01-18593. Collection of Supplemental Security Income Overpayments From Special Benefits for Certain World War II Veterans

AGENCY:

Social Security Administration.

ACTION:

Proposed rule.

SUMMARY:

We propose to revise our regulations dealing with the recovery of overpayments under the Supplemental Security Income (SSI) program under title XVI of the Social Security Act (the Act). The proposed revisions would modify our regulations to permit SSA to recover SSI overpayments by adjusting the amount of Special Benefits for Certain World War II Veterans (SVB) payable under title VIII of the Act. This collection practice would be limited to individuals who are not currently eligible to receive any cash payments under any provision of title XVI or any State supplementary payments that we administer under title XVI. Also, the amount of SVB to be withheld in a month to recover the SSI overpayment would not exceed 10 percent unless the overpaid person requests us to withhold a different amount or the overpaid person (or his or her spouse) willfully misrepresented or concealed material information in connection with the SSI overpayment. If there were willful misrepresentation or concealment, the entire SVB amount will be withheld to recover the SSI overpayment. These revisions would permit SSA to recover SSI overpayments from SVB payable to the overpaid individual when SSI cash benefits are not payable.

DATES:

To be sure your comments are considered, we must receive them no later than September 24, 2001.

ADDRESSES:

Give us your comments using our Internet site facility (i.e., Social Security Online) at http://www.ssa.gov/​regulations/​. Comments could also be submitted in writing to the Commissioner of Social Security, P.O. Box 17703, Baltimore, Maryland 21235-7703, sent by telefax to [phone], sent by e-mail to [e-mail] or delivered to the Office of Process and Innovation Management, Social Security Administration, 2109 West Low Rise Building, 6401 Security Boulevard, Baltimore, Maryland 21235-6401.

FOR FURTHER INFORMATION CONTACT:

Patricia Hora, Social Insurance Specialist, Office of Process and Innovation Management, Social Security Administration, 6401 Security Boulevard, Baltimore, Maryland 21235-6401, [phone] or TTY [phone] for information about these rules. For information on eligibility or claiming benefits, call our national toll-free number, 1-800-772-1213 or TTY 1-800-325-0778.

SUPPLEMENTARY INFORMATION:

On December 14, 1999, Pub. L. 106-169, the “Foster Care Independence Act of 1999” was enacted. Section 251(a) of Pub. L. 106-169 added title VIII to the Social Security Act, establishing a new benefit program—Special Benefits for Certain World War II Veterans. Under this program, certain World War II veterans who were eligible for SSI for December 1999 and for the month of application for SVB, and who meet other criteria specified in the law, may be entitled to SVB for each month in which they reside outside the United States.

Section 251(b) of Pub. L. 106-169 amended section 1147 of the Act. Prior to the enactment of Pub. L. 106-169, section 1147 of the Act (added by section 8 of Pub. L. 105-306) allowed SSA to recover SSI overpayments from an overpaid individual who was no longer receiving SSI cash payments by reducing the amount of any benefits payable under title II of the Act. Section 251(b) of Pub. L. 106-169 amended section 1147 to allow recovery of SSI overpayments from title VIII benefits, as well as title II benefits, payable in a month. Throughout this preamble, this type of overpayment recovery is called “cross-program recovery.” With certain exceptions, the amount of the reduction permitted under cross-program recovery cannot exceed 10 percent of the benefits payable in a month.

Explanation of Proposed Changes

We are publishing elsewhere in today's Federal Register final rules that establish cross-program recovery of title XVI benefits from title II benefits payable to the overpaid person in a month (which were published as proposed rules on October 5, 2000 at 65 FR 58970). We propose to revise §§ 416.570 and 416.572, as set forth in these final rules, to address cross-program recovery of title XVI overpayments from SVB payable to the overpaid person in a month. We describe below the specific changes we propose to make in §§ 416.570 and 416.572.

In order to implement cross-program recovery from SVB, we would modify several provisions of § 416.572. Paragraph (a) would be revised as follows:

• We would revise the definition of “cross-program recovery” to include the process of collecting title XVI overpayments from SVB payable in a month to the overpaid individual.
• We would revise the definition of “benefits payable in a month” to include the amount of SVB a person would actually receive in a given month. Under our proposed definition, “benefits payable in a month” would include the monthly SVB amount and any past due SVB a person would receive, but would not include the amount of the reduction for benefit income required by section 805 of the Act (42 U.S.C. 1005). We would add to the definition an example to show how we would determine SVB payable in a month.

We would revise paragraph (b) of § 416.572 to explain that we may use cross-program recovery to collect title XVI overpayments if the overpaid person is not currently receiving SSI cash benefits and is receiving benefits under title II or title VIII of the Act. Consequently, if a person whose title II and/or title VIII benefits are being adjusted to recover a title XVI overpayment again becomes eligible for SSI benefits, cross-program recovery would end with the month in which SSI cash benefits resume. We would begin collecting the remaining title XVI overpayment by monthly adjustment of SSI payments. We would also revise paragraph (b) to explain that:

• We would not start cross-program recovery from SVB if we already are adjusting SVB to recover an SVB overpayment, and
• We would not start cross-program recovery from title II benefits if we are already adjusting title II benefits to recover an SVB or title II overpayment.

Adjustment of title VIII and title II benefits to recover SVB overpayments is authorized by section 808(a)(1) of the Act (42 U.S.C. 1008(a)(1)).

Paragraph (c) of § 416.572 lists the information that we would include in the notice sent to a person whose benefits would be subject to cross-program recovery. Paragraph (c)(2) requires that we include the specific amount we would withhold from title II benefits payable in a month to recover the title XVI overpayment. We would revise paragraph (c)(2) to add that the information would include the amount we would withhold from SVB payable in a month. The notice would state that the person may ask us to review our determination that he or she still owes the overpayment balance and that he or she may ask us to waive collection of the overpayment balance. The notice will also inform the individual how to request a waiver. Unless the overpaid person or that person's spouse willfully misrepresented or concealed material information in connection with the overpayment, the notice would also state that the person may request that we withhold from SVB a different amount than the amount stated in the notice.

Paragraph (d) of § 416.572 explains that we would begin to withhold no sooner than 30 days after the date of the notice. If the individual would pay the entire overpayment balance within that 30-day period, we would not impose cross-program recovery. If within the 30-day period the person asks us to review the determination that he or she still owes us the overpayment balance and/or requests us to waive recovery of the overpayment balance, we would not begin cross-program recovery until we review the matter(s) and notify the person of our decision(s). If within the 30-day period, the person requests that we withhold a different amount, we would not begin cross-program recovery until we determine the amount we would withhold. These provisions would apply when we would pursue cross-program recovery to collect SSI overpayments from SVB payable under title VIII of the Act.

We would revise paragraph (e) of § 416.572 to explain that when cross-program recovery is applied, we would collect the overpayment at a rate of 10 percent of the title II benefits and SVB payable in any month, respectively. However, we would collect at a rate of 100 percent of the title II benefits and SVB payable in any month if the overpaid person (or his or her spouse) willfully misrepresented or concealed material information in connection with the overpayment.

Other Revisions

We would revise the language of § 416.570 to state that we would not adjust title XVI benefits to recover SVB overpayments without a specific request from the SSI beneficiary. Without the consent of the overpaid person, we have no authority to recover SVB overpayments from SSI payments.

Clarity of This Regulation

Executive Order (E.O.) 12866 and the President's memorandum of June 1, 1998, require each agency to write all rules in plain language. In addition to your substantive comments on these proposed rules, we invite your comments on how to make these proposed rules easier to understand.

For example:

• Have we organized the material to suit your needs?
• Are the requirements in the rules clearly stated?
• Do the rules contain technical language or jargon that is unclear?
• Would a different format (grouping and order of sections, use of headings, paragraphing) make the rules easier to understand?
• Would more (but shorter) sections be better?
• Could we improve clarity by adding tables, lists, or diagrams?
• What else could we do to make the rules easier to understand?

Electronic Version

The electronic file of this document is available on the date of publication in the Federal Register on the Internet site for the Government Printing Office: http://www.access.gpo.gov/​su_​docs/​aces/​aces140.html. It is also available on the Internet site for SSA (i.e., Social Security Online): http://www.ssa.gov/​.

Regulatory Procedures

Executive Order 12866

We have consulted with the Office of Management and Budget (OMB) and determined that these final regulations meet the criteria for a significant regulatory action under Executive Order (E.O.) 12866. Thus, the regulations were reviewed by OMB. However, the estimated amounts of the savings or costs involved do not cross the threshold for an economically significant regulation as defined in E.O. 12866. The estimated program savings from increased collections as a result of implementation of section 251(b)(7) of Pub. L. 106-169 are negligible, less than $2.5 million over the next 10 years. The administrative impact is also negligible.

Regulatory Flexibility Act

We certify that these proposed 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 proposed regulations would impose no new reporting or recordkeeping requirements requiring OMB clearance.

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

List of Subjects in 20 CFR Part 416

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

Dated: May 7, 2001.

Larry G. Massanari,

Acting Commissioner of Social Security.

For the reasons set forth in the preamble, we propose to amend Chapter III of Title 20, Code of Federal Regulations as follows:

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

1. The authority citation for Subpart E of Part 416 is amended 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 416.570 is amended by revising the third sentence to read:

§ 416.570

Adjustment-general rule.

* * * Absent a specific request from the person from whom recovery is sought, no overpayment made under title II, title VIII or title XVIII of the Act will be recovered by adjusting SSI benefits.

* * * * *

3. Section 416.572 is amended by revising the heading and paragraphs (a), (b), (c)(2), and (e) to read as follows:

§ 416.572

Are title II benefits and title VIII benefits subject to adjustment to recover title XVI overpayments?

(a) Definitions—(1) Cross-program recovery. Cross-program recovery is the process that we will use to collect title XVI overpayments from benefits payable to you in a month under title II and title VIII of the Act.

(2) Benefits payable in a month. For purposes of this section, benefits payable in a month means the amount of title II or title VIII benefits that you would actually receive in that month. For title II benefits, it includes your monthly benefit and any past due benefits after any reductions or deductions listed in § 404.401(a) and (b) of this chapter. For title VIII benefits, it includes your monthly benefit and any past due benefits after any reduction by the amount of income for the month required by section 805 of the Act.

Title II Example: A person is entitled to monthly title II benefits of $1000. The first benefit payment the person would receive includes past-due benefits of $1000. The amount of benefits payable in that month for purposes of cross-program recovery is $2000. So, if we were recovering 10 percent of that month's benefit, we would be recovering $200. The monthly benefit payable for subsequent months is $1000. So, if we were recovering 10 percent of that amount, we would be recovering $100. If $200 would be deducted from the person's title II benefits in a later month because of excess earnings as described in §§ 404.415 and 404.416 of this chapter, the benefit payable in that month for purposes of cross-program recovery would be $800. So, if we were recovering 10 percent of that month's benefit, we would be recovering $80.

Title VIII Example: A person qualifies for monthly title VIII benefits of $384. The person is receiving a monthly pension payment of $150 from his employer. The title VIII benefit payable in a particular month would be reduced by $150 under section 805 of the Act (42 U.S.C. 1005). The title VIII benefit payable and subject to withholding in that month for purposes of cross-program recovery would be $234. So, if we were recovering 10 percent of that month's benefit, we would be recovering $23.40.

(3) Not currently eligible for SSI cash benefits. This means that a person is not receiving any cash payment, including State supplementary payments, under any provision of title XVI of the Act or under section 212(b) of Pub. L. 93-66.

(b) When we may collect title XVI overpayments using cross-program recovery. (1) Except as provided in paragraphs (b)(2) through (4) of this section, we may use cross-program recovery to collect a title XVI overpayment you owe if:

(i) You are not currently eligible for SSI cash benefits, and

(ii) You are receiving title II or title VIII benefits.

(2) We will not start cross-program recovery against your title II or title VIII benefits if you are refunding your title XVI overpayment by regular monthly installments.

(3) We will not start cross-program recovery against your title II benefits if we are adjusting your title II benefits to recover a title II overpayment under § 404.502 of this chapter or a title VIII overpayment under section 808(a)(1) of the Act (42 U.S.C. 1008(a)(1)).

(4) We will not start cross-program recovery against your title VIII benefits if we are adjusting your title VIII benefits to recover a title VIII overpayment under section 808(a)(1) of the Act (42 U.S.C. 1008(a)(1)).

(c) * * *

(2) We will withhold a specific amount from the title II benefits and/or title VIII benefits payable to you in a month (see paragraph (e) of this section);

* * * * *

(e) Rate of withholding. (1) We will collect the overpayment at the rate of 10 percent of the title II benefits and title VIII benefits payable to you in any month, unless:

(i) You request and we approve a different rate of withholding, or

(ii) You or your spouse willfully misrepresented or concealed material information in connection with the overpayment.

(2) In determining whether to grant your request that we withhold at a lower rate than 10 percent of the title II benefits payable in a month, we will use the criteria applied under § 416.571 to similar requests about withholding from title XVI benefits.

(3) If you or your spouse willfully misrepresented or concealed material information in connection with the overpayment, we will collect the overpayment at the rate of 100 percent of the title II benefits and title VIII benefits payable in any month. We will not collect at a lesser rate. (See § 416.571 for what we mean by concealment of material information.)