[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?
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \42\ 70 FR 6340.
    \43\ 88 FR 9785 (Feb. 15, 2023).
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \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%.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \51\ We excluded comments that were exact duplicates submitted 
by the same commenter.
---------------------------------------------------------------------------

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).
---------------------------------------------------------------------------

    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).
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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