[Federal Register Volume 75, Number 6 (Monday, January 11, 2010)]
[Rules and Regulations]
[Pages 1271-1274]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-241]


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SOCIAL SECURITY ADMINISTRATION

20 CFR Part 416

[Docket No. SSA 2008-0034]
RIN 0960-AG66


Technical Revisions to the Supplemental Security Income (SSI) 
Regulations on Income and Resources

AGENCY: Social Security Administration.

ACTION: Final rules.

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SUMMARY: We are amending our Supplemental Security Income (SSI) 
regulations by making technical revisions to our rules on income and 
resources. Many of these revisions reflect legislative changes found in 
the Consolidated Appropriations Act of 2001 (CAA), the Economic Growth 
and Tax Relief Reconciliation Act of 2001 (EGTRRA), an amendment to the 
National Flood Insurance Act of 1968 (NFIA), the Energy Employees 
Occupational Illness Compensation Program Act of 2000 (EEOICPA), and 
the Social Security Protection Act of 2004 (SSPA). We are also amending 
our SSI rules to extend the home exclusion to beneficiaries who, 
because of domestic abuse, leave a home that had otherwise been an 
excludable resource. Finally, we are updating our ``conditional-
payment'' rule to eliminate the liquid-resource requirement as a 
prerequisite to receiving conditional-benefit payments.

DATES: These final rules are effective on February 10, 2010.

FOR FURTHER INFORMATION CONTACT: Donna Gonzalez, Social Insurance 
Specialist, Social Security Administration, Office of Income Security 
Programs, 252 Altmeyer Building, 6401 Security Boulevard, Baltimore, MD 
21235-6401, (410) 965-7961, 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.

Explanation of Changes

    We are revising and making final the rules we proposed in the 
notice of proposed rulemaking (NPRM) published in the Federal Register 
on December 9, 2008 (73 FR 74663). These conforming changes revise our 
regulations to reflect legislation enacted during the past several 
years and to address two policy concerns.

Background

    The primary goal of the SSI program is to ensure a minimum level of 
income to people who are aged 65 or older, blind, or disabled, and who 
have limited income and resources. The law provides that SSI payments 
can be made only to people who have income and resources below 
specified amounts. Therefore, income and resources are major factors in 
deciding SSI eligibility and the amount of any SSI payments.

The Changes We Are Making in These Final Rules

    We discuss below the changes we are making in these final rules. We 
have grouped the changes by the policy areas affected.

Statutory Employees

    Statutory employees are certain independent contractors, including 
agent-drivers or commission-drivers, certain full-time life insurance 
salespersons, home workers, and traveling or city salespersons. Social 
Security Act (Act) at 210(j)(3) (42 U.S.C. 410(j)(3)). We are revising 
section 416.1110(b) to update the definition of net earnings from self-
employment to include the earnings of statutory employees, as provided 
under section 519 of the CAA, which amended section 1612(a)(1) of the 
Act (42 U.S.C. 1382a(a)(1)). See Public Law 106-554, app. A, 519 (Dec. 
21, 2000). Previously, we treated statutory employees the same as 
employees for SSI eligibility and payment-amount purposes and 
considered their wages as earned income. After this change to the Act, 
we now treat statutory employees as self-employed individuals and count 
only their net earnings, deducting business expenses before calculating 
their income.

Exclusion of Child Tax Credit (CTC) From Income and Resources

    We exclude from income the payment of a refundable CTC pursuant to 
the EGTRRA. Public Law 107-16, section 203, 115 Stat. 49 (June 7, 2001) 
(referring to Internal Revenue Code section 24, 26 U.S.C. 24). This 
exclusion, which was effective for SSI purposes for taxable years 
beginning on or after January 1, 2001, is not currently in our 
regulations. We also exclude the payment of a refundable CTC from 
resources for the 9 months following the month of receipt. Currently 
the resource exclusion is included under section 416.1236, titled 
``Exclusions from resources; provided by other statutes.'' This 
resource exclusion is now provided in the Act at 1613(a)(11) (42 U.S.C. 
1382b(a)(11)), as amended by the SSPA, Public Law 108-203, 431 (Mar. 2, 
2004). We are making the following revisions to conform to these 
changes:
     We are adding new paragraph (m) under the heading ``V. 
Other,'' in the appendix to subpart K to exclude from income a 
refundable CTC paid under section 24 of the Internal Revenue Code of 
1986. This appendix section lists types of income excluded under the 
SSI program as provided by Federal laws other than the Act.
     We are amending section 416.1235 to correctly reflect that 
the exclusion for payment of a refundable CTC is now provided under the 
Act. This provision previously appeared in our rules at section 
416.1236(a)(24) within a list of exclusions provided by other statutes. 
We are moving this exclusion to section 416.1235 but we are not making 
any substantive changes to it. Under this provision, a CTC payment is 
excluded from resources for SSI purposes during the month the payment 
is received and the following month for payments received before March 
2, 2004, and for the 9 months following the month of receipt for 
payments received on or after March 2, 2004. We also are changing the 
title of this section to more accurately reflect its contents.
     We are adding new paragraph (v) to section 416.1210, which 
provides a list of general resources we do not count when determining 
SSI eligibility. This new paragraph excludes from resources the payment 
of a refundable CTC and includes a cross-reference to section 416.1235.
     We are removing from section 416.1236(a) former paragraph 
(24), which had excluded from resources the payment of a refundable 
CTC. As

[[Page 1272]]

described above, we are adding this exclusion to section 416.1235.

Exclusion of Flood Mitigation Payments From Income and Resources

    Payments made for flood mitigation activities are not counted as 
income or resources when determining SSI eligibility and payment 
amounts. These exclusions are pursuant to an amendment to the NFIA of 
1968. NFIA, section 1324, as amended by Public Law 109-64, section 1 
(Jan. 7, 2005). We are making the following revisions to conform to 
these changes:
     We are adding new paragraph (n) under the heading ``V. 
Other,'' in the appendix to subpart K to exclude from income payments 
made for flood mitigation activities.
     We are adding new paragraph (24) to section 416.1236(a) to 
exclude from resources payments for flood mitigation activities.

Exclusion of Energy Employee Occupational Illness Medical Benefits and 
Compensation Payment From Income and Resources

    Medical benefits and compensation payments made to energy employees 
because of occupational illnesses are not counted as income or 
resources for purposes of determining eligibility to receive, or for 
determining the amount of, certain Federal benefits, including SSI. 
These exclusions are provided under section 3646 of the Appendix to 
Public Law 106-398, which established the EEOICPA in October 2000. 
Public Law 106-398, section 1, app., title XXXVI (October 30, 2000) 
(section 1 adopting as Appendix H.R. 5408). We are making the following 
revisions to conform to these changes:
     We are adding new paragraph (o) under the heading ``V. 
Other,'' in the appendix to subpart K to exclude from income medical 
benefits and compensation payments made under the EEOICPA.
     We are adding new paragraph (25) to section 416.1236(a) to 
exclude from resources medical benefits and compensation payments made 
under the EEOICPA.

Home Exclusion to Victims of Domestic Abuse

    An SSI applicant's or beneficiary's home and associated land are 
excluded from resources by section 1613(a)(1) of the Act. Regulations 
provide that the home is excluded so long as it serves as the principal 
place of residence, or the SSI applicant or beneficiary maintains an 
active intent to return to the residence. The home is also not counted 
as a resource, regardless of the intent to return, if the SSI applicant 
or beneficiary resides in an institution, and a spouse or dependent 
relative continues to maintain residence in the home during the period 
of institutionalization.
    Advocacy groups have expressed concern regarding the counting of a 
home as a resource in instances where a victim of domestic abuse leaves 
the home and resides elsewhere. Currently, a victim fleeing from 
domestic abuse may return to a potentially dangerous home environment 
simply to avoid losing SSI because of an ownership interest in the 
home. We agree with these concerns and are amending our rules. We are 
adding new paragraph (d) to section 416.1212 to extend the home 
exclusion to victims of domestic abuse who flee an abusive situation, 
but maintain an ownership interest in an otherwise excluded home. This 
exclusion continues until the SSI applicant or beneficiary establishes 
a new principal place of residence or takes other action rendering the 
home no longer excludable.

Conditional Payments

    An individual who meets all but the resource requirements for SSI 
may have little or nothing on which to live if most of his or her 
resources are non-liquid and difficult to convert to cash. Section 
416.1240(a) contains an exception to our ordinary resource rules, which 
allows us to pay monthly SSI payments in certain circumstances when an 
SSI applicant or beneficiary possesses excess non-liquid resources. We 
can make ``conditional payments'' to give an SSI applicant or 
beneficiary some time in which to sell excess non-liquid resources and 
convert them to cash. We condition these payments on the SSI 
applicant's or beneficiary's written agreement to sell these non-liquid 
resources within 9 months for real property and within 3 months for all 
other non-liquid resources and repay the conditional payments with the 
proceeds.
    Under current rules, we will not make conditional payments if the 
SSI applicant or beneficiary has countable liquid resources in excess 
of 3 times the monthly Federal Benefit Rate (FBR). The original purpose 
of the liquid-resource limit was to ensure that an SSI applicant or 
beneficiary truly needed the conditional-payment period. If an SSI 
applicant or beneficiary did not have liquid resources equal to 3 
months worth of SSI payments, then we assumed that he or she had 
inadequate liquid resources to meet day-to-day expenses. However, if 
this SSI applicant or beneficiary had excess non-liquid resources, he 
or she could agree to dispose of those excess resources using the 
conditional-payment rule. Conversely, if an SSI applicant or 
beneficiary had liquid resources worth more than 3 times the FBR, then 
we assumed that he or she had adequate resources and did not need 
conditional payments.
    When we established this rule over 30 years ago, 3 months worth of 
SSI payments was equal to only about 32% of the resource limit. Since 
then, the FBR has increased annually, and the resource limit has grown 
slowly or not at all. As of January 2009, 3 times the monthly FBR is 
more than the statutory limit on total resources and, therefore, has 
become meaningless. Accordingly, we are deleting the limitation on 
liquid resources in paragraph (a)(1) that was a prerequisite to 
receiving conditional-benefit payments to simplify our conditional-
payments rule. We are also adding a technical cross-reference to 
paragraphs (a)(1) and (a)(2) in paragraphs (b) and (c) of section 
416.1240, which was not included in the NPRM.

Public Comments

    In the NPRM, we provided the public a 60-day period within which to 
comment on our proposed changes. That comment period ended on February 
9, 2009. We received two comments, one from an individual and another 
from an organization, both of which indicated full agreement with our 
proposed changes. Therefore, we are publishing the text of the proposed 
rules substantively unchanged in these final rules, except we also have 
added the cross-reference noted above to paragraphs (b) and (c) of 
section 416.1240.

Regulatory Procedures

Executive Order 12866

    The Office of Management and Budget (OMB) determined that the 
proposed rules published on December 9, 2008 at 73 FR 74663, on which 
we base these final rules, met the criteria for a significant 
regulatory action under Executive Order 12866. Therefore, those 
proposed rules were subject to OMB review. We received no adverse 
comments on the proposed rules and are publishing these final rules 
substantively as proposed, with the exception noted above to add a 
cross-reference. Thus, OMB has waived further review of these rules.

Regulatory Flexibility Act

    We certify that these final rules will not have a significant 
economic impact

[[Page 1273]]

on a substantial number of small entities as they affect individuals 
only. Therefore, a regulatory flexibility analysis as provided in the 
Regulatory Flexibility Act, as amended, is not required.

Paperwork Reduction Act

    These final rules impose no reporting or recordkeeping requirements 
subject to OMB 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: January 5, 2010.
Michael J. Astrue,
Commissioner of Social Security.

0
For the reasons set forth in the preamble, we amend subparts K and L of 
part 416 of chapter III of title 20 of the Code of Federal Regulations 
as follows:

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

Subpart K--[Amended]

0
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, 1631, and 1633 of the Social Security Act (42 U.S.C. 
902(a)(5), 1381a, 1382, 1382a, 1382b, 1382c(f), 1382j, 1383, and 
1383b); sec. 211, Pub. L. 93-66, 87 Stat. 154 (42 U.S.C. 1382 note).


0
2. Revise Sec.  416.1110 paragraph (b) to read as follows:


Sec.  416.1110  What is earned income.

* * * * *
    (b) Net earnings from self-employment. Net earnings from self-
employment are your gross income from any trade or business that you 
operate, less allowable deductions for that trade or business. Net 
earnings also include your share of profit or loss in any partnership 
to which you belong. For taxable years beginning before January 1, 
2001, net earnings from self-employment under the SSI program are the 
same net earnings that we would count under the social security 
retirement insurance program and that you would report on your Federal 
income tax return. (See Sec.  404.1080 of this chapter.) For taxable 
years beginning on or after January 1, 2001, net earnings from self-
employment under the SSI program will also include the earnings of 
statutory employees. In addition, for SSI purposes only, we consider 
statutory employees to be self-employed individuals. Statutory 
employees are agent or commission drivers, certain full-time life 
insurance salespersons, home workers, and traveling or city 
salespersons. (See Sec.  404.1008 of this chapter for a more detailed 
description of these types of employees).
* * * * *

0
3. Amend the appendix to subpart K of part 416 by adding new paragraphs 
(m), (n), and (o) under Part V to read as follows:

Appendix to Subpart K of Part 416--List of Types of Income Excluded 
Under the SSI Program as Provided by Federal Laws Other Than the Social 
Security Act

* * * * *

V. Other

* * * * *
    (m) Payments of the refundable child tax credit made under 
section 24 of the Internal Revenue Code of 1986, pursuant to section 
203 of the Economic Growth and Tax Relief Reconciliation Act of 
2001, Public Law 107-16 (115 Stat. 49, 26 U.S.C. 24 note).
    (n) Assistance provided for flood mitigation activities as 
provided under section 1324 of the National Flood Insurance Act of 
1968, pursuant to section 1 of Public Law 109-64 (119 Stat. 1997, 42 
U.S.C. 4031).
    (o) Payments made to individuals under the Energy Employees 
Occupational Illness Compensation Program Act of 2000, pursuant to 
section 1 [Div. C, Title XXXVI section 3646] of Public Law 106-398 
(114 Stat. 1654A-510, 42 U.S.C. 7385e).

Subpart L--[Amended]

0
4. 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, 1631, and 1633 of the Social Security Act (42 U.S.C. 
902(a)(5), 1381a, 1382, 1382a, 1382b, 1382c(f), 1382j, 1383, and 
1383b); sec. 211, Pub. L. 93-66, 87 Stat. 154 (42 U.S.C. 1382 note).


0
5. Amend Sec.  416.1210 by:
0
a. Adding a comma in the introductory sentence after ``(and spouse, if 
any)'';
0
b. Removing the word ``and'' from the end of paragraph (t);
0
c. Removing the period at the end of paragraph (u) and adding in its 
place ``; and''; and
0
d. Adding a new paragraph (v) to read as follows:


Sec.  416.1210  Exclusions from resources; general.

* * * * *
    (v) Payment of a refundable child tax credit, as provided in Sec.  
416.1235.

0
6. Amend Sec.  416.1212 by:
0
a. Redesignating paragraphs (d) through (g) as (e) through (h) and 
adding a new paragraph (d) to read as set forth below;
0
b. In redesignated paragraph (e)(2)(ii), removing the reference to 
``paragraph (e)'' and adding in its place a reference to ``paragraph 
(f)'';
0
c. In redesignated paragraph (e)(2)(iii), removing the reference to 
``paragraph (f)'' and adding in its place a reference to ``paragraph 
(g)''; and
0
d. In redesignated paragraph (f), removing the reference to ``paragraph 
(d)(2)(ii) of this section'' and adding in its place a reference to 
``paragraph (e)(2)(ii) of this section'', and removing the reference to 
``paragraph (f)'' and adding in its place a reference to ``paragraph 
(g)''.


Sec.  416.1212  Exclusion of the home.

* * * * *
    (d) If an individual leaves the principal place of residence due to 
domestic abuse. If an individual moves out of his or her home without 
the intent to return, but is fleeing the home as a victim of domestic 
abuse, we will not count the home as a resource in determining the 
individual's eligibility to receive, or continue to receive, SSI 
payments. In that situation, we will consider the home to be the 
individual's principal place of residence until such time as the 
individual establishes a new principal place of residence or otherwise 
takes action rendering the home no longer excludable.
* * * * *

0
7. Revise Sec.  416.1235 to read as follows:


Sec.  416.1235  Exclusion of certain payments related to tax credits.

    (a) In determining the resources of an individual (and spouse, if 
any), we exclude for the 9 months following the month of receipt the 
following funds received on or after March 2, 2004, the unspent portion 
of:
    (1) Any payment of a refundable credit pursuant to section 32 of 
the Internal Revenue Code (relating to the earned income tax credit);
    (2) Any payment from an employer under section 3507 of the Internal 
Revenue Code (relating to advance payment of the earned income tax 
credit); or
    (3) Any payment of a refundable credit pursuant to section 24 of 
the Internal Revenue Code (relating to the child tax credit).
    (b) Any unspent funds described in paragraph (a) of this section 
that are retained until the first moment of the

[[Page 1274]]

tenth month following their receipt are countable as resources at that 
time.
    (c) Exception: For any payments described in paragraph (a) of this 
section received before March 2, 2004, we will exclude for the month 
following the month of receipt the unspent portion of any such payment.


0
8. Amend Sec.  416.1236 by revising paragraph (a)(24) and adding a new 
paragraph (a)(25) to read as follows:


Sec.  416.1236  Exclusions from resources; provided by other statutes.

    (a) * * *
    (24) Assistance provided for flood mitigation activities under 
section 1324 of the National Flood Insurance Act of 1968, pursuant to 
section 1 of Public Law 109-64 (119 Stat. 1997, 42 U.S.C. 4031).
    (25) Payments made to individuals under the Energy Employees 
Occupational Illness Compensation Program Act of 2000, pursuant to 
section 1, app. [Div. C. Title XXXVI section 3646] of Public Law 106-
398 (114 Stat. 1654A-510, 42 U.S.C. 7385e).
* * * * *

0
9. Revise Sec.  416.1240 to read as follows:


Sec.  416.1240  Disposition of Resources.

    (a) Where the resources of an individual (and spouse, if any) are 
determined to exceed the limitations prescribed in Sec.  416.1205, such 
individual (and spouse, if any) shall not be eligible for payment 
except under the conditions provided in this section. Payment will be 
made to an individual (and spouse, if any) if the individual agrees in 
writing to:
    (1) Dispose of, at current market value, the nonliquid resources 
(as defined in Sec.  416.1201(c)) in excess of the limitations 
prescribed in Sec.  416.1205 within the time period specified in Sec.  
416.1242; and
    (2) Repay any overpayments (as defined in Sec.  416.1244) with the 
proceeds of such disposition.
    (b) Payment made for the period during which the resources are 
being disposed of will be conditioned upon the disposition of those 
resources as prescribed in paragraphs (a)(1) and (a)(2) of this 
section. Any payments so made are (at the time of disposition) 
considered overpayments to the extent they would not have been paid had 
the disposition occurred at the beginning of the period for which such 
payments were made.
    (c) If an individual fails to dispose of the resources as 
prescribed in paragraphs (a)(1) and (a)(2) of this section, regardless 
of the efforts he or she makes to dispose of them, the resources will 
be counted at their current market value and the individual will be 
ineligible due to excess resources. We will use the original estimate 
of current market value unless the individual submits evidence 
establishing a lower value (e.g., an estimate from a disinterested 
knowledgeable source).

[FR Doc. 2010-241 Filed 1-8-10; 8:45 am]
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