[Federal Register Volume 59, Number 138 (Wednesday, July 20, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-17402]


[[Page Unknown]]

[Federal Register: July 20, 1994]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES
20 CFR Part 404

RIN 0960-AD79

 

Federal Old-Age, Survivors and Disability Insurance; Changes in 
Evidence Required To Presume a Person Is Dead

AGENCY: Social Security Administration, HHS.

ACTION: Proposed rules.

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SUMMARY: These proposed regulations would provide that, under title II 
of the Social Security Act (the Act), a presumption of death arises 
when the claimant established an individual has been absent from his or 
her residence and not heard from for 7 years. Once the presumption is 
made, the burden then shifts to us to rebut the presumption either by 
presenting evidence that the missing individual is still alive or by 
providing an explanation to account for the individual's absence in a 
manner consistent with continued life rather than death.

DATES: To be sure your comments are considered, we must receive them no 
later than September 19, 1994.

ADDRESSES: Comments should be submitted in writing to the Commissioner 
of Social Security, Department of Health and Human Services, P.O. 1585, 
Baltimore, MD 21235. Alternatively, you may fax your comments to the 
Commissioner of Social Security at (410) 966-0869 or deliver them to 
the Office of Regulations, Social Security Administration, 3-B-4 
Operations Building, 6401 Security Boulevard, Baltimore, MD 21235 
between 8:00 a.m. and 4:30 P.M. on regular business days. Comments 
received may be inspected during these same hours by making 
arrangements with the contact person shown below.

FOR FURTHER INFORMATION CONTACT: Philip Berge, Legal Assistant, Office 
of Regulations, Social Security Administration, 6401 Security 
Boulevard, Baltimore, MD 21235, (410) 965-1769.

SUPPLEMENTARY INFORMATION:

Background

    Under title II of the Act, a lump sum death payment and monthly 
survivors' benefits may be payable based on the earnings of a deceased 
insured person. In order to ensure that these benefits are not paid 
based on mere desertion, any inquiry into entitlement begins with an 
assumption that a person last known to be alive is still living, and 
that a person's failure to communicate with a few people and to return 
to a particular place do not, in themselves, give rise to a presumption 
of death. To establish eligibility for such benefits, the claimant must 
establish that the insured person is dead. If proof of death (as 
described in Secs. 404.720(b) and (c)) is unavailable, we will presume 
an insured person is dead if certain evidence is presented. Under the 
present Sec. 404.721(b), such evidence includes signed statements by 
those in a position to know and other records which show that the 
person has been absent from his or her residence for no apparent 
reason, and has not been heard from for at least 7 years.
    This evidentiary requirement has yielded two very different 
interpretations. It has long been our policy that the claimant must 
present the evidence necessary to establish that he or she is entitled 
to benefits. Accordingly, for us to presume that an insured person is 
dead, the claimant must establish that the insured person not only has 
not been heard from for at least 7 years, but also that he or she has 
been absent from his or her residence for no apparent reason. If the 
insured person's absence can be attributer to known domestic or 
financial difficulties or to some other rational reason for leaving 
home, death is not presumed. We are not required to establish that the 
insured person is still alive to explain the person's absence.
    In contrast to our interpretation, a number of United States Courts 
of Appeals have issued decisions which have presumed the death of a 
missing person despite the existence of other reasonable explanations 
for the person's absence. These court decisions have held that a 
presumption of death arises under our regulations when the claimant 
shows that a person has been absent from his or her residence and not 
heard from for 7 years. Once the claimant has made this showing, these 
decisions state that the Secretary bears the burden of rebutting the 
presumption of death either by presenting evidence showing that the 
missing person is alive or by providing an explanation to account for 
the individual's absence in a manner that is consistent with continued 
life. As a result of these court decisions, we published Social 
Security Acquiescence Rulings applicable in the Third, Fifth, Sixth, 
Eighth, Ninth, Tenth, and Eleventh Circuits which adopt this 
interpretation of Sec. 404.721.
    We published a Notice of Proposed Rulemaking (NPRM) on February 29, 
1984, (49 FR 7405-7406), containing proposed revisions of Sec. 404.721 
which we hoped would clarify the regulation to avoid the varying 
interpretations of the regulation made by the courts. Under the 
previously proposed regulation, we would presume the death of the 
insured person if signed statements by persons, who were in a position 
to know, and other evidence showed that all three of the following 
requirements were met:
    (1) The insured person has not had contact of any kind with any 
relatives, dependents, employers, or friends for at least 7 years.
    (2) A diligent search was conducted with the air of the appropriate 
authorities reasonably soon after the insured person's disappearance, 
but the search failed to locate or explain the absence of the insured 
person.
    (3) Circumstances surrounding the insured person's disappearance 
allow no reasonable explanation of that person's absence other than 
death.
    After much deliberation, we have decided that we will not adopt the 
rule published in the NPRM. This NPRM withdraws the NPRM published at 
49 FR 7405-7406 on February 29, 1984.
    In light of the Social Security Acquiescence Rulings, we are now 
administering two different standards with respect to presumption of 
death for entitlement purposes. One standard is based on our historical 
interpretation of the regulation; the other on the Social Security 
Acquiescence Rulings issued for the seven different circuits as the 
result of appellate court decisions. We have reevaluated our policies 
and are proposing to revise the existing regulation and establish a 
national policy based on the interpretation set forth by the courts.
    Also, we propose to revise the regulations to include a new section 
which will contain information on evidence which will rebut a 
presumption of death. Current regulations do not provide guidance on 
what constitutes evidence to rebut a presumption of death.
    The proposed regulations will provide that the presumption of death 
arises when the claimant establishes an individual has been absent from 
his or her residence and not heard from for 7 years. Once the 
presumption is made, the burden then shifts to us to rebut the 
presumption either by presenting evidence that the missing individual 
is still alive or by providing an explanation to account for the 
individual's absence in a manner consistent with continued life rather 
than death.
    We will remove reference to establishing no apparent reason for the 
absence from Sec. 404.721(b). We will provide rules concerning the 
rebuttal of a presumption of death in proposed Sec. 404.722, a new 
section to the regulations. This section will provide that a 
presumption of death made based on Sec. 404.721(b) will be rebutted if 
there is evidence available that the person is still alive or the 
absence can be explained in a manner consistent with continued life 
rather than death. We will also make a conforming change to 
Sec. 404.988 (conditions for reopening) to reflect the proposed change 
in Sec. 404.721(b).
    We will rescind the following Social Security Acquiescence Rulings 
by publishing a notice in the Federal Register when we publish these 
rules as final in the Federal Register AR 86-6(3); AR 86-7(5); AR 86-
8(6); AR 86-9(9); AR 86-10(10); AR 86-11(11); and AR 93-6(8).

Regulatory Procedures

Executive Order No. 12866

    We have consulted with the Office of Management and Budget (OMB) 
and determined that these proposed rules do not meet the criteria for a 
significant regulatory action under E.O. 12866. Thus, they were not 
subject to OMB review.

Regulatory Flexibility Act

    We certify that these regulations will not have a significant 
impact on a substantial number of small entities because these rules 
will only affect individuals. Therefore, a regulatory flexibility 
analysis as provided in Pub. L. 96-354, the regulatory Flexibility Act, 
is not required.

Paperwork Reduction Act

    These proposed regulations impose no new reporting or recordkeeping 
requirements requiring Office of Management and Budget clearance.

(Catalog of Federal Domestic Assistance Program Nos. 93.802, Social 
Security-Disability Insurance; 93.803, Social Security-Retirement 
Insurance; and 93.805, Social Security-Survivors Insurance.)

List of Subjects in 20 CFR 404

    Administrative practice and procedure; Aged, Blind, Death benefits; 
Old-age, Survivors, and Disability insurance; Reporting and 
recordkeeping requirements, Social Security.

    Dated: May 17, 1994.
Shirley Chater,
Commissioner of Social Security.

    Approved: July 7, 1994.
Donna E. Shalala,
Secretary of Health and Human Services.

    For the reasons set out in the preamble, we are proposing to amend 
Subparts H and J of Part 404 of 20 CFR Chapter III as follows:

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

    1. The authority citation for Subpart H of Part 404 continues to 
read as follows:

    Authority: Secs. 205(a) and 1102 of the Social Security Act; 42 
U.S.C. 405(a) and 1302.


Sec. 404.721  [Amended]

    2. Section 404.721(b) is amended by removing ``for no apparent 
reasons,'' and by removing the comma between ``from'' and ``for'' in 
the first sentence; and by removing ``If there is no evidence available 
that he or she is still alive'' in the second sentence and substituting 
the words ``If the presumption of death is not rebutted pursuant to 
Sec. 404.722'' in its place.
    3. New section 404.722 is added to read as follows:


Sec. 404.722  Rebuttal of a Presumption of Death.

    A presumption of death made based on Sec. 404.721(b) can be 
rebutted by evidence that establishes that the person is still alive or 
explains the individual's absence in a manner consistent with continued 
life rather than death.
    Example 1: Evidence in a claim for surviving child's benefits 
showed that the worker had wages posted to his earnings record in the 
year following the disappearance. It was established that the wages 
belonged to the worker and were for work done after his 
``disappearance.'' In this situation, the presumption of death is 
rebutted by evidence (wages belonging to the worker) that the person is 
still alive after the disappearance.
    Example 2: Evidence shows that the worker left the family home 
shortly after woman, whom he had been seeing, also disappeared, and 
that the worker phoned his wife several days after the disappearance to 
state he intended to begin a new life in California. In this situation 
the presumption of death is rebutted because the evidence explains the 
worker's absence in a manner consistent with continued life.
    4. The authority citation for Subpart J of Part 404 continues 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; 40 U.S.C. 401(j), 
405(a), (b), and (d)-(h), 421(d), and 1302.

    5. Paragraph (c)(4) introductory text and (c)(4)(i) of Sec. 404.988 
are revised to read as follows:


Sec. 404.988  Conditions for reopening.

* * * * *
    (c) * * *
    (4) Your claim was denied because you did not prove that a person 
died, and the death is later established--
    (i) By a presumption of death under Sec. 404.721(b); or,
    (ii) * * *
* * * * *
[FR Doc. 94-17402 Filed 7-19-94; 8:45 am]
BILLING CODE 4190-29-M