[Federal Register Volume 61, Number 154 (Thursday, August 8, 1996)]
[Rules and Regulations]
[Pages 41329-41330]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-20121]
=======================================================================
-----------------------------------------------------------------------
SOCIAL SECURITY ADMINISTRATION
20 CFR Part 404
[Regulations No. 4]
RIN 0960-AE20
Living in the Same Household and the Lump-Sum Death Payment
AGENCY: Social Security Administration.
ACTION: Final rules.
-----------------------------------------------------------------------
SUMMARY: We are revising 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
includes the removal from our regulations of several outdated sections
and paragraphs. We also are incorporating 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.
EFFECTIVE DATE: These rules are effective September 9, 1996.
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 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 Public Law 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 on the deceased's earnings record for the
month of death as a widow(er) or as the mother or father of a child of
the deceased; 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 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 Public Law 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.
New 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 are updating or
removing them. We are eliminating obsolete Secs. 404.393, 404.394,
404.395, and 404.765 and paragraphs 404.2(a)(2) through (a)(6),
404.3(a), 404.612(e), and 404.615(b).
Also, we are incorporating the LISH policy interpretation found in
SSR 82-50 into our regulations. The new regulatory definition 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. Because of this action, we are rescinding SSR 82-50 upon the
effective
[[Page 41330]]
date of these rules. This rescission appears in the ``Notices'' section
of today's Federal Register.
On December 6, 1995, we published these final rules as proposed
rules in the Federal Register at 60 FR 62354 with a 60-day comment
period. We received comments from only one source, which represents the
largest professional organization of funeral directors in the United
States. The commenter fully supported the proposed rules. Therefore, we
are publishing the final rules essentially unchanged from the proposed
rules.
Regulatory Procedures
Regulatory Flexibility Act
We certify that these final 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 Public Law 96-354, the Regulatory Flexibility
Act, is not required.
Paperwork Reduction Act
These final rules impose no additional reporting or recordkeeping
requirements subject to the Office of Management and Budget 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: July 25, 1996.
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 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 continues to
read as follows:
Authority: Secs. 203, 205(a), 216(j), and 702(a)(5) of the
Social Security Act (42 U.S.C. 403, 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 continues 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 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 continues 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 continues 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. 96-20121 Filed 8-7-96; 8:45 am]
BILLING CODE 4190-22-P