[Federal Register Volume 62, Number 5 (Wednesday, January 8, 1997)]
[Rules and Regulations]
[Pages 1053-1056]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-247]
=======================================================================
-----------------------------------------------------------------------
SOCIAL SECURITY ADMINISTRATION
20 CFR Part 416
[Regulations No. 16]
RIN 0960-AE61
Reduction in Supplemental Security Income (SSI) Payable to
Institutionalized Children Whose Medical Costs Are Covered by Private
Insurance
AGENCY: Social Security Administration.
ACTION: Interim final rules with request for comments.
-----------------------------------------------------------------------
SUMMARY: These regulations implement an amendment to section
1611(e)(1)(B) of the Social Security Act (the Act) made by section 214
of Public Law 104-193, the Personal Responsibility and Work Opportunity
Reconciliation Act of 1996. Section 214 extends applicability of the
reduced SSI benefit rate (currently $30.00 per month) to children under
age 18 in medical care facilities receiving payments on their behalf
under a health insurance policy issued by a private provider. With
these rule changes, children with private health insurance coverage
will be treated the same as children with Medicaid coverage in terms of
the amount of benefits for which they are eligible. While the major
impact of these regulations will be to reduce benefits for those
children described above, some children residing in public
institutions, which receive private health insurance payments and which
currently do not receive any SSI benefits on their behalf, will become
eligible for SSI benefits up to $30 per month.
DATES: These interim final rules are effective beginning January 8,
1997. To be sure that your comments are considered, we must receive
them no later than March 10, 1997.
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
Section 1611(e)(1)(A) of the Act generally precludes eligibility
for SSI benefits when a claimant is a resident of a public institution
throughout a month. Section 1611(e)(1)(B) provided an exception to that
bar. Under that section, payments could be made at the reduced Federal
benefit rate to individuals in institutions ``receiving payments (with
respect to such individual or spouse) under a State plan approved under
title XIX * * * .'' This language was implemented through regulations
to mean that individuals in institutions would receive only the reduced
benefit amount when ``Medicaid (title XIX of the Social Security Act)
pays a substantial part (more than 50 percent) of the cost of'' the
claimant's care (Sec. 416.211(b)).
Section 214 of Public Law 104-193, effective for benefits beginning
with the month of December 1996, amends section 1611(e)(1)(B) of the
Act by extending applicability of the reduced SSI benefit rate to
children under age 18 in medical care facilities receiving payments on
their behalf under a health insurance policy issued by a private
provider (hereinafter referred to as private health insurance). Prior
to the enactment of section 214, children under the age of 18 in
private institutions with private health insurance generally could be
eligible for a full SSI payment. Section 214 now restricts the SSI
payment for such children to the Federal reduced benefit rate. Also, as
is noted above, prior to this legislation, individuals in public
institutions not receiving substantial Medicaid payments on their
behalf generally were ineligible for SSI. However, as a result of this
legislation, children under age 18 in public institutions receiving
private health insurance on their behalf now are eligible for SSI
payments at the reduced Federal benefit amount.
Section 214 could be interpreted as requiring application of the
reduced benefit amount where any amount of private health insurance
payments is being made on behalf of an institutionalized child for the
cost of the child's care in the institution. However, if the private
health insurance is not paying for a significant amount of the cost of
care, we believe that application of the reduced SSI payment would be
at odds with the intent of the SSI program to help provide for the
basic needs of the child for food, clothing, and shelter.
Moreover, the legislative history indicates that ``[c]hildren in
medical institutions whose medical costs are covered by private
insurance would be treated the same as children whose bills are
currently paid by Medicaid (that is, their monthly SSI cash benefit
would be reduced to $30 per month).'' H.R. Conf. Rep. No. 725, 104th
Cong., 2d Sess. 333 (1996). In addition, the legislative history
references children whose costs are ``covered,'' not children for whom
any private insurance payments are being made. Since Congress used the
same phrase, ``receiving payments,'' in referring to cases where
Medicaid is paying towards the cost of care and to cases where private
health insurance is paying towards the cost of care, we believe that
the extent of the medical coverage which would reduce the SSI payment
to $30 should be the same. Therefore, we have decided that the more
equitable approach is to apply the reduced benefit amount to children
under age 18 with private health insurance when it pays a substantial
part (more than 50 percent) of the cost of their care in the
institution. Similarly, since Congress apparently wanted to treat all
children with significant medical coverage in the same manner, we also
have decided that the reduced benefit amount will apply in those cases
where children under age 18 are in medical care facilities receiving a
combination of Medicaid and private health insurance payments which
combined pay a substantial part (more than 50 percent) of the cost of
their care.
Regulatory Changes
Section 416.211 explains the general prohibition against SSI
eligibility for residents of public institutions, as well as the
statutory exceptions to that prohibition. We have revised
Sec. 416.211(b) to include a reference to private health insurance as a
factor in applying the exception that permits SSI payments at a reduced
rate for certain individuals in medical care facilities. The
introductory text of paragraph (b)
[[Page 1054]]
refers to Sec. 416.414, where the reduced benefits are described and
the requirements are explained more thoroughly.
Section 416.212 explains the two statutory provisions that permit
continuation of full benefits in certain cases of medical confinement.
Under section 1611(e)(1)(E) of the Act, as originally implemented, a
recipient whose SSI eligibility is based on section 1619(a) or (b) of
the Act for the month preceding the first full month of residence in
(1) a public medical or psychiatric institution or (2) a public or
private institution where Medicaid is paying more than 50 percent of
the cost of care can remain eligible for an SSI benefit for up to 2
full months after entering the institution, if the recipient is
allowed, under agreement with the medical institution, to retain any
SSI benefits. Also, under 1611(e)(1)(G) of the Act, a recipient is
eligible for continuation of full SSI benefits for up to 3 full months
after entering certain medical or psychiatric institutions if a
physician certifies, within certain time restrictions, that the
recipient's stay in the facility is likely not to exceed 3 months and
if the recipient needs to continue to maintain and provide for the
expenses of the home to which he or she may return.
To include the provisions of section 214, we have revised
Sec. 416.212(a) to include children under age 18 whose benefits are
reduced because of residence in a public or private institution where
private health insurance, or a combination of Medicaid and private
health insurance, is paying a substantial part (more than 50 percent)
of the cost of their care. We have also revised Sec. 416.212(b) to
extend applicability of the continued benefits to children under age 18
whose SSI benefits otherwise would be reduced because of residence in a
public institution where private health insurance, or a combination of
Medicaid and private health insurance, is paying a substantial part
(more than 50 percent) of the cost of care.
Section 1611(e)(1)(G) specifies that the recipient must be ``* * *
an inmate of a public institution the primary purpose of which is the
provision of medical or psychiatric care, or which is a hospital,
extended care facility, nursing home, or intermediate care facility
receiving payments * * * under a State plan approved under title XIX *
* * .'' Because Public Law 104-193 did not amend this section of the
Act, SSI payments to children in private medical care facilities for
whom private health insurance, or a combination of Medicaid and private
health insurance, is paying more than 50 percent of the cost of care,
will be limited to the reduced benefit amount beginning with their
first full month of institutionalization.
Section 416.414 explains that reduced benefits are payable where
Medicaid paid more than 50 percent of the cost of care, or where
Medicaid would have paid more than 50 percent of the cost of care but
for the application of section 1917(c) of the Act due to a transfer of
assets for less than fair market value. To include the provisions of
section 214, we have revised Sec. 416.414(a) to explain that for
children under age 18, the reduced benefits also apply where private
health insurance, or a combination of Medicaid and private health
insurance is paying a substantial part (more than 50 percent) of the
cost of care in the medical facility.
Section 416.1149 explains what is a temporary absence from a living
arrangement and explains how we value in-kind support and maintenance
(ISM) received by an eligible individual during a temporary absence. In
general, during a temporary absence we continue to value ISM the same
way that we did in the permanent residence. Currently, paragraph (a)(1)
of Sec. 416.1149 states that a temporary absence from the permanent
living arrangement exists if the eligible individual (or eligible
individual and eligible spouse) becomes a resident of a public or
private medical care facility where over 50 percent of the cost of care
is paid by Medicaid, and who is eligible for the continuation of
benefits payable under Sec. 416.212. During this temporary absence we
continue to value the eligible individual's support and maintenance the
same way that we did in the permanent living arrangement.
We are changing paragraph (a)(1) of Sec. 416.1149 to conform to the
changes we are making in Sec. 416.212 and Sec. 416.414. For purposes of
determining ISM, we also will consider as temporarily absent from the
permanent living arrangement a child under 18, who receives a reduced
benefit because of residence in a public or private medical facility
where private health insurance (or a combination of Medicaid and
private health insurance) pays a substantial part (more than 50
percent) of the cost of care and who is eligible for the continuation
of benefits under Sec. 416.212. For such a child, during the temporary
absence we continue to value the ISM the same way that we did in the
permanent living arrangement.
The existing paragraph (c) of Sec. 416.1149 describes an exception
to the general rule for temporary absences described in paragraph (b).
In paragraph (c), an eligible individual is considered temporarily
absent from the permanent living arrangement regardless of the length
of stay, if he or she enters a medical care facility in which Medicaid
pays over 50 percent of the cost of care, is eligible for a reduced
payment under Sec. 416.414, and is not eligible under Sec. 416.212. In
this situation, ISM is valued using the rules that apply to the
permanent living arrangement for the month the individual enters the
facility and the month the individual leaves the facility. No ISM is
chargeable for the full months the individual is in the facility and
receives a reduced payment under Sec. 416.414.
We are changing paragraph (c) of Sec. 416.1149 to conform to the
changes we are making in Sec. 416.212 and Sec. 416.414. Thus, we will
also consider as temporarily absent from the permanent living
arrangement a child under 18, who is not eligible under Sec. 416.212,
and who receives a reduced payment under Sec. 416.414 because of
residence in a public or private medical facility where private health
insurance (or a combination of Medicaid and private health insurance)
pays a substantial part (more than 50 percent) of the cost of care. ISM
will be valued for these children as it is for the eligible individuals
described in the preceding paragraph.
We are also revising Sec. 416.1165(i)(1) and Sec. 416.1202(b)(2)(i)
so that those rules conform with the revised rules in Sec. 416.414.
Section 416.1165 describes how we deem income to a child from the
child's ineligible parent(s). Subsection (i) describes a situation when
we do not deem income to a child. Paragraph (1) is revised so that it
conforms with the revised rules in Sec. 416.414.
Subsection 416.1202(b) describes how we deem resources to a child
from the child's ineligible parent(s). Paragraph (b)(2) describes a
situation when we do not deem resources to a child. Paragraph (b)(2)(i)
is revised so that it conforms with the revised rules in Sec. 416.414.
Electronic Version
The electronic file of this document is available on the Federal
Bulletin Board (FBB) at 9:00 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
Pursuant to section 702(a)(5) of the Act, 42 U.S.C. 902(a)(5), as
amended by
[[Page 1055]]
section 102 of Public Law 103-296, the Social Security Administration
follows the Administrative Procedure Act (APA) rulemaking procedures
specified in 5 U.S.C. 553 in the development of its regulations. The
APA provides exceptions to its prior notice and public comment
procedures when an agency finds that there is good cause for dispensing
with such procedures on the basis that they are impracticable,
unnecessary, or contrary to the public interest. In the case of these
interim final rules, we have determined that under 5 U.S.C. 553(b)(B),
good cause exists for waiving the prior notice procedures.
Public Law 104-193 was signed into law on August 22, 1996. As noted
above, section 214 of Public Law 104-193, which is the subject of these
interim final rules, was made effective December 1, 1996. Moreover,
section 215 requires the Commissioner to issue regulations necessary to
carry out the amendments made by section 214 within 3 months after the
date of enactment (i.e., by November 22, 1996). Accordingly, to issue
these rules as an NPRM would have delayed issuance of final rules until
well past the statutorily mandated deadlines.
In light of the above statutory deadlines, we believe that, under
the APA, good cause exists for waiver of the prior notice procedures
since issuance of proposed rules would be impracticable. While we are
issuing these rules as interim final regulations, we are interested in
receiving public comments regarding the substance of these interim
rules.
In addition, we find good cause for dispensing with the 30-day
delay in the effective date of a substantive rule, provided for by 5
U.S.C. 553(d). As explained above, these regulations reflect and
implement statutory provisions effective December 1, 1996 for which
publication of implementing regulations is required by November 22,
1996. In order for these regulations to be effective as close as
possible to the mandated dates, we find that it is in the public
interest to make these rules effective upon publication.
Executive Order 12866
These interim final rules reflect and implement the provisions of
section 214 of Public Law 104-193. The Office of Management and Budget
(OMB) has reviewed these interim final rules and determined that they
meet the criteria for a significant regulatory action under Executive
Order 12866. Therefore, we prepared and submitted to OMB, separately
from these interim final rules, an assessment of the potential costs
and benefits of this regulatory action. This document also contains an
analysis of alternative policies we considered and chose not to adopt.
This assessment is available for review by members of the public.
Regulatory Flexibility Act
We certify that these interim 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 interim final rules impose no additional reporting or
recordkeeping requirements subject to Office of Management and Budget
clearance.
(Catalog of Federal Domestic Assistance: Program No. 96.006-
Supplemental Security Income.)
List of Subjects in 20 CFR Part 416:
Administrative practice and procedure, Aged, Blind, Disability
benefits, Public assistance programs, Reporting and recordkeeping
requirements, Supplemental Security Income (SSI).
Dated: December 6, 1996.
Shirley S. Chater,
Commissioner of Social Security.
For the reasons set out in the preamble, subparts B, D, K, and L of
part 416 of chapter III of title 20 of the Code of Federal Regulations
are amended as follows:
PART 416--SUPPLEMENTAL SECURITY INCOME FOR THE AGED, BLIND, AND
DISABLED
Subpart B--[Amended]
1. The authority citation for subpart B of part 416 continues to
read as follows:
Authority: Secs. 702(a)(5), 1110(b), 1602, 1611, 1614, 1615(c),
1619(a), 1631, and 1634 of the Social Security Act (42 U.S.C.
902(a)(5), 1310(b), 1381a, 1382, 1382c, 1382d(c), 1382h(a), 1383,
and 1383c); secs. 211 and 212, Pub. L. 93-66, 87 Stat. 154 and 155
(42 U.S.C. 1382 note); sec. 502(a), Pub. L. 94-241, 90 Stat. 268 (48
U.S.C. 1681 note); sec. 2, Pub. L. 99-643, 100 Stat. 3574 (42 U.S.C.
1382h note).
2. Section 416.211 is amended by revising paragraph (b)(1) to read
as follows:
Sec. 416.211 You are a resident of a public institution.
* * * * *
(b) * * *
(1)(i) You reside throughout a month in a public institution that
is a medical care facility where Medicaid (title XIX of the Social
Security Act) pays a substantial part (more than 50 percent) of the
cost of your care; you are a child under the age of 18 residing
throughout a month in a public institution that is a medical care
facility where a substantial part (more than 50 percent) of the cost of
your care is paid under a health insurance policy issued by a private
provider of such insurance; or, you are a child under the age of 18
residing throughout a month in a public institution that is a medical
care facility where a substantial part (more than 50 percent) of the
cost of your care is paid by a combination of Medicaid payments and
payments made under a health insurance policy issued by a private
provider of such insurance; or
(ii) You reside for part of a month in a public institution and the
rest of the month in a public institution or private medical facility
where Medicaid pays a substantial part (more than 50 percent) of the
cost of your care; you are a child under the age of 18 residing for
part of a month in a public institution and the rest of the month in a
public institution or private medical facility where a substantial part
(more than 50 percent) of the cost of your care is paid under a health
insurance policy issued by a private provider of such insurance; or you
are a child under the age of 18 residing for part of a month in a
public institution and the rest of the month in a public institution or
private medical facility where a substantial part (more than 50
percent) of the cost of your care is paid by a combination of Medicaid
payments and payments made under a health insurance policy issued by a
private provider; and
* * * * *
3. Section 416.212 is amended by revising paragraphs (a)
introductory text and (b)(1) introductory text to read as follows:
Sec. 416.212 Continuation of full benefits in certain cases of medical
confinement.
(a) Benefits payable under section 1611(e)(1)(E) of the Social
Security Act. Subject to eligibility and regular computation rules (see
subparts B and D of this part), you are eligible for the benefits
payable under section 1611(e)(1)(E) of the Social Security Act for up
to 2 full months of medical confinement during which your benefits
would otherwise be suspended because of residence in a public
institution or reduced because of residence in a public or private
institution where Medicaid pays a substantial part (more than 50
percent) of the cost of your care or, if
[[Page 1056]]
you are a child under age 18, reduced because of residence in a public
or private institution which receives payments under a health insurance
policy issued by a private provider, or a combination of Medicaid and a
health insurance policy issued by a private provider, pay a substantial
part (more than 50 percent) of the cost of your care if--
* * * * *
(b) Benefits payable under section 1611(e)(1)(G) of the Social
Security Act. (1) Subject to eligibility and regular computation rules
(see subparts B and D of this part), you are eligible for the benefits
payable under section 1611(e)(1)(G) of the Social Security Act for up
to 3 full months of medical confinement during which your benefits
would otherwise be suspended because of residence in a public
institution or reduced because of residence in a public or private
institution where Medicaid pays a substantial part (more than 50
percent) of the cost of your care or, if you are a child under age 18,
reduced because of residence in a public institution which receives
payments under a health insurance policy issued by a private provider,
or a combination of Medicaid and a health insurance policy issued by a
private provider, pay a substantial part (more than 50 percent) of the
cost of your care if--
* * * * *
Subpart D--[Amended]
4. The authority citation for subpart D of part 416 continues to
read as follows:
Authority: Secs. 702(a)(5), 1611 (a), (b), (c), and (e), 1612,
1617, and 1631 of the Social Security Act (42 U.S.C. 902(a)(5),
1382(a), (b), (c), and (e), 1382a, 1382f, and 1383).
5. Section 416.414 is amended by revising paragraph (a) to read as
follows:
Sec. 416.414 Amount of benefits; eligible individual or eligible
couple in a medical care facility.
(a) General rule. Except where the Sec. 416.212 provisions provide
for payment of benefits at the rates specified under Secs. 416.410 and
416.412, reduced SSI benefits are payable to persons and couples who
are in medical care facilities where a substantial part (more than 50
percent) of the cost of their care is paid by a State plan under title
XIX of the Social Security Act (Medicaid). This reduced SSI benefit
rate applies to persons who are in medical care facilities where a
substantial part (more than 50 percent) of the cost would have been
paid by an approved Medicaid State plan but for the application of
section 1917(c) of the Social Security Act due to a transfer of assets
for less than fair market value. This reduced SSI benefit rate also
applies to children under age 18 who are in medical care facilities
where a substantial part (more than 50 percent) of the cost of their
care is paid by a health insurance policy issued by a private provider
of such insurance, or where a substantial part (more than 50 percent)
of the cost of their care is paid for by a combination of Medicaid
payments and payments made under a health insurance policy issued by a
private provider of such insurance. Persons and couples to whom these
reduced benefits apply are--
(1) Those who are otherwise eligible and who are in the medical
care facility throughout a month. (By throughout a month we mean that
you are in the medical care facility as of the beginning of the month
and stay the entire month. If you are in a medical care facility you
will be considered to have continuously been staying there if you are
transferred from one medical facility to another or if you are
temporarily absent for a period of not more than 14 consecutive days.);
and
(2) Those who reside for part of a month in a public institution
and for the rest of the month are in a public or private medical care
facility where Medicaid pays or would have paid (but for the
application of section 1917(c) of the Act) a substantial part (more
than 50 percent) of the cost of their care; and
(3) Children under age 18 who reside for part of a month in a
public institution and for the rest of the month are in a public or
private medical care facility where a substantial part (more than 50
percent) of the cost of their care is being paid under a health
insurance policy issued by a private provider or by a combination of
Medicaid and payments under a health insurance policy issued by a
private provider.
* * * * *
Subpart K--[Amended]
6. The authority citation for subpart K of part 416 continues to
read as follows:
Authority: Secs. 702(a)(5), 1602, 1611, 1612, 1613, 1614(f),
1621, and 1631 of the Social Security Act (42 U.S.C. 902(a)(5),
1381a, 1382, 1382a, 1382b, 1382c(f), 1382j, and 1383); sec. 211,
Pub. L. 93-66, 87 Stat. 154 (42 U.S.C. 1382 note).
7. Section 416.1149 is amended by revising paragraph (a)(1) and the
first sentence of paragraph (c)(1)(i) to read as follows:
Sec. 416.1149 What is a temporary absence from your living
arrangement.
(a) * * *
(1) Become a resident of a public institution, or a public or
private medical care facility where you otherwise would be subject to
the reduced benefit rate described in Sec. 416.414, and you are
eligible for the benefits payable under Sec. 416.212; or
* * * * *
(c) Rules for temporary absence in certain circumstances. (1)(i) If
you enter a medical care facility where you are eligible for the
reduced benefits payable under Sec. 416.414 for full months in the
facility, and you are not eligible for either benefit payable under
Sec. 416.212 (and you have not received such benefits during your
current period of confinement) and you intend to return to your prior
living arrangement, we consider this a temporary absence regardless of
the length of your stay in the facility. * * *
* * * * *
8. Section 416.1165 is amended by revising paragraph (i)(1) to read
as follows:
Sec. 416.1165 How we deem income to you from your ineligible
parent(s).
* * * * *
(i) * * *
(1) You previously received a reduced SSI benefit while a resident
of a medical facility, as described in Sec. 416.414;
* * * * *
Subpart L--[Amended]
9. The authority citation for subpart L of part 416 continues to
read as follows:
Authority: Secs. 702(a)(5), 1602, 1611, 1612, 1613, 1614(f),
1621, and 1631 of the Social Security Act (42 U.S.C. 902(a)(5),
1381a, 1382, 1382a, 1382b, 1382c(f), 1382j, and 1383); sec. 211,
Pub. L. 93-66, 87 Stat. 154 (42 U.S.C. 1382 note).
10. Section 416.1202 is amended by revising paragraph (b)(2)(i) to
read as follows:
Sec. 416.1202 Deeming of resources.
* * * * *
(b) * * *
(2) * * *
(i) Previously received a reduced SSI benefit while a resident of a
medical facility, as described in Sec. 416.414;
* * * * *
[FR Doc. 97-247 Filed 1-7-97; 8:45 am]
BILLING CODE 4190-29-P