[Federal Register Volume 62, Number 152 (Thursday, August 7, 1997)]
[Rules and Regulations]
[Pages 42410-42411]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-20743]


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SOCIAL SECURITY ADMINISTRATION

20 CFR Part 416

[Regulations No. 16]
RIN 0960-AD86


Deeming in the Supplemental Security Income (SSI) Program When an 
Ineligible Spouse or Parent is Absent From the Household Due Solely to 
Active Military Service

AGENCY: Social Security Administration.

ACTION: Final rule.

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SUMMARY: We are adding a rule on how the income and resources of 
ineligible spouses or parents affect the eligibility and benefit 
amounts of Supplemental Security Income (SSI) claimants and recipients 
when those spouses or parents are absent from their households due 
solely to a duty assignment as a member of the Armed Forces on active 
duty. We are adding this rule because the current rules do not reflect 
the provision of the Social Security Act (the Act), as amended by the 
Omnibus Budget Reconciliation Act of 1993 (OBRA 1993), that addresses 
this situation.

DATES: This rule is effective September 8, 1997.

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 this rule.
    For information on eligibility or claiming benefits, call our 
national toll-free number, 1-800-772-1213.

SUPPLEMENTARY INFORMATION: Regulations at Sec. 416.1167(a) state 
that a ``temporary'' absence, for SSI deeming purposes, occurs when 
an SSI claimant/recipient, an ineligible spouse or parent, or an 
ineligible child leaves the household but intends to, and does, 
return in the same month or the month immediately following. If the 
absence is temporary, we continue to consider the person a member 
of the household for deeming purposes.

    Under our policy prior to October 1, 1993, an ineligible spouse or 
parent who was absent from an SSI claimant's or recipient's household 
for any reason, including active duty military service, and whose 
absence was not temporary (Sec. 416.1167(a)), was not considered to be 
a member of the household for deeming purposes effective with the first 
day of the month following the month the spouse or parent left the 
household.
    Section 13733(a) of OBRA 1993 (Pub. L. 103-66) changed SSI policy, 
effective October 1, 1993, on the treatment of ineligible spouses and 
parents who are absent from deeming households solely because of active 
duty military assignments. Under this legislation, which added 
paragraph (4) to section 1614(f) of the Act, the service member 
continues to be considered a member of the household, absent evidence 
to the contrary, for income and resources deeming purposes. Current 
regulations do not specifically address this situation.
    The change in the deeming rules made by section 13733(a) of Public 
Law 103-66 was intended to prevent an absent deemor's active military 
service from adversely affecting an SSI claimant's or recipient's 
benefits. Prior to the change in the deeming rules, and under certain 
circumstances, it was possible for an individual to receive a smaller 
SSI benefit--or no benefit at all--as a result of a spouse's or 
parent's absence from the household due to military service.
    For SSI purposes, the treatment of an ineligible spouse's or 
parent's earnings differs depending on whether the spouse or parent is 
considered to be living in the same household as the SSI recipient. If 
the spouse or parent is considered to be living in the same household 
as the SSI recipient, the earnings are treated as earned income. If the 
spouse or parent is not considered to be living in the same household, 
any earnings that are made available to the household are treated as 
unearned income. In the SSI program, more generous exclusions apply to 
earned income than to unearned income.
    For example, under prior policy, if an absent military member whose 
income and resources were no longer deemed sent wages home, or his or 
her wages were directly deposited into a bank account held jointly with 
other family members, income so received by household members was 
considered to be unearned for SSI eligibility and payment computation 
purposes. In contrast, wages received while the military deemor resided 
in the household were considered to be earned income for program 
purposes. Accordingly, prior policy had the effect of disadvantaging 
certain SSI claimants and recipients.
    As a result of section 13733(a) of OBRA 1993, a military spouse's 
or parent's absence from the SSI household because of an active duty 
assignment is generally not considered for program purposes; the same 
deeming rules that apply to ``at home'' spouses and parents will 
generally apply to spouses and parents who are temporarily absent from 
the household due to active duty military service. Therefore, we are 
amending our regulations at Sec. 416.1167 to reflect section 13733(a) 
of OBRA 1993.
    The statute and the rule recognize that circumstances may change, 
and an absent service member who originally intended to continue to 
live in the deeming household may decide not to do so. Taking this into 
consideration, under the final rule, we provide that if an absent 
service member's intent to continue to live in the household changes, 
deeming stops beginning with the month following the month in which the 
intent changed.
    We assume, absent evidence to the contrary, that the absent service 
member intends to return to the deeming household upon conclusion of 
the military assignment. ``Evidence to the contrary'' is evidence 
indicating that the service member does not intend to return to the 
deeming household upon conclusion of the military assignment. Evidence 
to the contrary includes (but is not limited to) a signed statement by 
the ``at home'' spouse or parent, or by the absent service member, 
indicating that the service member does not intend to return to the 
deeming household. Other examples of evidence to the contrary are 
evidence of divorce or legal separation that will result in the service 
member not returning to the deeming household. Also, diminished support 
from the absent service member to the household--e.g., an absent spouse 
who no longer makes his or her military wages available to the deeming 
household--may be evidence that the absent service member no longer 
intends to return to the deeming household.
    On January 24, 1997, we published this final rule as a proposed 
rule in the Federal Register at 62 FR 3633 with a 60-day comment 
period. We received no comments during the public comment period. 
Therefore, we are publishing the final rule unchanged from the proposed 
rule.

Regulatory Procedures

Executive Order 12866

    We have consulted with the Office of Management and Budget and 
determined that this rule does not meet

[[Page 42411]]

the criteria for a significant regulatory action under Executive Order 
12866.

Regulatory Flexibility Act

    We certify that this rule will not have a significant economic 
impact on a substantial number of small entities since this rule 
affects only individuals. Therefore, a regulatory flexibility analysis 
as provided in the Regulatory Flexibility Act, as amended, is not 
required.

Paperwork Reduction Act

    This rule imposes 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: July 28, 1997.
John J. Callahan,
Acting Commissioner for Social Security.

    For the reasons set out in the preamble, part 416 of chapter III of 
title 20 of the Code of Federal Regulations is amended as follows:

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

Subpart K--[Amended]

    1. 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 of 
Pub. L. 93-66, 87 Stat. 154 (42 U.S.C. 1382 note).

    2. Section 416.1167 is amended by adding new paragraph (c) to read 
as follows:


Sec. 416.1167  Temporary absences and deeming rules.

* * * * *
    (c) Active duty military service. If your ineligible spouse or 
parent is absent from the household due solely to a duty assignment as 
a member of the Armed Forces on active duty, we continue to consider 
that person to be living in the same household as you, absent evidence 
to the contrary. If we determine that during such an absence, evidence 
indicates that your spouse or parent should no longer be considered to 
be living in the same household as you, then deeming will cease. When 
such evidence exists, we determine the month in which your spouse or 
parent should no longer be considered to be living in the same 
household as you and stop deeming his or her income and resources 
beginning with the month following that month.

    Example. Tom is a child who receives SSI. In January 1996, Tom's 
father leaves the household due solely to an active duty assignment 
as a member of the Armed Forces. Five months later in June 1996, 
while Tom's father is still on an active duty assignment, Tom's 
parents file for divorce. As a result, Tom's father will not be 
returning to live in Tom's household. Therefore, Tom's father should 
no longer be considered to be living in the same household with Tom. 
Beginning July 1, 1996, deeming from Tom's father will cease.

[FR Doc. 97-20743 Filed 8-6-97; 8:45 am]
BILLING CODE 4190-29-P