[Federal Register Volume 59, Number 45 (Tuesday, March 8, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-4910]


[[Page Unknown]]

[Federal Register: March 8, 1994]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Social Security Administration

20 CFR Part 416

RIN 0960-AC98

 

Supplemental Security Income for the Aged, Blind, and Disabled; 
Elimination of Waiting Period for Termination of Couple Status

AGENCY: Social Security Administration, HHS.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: This proposed rule implements section 8012(a) of the Omnibus 
Budget Reconciliation Act changed the definition of the term ``eligible 
spouse'' as it is used in the supplemental security income (SSI) 
program. Under the former definition of ``eligible spouse,'' members of 
an SSI eligible couple who began living apart could not be treated as 
individuals for SSI eligibility and payment purposes during the first 6 
months following the month in which they began living apart. The 
statutory change eliminated the 6-month waiting period. The proposed 
rule would revise the definition of ``eligible spouse'' contained in 
the regulations as well as make a number of other conforming changes. 
Finally, the rule would eliminate provisions in the regulations 
pertaining to eligible couples living apart.

DATES: To be sure that your comments are considered, we must receive 
them no later than May 9, 1994.

ADDRESSES: Comments should be submitted in writing to the Commissioner 
of Social Security, Department of Health and Human Services, P.O. Box 
1585, Baltimore, Maryland 21235, sent by telefax to (410) 966-0869 or 
delivered to the Office of Regulations, Social Security Administration, 
3-B-1 Operations Building, 6401 Security Boulevard, Baltimore, Maryland 
21235, between 8 a.m. and 4:30 p.m. on regular business days. Comments 
may be inspected during these same hours by making arrangements with 
the contact person shown below.

FOR FURTHER INFORMATION CONTACT: Irving Darrow, Legal Assistant, Office 
of Regulations, Social Security Administration, 6401 Security 
Boulevard, Baltimore, MD 21235, telephone (410) 966-0512.

SUPPLEMENTARY INFORMATION: Section 1614(b) of the Social Security Act 
(the Act), as in effect until October 1, 1990, defined an eligible 
spouse as ``an aged, blind, or disabled individual who is the husband 
or wife of another aged, blind, or disabled individual and who has not 
been living apart from such other aged, blind, or disabled individual 
for more than six months.'' One effect of this definition was to create 
a 6-month waiting period before the members of an eligible couple, who 
began living apart, could be treated as individuals for SSI purposes.
    Section 8012 of Public Law 101-239 (the Omnibus Budget 
Reconciliation Act of 1989) eliminated the 6-month waiting period by 
revising the definition of an eligible spouse. Effective October 1, 
1990, ``eligible spouse'' means an aged, blind, or disabled individual 
who is the husband or wife of another aged, blind, or disabled 
individual and who is living with that eligible individual on the first 
day of the month, or, in any case in which either spouse files an 
application for benefits or requests restoration of eligibility under 
the SSI program during the month, at the time the application or 
request is filed.
    The proposed rule revises the definition of ``eligible spouse'' in 
Secs. 416.120(c)(14) and 416.1801(c) to reflect section 8012 of Public 
Law 101-239.
    The legislative history does not indicate that Congress intended to 
treat couples who are temporarily separated as individuals. Therefore, 
the rule also provides in Sec. 416.1801(c) that an individual is 
considered to be living with an eligible spouse during temporary 
absences as defined in Sec. 416.1149 and while receiving continued 
benefits under section 1611(e)(1) (E) or (G) of the Act.
    In addition to revising the definition of ``eligible spouse'' in 
Secs. 416.120(c)(14) and 416.1801(c), a number of other sections in the 
regulations are being revised to eliminate provisions which refer to 
the prior rule for terminating eligible couple status based on a 6-
month period of living apart. These sections are as follows:
     Section 416.305(b)(1) is being revised to remove language 
regarding the eligible spouse living apart from the eligible individual 
for a period of 6 months.
     Section 416.412 is being amended by using more precise 
language in the first sentence when referring to a member of an 
eligible couple temporarily residing in a medical care facility.
     Section 416.414 is being revised to specify that the 
computations in paragraphs (b)(2) and (b)(3) are applicable only when 
one or both members of an eligible couple are temporarily absent from 
home per Sec. 416.1149(c)(1). As their absence is temporary, they are 
not separated.
     Section 416.430, which deals with essential person 
increments, is being revised by removing language regarding when the 
members of an eligible couple live apart and adding language to explain 
how to pay a couple when one member is temporarily absent and subject 
to the $30 payment limit while an inpatient at a medical facility where 
Medicaid is paying more than half the cost of care. The reference to 
Sec. 416.531 is also being changed to Sec. 416.413.
     In Sec. 416.432, a portion of the introductory language 
and paragraphs (a) and (b) are being removed. The removed material 
concerns members of an eligible couple who have separated.
     Section 416.532(e), which provides for essential person 
increments when members of an eligible couple live apart, is being 
removed.
     In Sec. 416.554, the last sentence of the text and example 
three regarding separated members of an eligible couple are being 
revised.
     In Sec. 416.1130(c), the last sentence, which refers to 
members of an eligible couple who have different living arrangements, 
is being removed.
     In Sec. 416.1147, paragraphs (a) and (d) are being removed 
and the remaining paragraphs are being revised and redesignated (a), 
(b), (c), and (d) respectively. The deleted material deals with 
valuation of in-kind support and maintenance for a member of an 
eligible couple who is separated from his or her spouse.
     Section 416.1802(b) is being revised to remove language 
referring to computation of benefits for separated members of an 
eligible couple.
     Section 416.1806 is being revised to contain rules on who 
will be considered the individual's spouse, if more than one person 
would qualify.
     Section 416.1811 is being removed as a result of the 
revision to Sec. 416.1806. The cross-reference to Sec. 416.1811 in 
Sec. 416.1101 (definition of ``spouse'') is also being removed.
     Section 416.1830(a)(1) is being revised to provide that, 
if the members of an eligible couple begin living apart, they will be 
treated as individuals beginning with the month following the calendar 
month they stopped living together.
     In Sec. 416.1832(c) and (d), the cross-references to 
Sec. 416.1806(b) and (c) respectively are being revised to refer to 
Sec. 416.1806(a)(2) and (a)(3) respectively. This change is 
necessitated by the revision we are making to Sec. 416.1806.
     Section 416.1832(d) is being revised to provide that, if a 
marital relationship has been found to exist solely because a man and 
woman are living together and leading others to believe that they are 
husband and wife, such marital relationship will be considered to end 
as of the date the man and woman stop living together.
    Enactment of section 8012(a) of Public Law 101-239 has made the 
following Social Security Rulings (SSRs) obsolete: 76-28, 76-41, and 
88-11c.

Regulatory Procedures

Regulatory Flexibility Act

    We certify that this proposed regulation, if promulgated, will not 
have a significant economic impact on a substantial number of small 
entities because it 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 of 1980

    This proposed regulation imposes no additional reporting and 
recordkeeping requirements necessitating clearance by the Office of 
Management and Budget.

(Catalog of Federal Domestic Assistance Program No. 93.807, 
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.

    Dated: January 13, 1994.
Shirley Chater,
Commissioner of Social Security.

    Approved: February 22, 1994.
Donna E. Shalala,
Secretary of Health and Human Services.

    Part 416 of chapter III of title 20 of the Code of Federal 
Regulations is amended as follows:

PART 416--[AMENDED]

    1. The authority citation for subpart A is revised to read as 
follows:

    Authority: Secs. 1102 and 1601-1634 of the Social Security Act; 
42 U.S.C. 1302 and 1381-1383c; sec. 212 of Pub. L. 93-66, 87 Stat. 
155 and sec. 502(a) of Pub. L. 94-241, 90 Stat. 268.

    2. In Sec. 416.120, paragraph (c)(14) is revised to read as 
follows:


Sec. 416.120  General definitions and use of terms.

* * * * *
    (c) Miscellaneous. * * *
    (14) ``Eligible spouse'' means an aged, blind, or disabled 
individual who is the husband or wife of another aged, blind, or 
disabled individual and who is living with that individual (see 
Sec. 416.1801(c)).
* * * * *
    3. The authority citation for subpart C continues to read as 
follows:

    Authority: Secs. 1102, 1611 and 1631(a), (d), and (e) of the 
Social Security Act; 42 U.S.C. 1302, 1382, 1383(a), (d), and (e).

    4. In Sec. 416.305, paragraph (b) introductory text is republished 
and paragraph (b)(1) is revised to read as follows:


Sec. 416.305  You must file an application to receive supplemental 
security income benefits.

* * * * *
    (b) Exceptions. You need not file a new application if--
    (1) You have been receiving benefits as an eligible spouse and are 
no longer living with your husband or wife;
* * * * *
    5. The authority citation for subpart D continues to read as 
follows:

    Authority: Secs. 1102, 1611(a), (b), (c), and (e), 1612, 1617, 
and 1631 of the Social Security Act; 42 U.S.C. 1302, 1382(a), (b), 
(c), and (e), 1382a, 1382f, and 1383.

    6. Section 416.412 is revised to read as follows:


Sec. 416.412  Amount of benefits; eligible couple.

    The benefit under this part for an eligible couple, neither of whom 
is temporarily residing in a medical care facility as described in 
Sec. 416.1149(c)(1) nor is a qualified individual (as defined in 
Sec. 416.221), shall be payable at the rate of $6,048 per year ($504 
per month) after rounding, effective for the period beginning January 
1, 1986. This rate is the result of a 3.1 percent cost-of-living 
adjustment (see Sec. 416.405) to the December 1985 rate. For the period 
January 1, 1985, through December 31, 1985, the rate payable, as 
increased by the 3.5 percent cost-of-living adjustment, was $5,856 
($488 per month). For the period January 1, 1984, through December 31, 
1984, the rate payable, as increased by the 3.5 percent cost-of-living 
adjustment, was $5,664 per year ($472 per month). For the period July 
1, 1983, through December 31, 1983, the rate payable was $5,476.80 per 
year ($456.40 per month), as provided by the Social Security Amendments 
of 1983 (Pub. L. 98-21, Section 401). For the period July 1, 1982, 
through June 30, 1983, the rate, as increased by the 7.4 percent cost-
of-living adjustment, was $5,116.80 yearly ($426.40 monthly). The 
monthly rate is reduced by the amount of the couple's income which is 
not excluded pursuant to subpart K of this part.
    7. In Sec. 416.414, the paragraph headings for paragraphs (b)(2) 
and (b)(3) are revised to read as follows:


Sec. 416.414  Amount of benefits; eligible individual or eligible 
couple in a medical care facility.

* * * * *
    (b) * * *
    (2) Eligible couple both of whom are temporarily absent from home 
in medical care facilities as described in Sec. 416.1149(c)(1). * * *
    (3) Eligible couple with one spouse who is temporarily absent from 
home as described in Sec. 416.1149(c)(1). * * *
* * * * *
    8. Section 416.430 is revised to read as follows:


Sec. 416.430  Eligible individual with eligible spouse; essential 
person(s) present.

    (a) When an eligible individual with an eligible spouse have an 
essential person (Sec. 416.222) living in his or her home, or when both 
such persons each has an essential person, the increase in the rate of 
payment is determined in accordance with Secs. 416.413 and 416.532. The 
income of the essential person(s) is included in the income of the 
couple and the payment due will be equally divided between each member 
of the eligible couple.
    (b) When one member of an eligible couple is temporarily absent in 
accordance with Sec. 416.1149(c)(1) and Sec. 416.222(c) and either one 
or both individuals has an essential person, add the essential person 
increment to the benefit rate for the member of the couple who is 
actually residing with the essential person and include the income of 
the essential person in that member's income. See Sec. 416.414(b)(3).
    9. Section Sec. 416.432 is revised to read as follows:


Sec. 416.432  Change in status involving a couple; eligibility 
continues.

    When there is a change in status which involves the formation or 
dissolution of an eligible couple (for example, marriage, divorce), a 
redetermination of the benefit amount shall be made for the months 
subsequent to the month of such formation or dissolution of the couple 
in accordance with the following rules:
    (a) When there is a dissolution of an eligible couple and each 
member of the couple becomes an eligible individual, the benefit amount 
for each person shall be determined individually for each month 
beginning with the first month after the month in which the dissolution 
occurs. This shall be done by determining the applicable benefit rate 
for an eligible individual with no eligible spouse according to 
Sec. 416.410 or Sec. 416.413 and Sec. 416.414 and applying 
Sec. 416.420(a). See Sec. 416.1147a for the applicable income rules 
when in-kind support and maintenance is involved.
    (b) When two eligible individuals become an eligible couple, the 
benefit amount will be determined for the couple beginning with the 
first month following the month of the change. This shall be done by 
determining which benefit rate to use for an eligible couple according 
to Sec. 416.412 or Sec. 416.413 and Sec. 416.414 and applying the 
requirements in Sec. 416.420(a).
    10. The authority citation for subpart E continues to read as 
follows:

    Authority: Secs. 1102, 1601, 1602, 1611(c), and 1631 (a), (b), 
(d), and (g) of the Social Security Act; 42 U.S.C. 1302, 1381, 
1381a, 1382(c), and 1383 (a), (b), (d), and (g).


Sec. 416.532  [Removed]

    11. In Sec. 416.532, paragraph (e) is removed.
    12. Section 416.554 is revised to read as follows:


Sec. 416.554  Waiver of adjustment or recovery--against equity and good 
conscience.

    We will waive adjustment or recovery of an overpayment when an 
individual on whose behalf waiver is being considered is without fault 
(as defined in Sec. 416.552) and adjustment or recovery would be 
against equity and good conscience. Adjustment or recovery is 
considered to be against equity and good conscience if an individual 
changed his or her position for the worse or relinquished a valuable 
right because of reliance upon a notice that payment would be made or 
because of the incorrect payment itself. In addition, adjustment or 
recovery is considered to be against equity and good conscience for an 
individual who is a member of an eligible couple that is legally 
separated and/or living apart, on a 6-month trip, for that part of an 
overpayment not received, but subject to recovery under Sec. 416.570.

    Example 1: Upon being notified that he was eligible for 
supplemental security income payments, an individual signed a lease 
on an apartment renting for $15 a month more than the room he had 
previously occupied. It was subsequently found that eligibility for 
the payment should not have been established. In such a case, 
recovery would be considered ``against equity and good conscience.''
    Example 2: An individual fails to take advantage of a private or 
organization charity, relying instead on the award of supplemental 
security income payments to support himself. It was subsequently 
found that the money was improperly paid. Recovery would be 
considered ``against equity and good conscience.''
    Example 3: Mr. and Mrs. Smith--members of an eligible couple--
separate in July. Later in July, Mr. Smith receives earned income 
resulting in an overpayment to both. Mrs. Smith is found to be 
without fault in causing the overpayment. Recovery from Mrs. Smith 
of Mr. Smith's part of the couple's overpayment is waived as being 
against equity and good conscience. Whether recovery of Mr. Smith's 
portion of the couple's overpayment can be waived will be evaluated 
separately.

    13. The authority citation for subpart K is revised to read as 
follows:

    Authority: Secs. 1102, 1602, 1611, 1612, 1613, 1614(f), 1621, 
and 1631 of the Social Security Act; 42 U.S.C. 1302, 1381a, 1382, 
1382a, 1382b, 1382c(f), 1382j, and 1383; sec. 211 of Pub. L. 93-66, 
87 Stat. 154.


Sec. 416.1110  [Amended]

    14. In Sec. 416.1101, the parenthetical reference in the definition 
of ``Spouse'' which reads ``(See Secs. 416.1806 through 416.1811)'' is 
revised to read ``(See Sec. 416.1806).''
    15. In Sec. 416.1130, paragraph (c) is revised to read as follows:


Sec. 416.1130  Introduction.

* * * * *
    (c) How we value in-kind support and maintenance. Essentially, we 
have two rules for valuing the in-kind support and maintenance which we 
must count. The one-third reduction rule applies if you are living in 
the household of a person who provides you with both food and shelter 
(Secs. 416.1131 through 416.1133). The presumed value rule applies in 
all other situations where you are receiving countable in-kind support 
and maintenance (Secs. 416.1140 through 416.1145). If certain 
conditions exist, we do not count in-kind support and maintenance. 
These are discussed in Secs. 416.1141 through 416.1145.
    16. Section 416.1147 is revised to read as follows:


Sec. 416.1147  How we value in-kind support and maintenance for a 
couple.

    (a) Both members of a couple live in another person's household and 
receive food and shelter from that person. When both of you live in 
another person's household through-out a month and receive food and 
shelter from that person, we apply the one-third reduction to the 
Federal benefit rate for a couple (Sec. 416.1131).
    (b) One member of a couple lives in another person's household and 
receives food and shelter from that person and the other is in a 
medical institution. If one of you is living in the household of 
another person who provides you with both food and shelter and the 
other is temporarily absent from the household as provided in 
Sec. 416.1149(c)(1) (in a medical institution that receives Medicaid 
payments for his or her care (Sec. 416.211(b)), we compute your 
benefits as if you were separately eligible individuals (see 
Sec. 416.414(b)(3)). This begins with the first full calendar month one 
of you is in the medical institution. The one living in another 
person's household is eligible at an eligible individual's Federal 
benefit rate and one-third of that rate is counted as income not 
subject to any income exclusions. The one in the medical institution 
cannot receive more than the rate described in Sec. 416.414(b)(3)(i).
    (c) Both members of a couple are subject to the presumed value 
rule. If the presumed value rule applies to both of you, we value any 
food, clothing, or shelter you and your spouse receive at one-third of 
the Federal benefit rate for a couple plus the amount of the general 
income exclusion (Sec. 416.1124(c)(12)), unless you can show that their 
value is less as described in Sec. 416.1140(a)(2).
    (d) One member of a couple is subject to the presumed value rule 
and the other is in a medical institution. If one of you is subject to 
the presumed value rule and the other is temporarily absent from the 
household as provided in Sec. 416.1149(c)(1) (in a medical institution 
that receives Medicaid payments for his or her care (Sec. 416.211(b)), 
we compute your benefits as if you were separately eligible individuals 
(see Sec. 416.414(b)(3)). This begins with the first full calendar 
month that one of you is in the medical institution (Sec. 416.211(b)). 
We value any food, clothing, or shelter received by the one outside of 
the medical institution at one-third of an eligible individual's 
Federal benefit rate, plus the amount of the general income exclusion 
(Sec. 416.1124(c)(12)), unless you can show that their value is less as 
described in Sec. 416.1140(a)(2). The one in the medical institution 
cannot receive more than the rate described in Sec. 416.414(b)(3)(i).
    17. The authority citation for subpart R continues to read as 
follows:

    Authority: Secs. 1102, 1614(b), (c), and (d), and 1631(d)(1) and 
(e) of the Social Security Act; 42 U.S.C. 1302, 1382c (b), (c), and 
(d), and 1383 (d)(1) and (e).

    18. In Sec. 416.1801(c), the definition of ``eligible spouse'' is 
revised to read as follows:


Sec. 416.1801  Introduction

* * * * *
    (c) * * *
    Eligible spouse means a person--
    (1) Who is eligible for SSI,
    (2) Whom we consider the spouse of another person who is eligible 
for SSI, and
    (3) Who was living in the same household with that person on--
    (i) The date of filing an application for benefits (for the month 
of an application);
    (ii) The date a request for reinstatement of eligibility is filed 
(for the month of such request); or
    (iii) The first day of the month, for all other months.

An individual is considered to be living with an eligible spouse during 
temporary absences as defined in Sec. 416.1149 and while receiving 
continued benefits under section 1611(e)(1) (E) or (G) of the Act.
* * * * *
    19. In Sec. 416.1802, paragraph (b) is revised to read as follows:


Sec. 416.1802  Effects of marriage on eligibility and amount of 
benefits.

* * * * *
    (b) If you have an eligible spouse--(1) Counting income. If you 
apply for or receive SSI benefits and have an eligible spouse as 
defined in Sec. 416.1801(c), we will count your combined income and 
calculate the benefit amount for you as a couple. Section 416.412 gives 
a detailed statement of the amount of benefits and subpart K of this 
part explains how we count income for an eligible couple.
    (2) Counting resources. If you have an eligible spouse as defined 
in Sec. 416.1801(c), we will count the value of your combined resources 
(money and property), minus certain exclusions, and use the couple's 
resource limit when we determine your eligibility. Section 416.1205(b) 
gives a detailed statement of the resource limit for an eligible 
couple.
* * * * *
    20. Section 416.1806 is revised to read as follows:


Sec. 416.1806  Whether you are married and who is your spouse.

    (a) We will consider someone to be your spouse (and therefore 
consider you to be married) for SSI purposes if--
    (1) You are legally married under the laws of the State where your 
and his or her permanent home is (or was when you lived together);
    (2) We have decided that either of you is entitled to husband's or 
wife's Social Security insurance benefits as the spouse of the other 
(this decision will not affect your SSI benefits for any month before 
it is made); or
    (3) You and an unrelated person of the opposite sex are living 
together in the same household at or after the time you apply for SSI 
benefits, and you both lead people to believe that you are husband and 
wife.
    (b) If more than one person would qualify as your husband or wife 
under paragraph (a) of this section, we will consider the person you 
are presently living with to be your spouse for SSI purposes.


Sec. 416.1811  [Removed]

    21. Section 416.1811 is removed.
    22. In Sec. 416.1830, paragraph (a) is revised to read as follows:


Sec. 416.1830  When we stop considering you and your spouse an eligible 
couple.

* * * * *
    (a) The calendar month after the month you stopped living with your 
eligible spouse, or
* * * * *
    23. In Sec. 416.1832, paragraphs (c) and (d) are revised to read as 
follows:


Sec. 416.1832  When we consider your marriage ended.

* * * * *
    (c) We decide that either of you is not a spouse of the other for 
purposes of husband's or wife's social security insurance benefits, if 
we considered you married only because of Sec. 416.1806(a)(2); or
    (d) You and your spouse stop living together, if we considered you 
married only because of Sec. 416.1806(a)(3).

[FR Doc. 94-4910 Filed 2-7-94; 8:45 am]
BILLING CODE 4190-29-P