[Federal Register Volume 60, Number 234 (Wednesday, December 6, 1995)]
[Proposed Rules]
[Pages 62354-62356]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-29533]



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SOCIAL SECURITY ADMINISTRATION

20 CFR Part 404

[Regulation No. 4]
RIN 0960-AE20


Living In The Same Household And The Lump-Sum Death Payment

AGENCY: Social Security Administration.

ACTION: Proposed rules.

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SUMMARY: We propose to revise our rules on ``living in the same 
household'' (LISH) and the lump-sum death payment (LSDP) to bring them 
into accord with legislation that restricted the payment of the LSDP. 
This revision will include the removal from our regulations of several 
outdated sections and paragraphs. We also propose to incorporate into 
our rules the policy established previously in a Social Security Ruling 
(SSR) that interpreted the definition of LISH to allow for extended 
separations that are based solely on medical reasons.

DATES: To be sure that your comments are considered, we must receive 
them no later than February 5, 1996.

ADDRESSES: Comments should be submitted in writing to the Commissioner 
of Social Security, P.O. Box 1585, Baltimore, MD 21235, sent by telefax 
to (410) 966-2830, sent by E-mail to ``[email protected]'', or 
delivered to the Division of Regulations and Rulings, Social Security 
Administration, 3-B-1 Operations Building, 6401 Security Boulevard, 
Baltimore, MD 21235, between 8:00 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: Daniel T. Bridgewater, Legal 
Assistant, Division of Regulations and Rulings, Social Security 
Administration, 6401 Security Boulevard, Baltimore, MD 21235, (410) 
965-3298 for information about these rules. For information on 
eligibility or claiming benefits, call our national toll-free number, 
1-800-772-1213.

SUPPLEMENTARY INFORMATION:

Background

    Prior to passage of the Omnibus Budget Reconciliation Act of 1981, 
Public Law (Pub. L.) 97-35, the widow(er) of a deceased worker could 
qualify for the LSDP if he/she had been LISH with the deceased at the 
time of death or, under certain conditions, if he/she paid the burial 
expenses of the deceased. Thus, a widow(er) who was not LISH with the 
deceased could still receive the LSDP if he/she paid the deceased's 
burial expenses.
    Public Law 97-35 redefined who could qualify for the LSDP. 
Effective September 1, 1981, the LSDP no longer was payable to any 
individuals, other than those described in Pub. L. 97-35, or to funeral 
homes.
    Under Public Law 97-35, the LSDP is payable to 3 categories of 
individuals: (1) the surviving spouse of the deceased who was LISH with 
the deceased at the time of death; (2) a person who is entitled to (or 
was eligible for) benefits as a widow(er) or mother or father on the 
deceased's earnings record for the month of death; or (3) a child of 
the deceased who is entitled to (or was eligible for) benefits on the 
deceased's earnings record for the month of death.
    For those widow(ers) who were not LISH, a possible anomaly was 
created by the LSDP limitations in Public Law 97-35 and existing 
regulations. An example of such an anomaly is the following situation.
    A worker had been living in a nursing home for 3 years prior to his 
death because his wife was unable to provide the daily medical care he 
needed. Until 

[[Page 62355]]
his death, the worker was visited frequently by his wife, who lived in 
the house to which the worker would have returned if he were able. The 
widow was receiving a Retirement Insurance Benefit (RIB) which exceeded 
her late husband's Primary Insurance Amount (PIA). Based on Pub. L. 97-
35 and a strict interpretation of the regulatory definition of LISH, 
this widow would not qualify for the LSDP because she was neither LISH 
nor entitled to benefits based on her late husband's earnings record. 
(However, if the widow's RIB did not exceed her late husband's PIA, she 
would qualify for the LSDP.)

Present Policy

    Operating instructions, as well as most of the pertinent regulatory 
sections, have been changed to reflect the changes in the law 
established by Public Law 97-35. To qualify as a LISH spouse, the 
widow(er) and the deceased must have ``customarily lived together as 
husband and wife in the same residence'' (Sec. 404.347). While 
temporary separations do not necessarily preclude the Social Security 
Administration (SSA) from considering a couple to be LISH, extended 
separations (including most that last 6 months or more) generally 
indicate the couple was not LISH.
    However, in order to avoid the possible anomaly discussed above, 
SSR 82-50 was issued to provide for an exception when an extended 
separation is based solely on medical reasons. SSR 82-50 states:

    If a husband and wife are (or were) separated and continue(d) to 
be separated, solely for medical reasons, SSA may consider them to 
be living in the same household even if the separation is (or was) 
likely to be permanent and there is (or was) little or no 
expectation of the parties again physically residing together. As 
long as the spouse who is now applying for the LSDP or spouse's 
benefits based on a deemed marriage has continued to demonstrate 
strong personal and/or financial concern for the worker, SSA will 
assume they would have lived together (absent evidence to the 
contrary) had the medical reasons not necessitated their separation, 
and will pay the LSDP or spouse's benefits to the spouse.

Proposed Policy

    Since there are still some sections of our regulations that refer 
to the law on entitlement to the LSDP which predated Public Law 97-35 
and since these sections no longer are applicable, we propose to update 
or remove them. We will eliminate obsolete Secs. 404.393, 404.394, 
404.395, and 404.765, 404.3(a), 404.612(e), 404.615(b), and 404.2 
(a)(2) through (a)(6).
    Also, we propose to incorporate the LISH policy interpretation 
found in SSR 82-50 into our regulations. The proposed policy 
interpretation will clearly allow for extended separations due to the 
confinement of either spouse in a nursing home, hospital, or other 
medical institution. As long as evidence indicates the husband and wife 
were initially separated, and continue to be separated, solely for 
medical reasons and would otherwise have resided together, they will be 
considered to be LISH.

Electronic Version

    The electronic file of this document is available on the Federal 
Bulletin Board (FBB) at 9 a.m. on the date of publication in the 
Federal Register. To download the file, modem dial (202) 512-1387. The 
FBB instructions will explain how to download the file and the fee. 
This file is in WordPerfect and will remain on the FBB during the 
comment period.

Regulatory Procedures

Executive Order 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 Executive Order 12866. Thus, they 
were not subject to OMB review.

Regulatory Flexibility Act

    We certify that these proposed rules will not have a significant 
economic impact on a substantial number of small entities since these 
rules affect only 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 rules impose no additional reporting or 
recordkeeping requirements subject to OMB clearance.

(Catalog of Federal Domestic Assistance Program Nos. 96.001 Social 
Security--Disability Insurance; 96.002 Social Security--Retirement 
Insurance; 96.004 Social Security--Survivors Insurance)

List of Subjects in 20 CFR Part 404

    Administrative practice and procedure, Blind, Disability benefits, 
Old-Age, Survivors, and Disability Insurance, Reporting and 
recordkeeping requirements, Social security.

    Dated: November 27, 1995.
Shirley S. Chater,
Commissioner of Social Security.

    For the reasons set out in the preamble, subparts A, D, G, and H of 
part 404 of chapter III of title 20 of the Code of Federal Regulations 
are proposed to be amended as follows:

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

Subpart A--[Amended]

    1. The authority citation for subpart A of part 404 is revised to 
read as follows:

    Authority: Secs. 203, 205(a), 216(j), and 702(a)(5) of the 
Social Security Act (42 U.S.C. 203, 405(a), 416(j), and 902(a)(5)).


Sec. 404.2  [Amended]

    2. Section 404.2 is amended by removing paragraphs (a)(2) through 
(a)(6) and redesignating paragraph (a)(7) as paragraph (a)(2).


Sec. 404.3  [Amended]

    3. Section 404.3 is amended by removing paragraph (a) and 
redesignating paragraphs (b) and (c) as paragraphs (a) and (b), 
respectively.

Subpart D--[Amended]

    4. The authority citation for subpart D of part 404 is revised to 
read as follows:

    Authority: Secs. 202, 203 (a) and (b), 205(a), 216, 223, 225, 
228(a)-(e), and 702(a)(5) of the Social Security Act (42 U.S.C. 402, 
403 (a) and (b), 405(a), 416, 423, 425, 428(a)-(e), and 902(a)(5)).

    5. Section 404.347 is revised to read as follows:


Sec. 404.347  ``Living in the same household'' defined.

    Living in the same household means that you and the insured 
customarily lived together as husband and wife in the same residence. 
You may be considered to be living in the same household although one 
of you is temporarily absent from the residence. An absence will be 
considered temporary if:
    (a) It was due to service in the U.S. Armed Forces;
    (b) It was 6 months or less and neither you nor the insured were 
outside of the United States during this time and the absence was due 
to business, employment, or confinement in a hospital, nursing home, 
other medical institution, or a penal institution;
    (c) It was for an extended separation, regardless of the duration, 
due to the confinement of either you or the insured in a hospital, 
nursing home, or other medical institution, if the evidence indicates 
that you were separated solely for medical reasons and you otherwise 
would have resided together; or
    (d) It was based on other circumstances, and it is shown that you 
and the insured reasonably could have 

[[Page 62356]]
expected to live together in the near future.
    6. Section 404.390 is amended by revising the second sentence to 
read as follows:


Sec. 404.390  General.

    * * * If the insured is not survived by a widow(er) who meets this 
requirement, all or part of the $255 payment may be made to someone 
else as described in Sec. 404.392.
    7. Section 404.392 is amended by revising the section heading and 
the introductory text of paragraph (a) to read as follows:


Sec. 404.392  Who is entitled to the lump-sum death payment when there 
is no widow(er) who was living in the same household.

    (a) General. If the insured individual is not survived by a 
widow(er) who meets the requirements of Sec. 404.391, the lump-sum 
death payment shall be paid as follows:
* * * * *


Sec. 404.393  [Removed]

    8. Section 404.393 is removed.


Sec. 404.394  [Removed]

    9. Section 404.394 is removed.


Sec. 404.395  [Removed]

    10. Section 404.395 is removed.

Subpart G--[Amended]

    11. The authority citation for subpart G of part 404 is revised to 
read as follows:

    Authority: Secs. 202 (i), (j), (o), (p), and (r), 205(a), 
216(i)(2), 223(b), 228(a), and 702(a)(5) 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 902(a)(5)).


Sec. 404.612  [Amended]

    12. Section 404.612 is amended by removing paragraph (e) and 
redesignating paragraphs (f), (g), and (h) as paragraphs (e), (f), and 
(g), respectively.


Sec. 404.615  [Amended]

    13. Section 404.615 is amended by removing paragraph (b) and 
redesignating paragraphs (c) and (d) as paragraphs (b) and (c), 
respectively.

Subpart H--[Amended]

    14. The authority citation for subpart H of part 404 is revised to 
read as follows:

    Authority: Secs. 205(a) and 702(a)(5) of the Social Security Act 
(42 U.S.C. 405(a) and 902(a)(5)).


Sec. 404.765  [Removed]

    15. Section 404.765 is removed.

[FR Doc. 95-29533 Filed 12-5-95; 8:45 am]
BILLING CODE 4190-29-P