E8-314. Methods for Conducting Personal Conferences When Waiver of Recovery of a Title II or Title XVI Overpayment Cannot Be Approved

AGENCY:

Social Security Administration (SSA).

ACTION:

Final rules.

SUMMARY:

We are revising our title II regulations and adding title XVI regulations on personal conferences when waiver of recovery of an overpayment cannot be approved. These final rules allow for the conferences to be conducted face-to-face, by telephone, or by video teleconference in these circumstances.

DATES:

These final rules are effective February 11, 2008.

FOR FURTHER INFORMATION CONTACT:

Robin Strauss, Social Insurance Specialist, Social Security Administration, Office of Income Security Programs, 252 Altmeyer Building, 6401 Security Boulevard, Baltimore, MD 21235-6401, [phone], for information about this Federal Register document. For information on eligibility or filing for benefits, call our national toll-free number, 1-800-772-1213 or TTY 1-800-325-0778, or visit our Internet site, Social Security Online, at http://www.socialsecurity.gov.

SUPPLEMENTARY INFORMATION:

Electronic Version

The electronic file of this document is available on the date of publication in the Federal Register at http://www.gpoaccess.gov/​fr/​index.html.

Background

Our existing regulations at § 404.506 state that we will waive recovery of a title II overpayment if the individual was without fault in causing the overpayment and if recovery would defeat the purpose of title II of the Social Security Act or be against equity and good conscience. Section 404.506 further states that, if we cannot approve waiver after reviewing the information the individual has given to support his or her contention that the recovery of the overpayment should be waived, we will offer the individual a personal conference. The personal conference policy was established so that the decisionmaker would have the opportunity to assess an individual's contention through personal, versus written, contact. Our existing regulations at § 416.550 state that we will waive recovery of a title XVI overpayment if the individual was without fault in causing the overpayment and if recovery would either defeat the purpose of title XVI, or be against equity and good conscience, or impede the efficient administration of title XVI. There is currently no title XVI regulation regarding personal conferences.

Section 404.506(e)(1) states that the individual is given the opportunity to “appear personally” at the personal conference. Current regulations do not further specify the method in which this appearance may be made. Our longstanding policy contained in Social Security Ruling (SSR) 94-4p, which implemented the decisions in Buffington, et al. v. Schweiker and Califano v. Yamasaki, provides that a face-to-face pre-recoupment hearing will be conducted prior to the denial of waiver of recovery of an overpayment. However, a face-to-face appearance at the field office is not always convenient for the beneficiary. Often, if an individual is not able to come to the face-to-face conference, field office personnel will go to the person to hold the conference. Offering additional appearance options for the conference would improve service to the beneficiaries and reduce costly home visits by field personnel.

In order to fulfill our stewardship responsibilities to the Social Security trust fund, we must employ methods that will simplify our personal conference procedures and use our resources most efficiently. We should be using all available technology when we conduct personal conferences. Therefore, we are revising the regulations to allow for personal conferences to be conducted face-to-face at a place we designate (usually in the field office), by telephone, or by video teleconference. We will give the choice to the individual; the individual will still be provided the opportunity to appear face-to-face by choosing to come to us for the personal conference, or may choose to participate by telephone or video teleconference. If the individual elects to conduct the personal conference by video teleconference, the individual will designate the location for his or her end of the video teleconference. Any individual who is interested in conducting the personal conference by video teleconference can contact us for additional information and assistance with this process. Because we are offering claimants two new and convenient ways to participate in a personal conference—in addition to the face-to-face conferences at our field offices we currently offer—we believe the need for our personnel to make costly home visits will significantly decrease. Therefore, we will consider conducting face-to-face conferences at locations other than SSA field offices only on a case-by-case basis, and only in those limited circumstances where: (a) a claimant has exhausted all other means of obtaining a personal conference, and (b) conducting a personal conference by any other means would be so inadequate, owing to a claimant's physical or mental condition, as to infringe upon the person's right to a hearing. This process is in no way meant to circumscribe an individual's right to reasonable accommodation or to relieve SSA of our responsibility to provide such accommodation in accordance with 29 U.S.C. 794.

These final rules will not affect the individual's right to review the claims file, have a representative present for the proceedings, cross-examine witnesses, or submit documentary evidence. Those provisions will not change. For example, claimants who choose to conduct the personal conference via telephone or video teleconference will be given an opportunity to submit documentary evidence by mail or fax prior to the scheduled conference. If necessary, the conference could be rescheduled to allow claimants time to do this. In conducting the personal conference face-to-face at a place we designate, by telephone, or by video teleconference, we will be fulfilling our stewardship responsibilities while offering an additional convenience to the individual and continuing to protect the individual's right to present his or her contention that he or she meets the requirements for waiver of recovery of an overpayment. The decisionmaker will still be able to properly assess the person's contentions regarding fault under these new procedures.

We already successfully conduct some hearings by telephone and by video teleconference. For example, the administrative review of an initial determination for Medicare Part D subsidies is conducted either by a telephone hearing or a case review. See § 418.3625. Additionally, some administrative hearings to review claims under title II (including administrative law judge review of denial of waiver based on a personal conference), and other claims under title XVI are now conducted via video teleconferencing. See §§ 404.936 and 416.1436. Our experience in these contexts has demonstrated that these procedures adequately protect a claimant's due process rights.

Explanation of Changes

We are changing the regulations in 20 CFR parts 404 and 416 to reflect the methods for conducting personal conferences when waiver of recovery of an overpayment cannot be approved as follows:

• We are changing the regulations at § 404.506 to reflect the various methods we can use to conduct the personal conference. These methods are: face-to-face in a location we designate (usually in the field office), via telephone, or via video teleconference.
• Currently, part 416 has no reference to personal conferences when waiver of recovery of the overpayment cannot be approved. We are adding a new section that is similar to the regulations at § 404.506. New § 416.557 includes the various methods we can use to conduct the personal conference and describes the individual's rights and responsibilities regarding the personal conference.

Since SSR 94-4p only provides for a pre-recoupment hearing that is conducted face-to-face before waiver of recovery of an overpayment can be denied, the changes in §§ 404.506 and 416.557 expand that policy. Therefore, we are also publishing a notice rescinding SSR 94-4p concurrently with the effective date of these final rules on the same day we publish these final rules.

Public Comments

On March 5, 2007, we published proposed rules in the Federal Register at 72 FR 9709 and provided a 60-day comment period. We received comments from two organizations and one individual. The comments from the individual were totally supportive of the proposed rules, noting that the rule will provide beneficiaries with practical options for presenting further evidence in favor of waiver of recovery, even when they cannot appear at the SSA office for a face-to-face conference. We carefully considered all of the comments in publishing these final rules. Because some of the comments were long and quite detailed, we have condensed, summarized and paraphrased them in the following discussion. However, we have tried to present all views adequately and to address carefully all of the significant issues raised by the commenters that are within the scope of the proposed rules. We have not addressed in this preamble comments that are outside the scope of the rulemaking proceeding.

Comment: Both organizations which commented raised the concern that the regulations were not consistent with SSA's obligation under Section 504 of the Rehabilitation Act to provide reasonable accommodation for disabled individuals. In support of this proposition, both commenters cited the example in the preamble. This example said that SSA would consider conducting a face-to-face personal conference at a location other than an SSA field office where the claimant was deaf and bedridden. The commenters were concerned that this implies that SSA will only provide accommodation and accessibility measures to the most severely limited program participants and not to all persons with disabilities.

Response: The example in the preamble was not intended to represent the only type of situation in which SSA would consider conducting a face-to-face personal conference at a location other than an SSA field office. These requests will be decided on a case-by-case basis and will be consistent with our obligations under section 504 of the Rehabilitation Act to provide reasonable accommodation to disabled people. To avoid any confusion, we did not include the example in the preamble to these final rules.

Comment: One organization commented that they felt that our criteria for considering conducting face-to-face conferences at locations other than SSA field offices (described in paragraph three of the “Background” section of the preamble), “seems to circumscribe individual rights under section 504.” They recommend that SSA either withdraw this statement or redraft it to be more consistent with section 504.

Response: We do not feel that the description of when a face-to-face personal conference will be conducted at a location other than an SSA field office circumscribes the claimant's rights in any way. In addition to conducting personal conferences face-to-face in the field office, the new rule offers beneficiaries two additional options for conducting personal conferences (by telephone and by video teleconferencing) and retains an option for face-to-face conferences at locations other than the field office on a case-by-case basis. We believe that this procedure is consistent with our obligation to provide reasonable accommodation under the Rehabilitation Act. However, to make our intent clear, we have added a sentence at the end of the paragraph explaining that the intent of this regulation is neither to circumscribe the individual's right to request reasonable accommodation nor to relieve SSA of its obligation to provide it in accordance with the law.

Comment: One organization suggested that the regulation be more specific about the different ways in which a personal conference can be conducted, such as by text telephone. Both organizations which commented recommended that specific language be included in the regulation about SSA's responsibility to provide reasonable accommodation.

Response: Our offices regularly conduct business via text telephone, relay services, and various other methods. These methods are all implied when we describe conducting a personal conference by telephone. As to the suggestion for including specific language in the regulation about SSA's responsibility to provide reasonable accommodation, we do not believe that this is necessary. Section 504 of the Rehabilitation Act already sets forth SSA's obligation to provide reasonable accommodation to disabled individuals. Our statement in paragraph three of the Background section of the preamble evidences our understanding of that obligation in the personal conference context.

Comment: One of the organizations was concerned that local SSA offices may attempt to coerce claimants into choosing an option for conducting the personal conference that is most convenient for their office. They suggest that SSA require the distribution of information about a disabled individual's right to request reasonable accommodation in the personal conference process, and to ensure that employees in the field offices understand the importance of providing disabled individuals with this information.

Response: The field office personnel deal with disabled claimants daily, and understand SSA's obligation to provide reasonable accommodation when requested. Also, as described in the regulation, it is the claimant who chooses the method for conducting the personal conference. We expect that they would select the option that best accommodates any limitations they may have.

Comment: One commenter suggested that adjustment to recover the overpayment after waiver of recovery is denied should be delayed, if the claimant appeals the decision, until after the appeals process has ended. They state that this is a more equitable way of collecting the overpayments, particularly for disabled individuals with low incomes.

Response: Beginning adjustment or recovery of an overpayment following denial of waiver of recovery does not constitute any change in existing policy. See § 404.506(g). As stated under the “Explanation of Changes” section of this preamble, part 416 did not have a reference to personal conferences when waiver of recovery of the overpayment cannot be approved. We simply added a new section that is similar to the regulations at § 404.506 to the title XVI regulations that codifies the policies on personal conferences that have long been in place. Courts have found that this process comports with due process and with the statute. With regard to the commenter's concerns about recoupment from low-income title XVI beneficiaries, our regulations provide a 10 percent limitation of recoupment rate for title XVI overpayments in most cases. Additionally, individuals are given the opportunity to request that the adjustment or recovery be made at a lower rate than the one proposed. If an individual requests a lower rate, a rate of withholding that is appropriate to the financial condition of the overpaid individual will be set after evaluation of all the pertinent facts. See § 416.571.

Comment: One organization was concerned that these changes will make it more difficult for the claimant to receive and provide pertinent information, and for SSA personnel to make credibility determinations. They are also concerned that many claimants, particularly those who can least afford to repay an overpayment, will not have access to technology such as video teleconferencing equipment.

Response: As cited in the “Background” section of this preamble, SSA is already successfully conducting some hearings by telephone and by video teleconference, including administrative law judge review of denial of waiver based on a personal conference. As for a claimant's access to certain technological equipment, the method of conducting the personal conference is their choice and, as stated above, holding a face-to-face conference at a location other than the SSA field office will be considered on a case-by-case basis, if requested. Moreover, any individual who is interested in conducting the personal conference by video teleconference can contact us for additional information and assistance with this process.

Other Changes

In addition to the changes already discussed above, we have made minor, non-substantive changes for clarification purposes only.

Regulatory Procedures

Executive Order 12866

We have consulted with the Office of Management and Budget (OMB) and determined that these final rules meet the criteria for a significant regulatory action under Executive Order 12866, as amended. Thus, they were reviewed by OMB. We have also determined that these final rules meet the plain language requirement of Executive Order 12866, as amended.

Regulatory Flexibility Act

We certify that these final rules would not have a significant economic impact on a substantial number of small entities because they affect only individuals. Thus, a regulatory flexibility analysis as provided in the Regulatory Flexibility Act, as amended, is not required.

Paperwork Reduction Act

These final rules contain information collection burdens in §§ 416.557(c)(3) and 416.557(d)(8) that require OMB clearance under the Paperwork Reduction Act of 1995 (PRA). As required by the PRA, we have submitted a clearance request to OMB for approval of these sections. (As requested by OMB, we also included associated sections §§ 404.506(e)(3) and 404.506(f)(8), which deal with personal conferences but are not included in the text of the regulation). We will publish the OMB number and expiration date upon approval.

As required by the PRA, we published a notice of proposed rulemaking on March 5, 2007 at 72 FR 9709, in which we solicited comments under the PRA on the burden estimate; the need for the information; its practical utility; ways to enhance its quality, utility and clarity; and on ways to minimize the burden on respondents, including the use of automated collection techniques or other forms of information technology. No public comments were submitted relating to any of these issues.

(Catalog of Federal Domestic Assistance Program Nos. 96.001, Social Security-Disability Insurance; 96.002, Social Security-Retirement Insurance; 96.004, Social Security-Survivors Insurance; and 96.006, Supplemental Security Income)

List of Subjects

20 CFR Part 404

• Administrative practice and procedure
• Blind
• Disability benefits
• Old-Age
• Survivors and Disability Insurance; Reporting and recordkeeping requirements
• Social Security

20 CFR Part 416

• Administrative practice and procedure
• Aged
• Blind
• Disability benefits
• Public assistance programs
• Reporting and recordkeeping requirements
• Supplemental Security Income

Dated: November 30, 2007.

Michael J. Astrue,

Commissioner of Social Security.

For the reasons set out in the preamble, we are amending subpart F of part 404 and subpart E of part 416 of chapter III of title 20 of the Code of Federal Regulations as follows:

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

Subpart F—[Amended]

1. The authority citation for subpart F of part 404 continues to read as follows:

Authority: Secs. 204, 205(a), 702(a)(5), and 1147 of the Social Security Act (42 U.S.C. 404, 405(a), 902(a)(5), and 1320b-17); 31 U.S.C. 3720A.

2. Section 404.506 is amended by adding a sentence at the end of paragraph (c) to read as follows:

§ 404.506

When waiver may be applied and how to process the request.

* * * * *

(c) * * * We will offer to the individual the option of conducting the personal conference face-to-face at a place we designate, by telephone, or by video teleconference. The notice will advise the individual of the date and time of the personal conference.

* * * * *

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

Subpart E—[Amended]

1. The authority citation for subpart E of part 416 continues to read as follows:

Authority: Secs. 702(a)(5), 1147, 1601, 1602, 1611(c) and (e), and 1631(a)-(d) and (g) of the Social Security Act (42 U.S.C. 902(a)(5), 1320b-17, 1381, 1381a, 1382(c) and (e), and 1383(a)-(d) and (g)); 31 U.S.C. 3720A.

2. Section 416.557 is added to read as follows:

§ 416.557

Personal conference.

(a) If waiver cannot be approved (i.e., the requirements in § 416.550 (a) and (b) are not met), the individual is notified in writing and given the dates, times and place of the file review and personal conference; the procedure for reviewing the claims file prior to the personal conference; the procedure for seeking a change in the scheduled date, time and/or place; and all other information necessary to fully inform the individual about the personal conference. The file review is always scheduled at least 5 days before the personal conference. We will offer to the individual the option of conducting the personal conference face-to-face at a place we designate, by telephone, or by video teleconference. The notice will advise the individual of the date and time of the personal conference.

(b) At the file review, the individual and the individual's representative have the right to review the claims file and applicable law and regulations with the decisionmaker or another of our representatives who is prepared to answer questions. We will provide copies of material related to the overpayment and/or waiver from the claims file or pertinent sections of the law or regulations that are requested by the individual or the individual's representative.

(c) At the personal conference, the individual is given the opportunity to:

(1) Appear personally, testify, cross-examine any witnesses, and make arguments;

(2) Be represented by an attorney or other representative (see § 416.1500), although the individual must be present at the conference; and

(3) Submit documents for consideration by the decisionmaker.

(d) At the personal conference, the decisionmaker:

(1) Tells the individual that the decisionmaker was not previously involved in the issue under review, that the waiver decision is solely the decisionmaker's, and that the waiver decision is based only on the evidence or information presented or reviewed at the conference;

(2) Ascertains the role and identity of everyone present;

(3) Indicates whether or not the individual reviewed the claims file;

(4) Explains the provisions of law and regulations applicable to the issue;

(5) Briefly summarizes the evidence already in file which will be considered;

(6) Ascertains from the individual whether the information presented is correct and whether he/she fully understands it;

(7) Allows the individual and the individual's representative, if any, to present the individual's case;

(8) Secures updated financial information and verification, if necessary;

(9) Allows each witness to present information and allows the individual and the individual's representative to question each witness;

(10) Ascertains whether there is any further evidence to be presented;

(11) Reminds the individual of any evidence promised by the individual which has not been presented;

(12) Lets the individual and the individual's representative, if any, present any proposed summary or closing statement;

(13) Explains that a decision will be made and the individual will be notified in writing; and

(14) Explains repayment options and further appeal rights in the event the decision is adverse to the individual.

(e) SSA issues a written decision to the individual (and his or her representative, if any) specifying the findings of fact and conclusions in support of the decision to approve or deny waiver and advising of the individual's right to appeal the decision. If waiver is denied, adjustment or recovery of the overpayment begins even if the individual appeals.

(f) If it appears that the waiver cannot be approved, and the individual declines a personal conference or fails to appear for a second scheduled personal conference, a decision regarding the waiver will be made based on the written evidence of record. Reconsideration is the next step in the appeals process.