[Federal Register Volume 89, Number 60 (Wednesday, March 27, 2024)]
[Rules and Regulations]
[Pages 21199-21211]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-06464]
[[Page 21199]]
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SOCIAL SECURITY ADMINISTRATION
20 CFR Part 416
[Docket No. SSA-2021-0014]
RIN 0960-AI60
Omitting Food From In-Kind Support and Maintenance Calculations
AGENCY: Social Security Administration.
ACTION: Final rule.
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SUMMARY: We are updating our Supplemental Security Income (SSI)
regulations to remove food from the calculations of In-Kind Support and
Maintenance (ISM). We are also adding conforming language to our
definition of income. These changes simplify our rules by making them
less cumbersome to administer and easier for the public to understand
and follow, and they improve the equitable treatment of food assistance
within the SSI program. This final rule also includes other minor
revisions to our regulations related to income, including clarifying
our longstanding position that income may be received
``constructively.''
DATES: This final rule will be effective September 30, 2024.
FOR FURTHER INFORMATION CONTACT: Tamara Levingston, Office of Income
Security Programs, 6401 Security Blvd., Robert M. Ball Building, Suite
2512B, Woodlawn, MD 21235, 410-966-7384. 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 https://www.socialsecurity.gov/.
SUPPLEMENTARY INFORMATION:
Background
The SSI program provides monthly payments to adults and children
with a disability or blindness, and to adults aged 65 and older. These
individuals must meet multiple eligibility requirements, including
having resources and income below specified amounts.\1\ Resources are
cash or other liquid assets or any real or personal property that
individuals (or their spouses, if any) own and could convert to cash to
be used for their support and maintenance.\2\ Income is anything
individuals receive in cash or in-kind that they can use to meet their
food and shelter needs.\3\ Individuals' resources may affect their SSI
eligibility, while their income may affect both their eligibility and
payment amounts.
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\1\ See 20 CFR 416.202 for a list of the eligibility
requirements. See also 20 CFR 416.420 for general information on how
we compute the amount of the monthly payment by reducing the benefit
rate by the amount of countable income as calculated under the rules
in subpart K of 20 CFR part 416.
\2\ 20 CFR 416.1201(a).
\3\ 20 CFR 416.1102. See also 20 CFR 416.1103 for examples of
items that are not considered income.
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Both earned income and unearned income include items received in-
kind.\4\ Generally, we value in-kind items at their current market
value, and we apply the various exclusions for both earned and unearned
income.\5\ However, we have special rules for valuing in-kind support
and maintenance (ISM) that is received as unearned income.\6\ On
February 15, 2023, we published a Notice of Proposed Rulemaking (NPRM),
Omitting Food From In-Kind Support and Maintenance Calculations,\7\
which proposed updating our regulations to exclude food from the ISM
calculations and adding conforming language to our definition of
income.
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\4\ See 20 CFR 416.1110 and 20 CFR 416.1120.
\5\ See 20 CFR 416.1111(d), 416.1112, 416.1123(c), and 416.1124.
\6\ See 20 CFR 416.1123(c) and 416.1131-1147.
\7\ 88 FR 9779.
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We are making these changes based on the Commissioner of Social
Security's rulemaking authority specified in sections 205(a),
702(a)(5), 1631(d)(1), 1631(e)(1)(A), and 1633(a) of the Social
Security Act. These sections of the Act give the Commissioner the
authority to adopt rules relating to, among other things, what data the
Commissioner determines is necessary for the agency to collect for the
effective and efficient administration of the SSI program, as well as
the nature and extent of the evidence applicants and recipients need to
provide to establish benefit eligibility. The modifications to our
policy regarding how we will calculate ISM are a proper exercise of the
Commissioner's rulemaking authority under the Act. The NPRM includes a
full discussion of the ISM policy as well as the rationale for and
analysis of this policy change, which we adopt in this final rule
except as indicated in the following modifications.
Under this final rule, we no longer consider food expenses in our
ISM calculations. Instead, we will consider only shelter expenses
(i.e., room, rent, mortgage payments, real property taxes, heating
fuel, gas, electricity, water, sewerage, and garbage collection
services). We will continue to use the Value of the One-Third Reduction
(VTR) rule \8\ and the Presumed Maximum Value (PMV) rule in determining
the value of ISM to an SSI applicant or recipient.\9\
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\8\ When we apply the VTR rule, we count one-third of the
Federal Benefit Rate (FBR) as unearned income. See 42 U.S.C.
1382a(a)(2)(A); 20 CFR 416.1131(a). For information on the FBR, see
20 CFR 416.405 through 416.415. Some States supplement the FBR
amount.
\9\ When we apply the PMV rule, we count the set maximum value
as unearned income, unless the applicant or recipient rebuts this
presumption. See 20 CFR 416.1140. The set maximum value is one-third
of the FBR, plus the amount of the general income exclusion, see
id., which is currently $20, see 20 CFR 416.1124(c)(12).
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Though we are omitting food expenses from our ISM calculations, we
will still ask a question about food for the narrow purpose of
determining whether to use the VTR rule or the PMV rule. Food expenses
would not be included in the actual calculation; they will only be
considered in determining whether to apply the VTR or PMV rule. When an
applicant or recipient \10\ tells us that they live in another person's
household, we will ask if others within the household pay for or
provide them with all their meals. If the applicant or recipient
answers ``no,'' we will value the shelter using the PMV rule. If the
applicant or recipient answers ``yes,'' we will then evaluate the
applicant's or recipient's shelter contribution to determine if the PMV
rule or the VTR rule applies. If the VTR rule does not apply, then we
will evaluate any ISM under the PMV rule. Asking only the one question
is a change from what we proposed. In the NPRM, we proposed asking
three questions to assess whether an applicant or recipient purchased
food separately from the household. These were: (1) do you buy food
separately from the household? (2) do you eat all meals out? and (3) do
you receive Supplemental Nutrition Assistance Program (SNAP) benefits?
\11\ In this final rule, we revised these three questions into one
single question to better enable us to identify applicants and
recipients who should have their shelter valued under the PMV rule
because they obtain food outside of their household. Our original three
questions might have disadvantaged some applicants and recipients
because they would not have identified all potential circumstances in
which the PMV rule currently applies (and because the PMV rule can be
rebutted, it is more advantageous in some circumstances). For example,
our original three questions would not have identified situations
where: applicants and recipients receive benefits from food-assistance
programs other than SNAP;
[[Page 21200]]
people outside of the household pay for or provide food or meals; or
applicants or recipients earmark contributions for a pro rata share of
the household's food expenses under the previous process.
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\10\ We refer to ``applicant or recipient'' here and throughout
this final rule when we mean ``applicant, recipient, or couple'' for
ease of reference, except where reference to the couple is
specifically relevant.
\11\ See 88 FR 9785.
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We will apply the VTR rule when applicants or recipients (1) live
in another person's household throughout a month; (2) receive shelter
from others living in the household; and (3) others within the
household pay for or provide all the applicant's or recipient's meals.
By definition, claimants who live in their own households will not be
assessed under VTR. Alternatively, we will apply the PMV rule when an
applicant or recipient receives ISM, but the VTR rule does not apply.
This means we will apply the PMV rule when applicants or recipients:
(1) live in another person's household and receive shelter from others
living in the household, but others within the household do not pay for
or provide all the applicant's or recipient's meals; (2) live in their
own household, but someone helps provide them with shelter; or (3) live
in a non-medical institution as described in 20 CFR 416.1141(c). Under
the PMV rule, applicants and recipients may rebut the presumption that
shelter is worth the set maximum value by showing the actual value is
lower than the set maximum value.\12\
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\12\ If applicants or recipients successfully rebut that
presumption, we reduce their benefits by a smaller amount or not at
all. See 20 CFR 416.1140(2)(ii).
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In addition, we are updating our regulations with clarifying
language. Our previous regulations stated that for the VTR rule to
apply, applicants or recipients must receive both food and shelter from
the person in whose household they are living. In practice, when
determining whether to apply the VTR rule, we consider others in the
household as well. We are clarifying this longstanding practice in our
regulations. Specifically, in 20 CFR 416.1131(a)(2) and (3), we have
changed the language to indicate that we will consider food and shelter
received ``from others living in the household''--not just from the
person in whose household the applicant or recipient is living.
This final rule also clarifies that income may be received
``constructively.'' For purposes of the definition of income in 20 CFR
416.1102, income may be received ``actually'' or ``constructively.'' As
we explained in our NPRM, income is received constructively if it is
under the applicant's or recipient's control, or the applicant or
recipient can use it despite not actually receiving it, unless there
are significant restrictions on the applicant's or recipient's ability
to receive it.\13\ Constructive receipt of income is part of our
current policy, and this change makes it clearer.
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\13\ 88 FR 9784 (Feb. 15, 2023).
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Severability
In the event of an invalidation of any part of this rule, our
intent is to preserve the remaining portions of the rule to the fullest
possible extent. In particular, we intend the clarification of
consideration of others in the household in 20 CFR 416.1131 to be
severable, as it better explains our current policy and functions
independently of the other changes reflected in this final rule. We
also intend the clarification of constructive receipt of income in 20
CFR 416.1102 to be severable, as it better explains our current policy
and functions independently of the other changes reflected in this
final rule.
Justification for Change
We historically included in-kind receipt of food in our ISM
calculations because food assistance helps people meet their basic
needs. However, the complexities of our current food ISM policies
outweigh their utility. As discussed in the NPRM in much greater
detail, we are revising our policy for several purposes, including to
make our policies simpler (and thus easier to comprehend and use), and
to promote equity both by treating food assistance equally regardless
of the source and by not disadvantaging an already vulnerable
population when they receive food assistance.\14\ First, this final
rule simplifies SSI policy because it removes a variable from our ISM
calculations, which, in turn, will: reduce the amount of program rules
an applicant or recipient needs to understand; reduce the amount of
information that applicants or recipients must report; simplify and
shorten processing; and lead to fewer benefit recalculations and
payment errors. Second, this final rule promotes equity. SSI
recipients, by definition, have low income and resources. Because low-
income people disproportionately encounter barriers across a range of
social, health, and economic outcomes, our goal is to improve their
circumstances, thus improving equity. As we discussed in our NPRM,
disabled individuals are more likely to be food insecure, and this
policy change will remove critical barriers to receiving informal food
assistance from friends, family, and community networks of support.\15\
Under our current policy, this type of food assistance from family and
friends is treated differently than food support from charitable or
government sources.\16\ Thus, excluding food from the calculation of
ISM ensures that food assistance from public and private sources is
treated uniformly under our ISM rules.\17\ Overall, this final rule
promotes equity by: providing increased financial security to affected
beneficiaries; providing consistent treatment of food support
regardless of source; reducing reporting requirements and the effects
of reporting on applicants and recipients; and facilitating improved
food security among certain beneficiaries.\18\
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\14\ Id.
\15\ Id. at 9786-87.
\16\ Id. at 9787.
\17\ Id.
\18\ Id. at 9786-88.
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In addition, as we discussed in the NPRM, food costs are quite
variable and valuing food is inherently challenging because it is
difficult to accurately estimate food expenses.\19\ Individuals receive
food at different intervals, in different amounts, and from different
sources, and the price of food can fluctuate significantly over a
relatively short period of time. When any of these food-related factors
changes, under our current policy, applicants and recipients must
immediately report the change or else risk a potential over- or
underpayment.\20\ This creates significant burdens for the SSI
applicants and recipients and also for the agency to process frequent
changes related to food ISM and ensure that payments are accurate. As
we noted in the NPRM, our ISM calculations have historically been a
significant cause of payment errors.\21\ We anticipate that eliminating
a highly variable expense, such as food, from our ISM calculations will
help us achieve greater program efficiency and payment accuracy.
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\19\ Id. at 9785.
\20\ Id. at 9785-86.
\21\ Id. at 9786-88.
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For a more detailed explanation of how we expect the final rule to
function in these ways, we refer to Justification for Change section of
the NPRM.\22\
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\22\ Id. at 9784-9788.
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Modifications From NPRM
In several places, this final rule differs slightly from the CFR
text we set out in the NPRM. As discussed earlier, we revised the
language because our original three questions might have disadvantaged
applicants and recipients who obtain food outside of their household.
We anticipate that the revised question will be more comprehensive than
the original three
[[Page 21201]]
questions we proposed in the NPRM. In addition, we eliminated the
phrase we proposed related to receiving shelter from a ``combination of
others living inside the household and others living outside the
household.'' In these instances, this final rule retains existing CFR
language, which references only receipt of shelter from ``others living
in the household.'' We detail these changes below.
We revised paragraph (h) of 20 CFR 416.1121. In the NPRM,
we stated that one rule (the VTR rule) applies if ``you are living
throughout a month in another person's household receiving all your
shelter from others living in the household.'' \23\ This final rule
revises this to ``you are living in another person's household, you
receive shelter from others living in the household, and others within
the household pay for or provide you with all of your meals.''
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\23\ 88 FR 9794 (Feb. 15, 2023).
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We revised paragraph (c) of 20 CFR 416.1130 and
redesignated it as paragraph (b)(2). In the NPRM, we stated that the
VTR rule applies if you (applicants or recipients) are living in the
household of a person who provides you with shelter, ``unless we
determine that you buy your food separately from the household, eat all
meals out, or receive Supplemental Nutrition Assistance Program
benefits.'' \24\ This final rule revises this to ``and others within
the household pay for or provide you with all of your meals.''
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\24\ Id.
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We revised paragraph (a)(2) of 20 CFR 416.1131 to
eliminate the phrase, ``combination of others living inside the
household and others living outside the household.'' \25\ We also
revised paragraph (a)(3) of 20 CFR 416.1131. In the NPRM, we stated
that the VTR rule applies when you (applicants or recipients), ``[d]o
not buy food separately from the household, eat all meals out, or
receive Supplemental Nutrition Assistance Program benefits.'' This
final rule revises this to when ``[o]thers within the household pay for
or provide you with all of your meals.''
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\25\ Id.
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We revised paragraph (a) of 20 CFR 416.1141. In the NPRM,
we did not propose changes to this section. The previous regulatory
text stated that the PMV rule applies if applicants or recipients are
living in another person's household ``but not receiving both food and
shelter from that person.'' The final rule revises this to ``you
receive shelter from others living in the household; and others within
the household do not pay for or provide you with all of your meals.''
We revised paragraphs (a) and (b) of 20 CFR 416.1147 to
eliminate the phrase, ``combination of others living inside the
household and others living outside the household.'' \26\ We further
revised paragraph (a) of 20 CFR 416.1147. In the NPRM, we stated,
``When both of you live in another person's household throughout a
month and receive shelter from others living in the household or a
combination of others living inside the household and others living
outside the household,'' then the VTR rule applies to the couple. The
final rule revises this to ``When both of you live in another person's
household throughout a month, receive shelter from others living in the
household, and others within the household pay for or provide you with
all of your meals. . . .'' We further revised paragraph (b) of 20 CFR
416.1147. In the NPRM we stated, ``If one of you is living in the
household of another person who provides you with shelter'' and the
other person is temporarily absent and ineligible, then we compute
benefits as if the two are separately eligible individuals. The final
rule revises this to ``If one of you is living in the household of
another person and receives shelter from others living in the
household, and others within the household pay for or provide you with
all of your meals. . . .''
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\26\ 88 FR 9795 (Feb. 15, 2023).
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Listening Sessions
During the public comment period, we held two listening sessions,
as described in Executive Order (E.O.) 12866, at the request of
advocacy groups. Notes from those sessions are available at https://www.regulations.gov/document/SSA-2021-0014-0003 under the ``Supporting
& Related Material'' tab. The issues raised during those sessions are
also addressed in the ``Comments Summary'' section of this final rule.
Comments Summary
We received 4,386 public comments on our NPRM from February 15
through April 17, 2023. Of the total comments, 4,320 are available for
public viewing at https://www.regulations.gov/docket/SSA-2021-0014.\27\
These comments were from:
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\27\ We excluded comments that were unrelated to the proposal or
were exact duplicates submitted by the same commenter. Because of
the nature of sorting and processing comments, some exact duplicates
may have been posted publicly.
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Individuals;
Advocacy groups for claimant representatives, such as the
National Organization of Social Security Claimants' Representatives and
the National Association of Disability Representatives; and
Other advocacy groups.
We carefully considered the public comments we received. More than
95% of commenters supported the proposals in the NPRM. Some commenters
agreed with the overarching proposal but recommended amendments to it.
Other commenters asked questions and offered opinions on the potential
financial and legal implications of the proposal. A few commenters
disagreed with the proposal altogether.
We received some comments that were outside the scope of this rule
because they did not relate to our proposal to remove food from the ISM
calculations. Even though outside the scope, we address some of these
comments where they related to ISM more generally and a response might
help the public understand our programs better.
The next section summarizes and responds to the public comments.
Comments and Responses
Requests To Modify the New Policy Outlined in the NPRM
Comment: A commenter suggested we should no longer apply ISM
retroactively, and that we should provide advance notice of ISM
reduction. The commenter expressed that applicants and recipients
should have the opportunity to understand the effects of ISM and to
begin contributing a fair share towards the household expenses before
ISM reduction is applied. The commenter asserted that by ceasing the
retroactive application of the ISM rule for SSI applicants, SSA would
greatly reduce ``negative effects'' and ``stop penalizing recipients
for the long wait time it takes for applications and appeals
processing.''
Response: In general, we determine an individual's eligibility for
SSI payments for a month based on the individual's (and eligible
spouse's, if any) income, resources, and other relevant characteristics
in that month.\28\ But, for a variety of reasons, we may have to
calculate payments for a particular month after the fact (for example,
because it takes time to process a new claim, or we did not receive
timely information about a change in circumstances). Doing so does not
make our application of ISM ``retroactive.'' Additionally, we provide
written advance notice of a planned adverse action, where SSI payments
would be reduced, suspended, or terminated.\29\
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\28\ See 42 U.S.C. 1382(c)(1).
\29\ See 20 CFR 416.1336.
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[[Page 21202]]
We agree that individuals should have the opportunity to understand
ISM and its potential effects. Individuals may contact us directly to
ask questions, and we provide a variety of resources to explain our
rules in plain language, like instructions on our forms and reader-
friendly publications we make available online, by mail, and in our
offices.
Comment: Several commenters suggested that we change ISM rules to
reflect a rebuttable presumption that the SSI recipient has no
countable ISM, because ``only rarely'' is the ISM received of ``true
market value.''
Response: It is not clear to us what the legal and policy basis
would be to presume that the individual has no countable ISM. The
Social Security Act states ``that relevant information will be verified
from independent or collateral sources and additional information
obtained as necessary in order to assure that . . . benefits are only
provided to eligible individuals (or eligible spouses) and that the
amounts of such benefits are correct.'' \30\ Further, it is not clear
to us who would rebut the presumption. Nor is it clear to us what is
meant by the statement that the ISM received rarely is of ``true market
value.''
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\30\ 42 U.S.C. 1383(e)(1)(B)(i).
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Comment: One commenter recommended that we create a PMV rebuttal
form and make changes to the Rebuttal Rights Notice. The commenter
stated that such a form should plainly advise recipients that they have
a right to rebut PMV, clearly explain what kinds of evidence recipients
could submit and how to do so and provide space for recipients to
provide further information to the agency. The commenter expressed that
many SSI recipients are ``unaware of the PMV rebuttal procedures'' and
are ``denied crucial additional benefits to which they are entitled
because they fail to rightfully rebut the PMV's maximum one-third
reduction.''
Response: Generally, our technicians discuss the PMV rebuttal
process with applicants and recipients when they assist them by phone
or in person at the time of the application or post-eligibility
event.\31\ Sometimes, our technicians are unable to discuss the PMV
rebuttal process upfront, such as when an applicant applies
electronically or by mail. Under those circumstances, we send them the
Rebuttal Rights Notification. This letter serves as a prompt for
applicants and recipients to contact us directly to ensure they
understand PMV rebuttal rights and how to rebut the PMV. While we
appreciate this commenter's feedback, we need to conduct additional
analysis prior to determining if a form would improve certain
applicants' and recipients' ability to understand and utilize the PMV
rebuttal process, or if people would find it more burdensome. As a
result, while this final rule does not include the adoption of a new
form, in FY 2024 we intend to initiate a separate Paperwork Reduction
Act (PRA) process. As part of this PRA process, we would propose the
Rebuttal Rights Notification Form, and would solicit feedback on the
proposed form.
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\31\ See Program Operations Manual System (POMS) SI 00835.320.
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Comment: One commenter expressed that the SSI program would be
better served by eliminating the VTR framework altogether and instead
assessing all recipients under the PMV framework.
Response: We are unable to eliminate the VTR because it is required
by the Social Security Act in 42 U.S.C. 1382a(a)(2)(A), which states:
``in the case of any individual (and his eligible spouse, if any)
living in another person's household and receiving support and
maintenance in-kind from such person, the dollar amounts otherwise
applicable to such individual (and spouse) . . . shall be reduced by 33
\1/3\ percent in lieu of including such support and maintenance in the
unearned income of such individual (and spouse). . . .''
Comment: A commenter suggested there is an alternative
simplification: assigning a set value to food received with a
possibility of rebuttal.
Response: The commenter's suggestion would be difficult to
implement, as it is not clear how we would fairly assign a set value to
food received, particularly since food prices can be volatile.
Additionally, because rebutting the presumption would require evidence
of food costs, it would present the same challenges and burdens that
currently exist.
Miscellaneous Comments Regarding Various Aspects of the New Rule
Comment: A commenter expressed that it may be efficient to use data
matches with State agencies to establish SNAP receipt, and to allow
applicants and recipients the opportunity to rebut the results of the
match.
Response: The commenter's suggested use of a data match with State
agencies for SNAP benefits related to our original proposal to ask
three food-related questions--one of which asked directly about SNAP
receipt. However, as noted above, instead of the three food-related
questions we proposed in the NPRM, we will ask only one food-related
question, for the limited purpose of determining whether ISM should be
valued under the VTR or PMV rule: do others within the household pay
for or provide you with all of your meals? We separately ask about an
applicant's or recipient's receipt of food-assistance benefits for
purposes other than determining their living arrangement and will
continue to do so. We will work to add appropriate internal guidance to
the question ``Do others within the household pay for or provide you
with all of your meals?'' to direct technicians to review whether the
applicant or recipient has separately indicated they receive food-
assistance benefits. This will ensure that when an individual has
indicated they receive food-assistance benefits they are treated under
PMV. Further, the receipt of SNAP benefits will also continue to be
relevant to our proposed rulemaking: Expand the Definition of a Public
Assistance Household,\32\ which proposes to expand our definition of a
public assistance household to include SNAP as an additional means-
tested public income-maintenance (PIM) program under 20 CFR
416.1142(a). The agency will use data matches with State agencies if
appropriate for these other purposes.
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\32\ See 88 FR 67148.
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Comment: One commenter noted that the Medicare Part D Extra Help
program does not count ISM in determining eligibility, and the
commenter expressed that the ``incentive structure of the Extra Help
subsidy could ultimately decrease the same individual's SSI
assistance'' when individuals are eligible under both programs.
Further, the commenter expressed that removing shelter inputs from ISM
entirely would make SSI and the Extra Help program eligibility
methodologies more uniform. The commenter stated that, in an ideal
system, eligibility criteria for low-income assistance programs would
be consistent.
Response: The Social Security Act requires that we treat ISM
differently for SSI than for Extra Help. While the Act specifies that
income for Extra Help is generally calculated the same way as for SSI,
it also says that for Extra Help ``support and maintenance furnished
in-kind shall not be counted as income.'' \33\ We do not anticipate
changes in our ISM calculations will impact the Extra Help program.
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\33\ See 42 U.S.C. 1395w-114(a)(3)(C)(i); POMS HI 03020.045.
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Comment: One commenter recommended simplifying our ISM regulations
for increased readability and digestibility. The commenter expressed
that SSI recipients and applicants
[[Page 21203]]
typically require ``extensive and time-consuming client counseling to
translate dense terminology and complex rule structure into plain
language.'' For example, the commenter said that the language in 20 CFR
416.1102 is challenging because it presents ``in-kind support and
maintenance'' as an exception to a general rule. The commenter
expressed there is also a broader readability problem with ``in-kind
income,'' because it is an ``uncommon and unfamiliar term that confuses
most people and prevents them from understanding their reporting
requirements.'' In addition, they suggested the possibility of renaming
ISM with a term like ``value of free shelter'' or ``free shelter
reduction.''
Response: Although we appreciate the suggestion to simplify and
improve the readability and digestibility of our regulations, it is not
possible to eliminate all technical language. Sometimes it is necessary
for us to use terms that may be technical, unique to the SSI program,
or both because they reflect complex statutory requirements and other
unique aspects of the SSI program. The use of such terms is often
because the requirements and language are set by statute.
In addition, the terms ``value of free shelter'' or ``free shelter
reduction'' might not be accurate and might be confused with other
policies in our program, such as ``rent-free shelter.'' \34\ Further,
it is important to keep our terms consistent throughout our policies,
forms, publications, and outreach efforts. Revising a widely used term
like ``ISM'' would be a significant undertaking and would likely lead
to confusion for the people who receive benefits from, or work with
recipients of, our program currently and are already familiar with the
terms we use now.
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\34\ See POMS SI 00835.370.
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However, we acknowledge that our regulations are complex. For that
reason, we provide a variety of resources to explain our rules in plain
language, like instructions on our forms and reader-friendly
publications we make available online, by mail, and in our offices.
Individuals may also contact us directly to ask questions.
Comment: Multiple commenters expressed concerns about, or advised
against, continuing to ask applicants and recipients the three
questions about food \35\ to determine whether to use the VTR or PMV
rule. They said asking these questions and continuing to consider food,
even in this limited way, would result in complexity and confusion for
applicants, recipients, and SSA staff.
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\35\ As mentioned above, the questions we proposed in the NPRM
were: (1) do you buy food separately from the household? (2) do you
eat all meals out? and (3) do you receive SNAP benefits?
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Conversely, another commenter supported our proposal to continue
asking the food questions. The commenter said, ``While we acknowledge
that asking these three questions of all SSI recipients does not
streamline the ISM process for applicants and recipients, that is
clearly outweighed by the fact that this approach will enable more
applicants and recipients to be assessed under the PMV rule, thereby
avoiding a potential ISM reduction that is greater than the actual
value of the ISM received.'' Another commenter similarly supported
continuing to ask the food questions by urging us to ``take care not to
inadvertently penalize recipients using their monthly benefits to
contribute to their household's food expenses'' and provided an example
of a former client who was ``eligible to receive her maximum FBR
because she paid for her household's food, though she was allowed to
live in that household rent-free.''
Response: We acknowledge that it would simplify our process further
if we stopped asking SSI applicants and recipients questions about
food. Instead of asking three questions as proposed in the NPRM, we
will instead ask one question to make the process simpler. Receipt of
food from outside the household can determine whether the PMV rule
applies, and the PMV can be advantageous in some circumstances because
it provides an opportunity for applicants and recipients to rebut the
value of ISM provided. Therefore, we think it is important to continue
to ask about food in this limited way.
Comment: A commenter asserted that support and maintenance means
room and board as evidenced by the context of the law,\36\ where the
``exclusion of a residence in a nonprofit retirement home is given, and
room and board is clearly understood, as in [Program Operations Manual
System (POMS)] SI 00830.605.'' In addition, the commenter mentioned a
2008 Bulletin article cited in the NPRM.\37\ The commenter added that
PMV must emulate VTR, and therefore that removal of food from ISM is
not to be considered as within the law.
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\36\ The commenter cited ``1612a(2)(A).'' We believe the
intended reference was to section 1612(a)(2)(A) of the Social
Security Act (42 U.S.C. 1382a(a)(2)(A)).
\37\ See Balkus, Richard; Sears, James; Wilschke, Susan; and
Wixon, Bernard. ``Simplifying the Supplemental Security Income
Program: Options for Eliminating the Counting of In-kind Support and
Maintenance.'' Social Security Bulletin, vol. 68, no. 4, 2008,
www.ssa.gov/policy/docs/ssb/v68n4/v68n4p15.html.
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Response: We are removing food from the calculations of ISM.
Regarding the statute's provision on residing in a nonprofit retirement
home or similar nonprofit institution,\38\ we did not change the
regulations that apply when someone lives in a nonprofit retirement
home or similar institution.\39\ Regarding the comments on POMS SI
00830.605 (Home Energy Assistance and Support and Maintenance
Assistance (HEA/SMA)),\40\ we did not change the regulations on support
and maintenance assistance.\41\
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\38\ Section 1612(a)(2)(A) of the Social Security Act, as
amended (42 U.S.C. 1382a(a)(2)(A)).
\39\ 20 CFR 416.1144.
\40\ We note also that our sub-regulatory guidance, including
our POMS, does not carry the weight of regulations.
\41\ 20 CFR 416.1157.
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The 2008 Bulletin referenced by the commenter generally supports
simplification such as removing food from the ISM calculations: ``One
of the founding principles of SSI is that, as a program that is
national in scope, it should be based on a `flat grant' approach that
does not involve program administrators in the detailed household
budgets of millions of recipients. The law creating the SSI program
included the one-third reduction provision so that SSA would not have
to determine the actual value of room and board when a recipient lived
with a friend or relative. . . . SSA created the PMV rule and the pro
rata share concept through regulations in an attempt to better address
equity among recipients. However, these regulations compromised the
simplification objective of the `flat grant' approach[.]''
Finally, it is not clear what it would mean for the PMV rule to
emulate the VTR rule with respect to removal of food from the
calculation of ISM. The changes here will remove food from the
calculation of ISM under both rules.
Comment: A commenter asserted that the 2005 precedent of the
removal of clothing, used to support the proposal, actually achieves
the opposite. The commenter said that clothing is a ``semi-durable''
good and may be thought to be unlike consumption goods and services
like food and shelter. The commenter pointed to text from the 2005 rule
which says: ``unlike food and shelter, clothing generally is not
received every month. Items of clothing are more likely to be received
infrequently and sporadically, and they generally have no substantial
value.'' The commenter asked if the same could be said for food.
[[Page 21204]]
Response: We did not make the same simplification for food that we
did for clothing. In 2005, we removed clothing from the definition of
income and the definition of ISM.\42\ Here, we are removing food from
the calculations of ISM. The comparison that we drew in the NPRM--
``Like the 2005 simplification, this proposal would simplify the ISM
calculations with respect to a factor for which it is difficult to
obtain accurate, verifiable estimates. Like clothing, food is an
expense that fluctuates from month to month and may be provided from
different sources at different intervals.''--is accurate. Furthermore,
while the 2005 rule included specific rationale justifying why it was
appropriate to treat clothing differently than food or shelter,
including the argument the commenter raised, in developing this
rulemaking we presented specific rationale as to why it is appropriate
to remove food from the calculation of ISM.\43\
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\42\ 70 FR 6340.
\43\ 88 FR 9785 (Feb. 15, 2023).
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Comments Regarding Potential Financial Effects of This Policy
Comment: A commenter asked how much of the estimated SSI program
cost of $1.5 billion is due to an estimated increase in the number of
applications that might result following publication of this rule.
Response: The Office of the Chief Actuary (OCACT) estimated that
roughly $0.2 billion of the estimated total increase in Federal SSI
payments, from fiscal years (FY) 2024 through 2033, is due to
applications that would not be filed under current rules but are
expected to be filed under the new rules. This is equivalent to an
increase of 26,000 Federal SSI recipients in FY 2033.
Comment: A commenter asserted that the administrative burden
reduction and cost savings to the agency and the public are small,
while many beneficiaries will be ``harmed'' by the consequences of the
change. The commenter said the ``entire regime of reporting and
investigations is still needed for housing support and indeed several
food questions are still going to be asked.'' The commenter also stated
that, because SSI is considered in decisions regarding SNAP (and
housing assistance), some recipients could see reductions in these food
(and housing) benefits. Further, the commenter suggested that we should
use the Financial Eligibility Model (FEM) to model and consider these
effects. In addition, the commenter expressed that this rule will
``encourage the migration of beneficiaries from living in their
family's home and receiving ample food support to either staying in
their family's home with no food support or moving on their own.''
Response: Though removing food from the calculations of ISM is
limited, we anticipate that removing even just this one variable from
our calculations will simplify the process.
When we use this final rule, we will ask fewer questions, not
require details about food expenses and costs, and not require
verification of food-related amounts. This reduces burdens for
applicants and recipients. As noted in our NPRM, we expect time-savings
related to this rule to have associated cost-savings for applicants,
recipients, and our agency.
Regarding the comment on potential reductions in SNAP or other
benefits, though we cannot speak fully to the rule change's effects on
programs that we do not administer, we note that when SNAP benefits are
affected by increased income, such as an SSI payment, they are
generally reduced by 30% of the increase, up to the point of
ineligibility.\44\
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\44\ See the Food and Nutrition Services, U.S. Department of
Agriculture's SNAP Eligibility page available at: https://www.fns.usda.gov/snap/recipient/eligibility. The SNAP program has an
exception to the 30% reduction, which applies in some circumstances
to one- or two-person households that would still receive the
minimum benefit (i.e., would have benefits reduced by less than 30%
of the increases in income). See the Congressional Research
Service's The Supplemental Nutrition Assistance Program (SNAP):
Categorical Eligibility, summary, available at https://sgp.fas.org/crs/misc/R42054.pdf.
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The FEM is an internal tool developed by SSA that we have used
historically to match survey data with administrative records to
evaluate financial eligibility for SSI and other programs. The FEM is
not capable of estimating the impact of SSI changes on other programs,
nor was it designed for that purpose.
Lastly, we have not made this rule change to provide incentives for
people to change their living arrangements or the way they obtain food,
including food assistance. For the reasons stated in the NPRM, we
anticipate this regulation will improve the administration of our
program.
Comment: One commenter said, ``Medicaid impacts do not appear to be
discussed,'' and opined that there could be a substantial effect on
Medicaid expenditures. The commenter asked if a discussion of Medicaid
impacts will be included with the final rule.
Response: As a matter of protocol, the estimates prepared by SSA's
OCACT focus on the impact on SSA.
Comment: A commenter expressed that States may be harmed by the
proposed change because some individuals currently not receiving
benefits will become eligible and State expenses for supplemental
benefits will increase.
Response: We did not calculate the effect on State supplemental
payments as this is outside the scope of our standard actuarial work.
State supplements are relatively small compared to the Federal Benefit
Rate (FBR) and payments depend on living arrangements defined by each
State. We anticipate that some individuals will become eligible for
Federal SSI payments under this rule change, but a small number of
those who remain ineligible for a Federal payment could become eligible
for a State payment as well.\45\ We are unable to speak to State-
administered SSI supplement effects.
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\45\ State eligibility requirements vary by State, and State and
Federal income requirements may be different. In some instances, an
applicant's or recipient's income may make them ineligible for
Federal SSI payments but they may still qualify for State SSI
payments.
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Comments on the Rulemaking Process and Associated Legal Issues
Comment: One commenter stated that the regulation will cost
taxpayers $1.5 billion over ten years \46\ and asserted (without
further explanation) that the regulation violates the major questions
doctrine of the United States Supreme Court. Further, the commenter
expressed that we gave no justification for the timing of the proposal.
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\46\ The commenter referred to figures provided in the NPRM. In
the NPRM, we estimated that the transfer from the government to SSI
recipients, for the period of FYs2023 through 2032, represents an
increase in Federal SSI payments of 0.2%.
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Response: The Commissioner of Social Security has ``full power and
authority to make rules and regulations to establish procedures'' that
are ``not inconsistent with the provisions of'' the Social Security Act
and are ``necessary or appropriate to carry out such provisions.'' \47\
The Supreme Court has described this particular Congressional grant of
authority as ``exceptionally broad .'' \48\ In addition, the
Commissioner has authority to prescribe the requirements for filing
applications,
[[Page 21205]]
data to be furnished, and the reporting of events and changes in
circumstances ``as may be necessary for the effective and efficient
administration'' of the SSI program.\49\ The commenter did not
articulate why, in their view, there is any ``reason to hesitate before
concluding that Congress meant to confer'' authority to adopt this
rule.\50\
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\47\ 42 U.S.C. 405(a); see also 42 U.S.C. 1383(d)(1) (stating
that the provisions of 42 U.S.C. 405(a) shall apply for relevant
title XVI purposes ``to the same extent as they apply in the case of
title II''); 42 U.S.C. 902(a)(5) (``The Commissioner may prescribe
such rules and regulations as the Commissioner determines necessary
or appropriate to carry out the functions of the Administration.'').
\48\ Heckler v. Campbell, 461 U.S. 458, 466 (1983) (``Congress
has conferred on the [Commissioner] exceptionally broad authority to
prescribe standards for applying certain sections of the Social
Security Act.'') (cleaned up, citations omitted).
\49\ 42 U.S.C. 1383(e)(1)(A); see also 42 U.S.C. 1383b(a).
\50\ West Virginia v. EPA, 142 S. Ct. 2587, 2608 (2022)
(quotation omitted).
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Regarding timing, we are always looking for ways to improve and
simplify our program rules and policies.
Comment: A commenter expressed that there are technical
inadequacies in the NPRM, such as ``no evidence'' that the estimated 16
percent of recipients currently evaluated under the VTR rule would now
be evaluated under the PMV rule, and that the Consumer Price Index
(CPI), which excludes food from its assessment, is irrelevant to the
analysis.
Response: SSA's OCACT used information about whether recipients
receive SNAP benefits, which is collected during the initial claim and
redetermination processes, among other administrative data, to estimate
that roughly 16% of recipients who are evaluated under the VTR
according to current rules would be evaluated under the PMV according
to the rules as stated in the NPRM. As discussed above, we have revised
the questions we ask about food, and will instead ask a single question
that does not directly address SNAP. However, we assume that recipients
who receive SNAP do not have all their meals provided by others within
their household and, thus, would also be evaluated under the PMV rule.
OCACT estimates that additional recipients who would have been
evaluated under the VTR rule under the NPRM will now be evaluated under
the PMV rule. However, OCACT estimates that very few such recipients
would have a change in SSI payment. Further, our reference to certain
types of CPI measures that exclude food was meant to illustrate that
many economic analysts consider food prices to be significantly more
volatile than the prices of most other types of goods and services. We
did not use these types of CPI measures in our quantitative analysis of
the rule.
Comment: One commenter asked us to post separately all the
citations they provided in their comments as part of our formal
administrative record for purposes of the Administrative Procedure Act.
Response: Consistent with our standard procedures, we posted
publicly all relevant comments \51\ and made them available within
docket SSA-2021-0014 on www.regulations.gov. We consider public
comments as part of the rulemaking record. Any citations commenters
provided within public comment submissions are viewable by the public
within the comment submissions.
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\51\ We excluded comments that were exact duplicates submitted
by the same commenter.
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Request for Further Policy Changes in the Overall Area of ISM
Comment: Some commenters expressed that this proposal was a good
``first step,'' but advised that we should make additional reforms,
such as omitting ISM from our program entirely, revising calculations
for married recipients, raising benefit amounts, and raising savings
limits.
Response: We are unable to consider eliminating ISM entirely,
because it is required by the Social Security Act.\52\ We acknowledge
the commenters' suggestions regarding revising calculations for married
recipients, raising payment amounts, and raising savings limits.
However, such suggestions unrelated to the consideration of food in the
ISM calculations are outside the scope of this rulemaking. Similarly,
the additional ISM-related rules that commenters suggested are outside
the scope of this rulemaking.
---------------------------------------------------------------------------
\52\ See 42 U.S.C. 1382a(a)(2)(A).
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Comment: Multiple commenters suggested changes related to how we
consider shelter expenses and contributions in our ISM calculations.
For example, one commenter suggested that ISM based on shelter costs
should apply only when the shelter is fixed and stable, and should not
apply for recipients who are transient with no fixed abode.
Other commenters suggested that we redefine how we count shelter
assistance and minimize housing expenses in the calculations of ISM.
They expressed that we could more narrowly define shelter to include
assistance with utilities or omit utilities from shelter expenses--
because rent and mortgage payments pay for access to shelter--and
utilities could be seen as amenities in some cases.
Another commenter suggested that we accept self-verification of
housing costs and contributions, because it can be difficult for SSI
recipients to obtain statements from their landlords or friends with
whom they are staying and to confirm their precise living arrangement
because many living arrangements are verbal. According to the
commenter, people who themselves do not receive SSI, but who rent a
room to an SSI recipient, may be reluctant to provide information about
their mortgage, utility costs, or property tax payments to an agency
from which they receive no direct support.
Response: We acknowledge the suggestions related to the
consideration of shelter expenses and contributions. However, these
suggestions are outside the scope of this rulemaking.
Comment: One commenter recommended changing the way we treat cash
gifts received directly by an SSI applicant or recipient. The commenter
asserted that, in the context of ``rent help'' from a family member or
friend, the distinction we make between third-party payments (ISM) and
cash gifts has material consequences, because the SSI reduction from
third-party payments (ISM) is capped at the one-third ISM limit, while
there is no cap for cash gift income. The commenter characterized this
distinction as ``arbitrary and meaningless for SSI recipients because
the intent and effect in both instances is identical (i.e., covering
rent).''
Response: This suggestion is not related to removing food from the
ISM calculations and is outside the scope of this rulemaking.
Comment: Some commenters suggested publishing regulations to expand
the definition of ``public assistance household,'' to expand the
applicability of a rental subsidy policy, and to exclude from the
definition of ISM items with no current market value.
Response: Our Regulatory Agenda includes two proposed rules similar
to these suggestions: Expand the Definition of a Public Assistance (PA)
Household, RIN 0960-AI81; and Nationwide Expansion of the Rental
Subsidy Policy for SSI Recipients, 0960-AI82. We listed these proposed
rules in the Spring 2023 Unified Agenda (Agenda) of Regulatory and
Deregulatory Actions. The Agenda comprises regulatory items we are
actively pursuing and is available at https://www.reginfo.gov/public/do/eAgendaMain. On August 24, 2023, we published an NPRM, Expansion of
the Rental Subsidy Policy for Supplemental Security Income (SSI)
Applicants and Recipients, which proposes to revise our regulations by
applying nationwide the ISM rental subsidy exception, currently in
place for SSI applicants and recipients residing in seven States, that
recognizes a ``business arrangement'' exists when the amount of
required monthly rent equals or exceeds the
[[Page 21206]]
PMV.\53\ Likewise, on September 29, 2023, we published another NPRM,
Expand the Definition of a Public Assistance Household,\54\ which
proposes to expand our definition of a public assistance household to
include SNAP as an additional means-tested public income-maintenance
(PIM) program under 20 CFR 416.1142(a).
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\53\ See 88 FR 57910.
\54\ See 88 FR 67148. We note that as part of this NPRM we are
seeking public comment on expanding the definition of a public
assistance household to include households in which any other (as
opposed to every other) member receives public assistance.
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Opposition to the New Policy
Comment: One commenter maintained that ISM should continue and said
that because SSI is a ``needs-based'' program, if someone is receiving
food assistance, their ``needs-based'' benefit should be reduced.
Further, the commenter stated that if the change is implemented, we
should revise POMS to include SNAP as income and eliminate the earned
and unearned income exclusion(s). The commenter also asserted that the
proposal is just a way for us to address insufficient staffing by
making SSI program administration easier by ``passing on the burden to
the taxpayers.'' According to the commenter, our proposal was
``speculative'' when we assumed that individuals will, for example, pay
more for shelter if they no longer have to pay food expenses. Further,
the commenter stated that recipients are ``receiving welfare from U.S.
taxpayers without contributing to the system'' and should therefore be
subjected to ``additional scrutiny for each benefit'' they receive, and
that such benefits should reduce recipients' monthly payments.
Response: We will continue to consider ISM in our payment
calculations. Although we are removing a variable from the ISM
calculations, we will still require applicants and recipients to
establish that their income and resources are below existing limits to
receive payments.
Regarding the suggestion to revise POMS to include SNAP as income
and eliminate the earned and unearned income exclusion(s), changes to
the way we consider SNAP benefits and changes to the earned and
unearned income exclusion(s) are outside the scope of this rulemaking.
Further, income exclusions are provided by Federal statute, whether the
Social Security Act \55\ or another Federal statute,\56\ meaning that
we could not eliminate them through administrative action.
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\55\ See 42 U.S.C. 1382a(b).
\56\ For example, the income exclusion for SNAP benefits is
provided by the Food and Nutrition Act, at 7 U.S.C. 2017(b).
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Lastly, we carefully review the details of each case to ensure we
pay the correct benefits to the correct individual at the correct time.
Comment: Several commenters expressed concerns based on
misunderstandings about the perceived effects or consequences of our
proposal. For example, commenters asserted that the rule would: require
recipients to work; cut benefits for recipients; have negative
consequences for recipients in light of rising housing costs across the
country; and motivate people to falsify information to receive the
maximum benefit possible. Additional commenters expressed concerns that
the only benefit of the proposal is simplifying the SSI application
process; the money received from SSI might not be enough to keep up
with increasing food costs; and we should keep the current rules
because there are people outside of the U.S. that need help, too.
Response: This final rule does not require applicants and
recipients to work; is anticipated to be advantageous to many
applicants and recipients; and is not projected to have consequences
related to housing costs. Regarding motivating people to falsify
information, we remain committed to preventing, detecting, and
eliminating fraud in our programs and encourage anyone with concerns
about fraud to visit https://www.ssa.gov/fraud.\57\ In addition, while
removing food from the ISM calculation may help ease the burden of
rising food costs for some recipients, increasing SSI payments is not
within the scope of this rulemaking. Regarding assisting people outside
the U.S., the scope of this rulemaking is limited to SSI applicants and
recipients. Because SSI payments are available to eligible individuals
who live in the 50 States, Washington, DC, and the Northern Mariana
Islands, the geographic scope of this rule is limited to residents of
these places.\58\
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\57\ In addition, we are required to verify information. 42
U.S.C. 1383(e)(1)(B) requires, ``that relevant information will be
verified from independent or collateral sources and additional
information obtained as necessary in order to assure that such
benefits are only provided to eligible individuals (or eligible
spouses) and that the amounts of such benefits are correct.''
\58\ 20 CFR 416.215.
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Comments in Support of the Policy
Comment: The majority of the comments were supportive of the new
policy. Many commenters cited a family member or friend they thought
might be helped by this regulation. Others expressed that people should
be able to accept meals without considering if their payments would be
reduced. Some advocacy groups expressed the opinion that calculating
SSI payments using a food cost estimate can be ``arbitrary'' and
``inaccurate,'' and so they were supportive of removing that
requirement. Yet others asserted that the proposed changes would
simplify our rules and reduce burdens on SSI recipients. Additional
commenters said the rule would promote equity by not disadvantaging an
already vulnerable population, and that the rule would incentivize SSI
recipients to use their community support with ``less anxiety'' about
negative impacts that could result from this support. Another commenter
stated that the proposed rule might facilitate increased food security,
which could lead to a ``greater sense of well-being and better health
outcomes.''
Response: We acknowledge the comments submitted in support of this
rulemaking.
Regulatory Procedures
E.O. 12866, as Supplemented by E.O.s 13563 and Amended by 14094
We have consulted with the Office of Management and Budget (OMB)
and OMB has determined that this final rule meets the criteria for a
significant regulatory action under E.O. 12866, as supplemented by E.O.
13563 and amended by E.O. 14094, and is subject to OMB review.
Anticipated Transfers to Our Program
Our Office of the Chief Actuary estimates that implementation of
this final rule for all eligibility and payment determinations
effective April 1, 2024, and later will result in an increase in
Federal SSI payments of a total of about $1.6 billion over the period
of FYs 2024 through 2033. We refer the reader to the NPRM for our
detailed analysis.
Anticipated Administrative Costs and Cost-Savings to the Social
Security Administration
The Office of Budget, Finance, and Management estimates that this
regulation will result in a total net administrative savings of $26
million for the 10-year period from fiscal year (FY) 2024 to FY 2033.
This estimate includes processing time savings as field office
employees will not have to spend time explaining and developing food as
part of ISM during initial claims, pre-effectuation reviews,
redeterminations, and post-eligibility actions. The aforementioned
savings are partially offset by costs to update our systems to remove
food from the ISM calculations, to send notices to inform current
recipients of the policy changes, and to
[[Page 21207]]
address inquiries from the notices. Under the final rule, more
individuals will be eligible for SSI payments than under the current
regulation, resulting in costs to process additional claims,
reconsiderations, appeals, continuing disability reviews,
redeterminations, and post-eligibility actions.
Anticipated Time-Savings and Qualitative Benefits
As discussed in the NPRM, we anticipate qualitative benefits from
this final rule because it will simplify our policy and make the SSI
claims process easier for applicants and recipients. The public
benefits from simplifications to our program because it may take less
time and effort to understand our program and its requirements and may
make it easier to comply with the program's requirements. Also, because
SSI applicants and recipients will not need to report as much
information related to food expenses, they may save time that they
otherwise would have spent gathering information and contacting us to
report this information. See the Paperwork Reduction Act section of the
NPRM's preamble for more details on the burden reduction associated
with this rule.
The time we save on processing SSI applications is only a limited
component of the overall time-savings to the public. Recipients will no
longer need to report monthly changes in the value of food support they
receive. Additionally, reporting food support, whether on the initial
application or at a later point during post-award eligibility review,
oftentimes requires us to further develop this support, which may
require completion of a variety of information collections and forms as
discussed in the Paperwork Reduction Act section of the NPRM's
preamble. Time savings in completing these forms not only benefits
applicants and recipients, but also third parties. While we do not
maintain administrative data on the volume of post-award information
collections pertaining to food-support reporting, we anticipate
administrative time savings.
In many situations, recipients fail to timely report receiving food
support. This requires us to develop the issue after a recipient's
monthly payment amount has been paid. This, in turn, may create an
overpayment, which would require us to develop the issue further and
contact the recipient for an interview. As discussed in the NPRM, we
expect that simplifying the ISM calculation may reduce improper
payments. The overpayment recovery process can be a time-intensive
process to navigate, particularly for recipients seeking to have their
overpayment waived or reconsidered. While we have not quantified the
amount of time recipients spend working to resolve overpayments related
to food ISM, we anticipate that this final rule may result in time
savings associated with reduced improper payments.
Further, as discussed in the NPRM, there are potential qualitative
benefits to this final rule such as reduced food insecurity, enhanced
social support networks, reduced frustration and anxiety among the SSI
population associated with understanding and complying with complicated
food-support ISM policies, potentially enhanced dignity with
elimination of the need to report receipt of food to the government
(which may appear intrusive to some applicants and recipients), and
more consistent and equitable treatment of applicants' and recipients'
various sources of food assistance.
Congressional Review Act
Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.),
the Office of Information and Regulatory Affairs designated this rule
as meeting the criteria in 5 U.S.C. 804(2).
E.O. 13132 (Federalism)
We analyzed this final rule in accordance with the principles and
criteria established by E.O. 13132, and determined that the final rule
will not have sufficient federalism implications to warrant the
preparation of a federalism assessment. We also determined that this
final rule will not preempt any State law or State regulation or affect
the States' abilities to discharge traditional State governmental
functions.
Regulatory Flexibility Act
We certify that this final rule will not have a significant
economic impact on a substantial number of small entities, as it
affects individuals or States only. Therefore, a regulatory flexibility
analysis is not required under the Regulatory Flexibility Act, as
amended.
Paperwork Reduction Act (PRA)
Since under this final rule we will no longer need to consider food
expenses for in-kind support and maintenance calculations, we are
making minor changes to Forms SSA-8202-BK, Statement for Determining
Continuing Eligibility for Supplemental Security Income Payment (OMB
Control No. 0960-0145); SSA-8006, Statement of Living Arrangements, In-
Kind Support and Maintenance (OMB Control No. 0960-0174); SSA-8000-BK,
Application for Supplemental Security Income (OMB Control No. 0960-
0229); SSA-8203-BK, Statement for Determining Continuing Eligibility
for Supplemental Security Income Payment (OMB Control No. 0960-0416);
SSA-8011, Statement of Household Expenses and Contributions (OMB
Control No. 0960-0456); and SSA-5062 & SSA-L5063, Claimant Statement
about Loan of Food or Shelter and Statement about Food or Shelter
Provided to Another (OMB Control No. 0960-0529).
The form changes will result in a burden reduction of one minute
per response, for a total burden savings of 95,668 hours. This figure
represents the difference between the previous and new total estimated
annual burden (as shown in the chart below).
Below are charts showing the revised burden estimates that will be
effective upon the effective date of the final rule.
The following chart shows the time burden information associated
with the final rule:
--------------------------------------------------------------------------------------------------------------------------------------------------------
Anticipated
Current Current Anticipated estimated Estimated
Number of Frequency average estimated new burden per total burden burden
OMB #; form #; CFR citations respondents of response burden per total response under under savings
response burden regulation regulation (hours)
(minutes) (hours) (minutes) (hours)
--------------------------------------------------------------------------------------------------------------------------------------------------------
0960-0145 SSA-8202 (Paper Form)........................ 67,698 1 21 23,694 20 22,566 1,128
0960-0145 SSA-8202 Claims System)...................... 1,764,207 1 20 588,069 19 558,666 29,403
0960-0174 SSA-8006 (Paper Form)........................ 12,160 1 7 1,419 6 1,216 203
0960-0174 SSA-8006 (SSI Claims System)................. 109,436 1 7 12,768 6 10,944 1,824
0960-0229 SSA-8000 (Paper Form)........................ 705 1 40 470 39 458 12
0960-0229 SSA-8000 (SSI Claims System)................. 1,646,520 1 35 960,470 34 933,028 27,442
0960-0416 SSA-8203 (Paper Form)........................ 135,357 1 20 45,119 19 42,863 2,256
0960-0416 SSA-8203 (SSI Claims System)................. 1,468,220 1 19 464,936 18 440,466 24,470
0960-0456 SSA-8011 (Paper Form)........................ 21,000 1 15 5,250 14 4,900 350
[[Page 21208]]
0960-0456 SSA-8011 (SSI Claims System)................. 398,759 1 15 99,690 14 93,044 6,646
0960-0529 SSA-5062 (Paper Forms)....................... 29,026 1 30 14,513 29 14,029 484
0960-0529 SSA-5062 (SSI Claims System)................. 29,026 1 20 9,675 19 9,192 483
0960-0529 SSA-L5063 (Paper Forms)...................... 29,026 1 30 14,513 29 14,029 484
0960-0529 SSA-L5063 (SSI Claims System)................ 29,026 1 20 9,675 19 9,192 483
------------------------------------------------------------------------------------------------
Totals............................................. 5,740,116 ........... ........... 2,250,261 .............. 2,154,593 95,668
--------------------------------------------------------------------------------------------------------------------------------------------------------
The following chart shows the theoretical cost burdens associated
with the final rule:
----------------------------------------------------------------------------------------------------------------
Anticipated Average
estimated Average combined wait
total burden theoretical time in field Total annual
OMB #; form # Number of under hourly cost office and/or opportunity cost
respondents regulation amount teleservice (dollars) ***
from chart (dollars) * centers
above (hours) (minutes) **
----------------------------------------------------------------------------------------------------------------
0960-0145 SSA-8202 (Paper 67,698 22,566 * $12.81 ** 24 *** $635,952
Form)......................
0960-0145 SSA-8202 Claims 1,764,207 558,666 * 12.81 ** 21 *** 15,066,328
System)....................
0960-0174 SSA-8006 (Paper 12,160 1,216 * 12.81 ** 24 *** 77,885
Form)......................
0960-0174 SSA-8006 (SSI 109,436 10,944 * 12.81 ** 21 *** 630,854
Claims System).............
0960-0229 SSA-8000 (Paper 705 458 * 21.29 ** 21 *** 15,009
Form)......................
0960-0229 SSA-8000 (SSI 1,646,520 933,028 * 21.29 ** 21 *** 32,133,210
Claims System).............
0960-0416 SSA-8203 (Paper 135,357 42,863 * 21.29 ** 21 *** 1,921,167
Form)......................
0960-0416 SSA-8203 (SSI 1,468,220 440,466 * 21.29 ** 21 *** 20,317,962
Claims System).............
0960-0456 SSA-8011 (Paper 21,000 4,900 * 29.76 ** 21 *** 364,560
Form)......................
0960-0456 SSA-8011 (SSI 398,759 93,044 * 29.76 ** 21 *** 6,922,474
Claims System).............
0960-0529 SSA-5062 (Paper 29,026 14,029 * 21.29 ** 24 *** 545,854
Forms).....................
0960-0529 SSA-5062 (SSI 29,026 9,192 * 21.29 ** 21 *** 411,983
Claims System).............
0960-0529 SSA-L5063 (Paper 29,026 14,029 * 21.29 ** 24 *** 545,854
Forms).....................
0960-0529 SSA-L5063 (SSI 29,026 9,192 * 21.29 ** 21 *** 411,983
Claims System).............
-----------------------------------------------------------------------------------
Totals.................. 5,740,116 2,154,593 .............. ............... *** 80,001,075
----------------------------------------------------------------------------------------------------------------
* We based these figures on the average Disability Insurance (DI) payments based on SSA's current FY 2023 data
(https://www.ssa.gov/legislation/2023factsheet.pdf); on the average U.S. citizen's hourly salary, as reported
by Bureau of Labor Statistics data (https://www.bls.gov/oes/current/oes_nat.htm); and the average of both DI
payments and the average U.S. citizen's hourly salary.
** We based these figures on the average FY 2024 wait times for field offices and hearings office, as well as by
averaging both the average FY 2024 wait times for field offices and teleservice centers, based on SSA's
current management information data.
*** This figure does not represent actual costs that SSA is imposing on recipients of Social Security payments
to complete this application; rather, these are theoretical opportunity costs for the additional time
respondents will spend to complete the application. There is no actual charge to respondents to complete the
application.
SSA is submitting a single new Information Collection Request (ICR)
which encompasses the revisions to above listed information collections
(currently under OMB Numbers 0960-0145, 0960-0174, 0960-0229, 0960-
0416, 0960-0454, and 0960-0529) to OMB for the approval of the changes
due to the final rule. After approval of this combined ICR, we will
adjust the figures associated with the current OMB numbers for these
forms to reflect the new burden via Change Request.
We published a notice of proposed rulemaking on February 15, 2023,
at 88 FR 9779. In response to that NPRM, individual submitted comments
on PRA-related issues such as 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. Please see the Comments section of the preamble for PRA-
related comments and SSA's response.
Since the publication of the NPRM, we removed language and
requirements, which reduces the burden on the public. Accordingly, we
are currently soliciting comment on these changes and their associated
burden reductions. If you would like to submit comments, please send
them to the following locations:
Office of Management and Budget, Attn: Desk Officer for SSA, Fax
Number: 202-395-6974
Social Security Administration, OLCA, Attn: Reports Clearance Director,
3100 West High Rise, 6401 Security Blvd., Baltimore, MD 21235, Fax:
410-966-2830, Email address: [email protected]
You can submit comments until April 26, 2024, which is 30 days
after the publication of this notice. To receive a copy of the OMB
clearance package, contact the SSA Reports Clearance Officer using any
of the above contact methods. We prefer to receive comments by email or
fax.
List of Subjects in 20 CFR Part 416
Administrative practice and procedure, Reporting and recordkeeping
requirements, Supplemental Security Income (SSI).
The Commissioner of Social Security, Martin O'Malley, having
reviewed and
[[Page 21209]]
approved this document, is delegating the authority to electronically
sign this document to Faye I. Lipsky, who is the primary Federal
Register Liaison for SSA, for purposes of publication in the Federal
Register.
Faye I. Lipsky,
Federal Register Liaison, Office of Legislation and Congressional
Affairs, Social Security Administration.
For the reasons set out in the preamble, we amend 20 CFR chapter
III, part(s) 416, as set forth below:
PART 416--SUPPLEMENTAL SECURITY INCOME FOR THE AGED, BLIND, AND
DISABLED
Subpart K--Income
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. 416.1102 to read as follows:
Sec. 416.1102 What is income?
Income is anything that you receive in cash or in-kind that you can
use to meet your needs for food or shelter. For purposes of this
definition, income may be received actually or constructively. Income
is received constructively, unless there are significant restrictions
on your ability to receive it, if it is under your control or you can
use it despite not actually receiving it. Sometimes income also
includes more or less than you actually receive (see Sec. Sec.
416.1110 and 416.1123(b)). In-kind income is not cash but is something
else that you can use to meet your needs for food or shelter.
Exception: Food is not included in the calculations of in-kind support
and maintenance, which is a type of unearned income that we have
special rules for valuing (see Sec. Sec. 416.1130 through 416.1148).
0
3. Amend Sec. 416.1103 by revising paragraphs (a)(4), (b)(2), the
example in paragraph (g) and paragraph (j) to read as follows:
Sec. 416.1103 What is not income?
(a) * * *
(4) In-kind assistance (except shelter) provided under a
nongovernmental program whose purpose is to provide medical care or
medical services;
* * * * *
(b) * * *
(2) In-kind assistance (except shelter) provided under a
nongovernmental program whose purpose is to provide social services; or
* * *
* * * * *
(g) * * *
Examples: If your daughter uses her own money to pay your mortgage
payment directly to the mortgage lender, the payment itself is not your
income because you do not receive it. However, because of your
daughter's payment, the transaction provides you with shelter; the
mortgage payment is in-kind income for shelter to you. Similarly, if
you book a hotel room on credit and your son later pays the bill, the
payment to the hotel is not income to you, but the payment of the bill
is in-kind income for shelter to you. In this example, if your son pays
for the hotel bill in a month after the month of the hotel stay, we
will count the in-kind income to you in the month in which he pays the
bill. On the other hand, if your brother pays a lawn service to mow
your grass, the payment is not income to you because the mowing cannot
be used to meet your needs for food or shelter. Therefore, the payment
for the lawn service is not in-kind income as defined in Sec.
416.1102.
* * * * *
(j) Receipt of certain noncash items. Any item you receive (except
shelter as defined in Sec. 416.1130) which would be an excluded
nonliquid resource (as described in subpart L of this part) if you kept
it, is not income.
Example 1: A community takes up a collection to buy you a specially
equipped van, which is your only vehicle. The value of this gift is not
income because the van does not provide you with food or shelter and
will become an excluded nonliquid resource under Sec. 416.1218 in the
month following the month of receipt.
Example 2: You inherit a house which is your principal place of
residence. The value of this inheritance is income because the house
provides you with shelter and shelter is income. However, we value the
house under the rule in Sec. 416.1140.
0
4. Amend Sec. 416.1104 by revising the fourth sentence and removing
the fifth sentence in the paragraph to read as follows:
Sec. 416.1104 Income we count.
* * * One type of unearned income is in-kind support and
maintenance (shelter), which we value depending on your living
arrangement.
* * * * *
0
5. Amend Sec. 416.1121 by revising paragraph (h) to read as follows:
Sec. 416.1121 Types of unearned income.
* * * * *
(h) Support and maintenance in-kind. This is shelter furnished to
you that we value depending on your living arrangement. (Food is not
included in the calculations of in-kind support and maintenance.) We
use one rule if you are living in another person's household, you
receive shelter from others living in the household, and others within
the household pay for or provide you with all of your meals. We use
different rules for other situations in which you receive shelter. We
discuss all of the rules in Sec. Sec. 416.1130 through 416.1148.
0
6. Revise Sec. 416.1130 to read as follows:
Sec. 416.1130 Introduction.
(a) General. Both earned income and unearned income include items
received in- kind (see Sec. 416.1102). Generally, we value in-kind
items at their current market value, and we apply the various
exclusions for both earned and unearned income. However, we have
special rules for valuing shelter that is received as in-kind support
and maintenance (a type of unearned income). This section and the ones
that follow discuss these rules. In these sections (i.e., Sec. Sec.
416.1130 through 416.1148) we use the in-kind support and maintenance
you receive in the month as described in Sec. 416.420 to determine
your SSI benefit. We value the in-kind support and maintenance using
the Federal benefit rate for the month in which you receive it.
Exception: For the first 2 months for which a cost-of-living adjustment
applies, we value in-kind support and maintenance you receive using the
VTR or PMV based on the Federal benefit rate as increased by the cost-
of-living adjustment.
Example: Mr. Jones resides in his son's house and receives all of
his meals from his son. Mr. Jones receives a monthly SSI Federal
benefit rate that is reduced by one-third. This one-third represents
the value of the in-kind support and maintenance he receives because he
lives, throughout a month, in the household of his son, who provides
all of his food and shelter. In January, we increase his SSI benefit
because of a cost-of-living adjustment. For that month, we determine
that the VTR rule applies by considering the food and shelter he
received from his son two months earlier in November, and we calculate
the SSI payment using the Federal benefit rate for January.
(b) How we calculate in-kind support and maintenance. (1) We
calculate in-kind support and maintenance considering any shelter that
is given to you or that you receive because
[[Page 21210]]
someone else pays for it. Shelter includes room, rent, mortgage
payments, real property taxes, heating fuel, gas, electricity, water,
sewerage, and garbage collection services. You are not receiving in-
kind support and maintenance in the form of room or rent if you are
paying the amount charged under a business arrangement. A business
arrangement exists when the amount of monthly rent required to be paid
equals the current market rental value (see Sec. 416.1101). Exception:
In the States in the Seventh Circuit (Illinois, Indiana, and
Wisconsin), a business arrangement exists when the amount of monthly
rent required to be paid equals or exceeds the presumed maximum value
described in Sec. 416.1140(a)(1). In those States, if the required
amount of rent is less than the presumed maximum value, we will
consider as in-kind support and maintenance the difference between the
required amount of rent and either the presumed maximum value or the
current market value, whichever is less. In addition, cash payments
made to uniformed service members as allowances for on-base housing or
privatized military housing are in-kind support and maintenance.
(2) We have two rules for valuing the in-kind support and
maintenance that we count. The one-third reduction rule applies if you
are living in another person's household, you receive shelter from
others living in the household, and others within the household pay for
or provide you with all of your meals (see Sec. Sec. 416.1131 through
416.1133). The presumed value rule applies in all other situations in
which you receive countable in-kind support and maintenance (see
Sec. Sec. 416.1140 through 416.1145). If certain conditions exist, we
do not count in-kind support and maintenance. These conditions are
discussed in Sec. Sec. 416.1141 through 416.1145.
0
7. Amend Sec. 416.1131 by revising paragraphs (a)(1) and (2) and
adding paragraph (a)(3) to read as follows:
Sec. 416.1131 The one-third reduction rule.
(a) * * *
(1) Live in another person's household (see Sec. 416.1132) for a
full calendar month except for temporary absences (see Sec. 416.1149);
and
(2) Receive shelter from others living in the household. (If you do
not receive shelter from others living in the household, see Sec.
416.1140); and
(3) Others within the household pay for or provide you with all of
your meals. If others within the household do not pay for or provide
you with all of your meals, any ISM received for shelter will be
calculated under the PMV rule (see Sec. 416.1140).
* * * * *
0
8. Amend Sec. 416.1133 by revising the last sentence of paragraph (a)
and the first sentence of paragraph (c) to read as follows:
Sec. 416.1133 What is a pro rata share of household operating
expenses.
(a) * * * (If you are receiving shelter from someone outside the
household, we value it under the rule in Sec. 416.1140.)
* * * * *
(c) Household operating expenses are the household's total monthly
expenditures for rent, mortgage, property taxes, heating fuel, gas,
electricity, water, sewerage, and garbage collection service. * * *
0
9. Revise Sec. 416.1140 to read as follows:
Sec. 416.1140 The presumed value rule.
(a) How we apply the presumed value rule. (1) When you receive in-
kind support and maintenance and the one-third reduction rule does not
apply, we use the presumed value rule. Instead of determining the
actual dollar value of any shelter you receive, we presume that it is
worth a maximum value. This maximum value is one-third of your Federal
benefit rate plus the amount of the general income exclusion described
in Sec. 416.1124(c)(12).
(2) The presumed value rule allows you to show that your in-kind
support and maintenance is not equal to the presumed value. We will not
use the presumed value if you show us that--
(i) The current market value of any shelter you receive, minus any
payment you make for it, is lower than the presumed value; or
(ii) The actual amount someone else pays for your shelter is lower
than the presumed value.
(b) How we determine the amount of your ISM under the presumed
value rule. (1) If you choose not to question the use of the presumed
value, or if the presumed value is less than the actual value of the
shelter you receive, we use the presumed value to figure your ISM.
(2) If you show us, as provided in paragraph (a)(2) of this
section, that the presumed value is higher than the actual value of the
shelter you receive, we use the actual amount to figure your ISM.
0
10. Amend Sec. 416.1141 by revising the introductory paragraph and
paragraphs (a) and (b) to read as follows:
Sec. 416.1141 When the presumed value rule applies.
The presumed value rule applies whenever we count in-kind support
and maintenance as unearned income and the one-third reduction rule
does not apply. This means that the presumed value rule applies if you
are living--
(a) In another person's household (as described in Sec.
416.1132(b)); you receive shelter from others living in the household;
and others within the household do not pay for or provide you with all
of your meals;
(b) In your own household (as described in Sec. 416.1132(c)). For
exceptions, see Sec. 416.1142 if you are in a public assistance
household and Sec. 416.1143 if you are in a noninstitutional case
situation; or
* * * * *
0
11. Amend Sec. 416.1147 by revising paragraph (a), the paragraph
heading in paragraph (b), the first sentence in paragraph (b)(1),
paragraph (c), and the third sentence in paragraph (d)(1) to read as
follows:
Sec. 416.1147 How we value in-kind support and maintenance for a
couple.
(a) Both members of a couple live in another person's household and
receive shelter and all of their meals from others living in the
household. When both of you live in another person's household
throughout a month, receive shelter from others living in the
household, and others within the household pay for or provide you with
all of your meals, we apply the one-third reduction to the Federal
benefit rate for a couple (Sec. 416.1131).
(b) One member of a couple is in a medical institution and the
other member of the couple lives in another person's household and
receives shelter and all of their meals from others living in the
household. (1) If one of you is living in the household of another
person and receives shelter from others living in the household, and
others within the household pay for or provide you with all of your
meals, and the other is temporarily absent from the household as
provided in Sec. 416.1149(c)(1) (in a medical institution that
receives substantial Medicaid payments for their care (Sec.
416.211(b))), and is ineligible in the month for either benefit payable
under Sec. 416.212, we compute your benefits as if you were separately
eligible individuals (see Sec. 416.414(b)(3)). * * *
(c) Both members of a couple are subject to the presumed value
rule. If the presumed value rule applies to both of you, we value any
shelter you and your spouse receive at one-third of the Federal benefit
rate for a couple plus the
[[Page 21211]]
amount of the general income exclusion (Sec. 416.1124(c)(12)), unless
you can show that its value is less as described in Sec.
416.1140(a)(2).
(d) * * *
(1) * * * We value any shelter received by the one outside of the
medical institution at one-third of an eligible individual's Federal
benefit rate, plus the amount of the general income exclusion (Sec.
416.1124(c)(12)), unless you can show that its value is less as
described in Sec. 416.1140(a)(2). * * *
* * * * *
0
12. Amend Sec. 416.1148 by revising paragraph (b) to read as follows:
Sec. 416.1148 If you have both in-kind support and maintenance and
income that is deemed to you.
* * * * *
(b) The presumed value rule and deeming of income. (1) If you live
in the same household with someone whose income can be deemed to you
(Sec. Sec. 416.1160 through 416.1169), or with a parent whose income
is not deemed to you because of the provisions of Sec. 416.1165(i),
any shelter that person provides is not income to you. However, if you
receive any shelter from another source, it is income and we value it
under the presumed value rule (Sec. 416.1140). We also apply the
deeming rules.
(2) If you are a child under age 18 who lives in the same household
with an ineligible parent whose income may be deemed to you, and you
are temporarily absent from the household to attend school (Sec.
416.1167(b)), any shelter you receive at school is income to you unless
your parent purchases it. Unless otherwise excluded, we value this
income under the presumed value rule (Sec. 416.1140). We also apply
the deeming rules to you (Sec. 416.1165).
0
13. Amend Sec. 416.1149 by revising paragraph (c)(1) to read as
follows:
Sec. 416.1149 What is a temporary absence from your living
arrangement.
* * * * *
(c) * * *
(1)(i) If you enter a medical treatment 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. We use the rules
that apply to your permanent living arrangement to value any shelter
you receive during the month (for which reduced benefits under Sec.
416.414 are not payable) you enter or leave the facility. During any
full calendar month you are in the medical treatment facility, you
cannot receive more than the Federal benefit rate described in Sec.
416.414(b)(1). We do not consider shelter provided during a medical
confinement to be income.
(ii) If you enter a medical treatment facility and you are eligible
for either benefit payable under Sec. 416.212, we also consider this a
temporary absence from your permanent living arrangement. We use the
rules that apply to your permanent living arrangement to value any
shelter you receive during the month you enter the facility and
throughout the period you are eligible for these benefits. We consider
your absence to be temporary through the last month benefits under
Sec. 416.212 are paid unless you are discharged from the facility in
the following month. In that case, we consider your absence to be
temporary through the date of discharge.
* * * * *
[FR Doc. 2024-06464 Filed 3-26-24; 8:45 am]
BILLING CODE 4191-02-P