[Federal Register Volume 59, Number 168 (Wednesday, August 31, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-20519]


[[Page Unknown]]

[Federal Register: August 31, 1994]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Social Security Administration

20 CFR Parts 404 and 416

[Regulations Nos. 4 and 16]
RIN 0960-AD05

 

Deemed Application Date Based on Misinformation

AGENCY: Social Security Administration, HHS.

ACTION: Final rules.

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SUMMARY: We are adding new rules to our regulations on filing an 
application for Social Security or Supplemental Security Income (SSI) 
benefits to implement the provisions of section 10302 of the Omnibus 
Budget Reconciliation Act of 1989 (OBRA 1989), Pub. L. 101-239. Section 
10302 added sections 202(j)(5) and 1631(e)(5) of the Social Security 
Act (the Act) to provide, in general, for the establishment of a 
``deemed'' filing date of an application for benefits under title II or 
title XVI of the Act, respectively, in any case in which it is 
determined to the satisfaction of the Secretary that an individual 
failed to apply for monthly Social Security or SSI benefits because of 
misinformation provided to the individual by an officer or employee of 
the Social Security Administration (SSA) about his or her eligibility 
for the benefits. In general, sections 202(j)(5) and 1631(e)(5) provide 
that, in such a case, an individual will be ``deemed'' to have applied 
for monthly Social Security or SSI benefits, as appropriate, on the 
later of: The date the misinformation was provided to such individual; 
or the date such individual met all requirements for entitlement to or 
eligibility for such benefits, other than the requirement of filing an 
application.

EFFECTIVE DATE: These rules are effective August 31, 1994.

FOR FURTHER INFORMATION CONTACT: Henry D. Lerner, Legal Assistant, 
Office of Regulations, Social Security Administration, 6401 Security 
Blvd., Baltimore, MD 21235, (410) 965-1762.

SUPPLEMENTARY INFORMATION:

Background

    These regulations implement the provisions of section 10302 of OBRA 
1989, Pub. L. 101-239, which added sections 202(j)(5) and 1631(e)(5) of 
the Act. Sections 202(j)(5) and 1631(e)(5) of the Act provide that in 
any case in which it is determined to the satisfaction of the Secretary 
that an individual failed to apply for monthly Social Security or SSI 
benefits because of misinformation provided to such individual by an 
officer or employee of SSA relating to the individual's eligibility for 
the respective benefits, such individual will be ``deemed'' to have 
applied for monthly Social Security or SSI benefits, as the case may 
be, on the later of: (1) The date the misinformation was provided to 
such individual; or (2) the date on which such individual met all 
requirements for entitlement to Social Security benefits, or all 
requirements of eligibility for SSI benefits, as appropriate, other 
than the requirement of filing an application. The amendment relating 
to applications for monthly Social Security benefits, under section 
202(j)(5) of the Act, applies to misinformation provided after December 
31, 1982, and is effective for benefits payable for months beginning 
after that date. The amendment relating to applications for SSI 
benefits, under section 1631(e)(5) of the Act, applies to 
misinformation provided on or after December 19, 1989, the date of the 
enactment of OBRA 1989, and is effective for benefits payable for 
months after December 1989.
    We are amending our regulations on filing an application for Social 
Security or SSI benefits to include rules to implement section 10302 of 
OBRA 1989. These final regulations describe the rules for establishing 
a ``deemed'' filing date of an application for benefits under section 
202(j)(5) or 1631(e)(5) of the Act in a case in which an individual 
failed to apply for benefits because of certain misinformation provided 
to the individual by an officer or employee of SSA. Among other things, 
the regulations explain what is meant by ``misinformation'' for 
purposes of these rules, describe the kinds of evidence we will 
consider in determining whether misinformation was provided, and 
explain that a determination on a claim for benefits under these 
sections of the Act, i.e., a determination as to whether or not to 
establish a ``deemed'' filing date of an application on the basis that 
misinformation was provided which caused an individual not to apply for 
benefits, is an initial determination for purposes of administrative 
and judicial review.
    In general, our current regulations at Secs. 404.603 and 416.305(a) 
provide that to become entitled to Social Security benefits or become 
eligible to receive SSI benefits, an individual, in addition to meeting 
all other requirements, must file an application for Social Security 
benefits or for SSI benefits, as appropriate. An application must be on 
a prescribed application form and meet certain other requirements 
specified in Sec. 404.610 or Sec. 416.310.
    Current Sec. 404.614 provides, with certain exceptions, that an 
application for Social Security benefits is filed on the day it is 
received by an SSA employee at one of our offices or by an SSA employee 
who is authorized to receive it at another place. If a written 
statement indicating intent to claim Social Security benefits is filed, 
we will use the filing date of the written statement as the filing date 
of the application under the conditions described in Sec. 404.630. 
Also, if an individual telephones us and advises us that he or she 
intends to file a claim for Social Security benefits but cannot file an 
application before the end of the month, Sec. 404.630(b) provides that 
we will prepare and sign a written statement if it is necessary to 
prevent the loss of benefits.
    In the SSI program, current Sec. 416.325 provides, with certain 
exceptions, that an application for SSI benefits is considered to be 
filed on the day it is received by an SSA employee at any Social 
Security office, by someone at another Federal or State office 
designated to receive applications for us, or by a person whom we have 
authorized to receive applications for us. Also, under the conditions 
described in Secs. 416.340, 416.345 and 416.350, if we receive a 
written statement indicating an intent to claim SSI benefits or an oral 
inquiry about SSI benefits, we will use the filing date of the written 
statement or the date of the oral inquiry as the filing date of the 
application, if the use of that date will result in eligibility for 
additional benefits.
    Under these final rules, we continue to require the filing of a 
formal written application before we will make a determination on a 
claim for benefits under section 202(j)(5) or 1631(e)(5) of the Act 
based on an allegation that misinformation was provided which caused an 
individual not to apply for benefits. If we determine that such 
misinformation was provided, however, we will deem the filing date of 
the application to be the date the misinformation was provided or, if 
later, the date the claimant, i.e., the individual who is claiming 
benefits for himself or herself or the person on whose behalf benefits 
are being claimed, met all the requirements for entitlement to Social 
Security benefits or eligibility for SSI benefits, as appropriate, 
other than the requirement of filing an application.
    Under our current regulations, an application for SSI benefits is 
also an application for any applicable federally administered State 
supplementary payments under section 1616 of the Act. The current 
regulations which govern the filing of applications for SSI benefits, 
therefore, also apply to applications for these State supplementary 
payments. This is reflected in current Sec. 416.302 which provides that 
for purposes of the regulations on filing applications for SSI 
benefits, Sec. 416.301 et seq., ``[b]enefits means any payments made 
under the SSI program,'' and ``SSI benefits also include any federally 
administered State supplementary payments.'' As explained below, these 
definitions would continue to apply under the regulations which 
implement section 1631(e)(5) of the Act.
    Section 1631(e)(5) of the Act applies specifically to cases in 
which an individual failed to apply for SSI benefits because of the 
receipt of misinformation relating to eligibility for SSI benefits. 
However, because the application form and our current rules on filing 
applications are the same for both SSI claims and claims for federally 
administered State supplementary payments, we also will apply the 
provisions under section 1631(e)(5) to cases involving misinformation 
about eligibility for federally administered State supplementary 
payments. This rule is based on the authority under section 
1631(e)(1)(A) of the Act which directs the Secretary to ``prescribe 
such requirements with respect to the filing of applications * * * as 
may be necessary for the effective and efficient administration of this 
title.'' Therefore, while not required under section 1631(e)(5) of the 
Act, the final regulations will permit the establishment of a 
``deemed'' filing date of an application in situations in which an 
individual failed to file an application because we provided the 
individual misinformation about his or her eligibility for these State 
supplementary payments.

Deemed Filing Date of an Application in a Case of Misinformation

    We are adding new Secs. 404.633 and 416.351 to our regulations to 
explain the rules we will follow in implementing sections 202(j)(5) and 
1631(e)(5) of the Act, respectively. Sections 404.633(b) and 416.351(b) 
of the final regulations explain that we may establish a ``deemed'' 
filing date of an application for benefits under these sections of the 
Act if we determine to our satisfaction that--

    (1) An individual failed to apply for monthly Social Security or 
SSI benefits for himself or herself because we provided such 
individual misinformation about his or her eligibility for the 
respective benefits, including misinformation about the amount or 
payment of such benefits; or
    (2) An individual who had authority to sign an application for 
another person under Sec. 404.612 or Sec. 416.315, as appropriate, 
failed to apply for monthly Social Security or SSI benefits for that 
person because we provided the individual misinformation about such 
person's eligibility for the respective benefits, including 
misinformation about the amount or payment of such benefits.

    In the first situation, we would deem an application to have been 
filed on the date the misinformation was provided to the individual or, 
if later, the date on which such individual met all of the requirements 
for entitlement to monthly Social Security benefits or eligibility for 
SSI benefits, as the case may be, other than the requirement of filing 
an application. In the second situation, we would deem an application 
to have been filed on the date the misinformation was provided to the 
individual or, if later, the date on which the person referred to in 
item (2) above, i.e., the person on whose behalf the individual was 
inquiring about getting benefits, met all the requirements for 
entitlement to monthly Social Security benefits or eligibility for SSI 
benefits, as the case may be, other than the requirement of filing an 
application.
    The regulations explain that we will apply certain requirements and 
conditions which are specified in the regulations in making the 
determination described above, i.e., a determination as to whether 
misinformation was provided. The regulations explain that before we may 
make such a determination and establish a ``deemed'' filing date of an 
application for benefits, an application for such benefits must be 
filed with us either by the claimant, i.e., the individual in item (1) 
above or the person referred to in item (2) above, or by someone who is 
authorized to sign an application on behalf of the claimant under 
Sec. 404.612 or Sec. 416.315. The regulations also provide that if the 
claimant dies after the alleged misinformation was provided but before 
an application is filed, an application for monthly Social Security 
benefits must be filed by a person who would be qualified to receive 
any benefits due the deceased. With respect to SSI benefits, if the 
claimant dies after the alleged misinformation was provided but before 
an application is filed, a person who would be qualified under 
Sec. 416.542(b) to receive any benefits due the deceased, or someone on 
behalf of such a person, must file an application for the benefits. 
This latter provision is consistent with the provisions of our final 
regulations on ``Payment of Benefits Due Deceased Recipients,'' which 
were published in the Federal Register on October 13, 1993, at 58 FR 
52909.
    Our regulations on ``Payment of Benefits Due Deceased Recipients'' 
amended certain sections of the SSI regulations, including, as 
pertinent here, Secs. 416.340(d)(2), 416.345(e)(2), and 416.542(b), to 
implement section 8 of Pub. L. 99-643. Section 8 of Pub. L. 99-643 
amended section 1631(b)(1) of the Act to expand the circumstances under 
which SSI benefits due a deceased individual may be paid to survivors. 
Among other things, those regulations amended Secs. 416.340(d)(2) and 
416.345(e)(2) to permit, in general, a deceased claimant's surviving 
spouse or parent(s) who could receive the claimant's benefits under 
Sec. 416.542(b), or someone on behalf of such surviving spouse or 
parent(s), to file an application for SSI benefits for the claimant 
where the claimant dies after we receive a written statement indicating 
an intent to claim SSI benefits or an oral inquiry about SSI 
eligibility. The rule which we now are adding regarding who may file an 
application for SSI benefits on behalf of a claimant where the claimant 
dies after the alleged misinformation was provided, discussed above, is 
consistent with these earlier changes to the SSI regulations.
    We are amending Secs. 404.612, 404.615 and 416.310 to reflect the 
provisions of Secs. 404.633(b) and 416.351(b) concerning who may file 
an application if a claimant dies after the alleged misinformation was 
provided.
    Sections 404.633(c) and 416.351(c) explain that the provisions for 
establishing a ``deemed'' filing date of an application apply only to 
cases in which the misinformation was provided to the individual by an 
employee of SSA, including an officer of the Agency, while such person 
was acting in his or her official capacity as an employee or officer of 
the Agency. The regulations also explain that ``misinformation'' is 
information which we would consider incorrect, misleading, or 
incomplete in view of the facts which the individual gave to the 
employee, or of which the employee otherwise was aware or should have 
been aware, regarding the claimant's particular circumstances. Under 
these regulations, we will consider the information provided to be 
incomplete if the employee failed to provide the individual with 
appropriate, additional information which he or she is required to 
provide in carrying out his or her official duties. The misinformation 
may have been provided orally or in writing. However, the 
misinformation must have been provided to the individual in response to 
his or her request to us for information about applying for benefits, 
either for himself or herself or for another person for whom he or she 
could sign an application.
    We also are amending Secs. 404.614 and 416.325, which explain when 
an application for benefits is considered filed, to reflect the 
provisions of Secs. 404.633 and 416.351.

Evidence That Misinformation Was Provided

    In Secs. 404.633(d) and 416.351(d), we describe the kinds of 
evidence we will consider in determining whether misinformation was 
provided. We explain that preferred evidence is written evidence that 
relates directly to an individual's inquiry about his or her 
eligibility for benefits, or about the eligibility of another person on 
whose behalf the individual was considering applying for benefits, and 
which shows that we gave the individual misinformation which caused him 
or her not to file an application for such benefits. Preferred evidence 
includes, but is not limited to, the following--

     A notice, letter, or other document which was issued by 
SSA and addressed to the individual; and
     An SSA record of a telephone call, letter or in-person 
contact.

    In the absence of preferred evidence, we will consider other 
evidence which includes, but is not limited to, the following--

     The individual's statements about the alleged 
misinformation, including statements about the date and time of the 
alleged contact(s); how the contact was made, e.g., by telephone or 
in person; the reason(s) the contact was made; who gave the 
misinformation; and the questions asked by the individual and the 
facts the individual gave us, and the questions asked by the SSA 
employee and the information the employee gave the individual at the 
time of the contact;
     Statements from others who were present when the 
alleged misinformation was given, e.g., a neighbor who accompanied 
the individual to the SSA office;
     If the individual can identify the employee or the 
employee can recall the individual's inquiry about benefits--
    (1) Statements from the employee concerning the alleged contact, 
including statements about the questions the individual asked, the 
facts the individual gave, the questions the employee asked, and the 
information provided to the individual at the time of the alleged 
contact; and
    (2) An assessment of the likelihood that the SSA employee gave 
the alleged misinformation;
     An evaluation of the credibility and the validity of 
the individual's allegations in conjunction with other relevant 
information; and
     Any other information regarding the individual's 
alleged contact.

    We will evaluate the individual's allegations and seek 
corroboration; we will resolve reasonable doubt in the individual's 
favor if the allegation of misinformation seems credible, is supported 
by other evidence, and there is no contradictory evidence.

Information Which Does Not Constitute Satisfactory Proof That 
Misinformation Was Given

    Sections 404.633(e) and 416.351(e) explain that certain kinds of 
information will not constitute satisfactory proof that we gave the 
individual misinformation which caused him or her not to file an 
application. Examples of such information include--

     General informational pamphlets that we issue to 
provide basic program information;
     The Personal Earnings and Benefit Estimate Statement 
that is based on an individual's reported and projected earnings and 
is an estimate of Social Security benefits which can be requested at 
any time; the estimate is only a projection based on our records and 
the individual's estimated future earnings and is not necessarily 
associated with an intent to file or an inquiry about eligibility;
     The SSI Benefit Estimate Letter that is based on an 
individual's reported and projected income and is an estimate which 
can be requested at any time; the estimate is only a projection 
based on our records and the individual's estimated income and is 
not necessarily associated with an intent to file or an inquiry 
about eligibility;
     General information we review or prepare but which is 
disseminated by the media, e.g., radio, television, magazines, and 
newspapers; and
     Information concerning Social Security and SSI benefits 
provided by other governmental agencies, e.g., the Department of 
Veterans Affairs, the Department of Defense, State unemployment 
agencies, and State and local governments.

Claim for Benefits Based on Alleged Misinformation

    Under Secs. 404.633(f) and 416.351(f), an individual at any time 
may ask us to consider establishing a deemed filing date on the basis 
that misinformation was provided. However, the regulations explain that 
we will not make a determination on such a claim for benefits unless 
the following conditions are met.
    First, a claim for benefits based on an allegation that we provided 
misinformation must be made in writing. The written statement must 
explain what information was provided; how, when and where it was 
provided and by whom; and why the information caused the individual not 
to file an application for benefits.
    Second, an application for the benefits must be filed by the 
claimant or by someone who could file on behalf of the claimant. The 
application must be filed after the occurrence of the alleged 
misinformation. This application may be--

     An application on which we have made a previous final 
determination or decision awarding such benefits to the claimant, 
provided that the claimant continues to be entitled to Social 
Security benefits, or continues to be eligible for SSI benefits (or 
again could be eligible for SSI benefits), based on that 
application;
     An application on which we have made a previous final 
determination or decision denying the benefits to the claimant, but 
only if such determination or decision is reopened under 
Sec. 404.988 or Sec. 416.1488; or
     A new application on which we have not made a final 
determination or decision.

    Third, if the only issue in dispute is whether or not the alleged 
misinformation occurred, we will not make an initial determination on a 
claim for benefits under Sec. 404.633 or Sec. 416.351 unless the 
establishment of a deemed filing date of an application based on the 
alleged misinformation would result in the claimant becoming entitled 
to, or eligible for, benefits or additional benefits.
    Fourth, we will not make an initial determination on a claim for 
benefits under Sec. 404.633 or Sec. 416.351 if we have made a previous 
determination or decision on a claim for benefits based on the alleged 
misinformation which involved the same party(ies), the same facts and 
the same issues, and this previous determination or decision has become 
final. This rule does not apply, however, if the previous final 
determination or decision may be reopened under Sec. 404.988 or 
Sec. 416.1488.
    We are amending Secs. 404.903 and 416.1403 to explain that if we 
decline to make an initial determination on a claim for benefits based 
on an allegation of misinformation because one or more of the 
conditions specified above are not met, our action is not an initial 
determination for purposes of our administrative review process or 
judicial review. We also are amending Secs. 404.902 and 416.1402 to 
make it clear that if we make a determination on a claim for benefits 
based on an allegation of misinformation, the determination is an 
initial determination subject to administrative and judicial review 
under Sec. 404.900 et seq. or Sec. 416.1400 et seq.

Public Comments

    We published proposed rules in the Federal Register on October 16, 
1992, 57 FR 47415. We gave interested parties 60 days to submit 
comments. We also published an amendment to the proposed rules on 
January 22, 1993, 58 FR 5687, and we gave interested parties another 60 
days to submit comments on the proposed rules, as amended. We received 
comments from four commenters: a public policy research center 
concerned with child health care, a State public health agency 
employee, and two attorneys who represent claimants and beneficiaries.
    One commenter supported the proposed rules without modification. 
Another commenter supported the proposed rules but recommended that 
another example of a situation involving misinformation be included in 
the rules. The other commenters believed that the proposed rules should 
be expanded to cover certain other situations in which an individual 
failed to file an application for benefits. In addition, while 
commending the proposed rules, two of the commenters recommended that 
SSA also take steps to ensure that Agency employees provide correct 
information to potential applicants when they inquire about eligibility 
for benefits. A summary of the comments and our responses to the 
comments are provided below.
    We considered carefully all of the substantive comments which we 
received on the proposed rules. However, for the reasons explained 
below, we did not make any changes to the proposed rules other than 
certain editorial changes discussed below. Therefore, except for some 
editorial changes, these final rules are the same as the proposed 
rules.
    Comment: One commenter recommended that the proposed rules be 
expanded to include an example of a situation in which an individual, 
such as a parent, inquires about filing an application on behalf of a 
child for SSI benefits based on disability or blindness and is provided 
misinformation by SSA about the child's eligibility for benefits which 
causes the individual not to file an application for the benefits. This 
commenter also stated that often a parent of a child who may be 
disabled or blind contacts SSA to inquire about SSI benefits for the 
child at the suggestion of a child advocate, case manager or hospital 
social worker. The commenter believed that these case workers can serve 
as sources to corroborate dates and facts of the contact in cases of 
alleged misinformation since parents in these situations usually 
recontact the case worker to advise the worker that they were dissuaded 
from applying for benefits because of the information which SSA 
provided to them about the child's eligibility.
    Response: The examples in Sec. 416.351(a) are intended simply to 
illustrate situations in which misinformation provided by an SSA 
employee concerning a potential claimant's eligibility for SSI benefits 
causes an individual not to file an application for the benefits. The 
examples are not intended to cover all situations involving alleged 
misinformation or all categories of SSI benefits. Existing 
Sec. 416.315(b) provides that an application for SSI benefits for a 
claimant who is under age 18 may be signed by an individual who is 
responsible for the care of the claimant, including a relative, or by 
certain other individuals described in that section. In 
Sec. 416.351(b)(2)(i) of the final regulations, we explain that if an 
individual had authority under Sec. 416.315 to sign an application for 
benefits for another person, and we determined that the individual 
failed to apply for SSI benefits for that person because we gave the 
individual misinformation about that person's eligibility for such 
benefits, we will deem an application for the benefits to have been 
filed on the date specified in Sec. 416.351(b)(2)(i) (A) or (B), as 
appropriate. Section 416.351(b)(2)(i) makes it clear that the rules for 
establishing a deemed filing date of an application for benefits based 
on misinformation apply to cases in which a parent, or other individual 
authorized to sign an application for a child, failed to apply for SSI 
benefits for a child because we gave the parent, or such other 
individual, misinformation about the child's eligibility for SSI 
benefits. Section 404.633(b)(2)(i) of the final regulations provides 
similar rules with respect to claims for Social Security benefits. We 
do not believe that it is necessary, therefore, to add an example to 
the regulations to cover the specific situation in which an individual 
failed to apply for benefits on behalf of a child because we gave the 
individual misinformation about the child's eligibility for the 
benefits.
    We agree with the commenter that in some circumstances a child 
advocate, case manager or hospital social worker may be able to provide 
information regarding an individual's alleged contact with SSA. Under 
Secs. 404.633(f) and 416.351(f), an individual who makes a claim for 
benefits based on alleged misinformation must furnish information that 
will enable us to determine if we did provide misinformation to the 
individual about his or her eligibility for benefits, or the 
eligibility of a person on whose behalf the individual was considering 
applying for benefits, which caused the individual not to file an 
application for the benefits. Preferred evidence of such misinformation 
is written evidence, such as a letter, which shows that we gave the 
individual misinformation which caused the individual not to file an 
application. In the absence of preferred evidence, we will consider 
other evidence, including the individual's statements about the alleged 
misinformation as well as ``[a]ny other information regarding [the 
individual's] * * * alleged contact,'' as explained in 
Secs. 404.633(d)(2) and 416.351(d)(2). This would include statements 
provided by a case worker concerning the individual's alleged contact.
    Comment: A commenter expressed the view that the proposed 
regulations do not address the situation in which an individual who 
might be eligible for Social Security and SSI benefits files an 
application for Social Security benefits but does not ask about or 
express interest in SSI benefits and does not file an application for 
those benefits at that time. The commenter suggested that the proposed 
rules be amended to provide for the use of the filing date of the 
application for Social Security benefits in such a case to establish 
the filing date of an application for SSI benefits.
    Response: Existing Secs. 416.345 and 416.350, which are not 
affected by these final rules, already address the situation discussed 
by the commenter. Section 416.350 provides that when an individual 
applies for Social Security benefits, we will explain the requirements 
for eligibility for SSI benefits to the individual and give the 
individual a chance to file an SSI application if it appears that he or 
she might be eligible for SSI benefits as explained in that section. If 
the individual does not apply for SSI benefits at that time, 
Sec. 416.350 provides that we will treat his or her filing of an 
application for Social Security benefits as an oral inquiry about SSI 
benefits for purposes of Sec. 416.345. The filing date of the 
individual's Social Security application, therefore, may be used to 
establish the filing date of an SSI application in accordance with 
Sec. 416.345. For these reasons, we did not adopt the change suggested 
by the commenter.
    Comment: One commenter questioned the requirement of proposed 
Secs. 404.633(c)(4) and 416.351(c)(4) that ``[t]he misinformation must 
have been provided to you in response to a specific request by you to 
us for information about your eligibility for benefits or the 
eligibility for benefits of [another] * * * person * * * for which you 
were considering filing an application.'' The commenter believed that 
this provision, as well as proposed Secs. 404.633(a) and 416.351(a), 
would require an individual who requests a deemed filing date of an 
application based on misinformation to show that he or she had a 
specific intent to claim benefits at the time the alleged 
misinformation was provided. The commenter believed that such a 
requirement would be inconsistent with section 10302 of OBRA 1989.
    It was the commenter's opinion that in enacting this statute, 
Congress intended to place an affirmative duty on SSA to develop or 
encourage claims that could be filed, at least where a potential 
applicant presents material facts to the Agency and an employee makes 
an incorrect or incomplete response. Therefore, the commenter believed 
that the proposed rules should be revised to permit the establishment 
of a deemed filing date of an application where an individual does not 
inquire about possible eligibility for benefits but simply presents 
information to the Agency that might have alerted an SSA employee to a 
potential claim, and, because the employee does not consider and does 
not advise the individual of the potential claim, the individual does 
not file an application for benefits. As an illustration, the commenter 
described a situation in which information showing that a disability 
insurance beneficiary had children who were born after the beneficiary 
began receiving disability benefits and who, upon the filing of the 
required applications, could become entitled to child's insurance 
benefits based on the beneficiary's earnings record, was overlooked 
during a continuing disability review interview with the beneficiary.
    Response: Sections 404.633(c)(4) and 416.351(c)(4) prescribe the 
circumstances in which the misinformation must have been provided in 
order to have caused the individual not to file an application for 
benefits. These sections do not require an individual to show that he 
or she had the express intention of filing an application for benefits 
at the time he or she was provided the alleged misinformation. Rather, 
these sections provide only that the alleged misinformation must have 
been provided in a situation in which the individual was considering 
applying for benefits and contacted SSA to inquire about his or her 
eligibility for benefits or the eligibility of another person for whom 
the individual had authority to sign an application. We believe this 
requirement, which is also reflected in Secs. 404.633(a) and 
416.351(a), is consistent with sections 202(j)(5) and 1631(e)(5) of the 
Act, which were added by section 10302 of OBRA 1989.
    Sections 202(j)(5) and 1631(e)(5) of the Act do not provide for a 
deemed filing date of an application for benefits in the situation 
described by the commenter. These sections provide for a deemed filing 
date when:

    * * * it is determined to the satisfaction of the Secretary that 
an individual failed as of any date to apply for [Social Security or 
SSI] benefits * * * by reason of misinformation provided to such 
individual by any officer or employee of the Social Security 
Administration relating to such individual's eligibility for [the 
respective] benefits * * *.

To be accorded a deemed filing date under these sections of the Act, an 
individual must demonstrate to our satisfaction that his or her failure 
to apply for benefits was due to misinformation which was communicated 
to that individual by an officer or employee of SSA and which concerned 
that individual's eligibility for the benefits. There must be a 
satisfactory showing that the failure to apply for benefits was the 
direct result of such misinformation. For this purpose, we require in 
Secs. 404.633(c)(4) and 416.351(c)(4) that the misinformation must have 
been provided to an individual in response to his or her request to us 
for information about his or her eligibility for benefits, or the 
eligibility for benefits of another person, for which he or she was 
considering filing an application.
    Comment: While expressing strong support for the proposed rules, 
one commenter urged that efforts be made by SSA to ensure that 
misinformation is not disseminated from SSA field offices or 
teleservice centers. Another commenter who supported the proposed rules 
recommended that SSA establish a monitoring process to identify sources 
of misinformation and implement strategies to correct any problems that 
are found.
    Response: We are committed to ensuring that we provide the highest 
quality service possible to the public in a courteous, timely and 
accurate manner. We already have put into place procedures for 
monitoring the service provided to the public and for addressing 
problems discovered in the delivery of service by our employees. As 
part of this effort, employees are instructed to answer all calls by 
identifying their Agency, followed by their full name or a title and 
last name for identification purposes. In addition, ongoing training is 
conducted, incoming telephone calls are randomly monitored, in-office 
interviews are monitored, and quality reviews are conducted. We believe 
that these measures to protect the public from being given 
misinformation will help to ensure that potential applicants are 
provided timely and accurate information.

Changes to the Proposed Rules

    In Secs. 404.633(b)(2)(ii) and 416.351(b)(2)(ii) of the final 
rules, we are revising the phrase ``Before we may consider 
establishing'' which was used in the corresponding sections of the 
proposed rules. We are changing the phrase to ``Before we may 
establish'' to conform to the wording of Secs. 404.633(b)(1)(ii) and 
416.351(b)(1)(ii). This is simply an editorial change to make the 
provisions of the final rules consistent. The final rules also reflect 
a few other nonsubstantive changes to the proposed rules.

Regulatory Procedures

Executive Order 12866

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

Paperwork Reduction Act

    These regulations contain information collection requirements in 
Secs. 404.633(f) and 416.351(f). We ordinarily would seek approval of 
these requirements from OMB under the Paperwork Reduction Act. We are 
not doing so in this situation because we already have clearance from 
OMB to collect this information using form SSA-795 (OMB No. 0960-0045).
    Public reporting burden for this collection of information is 
estimated to average 15 minutes per response. This includes the time it 
will take to read the instructions, gather the necessary facts, and 
provide the information. We expect approximately 1,000 claimants or 
applicants to complete form SSA-795 annually, and estimate the total 
burden to be 250 hours. If you have any comments or suggestions on this 
estimate, write to the Social Security Administration, Attn: Reports 
Clearance Officer, 1-A-21 Operations Building, Baltimore, MD 21235, and 
to the Office of Management and Budget, Paperwork Reduction Project 
(0960-0045), Washington, DC 20503.

Regulatory Flexibility Act

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

(Catalog of Federal Domestic Assistance Program Nos. 93.802, Social 
Security-Disability Insurance; 93.803, Social Security-Retirement 
Insurance; 93.805, Social Security-Survivors Insurance; 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: June 28, 1994.
Shirley S. Chater,
Commissioner of Social Security.
    Approved: August 11, 1994.


Donna E. Shalala,

Secretary of Health and Human Services.

    For the reasons set out in the preamble, Parts 404 and 416 of 
Chapter III of Title 20 of the Code of Federal Regulations are amended 
as set forth below.

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

    20 CFR Part 404, Subparts G and J are amended as follows:
    1. The authority citation for Subpart G continues to read as 
follows:

    Authority: Secs. 202(i), (j), (o), (p), and (r), 205(a), 
216(i)(2), 223(b), 228(a), and 1102 of the Social Security Act; 42 
U.S.C. 402(i), (j), (o), (p), and (r), 405(a), 416(i)(2), 423(b), 
428(a), and 1302.

    2. Section 404.612 is amended by redesignating paragraph (g) as 
paragraph (h) and by adding a new paragraph (g) to read as follows:


Sec. 404.612  Who may sign an application.

* * * * *
    (g) If a person who could receive benefits on the basis of a 
``deemed'' filing date of an application under Sec. 404.633(b)(1)(i) or 
(b)(2)(i) dies before an application for the benefits is filed, the 
application may be signed by a person who would be qualified to receive 
any benefits due the deceased person as explained in 
Sec. 404.633(b)(1)(ii) and (b)(2)(ii).
* * * * *
    3. Section 404.614 is amended by revising paragraph (a) to read as 
follows:


Sec. 404.614  When an application or other form is considered filed.

    (a) General rule. Except as otherwise provided in paragraph (b) of 
this section and in Secs. 404.630 through 404.633 which relate to the 
filing date of an application, an application for benefits, or a 
written statement, request, or notice is filed on the day it is 
received by an SSA employee at one of our offices or by an SSA employee 
who is authorized to receive it at a place other than one of our 
offices.
* * * * *
    4. Section 404.615 is amended by adding paragraph (d) to read as 
follows:


Sec. 404.615  Claimant must be alive when an application is filed.

* * * * *
    (d) If a person who could receive benefits on the basis of a 
``deemed'' filing date of an application under Sec. 404.633(b)(1)(i) or 
(b)(2)(i) dies before an application for the benefits is filed, the 
application may be signed by a person who would be qualified to receive 
any benefits due the deceased person as explained in 
Sec. 404.633(b)(1)(ii) and (b)(2)(ii).
    5. A new undesignated heading and a new Sec. 404.633 are added to 
read as follows:

Deemed Filing Date Based on Misinformation


Sec. 404.633  Deemed filing date in a case of misinformation.

    (a) General. You may have considered applying for monthly benefits 
for yourself or for another person, and you may have contacted us in 
writing, by telephone or in person to inquire about filing an 
application for these benefits. It is possible that in responding to 
your inquiry, we may have given you misinformation about your 
eligibility for such benefits, or the eligibility of the person on 
whose behalf you were considering applying for benefits, which caused 
you not to file an application at that time. If this happened, and 
later an application for such benefits is filed with us, we may 
establish an earlier filing date under this section.
    Example 1: Mrs. Smith, a widow of an insured individual, contacts a 
Social Security office when she reaches age 60 to inquire about 
applying for widow's insurance benefits. She is told by an SSA employee 
that she must be age 62 to be eligible for these benefits. This 
information, which was incorrect, causes Mrs. Smith not to file an 
application for benefits. When Mrs. Smith reaches age 62, she again 
contacts a Social Security office to ask about filing for widow's 
insurance benefits and learns that she could have received the benefits 
at age 60. She files an application for these benefits, provides the 
information required under paragraph (f) of this section to show that 
an SSA employee provided misinformation, and requests a deemed filing 
date based on the misinformation which she received from an SSA 
employee when she was age 60.
    Example 2: Ms. Hill, a 22-year-old, is forced to stop work because 
of illness. When she contacts a Social Security office to inquire about 
applying for disability insurance benefits, she is told by an SSA 
employee that she must have 20 quarters of coverage out of the last 40 
calendar quarters to be insured for disability insurance benefits. The 
employee fails to consider the special rules for insured status for 
persons who become disabled before age 31 and, consequently, tells Ms. 
Hill that she is not insured because she only has 16 quarters of 
coverage. The misinformation causes Ms. Hill not to file an application 
for disability insurance benefits. Because of her illness, she is 
unable to return to work. A year later, Ms. Hill reads an article that 
indicates that there are special rules for insured status for young 
workers who become disabled. She again contacts a Social Security 
office to inquire about benefits based on disability and learns that 
she was misinformed earlier about her insured status. She files an 
application for disability insurance benefits, provides the information 
required under paragraph (f) of this section to show that an SSA 
employee provided misinformation, and requests a deemed filing date 
based on the misinformation provided to her earlier.
    (b) Deemed filing date of an application based on misinformation. 
Subject to the requirements and conditions in paragraphs (c) through 
(g) of this section, we may establish a deemed filing date of an 
application for monthly benefits under the following provisions.
    (1)(i) If we determine that you failed to apply for monthly 
benefits for yourself because we gave you misinformation about your 
eligibility for such benefits, we will deem an application for such 
benefits to have been filed with us on the later of--
    (A) The date on which the misinformation was provided to you; or
    (B) The date on which you met all of the requirements for 
entitlement to such benefits, other than the requirement of filing an 
application.
    (ii) Before we may establish a deemed filing date of an application 
for benefits for you under paragraph (b)(1)(i) of this section, you or 
a person described in Sec. 404.612 must file an application for such 
benefits. If you die before an application for the benefits is filed 
with us, we will consider establishing a deemed filing date of an 
application for such benefits only if an application for the benefits 
is filed with us by a person who would be qualified to receive any 
benefits due you.
    (2)(i) If you had authority under Sec. 404.612 to sign an 
application for benefits for another person, and we determine that you 
failed to apply for monthly benefits for that person because we gave 
you misinformation about that person's eligibility for such benefits, 
we will deem an application for such benefits to have been filed with 
us on the later of--
    (A) The date on which the misinformation was provided to you; or
    (B) The date on which the person met all of the requirements for 
entitlement to such benefits, other than the requirement of filing an 
application.
    (ii) Before we may establish a deemed filing date of an application 
for benefits for the person under paragraph (b)(2)(i) of this section, 
you, such person, or another person described in Sec. 404.612 must file 
an application for such benefits. If the person referred to in 
paragraph (b)(2)(i) of this section dies before an application for the 
benefits is filed with us, we will consider establishing a deemed 
filing date of an application for such benefits only if an application 
for the benefits is filed with us by a person who would be qualified to 
receive any benefits due the deceased person.
    (c) Requirements concerning the misinformation. We apply the 
following requirements for purposes of paragraph (b) of this section.
    (1) The misinformation must have been provided to you by one of our 
employees while he or she was acting in his or her official capacity as 
our employee. For purposes of this section, an employee includes an 
officer of SSA.
    (2) Misinformation is information which we consider to be 
incorrect, misleading, or incomplete in view of the facts which you 
gave to the employee, or of which the employee was aware or should have 
been aware, regarding your particular circumstances, or the particular 
circumstances of the person referred to in paragraph (b)(2)(i) of this 
section. In addition, for us to find that the information you received 
was incomplete, the employee must have failed to provide you with the 
appropriate, additional information which he or she would be required 
to provide in carrying out his or her official duties.
    (3) The misinformation may have been provided to you orally or in 
writing.
    (4) The misinformation must have been provided to you in response 
to a specific request by you to us for information about your 
eligibility for benefits or the eligibility for benefits of the person 
referred to in paragraph (b)(2)(i) of this section for which you were 
considering filing an application.
    (d) Evidence that misinformation was provided. We will consider the 
following evidence in making a determination under paragraph (b) of 
this section.
    (1) Preferred evidence. Preferred evidence is written evidence 
which relates directly to your inquiry about your eligibility for 
benefits or the eligibility of another person and which shows that we 
gave you misinformation which caused you not to file an application. 
Preferred evidence includes, but is not limited to, the following--
    (i) A notice, letter or other document which was issued by us and 
addressed to you; or
    (ii) Our record of your telephone call, letter or in-person 
contact.
    (2) Other evidence. In the absence of preferred evidence, we will 
consider other evidence, including your statements about the alleged 
misinformation, to determine whether we gave you misinformation which 
caused you not to file an application. We will not find that we gave 
you misinformation, however, based solely on your statements. Other 
evidence which you provide or which we obtain must support your 
statements. Evidence which we will consider includes, but is not 
limited to, the following--
    (i) Your statements about the alleged misinformation, including 
statements about--
    (A) The date and time of the alleged contact(s);
    (B) How the contact was made, e.g., by telephone or in person;
    (C) The reason(s) the contact was made;
    (D) Who gave the misinformation; and
    (E) The questions you asked and the facts you gave us, and the 
questions we asked and the information we gave you, at the time of the 
contact;
    (ii) Statements from others who were present when you were given 
the alleged misinformation, e.g., a neighbor who accompanied you to our 
office;
    (iii) If you can identify the employee or the employee can recall 
your inquiry about benefits--
    (A) Statements from the employee concerning the alleged contact, 
including statements about the questions you asked, the facts you gave, 
the questions the employee asked, and the information provided to you 
at the time of the alleged contact; and
    (B) Our assessment of the likelihood that the employee provided the 
alleged misinformation;
    (iv) An evaluation of the credibility and the validity of your 
allegations in conjunction with other relevant information; and
    (v) Any other information regarding your alleged contact.
    (e) Information which does not constitute satisfactory proof that 
misinformation was given. Certain kinds of information will not be 
considered satisfactory proof that we gave you misinformation which 
caused you not to file an application. Examples of such information 
include--
    (1) General informational pamphlets that we issue to provide basic 
program information;
    (2) The Personal Earnings and Benefit Estimate Statement that is 
based on an individual's reported and projected earnings and is an 
estimate which can be requested at any time;
    (3) General information which we review or prepare but which is 
disseminated by the media, e.g., radio, television, magazines, and 
newspapers; and
    (4) Information provided by other governmental agencies, e.g., the 
Department of Veterans Affairs, the Department of Defense, State 
unemployment agencies, and State and local governments.
    (f) Claim for benefits based on misinformation. You may make a 
claim for benefits based on misinformation at any time. Your claim must 
contain information that will enable us to determine if we did provide 
misinformation to you about your eligibility for benefits, or the 
eligibility of a person on whose behalf you were considering applying 
for benefits, which caused you not to file an application for the 
benefits. Specifically, your claim must be in writing and it must 
explain what information was provided; how, when and where it was 
provided and by whom; and why the information caused you not to file an 
application. If you give us this information, we will make a 
determination on such a claim for benefits if all of the following 
conditions are also met.
    (1) An application for the benefits described in paragraph 
(b)(1)(i) or (b)(2)(i) of this section is filed with us by someone 
described in paragraph (b)(1)(ii) or (b)(2)(ii) of this section, as 
appropriate. The application must be filed after the alleged 
misinformation was provided. This application may be--
    (i) An application on which we have made a previous final 
determination or decision awarding the benefits, but only if the 
claimant continues to be entitled to benefits based on that 
application;
    (ii) An application on which we have made a previous final 
determination or decision denying the benefits, but only if such 
determination or decision is reopened under Sec. 404.988; or
    (iii) A new application on which we have not made a final 
determination or decision.
    (2) The establishment of a deemed filing date of an application for 
benefits based on misinformation could result in the claimant becoming 
entitled to benefits or to additional benefits.
    (3) We have not made a previous final determination or decision to 
which you were a party on a claim for benefits based on alleged 
misinformation involving the same facts and issues. This provision does 
not apply, however, if the final determination or decision may be 
reopened under Sec. 404.988.
    (g) Effective date. This section applies only to misinformation 
which we provided after December 1982. In addition, this section is 
effective only for benefits payable for months after December 1982.

    6. The authority citation for Subpart J is revised to read as 
follows:

    Authority: Secs. 201(j), 205 (a), (b), (d)-(h), and (j), 221(d), 
and 1102 of the Social Security Act; 31 U.S.C. 3720A; 42 U.S.C. 
401(j), 405 (a), (b), (d)-(h), and (j), 421(d), and 1302.

    7. Section 404.902 is amended by removing ``and'' following the 
semicolon at the end of paragraph (t), by inserting a semicolon in 
place of the period at the end of paragraph (u) and adding ``and'' 
following such semicolon, and by adding a new paragraph (v) to read as 
follows:


Sec. 404.902  Administrative actions that are initial determinations.

* * * * *
    (v) A claim for benefits under Sec. 404.633 based on alleged 
misinformation.

    8. Section 404.903 is amended by removing ``and'' following the 
semicolon at the end of paragraph (l), by inserting semicolons in place 
of the periods at the end of paragraphs (m), (n), (o), (p) and (q), by 
adding ``and'' following such semicolon at the end of paragraph (q), by 
inserting ``procedure (see'' in place of ``procedure. (See'' in 
paragraph (p), by inserting ``payee (see'' in place of ``payee. (See'' 
in paragraph (q), and by adding a new paragraph (r) to read as follows:

Sec. 404.903  Administrative actions that are not initial 
determinations.

* * * * *
    (r) Declining under Sec. 404.633(f) to make a determination on a 
claim for benefits based on alleged misinformation because one or more 
of the conditions specified in Sec. 404.633(f) are not met.

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

    20 CFR Part 416, Subparts C and N are amended as follows:
    1. The authority citation for Subpart C of Part 416 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, and 1383 (a), (d), and 
(e).

    2. Section 416.310 is amended by revising paragraph (d) to read as 
follows:


Sec. 416.310  What makes an application a claim for benefits.

* * * * *
    (d) The claimant must be alive at the time the application is 
filed. See Secs. 416.340, 416.345, and 416.351 for exceptions.

    3. Section 416.325 is amended by adding a new paragraph (b)(3) to 
read as follows:


Sec. 416.325  When an application is considered filed.

* * * * *
    (b) * * *
    (3) We will establish a ``deemed'' filing date of an application in 
a case of misinformation under the conditions described in 
Sec. 416.351. The filing date of the application will be a date 
determined under Sec. 416.351(b).
    4. A new undesignated heading and a new Sec. 416.351 are added to 
read as follows:

Deemed Filing Date Based on Misinformation


Sec. 416.351  Deemed filing date in a case of misinformation.

    (a) General. You may have considered applying for SSI benefits for 
yourself or for another person, and you may have contacted us in 
writing, by telephone or in person to inquire about filing an 
application for these benefits. It is possible that in responding to 
your inquiry, we may have given you misinformation about your 
eligibility for such benefits, or the eligibility of the person on 
whose behalf you were considering applying for benefits, which caused 
you not to file an application at that time. If this happened, and 
later an application for such benefits is filed with us, we may 
establish an earlier filing date under this section.
    Example 1: Ms. Jones calls a Social Security office to inquire 
about filing an application for SSI benefits. During her conversation 
with an SSA employee, she tells the employee about her resources. The 
SSA employee tells Ms. Jones that because her countable resources are 
above the allowable limit, she would be ineligible for SSI benefits. 
The employee fails to consider certain resource exclusions under the 
SSI program which would have reduced Ms. Jones' countable resources 
below the allowable limit, making her eligible for benefits. Because 
Ms. Jones thought that she would be ineligible, she decides not to file 
an application for SSI benefits. Ms. Jones later reads about resource 
exclusions under the SSI program. She recontacts the Social Security 
office to file an SSI application, and alleges that she had been 
previously misinformed about her eligibility for SSI benefits. She 
files an application for SSI benefits, provides the information 
required under paragraph (f) of this section to show that an SSA 
employee provided misinformation, and requests a deemed filing date 
based upon her receipt of misinformation.
    Example 2: Mr. Adams resides in a State which provides State 
supplementary payments that are administered by SSA under the SSI 
program. He telephones a Social Security office and tells an SSA 
employee that he does not have enough income to live on and wants to 
file for SSI benefits. Mr. Adams states that his only income is his 
monthly Social Security benefit check. The SSA employee checks Mr. 
Adams' Social Security record and advises him that he is ineligible for 
SSI benefits based on the amount of his monthly Social Security 
benefit. The employee does not consider whether Mr. Adams would be 
eligible for State supplementary payments. Because Mr. Adams was told 
that he would not be eligible for benefits under the SSI program, he 
does not file an application. The employee does not make a record of 
Mr. Adams' oral inquiry or take any other action. A year later, Mr. 
Adams speaks to a neighbor who receives the same Social Security 
benefit amount that Mr. Adams does, but also receives payments under 
the SSI program. Thinking the law may have changed, Mr. Adams 
recontacts a Social Security office and learns from an SSA employee 
that he would be eligible for State supplementary payments under the 
SSI program and that he could have received these payments earlier had 
he filed an application. Mr. Adams explains that he did not file an 
application earlier because he was told by an SSA employee that he was 
not eligible for SSI benefits. Mr. Adams files an application for the 
benefits, provides the information required under paragraph (f) of this 
section to show that an SSA employee provided misinformation, and 
requests a deemed filing date based on the misinformation provided to 
him earlier.
    (b) Deemed filing date of an application based on misinformation. 
Subject to the requirements and conditions in paragraphs (c) through 
(g) of this section, we may establish a deemed filing date of an 
application for SSI benefits under the following provisions.
    (1)(i) If we determine that you failed to apply for SSI benefits 
for yourself because we gave you misinformation about your eligibility 
for such benefits, we will deem an application for such benefits to 
have been filed with us on the later of--
    (A) The date on which the misinformation was provided to you; or
    (B) The date on which you met all of the requirements for 
eligibility for such benefits, other than the requirement of filing an 
application.
    (ii) Before we may establish a deemed filing date of an application 
for benefits for you under paragraph (b)(1)(i) of this section, you or 
a person described in Sec. 416.315 must file an application for such 
benefits. If you die before an application for the benefits is filed 
with us, we will consider establishing a deemed filing date of an 
application for such benefits only if a person who would be qualified 
under Sec. 416.542(b) to receive any benefits due you, or someone on 
his or her behalf, files an application for the benefits.
    (2)(i) If you had authority under Sec. 416.315 to sign an 
application for benefits for another person, and we determine that you 
failed to apply for SSI benefits for that person because we gave you 
misinformation about that person's eligibility for such benefits, we 
will deem an application for such benefits to have been filed with us 
on the later of--
    (A) The date on which the misinformation was provided to you; or
    (B) The date on which the person met all of the requirements for 
eligibility for such benefits, other than the requirement of filing an 
application.
    (ii) Before we may establish a deemed filing date of an application 
for benefits for the person under paragraph (b)(2)(i) of this section, 
you, such person, or another person described in Sec. 416.315 must file 
an application for such benefits. If the person referred to in 
paragraph (b)(2)(i) of this section dies before an application for the 
benefits is filed with us, we will consider establishing a deemed 
filing date of an application for such benefits only if a person who 
would be qualified under Sec. 416.542(b) to receive any benefits due 
the deceased person, or someone on his behalf, files an application for 
the benefits.
    (c) Requirements concerning the misinformation. We apply the 
following requirements for purposes of paragraph (b) of this section.
    (1) The misinformation must have been provided to you by one of our 
employees while he or she was acting in his or her official capacity as 
our employee. For purposes of this section, an employee includes an 
officer of SSA.
    (2) Misinformation is information which we consider to be 
incorrect, misleading, or incomplete in view of the facts which you 
gave to the employee, or of which the employee was aware or should have 
been aware, regarding your particular circumstances, or the particular 
circumstances of the person referred to in paragraph (b)(2)(i) of this 
section. In addition, for us to find that the information you received 
was incomplete, the employee must have failed to provide you with the 
appropriate, additional information which he or she would be required 
to provide in carrying out his or her official duties.
    (3) The misinformation may have been provided to you orally or in 
writing.
    (4) The misinformation must have been provided to you in response 
to a specific request by you to us for information about your 
eligibility for benefits or the eligibility for benefits of the person 
referred to in paragraph (b)(2)(i) of this section for which you were 
considering filing an application.
    (d) Evidence that misinformation was provided. We will consider the 
following evidence in making a determination under paragraph (b) of 
this section.
    (1) Preferred evidence. Preferred evidence is written evidence 
which relates directly to your inquiry about your eligibility for 
benefits or the eligibility of another person and which shows that we 
gave you misinformation which caused you not to file an application. 
Preferred evidence includes, but is not limited to, the following--
    (i) A notice, letter, or other document which was issued by us and 
addressed to you; or
    (ii) Our record of your telephone call, letter, or in-person 
contact.
    (2) Other evidence. In the absence of preferred evidence, we will 
consider other evidence, including your statements about the alleged 
misinformation, to determine whether we gave you misinformation which 
caused you not to file an application. We will not find that we gave 
you misinformation, however, based solely on your statements. Other 
evidence which you provide or which we obtain must support your 
statements. Evidence which we will consider includes, but is not 
limited to, the following--
    (i) Your statements about the alleged misinformation, including 
statements about--
    (A) The date and time of the alleged contact(s);
    (B) How the contact was made, e.g., by telephone or in person;
    (C) The reason(s) the contact was made;
    (D) Who gave the misinformation; and
    (E) The questions you asked and the facts you gave us, and the 
questions we asked and the information we gave you at the time of the 
contact;
    (ii) Statements from others who were present when you were given 
the alleged misinformation, e.g., a neighbor who accompanied you to our 
office;
    (iii) If you can identify the employee or the employee can recall 
your inquiry about benefits--
    (A) Statements from the employee concerning the alleged contact, 
including statements about the questions you asked, the facts you gave, 
the questions the employee asked, and the information provided to you 
at the time of the alleged contact; and
    (B) Our assessment of the likelihood that the employee provided the 
alleged misinformation;
    (iv) An evaluation of the credibility and the validity of your 
allegations in conjunction with other relevant information; and
    (v) Any other information regarding your alleged contact.
    (e) Information which does not constitute satisfactory proof that 
misinformation was given. Certain kinds of information will not be 
considered satisfactory proof that we gave you misinformation which 
caused you not to file an application. Examples of such information 
include--
    (1) General informational pamphlets that we issue to provide basic 
program information;
    (2) The SSI Benefit Estimate Letter that is based on an 
individual's reported and projected income and is an estimate which can 
be requested at any time;
    (3) General information which we review or prepare but which is 
disseminated by the media, e.g., radio, television, magazines, and 
newspapers; and
    (4) Information provided by other governmental agencies, e.g., the 
Department of Veterans Affairs, the Department of Defense, State 
unemployment agencies, and State and local governments.
    (f) Claim for benefits based on misinformation. You may make a 
claim for benefits based on misinformation at any time. Your claim must 
contain information that will enable us to determine if we did provide 
misinformation to you about your eligibility for SSI benefits, or the 
eligibility of a person on whose behalf you were considering applying 
for benefits, which caused you not to file an application for the 
benefits. Specifically, your claim must be in writing and it must 
explain what information was provided; how, when, and where it was 
provided and by whom; and why the information caused you not to file an 
application. If you give us this information, we will make a 
determination on such a claim for benefits if all of the following 
conditions are also met.
    (1) An application for the benefits described in paragraph 
(b)(1)(i) or (b)(2)(i) of this section is filed with us by someone 
described in paragraph (b)(1)(ii) or (b)(2)(ii) of this section, as 
appropriate. The application must be filed after the alleged 
misinformation was provided. This application may be--
    (i) An application on which we have made a previous final 
determination or decision awarding the benefits, but only if the 
claimant continues to be eligible for benefits (or again could be 
eligible for benefits) based on that application;
    (ii) An application on which we have made a previous final 
determination or decision denying the benefits, but only if such 
determination or decision is reopened under Sec. 416.1488; or
    (iii) A new application on which we have not made a final 
determination or decision.
    (2) The establishment of a deemed filing date of an application for 
benefits based on misinformation could result in the claimant becoming 
eligible for benefits or for additional benefits.
    (3) We have not made a previous final determination or decision to 
which you were a party on a claim for benefits based on alleged 
misinformation involving the same facts and issues. This provision does 
not apply, however, if the final determination or decision may be 
reopened under Sec. 416.1488.
    (g) Effective date. This section applies only to misinformation 
which we provided on or after December 19, 1989. In addition, this 
section is effective only for benefits payable for months after 
December 1989.
    5. The authority citation for Subpart N continues to read as 
follows:

    Authority: Secs. 1102, 1631, and 1633 of the Social Security 
Act; 42 U.S.C. 1302, 1383, and 1383b.

    6. Section 416.1402 is amended by removing ``and'' following the 
semicolon at the end of paragraph (k), by inserting a semicolon in 
place of the period at the end of paragraph (l) and adding ``and'' 
following such semicolon, and by adding a new paragraph (m) to read as 
follows:


Sec. 416.1402  Administrative actions that are initial determinations.

* * * * *
    (m) A claim for benefits under Sec. 416.351 based on alleged 
misinformation.
    7. Section 416.1403 is amended by removing ``and'' following the 
semicolon at the end of paragraph (a)(7), by inserting semicolons in 
place of the periods at the end of paragraphs (a)(2), (a)(8), (a)(9), 
(a)(10) and (a)(11), by adding ``and'' following such semicolon at the 
end of paragraph (a)(11), by inserting ``payee (see'' in place of 
``payee. (See'' in paragraph (a)(11), and by adding a new paragraph 
(a)(12) to read as follows:


Sec. 416.1403  Administrative actions that are not initial 
determinations.

    (a) * * *
    (12) Declining under Sec. 416.351(f) to make a determination on a 
claim for benefits based on alleged misinformation because one or more 
of the conditions specified in Sec. 416.351(f) are not met;
* * * * *
[FR Doc. 94-20519 Filed 8-30-94; 8:45 am]
BILLING CODE 4190-29-P