[Federal Register Volume 59, Number 8 (Wednesday, January 12, 1994)]
[Unknown Section]
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From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-711]
[[Page Unknown]]
[Federal Register: January 12, 1994]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Social Security Administration
20 CFR Parts 404 and 416
RIN 0960-AC88
Federal Old-Age, Survivors, and Disability Insurance and
Supplemental Security Income for the Aged, Blind, and Disabled;
Standards Applicable in Certain Determinations of Good Cause, Fault,
and Good Faith
AGENCY: Social Security Administration, HHS.
ACTION: Final rule.
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SUMMARY: These final regulations amend the existing regulations to
reflect the provisions of section 10305 of the Omnibus Budget
Reconciliation Act of 1989 (OBRA 1989).
Section 10305 requires that the Secretary of Health and Human
Services (the Secretary), in making certain determinations of good
cause, without fault, and good faith under title II of the Social
Security Act (the Act), take into account any physical, mental,
educational, or linguistic limitations (including any lack of facility
with the English language) the individual has.
In addition, section 10305 amended title XVI of the Act to require
that the Secretary take these limitations into account in determining
with respect to an individual's eligibility for title XVI benefits,
whether the individual acted in good faith or was without fault, and in
determining fraud, deception, or intent.
EFFECTIVE DATE: These final regulations are effective January 12, 1994.
FOR FURTHER INFORMATION CONTACT: Philip Berge, Legal Assistant, 3-B-1
Operations Building, 6401 Security Boulevard, Baltimore, MD 21235 (410)
965-1769.
SUPPLEMENTARY INFORMATION: On October 30, 1991, we published a notice
of proposed rulemaking (NPRM) at 56 FR 55848. We received comments from
a nonprofit public interest law center and a national nonprofit
organization. Both organizations represent people who are hearing
impaired and both strongly supported the proposed rule and urged its
adoption. The final rule, with the exception of several technical
changes we have made and which we discuss below, is the same as the
NPRM.
Sections 10305 (a), (b), (c), and (d) of OBRA 1989 amended sections
203(l), 204(b), 223(f), and 223(g)(2)(B) of title II of the Act,
respectively, to require that the Secretary, in making certain
determinations and decisions of good cause, fault, and good faith under
the respective sections of the Act, take into account any physical,
mental, educational, or linguistic limitations (including any lack of
facility with the English language) the individual has. In addition,
section 10305(e) of OBRA 1989 amended section 1631(c)(1) of title XVI
of the Act to require that the Secretary take these limitations into
account in determining with respect to the eligibility of an individual
for benefits under title XVI, whether the individual acted in good
faith or was without fault, and in determining fraud, deception, or
intent. The Conference Committee Report on OBRA 1989 indicates that the
Congress intended that the amendment to section 1631(c)(1) of the Act
would apply to provisions of title XVI that are similar to the title II
provisions amended by sections 10305 (a) through (d). (H.R. Rep. No.
386, 101st Cong., 1st Sess. 708 (1989).) The amendments made by section
10305 are effective for determinations or decisions made after June 30,
1990.
Generally, it has been our policy to take into account the
limitations described in section 10305 in making determinations or
decisions of good cause, without fault, or good faith (or
determinations or decisions concerning fraudulent or similar intent)
with respect to the rights and duties of applicants and beneficiaries
under the title II and title XVI programs. However, our existing
regulations were not explicit in this respect. Therefore, we are
revising our regulations under the title II and title XVI programs to
reflect explicitly the amendments to the Act made by section 10305 of
OBRA 1989. The changes to the regulations make it clear that we will
take into account any physical, mental, educational, or linguistic
limitations of an individual (including any lack of facility with the
English language) in making a determination of good cause, without
fault, or good faith, as appropriate, under section 203(l), 204(b),
223(f), or 223(g)(2)(B) of the Act (as required by the amendments made
by sections 10305 (a) through (d)), and in determining with respect to
an individual's eligibility for benefits under title XVI of the Act,
whether such individual acted in good faith or was without fault, and
in determining fraud, deception, or intent (as required under the
amendment made to section 1631(c)(1) of the Act by section 10305(e)).
Also, in keeping with the intent of Congress and in the interest of
consistency, we are amending certain provisions of the title II
regulations to provide expressly for the consideration of the
limitations described in section 10305 in making certain determinations
and decisions under the title II program which relate to good cause or
fraudulent intent and which are not covered expressly by the amendments
under sections 10305 (a) through (d) of OBRA 1989. The changes we are
making are discussed below.
Good Cause for Failure to Make Timely Reports
Generally, in certain cases described in section 203 of the Act, a
title II beneficiary who (1) Works for more than 45 hours during a
month in noncovered employment outside the United States, (2) ceases to
have a child in his or her care, or (3) has earnings in excess of the
annual exempt amount under the earnings test, is subject to a penalty
(in the form of benefit deductions) if he or she fails to report these
facts to us within a specified time. However, under section 203(l) of
the Act, a penalty does not apply if the individual can demonstrate to
the satisfaction of the Secretary that he or she has good cause for
failing to make a timely report.
Section 10305(a) of OBRA 1989 amended section 203(l) to provide
that the Secretary, in making determinations and decisions of good
cause, must take into account any physical, mental, educational, or
linguistic limitations (including any lack of facility with the English
language) the individual has.
Section 404.454 is the regulation which implements section 203(l).
Accordingly, we are amending Sec. 404.454(a) to provide that in making
determinations and decisions of good cause for failure to make timely
reports, we will take into account any physical, mental, educational,
or linguistic limitations (including any lack of facility with the
English language) the individual has. In addition, we are adding a new
paragraph, (a)(9), to Sec. 404.454 to illustrate that good cause may be
found where failure to file a timely report was due, for example, to a
failure on the part of the individual to understand reporting
responsibilities due to his or her physical, mental, educational, or
linguistic limitation(s).
Under section 1631(e)(2) of the Act, an individual who is required
under rules prescribed by the Secretary to make a timely report of
circumstances affecting eligibility for, or the amount of, title XVI
benefits is subject to a penalty (in the form of benefit deductions) if
the individual fails to make the required report on time. However, the
penalty under section 1631(e)(2) does not apply if the individual is
without fault or has good cause for not reporting timely.
Section 416.732 of our current regulations explains how we
determine whether an individual has good cause for failure to make a
timely report for purposes of section 1631(e)(2). We are adding a new
paragraph to Sec. 416.732 to provide that we will take into account any
physical, mental, educational, or linguistic limitations (including any
lack of facility with the English language) the individual has in
making determinations and decisions of good cause for failure to make
timely reports.
Fraudulent Behavior or Failure To Cooperate or To Take Any
Required Action in Disability Determinations
Under sections 223(f) and 1614(a)(4) of the Act, title II or title
XVI disability benefits may be terminated if a prior favorable
determination of disability was fraudulently obtained or if the
beneficiary fails, without good cause, to cooperate with the Secretary
in reviewing his or her entitlement or to follow prescribed treatment
which is expected to restore his or her ability to work.
Section 10305(c) of OBRA 1989 amended section 223(f) of the Act to
provide that in making, for purposes of section 223(f), any
determination or decision relating to fraudulent behavior by any
individual or failure by any individual without good cause to cooperate
or to take any required action, the Secretary shall take into account
any physical, mental, educational, or linguistic limitations (including
any lack of facility with the English language) the individual may
have. In addition, with respect to making similar determinations and
decisions for purposes of section 1614(a)(4) of the Act, section
1631(c)(1) of title XVI of the Act, as amended by OBRA 1989, requires
the Secretary to take these limitations into account in determining
whether an individual acted in good faith or was at fault, and in
determining fraud, deception, or intent.
Sections 404.1518, 404.1530, 404.1579, 404.1594, 416.918, 416.930,
416.994 and 416.994a reflect the pertinent provisions of sections
223(f) and 1614(a)(4) of the Act. We are making the following changes
in these regulations:
Amend Secs. 404.1518 and 416.918 to provide that we will
take into account any physical, mental, educational, or linguistic
limitations (including any lack of facility with the English language)
the individual has when determining if the individual has a good reason
for failing to attend a consultative examination which we have arranged
for the individual. These specific amendments were not included in the
NPRM. Current Secs. 404.1518 and 416.918 provide that we may determine
that an individual who is applying for benefits based on disability or
blindness is not disabled or blind, or that an individual who is
entitled to or eligible for benefits based on disability or blindness
is no longer disabled or blind, if we find that the individual failed
or refused to attend a consultative examination without a good reason.
While Secs. 404.1518 and 416.918 provide rules for determining whether
an individual has a good reason for such failure or refusal and, thus,
are within the scope of the amendments to sections 223(f) and
1631(c)(1) of the Act, we inadvertently failed to include these
regulations when we developed the proposed regulations to implement
section 10305 of OBRA 1989. We are amending Secs. 404.1518(a) and
416.918(a) in the final rule to make it clear that we will consider an
individual's physical, mental, educational, and linguistic limitations
(including any lack of facility with the English language) in
determining whether the individual has a good reason for failing to
attend a consultative examination. In connection with this change, we
also are making related changes, which were not in the NPRM, to
Secs. 404.1579(e)(2), 404.1586(d), 404.1594(e)(2), 416.986(c),
416.994(b)(4)(ii) and 416.994a(g)(2) to include in these sections a
cross-reference to Sec. 404.1518 or Sec. 416.918, as appropriate, to
clarify that Secs. 404.1518 and 416.918 provide the rules for
determining whether an individual has a good reason for not attending a
consultative examination. Current Sec. 416.994a(g)(2) already contains
such a cross-reference.
Amend Secs. 404.1530(c) and 416.930(c) to provide that we
will take into account any physical, mental, educational, or linguistic
limitations (including any lack of facility with the English language)
the individual has when deciding if the individual has acceptable
reasons for failure to follow prescribed treatment.
Amend Secs. 404.1579 (e)(1) and (e)(2), 404.1594 (e)(1)
and (e)(2), 416.994 (b)(4)(i) and (b)(4)(ii) and 416.994a (g)(1) and
(g)(2) to indicate that we will take into account any physical, mental,
educational, or linguistic limitations (including any lack of facility
with the English language) the individual has in determining whether a
prior favorable determination or decision was fraudulently obtained or
in determining whether an individual has good cause for failure to
supply evidence we ask for or to go for a physical or mental
examination. The amendments to these sections of the regulations
include certain technical changes that were not reflected in the NPRM.
For the final rule, we are adding the phrase ``or decision'' to
Secs. 404.1579(e)(1), 404.1594(e)(1), 416.994(b)(4)(i) and
416.994a(g)(1) to clarify that these provisions apply not only to
determinations we make, but also to decisions we make. Section
416.994a(g)(1) already contains this language. Also, as discussed
above, Secs. 404.1579(e)(2), 404.1586(d), 404.1594(e)(2), 416.986(c),
416.994(b)(4)(ii) and 416.994a(g)(2) of the final rule include a cross-
reference to Sec. 404.1518 or Sec. 416.918, as appropriate, which
provides rules for determining whether an individual has good cause for
failing to attend a consultative examination.
Consistent with the NPRM, the final changes to
Secs. 404.1579(e)(2), 404.1594(e)(2), 416.994(b)(4)(ii) and
416.994a(g)(2) also explain that we will consider the factors described
in Secs. 404.911 and 416.1411 for purposes of determining generally
whether an individual has good cause for failure to cooperate in a
review of his or her entitlement to benefits based on disability.
(Current Secs. 404.911 and 416.1411 explain the factors we consider in
determining whether an individual has good cause for missing a deadline
to request review of a determination or decision under our
administrative review process. As explained later in this preamble, we
are amending Secs. 404.911 and 416.1411, which apply to title II and
title XVI cases, respectively, to provide explicitly for the
consideration of the limitations described in section 10305 of OBRA
1989 in determining whether an individual has good cause for missing a
deadline to request review.) We are also revising Secs. 404.1586(d) and
416.986(c) to clarify that we will consider the factors described in
Secs. 404.911 and 416.1411, respectively, for purposes of determining
generally whether an individual has good cause for failure to cooperate
in a review of his or her continuing entitlement to title II benefits,
or continuing eligibility for title XVI benefits, based on blindness.
Without Fault--Waiver of Adjustment or Recovery of
Overpayments
Under sections 204(b) and 1631(b)(1)(B) of the Act, recovery or
adjustment of overpayments to a title II or title XVI beneficiary may
be waived in situations where the individual is without fault in
connection with the overpayment and recovery or adjustment would defeat
the purposes of the program or would be against equity and good
conscience or, with respect to the title XVI program, would impede
efficient or effective administration of title XVI because of the small
amount involved. Our existing regulations explain that in determining
whether an individual was without fault, all pertinent factors
surrounding the overpayment will be considered, including the
individual's age, intelligence, education, and physical and mental
capabilities.
Section 10305(b) of OBRA 1989 amended section 204(b) of the Act to
provide that the Secretary, in making determinations or decisions of
``without fault'' for purposes of section 204(b), must take into
account any physical, mental, educational, or linguistic limitations
(including any lack of facility with the English language) the
individual has. In addition, the amendment to section 1631(c)(1) of the
Act made by section 10305(e) of OBRA 1989 provides that, for the
purposes of the title XVI program, the Secretary must take these same
limitations into account in determining, among other things, whether an
individual is without fault.
We are making the following changes in our regulations which
implement sections 204(b) and 1631(b)(1)(B) of the Act to reflect the
pertinent amendments made by section 10305.
Amend Sec. 404.507 to provide that in making
determinations of without fault with respect to title II overpayments,
we will take into account any physical, mental, educational, or
linguistic limitations (including any lack of facility with the English
language) the individual has.
Amend Sec. 404.510 to provide that in determining whether
an individual is without fault with respect to a title II deduction
overpayment, we will consider all pertinent circumstances, including an
individual's age and intelligence and any physical, mental,
educational, or linguistic limitations of the individual (including any
lack of facility with the English language). In addition, to eliminate
any ambiguity with respect to the application of the amendment to
section 204(b) of the Act made by section 10305(b) of OBRA 1989 in
cases involving title II deduction overpayments, the changes to
Sec. 404.510 will: (1) clarify that the situations described in
Sec. 404.510 in which an individual will be considered without fault in
connection with a deduction overpayment are not all-inclusive; and (2)
eliminate the provision in paragraph (n) of Sec. 404.510 which requires
that for an individual to be considered without fault with respect to a
deduction overpayment in certain circumstances described in paragraph
(n), such individual must have made a bona fide attempt to restrict his
or her annual earnings or otherwise comply with the deduction
provisions of the Act.
Amend Sec. 404.511(b) to show that the Social Security
Administration generally will not find an individual to be without
fault when, after having been exonerated for a title II ``deduction
overpayment'' and after having been advised of the correct
interpretation of the deduction provision, the individual incurs
another ``deduction overpayment'' under the same circumstances as the
first overpayment. The change to Sec. 404.511(b) also explains that in
determining ``without fault'' under such circumstances, however, any
physical, mental, educational, or linguistic limitations (including any
lack of facility with the English language) the individual has will be
taken into consideration.
Amend Sec. 416.552 to provide that we will take into
account any physical, mental, educational, or linguistic limitations
(including any lack of facility with the English language) the
individual has in determining whether the individual is without fault
for purposes of the waiver of adjustment or recovery of a title XVI
overpayment.
In general, under section 1631(b)(4) of the Act and the
implementing regulation, Sec. 416.556, if any title XVI overpayment is
attributable solely to the ownership or possession by an individual (or
by an individual and his or her spouse, if any) of countable resources
having a value which exceeds, by $50 or less, the applicable limitation
on resources specified in the Act and regulations, such individual (and
spouse if any) will be deemed to have been without fault in connection
with the overpayment, and waiver of adjustment or recovery will be
made, unless the failure to report the value of the excess resources
correctly and in a timely manner was willful and knowing. Based on the
amendment to section 1631(c)(1) of the Act made by section 10305(e) of
OBRA of 1989, we are amending Sec. 416.556(b) to provide that in
determining whether failure to report the excess resources correctly
and in a timely manner was willful and knowing, and, thus, whether the
individual was at fault, we will take into account any physical,
mental, educational, or linguistic limitations (including any lack of
facility with the English language) the individual has.
Good Faith--Waiver of Recovery of Overpayments--Continuation
of Disability Benefits Pending Appeal
Under sections 223(g) and 1631(a)(7) of the Act and the
implementing regulations at Secs. 404.1597a and 416.996, a title II or
title XVI beneficiary receiving benefits based on disability whom the
Secretary determines is no longer disabled based on medical factors has
the option of having his or her benefits continued through a hearing
before an administrative law judge (ALJ). Benefits paid during this
period are considered overpayments if the beneficiary loses the appeal.
However, if the beneficiary acted in good faith in pursuing the appeal,
repayment can be waived (sections 223(g)(2)(B) and 1631(a)(7)(B)(ii) of
the Act and 404.1597a(j) and 416.996(g) of our regulations). Our
regulations establish a presumption that appeals are made in good faith
unless the beneficiary fails, without good cause, to cooperate during
the appeal.
Section 10305(d) of OBRA 1989 amended section 223(g)(2)(B) of the
Act to require that the Secretary take into account any physical,
mental, educational, or linguistic limitations an individual may have
(including any lack of facility with the English language) in
determining whether an individual's appeal is made in good faith.
Based on this amendment and the amendment to title XVI of the Act
made by section 10305(e) of OBRA 1989, we are amending
Secs. 404.1597a(j)(3) and 416.996(g)(2) to provide that we will take
into account any physical, mental, educational, or linguistic
limitations (including any lack of facility with the English language)
the individual has in determining whether the individual acted in good
faith in pursuing the appeal.
Determinations of Good Cause or of Fraud or Similar Fault in
Connection With the Administrative Review Process
Section 10305(e) amended section 1631(c)(1) of the Act to provide
that the Secretary shall specifically take into account any physical,
mental, educational, or linguistic limitations of an individual
(including any lack of facility with the English language) in
determining, with respect to the eligibility of the individual for
benefits under title XVI, whether the individual acted in good faith or
was at fault, and in determining fraud, deception, or intent.
The changes we are making in part 416 of the regulations in
connection with the administrative review process are based on the
amendment to section 1631(c)(1). We are making comparable changes in
part 404 in the interest of consistency.
Our current regulations provide that a determination or decision
which we make about an individual's rights under title II or title XVI
of the Act is generally final and binding unless the individual files a
request for review of the determination or decision within a specified
time period. However, the time period to request review will be
extended if good cause can be established for missing the deadline to
request review (Secs. 404.911 and 416.1411). Also, under our
regulations, we may reopen a determination or decision at any time if
it was obtained by fraud or similar fault (Secs. 404.988(c)(1) and
416.1488(c)), or, in title II cases, if certain other circumstances
exist (Sec. 404.988(c)).
Under our regulations, a request for a hearing before an ALJ may be
dismissed if neither the person requesting the hearing nor his or her
designated representative appears at the time and place set for the
hearing. However, if good cause for failure to appear can be
established, the hearing request will not be dismissed
(Secs. 404.957(b) and 416.1457(b)).
We are making the following changes to Secs. 404.911, 404.936,
404.957, 404.988, 416.1411, 416.1436, 416.1457, and 416.1488 to reflect
the consideration of the factors described in section 10305 of OBRA
1989.
Amend Secs. 404.911(a) and (b)(9) and 416.1411(a) and
(b)(9) to provide that in determining whether an individual had good
cause for missing a deadline to request review, we will take into
account any physical, mental, educational, or linguistic limitations of
the individual (including any lack of facility with the English
language) which may have prevented the individual from filing a timely
request or from understanding or knowing about the need to file a
timely request for review.
Amend Secs. 404.936 and 416.1436 to further describe
circumstances which an individual, who will not be represented at a
hearing before an ALJ, may give for requesting a change in the time or
place of the hearing.
Amend Secs. 404.957(b) and 416.1457(b) to require that in
making determinations of whether an individual had good cause for
failure to appear for a hearing before an ALJ, we will take into
account any physical, mental, educational, or linguistic limitations
(including any lack of facility with the English language) the
individual has.
Amend Secs. 404.988(c)(1) and 416.1488(c) to indicate that
in determining whether a determination or decision was obtained by
fraud or similar fault for the purposes of reopening, we will take into
account any physical, mental, educational, or linguistic limitations
(including any lack of facility with the English language) the
individual has.
Good Cause for Refusal To Accept Rehabilitation Services
Under sections 222(b) and 1615(c) of the Act and the implementing
regulations at Secs. 404.422 and 416.1328, deductions may be imposed
against title II benefits, or title XVI benefits may be suspended, if a
disabled or blind beneficiary refuses without good cause to accept
certain rehabilitation services. If good cause can be established for
the refusal, benefits will not be affected. The final regulations amend
the pertinent regulations relating to good cause for refusal of
rehabilitation services.
The change we are making in part 416 of the regulations is based on
the amendment to section 1631(c)(1) of the Act. We are making a
comparable change in part 404 in the interest of consistency.
Sections 404.422 and 416.1715 of our regulations discuss how we
determine whether an individual has good cause for refusing
rehabilitation services. We are amending Secs. 404.422(e) and
416.1715(a) to provide that in making good cause determinations
concerning the refusal of rehabilitation services, we will take into
account any physical, mental, educational, or linguistic limitations
(including any lack of facility with the English language) the
individual has. We are also making a technical correction in a cross-
reference contained in Sec. 416.2203 to indicate that ``good cause''
for refusal of vocational rehabilitation services is defined in
Sec. 416.1715.
Good Reason for Not Applying for Other Benefits
Section 1611(e)(2) of the Act requires that SSI applicants and
beneficiaries apply for other benefits for which they may be eligible
within 30 days from the date the individual receives our notice about
any other benefits for which the individual is likely to be eligible.
Our existing regulations Secs. 416.210(e) and 416.1330(a) provide that
individuals are not eligible for SSI benefits if they do not apply for
the other benefits when told to do so. However, both Secs. 416.210(e)
and 416.1330(a) provide that the individual will not be found
ineligible for SSI benefits if the individual had good reason
(Sec. 416.210(e)) or good cause (Sec. 416.1330(a)) for not applying for
the other benefits within the 30-day period or taking other necessary
steps to obtain them.
We are amending Sec. 416.210(e)(2) to provide that we will take
into account any physical, mental, educational, or linguistic
limitations (including any lack of facility with the English language)
the individual has in determining good reason or good cause for not
filing for other benefits. Since Sec. 416.1330(a) refers to
Sec. 416.210(e), we are not amending Sec. 416.1330(a).
Regulatory Procedures
Regulatory Flexibility Act
We certify that these regulations will not have a significant
economic impact on a substantial number of small entities because these
rules will affect only individuals and States.
Therefore, a regulatory flexibility analysis as provided in Public
Law 96-354, the Regulatory Flexibility Act, is not required.
Paperwork Reduction Act
These regulations impose no new reporting or recordkeeping
requirements requiring Office of Management and Budget clearance.
(Catalog of Federal Domestic Assistance Program Nos. 93.802 through
93.805 Social Security; and 93.807 Supplemental Security Income)
List of Subjects
20 CFR Part 404
Administrative practice and procedure; Death benefits; Disability
benefits; Old-age, Survivors, and Disability insurance; Reporting and
recordkeeping requirements.
20 CFR Part 416
Administrative practice and procedure; Aged; Blind; Disability
benefits; Public assistance programs; Reporting and recordkeeping
requirements; Supplemental Security Income (SSI).
Dated: November 3, 1993.
Shirley Chater,
Commissioner of Social Security.
Approved: January 3, 1994.
Donna E. Shalala,
Secretary of Health and Human Services.
For the reasons set out in the preamble, subparts E, F, J, and P of
part 404 and subparts B, E, G, I, N, Q and V of part 416 of 20 CFR
chapter III are amended as follows:
PART 404--FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE
(1950- )
1. The authority citation for subpart E continues to read as
follows:
Authority: Secs. 202, 203, 204 (a) and (e), 205(a), 222(b),
223(e), 224, 227, and 1102 of the Social Security Act; 42 U.S.C.
402, 403, 404 (a) and (e), 405(a), 422(b), 423(e), 424, 427, and
1302.
2. Section 404.422 is amended by adding two new sentences
immediately before the second sentence of the introductory text of
paragraph (e) to read as follows:
Sec. 404.422 Deductions because of refusal to accept rehabilitation
services.
* * * * *
(e) * * * In determining whether an individual has good cause for
refusing rehabilitation services, we will take into account any
physical, mental, educational, or linguistic limitations (including any
lack of facility with the English language) the individual may have
which may have caused the individual to refuse such services. We also
consider other factors that may have caused an individual to refuse
such services. * * *
* * * * *
3. Section 404.454 is amended by revising the third and fourth
sentences of the introductory text of paragraph (a), by removing the
word ``or'' that follows the semicolon at the end of paragraph (a)(7),
by removing the period at the end of paragraph (a)(8) and replacing it
with ``; or'', and by adding a new paragraph (a)(9) to read as follows:
Sec. 404.454 Good cause for failure to make required reports.
(a) General. * * * The failure of the individual to submit evidence
to establish good cause within a specified time may be considered a
sufficient basis for a finding that good cause does not exist (see
Sec. 404.705). In determining whether good cause for failure to report
timely has been established by the individual, consideration is given
to whether the failure to report within the proper time limit was the
result of untoward circumstances, misleading action of the Social
Security Administration, confusion as to the requirements of the Act
resulting from amendments to the Act or other legislation, or any
physical, mental, educational, or linguistic limitations (including any
lack of facility with the English language) the individual may have. *
* *
* * * * *
(9) Failure of the individual to understand reporting
responsibilities due to his or her physical, mental, educational, or
linguistic limitation(s).
* * * * *
4. The authority citation for subpart F continues to read as
follows:
Authority: Secs. 204(a)-(d), 205(a), and 1102 of the Social
Security Act; 42 U.S.C. 404(a)-(d), 405(a), and 1302.
5. Section 404.507 is amended by revising the third sentence of the
introductory text to read as follows:
Sec. 404.507 Fault.
* * * In determining whether an individual is at fault, the Social
Security Administration will consider all pertinent circumstances,
including the individual's age and intelligence, and any physical,
mental, educational, or linguistic limitations (including any lack of
facility with the English language) the individual has. * * *
* * * * *
6. Section 404.510 is amended by revising the section heading, by
removing the last sentence of paragraph (n) and by revising the
introductory text of Sec. 404.510 to read as follows:
Sec. 404.510 When an individual is ``without fault'' in a deduction
overpayment.
In determining whether an individual is ``without fault'' with
respect to a deduction overpayment, the Social Security Administration
will consider all pertinent circumstances, including the individual's
age and intelligence, and any physical, mental, educational, or
linguistic limitations (including any lack of facility with the English
language) the individual has. Except as provided in Sec. 404.511 or
elsewhere in this subpart F, situations in which an individual will be
considered to be ``without fault'' with respect to a deduction
overpayment include, but are not limited to, those that are described
in this section. An individual will be considered ``without fault'' in
accepting a payment which is incorrect because he/she failed to report
an event specified in sections 203 (b) and (c) of the Act, or an event
specified in section 203(d) of the Act as in effect for monthly
benefits for months after December 1960, or because a deduction is
required under section 203 (b), (c), (d), or section 222(b) of the Act,
or payments were not withheld as required by section 202(t) or section
228 of the Act, if it is shown that such failure to report or
acceptance of the overpayment was due to one of the following
circumstances:
* * * * *
7. Section 404.511 is amended by revising the section heading and
by revising paragraph (b) to read as follows:
Sec. 404.511 When an individual is at ``fault'' in a deduction
overpayment.
* * * * *
(b) Subsequent deduction overpayments. The Social Security
Administration generally will not find an individual to be without
fault where, after having been exonerated for a ``deduction
overpayment'' and after having been advised of the correct
interpretation of the deduction provision, the individual incurs
another ``deduction overpayment'' under the same circumstances as the
first overpayment. However, in determining whether the individual is
without fault, the Social Security Administration will consider all of
the pertinent circumstances surrounding the prior and subsequent
``deduction overpayments,'' including any physical, mental,
educational, or linguistic limitations (including any lack of facility
with the English language) which the individual may have.
8. The authority citation for subpart J of part 404 is revised to
read as follows:
Authority: Secs. 201(j), 205 (a), (b) and (d)-(h), 221(d), and
1102 of the Social Security Act; 31 U.S.C. 3720A; 42 U.S.C. 401(j),
405 (a), (b), and (d)-(h), 421(d), and 1302, sec. 5 of Pub. L. 97-
455, 96 Stat. 2500; sec. 6 of Pub. L. 98-460, 98 Stat. 1802.
9. Section 404.911 is amended by removing the period after
paragraph (a)(3) and replacing it with ``; and'', by adding a new
paragraph (a)(4) after paragraph (a)(3), and by revising paragraph
(b)(9) to read as follows:
Sec. 404.911 Good cause for missing the deadline to request review.
(a) * * *
(4) Whether you had any physical, mental, educational, or
linguistic limitations (including any lack of facility with the English
language) which prevented you from filing a timely request or from
understanding or knowing about the need to file a timely request for
review.
(b) * * *
(9) Unusual or unavoidable circumstances exist, including the
circumstances described in paragraph (a)(4) of this section, which show
that you could not have known of the need to file timely, or which
prevented you from filing timely.
10. Section 404.936 is amended by revising paragraph (d)(7) to read
as follows:
Sec. 404.936 Time and place for a hearing before an administrative law
judge.
* * * * *
(d) * * *
(7) You are unrepresented, and you are unable to respond to the
notice of hearing because of any physical, mental, educational, or
linguistic limitations (including any lack of facility with the English
language) which you may have.
11. Section 404.957 is amended by redesignating paragraphs (b)(1)
and (b)(2) as paragraphs (b)(1)(i) and (b)(1)(ii) and by adding a new
paragraph (b)(2) to read as follows:
Sec. 404.957 Dismissal of a request for a hearing before an
administrative law judge.
* * * * *
(b) * * *
(2) In determining good cause or good reason under this paragraph,
we will consider any physical, mental, educational, or linguistic
limitations (including any lack of facility with the English language)
which you may have.
* * * * *
12. Section 404.988 is amended by revising paragraph (c)(1) to read
as follows:
Sec. 404.988 Conditions for reopening.
* * * * *
(c) * * *
(1) It was obtained by fraud or similar fault (see Sec. 416.1488(c)
of this chapter for factors which we take into account in determining
fraud or similar fault);
* * * * *
13. The authority citation for subpart P is revised to read as
follows:
Authority: Secs. 202, 205(a), (b), and (d)-(h), 216(i), 221(a)
and (i), 222(c), 223, 225, and 1102 of the Social Security Act; 42
U.S.C. 402, 405(a), (b), and (d)-(h), 416(i), 421(a) and (i),
422(c), 423, 425, and 1302, sec. 505(a) of Pub. L. 96-265, 94 Stat.
473; secs. 2(d)(2),5,6, and 15 of Pub L. 98-460, 96 Stat. 1797,
1801, 1802, and 1808; sec. 10103 of Pub. L. 101-239, 103 Stat. 2472.
14. Section 404.1518 is amended by adding a new sentence at the end
of paragraph (a) to read as follows:
Sec. 404.1518 If you do not appear at a consultative examination.
(a) * * * We will consider your physical, mental, educational, and
linguistic limitations (including any lack of facility with the English
language) when determining if you have a good reason for failing to
attend a consultative examination.
* * * * *
15. Section 404.1530 is amended by revising the introductory text
of paragraph (c) to read as follows:
Sec. 404.1530 Need to follow prescribed treatment.
* * * * *
(c) Acceptable reasons for failure to follow prescribed treatment.
We will consider your physical, mental, educational, and linguistic
limitations (including any lack of facility with the English language)
when determining if you have an acceptable reason for failure to follow
prescribed treatment. The following are examples of a good reason for
not following treatment:
* * * * *
16. Section 404.1579 is amended by revising the section heading and
by revising paragraphs (e)(1) and (e)(2) to read as follows:
Sec. 404.1579 How we will determine whether your disability continues
or ends.
* * * * *
(e) * * *
(1) A prior determination or decision was fraudulently obtained. If
we find that any prior favorable determination or decision was obtained
by fraud, we may find that you are not disabled. In addition, we may
reopen your claim under the rules in Sec. 404.988. In determining
whether a prior favorable determination or decision was fraudulently
obtained, we will take into account any physical, mental, educational,
or linguistic limitations (including any lack of facility with the
English language) which you may have had at the time.
(2) You do not cooperate with us. If there is a question about
whether you continue to be disabled and we ask you to give us medical
or other evidence or to go for a physical or mental examination by a
certain date, we will find that your disability has ended if you fail,
without good cause, to do what we ask. Section 404.911 explains the
factors we consider and how we will determine generally whether you
have good cause for failure to cooperate. In addition, Sec. 404.1518
discusses how we determine whether you have good cause for failing to
attend a consultative examination. The month in which your disability
ends will be the first month in which you failed to do what we asked.
* * * * *
17. Section 404.1586 is amended by revising paragraph (d) to read
as follows:
Sec. 404.1586 Why and when we will stop your cash benefits.
* * * * *
(d) If you do not cooperate with us. If we ask you to give us
medical or other evidence or to go for a medical examination by a
certain date, we will find that your disability has ended if you fail,
without good cause, to do what we ask. Section 404.911 explains the
factors we consider and how we will determine generally whether you
have good cause for failure to cooperate. In addition, Sec. 404.1518
discusses how we determine whether you have good cause for failing to
attend a consultative examination. The month in which your disability
will be found to have ended will be the month in which you failed to do
what we asked.
* * * * *
18. Section 404.1594 is amended by revising the section heading and
by revising paragraphs (e)(1) and (e)(2) to read as follows:
Sec. 404.1594 How we will determine whether your disability continues
or ends.
* * * * *
(e) * * *
(1) A prior determination or decision was fraudulently obtained. If
we find that any prior favorable determination or decision was obtained
by fraud, we may find that you are not disabled. In addition, we may
reopen your claim under the rules in Sec. 404.988. In determining
whether a prior favorable determination or decision was fraudulently
obtained, we will take into account any physical, mental, educational,
or linguistic limitations (including any lack of facility with the
English language) which you may have had at the time.
(2) You do not cooperate with us. If there is a question about
whether you continue to be disabled and we ask you to give us medical
or other evidence or to go for a physical or mental examination by a
certain date, we will find that your disability has ended if you fail,
without good cause, to do what we ask. Section 404.911 explains the
factors we consider and how we will determine generally whether you
have good cause for failure to cooperate. In addition, Sec. 404.1518
discusses how we determine whether you have good cause for failing to
attend a consultative examination. The month in which your disability
ends will be the first month in which you failed to do what we asked.
* * * * *
19. Section 404.1597a is amended by adding a new sentence at the
end of paragraph (j)(3) to read as follows:
Sec. 404.1597a Continued benefits pending appeal of a medical
cessation determination.
* * * * *
(j) * * *
(3) * * * In determining whether an individual has good cause for
failure to cooperate and, thus, whether an appeal was made in good
faith, we will take into account any physical, mental, educational, or
linguistic limitations (including any lack of facility with the English
language) the individual may have which may have caused the
individual's failure to cooperate.
PART 416--SUPPLEMENTAL SECURITY INCOME FOR THE AGED, BLIND, AND
DISABLED
1. The authority citation for subpart B continues to read as
follows:
Authority: Secs. 1102, 1110(b), 1602, 1611, 1614, 1615(c),
1619(a), 1631, and 1634, of the Social Security Act; 42 U.S.C. 1302,
1310(b), 1381a, 1382, 1382c, 1382d(c), 1382h(a), 1383, and 1383c;
secs. 211 and 212 of Pub. L. 93-66, 87 Stat. 154 and 155; sec.
502(a) of Pub. L. 94-241, 90 Stat. 268; and sec. 2 of Pub. L. 99-
643, 100 Stat. 3574.
2. Section 416.210 is amended by revising the introductory text of
paragraph (e)(2) to read as follows:
Sec. 416.210 You do not apply for other benefits.
* * * * *
(e) * * *
(2) We will not find you ineligible for SSI benefits if you have a
good reason for not applying for the other benefits within the 30-day
period or taking other necessary steps to obtain them. In determining
whether a good reason exists, we will take into account any physical,
mental, educational, or linguistic limitations (including any lack of
facility with the English language) which may have caused you to fail
to apply for other benefits. You may have a good reason if, for
example--
* * * * *
3. The authority citation for subpart E is revised to read as
follows:
Authority: Secs. 1102, 1601, 1602, 1611(c), and 1631(a)-(d) and
(g) of the Social Security Act; 42 U.S.C. 1302, 1381, 1381a,
1382(c), and 1383(a)-(d) and (g).
4. Section 416.552 is amended by adding after the fifth sentence of
the introductory text a new sentence to read as follows:
Sec. 416.552 Waiver of adjustment or recovery--without fault.
* * * In determining whether an individual is without fault based
on a consideration of these factors, the Social Security Administration
will take into account any physical, mental, educational, or linguistic
limitations (including any lack of facility with the English language)
the individual may have. * * *
* * * * *
5. Section 416.556 is amended by revising paragraph (b) to read as
follows:
Sec. 416.556 Waiver of adjustment or recovery--countable resources in
excess of the limits prescribed in Sec. 416.1205 by $50 or less.
* * * * *
(b) Failure to report the excess resources correctly and in a
timely manner will be considered to be willful and knowing and the
individual will be found to be at fault when the evidence clearly shows
the individual (and spouse if any) was fully aware of the requirements
of the law and of the excess resources and chose to conceal these
resources. When an individual incurred a similar overpayment in the
past and received an explanation and instructions at the time of the
previous overpayment, we will generally find the individual to be at
fault. However, in determining whether the individual is at fault, we
will consider all aspects of the current and prior overpayment
situations, and where we determine the individual is not at fault, we
will waive adjustment or recovery of the subsequent overpayment. In
making any determination or decision under this section concerning
whether an individual is at fault, including a determination or
decision of whether the failure to report the excess resources
correctly and in a timely manner was willful and knowing, we will take
into account any physical, mental, educational, or linguistic
limitations (including any lack of facility with the English language)
of the individual (and spouse if any).
6. The authority citation for subpart G of part 416 continues to
read as follows:
Authority: Secs. 1102, 1611, 1612, 1613, 1614, and 1631 of the
Social Security Act; 42 U.S.C. 1302, 1382, 1382a, 1382b, 1382c, and
1383; sec. 211 of Pub. L. 93-66, 87 Stat. 154.
7. Section 416.732 is revised to read as follows:
Sec. 416.732 No penalty deduction if you have good cause for failure
to report timely.
(a) We will find that you have good cause for failure to report
timely and we will not impose a penalty deduction, if--
(1) You are ``without fault'' as defined in Sec. 416.552; or
(2) Your failure or delay in reporting is not willful. ``Not
willful'' means that--
(i) You did not have full knowledge of the existence of your
obligation to make a required report; or
(ii) You did not intentionally, knowingly, and purposely fail to
make a required report.
However, in either case we may require that you refund an overpayment
caused by your failure to report. See subpart E of this part for waiver
of recovery of overpayments.
(b) In determining whether you have good cause for failure to
report timely, we will take into account any physical, mental,
educational, or linguistic limitations (including any lack of facility
with the English language) you may have.
8. The authority citation for subpart I of part 416 is revised to
read as follows:
Authority: Secs. 1102, 1614(a), 1619, 1631 (a), (c) and (d)(1),
and 1633 of the Social Security Act; 42 U.S.C. 1302, 1382c(a),
1382h, 1383 (a), (c) and (d)(1), and 1383b; secs. 2, 5, 6, and 15 of
Pub. L. 98-460, 98 Stat. 1794, 1801, 1802, and 1808.
9. Section 416.918 is amended by adding a new sentence at the end
of paragraph (a) to read as follows:
Sec. 416.918 If you do not appear at a consultative examination.
(a) * * * We will consider your physical, mental, educational, and
linguistic limitations (including any lack of facility with the English
language) when determining if you have a good reason for failing to
attend a consultative examination.
* * * * *
10. Section 416.930 is amended by revising the introductory text of
paragraph (c) to read as follows:
Sec. 416.930 Need to follow prescribed treatment.
* * * * *
(c) Acceptable reasons for failure to follow prescribed treatment.
We will consider your physical, mental, educational, and linguistic
limitations (including any lack of facility with the English language)
when determining if you have an acceptable reason for failure to follow
prescribed treatment. The following are examples of a good reason for
not following treatment:
* * * * *
11. Section 416.986 is amended by revising paragraph (c) to read as
follows:
Sec. 416.986 Why and when we will find that you are no longer entitled
to benefits based on statutory blindness.
* * * * *
(c) If you do not cooperate with us. If you are asked to give us
medical or other evidence or to go for a physical or mental examination
by a certain date, we will find that your blindness ended if you fail,
without good cause, to do what we ask. Section 416.1411 explains the
factors we consider and how we will determine generally whether you
have good cause for failure to cooperate. In addition, Sec. 416.918
discusses how we determine whether you have good cause for failing to
attend a consultative examination. The month in which your blindness
ends will be the month in which you fail to do what we asked.
* * * * *
12. Section 416.994 is amended by revising the section heading and
by revising paragraphs (b)(4)(i) and (b)(4)(ii) to read as follows:
Sec. 416.994 How we will determine whether your disability continues
or ends.
* * * * *
(b) * * *
(4) * * *
(i) A prior determination or decision was fraudulently obtained. If
we find that any prior favorable determination or decision was obtained
by fraud, we may find that you are not disabled. In addition, we may
reopen your claim under the rules in Sec. 416.1488. In determining
whether a prior favorable determination or decision was fraudulently
obtained, we will take into account any physical, mental, educational,
or linguistic limitations (including any lack of facility with the
English language) which you may have had at the time.
(ii) You do not cooperate with us. If there is a question about
whether you continue to be disabled and we ask you to give us medical
or other evidence or to go for a physical or mental examination by a
certain date, we will find that your disability has ended if you fail,
without good cause, to do what we ask. Section 416.1411 explains the
factors we consider and how we will determine generally whether you
have good cause for failure to cooperate. In addition, Sec. 416.918
discusses how we determine whether you have good cause for failing to
attend a consultative examination. The month in which your disability
ends will be the first month in which you failed to do what we asked.
* * * * *
13. Section 416.994a is amended by revising the section heading and
by revising paragraphs (g)(1) and (g)(2) to read as follows:
Sec. 416.994a How we will determine whether your disability continues
or ends, disabled children.
* * * * *
(g) * * *
(1) A prior determination or decision was fraudulently obtained. If
we find that any prior favorable determination or decision was obtained
by fraud, we may find that you are not disabled. In addition, we may
reopen your claim under the rules in Sec. 416.1488. In determining
whether a prior favorable determination or decision was fraudulently
obtained, we will take into account any physical, mental, educational,
or linguistic limitations (including any lack of facility with the
English language) which you may have had at the time.
(2) You do not cooperate with us. If there is a question about
whether you continue to be disabled and we ask you to give us medical
or other evidence or to go for a physical or mental examination by a
certain date, we will find that your disability has ended if you fail,
without good cause, to do what we ask. Section 416.1411 explains the
factors we consider and how we will determine generally whether you
have good cause for failure to cooperate. In addition, Sec. 416.918
discusses how we determine whether you have good cause for failing to
attend a consultative examination. The month in which your disability
ends will be the first month in which you failed to do what we asked.
* * * * *
14. Section 416.996 is amended by adding a new sentence at the end
of paragraph (g)(2) to read as follows:
Sec. 416.996 Continued disability or blindness benefits pending appeal
of a medical cessation determination.
* * * * *
(g) * * *
(2) * * * In determining whether you have good cause for failure to
cooperate and, thus, whether an appeal was made in good faith, we will
take into account any physical, mental, educational, or linguistic
limitations (including any lack of facility with the English language)
you may have which may have caused your failure to cooperate.
15. The authority citation for subpart N of part 416 continues to
read as follows:
Authority: Secs. 1102, 1631, and 1633 of the Social Security
Act; 42 U.S.C. 1302, 1383, and 1383b; section 6 of Pub. L. 98-460,
98 Stat. 1802.
16. Section 416.1411 is amended by removing the word ``and'' which
follows the semicolon at the end of paragraph (a)(2), by removing the
period after paragraph (a)(3) and replacing it with ``; and'', by
adding a new paragraph (a)(4), and by revising paragraph (b)(9) to read
as follows:
Sec. 416.1411 Good cause for missing the deadline to request review.
(a) * * *
(4) Whether you had any physical, mental, educational, or
linguistic limitations (including any lack of facility with the English
language) which prevented you from filing a timely request or from
understanding or knowing about the need to file a timely request for
review.
(b) * * *
(9) Unusual or unavoidable circumstances exist, including the
circumstances described in paragraph (a)(4) of this section, which show
that you could not have known of the need to file timely, or which
prevented you from filing timely.
17. Section 416.1436 is amended by revising paragraph (d)(7) to
read as follows:
Sec. 416.1436 Time and place for a hearing before an administrative
law judge.
* * * * *
(d) * * *
(7) You are unrepresented, and you are unable to respond to the
notice of hearing because of a physical, mental, educational, or
linguistic limitation (including any lack of facility with the English
language) which you may have.
18. Section 416.1457 is amended by redesignating paragraphs (b)(1)
and (b)(2) as paragraphs (b)(1)(i) and (b)(1)(ii) and by adding a new
paragraph (b)(2) to read as follows:
Sec. 416.1457 Dismissal of a request for a hearing before an
administrative law judge.
* * * * *
(b) * * *
(2) In determining good cause or good reason under this paragraph,
we will consider any physical, mental, educational, or linguistic
limitations (including any lack of facility with the English language)
which you may have.
* * * * *
19. Section 416.1488 is amended by revising paragraph (c) to read
as follows:
Sec. 416.1488 Conditions for reopening.
* * * * *
(c) At any time if it was obtained by fraud or similar fault. In
determining whether a determination or decision was obtained by fraud
or similar fault, we will take into account any physical, mental,
educational, or linguistic limitations (including any lack of facility
with the English language) which you may have had at the time.
20. The authority citation for subpart Q continues to read as
follows:
Authority: Secs. 1102, 1611(e)(3)(A), 1615, and 1631 of the
Social Security Act; 42 U.S.C. 1302, 1382(e)(3)(A), 1382d, and 1383.
21. Section 416.1715 is amended by revising paragraph (a) to read
as follows:
Sec. 416.1715 Effect of your rejecting vocational rehabilitation
services.
(a) Ineligible for benefits if you do not have good cause. If we
refer you to the State agency providing vocational rehabilitation
services, you are not eligible for SSI benefits for any month that you
refuse, without good cause, to accept services available to you (see
Sec. 416.1328(a) on suspension because of a refusal). In determining
whether you have good cause for refusing vocational rehabilitation
services, we will take into account any physical, mental, educational,
or linguistic limitations (including any lack of facility with the
English language) which may have caused you to refuse such services. If
you believe good cause exists to refuse these services, you will be
asked to submit proof showing this.
* * * * *
22. The authority citation for subpart V continues to read as
follows:
Authority: Secs. 1102, 1615, and 1631(d)(1) and (e) of the
Social Security Act; 42 U.S.C. 1302, 1382d, and 1383(d)(1) and (e);
sec. 2344 of Pub. L. 97-35, 95 Stat. 867.
Sec. 416.2203 [Amended]
23. In Sec. 416.2203, the eighth paragraph, definition of good
cause, is amended by changing the cross-reference following the
parenthetical phrase from ``Sec. 416.1715(b)'' to ``Sec. 416.1715.''
[FR Doc. 94-711 Filed 1-11-94; 8:45 am]
BILLING CODE 4190-29-P
