[Federal Register Volume 72, Number 42 (Monday, March 5, 2007)]
[Proposed Rules]
[Pages 9709-9712]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-3782]


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SOCIAL SECURITY ADMINISTRATION

20 CFR Parts 404 and 416

[Docket No. SSA-2006-0096]
RIN 0960-AG40


Methods for Conducting Personal Conferences When Waiver of 
Recovery of a Title II or Title XVI Overpayment Cannot Be Approved

AGENCY: Social Security Administration.

ACTION: Proposed rules.

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SUMMARY: We propose to revise our title II regulations and add title 
XVI regulations on personal conferences when waiver of recovery of an 
overpayment cannot be approved. These proposed rules would allow for 
the conferences to be conducted face-to-face, by telephone, or by video 
teleconference in these circumstances.

DATES: To be sure that we consider your comments, we must receive them 
by May 4, 2007.

ADDRESSES: You may give us your comments: by Internet through the 
Federal eRulemaking Portal at http://www.regulations.gov; by e-mail to 
[email protected]; by telefax to (410) 966-2830; or by letter to the 
Commissioner of Social Security, P.O. Box 17703, Baltimore, Maryland 
21235-7703. You may also deliver them to the Office of Regulations, 
Social Security Administration, 107 Altmeyer Building, 6401 Security 
Boulevard, Baltimore, Maryland 21235-6401, between 8 a.m. and 4:30 p.m. 
on regular business days. Comments are posted on the Federal 
eRulemaking Portal. You may also inspect the comments on regular 
business days by making arrangements with the contact person shown in 
this preamble.

FOR FURTHER INFORMATION CONTACT: Robin Strauss, Social Insurance 
Specialist, Office of Income Security Programs, Social Security 
Administration, 252 Altmeyer Building, 6401 Security Boulevard, 
Baltimore, MD 21235-6401, (410) 965-7944 or TTY (410) 966-5609, for 
information about this notice. For information on eligibility or filing 
for benefits, call our national toll-free number, 1-800-772-1213 or TTY 
1-800-325-0778, or visit our Internet site, Social Security Online, at 
http://www.socialsecurity.gov.

SUPPLEMENTARY INFORMATION:

Electronic Version

    The electronic file of this document is available on the date of 
publication in the Federal Register at http://www.gpoaccess.gov/fr/index.html.

Background

    Our existing regulations at Sec.  404.506 state that we will waive 
recovery of an overpayment if the individual was without fault in 
causing the overpayment and if recovery would defeat the purpose of the 
Social Security Act or be against equity and good conscience. Section 
404.506 further states that, if we cannot approve waiver after 
reviewing the information the individual has given to support his or 
her contention that the recovery of the overpayment should be waived, 
we will offer the individual a personal conference. The personal 
conference policy was established so that the decisionmaker would have 
the opportunity to assess an individual's contention through personal, 
versus written, contact. Our existing regulations at Sec.  416.550 
state that we will waive recovery of an overpayment if the individual 
was without fault in causing the overpayment and if recovery would 
either defeat the purpose of title XVI, or be against equity and good 
conscience, or impede the efficient

[[Page 9710]]

administration of title XVI. There is currently no title XVI regulation 
regarding personal conferences.
    Section 404.506(e)(1) states that the individual is given the 
opportunity to ``appear personally'' at the personal conference. 
Current regulations do not further specify the method in which this 
appearance may be made. Our longstanding policy contained in Social 
Security Ruling (SSR) 94-4p which implemented the decisions in 
Buffington, et. al. v. Schweiker and Califano v. Yamasaki, provides 
that a face-to-face pre-recoupment hearing will be conducted prior to 
the denial of waiver of recovery of an overpayment. However, a face-to-
face appearance at the field office is not always convenient for the 
beneficiary. Often, if an individual is not able to come to the face-
to-face conference, field office personnel will go to the person to 
hold the conference. Offering additional appearance options for the 
conference would improve service to the beneficiaries and reduce costly 
home visits by field personnel.
    In order to fulfill our stewardship responsibilities to the Social 
Security trust fund, we must employ methods that will simplify our 
personal conference procedures and use our resources most efficiently. 
We should be using all available technology when we conduct personal 
conferences. Therefore, we propose to revise the regulations to allow 
for personal conferences to be conducted face-to-face at a place we 
designate (usually in the field office), by telephone, or by video 
teleconference. We will give the choice to the individual; the 
individual will still be provided the opportunity to appear face-to-
face by choosing to come to us for the personal conference, or may 
choose to participate by telephone or video teleconference. If the 
individual elects to conduct the personal conference by video 
teleconference, the individual will designate the location for his or 
her end of the video teleconference. We will designate the location for 
our end of the video teleconference, if video teleconferencing is 
feasible, e.g., the field office has reasonable access to video 
teleconferencing. Because we are offering claimants two new and 
convenient ways to participate in a personal conference--in addition to 
the face-to-face conferences at our field offices we currently offer--
we believe the need for our personnel to make costly home visits will 
significantly decrease. Therefore, we will consider conducting face-to-
face conferences at locations other than SSA field offices only on a 
case-by-case basis, and only in those limited circumstances where: (a) 
A claimant has exhausted all other means of obtaining a personal 
conference, and (b) conducting a personal conference by any other means 
would be so inadequate, owing to a claimant's physical or mental 
condition, as to infringe upon the person's right to a hearing. An 
example of such a circumstance would be a claimant who is bedridden and 
deaf, and therefore, will have considerable difficulty traveling to a 
field office and participating in a conference by phone.
    These proposed rules will not affect the individual's right to 
review the claims file, have a representative present for the 
proceedings, cross-examine witnesses, or submit documentary evidence. 
Those provisions will not change. For example, claimants who choose to 
conduct the personal conference via telephone or video teleconference 
will be given an opportunity to submit documentary evidence by mail or 
fax prior to the scheduled conference. If necessary, the conference 
could be rescheduled to allow claimants time to do this. In conducting 
the personal conference face-to-face at a place we designate, or by 
telephone, or by video teleconference, we will be fulfilling our 
stewardship responsibilities while offering an additional convenience 
to the individual and continuing to protect the individual's right to 
present his or her contention that he or she meets the requirements for 
waiver of recovery of an overpayment. The decisionmaker will still be 
able to properly assess the person's contentions regarding fault under 
these new procedures.
    We already successfully conduct some hearings by telephone and by 
video teleconference. For example, the administrative review of an 
initial determination for Medicare Part D subsidies is conducted either 
by a telephone hearing or a case review. See Sec.  418.3625. 
Additionally, some administrative hearings to review claims under title 
II (including administrative law judge review of denial of waiver based 
on a personal conference), and other claims under title XVI are now 
conducted via video teleconferencing. See Sec. Sec.  404.936 and 
416.1436. Our experience in these contexts has demonstrated that these 
procedures adequately protect a claimant's due process rights.

Explanation of Proposed Changes

    We propose to change the regulations in 20 CFR parts 404 and 416 to 
reflect the methods for conducting personal conferences when waiver of 
recovery of an overpayment cannot be approved as follows:
     We propose to change the regulations at Sec.  404.506 to 
reflect the various methods we can use to conduct the personal 
conference. These methods are: face-to-face in a location we designate 
(usually in the field office), via telephone, or via video 
teleconference.
     Currently, part 416 has no reference to personal 
conferences when waiver of recovery of the overpayment cannot be 
approved. We are proposing to add a new section that is similar to the 
regulations at Sec.  404.506. New Sec.  416.557 would include the 
various methods we can use to conduct the personal conference and 
describe the individual's rights and responsibilities regarding the 
personal conference.
    Since SSR 94-4p only provides for a pre-recoupment hearing that is 
conducted face-to-face before waiver of recovery of an overpayment can 
be denied, the proposed changes in Sec. Sec.  404.506 and 416.557 would 
expand that policy. Therefore, if we proceed to publish final rules, we 
will also publish a notice rescinding SSR 94-4p concurrently with the 
effective date of the final rules.

Clarity of These Proposed Rules

    Executive Order 12866, as amended by Executive Order 13258, 
requires each agency to write all rules in plain language. In addition 
to your substantive comments on these proposed rules, we invite your 
comments on how to make these proposed rules easier to understand. For 
example:
     Have we organized the material to suit your needs?
     Are the requirements in the rules clearly stated?
     Do the rules contain technical language or jargon that is 
not clear?
     Would a different format (grouping and order of sections, 
use of headings, paragraphing) make the rules easier to understand?
     Would more (but shorter) sections be better?
     Could we improve clarity by adding tables, lists, or 
diagrams?
     What else could we do to make the rules easier to 
understand?

Regulatory Procedures

Executive Order 12866

    We have consulted with the Office of Management and Budget (OMB) 
and determined that these proposed rules meet the criteria for a 
significant regulatory action under Executive Order 12866, as amended 
by Executive Order

[[Page 9711]]

13258. Thus, they were reviewed by OMB.

Regulatory Flexibility Act

    We certify that these proposed rules would not have a significant 
economic impact on a substantial number of small entities because they 
affect only individuals. Thus, a regulatory flexibility analysis as 
provided in the Regulatory Flexibility Act, as amended, is not 
required.

Paperwork Reduction Act

    We are proposing to revise our rules on conducting personal 
conferences when waiver of recovery of a title II or title XVI 
overpayment cannot be approved. These proposed revisions would allow 
for the conferences to be conducted face-to-face, by telephone, or by 
video teleconference. Currently, we only conduct these conferences 
face-to-face. Although these proposed rules only contain information 
collection burdens in Sec. Sec.  416.557(c)(3) and 416.557(d)(8), we 
are also including the associated information collection burdens for 
Sec. Sec.  404.506(e)(3) and 404.506(f)(8) since those sections deal 
with personal conferences. As outlined in the table below, in 
Sec. Sec.  404.506(e)(3), 404.506(f)(8), 416.557(c)(3) and 
416.557(d)(8), respondents may provide additional evidence for 
consideration at the personal conference. The collection of evidence is 
a public paperwork burden that requires clearance under the Paperwork 
Reduction Act of 1995. Respondents to these collections are individual 
and the individual's representative that request a waiver conference of 
their overpayment and submit additional evidence.

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                                                                                      Average
                                                  Annual  number   Frequency of     burden per       Estimated
     Title/section & collection description             of           response        response      annual burden
                                                    respondents                      (minutes)        (hours)
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Personal Conference 404.506(e)(3) Submittal of           150,000               1              30          75,000
 additional documents for consideration at
 personal conferences...........................
Personal Conference 404.506(f)(8) Submittal of            75,000               1              30          37,500
 additional mitigating financial information and
 verifications for consideration at personal
 conferences....................................
Personal Conference 416.557(c)(3) Submittal of           100,000               1              30          50,000
 additional documents for consideration at
 personal conferences...........................
Personal Conference 416.557(d)(8) Submittal of            50,000               1              30          25,000
 additional mitigating financial information and
 verifications for consideration at personal
 conferences....................................
                                                 ---------------------------------------------------------------
    Total.......................................         375,000  ..............  ..............         187,500
----------------------------------------------------------------------------------------------------------------

    An Information Collection Request has been submitted to OMB for 
clearance. We are soliciting comments on the burden estimate; the need 
for the information; its practical utility; ways to enhance its 
quality, utility and clarity; and on ways to minimize the burden on 
respondents, including the use of automated collection techniques or 
other forms of information technology. Comments should be sent to OMB 
by fax or by e-mail to: Office of Management and Budget, Attn: Desk 
Officer for SSA, Fax Number: 202-395-6974, E-mail address: [email protected].
    Comments on the paperwork burdens associated with this rule can be 
received for up to 60 days after publication of this notice and will be 
most useful if received within 30 days of publication. This does not 
affect the deadline for the public to comment to SSA on the proposed 
regulations. These information collection requirements will not become 
effective until approved by OMB. When OMB has approved these 
information collection requirements, SSA will publish a notice in the 
Federal Register.
    To receive a copy of the OMB clearance package, your staff may call 
the SSA Reports Clearance Officer on 410-965-0454.

(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; and 96.006, 
Supplemental Security Income)

List of Subjects

20 CFR Part 404

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

20 CFR Part 416

    Administrative practice and procedure, Aged, Blind, Disability 
benefits, Public assistance programs; Reporting and recordkeeping 
requirements, Supplemental security income (SSI).

    Dated: November 27, 2006.
Jo Anne B. Barnhart,
Commissioner of Social Security.
    For the reasons set out in the preamble, we propose to amend 
subpart F of part 404 and subpart E of part 416 of chapter III of title 
20 of the Code of Federal Regulations as follows:

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

Subpart F--[Amended]

    1. The authority citation for subpart F of part 404 continues to 
read as follows:

    Authority: Secs. 204, 205(a), 702(a)(5), and 1147 of the Social 
Security Act (42 U.S.C. 404, 405(a), 902(a)(5), and 1320b-17); 31 
U.S.C. 3720A.

    2. Section 404.506 is amended by adding a sentence at the end of 
paragraph (c) to read as follows:


Sec.  404.506  When waiver may be applied and how to process the 
request.

* * * * *
    (c) * * * We will offer to the individual the option of conducting 
the personal conference face-to-face at a place we designate, by 
telephone, or by video teleconference. The notice will advise the 
individual of the date and time of the personal conference.
* * * * *

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

Subpart E--[Amended]

    1. The authority citation for subpart E of part 416 continues to 
read as follows:


[[Page 9712]]


    Authority: Secs. 702(a)(5), 1147, 1601, 1602, 1611(c) and (e), 
and 1631(a)-(d) and (g) of the Social Security Act (42 U.S.C. 
902(a)(5), 1320b-17, 1381, 1381a, 1382(c) and (e), and 1383(a)-(d) 
and (g)); 31 U.S.C. 3720A.

    2. Section 416.557 is added to read as follows:


Sec.  416.557  Personal conference.

    (a) If waiver cannot be approved (i.e., the requirements in Sec.  
416.550 (a) and (b) are not met), the individual is notified in writing 
and given the dates, times and place of the file review and personal 
conference; the procedure for reviewing the claims file prior to the 
personal conference; the procedure for seeking a change in the 
scheduled dates, times and/or place; and all other information 
necessary to fully inform the individual about the personal conference. 
The file review is always scheduled at least 5 days before the personal 
conference. We will offer to the individual the option of conducting 
the personal conference face-to-face at a place we designate, by 
telephone, or by video teleconference. The notice will advise the 
individual of the date and time of the personal conference.
    (b) At the file review, the individual and the individual's 
representative have the right to review the claims file and applicable 
law and regulations with the decisionmaker or another of our 
representatives who is prepared to answer questions. We will provide 
copies of material related to the overpayment and/or waiver from the 
claims file or pertinent sections of the law or regulations that are 
requested by the individual or the individual's representative.
    (c) At the personal conference, the individual is given the 
opportunity to:
    (1) Appear personally, testify, cross-examine any witnesses, and 
make arguments;
    (2) Be represented by an attorney or other representative (see 
Sec.  416.1500), although the individual must be present at the 
conference; and
    (3) Submit documents for consideration by the decisionmaker.
    (d) At the personal conference, the decisionmaker:
    (1) Tells the individual that the decisionmaker was not previously 
involved in the issue under review, that the waiver decision is solely 
the decisionmaker's, and that the waiver decision is based only on the 
evidence or information presented or reviewed at the conference;
    (2) Ascertains the role and identity of everyone present;
    (3) Indicates whether or not the individual reviewed the claims 
file;
    (4) Explains the provisions of law and regulations applicable to 
the issue;
    (5) Briefly summarizes the evidence already in file which will be 
considered;
    (6) Ascertains from the individual whether the information 
presented is correct and whether he/she fully understands it;
    (7) Allows the individual and the individual's representative, if 
any, to present the individual's case;
    (8) Secures updated financial information and verification, if 
necessary;
    (9) Allows each witness to present information and allows the 
individual and the individual's representative to question each 
witness;
    (10) Ascertains whether there is any further evidence to be 
presented;
    (11) Reminds the individual of any evidence promised by the 
individual which has not been presented;
    (12) Lets the individual and the individual's representative, if 
any, present any proposed summary or closing statement;
    (13) Explains that a decision will be made and the individual will 
be notified in writing; and
    (14) Explains repayment options and further appeal rights in the 
event the decision is adverse to the individual.
    (e) SSA issues a written decision to the individual (and his or her 
representative, if any) specifying the finding of fact and conclusions 
in support of the decision to approve or deny waiver and advising of 
the individual's right to appeal the decision. If waiver is denied, 
adjustment or recovery of the overpayment begins even if the individual 
appeals.
    (f) If it appears that the waiver cannot be approved, and the 
individual declines a personal conference or fails to appear for a 
second scheduled personal conference, a decision regarding the waiver 
will be made based on the written evidence of record. Reconsideration 
is then the next step in the appeals process.

[FR Doc. E7-3782 Filed 3-2-07; 8:45 am]
BILLING CODE 4191-02-P