[Federal Register Volume 73, Number 8 (Friday, January 11, 2008)]
[Rules and Regulations]
[Pages 1970-1974]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-314]


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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 (SSA).

ACTION: Final rules.

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

DATES: These final rules are effective February 11, 2008.

[[Page 1971]]


FOR FURTHER INFORMATION CONTACT: Robin Strauss, Social Insurance 
Specialist, Social Security Administration, Office of Income Security 
Programs, 252 Altmeyer Building, 6401 Security Boulevard, Baltimore, MD 
21235-6401, (410) 965-7944, for information about this Federal Register 
document. 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 a title II overpayment if the individual was without fault 
in causing the overpayment and if recovery would defeat the purpose of 
title II 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 a 
title XVI 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 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 are revising 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. Any individual who is interested 
in conducting the personal conference by video teleconference can 
contact us for additional information and assistance with this process. 
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. This 
process is in no way meant to circumscribe an individual's right to 
reasonable accommodation or to relieve SSA of our responsibility to 
provide such accommodation in accordance with 29 U.S.C. 794.
    These final 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, 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 Changes

    We are changing 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 are changing 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 adding a new section that is similar to the 
regulations at Sec.  404.506. New Sec.  416.557 includes the various 
methods we can use to conduct the personal conference and describes the 
individual's rights and

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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 changes in Sec. Sec.  404.506 and 416.557 expand that 
policy. Therefore, we are also publishing a notice rescinding SSR 94-4p 
concurrently with the effective date of these final rules on the same 
day we publish these final rules.

Public Comments

    On March 5, 2007, we published proposed rules in the Federal 
Register at 72 FR 9709 and provided a 60-day comment period. We 
received comments from two organizations and one individual. The 
comments from the individual were totally supportive of the proposed 
rules, noting that the rule will provide beneficiaries with practical 
options for presenting further evidence in favor of waiver of recovery, 
even when they cannot appear at the SSA office for a face-to-face 
conference. We carefully considered all of the comments in publishing 
these final rules. Because some of the comments were long and quite 
detailed, we have condensed, summarized and paraphrased them in the 
following discussion. However, we have tried to present all views 
adequately and to address carefully all of the significant issues 
raised by the commenters that are within the scope of the proposed 
rules. We have not addressed in this preamble comments that are outside 
the scope of the rulemaking proceeding.
    Comment: Both organizations which commented raised the concern that 
the regulations were not consistent with SSA's obligation under Section 
504 of the Rehabilitation Act to provide reasonable accommodation for 
disabled individuals. In support of this proposition, both commenters 
cited the example in the preamble. This example said that SSA would 
consider conducting a face-to-face personal conference at a location 
other than an SSA field office where the claimant was deaf and 
bedridden. The commenters were concerned that this implies that SSA 
will only provide accommodation and accessibility measures to the most 
severely limited program participants and not to all persons with 
disabilities.
    Response: The example in the preamble was not intended to represent 
the only type of situation in which SSA would consider conducting a 
face-to-face personal conference at a location other than an SSA field 
office. These requests will be decided on a case-by-case basis and will 
be consistent with our obligations under section 504 of the 
Rehabilitation Act to provide reasonable accommodation to disabled 
people. To avoid any confusion, we did not include the example in the 
preamble to these final rules.
    Comment: One organization commented that they felt that our 
criteria for considering conducting face-to-face conferences at 
locations other than SSA field offices (described in paragraph three of 
the ``Background'' section of the preamble), ``seems to circumscribe 
individual rights under section 504.'' They recommend that SSA either 
withdraw this statement or redraft it to be more consistent with 
section 504.
    Response: We do not feel that the description of when a face-to-
face personal conference will be conducted at a location other than an 
SSA field office circumscribes the claimant's rights in any way. In 
addition to conducting personal conferences face-to-face in the field 
office, the new rule offers beneficiaries two additional options for 
conducting personal conferences (by telephone and by video 
teleconferencing) and retains an option for face-to-face conferences at 
locations other than the field office on a case-by-case basis. We 
believe that this procedure is consistent with our obligation to 
provide reasonable accommodation under the Rehabilitation Act. However, 
to make our intent clear, we have added a sentence at the end of the 
paragraph explaining that the intent of this regulation is neither to 
circumscribe the individual's right to request reasonable accommodation 
nor to relieve SSA of its obligation to provide it in accordance with 
the law.
    Comment: One organization suggested that the regulation be more 
specific about the different ways in which a personal conference can be 
conducted, such as by text telephone. Both organizations which 
commented recommended that specific language be included in the 
regulation about SSA's responsibility to provide reasonable 
accommodation.
    Response: Our offices regularly conduct business via text 
telephone, relay services, and various other methods. These methods are 
all implied when we describe conducting a personal conference by 
telephone. As to the suggestion for including specific language in the 
regulation about SSA's responsibility to provide reasonable 
accommodation, we do not believe that this is necessary. Section 504 of 
the Rehabilitation Act already sets forth SSA's obligation to provide 
reasonable accommodation to disabled individuals. Our statement in 
paragraph three of the Background section of the preamble evidences our 
understanding of that obligation in the personal conference context.
    Comment: One of the organizations was concerned that local SSA 
offices may attempt to coerce claimants into choosing an option for 
conducting the personal conference that is most convenient for their 
office. They suggest that SSA require the distribution of information 
about a disabled individual's right to request reasonable accommodation 
in the personal conference process, and to ensure that employees in the 
field offices understand the importance of providing disabled 
individuals with this information.
    Response: The field office personnel deal with disabled claimants 
daily, and understand SSA's obligation to provide reasonable 
accommodation when requested. Also, as described in the regulation, it 
is the claimant who chooses the method for conducting the personal 
conference. We expect that they would select the option that best 
accommodates any limitations they may have.
    Comment: One commenter suggested that adjustment to recover the 
overpayment after waiver of recovery is denied should be delayed, if 
the claimant appeals the decision, until after the appeals process has 
ended. They state that this is a more equitable way of collecting the 
overpayments, particularly for disabled individuals with low incomes.
    Response: Beginning adjustment or recovery of an overpayment 
following denial of waiver of recovery does not constitute any change 
in existing policy. See Sec.  404.506(g). As stated under the 
``Explanation of Changes'' section of this preamble, part 416 did not 
have a reference to personal conferences when waiver of recovery of the 
overpayment cannot be approved. We simply added a new section that is 
similar to the regulations at Sec.  404.506 to the title XVI 
regulations that codifies the policies on personal conferences that 
have long been in place. Courts have found that this process comports 
with due process and with the statute. With regard to the commenter's 
concerns about recoupment from low-income title XVI beneficiaries, our 
regulations provide a 10 percent limitation of recoupment rate for 
title XVI overpayments in most cases. Additionally, individuals are 
given the opportunity to request that the adjustment or recovery be 
made at a lower rate than the one proposed. If an individual requests a 
lower rate, a rate of withholding that is appropriate to the

[[Page 1973]]

financial condition of the overpaid individual will be set after 
evaluation of all the pertinent facts. See Sec.  416.571.
    Comment: One organization was concerned that these changes will 
make it more difficult for the claimant to receive and provide 
pertinent information, and for SSA personnel to make credibility 
determinations. They are also concerned that many claimants, 
particularly those who can least afford to repay an overpayment, will 
not have access to technology such as video teleconferencing equipment.
    Response: As cited in the ``Background'' section of this preamble, 
SSA is already successfully conducting some hearings by telephone and 
by video teleconference, including administrative law judge review of 
denial of waiver based on a personal conference. As for a claimant's 
access to certain technological equipment, the method of conducting the 
personal conference is their choice and, as stated above, holding a 
face-to-face conference at a location other than the SSA field office 
will be considered on a case-by-case basis, if requested. Moreover, any 
individual who is interested in conducting the personal conference by 
video teleconference can contact us for additional information and 
assistance with this process.

Other Changes

    In addition to the changes already discussed above, we have made 
minor, non-substantive changes for clarification purposes only.

Regulatory Procedures

Executive Order 12866

    We have consulted with the Office of Management and Budget (OMB) 
and determined that these final rules meet the criteria for a 
significant regulatory action under Executive Order 12866, as amended. 
Thus, they were reviewed by OMB. We have also determined that these 
final rules meet the plain language requirement of Executive Order 
12866, as amended.

Regulatory Flexibility Act

    We certify that these final 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

    These final rules contain information collection burdens in 
Sec. Sec.  416.557(c)(3) and 416.557(d)(8) that require OMB clearance 
under the Paperwork Reduction Act of 1995 (PRA). As required by the 
PRA, we have submitted a clearance request to OMB for approval of these 
sections. (As requested by OMB, we also included associated sections 
Sec. Sec.  404.506(e)(3) and 404.506(f)(8), which deal with personal 
conferences but are not included in the text of the regulation). We 
will publish the OMB number and expiration date upon approval.
    As required by the PRA, we published a notice of proposed 
rulemaking on March 5, 2007 at 72 FR 9709, in which we solicited 
comments under the PRA 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. No public comments were submitted relating to 
any of these issues.

(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.

    Dated: November 30, 2007.
Michael J. Astrue,
Commissioner of Social Security.

0
For the reasons set out in the preamble, we are amending 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]

0
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.


0
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]

0
1. The authority citation for subpart E of part 416 continues to read 
as follows:

    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.


0
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 date, time 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.

[[Page 1974]]

    (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 findings 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 the next step in the appeals process.

[FR Doc. E8-314 Filed 1-10-08; 8:45 am]
BILLING CODE 4191-02-P