Could Musculoskeletal Listing Changes Be Reconsidered?

      The harsh new musculoskeletal Listings are scheduled to go into effect on April 2. However, the change of Administration could delay implementation or even kill these changes altogether. Soon after taking office, Biden's Chief of Staff sent a memorandum to agency heads giving them this directive:

... With respect to rules that have been published in the Federal Register, or rules that have been issued in any manner, but have not taken effect, consider postponing the rules’ effective dates for 60 days from the date of this memorandum ... for the purpose of reviewing any questions of fact, law, and policy the rules may raise.  For rules postponed in this manner, during the 60-day period, where appropriate and consistent with applicable law, consider opening a 30-day comment period to allow interested parties to provide comments about issues of fact, law, and policy raised by those rules, and consider pending petitions for reconsideration involving such rules.  As appropriate and consistent with applicable law, and where necessary to continue to review these questions of fact, law, and policy, consider further delaying, or publishing for notice and comment proposed rules further delaying, such rules beyond the 60-day period.  Following the 60-day delay in effective date:

a. for those rules that raise no substantial questions of fact, law, or policy, no further action needs to be taken; and 

b. for those rules that raise substantial questions of fact, law, or policy, agencies should notify the OMB Director and take further appropriate action in consultation with the OMB Director. ...

     The musculoskeletal Listings certainly raise substantial questions of policy, if not fact. Even though their effective date is more than 60 days after this memo, it would certainly seem that they should be subject to additional review and that there should be a new comment period. I would expect that there will be "requests for reconsideration" of the Listings. These new musculoskeletal Listings are not mere housekeeping. They were and remain a highly controversial attack on disability claimants.

     By the way, those proposed regulations that would have increased the number of continuing disability review and that would have modified the grid regulations may not have been officially withdrawn yet but they're dead.