VETS issues interim final rule on USERRA posting requirement.  The Veterans' Employment and Training Service (VETS) of the US Department of Labor (DOL) has issued an interim final rule to implement a posting requirement contained in the Veterans Benefits Improvement Act of 2004 (VBIA), signed into law by President Bush on December 10, 2004. The VBIA amended the Uniformed Services Employment and Reemployment Rights Act (USERRA) by, among other things, adding a requirement that employers provide a notice of the rights, benefits, and obligations of employees and employers under USERRA. The text of this required notice is included in the interim final rule which was published in the Federal Register on March 10, 2005 (70 FR 12106 - 12109). It is also contained in a poster available on the VETS website at: http://www.dol.gov/vets/programs/userra/poster.pdf. Employers may meet the notice requirement by displaying this poster where they customarily place notices for employees. This interim final rule does not affect the DOL's pending proposed regulations to implement the USERRA, which was published in the Federal Register of September 20, 2004 (69 FR 56266, reproduced in CCH EMPLOYMENT PRACTICES GUIDE ¶5132).

Background. USERRA provides military leave and reemployment rights for veterans and reservists; it also prohibits discrimination and retaliation based on an employee's military service. On December 10, 2004, President Bush signed into law the Veterans Benefits Improvement Act of 2004 (VBIA). Among its provisions, the VBIA requires employers to post a notice informing employees of their rights under USERRA. The posting requirement will be codified at 38 USC 4334. Under the VBIA, the Secretary of Labor had to make the required notice of USERRA rights available to employers no later than 90 days after the President signed the bill into law. The publication of the interim final rule containing the text of the notice was pursuant to this Congressional mandate.

The United States Commission on Civil Rights is composed of eight Commissioners: four appointed by the President and four by Congress. Not more than four members shall at any one time be of the same political party. The President also designates the Chairperson and Vice Chairperson from among the Commission's members with the concurrence of a majority of the Commission's members. The Commissioners serve 6-year terms. No Senate confirmation is required. The President may remove a member of the Commission only for neglect of duty or malfeasance in office.

VBIA demonstration project. The March 10, 2005, Federal Register notice also explains that the VBIA created a demonstration project under which about half of the claims against federal executive agencies arising under USERRA will be transferred by the DOL to the Office of Special Counsel (OSC). Under this demonstration project, the Secretary of Labor transfers to OSC those cases involving federal executive agency employees with odd-numbered social security numbers. The demonstration project began on February 8, 2005, and will end on September 30, 2007. Comments on the interim rule are due on May 9, 2005. They should be identified by "Docket No. VETS-U-05," and may be submitted by any of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the Web site instructions for submitting comments.
• Electronic mail: Comments may be submitted by e-mail to: vetspublic@dol.gov. Include "Docket No. VETS-U-05" on the subject line of the message. Materials that are in Microsoft Office formats such as Word, Excel, and Power Point may be attached. Attachments may also be made using Adobe Acrobat, Word Perfect, or ASCII/text documents. You cannot attach materials using executables (.exe, .com, .bat) or any encrypted zip files.
• Facsimile (fax): VETS at (202) 693-4754.

US Supreme Court considers scope of ADA for travelers on foreign-flagged ships. The US Supreme Court heard arguments in Spector v Norwegian Cruise Line, Ltd, Dkt No 03-1388, on the question of "whether and to what extent Title III of the Americans with Disabilities Act (ADA) applies to companies that operate foreign-flag cruise ships in United States waters?"

Background. A group of disabled travelers and their companions took cruises on Norwegian Cruise Line (NCL) ships at various times during 1998 and 1999. They brought suit claiming that physical barriers on NCL ships denied them access to the following: (1) emergency evacuation equipment and emergency evacuation-related programs; (2) facilities such as public restrooms, restaurants, swimming pools, and elevators; and (3) cabins with a balcony or a window. They also claimed NCL charged them a premium for use of the four handicapped-accessible cabins and the assistance of crew members.

The cruise ships, which sail under the Bahamian flag, originated in the Port of Houston, Texas and traveled to foreign ports of call.

A federal district court found that foreign-flagged ships are subject to Title III of the ADA, but dismissed the claim concerning removal of physical barriers because the federal government failed to promulgate the necessary regulations.

In a case of first impression, the Fifth Circuit reversed that part of the district court's decision and held that foreign-flagged ships are not subject to the ADA. The circuit court ruled that Congress had failed to clearly express any intention to subject such vessels to the Act when Title III of the ADA was enacted (see 11 ADD ¶11-078).

Supreme Court arguments. A number of Supreme Court justices expressed doubts as to whether the ADA should apply to foreign-flagged cruise ships, even when those ships operate extensively in US waters and serve primarily American passengers. Specifically, various justices voiced concern about the international implications of applying US law to ships that fly foreign flags. "You are in effect saying, 'the US rules the world,' " Justice Ruth Bader Ginsburg told the attorney representing the group of disabled travelers suing NCL for discrimination under the ADA. Thomas C. Goldstein, the travelers' lawyer, contended that Congress intended for the ADA to apply to foreign-flagged ships in US ports and waters. Goldstein acknowledged that application of the ADA to foreign-flagged ships would effectively mean the statute would be applied outside US waters as well. "It's true that our law would have consequences abroad. But it's not that 'the US rules the world,'" he said.

The Bush administration joined the arguments on behalf of the travelers. Assistant Solicitor General David B. Salmons asserted that any vessel in US waters that offers accommodations to Americans should be subject to the ADA.

The lawyer for the NCL rejected that position. David C. Frederick told the Court there is no indication that Congress meant in the ADA to address the issue of discrimination on cruise ships. Foreign-flagged ships for 200 years have fallen under the laws of foreign lands, he said. Congress did not address the issue of foreign vessels in the ADA, Frederick suggested, because it would encroach on foreign sovereignty. Gregory G. Garre, on behalf of the Bahamas, echoed that position and warned that application of the ADA to foreign-flagged ships would invite confusion and international conflict.

Oral arguments in the case Spector v Norwegian Cruise Line, Ltd, Dkt No 03-1388, took place on February 28, 2005.

HUD approves conditional use of 2003 IBC for compliance with the accessibility requirements of the Fair Housing Act. The US Department of Housing and Urban Development (HUD) announced that it has approved the conditional use of the 2003 International Building Code (IBC), published by the International Code Council (ICC), as a safe harbor for compliance with the accessibility requirements of the Fair Housing Act.

The announcement came in a final report issued in the Federal Register on February 28, 2005, where HUD allowed the 2003 IBC to be used as a safe harbor on the condition that the ICC will clarify its interpretation of one of the accessibility provisions in a manner that will require an accessible route. The report requires the ICC to publicize this interpretation by publishing and distributing the following statement to jurisdictions and past and future purchasers of the IBC: ICC interprets Section 1104.1, and specifically, the exception to Section 1104.1, to be read together with Section 1107.4, and that the Code requires an accessible pedestrian route from site arrival points to accessible building entrances, unless site impracticality applies. Exception 1 to Section 1107.4 is not applicable to site arrival points for any Type B dwelling units because site impracticality is addressed under Section 1107.7.

The final report outlines several additional ways the ICC may relay this information. In addition, the final report states that in order for the 2006 edition of the IBC to be declared a safe harbor during the next code change cycle, the IBC must be modified to clearly state that an accessible pedestrian route must be provided from site arrival points to accessible entrances of buildings required to comply with the Fair Housing Act's design and construction requirements. HUD believes that its recognition of the most recent edition of the IBC as a safe harbor will make it easier for those involved in the design and construction of covered multifamily dwellings to comply with the accessibility requirements of the Fair Housing Act.

HUD reviewed the 2003 IBC at the request of the ICC for the purpose of determining whether it could be recognized as a safe harbor for compliance with the accessibility requirements of the Fair Housing Act, the regulations implementing the Act, and the Fair Housing Accessibility Guidelines. The conclusions in its final report are intended to provide technical assistance to the ICC and other interested parties. The report does not contain any new technical requirements or standards nor is this final report an endorsement of a model building code.

Source: www.hud.gov.

The following bills introduced over the month would:

Amend Title 10 of the US Code to enhance the readiness of the Armed Forces by replacing the current policy concerning homosexuality in the Armed Forces, referred to as Don't Ask, Don't Tell, with a policy of nondiscrimination on the basis of sexual orientation. H. 1059. Introduced 3/02/05, by Rep. Martin T. Meehan, D-MA. Referred to Armed Services Committee.

Prohibit discrimination on the basis of genetic information with respect to health insurance and employment. H. 1227. Introduced 3/10/05, by Rep. Judy Biggert, R-IL. Referred to Ways and Means Committee.

Make technical corrections to the Veterans Benefits Improvement Act of 2004. S. 552. Introduced 3/08/05, By Sen. Daniel Akaka, D-HI. Referred to Veterans Affairs Committee.

Labor/Wage Hour     Top of Page

Bills granting bargaining rights to public safety workers introduced in House, Senate. Bills that would establish collective bargaining rights for public safety officers has been introduced this month in both the House and Senate. The Public Safety Employer-Employee Cooperation Act of 2005 (S. 513, HR. 1249) would provide bargaining rights to corrections officers, firefighters, police and emergency services personnel employed by states or political subdivisions.

The proposed legislation would call for the Federal Labor Relations Authority (FLRA) to determine whether a state substantially provides public safety employees the right to join labor organizations and requires public safety employers to recognize and bargain with labor organizations freely chosen by a majority of workers. The FLRA would also determine whether a state affords a dispute resolution mechanism and state court enforcement of bargaining agreements.

The FLRA would be authorized to issue regulations establishing collective bargaining procedures in states that fail to meet these requirements. The agency will be empowered to determine appropriate bargaining units, supervise or conduct elections, resolve unfair labor practice complaints, and protect public safety employees' right to organize. The FLRA will have authority to petition courts of appeal for enforcement of its orders.

The legislation would prohibit strikes or lockouts by public safety employees and employers. It would not permit parties subject to the NLRA from negotiating provisions that would prohibit employees from engaging in part-time employment or volunteer activities during off-duty hours. State laws or local ordinances that offer greater protections than those provided for in the Act will not be rescinded or preempted. Nor would the legislation infringe on existing collective bargaining agreements. States would be allowed to exempt from coverage those political subdivisions with populations of less than 5,000 people or that employ less than 25 full-time employees.

The legislation was introduced in the Senate on March 3, 2005, sponsored by Sen. Judd Gregg (R-NH), and referred to the Committee on Health, Education Labor and Pensions; the House bill, sponsored by Rep. Dale Kildee (D-MI), was introduced March 10 and was referred to the House Committee on Education and the Workforce.

Johnson introduces three union accountability bills in House.  House Employer-Employee Relations Subcommittee Chairman Sam Johnson (R-TX) on March 3, 2005, re-introduced three bills to ensure that rank-and-file workers receive information from their unions on the rights and remedies guaranteed them under the Labor-Management Reporting and Disclosure Act (LMRDA), the federal law that requires union leaders to make certain disclosures to union members about their democratic rights, including information about member union dues and how they are spent. According to Johnson, hearings by the Employer-Employee Relations Subcommittee in the 108th Congress revealed many labor unions fail to notify their members of their democratic rights guaranteed them under the LMRDA, undermining accountability and leaving rank-and-file union members in the dark about their rights. Federal labor law is intended to ensure that rank-and-file union members have a full, equal, and democratic voice in union affairs.

The bills are summarized below.

• The Union Members Right-to-Know Act clarifies that unions must disclose to union members certain information about their rights, such as member union dues, membership rights, member disciplinary procedures, the election and removal of union officers, the calling of regular and special meetings, and other democratic rights. Hearings revealed that many unions have argued that notifying members of their democratic rights just once satisfies their legal obligation under the LMRDA, and that they never have to notify members again, even members who started work long after the notice took place. The bill requires unions to make these disclosures to members within 90 days of joining a union, essentially codifying the federal Fourth Circuit Court of Appeals decision in Thomas v International Association of Machinists (4thCir 2000), 140 LC ¶10,654.
• The Union Member Information Enforcement Act authorizes the Secretary of Labor to investigate union member complaints of a union's failure to meet LMRDA disclosure requirements and bring suit on their behalf to enforce the law. Under current law, the Labor Department cannot enforce the law on behalf of union members, thus forcing them to hire their own attorney and challenge the legal expertise available to their union. Johnson said the high cost of litigation is the main reason why unions have been able to ignore this legal obligation for more than four decades.
• The Labor Management Accountability Act allows the Labor Secretary to assess civil penalties on unions and employers that either file late, or fail to file at all, financial disclosure reports, which give rank-and-file union members vital information about how their own union leaders spend union dues. The Labor Department has no effective enforcement authority to ensure that union leaders or employers comply with the law and file these reports. Labor Department data from 2003 shows approximately 35 percent of unions either filed their forms late or did not file them at all.

Comment period on proposed rules on FMLA interaction with HIPAA ended March 30, 2005. The Department of Labor's Employee Benefits Security Administration, in conjunction with the Department of Health and Human Services and IRS, last December issued proposed regulations under the Health Insurance Portability and Accountability Act (HIPAA) which sort out the interaction between HIPAA and the Family and Medical Leave Act (FMLA). The proposed rules address how the HIPAA portability requirements would apply in situations where a person is on leave under the FMLA. The agencies sought public comment on this particular issue before promulgating final regulations. Comments on the proposed rules are due March 30.

A general principle of FMLA is that an employee returning from leave under FMLA should generally be in the same position the employee was in before taking leave. At issue is how to reconcile that principle of FMLA with the HIPAA rights and requirements that are triggered by an individual ending coverage under a group health plan. The proposed regulations provide specific rules that clarify how HIPAA and FMLA interact when the coverage of an employee or an employee's dependent ends in connection with an employee taking leave under FMLA.

The key provisions are as follows:

Breaks in coverage. If an employee takes FMLA leave and does not continue group health coverage for any part of the leave, the proposed rule would provide that the period of FMLA leave without coverage is not taken into account in determining whether a significant break in coverage has occurred for the employee and any dependents.

To the extent that a person needs to show that coverage ceased in connection with FMLA leave (which would toll any significant break with regards to another plan or issuer), the rule would provide that a plan must take into account all information that it obtains about an employee's FMLA leave. Also, if a person attests to the period of FMLA leave and cooperates with a plan's efforts to verify the leave, the plan must treat the person as having been on FMLA leave for the period attested to, for purposes of determining if the person had a significant break in coverage. Note, however, that a plan is not barred from modifying its initial determination of FMLA leave if it determines that the individual did not have the claimed FMLA leave, as long as the plan follows specified procedures for reconsideration.

Automatic certificates. The proposed regulations clarify that there is no exception to the general rule requiring automatic certificates when coverage ends and provide that, if an individual covered under a group health plan takes FMLA leave and ceases coverage under the plan, an automatic certificate must be provided.

Special enrollment rules. With regard to special enrollment rules, an individual or his or her dependent who is covered under a group health plan and who takes FMLA leave has a loss of eligibility that results in a special enrollment period if the person's group health coverage is terminated at any time during FMLA leave and the person does not return to work for the employer at the end of the FMLA leave. This special enrollment period begins when the period of FMLA leave ends. Also, the rules that delay the start of the special enrollment period until the receipt of a certificate of creditable coverage continue to operate.

The proposed rules were published in the Federal Register on December 30, 2004 (69 FR 78801). The final HIPAA regulations were published in the Federal Register on the same day.

Senate refuses to raise minimum wage. The Senate rejected two competing amendments to raise the minimum wage. The amendments were offered by Sens. Edward Kennedy, D-Mass., and Rick Santorum, R-Pa. They failed on the Senate floor on March 8, 2005. The Kennedy amendment would have increased the minimum wage over two years from the current $5.15 an hour to $7.25. Under the amendment, the wage would have increased by 70 cents after enactment, 70 cents a year later and another 70 cents a year after that. The last increase in the minimum wage occurred in 1997, Kennedy noted. But Republicans objected to the Kennedy proposal, saying it would discourage employers from hiring low-level workers. The amendment fell short of the 60 votes required for passage under the rules, with 46 members voting for it and 49 voting against it. The Santorum amendment would have increased the minimum wage to $6.25 over two years. In addition to the raising the minimum wage, the amendment included provisions opposed by Democrats. It would have exempted certain small businesses from paying overtime and allowed employers to offer flextime. Again, the amendment fell short of the required 60 votes, with 38 yeas and 61 nays.

Benefits Top of Page

CMS modifies Medicare Part D guidance for employers' and unions' plans for retirees. In an effort to simplify and encourage employers to provide and administer prescription drug benefits for their retirees, the Centers for Medicare and Medicaid Services (CMS) has issued additional Medicare Part D waiver guidance for employers and unions. This latest guidance, which supplements waiver guidance that the CMS issued on February 11, details circumstances under which the agency will automatically grant waivers to customized Part D plans sponsored by employers and unions. These plans do not need to notify the CMS of their intent to apply to offer customized Part D benefits, but they must file an addendum (to be supplied by the CMS) by April 18 identifying certain provisions of the Part D application expected to differ for their employer customers, and/or provisions for which they are requesting additional waivers. Furthermore, separate formulary submissions will be required to the extent a formulary differs for a given product.

Among those employer/union retiree prescription drug plans are those that contract directly with the CMS as a Part D sponsor and that are subject to ERISA fiduciary requirements or similar state or federal law standards. These types of plans still must meet record retention standards applicable to other Part D sponsors and bonding and insurance standards unless the plan demonstrates to the CMS that it meets different federal or state laws.

In addition, the CMS will waive one aspect of the actuarial equivalence test required for the employer/union plan to receive the 28% Medicare subsidy. These plans still must meet the requirements that the total or gross value of the employer/union prescription drug coverage be at least equal to the total or gross value of the Medicare standard coverage and for catastrophic coverage. For example, “a retiree Part D plan that requires beneficiary coinsurance that on average is greater than 25% may still satisfy actuarial equivalence by instead offering a lower deductible, or by providing coverage above the initial limit, if the gross value coverage standard, the catastrophic coverage, and other requirements are satisfied,” the CMS explains in its most recent guidance.

Furthermore, the CMS may waive solvency requirements for employer/union prescription drug plans if the entity demonstrates its fiscal soundness and ability to cover claims. Pharmacy network requirements may be waived if the employer/union plan sponsor attests that the plan's networks meet the needs of the sponsor's retirees, including emergency access. However, a plan may not limit coverage to only mail-order prescription drugs. The marketing/communications requirements for Part D plans may be waived if the plan sponsor attests that the plans comply with alternative disclosure standards.

For employer/union direct contracts, the Part D reporting requirements for the cost of operations and financial statements are modified to require only that the information be reported to enrollees and to the general public as required by other laws, such as ERISA, or by contracts.

CMS issues interpretations to Medicare Part D final rule. The Centers for Medicare & Medicaid Services (CMS) has issued a final rule modifying and clarifying provisions of the Medicare Prescription Drug Benefit final rule (Part D final rule), which was issued on January 28, 2005. This final rule addresses four areas of the Part D final rule, including the:

• interpretation of “entity;”
• actuarial equivalence standard as applied to a single retiree group health plan with multiple benefit options;
• calculation of the late enrollment penalty, and
• transition of Part D enrollees from their prior drug coverage to their new Part D plan coverage.

1. all benefit options that separately meet the gross value test and the net value test;
2. all benefit options that separately met the gross value test and in the aggregate meet the net value test; and
3. a subset of the benefit options that separately meet the gross value test and in the aggregate meet the net value test.

Payroll Top of Page

IRS unveils redesigned Form 941.  The IRS has unveiled the redesign of the employment tax return Form 941, Employer's Quarterly Federal Tax Return. The simplified form should help businesses, tax practitioners, and payroll companies avoid common errors, as well as, reduce the burden associated with completing and filing Form 941.The redesigned form features an improved layout, plain language instructions, simplified deposit reporting, and paid preparer identification. The form is also scannable, which the IRS expects will reduce transcription errors. Printed copies of the form are available by calling the IRS at 1-800-829-3676. In addition, copies may be obtained from the agency's website at http://www.irs.gov/pub/irs-pdf/f941.pdf. (IRS News Release IR-2005-18, February 23, 2005.)

Pension Law Top of Page

Treasury official defends Administration's proposals.   Treasury Associate Benefits Tax Counsel Bill Bortz said that the Bush Administration’s proposals for single-employer defined benefit plans would provide a more accurate assessment of plan assets and liabilities and would provide for increased funding of the plans. Speaking at a program of the DC Bar on March 2, 2005, Bortz strongly defended the administration proposal. “We need a bigger picture [proposal for] reform of pension funding,” Bortz said.

The Administration’s proposal is geared to provide real, accurate measures of a plan’s liabilities and funding obligations, Bortz stated. “We believe in the accuracy of our [proposed] measuring sticks,” he said.

The proposal would change the methods for determining interest rates and valuing plan assets, and would require greater employer contributions, Bortz told practitioners. Plans would use a market rate of interest to determine the actual value of their assets and the present value of their liabilities, he stated. This would reduce “gross distortions” caused by the interest rate and would provide a clear measure of the plan’s liabilities, Bortz indicated. To increase plan funding, the Administration would further increase the maximum allowable contribution to 30 percent over the plan’s current funding requirement.

IRS proposed regulations provide guidance on rules for Roth 401(k) plans.  The IRS has issued proposed regulations that provide guidance on the requirements for Roth 401(k) plans. The proposed rules would amend the recently issued final IRS rules under Code Sec. 401(k) and Code Sec. 401(m) and would apply to plan years beginning on or after January 1, 2006.

Under Code Sec. 402A, effective for tax years beginning after December 31, 2005, a plan may permit an employee who makes elective deferrals under a 401(k) plan to designate some or all of those contributions as “Roth contributions.” Unlike pre-tax elective contributions, Roth contributions are currently includible in gross income. However, “qualified distributions” of designated Roth 401(k) contributions are excludable from gross income.

The proposed regulations would amend IRS Reg. Sec. 1.401(k)-1(f) to provide a definition of designated Roth contributions and special rules relating to such contributions (70 FR 10062, March 2, 2005).

PBGC proposes rule for computing liability when employer shuts down plant.  The PBGC has proposed a rule for computing liability under ERISA Sec. 4063(b) when there is a plant shutdown or substantial cessation of operations by an employer in an “ERISA Sec. 4062(e) event.” Such an event occurs when more than 20% of employee-participants in an employer-sponsored plan are separated from employment when the employer ceases operations at a facility in any of its locations without terminating the plan for remaining employees. When such an event occurs, the employer is treated as if it were a substantial employer withdrawing from a multiemployer plan. When a substantial employer withdraws from a multiple employer plan, ERISA Sec. 4063(b) allocates liability to that withdrawing employer based upon the ratio of the employer’s required contributions to all required contributions for the five years preceding the withdrawal. However, when there is an ERISA Sec. 4062(e) event, there is by definition only one employer that contributes to the plan.Thus, reports the PBGC, it is impracticable to use the allocation method described in ERISA Sec. 4063(b) to determine withdrawal liability.

Instead, the PBGC proposes to compute withdrawal liability by multiplying the total liability under ERISA Sec. 4062 by the ratio of employee-participants separated from employment due to the cessation of operations, to the total number of employee-participants in the plan before the cessation of operations. The PBGC reports that this is the method it has already been using on a case-by-case basis, so the proposed rule would have little or no effect on the amount of liability (70 FR 9258, February 28, 2005).

Social Security Top of Page

SSA relaxes income and resource rules for SSI eligibility.  The Social Security Administration (SSA) has eliminated the consideration of clothing, household goods and personal effects, as well as one automobile per home, when determining the eligibility of an applicant for benefits under Title XVI (Supplemental Security Income). When it proposed these changes in January 2004, the SSA noted that while greatly simplifying the eligibility determination process, the proposed changes would have little impact on the outcome of those determinations.

In brief, the SSA is eliminating clothing from the definitions of income and in-kind support and maintenance (Reg. §416.1102). However, in the rare situation where an individual receives clothing from an employer, it will still be counted as income because it must be counted as wages under Social Security Act §1612(a)(1)(A).

The SSA has also amended its regulations regarding household goods and personal effects by eliminating the $2,000 limit ($3,000 for an individual and spouse) and by excluding from countable resources all household goods and personal effects so long as they are found in or near the home, or worn or carried by the individual or which otherwise have an intimate relation to the individual (Reg. §416.1216). The exclusion does not apply, however, to items such as jewelry and gems that have investment value, unless the item is an engagement or wedding ring.

Finally, the SSA has changed the rules that excluded an automobile to the extent that its value did not exceed a "reasonable amount" to totally excluding the value of one automobile so long as it is necessary for employment, is necessary to perform essential daily activities, is modified for a handicapped person, or is necessary to the medical treatment of a specific problem (Reg. §416.1218). If no automobile can be excluded based on use, one automobile would still be excluded to the extent its value did not exceed $4,500.

The final regulations, which were adopted as originally proposed, without change, became effective on March 9, 2005. The full text of the notice adopting the regulations, which includes comments on the proposed rules, the SSA's responses to those comments and the text of the adopted regulations, appears in this week's Report at CCH DDU ¶10,387.

Supreme Court decision on job obsolescence issued as SSR 05-1c. The Social Security Administration (SSA) has issued as a Social Security Ruling the U.S. Supreme Court's decision that affirmed as reasonable, the Administration's interpretation of the Social Security Act such that an individual who remains physically and mentally able to do his or her past relevant work will be found not disabled, without the need for SSA to investigate whether that previous work exists in the national economy. The new ruling, SSR 05-1c, which became effective February 15, 2005, adopts the Supreme Court's decision in Barnhart v. Pauline Thomas, 540 U.S. 20, 124 S.Ct. 376 (2003).

This Ruling concerns the SSA’s interpretation of sections 223(d)(2)(A) and 1614(a)(3)(B) of the Social Security Act (42 U.S.C. 423(d)(2)(A) and 1382(a)(3)(B)). As CCH reported at the time of the decision (Report 473, November 17, 2003), Justice Scalia wrote for a unanimous court that because the claimant was still able to perform her past relevant work as an elevator operator, the fact that the job no longer existed in significant numbers in the national economy was irrelevant because the existence of work in significant numbers is only an issue to be considered when the claimant is unable to perform past relevant work, but is able to perform other types of substantial gainful activity.