to our rules for                    recognize that they are not always
                                              hearing loss, and to reflect our                        evaluating hearing loss based on some                 associated with hearing loss. Although
                                              adjudicative experience. The listings for               of the suggestions we received.                       we are not proposing any substantive
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                                              hearing loss are in the special senses                     We also hosted a policy conference on              changes to these sections at this time,
                                              and speech body system. That body                       ‘‘Hearing Impairments and Disturbance                 we are proposing to make minor
                                              system also includes listings for visual                of Labyrinthine-Vestibular Function’’ at              editorial changes so that the format of
                                              disorders, disturbances of labyrinthine-                Gallaudet University in Washington,                   these sections will be consistent with
                                              vestibular function, and loss of speech.                DC, on November 7 and 8, 2005. At this                other sections of the introductory text in
                                              In this Notice of Proposed Rulemaking                   conference, we heard comments and                     these proposed rules. Because of these
                                              (NPRM), we are proposing changes only                   suggestions for updating and revising                 changes, we also propose to redesignate


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                                                                  Federal Register / Vol. 73, No. 157 / Wednesday, August 13, 2008 / Proposed Rules                                            47105

                                              current 2.00C, ‘‘How do we evaluate                     severity of the hearing loss. As indicated               • We would describe the frequencies
                                              impairments that do not meet one of the                 above, we propose to require a complete               at which pure tone air conduction and
                                              special senses and speech listings?’’ as                otologic examination instead of an                    bone conduction are usually measured.
                                              proposed 2.00E.                                         otolaryngologic examination.                             • We would incorporate the guidance
                                                The following is a detailed                           Additionally, we propose that the                     in current listing 2.08A that explains
                                              explanation of proposed 2.00B.                          complete otologic examination be                      that we average the pure tone hearing
                                                                                                      required only to establish that a                     thresholds for air conduction and bone
                                              Proposed 2.00B—How do we evaluate                                                                             conduction at 500, 1000, and 2000 Hertz
                                                                                                      medically determinable impairment
                                              hearing loss?                                                                                                 (Hz) to determine whether the listing
                                                                                                      exists. After the impairment is
                                              Proposed 2.00B1—What evidence do we                     established, we propose to allow the                  criteria are met.
                                              need to evaluate hearing loss?                          severity of the hearing loss to be                       • We would explain that the speech
                                                                                                      determined based on audiometric                       reception threshold (SRT) is generally
                                                This proposed section revises the
                                                                                                      testing without another complete                      within 10 decibels (dB) of the average
                                              fourth and fifth paragraphs of current
                                                                                                      otologic examination.                                 pure tone air conduction hearing
                                              2.00B1as follows:
                                                                                                                                                            thresholds at 500, 1000, and 2000 Hz. If
                                                • The fourth paragraph of current                     Proposed 2.00B2—What audiometric                      it is not, the reason for the discrepancy
                                              2.00B1 provides that an otolaryngologic                 testing do we need when you do not                    should be documented.
                                              examination should precede                              have a cochlear implant?                                 • We would expand the guidance on
                                              audiometric testing. We propose to                                                                            word recognition testing and clarify that
                                              remove the requirement for an                              This proposed section expands and
                                                                                                                                                            the words should be presented at a level
                                              otolaryngologic examination and                         clarifies the guidance in the second,
                                                                                                                                                            of amplification that will measure your
                                              instead require a complete otologic                     third, and fifth paragraphs of current
                                                                                                                                                            maximum discrimination ability, which
                                              examination. We would make this                         2.00B1 as follows:
                                                                                                                                                            is usually 35 to 40 dB above your SRT.
                                              change because an otolaryngologic                          • We would replace the term ‘‘speech               We would also provide that the
                                              examination contains elements, such as                  discrimination’’ with ‘‘word recognition              amplification level used in the testing
                                              an evaluation of the head, face, and                    testing’’ to reflect current medical                  must be medically appropriate and that
                                              neck, that are not needed to assess                     terminology. In addition, we would add                you must be able to tolerate it.
                                              hearing loss. As we describe in                         a parenthetical statement to explain that
                                              proposed 2.00B1b, a complete otologic                   this testing may also be referred to as               Proposed 2.00B3—What audiometric
                                              examination must include the medical                    word discrimination or speech                         testing do we need when you have a
                                              history, a description of how the hearing               discrimination testing.                               cochlear implant?
                                              loss affects the individual, a description                 • We would clarify that we require                    In this new section, we propose to
                                              of the appearance of the external ear                   that pure tone air conduction and bone                explain that we will consider you to be
                                              (pinna and the external ear canal), an                  conduction testing must be conducted                  disabled until 1 year after implantation
                                              evaluation of the tympanic membrane,                    in accordance with the most recently                  of a cochlear implant. We propose to
                                              and an assessment of any middle ear                     published American National Standards                 add this criterion to recognize the length
                                              abnormalities.                                          Institute (ANSI) standards for air                    of the rehabilitation and training period
                                                • We also propose to revise the                                                                             needed to use a cochlear implant
                                                                                                      conduction and bone conduction
                                              guidance in the current rules that the                                                                        effectively.
                                                                                                      stimuli. Our current rules provide that
                                              otolaryngologic examination should                                                                               After that period, we propose to
                                                                                                      audiometric testing be conducted in
                                              precede the audiometric testing and                                                                           evaluate your hearing loss by measuring
                                                                                                      accordance with the 1969 and 1972
                                              instead provide that the audiometric                                                                          your word recognition ability on the
                                                                                                      ANSI standards or subsequent
                                              testing should be performed within 2                                                                          Hearing in Noise Test (HINT). We
                                                                                                      comparable revisions.
                                              months of the complete otologic                                                                               propose to use the HINT because the
                                              examination. Having the otologic                           • We would clarify that each ear must
                                                                                                                                                            American Academy of Neurology
                                              examination precede the audiometric                     be tested separately and that hearing
                                                                                                                                                            indicated in their comments in response
                                              testing can help identify conditions that               aids must not be worn during the
                                                                                                                                                            to our ANPRM that the HINT is the
                                              could interfere with the audiometric                    testing. Our reasons for proposing to
                                                                                                                                                            ‘‘accepted standard used to assess
                                              testing. However, having the otologic                   remove the current requirement that
                                                                                                                                                            hearing outcome after cochlear
                                              examination follow the audiometric                      hearing be tested with aids in place are
                                                                                                                                                            implantation.’’ We would also explain
                                              testing will allow the physician to                     discussed in our explanation of
                                                                                                                                                            our requirements for how that testing
                                              consider the results of that testing in                 proposed listing 2.10 below. We also
                                                                                                                                                            should be conducted. Our proposed
                                              reaching his or her conclusions about                   propose to require that the testing be
                                                                                                                                                            requirements are based on
                                              the individual’s hearing loss. We believe               conducted in a soundproof booth. Our
                                                                                                                                                            recommendations we received at our
                                              that either sequence is acceptable for                  current rules require that hearing
                                                                                                                                                            policy conference.
                                              determining whether the individual has                  measurements be performed in an
                                              a medically determinable impairment                     environment which meets the 1977                      Proposed 2.00B4—How do we evaluate
                                              that has resulted in hearing loss.                      ANSI standard for maximal permissible                 your word recognition ability if you are
                                              However, we would appreciate having                     background sound.                                     not fluent in English?
                                              specific comments on this change,                          • We would require that an otoscopic                  Word recognition testing should be
                                              replacing an otolaryngologic                            examination be performed immediately                  conducted using an appropriate word
                                              examination with an otologic                            before the audiometric testing to ensure              list. If you are not fluent in English, the
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                                              examination.                                            that there are no conditions present that             testing should be conducted using an
                                                • Lastly, we propose to revise the                    would prevent valid testing. In                       appropriate word list for the language in
                                              current requirement in the fifth                        proposed 2.00B2b, we explain that an                  which you are most fluent. However,
                                              paragraph of 2.00B1 that an                             otoscopic examination provides a                      appropriate word lists are not available
                                              otolaryngologic examination be                          description of the appearance of the                  in all languages. Additionally, the
                                              performed in conjunction with any                       external ear canal and an evaluation of               individual conducting the test should
                                              audiometric testing used to assess the                  the tympanic membrane.                                also be fluent in the language used for


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                                              47106               Federal Register / Vol. 73, No. 157 / Wednesday, August 13, 2008 / Proposed Rules

                                              the test. If the test needs to be                       criteria apply to individuals who do not              percent or less in the better ear.’’ As we
                                              conducted in a language other than                      have cochlear implants.                               mentioned above, ‘‘speech
                                              English, there may not be individuals                      Current listing 2.08 provides that a               discrimination’’ is now referred to as
                                              available who are qualified to perform                  hearing loss is of listing-level severity             ‘‘word recognition testing.’’ When we
                                              the testing in that language. Therefore,                when ‘‘hearing [is] not restorable by a               published the current rules, word
                                              we propose to add this section to                       hearing aid’’ and satisfies either of the             recognition testing was usually
                                              provide guidance on how we would                        criteria in the listing. Our longstanding             conducted using a standardized list of
                                              evaluate your word recognition ability if               interpretation of the phrase ‘‘hearing not            phonetically balanced monosyllabic
                                              you are not fluent in English.                          restorable by a hearing aid’’ is that the
                                                                                                                                                            words. Other types of word recognition
                                                 In this new section, we would provide                hearing loss is so severe that a hearing
                                                                                                                                                            testing, such as sentence testing, are
                                              that, if you are not fluent in English, it              aid would not improve it to a level at
                                                                                                      which it no longer satisfies the listing              now available. Therefore, we propose to
                                              may not be possible to measure your
                                                                                                      criteria. To determine this, we need                  specify the type of word recognition
                                              word recognition ability. We would also
                                                                                                      testing with a hearing aid.                           testing to be used.
                                              explain that, if we cannot measure your
                                              word recognition ability because you are                   We propose to remove the                           Proposed Listing 2.11—Hearing Loss
                                              not fluent in English, your hearing loss                requirement for testing with hearing                  Treated With Cochlear Implantation
                                              cannot meet listing 2.10B or 2.11B. In                  aids for the following reasons:
                                              this situation, we would consider the                      • At our policy conference, we were                   We propose to add criteria to evaluate
                                              facts of your case to determine whether                 advised that aided hearing testing is not             individuals who have cochlear
                                              you have difficulty understanding                       usually performed in clinical practice.               implants. Cochlear implants are devices
                                                                                                         • Audiometric testing with a hearing               that attempt to replace the function of
                                              words in the language in which you are
                                                                                                      aid does not demonstrate whether the
                                              most fluent, and if so, whether that                                                                          damaged inner ear hair cells. The
                                                                                                      individual will be able to use the aid
                                              degree of difficulty medically equals                                                                         implant may destroy any remaining
                                                                                                      effectively.
                                              listing 2.10B or 2.11B. For example, we                                                                       hearing in the implanted ear.
                                                                                                         • When we published the current
                                              will consider how you interact with                                                                              Cochlear implants are not hearing
                                                                                                      listings, generic hearing aids were
                                              family members, interpreters, and other                                                                       aids. Hearing aids amplify sound, while
                                                                                                      available for testing purposes. However,
                                              individuals who speak the language in
                                                                                                      advances in technology have resulted in               cochlear implants provide direct
                                              which you are most fluent.
                                                                                                      hearing aids that are programmed to                   electrical stimulation of the auditory
                                                 We welcome and are very interested
                                                                                                      address each individual’s specific                    nerve. Therefore, even individuals with
                                              in receiving comments about other
                                                                                                      hearing loss. Due to this degree of                   profound hearing loss may receive
                                              methods that you think we can use to
                                                                                                      specificity, generic aids are no longer               enough benefit from a cochlear implant
                                              evaluate word recognition ability for
                                                                                                      widely available.                                     to be able to engage in gainful activity.
                                              individuals who are not fluent in                          Although we propose to no longer
                                              English and who have listing-level                                                                            However, we recognize that if you are
                                                                                                      require aided testing, we are not                     treated with cochlear implantation, you
                                              hearing disorders.                                      proposing to change the level of hearing              will need a period of rehabilitation and
                                              How are we proposing to change the                      loss needed to demonstrate a listing-
                                                                                                                                                            training to use the implant effectively.
                                              criteria in the special senses and speech               level impairment. Based on our
                                                                                                                                                            Therefore, if you have a cochlear
                                              listings for adults?                                    adjudicative experience and the
                                                                                                                                                            implant, we propose to consider you to
                                                                                                      comments we received in response to
                                              2.01 Category of Impairments, Special                   our ANPRM and at our policy                           be under a disability for one year from
                                              Senses and Speech                                       conference, we have determined that                   the date of implantation.
                                                 Under our current listings, we do not                individuals with this level of hearing                   After the 1-year period, we propose to
                                              consider the effects of treatment with                  loss do not usually obtain significant                determine whether your hearing loss
                                              cochlear implantation on an                             improvement in their ability to hear and              meets the listing by assessing your word
                                              individual’s hearing loss. Due to                       communicate from hearing aids.                        recognition ability using the HINT. We
                                              advances in the technology used in                      Therefore, we believe that without a                  propose to use the HINT to assess your
                                              cochlear implants, we believe it is now                 cochlear implant, a hearing loss at the               word recognition ability because, as
                                              appropriate to consider the effects of                  level specified in the current listing is             mentioned in our discussion of
                                              cochlear implantation on an                             indicative of listing-level severity even             proposed section 2.00B3, the American
                                              individual’s hearing loss. Therefore, we                if the individual were to use hearing                 Academy of Neurology indicated in
                                              propose to add a separate listing to                    aids.                                                 their comments in response to our
                                              evaluate hearing loss treated with                         Current listing 2.08A requires                     ANPRM that the HINT is the ‘‘accepted
                                              cochlear implantation. Because we are                   ‘‘[a]verage hearing threshold sensitivity
                                                                                                                                                            standard used to assess hearing outcome
                                              proposing to add a listing, we also                     for air conduction of 90 decibels or
                                                                                                                                                            after cochlear implantation.’’
                                              propose to renumber the listings for ease               greater, and for bone conduction to
                                              of reference. We would revise current                   corresponding maximal levels, in the                     The HINT is a sentence test.
                                              listing 2.08, ‘‘Hearing impairments,’’                  better ear, determined by the simple                  Individuals generally have higher word
                                              renumber it as listing 2.10, ‘‘Hearing                  average of hearing threshold levels at                recognition scores when tested with a
                                              loss not treated with cochlear                          500, 1000, and 2000 hz.’’ We would                    sentence test as opposed to a
                                              implantation,’’ and add listing 2.11,                   clarify the criterion in current listing              monosyllabic word test because
                                              ‘‘Hearing loss treated with cochlear                    2.08A for ‘‘bone conduction to                        sentences provide context for the words
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                                              implantation.’’                                         corresponding maximal levels’’ by                     in them. Therefore, we propose to find
                                                                                                      specifying that this means that the                   that your hearing loss meets the listing
                                              Proposed Listing 2.10—Hearing Loss
                                                                                                      average bone conduction hearing                       if your word recognition score on the
                                              Not Treated With Cochlear Implantation
                                                                                                      threshold must be 60 dB or greater in                 HINT is 60 percent or less.
                                                In this proposed listing, we would                    the better ear.
                                              revise current listing 2.08, ‘‘Hearing                     Current listing 2.08B requires
                                              impairments,’’ and specify that these                   ‘‘[s]peech discrimination scores of 40


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                                                                  Federal Register / Vol. 73, No. 157 / Wednesday, August 13, 2008 / Proposed Rules                                          47107

                                              How are we proposing to change the                      and 1972 ANSI standards or subsequent                 young children with cochlear implants
                                              introductory text to the special senses                 comparable revisions.                                 to acquire speech and language skills.
                                              and speech listings for children?                          • We would provide that hearing aids                 We would also explain that after that
                                                                                                      not be used during audiometric testing.               period, we will evaluate your hearing
                                              102.00     Special Senses and Speech                                                                          loss by measuring your word
                                                                                                         • We would require that an otoscopic
                                                 We have repeated much of the                         examination be performed immediately                  recognition ability on the HINT or the
                                              introductory text of proposed 2.00B in                  before the audiometric testing to ensure              Hearing in Noise Test for Children
                                              the introductory text to proposed                       that there are no conditions present that             (HINT–C).
                                              102.00B. This is because the same basic                 would prevent valid testing.                          Proposed 102.00B5—What do we mean
                                              rules for evaluating hearing loss in                       • We would provide that we will not                by a marked limitation in speech or
                                              adults also apply to evaluating hearing                 purchase physiologic testing. We are                  language as used in 102.10B2?
                                              loss in children age 5 and older.                       proposing this rule because such testing
                                              Because we have already described                                                                               In this new section, we explain when
                                                                                                      may require sedation.
                                              these provisions under the explanation                                                                        we will consider you to have a marked
                                                                                                         • We would describe the hearing                    limitation in speech or language.
                                              of proposed 2.00B, the following                        testing that is appropriate for children
                                              discussion of proposed 102.00B                          in the age ranges of birth to the                     How are we proposing to change the
                                              describes only those provisions that                    attainment of age 6 months, age 6                     criteria in the special senses and speech
                                              apply to children under age 5, are                      months to the attainment of age 2, age                listings for children?
                                              unique to the childhood rules, or                       2 to the attainment of age 5, and age 5
                                              require further explanation specific to                                                                       102.01 Category of Impairments,
                                                                                                      to the attainment of age 18. The                      Special Senses and Speech
                                              evaluating disability in children.                      proposed guidance for hearing testing
                                                 We propose to remove the first                       for children age 5 to the attainment of                  For the reasons mentioned in our
                                              paragraph of current 102.00B, ‘‘Hearing                 age 18 is similar to the proposed                     discussion of 2.01 above, we propose to
                                              impairments in children.’’ This                         guidance for hearing testing in adults,               add a separate listing to evaluate
                                              paragraph explains that the criteria for                except for the frequencies needed to                  hearing loss treated with cochlear
                                              hearing impairments in children take                    determine the hearing threshold.                      implantation. Because we are proposing
                                              into account that a lesser impairment in                   • We would revise the frequency                    to add a listing, we also propose to
                                              hearing which occurs at an early age                    levels used to determine the pure tone                renumber the listings for ease of
                                              may result in a severe speech or                        air conduction or bone conduction                     reference. We would revise current
                                              language disorder. While this paragraph                 threshold from 500, 1000, 2000, and                   listing 102.08, ‘‘Hearing impairments,’’
                                              does explain why we use a lower                         3000 Hz to 500, 1000, 2000, and 4000                  renumber it as listing 102.10, ‘‘Hearing
                                              threshold for children, it is not needed                                                                      loss not treated with cochlear
                                                                                                      Hz. We received several comments in
                                              in the introductory text as it does not                                                                       implantation,’’ and add listing 102.11,
                                                                                                      response to our ANPRM recommending
                                              provide any guidance about how to                                                                             ‘‘Hearing loss treated with cochlear
                                                                                                      that we make this change in how we
                                              evaluate hearing loss under these                                                                             implantation.’’
                                                                                                      determine the hearing threshold.
                                              listings.                                               Additionally, our adjudicative                        Proposed 102.10—Hearing Loss Not
                                                 We also propose to remove the second                 experience has shown that testing is                  Treated With Cochlear Implantation
                                              paragraph of current 102.00B. This                      often not done at 3000 Hz. We                            This proposed listing would revise
                                              paragraph provides guidance on how to                   considered using the same hearing                     current listing 102.08, ‘‘Hearing
                                              consider improvement in hearing due to                  thresholds as in adults, but propose to               impairments,’’ and specify that it
                                              use of a hearing aid. As we discussed in                continue to use 4000 Hz because of the                applies to children who do not have
                                              our explanation of proposed listing 2.10                importance of hearing at higher                       cochlear implants.
                                              above, we are proposing to remove the                   frequencies to a child’s ability to learn                The current childhood listing requires
                                              requirement for aided hearing testing.                  speech.                                               that we assess your ability to hear with
                                              Therefore, this guidance is no longer                      • We would describe screening tests,               a hearing aid unless we determine that
                                              needed.                                                 such as otoacoustic emissions (OAE),                  you are not able to use the aid
                                              Proposed 102.00B2—What audiometric                      and explain how we use them. We                       effectively. For the reasons we stated in
                                              testing do we need when you do not                      propose to provide this guidance                      the discussion of proposed listing 2.10
                                              have a cochlear implant?                                because hearing screening tests are                   above, we propose to no longer require
                                                                                                      commonly given to children in newborn                 aided hearing testing to determine if
                                                This proposed section expands and                     nurseries and schools. We do not                      your hearing loss meets the listing.
                                              clarifies the guidance in the third and                 propose to add this guidance to the                      Proposed listing 102.10A would
                                              fourth paragraphs of current 102.00B as                 introductory text for adults because                  replace current listing 102.08A. This
                                              follows:                                                hearing screening tests are not                       proposed listing contains the criterion
                                                • We would clarify that we generally                  commonly given to adults.                             for evaluating hearing loss in children
                                              need behavioral or physiologic testing                                                                        under age 5 who do not have a cochlear
                                              (other than screening testing) that is                  Proposed 102.00B3—What audiometric                    implant. We propose to replace the
                                              appropriate for your age at the time of                 testing do we need when you have a                    current criterion for an aided average
                                              testing.                                                cochlear implant?                                     hearing threshold of 40 dB in the better
                                                • We would clarify that we require                       This new section is similar to                     ear with a criterion for an unaided
                                              that audiometric testing be conducted in                proposed 2.00B3 except that we provide                average air conduction hearing
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                                              accordance with the most recently                       that a child who has a cochlear implant               threshold of 50 dB or greater in the
                                              published American National Standards                   will be disabled until age 5 or until 1               better ear. We propose to use a
                                              Institute (ANSI) standards for air                      year after implantation, whichever is                 threshold of 50 dB because we believe
                                              conduction and, if appropriate, bone                    later. We propose to consider children                that, even with the use of a hearing aid,
                                              conduction stimuli. Our current rules                   with cochlear implants to be disabled                 a child under age 5 who has a 50 dB
                                              provide that audiometric testing be                     until age 5 because of the extensive                  hearing loss will also have a marked
                                              conducted in accordance with the 1969                   rehabilitation and training needed for                limitation in speech or language.


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                                              47108                        Federal Register / Vol. 73, No. 157 / Wednesday, August 13, 2008 / Proposed Rules

                                                 Proposed listing 102.10B would                                         of the importance of hearing to a child’s                   that we make under titles II and XVI of
                                              replace current listing 102.08B. This                                     ability to communicate and learn.                           the Act. In addition, to the extent that
                                              proposed listing contains the criteria for                                  Proposed listing 102.10B2 would                           Medicare entitlement and Medicaid
                                              evaluating hearing loss in children from                                  correspond to current listing 102.08B2.                     eligibility are based on whether you
                                              age 5 to the attainment of age 18. For the                                We propose to make the same editorial                       qualify for disability benefits under title
                                              reasons we explained earlier, we                                          changes as we did in proposed listing                       II or title XVI, these proposed rules
                                              propose to no longer require aided                                        2.10B.                                                      would also affect the Medicare and
                                              hearing testing.                                                            Proposed listing 102.10B3 would                           Medicaid programs.
                                                 Proposed listing 102.10B1 would                                        correspond to current listing 102.08B3.
                                              correspond to current listing 102.08B1.                                   As we discussed in our explanation of                       Who can get disability benefits?
                                              Current listing 102.08B1 generally                                        proposed listing 102.10A above, we
                                              requires an aided average air conduction                                  propose to use an unaided hearing                             Under title II of the Act, we provide
                                              hearing threshold of 70 dB or greater in                                  threshold of 50 dB in the better ear.                       for the payment of disability benefits if
                                              the better ear. We would expect hearing                                   Because children typically acquire basic                    you are disabled and belong to one of
                                              loss at that level to have a sensorineural                                speech and language skills by age 5, we                     the following three groups:
                                              component. (A sensorineural hearing                                       believe that it is not appropriate to                         • Workers insured under the Act,
                                              loss is caused by permanent damage to                                     presume that a child over age 5 who has                       • Children of insured workers, and
                                              the inner ear or to the nerve pathways                                    a 50 dB hearing loss will also have a
                                              from the inner ear to the brain.) We                                      marked limitation in speech or                                • Widows, widowers, and surviving
                                              propose to replace the criterion in                                       language. Therefore, for children over                      divorced spouses (see § 404.336) of
                                              current listing 102.08B1 with an                                          age 5, we also propose to require an                        insured workers.
                                              unaided average air conduction hearing                                    assessment of speech and language                             Under title XVI of the Act, we provide
                                              threshold of 70 dB or greater in the                                      skills.                                                     for Supplemental Security Income (SSI)
                                              better ear. In order to ensure that                                                                                                   payments on the basis of disability if
                                              hearing loss at this level has a                                          Proposed 102.11—Hearing Loss Treated
                                                                                                                        With Cochlear Implantation                                  you are disabled and have limited
                                              sensorineural component, we also                                                                                                      income and resources.
                                              propose to add a criterion in proposed                                      This proposed listing is similar to
                                              listing 102.10B1 for an average bone                                      proposed listing 2.11 except that we                        How do we define disability?
                                              conduction hearing threshold of 40 dB                                     propose to consider you to be under a
                                              or greater in the better ear. We would                                    disability until age 5, or for 1 year after                   Under both the title II and title XVI
                                              continue to use a 70 dB average air                                       implantation, whichever is later. We                        programs, disability must be the result
                                              conduction hearing threshold because                                      also propose to use either the HINT or                      of any medically determinable physical
                                              we believe a hearing loss with a                                          the HINT–C to assess your word                              or mental impairment or combination of
                                              sensorineural component at this level                                     recognition ability.                                        impairments that is expected to result in
                                              will significantly affect a child’s ability                                                                                           death or which has lasted or can be
                                              to engage in learning. Also, we do not                                    What programs would these proposed                          expected to last for a continuous period
                                              use the same hearing threshold levels                                     regulations affect?                                         of at least 12 months. Our definitions of
                                              for children from age 5 to the attainment                                   These proposed rules would affect                         disability are shown in the following
                                              of age 18 as we use for adults because                                    disability determinations and decisions                     table:

                                                                                                                                                            Disability means you have a medically determinable impairment(s) as
                                              If you file a claim under . . .                             And you are . . .                                 described above and that results in . . .

                                              title II ................................................   an adult or a child ..........................    the inability to do any substantial gainful activity (SGA).
                                              title XVI ............................................      an individual age 18 or older .........           the inability to do any SGA.
                                              title XVI ............................................      an individual under age 18 ............           marked and severe functional limitations.



                                              How do we decide whether you are                                          education, and work experience. If you                      are not disabled. If you do not, we will
                                              disabled?                                                                 are not, we will go on to step 2.                           go on to step 5.
                                                                                                                          2. Do you have a ‘‘severe’’                                  5. Does your impairment(s) prevent
                                                 If you are applying for benefits under                                                                                             you from doing any other work that
                                              title II of the Act, or if you are an adult                               impairment? If you do not have an
                                                                                                                        impairment or combination of                                exists in significant numbers in the
                                              applying for payments under title XVI of                                                                                              national economy, considering your
                                              the Act, we use a five-step ‘‘sequential                                  impairments that significantly limits
                                                                                                                        your physical or mental ability to do                       RFC, age, education, and work
                                              evaluation process’’ to decide whether                                                                                                experience? If it does, and it meets the
                                              you are disabled. We describe this five-                                  basic work activities, we will find that
                                                                                                                        you are not disabled. If you do, we will                    duration requirement, we will find that
                                              step process in our regulations at                                                                                                    you are disabled. If it does not, we will
                                              §§ 404.1520 and 416.920. We follow the                                    go on to step 3.
                                                                                                                                                                                    find that you are not disabled.
                                              five steps in order and stop as soon as                                     3. Do you have an impairment(s) that                         We use a different sequential
                                              we can make a determination or                                            meets or medically equals the severity                      evaluation process for children who
                                              decision. The steps are:                                                  of an impairment in the listings? If you                    apply for payments based on disability
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                                                 1. Are you working, and is the work                                    do, and the impairment(s) meets the                         under SSI. If you are already receiving
                                              you are doing substantial gainful                                         duration requirement, we will find that                     benefits, we also use a different
                                              activity? If you are working and the                                      you are disabled. If you do not, we will                    sequential evaluation process when we
                                              work you are doing is substantial                                         go on to step 4.                                            decide whether your disability
                                              gainful activity, we will find that you                                     4. Do you have the residual functional                    continues. See §§ 404.1594, 416.924,
                                              are not disabled, regardless of your                                      capacity (RFC) to do your past relevant                     416.994, and 416.994a of our
                                              medical condition or your age,                                            work? If you do, we will find that you                      regulations. However, all of these


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                                                                  Federal Register / Vol. 73, No. 157 / Wednesday, August 13, 2008 / Proposed Rules                                             47109

                                              processes include steps at which we                        Also, when we conduct reviews to                     • Do the rules contain technical
                                              consider whether your impairment(s)                     determine whether your disability                     language or jargon that is not clear?
                                              meets or medically equals one of our                    continues, we will not find that your                   • Would a different format (grouping
                                              listings.                                               disability has ended because we have                  and order of sections, use of headings,
                                                                                                      changed a listing. Our regulations                    paragraphing) make the rules easier to
                                              What are the listings?                                  explain that, when we change our                      understand?
                                                 The listings are examples of                         listings, we continue to use our prior                  • Would more (but shorter) sections
                                              impairments that we consider severe                     listings when we review your case, if                 be better?
                                              enough to prevent you as an adult from                  you qualified for disability benefits or                • Could we improve clarity by adding
                                              doing any gainful activity. If you are a                SSI payments based on our                             tables, lists, or diagrams?
                                              child seeking SSI payments based on                     determination or decision that your
                                                                                                                                                              • What else could we do to make the
                                              disability, the listings describe                       impairment(s) met or medically equaled
                                                                                                                                                            rules easier to understand?
                                              impairments that we consider severe                     a listing. In these cases, we determine
                                              enough to result in marked and severe                   whether you have experienced medical                  Regulatory Procedures
                                              functional limitations. Although the                    improvement, and if so, whether the
                                                                                                                                                            Executive Order 12866
                                              listings are contained only in appendix                 medical improvement is related to the
                                              1 to subpart P of part 404 of our                       ability to work. If your condition(s) has               We have consulted with the Office of
                                              regulations, we incorporate them by                     medically improved so that your                       Management and Budget (OMB) and
                                              reference in the SSI program in                         impairment(s) no longer meets or                      determined that these proposed rules
                                              § 416.925 of our regulations and apply                  medically equals the prior listing, we                meet the requirements for a significant
                                              them to claims under both title II and                  evaluate your case further to determine               regulatory action under Executive Order
                                              title XVI of the Act.                                   whether you are currently disabled. We                12866, as amended. Thus, they were
                                                                                                      may find that you are currently                       subject to OMB review.
                                              How do we use the listings?                             disabled, depending on the full
                                                                                                      circumstances of your case. See                       Regulatory Flexibility Act
                                                 The listings are in two parts. There
                                              are listings for adults (part A) and for                §§ 404.1594(c)(3)(i) and                                 We certify that these proposed rules
                                              children (part B). If you are an                        416.994(b)(2)(iv)(A). If you are a child              would not have a significant economic
                                              individual age 18 or over, we apply the                 who is eligible for SSI payments, we                  impact on a substantial number of small
                                              listings in part A when we assess your                  follow a similar rule when we decide                  entities because they affect only
                                              claim, and we never use the listings in                 that you have experienced medical                     individuals. Thus, a regulatory
                                              part B.                                                 improvement in your condition(s). See                 flexibility analysis as provided in the
                                                 If you are an individual under age 18,               § 416.994a(b)(2).                                     Regulatory Flexibility Act, as amended,
                                              we first use the criteria in part B of the              When will we start to use these rules?                is not required.
                                              listings. Part B contains criteria that
                                                                                                         We will not use these rules until we               Paperwork Reduction Act
                                              apply only to individuals who are under
                                              age 18. If the criteria in part B do not                evaluate the public comments we                          In these regulations, we are proposing
                                              apply, we may use the criteria in part A                receive on them, determine whether                    to: (1) Revise the listings for hearing loss
                                              when those criteria give appropriate                    they should be issued as final rules, and             to update the medical criteria in the
                                                                                                      issue final rules in the Federal Register.            listings; (2) provide more information
                                              consideration to the effects of the
                                                                                                      If we publish final rules, we will                    about how we evaluate hearing loss; and
                                              impairment(s) in children. (See
                                                                                                      explain in the preamble how we will                   (3) reflect our adjudicative experience.
                                              §§ 404.1525 and 416.925.)
                                                                                                      apply them, and summarize and                         The listings for hearing loss are in the
                                                 If your impairment(s) does not meet
                                                                                                      respond to the public comments. Until                 special senses and speech body system.
                                              any listing, we will also consider
                                                                                                      the effective date of any final rules, we             That body system also includes listings
                                              whether it medically equals any listing;
                                                                                                      will continue to use our current rules.               for visual disorders, disturbances of
                                              that is, whether it is as medically severe
                                              as an impairment in the listings. (See                  How long would these proposed rules                   labyrinthine-vestibular function and
                                              §§ 404.1526 and 416.926.)                               be effective?                                         loss of speech. In this NPRM, we are
                                                                                                         If we publish these proposed rules as              proposing changes only to the listings
                                              What if you do not have an                                                                                    for hearing loss. As part of the listings,
                                              impairment(s) that meets or medically                   final rules, they will remain in effect for
                                                                                                      8 years after the date they became                    we identify specific documentation
                                              equals a listing?                                                                                             requirements used in evaluating
                                                                                                      effective, unless we extend them, or
                                                 We use the listings only to decide that              revise and issue them again.                          impairments within a body system,
                                              you are disabled or that you are still                                                                        including medical and other evidence.
                                              disabled. We will not deny your claim                   Clarity of these proposed rules                       The documentation and evidentiary
                                              or decide that you no longer qualify for                Executive Order 12866, as amended,                    requirements are public reporting
                                              benefits because your impairment(s)                     requires each agency to write all rules in            burdens that must be cleared by OMB
                                              does not meet or medically equal a                      plain language. In addition to your                   under the Paperwork Reduction Act.
                                              listing. If you have a severe                           substantive comments on these                         However, the public reporting burdens
                                              impairment(s) that does not meet or                     proposed rules, we invite your                        are accounted for in the Information
                                              medically equal any listing, we may still               comments on how to make them easier                   Collection Requests for the various
                                              find you disabled based on other rules                  to understand.                                        forms that the public uses to submit the
                                              in the ‘‘sequential evaluation process.’’                                                                     information to SSA. Consequently, we
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                                                                                                        For example:
                                              Likewise, we will not decide that your                    • Have we organized the material to                 are reporting no burden for this
                                              disability has ended only because your                  suit your needs?                                      regulation aside from a 1-hour
                                              impairment(s) no longer meets or                          • Are the requirements in the rules                 placeholder burden shown in the chart
                                              medically equals a listing.                             clearly stated?                                       below, for the sections listed.




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                                              47110                   Federal Register / Vol. 73, No. 157 / Wednesday, August 13, 2008 / Proposed Rules

                                                                                    PART 404—FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE
                                                                                                                                                                                                                  Average
                                                                                                                                                       Annual                                                                             Estimated
                                                                                     Title/section &                                                                            Frequency                       burden per
                                                                                                                                                       number                                                                               annual
                                                                                 collection description                                                                         of response                      response
                                                                                                                                                   of respondents                                                                       burden (hours)
                                                                                                                                                                                                                 (minutes)

                                              Hearing Loss (2.00B and 102.00B) .................................................................   ........................   ........................       ........................               1



                                                An Information Collection Request                              www.cms.hhs.gov/MLNMattersArticles/                                List of Subjects in 20 CFR Part 404
                                              has been submitted to OMB for                                    downloads/MM3796.pdf.)
                                                                                                                                                                                    Administrative practice and
                                              clearance. We are soliciting comments                          Cunningham. M. and Cox, E.O. (2003).
                                                                                                               Hearing assessment in infants and
                                                                                                                                                                                  procedure, Blind, Disability benefits,
                                              on the burden estimate; the need for the                                                                                            Old-Age, Survivors, and Disability
                                              information; its practical utility; ways to                      children: Recommendations beyond
                                                                                                               neonatal screening. Pediatrics, 111(2), 436–                       Insurance, Reporting and recordkeeping
                                              enhance its quality, utility and clarity;                                                                                           requirements, Social Security.
                                                                                                               440.
                                              and ways to minimize the burden on
                                                                                                             Dale, D.C. and Federman, D.D., eds.                                    Dated: May 12, 2008.
                                              respondents, including the use of                                Neurology. ACP Medicine. (2004) Elliot M.
                                              automated collection techniques or                                                                                                  Michael J. Astrue,
                                                                                                               Frohman, New York: WebMD Professional                              Commissioner of Social Security.
                                              other forms of information technology.                           Publishing.
                                              Requests for the Information Collection                        Gifford, R.H. and Shallop, J.K. (2007).                                Editorial Note: This document was
                                              Request package and/or comments                                  Hearing preservation in patients with a                            received at the Office of the Federal Register
                                              should be directed to SSA and OMB at                             cochlear implant. The ASHA Leader,                                 on August 8, 2008.
                                              the following addresses/phone numbers:                           12(14), 15, 17, 34.                                                  For the reasons set out in the
                                              Office of Management and Budget, Attn:                         Gorga, M.P., et al. (2006). Using a                                  preamble, we propose to amend part
                                                Desk Officer for SSA, Fax Number:                              combination of click- and tone burst-                              404 of chapter III of title 20 of the Code
                                                202–395–6974, E-mail address: OIRA_                            evoked auditory brain stem response                                of Federal Regulations as set forth
                                                Submission@omb.eop.gov.                                        measurements to estimate pure-tone
                                                                                                                                                                                  below:
                                              Social Security Administration, Attn:                            thresholds. Ear & Hearing, 27(1), 60–74.
                                                                                                             Joint Committee on Infant Hearing. (2000).                           PART 404—FEDERAL OLD-AGE,
                                                Reports Clearance Officer, 1333
                                                                                                               Year 2000 position statement: Principles                           SURVIVORS AND DISABILITY
                                                Annex Building, 6401 Security Blvd.,                           and guidelines for early hearing detection
                                                Baltimore, MD 21235, Fax: 410–965–                                                                                                INSURANCE (1950– )
                                                                                                               and intervention programs. Pediatrics,
                                                6400, E-mail address:                                          106(4), 798–817.                                                     1. The authority citation for subpart P
                                                OPLM.RCO@ssa.gov.                                            Joint Committee on Infant Hearing. (2007).                           of part 404 continues to read as follows:
                                                 Comments on the paperwork burdens                             Year 2007 position statement: Principles
                                                                                                                                                                                    Authority: Secs. 202, 205(a), (b), and (d)–
                                              associated with this rule can be received                        and guidelines for early hearing detection                         (h), 216(i), 221(a) and (i), 222(c), 223, 225,
                                              for up to 60 days after publication of                           and intervention programs. Pediatrics,                             and 702(a)(5) of the Social Security Act (42
                                              this notice and will be most useful if                           120(4), 898–921.                                                   U.S.C. 402, 405(a), (b), and (d)–(h), 416(i),
                                                                                                             National Research Council (NRC): Committee                           421(a) and (i), 422(c), 423, 425, and
                                              received within 30 days of publication.
                                                                                                               on Disability Determination for Individuals                        902(a)(5)); sec. 211(b), Pub. L. 104–193, 110
                                              This does not affect the deadline for the
                                                                                                               with Hearing Impairments. (2005). Hearing                          Stat. 2105, 2189; sec. 202, Pub. L. 108–203,
                                              public to comment to SSA on the                                  Loss: Determining Eligibility for Social                           118 Stat. 509 (42 U.S.C. 902 note).
                                              proposed regulations. These information                          Security Benefits. Washington, DC:
                                              collection requirements will not become                          National Academy Press. (Available at                              Appendix 1 to Subpart P of Part 404—
                                              effective until approved by OMB. When                            http://www.nap.edu/                                                [Amended]
                                              OMB has approved these information                               catalog.php?record_id=11099#toc.)                                     2. Appendix 1 to subpart P of part 404
                                              collection requirements, SSA will                              Pittman, A.L., & Stelmachowicz, P.G. (2003).                         is amended as follows:
                                              publish a notice in the Federal Register.                        Hearing loss in children and adults:                                  a. Revise item 3 of the introductory
                                                                                                               Audiometric configuration, asymmetry,                              text before part A of appendix 1.
                                              List of References                                               and progression. Ear & Hearing, 24(3),                                b. Revise section 2.00B of part A of
                                                During the development of these                                198–205.                                                           appendix 1.
                                              proposed rules, we reviewed the                                U.S. Food and Drug Administration, Center                               c. Redesignate section 2.00C of part A
                                              following information:                                           for Devices and Radiological Health.                               of appendix 1 as section 2.00E.
                                              American Speech-Language-Hearing                                 (2007). Benefits and Risks of Cochlear                                d. Add new sections 2.00C and 2.00D
                                                Association (ASHA). (2004). Guidelines for                     Implants. (Available at: http://                                   to part A of appendix 1.
                                                the audiologic assessment of children from                     www.fda.gov/cdrh/cochlear/                                            e. Remove listing 2.08 of part A of
                                                birth to 5 years of age [Guidelines].                          RiskBenefit.html.)                                                 appendix 1.
                                                (Available at http://www.asha.org/NR/                                                                                                f. Add listings 2.10 and 2.11 to part
                                                rdonlyres/0BB7C840–27D2–4DC6–861B–                             These references are included in the
                                                                                                                                                                                  A of appendix 1.
                                                1709ADD78BAF/0/v2GLAudAssess                                 rulemaking record for these proposed                                    g. Revise section 102.00B of part B of
                                                Child.pdf.)                                                  rules and are available for inspection by                            appendix 1.
                                              ASHA. (2004). Technical report: Cochlear                       interested individuals making                                           h. Remove listing 102.08 of part B of
                                                implants. ASHA Supplement 24.                                arrangements with the contact person                                 appendix 1.
hsrobinson on PROD1PC76 with PROPOSALS




                                                (Available at http://www.asha.org/NR/                        shown in this preamble.
                                                rdonlyres/215CC9B8–6831–494F–83ED–                                                                                                   i. Add listings 102.10 and 102.11 to
                                                E02A6832A8A9/0/v2TRcochlear                                  (Catalog of Federal Domestic Program Nos.                            part B of appendix 1.
                                                implants.pdf.)                                               96.001, Social Security—Disability                                      The revised text is set forth as follows:
                                              Centers for Medicare & Medicaid Services.                      Insurance; 96.002, Social Security—
                                                                                                                                                                                  Appendix 1 to Subpart P of Part 404—
                                                (2005). MLN Matters Number MM3796:                           Retirement Insurance; 96.004, Social
                                                                                                             Security—Survivors Insurance; and 96.006,
                                                                                                                                                                                  Listing of Impairments
                                                Cochlear Implantation. (Available at http://
                                                                                                             Supplemental Security Income)                                        *         *            *          *         *


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                                                                  Federal Register / Vol. 73, No. 157 / Wednesday, August 13, 2008 / Proposed Rules                                            47111

                                                3. Special Senses and Speech (2.00                       b. You must not wear hearing aids                  (hearing level) and without any visual
                                              and 102.00): [Insert date 8 years from                  during the testing. Additionally, we                  cues.
                                              the effective date of the final rules].                 require that an otoscopic examination                    4. How do we evaluate your word
                                              *     *     *     *     *                               be performed immediately before the                   recognition ability if you are not fluent
                                                Part A                                                audiometric testing. An otoscopic                     in English?
                                                                                                      examination provides a description of                    If you are not fluent in English, it may
                                              *     *     *     *     *
                                                                                                      the appearance of the external ear canal              not be possible to measure your word
                                              2.00    Special Senses and Speech                       and an evaluation of the tympanic                     recognition ability. If your word
                                              *      *     *    *     *                               membrane. The otoscopic examination                   recognition ability cannot be measured,
                                                 B. How do we evaluate hearing loss?                  must also show that there are no                      your hearing loss cannot meet 2.10B or
                                                 1. What evidence do we need to                       conditions present that would prevent                 2.11B. Instead, we will consider the
                                              evaluate hearing loss?                                  valid audiometric testing. Examples of                facts of your case to determine whether
                                                 a. To establish that you have a                      such conditions are fluid in the ear, an              you have difficulty understanding
                                              medically determinable impairment that                  ear infection, or an obstruction in the               words in the language in which you are
                                              causes your hearing loss, we require                    ear canal.                                            most fluent, and if so, whether that
                                              both a complete otologic examination                       c. An audiological examination                     degree of difficulty medically equals
                                              and audiometric testing. The                            usually includes pure tone air                        2.10B or 2.11B. For example, we will
                                              audiometric testing should be                           conduction and bone conduction testing                consider how you interact with family
                                              performed within 2 months of the                        measured at 250, 500, 1000, 2000, and                 members, interpreters, and other
                                              complete otologic examination.                          4000 Hertz (Hz). To determine whether                 individuals who speak the language in
                                                 b. A complete otologic examination                   your hearing loss meets the air                       which you are most fluent.
                                              must include your medical history, your                 conduction criterion in 2.10A, we will                   C. How do we evaluate vertigo
                                              description of how your hearing loss                    average the air conduction hearing                    associated with disturbances of
                                              affects you, a description of the                       thresholds at 500, 1000, and 2000 Hz.                 labyrinthine-vestibular function,
                                              appearance of the external ear (pinna                   To determine whether your hearing loss                including Meniere’s disease?
                                              and the external ear canal), an                         meets the bone conduction criterion in                   1. These disturbances of balance are
                                              evaluation of the tympanic membrane,                    2.10A, we will average the bone                       characterized by a hallucination of
                                              and an assessment of any middle ear                     conduction hearing thresholds at 500,                 motion or a loss of position sense and
                                              abnormalities.                                          1000, and 2000 Hz.                                    a sensation of dizziness which may be
                                                 c. After your impairment has been                       d. The SRT is the minimal decibel                  constant or may occur in paroxysmal
                                              established, we can use the results of                  (dB) level required for you to recognize              attacks. Nausea, vomiting, ataxia, and
                                              subsequent audiometric testing to assess                a standard list of words. The SRT is                  incapacitation are frequently observed,
                                              the severity of your hearing loss without               usually within 10 dB of the average pure              particularly during the acute attack. It is
                                              another complete otologic examination.                  tone air conduction hearing thresholds                important to differentiate the report of
                                                 d. Audiometric testing must be                       at 500, 1000, and 2000 Hz. If the SRT                 rotary vertigo from that of ‘‘dizziness,’’
                                              performed by, or under the supervision                  is not within 10 dB of the average pure               which is described as light-headedness,
                                              of, an otolaryngologist or by an                        tone air conduction threshold, the                    unsteadiness, confusion, or syncope.
                                              audiologist qualified to perform such                   reason for the discrepancy should be                     2. Meniere’s disease is characterized
                                              tests. We consider an audiologist to be                 documented.                                           by paroxysmal attacks of vertigo,
                                              qualified if the audiologist is currently                  e. Word recognition testing                        tinnitus, and fluctuating hearing loss.
                                              and fully licensed or registered as a                   determines your ability to recognize a                Remissions are unpredictable and
                                              clinical audiologist by the state or U.S.               standardized list of phonetically                     irregular, but may be long-lasting;
                                              territory in which he or she practices. If              balanced monosyllabic words in the                    hence, the severity of the impairment is
                                              no licensure or registration is available,              absence of any visual cues. This testing              best determined after prolonged
                                              the audiologist must be currently                       must be performed in quiet. The words                 observation and serial reexaminations.
                                              certified by the American Board of                      should be presented at a level of                        3. The diagnosis of a vestibular
                                              Audiology or have a Certificate of                      amplification that will measure your                  disorder requires a comprehensive
                                              Clinical Competence (CCC–A) from the                    maximum ability to discriminate words,                neuro-otolaryngologic examination with
                                              American Speech-Language-Hearing                        usually 35 to 40 dB above your SRT.                   a detailed description of the vertiginous
                                              Association (ASHA).                                     However, the amplification level used                 episodes, including notation of
                                                 2. What audiometric testing do we                    in the testing must be medically                      frequency, severity, and duration of the
                                              need when you do not have a cochlear                    appropriate and you must be able to                   attacks. Pure tone and speech
                                              implant?                                                tolerate it. The individual who performs              audiometry with the appropriate special
                                                 a. We generally need pure tone air                   the test should report your word                      examinations, such as Bekesy
                                              conduction and bone conduction                          recognition testing score at your highest             audiometry, are necessary. Vestibular
                                              testing, speech reception threshold                     comfortable level of amplification.                   function is assessed by positional and
                                              (SRT) testing, and word recognition                        3. What audiometric testing do we                  caloric testing, preferably by
                                              testing. (Word recognition testing may                  need when you have a cochlear                         electronystagmography. When
                                              be referred to as word discrimination or                implant?                                              polytomograms, contrast radiography, or
                                              speech discrimination testing.) This                       a. If you have a cochlear implant, we              other special tests have been performed,
                                              testing must be conducted in a                          will consider you to be disabled until 1              copies of the reports of these tests
                                              soundproof booth and each ear must be                   year after implantation.                              should be obtained in addition to
hsrobinson on PROD1PC76 with PROPOSALS




                                              tested separately. Pure tone air                           b. After that period, we need word                 appropriate medically acceptable
                                              conduction and bone conduction testing                  recognition testing performed with the                imaging reports of the skull and
                                              must be conducted in accordance with                    Hearing in Noise Test (HINT). This                    temporal bone. Medically acceptable
                                              the most recently published standards                   testing must be conducted in quiet in a               imaging includes, but is not limited to,
                                              of the American National Standards                      sound field with your implant adjusted                x-ray imaging, computerized axial
                                              Institute (ANSI) for air conduction and                 to your normal settings. The sentences                tomography (CAT scan) or magnetic
                                              bone conduction stimuli.                                should be presented at 60 dB HL                       resonance imaging (MRI), with or


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                                              47112               Federal Register / Vol. 73, No. 157 / Wednesday, August 13, 2008 / Proposed Rules

                                              without contrast material, myelography,                 subsequent audiometric testing to assess              average the hearing thresholds at 500,
                                              and radionuclear bone scans.                            the severity of your hearing loss without             1000, 2000, and 4000 Hz.
                                              ‘‘Appropriate’’ means that the technique                another complete otologic examination.                  d. Children from age 6 months to the
                                              is the proper one to support the                           d. Audiometric testing must be                     attainment of age 2.
                                              evaluation and diagnosis of the                         performed by, or under the supervision                  i. We need air conduction thresholds
                                              impairment.                                             of, an otolaryngologist or by an                      determined by a behavioral assessment,
                                                 D. Loss of speech. In evaluating the                 audiologist qualified to perform such                 usually visual reinforcement
                                              loss of speech, the ability to produce                  tests. We consider an audiologist to be               audiometry (VRA), and an acoustic
                                              speech by any means includes the use                    qualified if the audiologist is currently             immittance assessment. We can use
                                              of mechanical or electronic devices that                and fully licensed or registered as a                 ABR testing results if the behavioral
                                              improve voice or articulation.                          clinical audiologist by the state or U.S.             assessment cannot be completed or if
                                              Impairments of speech may also be                       territory in which he or she practices. If            the results of the behavioral assessment
                                              evaluated under the body system for the                 no licensure or registration is available,            are inconclusive or unreliable.
                                              underlying disorders, such as                           the audiologist must be currently                       ii. To determine whether your hearing
                                              neurological disorders, 11.00ff.                        certified by the American Board of                    loss meets listing 102.10A, we will
                                              *     *     *     *     *                               Audiology or have a Certificate of                    average the hearing thresholds at 500,
                                                                                                      Clinical Competence (CCC–A) from the                  1000, 2000, and 4000 Hz.
                                              2.01 Category of Impairments, Special                   American Speech-Language-Hearing                        iii. For this age group, behavioral
                                              Senses and Speech                                       Association (ASHA).                                   assessments are often performed in a
                                              *     *     *     *     *                                  2. What audiometric testing do we                  sound field, and each ear is not tested
                                                2.10 Hearing loss not treated with                    need when you do not have a cochlear                  separately. If each ear is not tested
                                              cochlear implantation.                                  implant?                                              separately, we will consider the test
                                                A. An average air conduction hearing                     a. General. We generally need                      results to represent the hearing in the
                                              threshold of 90 decibels or greater in the              behavioral or physiologic testing (other              better ear.
                                              better ear and an average bone                          than screening testing, see 102.00B3g)                  e. Children from age 2 to the
                                              conduction hearing threshold of 60                      that is appropriate for your age at the               attainment of age 5.
                                              decibels or greater in the better ear (see              time of testing. We will make every                     i. We need air conduction thresholds
                                              2.00B2c); or                                            reasonable effort to obtain the results of            determined by a behavioral assessment,
                                                B. A word recognition score of 40                     physiologic testing that has been done.               such as conditioned play audiometry
                                              percent or less in the better ear                       However, if this testing has not been                 (CPA), tangible or visually reinforced
                                              determined using a standardized list of                 done, or, if we cannot obtain the results,            operant conditioning audiometry
                                              phonetically balanced monosyllabic                      we will not purchase it. In these                     (TROCA, VROCA), or VRA, and an
                                              words (see 2.00B2e).                                    situations, we will evaluate your                     acoustic immittance assessment. We can
                                                2.11 Hearing loss treated with                        hearing loss based on the other evidence              use ABR testing results if the behavioral
                                              cochlear implantation.                                  in your case record.                                  assessment cannot be completed or if
                                                A. Consider under a disability for 1                     b. Testing requirements. The testing               the results of the behavioral assessment
                                              year after implantation; or                             must be conducted in accordance with                  are inconclusive or unreliable.
                                                B. If more than 1 year after                          the most recently published standards                   ii. To determine whether your hearing
                                              implantation, a word recognition score                  of the American National Standards                    loss meets listing 102.10A, we will
                                              of 60 percent or less determined using                  Institute (ANSI) for air conduction                   average the hearing thresholds at 500,
                                              the HINT (see 2.00B3b).                                 stimuli, and if appropriate, bone                     1000, 2000, and 4000 Hz.
                                              *     *     *     *     *                               conduction stimuli. You must not wear                   iii. For this age group, behavioral
                                                Part B                                                hearing aids during the testing.                      assessments are often performed in a
                                              *     *     *     *     *                               Additionally, we require that an                      sound field and each ear is not tested
                                                                                                      otoscopic examination be performed                    separately. If each ear is not tested
                                              102.00     Special Senses and Speech                    immediately before the audiometric                    separately, we will consider the test
                                              *      *     *    *     *                               testing. An otoscopic examination                     results to represent the hearing in the
                                                 B. How do we evaluate hearing loss?                  provides a description of the appearance              better ear.
                                                 1. What evidence do we need to                       of the external ear canal and an                        f. Children from age 5 to the
                                              evaluate hearing loss?                                  evaluation of the tympanic membrane.                  attainment of age 18.
                                                 a. To establish that you have a                      The otoscopic examination must also                     i. We generally need pure tone air
                                              medically determinable impairment that                  show that there are no conditions                     conduction and bone conduction
                                              causes your hearing loss, we require                    present that would prevent valid                      testing, speech reception threshold
                                              both a complete otologic examination                    audiometric testing. Examples of such                 (SRT) testing, and word recognition
                                              and audiometric testing. The                            conditions are fluid in the ear, an ear               testing. (Word recognition testing may
                                              audiometric testing should be                           infection, or an obstruction in the ear               be referred to as word discrimination or
                                              performed within 2 months of the                        canal.                                                speech discrimination testing.) This
                                              complete otologic examination.                             c. Children from birth to the                      testing must be conducted in a
                                                 b. A complete otologic examination                   attainment of age 6 months.                           soundproof booth and each ear must be
                                              must include your medical history, your                    i. We need physiologic testing, such               tested separately.
                                              description of how your hearing loss                    as auditory brainstem response (ABR)                    ii. An audiological examination
                                              affects you, a description of the                       testing, that measures the frequencies                usually includes pure tone air
hsrobinson on PROD1PC76 with PROPOSALS




                                              appearance of the external ear (pinna                   needed to recognize speech; that is, the              conduction and bone conduction testing
                                              and the external ear canal), an                         range from 500 to 4000 Hertz (Hz). We                 measured at 250, 500, 1000, 2000, and
                                              evaluation of the tympanic membrane,                    also need an acoustic immittance                      4000 Hz. To determine whether your
                                              and an assessment of any middle ear                     assessment; that is, a tympanogram and                hearing loss meets the air conduction
                                              abnormalities.                                          acoustic reflex testing.                              criterion in 102.10B1 or 102.10B3, we
                                                 c. After your impairment has been                       ii. To determine whether your hearing              will average the air conduction hearing
                                              established, we can use the results of                  loss meets listing 102.10A, we will                   thresholds at 500, 1000, 2000, and 4000


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                                                                  Federal Register / Vol. 73, No. 157 / Wednesday, August 13, 2008 / Proposed Rules                                            47113

                                              Hz. To determine whether your hearing                   If your word recognition ability cannot               phonetically balanced monosyllabic
                                              loss meets the bone conduction criterion                be measured, your hearing loss cannot                 words (see 102.00B2f); or
                                              in 102.10B1, we will average the bone                   meet 102.10B2 or 102.11B. Instead, we                    3. An average air conduction hearing
                                              conduction hearing thresholds at 500,                   will consider the facts of your case to               threshold of 50 decibels or greater in the
                                              1000, 2000, and 4000 Hz.                                determine whether you have difficulty                 better ear and a marked limitation in
                                                 iii. The SRT is the minimal decibel                  understanding words in the language in                speech or language (see 102.00B2f and
                                              (dB) level required for you to recognize                which you are most fluent, and if so,                 102.00B5).
                                              a standard list of words. The SRT is                    whether that degree of difficulty                        102.11 Hearing loss treated with
                                              usually within 10 dB of the average pure                medically equals 102.10B2 or 102.11B.                 cochlear implantation.
                                              tone air conduction hearing thresholds                  For example, we will consider how you                    A. Consider under a disability until
                                              at 500, 1000, and 2000 Hz. If the SRT                   interact with family members,                         the attainment of age 5, or for 1 year
                                              is not within 10 dB of the average pure                 interpreters, and other individuals who               after implantation, whichever is later; or
                                              tone air conduction threshold, the                      speak the language in which you are                      B. Upon the attainment of age 5 or 1
                                              reason for the discrepancy should be                    most fluent.                                          year after implantation, whichever is
                                              documented.                                                5. What do we mean by a marked                     later, a word recognition score of 60
                                                 iv. Word recognition testing                         limitation in speech or language as used              percent or less determined using the
                                              determines your ability to recognize a                  in 102.10B3?                                          HINT or the HINT–C (see 102.00B3b).
                                              standardized list of phonetically                          a. We will consider you to have a                  *      *    *    *     *
                                              balanced monosyllabic words in the                      marked limitation in speech if:
                                              absence of any visual cues. This testing                   i. According to the unfamiliar listener,           [FR Doc. E8–18718 Filed 8–12–08; 8:45 am]
                                              must be performed in quiet. The words                   entire phrases or sentences in your                   BILLING CODE 4191–02–P
                                              should be presented at a level of                       conversation are intelligible
                                              amplification that will measure your                    approximately 60 percent of the time or
                                              maximum ability to discriminate words,                  less on the first attempt; and                        LIBRARY OF CONGRESS
                                              usually 35 to 40 dB above your SRT.                        ii. Your sound production or
                                              However, the amplification level used                   phonological patterns (the ways in                    Copyright Office
                                              in the testing must be medically                        which you combine speech sounds) are
                                              appropriate and you must be able to                     atypical for your age.                                37 CFR Part 201 and 255
                                              tolerate it. The individual who performs                   b. We will consider you to have a                  [Docket No. RM 2000–7]
                                              the test should report your word                        marked limitation in language when
                                              recognition testing score at your highest               your current and valid test score on an               Compulsory License for Making and
                                              comfortable level of amplification.                     appropriate comprehensive,                            Distributing Phonorecords, Including
                                                 g. Screening Testing. ABR and other                  standardized test of overall language                 Digital Phonorecord Deliveries
                                              physiologic testing, such as otoacoustic                functioning is at least two standard
                                              emissions (OAE), can be used as hearing                 deviations below the mean. In addition,               AGENCY:  Copyright Office, Library of
                                              screening tests. When such testing is                   the evidence of your daily                            Congress.
                                              used as hearing screening tests, we will                communication functioning must be                     ACTION: Extension of time to file
                                              not use the results to determine that                   consistent with your test score. If you               comments and reply comments; Notice
                                              your hearing loss meets or medically                    are not fluent in English, it may not be              of Hearing.
                                              equals a listing, or to assess functional               possible to test your language
                                                                                                                                                            SUMMARY: The Copyright Office is
                                              limitations due to your hearing loss. We                performance. If we cannot test your
                                                                                                                                                            extending the time in which comments
                                              can, however, consider normal results                   language performance, your hearing loss
                                                                                                                                                            and reply comments may be filed in
                                              from hearing screening tests to                         cannot meet 102.10B3. Instead, we will
                                                                                                                                                            response to its Notice of Proposed
                                              determine whether your hearing loss is                  consider the facts of your case to
                                                                                                                                                            Rulemaking proposing to amend its
                                              severe when these test results are                      determine whether your hearing loss
                                                                                                                                                            regulations to clarify the scope and
                                              consistent with the other evidence in                   medically equals 102.10B3.
                                                                                                                                                            application of the Section 115
                                              your case record. See § 416.924(c).                     *      *     *     *    *
                                                 3. What audiometric testing do we                                                                          compulsory license to make and
                                              need when you have a cochlear                           102.01 Category of Impairments,                       distribute phonorecords of a musical
                                              implant?                                                Special Senses and Speech                             work by means of digital phonorecord
                                                 a. If you have a cochlear implant, we                                                                      deliveries. 73 FR 40802. The Office is
                                                                                                      *      *    *     *     *                             also announcing a hearing on the
                                              will consider you to be disabled until                     102.10 Hearing loss not treated with
                                              age 5, or for 1 year after implantation,                                                                      proposed rulemaking to take place on
                                                                                                      cochlear implantation.
                                              whichever is later.                                        A. For children from birth to the                  September 19, 2008.
                                                 b. After that period, we need word                   attainment of age 5, an average air                   DATES: Comments must be received in
                                              recognition testing performed with the                  conduction hearing threshold of 50                    the Office of the General Counsel of the
                                              Hearing in Noise Test (HINT) or the                     decibels or greater in the better ear (see            Copyright Office no later than Thursday,
                                              Hearing in Noise Test for Children                      102.00B2); or                                         August 28, 2008 at 5:00 p.m. Reply
                                              (HINT–C). This testing must be                             B. For children from age 5 to the                  Comments must be received no later
                                              conducted in quiet in a sound field with                attainment of age 18:                                 than Monday, September 15, 2008 at
                                              your implant adjusted to your normal                       1. An average air conduction hearing               5:00 p.m. The hearing will take place on
                                              settings. The sentences should be                       threshold of 70 decibels or greater in the            Friday, September 19, 2008,
hsrobinson on PROD1PC76 with PROPOSALS




                                              presented at 60 dB HL (hearing level)                   better ear and an average bone                        commencing at 10:00 a.m. in the
                                              and without any visual cues.                            conduction hearing threshold of 40                    Copyright Hearing Room at the Library
                                                 4. How do we evaluate your word                      decibels or greater in the better ear (see            of Congress, Room LM–408, 4th Floor,
                                              recognition ability if you are not fluent               102.00B2f); or                                        James Madison Building, 101
                                              in English? If you are not fluent in                       2. A word recognition score of 40                  Independence Avenue, SE, Washington,
                                              English, it may not be possible to                      percent or less in the better ear                     DC. Requests to testify at the hearing
                                              measure your word recognition ability.                  determined using a standardized list of               must be received in writing no later


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