[Federal Register Volume 89, Number 71 (Thursday, April 11, 2024)]
[Rules and Regulations]
[Pages 25507-25514]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-07675]
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SOCIAL SECURITY ADMINISTRATION
20 CFR Part 416
[Docket No. SSA-2023-0010]
RIN 0960-AI82
Expansion of the Rental Subsidy Policy for Supplemental Security
Income (SSI) Applicants and Recipients
AGENCY: Social Security Administration.
ACTION: Final rule.
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SUMMARY: We are finalizing our proposed regulation to apply nationwide
the In-Kind Support and Maintenance (ISM) rental subsidy exception that
has until now been available only for SSI applicants and recipients
residing in seven States. This final rule provides that a ``business
arrangement'' exists, such that the SSI applicant or recipient is not
considered to be receiving ISM in the form of room or rent, when the
amount of monthly required rent for the property equals or exceeds the
presumed maximum value (PMV).
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.ssa.gov.
SUPPLEMENTARY INFORMATION:
Background
The SSI program provides monthly payments to: (1) adults and
children with a disability or blindness; and (2) adults aged 65 or
older. Eligible individuals must meet all the requirements set forth in
the Social Security Act (Act), 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\ An
individual's resources may affect their eligibility to receive SSI,
while their income may affect both their eligibility for payments and
the amount of payments they are eligible to receive.
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\1\ See 42 U.S.C. 1382 and 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 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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The Act and our regulations \4\ define income as ``earned,'' such
as wages from work, and ``unearned,'' such as gifted cash.\5\ Both
earned income and unearned income include items received in-kind.\6\
This final rule pertains to rental subsidy, which is a type of ISM
under the broader umbrella of unearned income. Generally, we value in-
kind items at their current market value, and we apply various
exclusions for both earned and unearned income.\7\ However, we have
special rules for valuing ISM that is received as unearned income.\8\
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\4\ See 42 U.S.C. 1382a and 20 CFR 416.1102 through 416.1124.
\5\ See 20 CFR 416.1104.
\6\ See 20 CFR 416.1110 and 416.1120.
\7\ See 20 CFR 416.1111(d), 416.1112, 416.1123(c), and 416.1124.
\8\ See 20 CFR 416.1123(c) and 416.1131 through 416.1147.
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ISM includes shelter that is given to an individual or that the
individual receives because someone else pays for it.\9\ For example,
an SSI applicant or recipient whose friend allows them to live rent-
free at an investment property owned by the friend, or whose friend
pays their rent, receives ISM in the form of shelter. Shelter includes
room, rental payments, mortgage payments, real property taxes, heating
fuel, gas, electricity, water, sewerage, and garbage collection
services.\10\
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\9\ See 20 CFR 416.1130(b). We recently published a final rule
to remove food from the calculation of ISM. See Omitting Food From
In-Kind Support and Maintenance Calculations, 89 FR 21199 (Mar. 27,
2024). The amendatory language shown below reflects changes to 20
CFR 416.1130 made by that final rule, since it has been published,
although the change will not be effective until September 30, 2024.
\10\ See 20 CFR 416.1130(b).
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Rental Subsidy
Our regulations clarify that an individual is not receiving ISM in
the form of room or rent if they are paying the monthly required rent
charged under a ``business arrangement.'' \11\ Under our general
regulatory definition prior to this final rule, a ``business
arrangement'' existed when the amount of monthly required rent equaled
or exceeded the current market rental value (CMRV)--that is, the price
of rent on the open market in the individual's locality.\12\ To
illustrate, if the owner of an apartment would rent that property to
any potential tenant for $800 per month, then the CMRV is $800 per
month. Consequently, in this example, if an SSI applicant or recipient
agrees to pay the landlord rent in the amount of $800 per month, a
``business arrangement'' would exist and the SSI applicant or recipient
would not be receiving ISM in the form of room or rent. The SSI
applicant or recipient in this example would thereby--absent any other
countable income or resources--receive the Federal Benefit Rate
(FBR).\13\ Conversely, if the SSI applicant or recipient agrees to pay
the landlord less than the CMRV of $800 per month (for example, $400
per month), we would impute the difference between the CMRV and the
monthly required rent as ISM received by the applicant or recipient in
the form of room or rent (up to the PMV, which is $334.33 in 2024).\14\
In this example, the landlord agrees to accept a rent of $400 per month
instead of the CMRV of $800. The rental subsidy amount is $400.
However, the PMV is $334.33 in 2024, so only $314.33 would be counted
as ISM (after we subtract the $20 general income exclusion from the PMV
and assuming there is no other income). Consequently, in this example
the SSI recipient would receive $628.67 as a monthly payment in 2024
\15\ (the 2024 FBR ($943) minus the PMV and minus the general income
exclusion ($314.33 (or $334.33-$20)) = $628.67).
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\11\ 20 CFR 416.1130(b).
\12\ See id. See also 20 CFR 416.1101.
\13\ See 20 CFR 416.1101. Federal Benefit Rate (FBR) means the
maximum Federal monthly payment rate for an eligible individual or
couple. It is the figure from which we subtract countable income to
find out how much your Federal SSI benefit should be. The FBR does
not include the rate for any State supplement paid by us on behalf
of a State. The FBR for 2024 is $943 for an individual or $1,415 for
an eligible individual with an eligible spouse.
\14\ When an SSI applicant or recipient receives ISM and the
one-third reduction rule does not apply, we use the presumed value
rule (PMV). Instead of determining the actual dollar value, we
presume that the ISM received is worth a maximum value. This maximum
value (or PMV) is one-third of the FBR plus the amount of the
general income exclusion ($20). See 20 CFR 416.1140 and POMS SI
00835.300. In 2024, the PMV is $334.33 for an individual.
\15\ For the purposes of this exercise, we are assuming there is
no other countable income. In a real-world case, at times there are
other countable income sources, and in such cases those income
sources would factor into the monthly payment amount as well.
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[[Page 25508]]
Exception
Following court cases that challenged how we applied these ISM
rules for rental subsidy, we provided an exception for residents of the
Seventh Circuit (in our regulations),\16\ residents of the Second
Circuit (in an Acquiescence Ruling),\17\ and residents of Texas (in the
Program Operations Manual System (POMS)).\18\ For residents of these
seven excepted States (Connecticut, New York, Vermont, Illinois,
Indiana, Wisconsin, and Texas), a ``business arrangement'' exists when
the monthly required rent equals or exceeds the PMV (instead of the
CMRV). Application of this rental subsidy exception tends to reduce or
eliminate the amount of ISM counted towards an individual's SSI
payment, which generally results in a higher SSI payment amount. In the
example, discussed above, an SSI applicant or recipient living in one
of the seven excepted States who agrees to pay $400 per month for an
apartment with a CMRV of $800 per month would not be charged ISM
because their monthly required rent is more than the PMV ($334.33 for
2024). Consequently, the SSI applicant or recipient would continue to
receive the FBR (provided they did not have any other countable income
or resources for SSI purposes).
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\16\ See 20 CFR 416.1130(b); Jackson v. Schweiker, 683 F.2d 1076
(7th Cir. 1982).
\17\ See Acquiescence Ruling (AR) 90-2(2): Ruppert v. Bowen, 871
F.2d 1172 (2d Cir. 1989)--Evaluation of a Rental Subsidy as In-Kind
Income for Supplemental Security Income (SSI) Benefit Calculation
Purposes--Title XVI of the Social Security Act. When this final rule
becomes effective, we will rescind AR 90-2(2) as obsolete, in
accordance with 20 CFR 416.1485(e)(4).
\18\ See Diaz v. Chater, No. 3:95-cv-01817-X (N.D. Tex. Apr. 17,
1996); POMS SIDAL 00835.380.
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Proposed Rule
Consistent with the Social Security Administration's Agency
Strategic Plan for Fiscal Years 2022-2026, and with the stated goal of
simplifying the SSI program, advancing equality, and promoting uniform
treatment of rental assistance, we published a notice of proposed
rulemaking (NPRM) in the Federal Register on August 24, 2023, entitled
Expansion of the Rental Subsidy Policy for Supplemental Security Income
(SSI) Applicants and Recipients.\19\ In the NPRM, we proposed to revise
our regulations by making the rental subsidy exception our nationwide
policy. Under the proposed rule, all SSI applicants and recipients
would be held to the same standard; that is, a ``business arrangement''
exists, and the applicant or recipient is not considered to be
receiving ISM in the form of room or rent, if the applicant or
recipient has a monthly required rent equal to or exceeding the PMV.
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\19\ 88 FR 57910.
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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 determine rental subsidy are a proper
exercise of the Commissioner's rulemaking authority under the Act.
The NPRM includes a discussion of the ISM policy \20\ as well as
the rationale for and analysis of this policy change,\21\ which in this
final rule we are adopting in full. As discussed in the NPRM, the
rationale underlying the exception that has been in place in the seven
excepted States was based largely on the court decisions from the
Second and Seventh Circuit Courts of Appeal.\22\ In Jackson, the
Seventh Circuit reasoned that it is not enough for a claimant to be
provided shelter at a rate below market value for that difference to be
counted as ``income'' for SSI purposes; rather, to be counted as
``income,'' the difference between the market value and the monthly
required rent must result in increased purchasing power to meet an
applicant's or recipient's basic needs.\23\ In Ruppert, the Second
Circuit similarly found that the difference between the market value
and the monthly required rent should constitute an ``actual economic
benefit'' to be counted as ``income'' for SSI purposes.\24\ In
implementing Ruppert for residents of the Second Circuit, we announced
in our Acquiescence Ruling that an applicant or recipient does not
receive an ``actual economic benefit'' from a rental subsidy when the
amount of monthly required rent equals or exceeds the PMV.\25\
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\20\ See 88 FR 57910, 57910-12 (Aug. 24, 2023).
\21\ Id. at 57912-13.
\22\ Id. at 57911-12. See also Ruppert v. Bowen, 871 F.2d 1172
(2d. Cir. 1989); Jackson v. Schweiker, 683 F.2d 1076 (7th Cir.
1982).
\23\ See 88 FR 57912. See also Jackson, 683 F.2d at 1082-87.
\24\ See 88 FR 57912. See also Ruppert, 871 F.2d at 1079-81.
\25\ See 88 FR 57912. See also AR 90-2(3), 55 FR 28947, 28949
(July 16, 1990).
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Thus, applying nationally the definition of ``business
arrangement'' based on the PMV rather than the CMRV focuses on the SSI
applicant's or recipient's purchasing power or the actual economic
benefit they receive and ensures that all SSI applicants and
recipients, regardless of where they reside, will have the same policy
applied to them regarding the definition of a business arrangement.
This policy change therefore supports our goal of enhancing equality in
the programs we administer for all applicants and recipients.
Comment Summary
We solicited comments on the proposed rule and received 179 public
comments on our NPRM from August 24, 2023, through October 23, 2023.
All comments are available for public viewing at https://www.regulations.gov/document/SSA-2023-0010-0001/comment. These comments
were received from:
Individuals; and
Advocacy groups, such as the National Organization of
Social Security Claimants' Representatives and the Consortium for
Constituents with Disabilities.
We carefully considered the public comments we received. A
significant majority of commenters (170 comments) supported the policy
we proposed in the NRPM--to extend the rental subsidy exception
nationwide--without reservation or suggestions for modifications. Some
commenters agreed with the proposal, but recommended further amendments
to ensure the greatest number of SSI applicants and recipients could
avail themselves of the benefits provided by the new policy. Only one
commenter disagreed with the proposal altogether.
We received several comments suggesting changes that are not
feasible for us to make or are outside the scope of the proposed rule
and the final rule. For example, some commenters recommended changes to
the statutorily set resource limits, and others recommended that we do
away with counting ISM altogether. Even though these comments are
outside the scope of the NPRM and final rule, we address them in a
general manner to help the public better understand the SSI program. We
note that commenters frequently compared or conflated the concepts of
rental subsidy and rental liability, which are not the same thing under
our policies. An individual receives ISM in the form of rental subsidy
when the monthly required rent (including a flat fee payment) is less
than the amount charged under a
[[Page 25509]]
business arrangement.\26\ We develop for rental subsidy by contacting
the landlord when necessary \27\ to verify (1) the monthly required
rent (2) and the reason for accepting a reduced rent, if that is at
issue.\28\ In developing rental subsidy, we also obtain information
about the CMRV from the landlord or another knowledgeable source (and
will continue to do so) to determine if the CMRV is less than the
PMV.\29\
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\26\ See POMS SI 00835.380.
\27\ Based on the new rule, if the lease presented by the
individual contains all necessary information (rent charged is
higher or equal to the PMV), contacting the landlord is unnecessary
to develop rental subsidy.
\28\ See id.
\29\ See id. See also 20 CFR 416.1130(b).
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In contrast, rental liability is an oral or written agreement
between an individual (or the individual's spouse with whom they live
or a person whose income may be deemed to the individual) and a
landlord that the landlord will provide shelter in return for rent.\30\
Rental liability is generally verified through oral evidence from the
landlord or written evidence of the rental agreement. Rental liability
is related to the development of an applicant's or recipient's living
arrangement which is necessary to understand before determining if an
applicant or recipient receives ISM in the form of a rental
subsidy.\31\ Otherwise stated, the establishment of rental liability
must precede a determination of rental subsidy. When an applicant or
recipient demonstrates rental liability, we find that they are living
in their own household (not the household of another).\32\ This
determination, in turn, is central to whether we apply the value of the
one-third reduction (VTR) \33\ rule or PMV rule to value any ISM they
receive--if an applicant or recipient is living in their own household,
then the PMV rule applies to valuing ISM.\34\ In other words,
establishing rental liability is one of the threshold issues in
determining an applicant's or recipient's living arrangement, which
determines whether we use the VTR rule or PMV rule to value any ISM
received; rental subsidy, on the other hand, is one type of ISM that
may be applicable and developed for applicants and recipients who are
not subject to the VTR rule.
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\30\ See POMS SI 00835.020; POMS SI 00835.120.
\31\ See POMS SI 00835.120A; POMS SI 00835.380B6.
\32\ See POMS SI 00835.120A.
\33\ When a claimant or couple lives throughout a month in
another person's household and receives both food and shelter from
others living in the household, we reduce the applicable FBR by one-
third. This reduction in the FBR has an income value, known as the
VTR or the value of the one-third reduction. See POMS SI 00835.200A.
\34\ See id.
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Comments and Responses
Category I: Support for the Proposed Rule With No Request for Further
Changes
Comment: We received 170 comments from advocacy groups and
interested citizens unreservedly stating their support for our proposal
to apply the rental subsidy exception nationwide. These comments did
not suggest modifications to the proposed rule.
Response: We acknowledge and appreciate the support for the
proposal.
Comment: Of note, many of these 170 commenters opined that adoption
of the proposed rule would simplify the SSI program, advance equity,
and promote uniform treatment of rental assistance for SSI recipients.
Response: As we expressed in the NPRM, these three outcomes were
our primary aims in developing this rulemaking. Accordingly, we
appreciate that many commenters also highlighted them as benefits of
the rule.
Comment: Multiple commenters identified administrative efficiencies
associated with the adoption of the proposed rule. For example, several
commenters expressed that the rule would save SSA staff time, time
which, in the words of one commenter, could be used to ``run the SSI
program better.'' Other commenters opined on the overall positive
effect the rule would have on the administrative efficiency of our
programs.
Response: Since the rule will result in nationwide uniformity and
require less information from some SSI applicants and recipients, we
agree that, after an initial implementation period, it will increase
administrative efficiency.
Comment: Many commenters urged us to move quickly to finalize and
implement the regulation. They further indicated support for our
efforts to update our ``financial rules'' in other ways that benefit
disabled people and older adults.
Response: We are finalizing this rule and will implement it on the
date specified herein. Also, as indicated by our Fall 2023 Unified
Agenda,\35\ we are contemplating other regulatory actions aimed at
benefiting vulnerable populations.
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\35\ See https://www.reginfo.gov/public/do/eAgendaMain?operation=OPERATION_GET_AGENCY_RULE_LIST¤tPub=true&
agencyCode=&showStage=active&agencyCd=0960&csrf_token=3FE7BC5F46AC436
24D85A63227874C0C8BCF6ED346AD43F4DC50FD05D9B63DC5C7005A531663BBC086DD
F17A8F74A3C016A0.
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Category II: Opposition to the Rule
Comment: We received one comment opposing any changes in SSI,
including this rule, because, per the commenter, a change in SSI would
``be a hardship for my family.''
Response: The commenter did not explain specifically why they
perceived that changes to the SSI program would be a hardship.
Nonetheless, we note that the change will not decrease payment amounts
for any individuals and might increase payment amounts for some
individuals. Also, we expect the change to be simpler to understand and
reduce burden for individuals reporting information.
Category III: Support for the Proposed Rule, But With Request for
Additional Changes
Comment: Another commenter wrote that they ``believe that ISM rules
disproportionately penalize people of color, including refugees and
other recent immigrants.''
Response: SSA administers the nation's largest social welfare
programs, including the SSI program that is designed to lift millions
out of poverty. Our vision is to provide income security for the
diverse populations we serve, including those in underserved
communities, people with disabilities, workers, their families, and
people who communicate primarily in languages other than English, as
laid out in Social Security's Equity Action Plan 2023 Update.\36\ Our
intent is to serve all who apply for and all who are eligible for SSI
payments, and apply our rules equally to all SSI applicants and
recipients. To the extent the commenter believes ISM should be
eliminated from the SSI program, that change would require
Congressional action.
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\36\ See https://www.ssa.gov/equity/assets/materials/2023.pdf.
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Comment: Multiple commenters opined on our already-existing rental-
liability evidentiary requirements, which are laid out in our POMS
instructions. One commenter recommended that we accept SSI applicants'
and recipients' self-attestations regarding rental agreements rather
than requiring formal rental agreement documentation that we then
verify. Similarly, multiple commenters recommended that we not require
written verification of a rental agreement because they find many
agreements to be oral in nature, and it can be difficult to compel
landlords to cooperate with the verification process. In that vein,
many commenters encouraged us to ``follow the lead'' of the USDA Food
and Nutrition Service,
[[Page 25510]]
which, according to the commenters, does not require written
verification of rent for those applying specifically for Supplemental
Nutrition Assistance Program (SNAP) benefits. In contrast, one
commenter asserted that our proposed rule would not work unless
individuals were still required to report proof of their rental
payments.
Response: As discussed above, rental liability and rental subsidy
are two distinct policies. Rental liability relates to determining an
applicant's or recipient's living arrangement and whether they have
demonstrated that they live in their own household (and are subject to
the PMV rule) or in the household of another (and potentially subject
to the VTR rule). Rental subsidy, on the other hand, is a type of ISM
that may be applicable depending on an applicant's or recipient's
circumstances.
Regarding the comments on our development criteria for rental
liability, we acknowledge the diverse viewpoints on our existing
requirements. We note that we do accept statements from an applicant or
recipient to establish rental liability in some circumstances--if the
individual lives alone or if the only other household members are the
spouse, a deemor,\37\ or a child.\38\ As discussed above, the purpose
of verifying rental liability is to establish whether an applicant or
recipient is living in their own household or the household of another
(as this affects whether they are subject to the PMV rule or the VTR
rule).\39\ If an applicant or recipient lives alone (or only with their
spouse, deemor, or any child), they live in their own household, not
the household of another. However, per our current POMS policy, if the
applicant or recipient lives with others, then we need additional
evidence of rental liability to verify that they are not living in
another person's household (and potentially subject to the VTR rule).
Because the living arrangement determination is critical to how we
value an applicant's or recipient's ISM, we currently do not accept
self-attestations when it is not already clear from the individual's
circumstances that they are living in their own household.
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\37\ ``Deeming'' is the process of considering one person's
income to be counted as another person's (in this case, the SSI
applicant's or recipient's) income as well. There are four
categories of deemors: (1) ineligible spouse; (2) ineligible parent;
(3) sponsor of an alien; and (4) essential person, as defined in 20
CFR 416.222. See https://www.ecfr.gov/current/title-20/chapter-III/part-416/subpart-K/subject-group-ECFRdaeb44ef4120053/section-416.1160.
\38\ See POMS SI 00835.120C.
\39\ See POMS SI 00835.120A.
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As for the possibility of oral rental agreements, we note that our
existing rental liability verification does not require written
evidence of all rental agreements. For example, we accept verbal
confirmation from a landlord of a rental agreement or submission of
rent receipts to establish rental liability, as long as the rent
receipts satisfy certain criteria.\40\
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\40\ See POMS SI 00835.120D.
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Regarding the comments on the FNS policies for implementing their
SNAP program, we note that the eligibility requirements for SSI and
SNAP are not the same. Thus, it is difficult to compare point-for-point
the eligibility and verification requirements for the two programs. For
example, as discussed above, a critical factor that we need to
determine for SSI purposes is whether an applicant or recipient is
living in their own household or another person's household, as that
affects whether we use the PMV rule or the VTR rule to value the
individual's ISM. Our rental liability policy is designed to ensure we
get the information we need to verify whether an applicant or recipient
is living in their own household or the household of another person. In
contrast, for example, there are SNAP requirements that appear to be
more focused on verifying State residency, which is a factor more
important for SNAP eligibility.\41\ We note that SNAP applicants and
recipients must also verify ``factors affecting the composition of a
household, if questionable;'' and applicants ``who claim to be a
separate household from those with whom they reside shall be
responsible for proving that they are a separate household to the
satisfaction of the State agency.'' \42\ While the SNAP regulations do
not appear to specify the type of evidence required for every
eligibility factor, we note that documentation such as ``rent
receipts'' and contacts with collateral sources such as ``landlords''
are included in the examples of ``sources of verification'' for SNAP
eligibility requirements as well.\43\ Overall, because of the
differences between the programs, we are not adopting the same
development processes that FNS uses to determine and verify the
eligibility requirements for SNAP.
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\41\ See 7 CFR 273.2(f)(1)(vi); 7 CFR 273.3.
\42\ See 7 CFR 273.2(f)(1)(x).
\43\ See 7 CFR 273.2(f)(4)(i) and (ii).
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Finally, as to the commenter's statement that our rental subsidy
rule ``would not work unless individuals were still required to report
proof of their rental payments,'' we agree that we will continue to
require information about applicants' and recipients' monthly required
rent for the purposes of calculating rental subsidy ISM, when it
applies.
Comment: Many commenters recommended that we accept proof of rent
regardless of the format (e.g., money order copies, cancelled checks,
and proof of electronic payments) for purposes of rental liability
verification.
Response: The NPRM and this final rule address only the definition
of a business arrangement in the context of rental subsidy--not the
development criteria for establishing rental liability for purposes of
determining an applicant's or recipient's living arrangement. This rule
does not address the evidentiary requirements associated with
developing rental subsidy or rental liability, and, in fact, all
current requirements are contained exclusively in our POMS. In
addition, under this rule, we do not require submission of rent
receipts--to make a rental subsidy determination, we can obtain verbal
verification from the landlord of the monthly required rent.\44\
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\44\ See POMS SI 00835.380C.
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However, we note that under our current rental liability policy, we
accept electronic payments, such as rent receipts, if they satisfy all
of the criteria that we believe are necessary to adequately document
rental liability. To establish rental liability, a rent receipt needs
to contain the following: the individual's name, amount paid, period
covered by payment, and the signature of the landlord or authorized
representative.\45\ We require this information for rent receipts
because it enables us to confirm that the payment being made is for the
individual's monthly required rent and provides sufficient information
to establish a rental agreement between the individual and the
landlord. Electronic payments (such as Zelle, Venmo, and PayPal) may
not always satisfy the criteria. For example, these electronic payment
receipts may not indicate the period covered by the payment.
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\45\ See POMS SI 00835.120.
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Comment: One commenter recommended that we consider using the U.S.
Department of Housing and Urban Development's (HUD) fair market rent
data set \46\ to establish market prices.
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\46\ HUD compiles and lists Fair Market Rents (FMR). FMRs are
statistics developed by HUD to determine payments for housing
assistance programs like the Section 8 housing choice voucher
program. For more information, please see: https://www.hud.loans/hud-loans-blog/what-is-fair-market-rent/.
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Response: We considered the recommendation but decided not to adopt
it at this time. The HUD fair market rent data set might be considered
[[Page 25511]]
a knowledgeable source for the purpose of establishing the CMRV for the
applicant's or recipient's rental property.\47\ However, there would be
advantages and disadvantages. For example, on one hand, information
provided by a government agency generally is reliable, and it would be
helpful to have another knowledgeable source from which to obtain
relevant evidence--though, under this final rule, we will develop CMRV
in the rental-subsidy context only for the limited purpose of ensuring
that it is not less than the PMV, which we expect will be rare. On the
other hand, due to the input requirements for the HUD database,
utilizing the HUD fair market rent data set would require technicians
to obtain more information from the SSI applicant or recipient--such as
the number of rooms or square footage of the rental unit--which may not
be readily available and is not otherwise required for SSI purposes.
Therefore, instead of simplifying the development process, using the
HUD database would add another layer of development that could be
burdensome to the SSI applicant or recipient and cause a delay in the
case being processed. We believe that those disadvantages outweigh the
apparent advantages, and so we decided not to adopt the recommendation
at this time.
---------------------------------------------------------------------------
\47\ See id.
---------------------------------------------------------------------------
Category IV: Comments Relating to ISM, but Outside the Scope of This
Rule
Comment: One commenter suggested that SSA could use the
Supplemental Nutrition Assistance Program (SNAP) standard allotment,
based on family size, to determine if the amount paid for food is at
market value.
Response: These comments are beyond the scope of the NPRM and final
rule, as they relate to food, and the NPRM and final rule relate to
rent. We note, however, that we recently published a final rule
relating to the food element of ISM \48\ which addresses the relevant
comments that were submitted in response to the associated NPRM.
---------------------------------------------------------------------------
\48\ Omitting Food From In-Kind Support and Maintenance
Calculations, 89 FR 21199 (March 27, 2024).
---------------------------------------------------------------------------
Comment: Many commenters encouraged us to ensure the rental subsidy
policy extends to all SSI recipients who pay at least the PMV towards
their monthly required rent.
Response: When we apply our rental subsidy policy, all SSI
applicants and recipients who pay a monthly required rent, under a
rental agreement, equaling or exceeding the PMV will receive the
benefit of this rule (or at least will not be disadvantaged by it). As
we discussed in the NPRM, one of our goals in implementing this rule is
to bring nationwide uniformity to the application of our rental subsidy
policy.\49\
---------------------------------------------------------------------------
\49\ See 88 FR 57912-13.
---------------------------------------------------------------------------
Comment: Many commenters opined that we should revise our sub-
regulatory guidance related to rental liability and simplify rental
liability determinations ``to maximize the simplification effects of
the rental subsidy rule.'' Specifically, they suggested that we
streamline our rental liability policy, particularly for applicants and
recipients who ``rent from someone with whom they live'' because ``SSI
recipients who live in the same residence as their landlord must first
establish rental liability before the proposed rental subsidy rule
would apply.''
Response: As we noted at the outset of the comment section,
simplifying the rental liability determination is separate from the new
rental subsidy policy (or ensuring that it extends to all SSI
applicants and recipients who pay at least the PMV). Specifically, the
commenters recommend we revise our pertinent guidance to find,
``without additional development, that rental liability (emphasis
added) exists'' for an applicant or recipient who rents from someone
with whom they live ``unless the landlord is a parent or child'' of the
applicant or recipient. However, this recommendation concerns our
determinations about an individual's living arrangement and whether an
individual has rental liability--not our rental subsidy policy, which
was the intended subject of this rulemaking. Under our current POMS
instructions, in certain circumstances we can rely on self-allegation
of rental liability by the applicant or recipient consistent with
commenters' suggestions, which we refer to in a process called
``curtailed development.'' Under curtailed development, we accept an
individual's statement of rental liability in limited circumstances
where it is otherwise already clear that they live in their own
household, such as when an applicant or recipient lives alone.\50\
However, we acknowledge that in most other circumstances we currently
require additional evidence of rental liability, and we will consider
commenters' feedback again if we make changes to our rental liability
POMS in the future.
---------------------------------------------------------------------------
\50\ See POMS SI 00835.120C.
---------------------------------------------------------------------------
Comment: One commenter urged us to ``modernize the processes and
systems used to make ISM determinations and calculations.''
Response: We will make the necessary systems changes to implement
the final rule.
Comment: Several commenters suggested that when SSI recipients rent
from someone with whom they live, SSA should find, without any
additional development, that rental liability exists unless SSA has
evidence to the contrary, or the landlord is a parent or child of the
SSI recipient.
Response: It appears that the commenter is suggesting we accept the
applicant's or recipient's allegation of rental liability without more
development. However, when an applicant or recipient alleges that they
are renting from someone with whom they live, under our current POMS
instructions we consider this to be a ``room rental'' situation and
must determine whether the applicant or recipient is in a ``separate
household'' from the person from whom they are renting a room.\51\ A
``separate household'' (within one home) is one that functions as a
separate economic unit--if the applicant or recipient and the landlord
do not function as separate economic units, the applicant or recipient
is not considered to be living in a separate household, cannot have
rental liability, and may be subject to the VTR rule.\52\ Again, this
distinction is important because whether an applicant or recipient is
living in their own (separate) household or in another person's
household will affect whether the VTR rule or the PMV rule applies in
valuing their ISM. When an applicant or recipient is living with the
person from whom they rent (i.e., renting a room), under our current
rental liability policy we obtain information sufficient to enable us
to verify and make an accurate determination regarding the individual's
living arrangement, such as contacting the landlord and obtaining
information about the household organization, rent, meals, and access
to the property.\53\
---------------------------------------------------------------------------
\51\ See POMS SI 00835.120A4 & 00835.120E.
\52\ See POMS SI 00835.120A4.
\53\ See POMS SI 00835.120E.
---------------------------------------------------------------------------
Comment: Several commenters recommended that we update the rules
applicable to the Value of the One-Third Reduction (VTR). They
suggested that we should consider that if an SSI recipient spends more
than one-third of their benefits on shelter costs, the recipient should
not be subject to ISM reductions. They further stated that the NPRM as
written did not affect those who live in another person's household and
receive both food and shelter from within that household (that is,
those currently subject to ISM under the VTR rule).
[[Page 25512]]
Response: This comment is outside the scope of the NPRM and final
rule. We note that the VTR is established in the Social Security
Act.\54\
---------------------------------------------------------------------------
\54\ 42 U.S.C. 1382a(a)(2)(A).
---------------------------------------------------------------------------
Comment: One commenter recommended that we educate beneficiaries
and the public on the new rules and instruct field office staff to help
individuals secure the benefits of the new rule.
Response: Prior to implementation, we will provide our front-line
technicians with training and policy updates that state the new rule
and instructions for administering the change. In addition, we are
working on updating publicly accessible POMS instructions,
publications, and forms.
Comment: One commenter opined that we should revise our policies on
assessing ISM when calculating back awards. Specifically, the commenter
expressed that we should never deduct ISM from back payments we
calculate, because even people who provide food and shelter on a non-
loan basis probably expect that they will be paid back once the
claimant is awarded back payments. The commenter asserted that we
should make this policy change via rulemaking and update our
regulations, sub-regulatory guidance, and associated paperwork to apply
this new policy.
Response: This commenter is asking us to revise our past ISM loan
policy,\55\ and this is outside the scope of the current rulemaking.
---------------------------------------------------------------------------
\55\ The commenter seemed to be referencing the policy found at
https://secure.ssa.gov/poms.nsf/lnx/0500835482. Again, this is
outside the scope of the current rulemaking.
---------------------------------------------------------------------------
Comment: Several commenters encouraged us to go further and
eliminate the ISM deduction altogether, because, in the view of these
commenters, it unfairly penalizes people with disabilities for getting
help obtaining shelter when they are already struggling to meet their
basic needs on an insufficient income.
Response: The elimination of ISM from the SSI program would require
Congressional action to change existing statutory law because ISM is
established in the Social Security Act.\56\ Therefore, the comment is
outside the scope of the NPRM and final rule.
---------------------------------------------------------------------------
\56\ See 42 U.S.C. 1382a(a)(2)(A).
---------------------------------------------------------------------------
Commenter: The same commenter opined that, if ISM is not abolished
altogether, it should only be used in cases where an equivalent market-
based price is practicable to establish.
Response: See our response directly preceding this comment. Any
such change would require Congressional action to amend existing
statutory law.
Comment: Several commenters opined that we must increase resource
and asset limits for individuals and couples.
Response: This recommendation is outside the scope of the proposed
rule and the final rule, and Congressional action would be required to
change the existing statutory law.\57\
---------------------------------------------------------------------------
\57\ See 42 U.S.C. 1382(a)(3)(A) & (a)(3)(B).
---------------------------------------------------------------------------
Regulatory Procedures
Executive Order 12866, as Supplemented by Executive Order 13563 and
Executive Order 14094
We consulted with the Office of Management and Budget (OMB), and
OMB determined that this final rule meets the criteria for a
significant regulatory action under Executive Order 12866, as
supplemented by Executive Order 13563 and Executive Order 14094.
Therefore, OMB reviewed it.
Anticipated Transfers to Our Program
Our Office of the Chief Actuary estimates that implementation of
this final rule would result in a total increase in Federal SSI
payments of $837 million over fiscal years 2024 through 2033, assuming
implementation of this rule on September 30, 2024. These transfers
reflect an estimation that approximately 41,000 individuals who would
be eligible under our current rules will have their Federal SSI payment
increased by an average of $132 per month in 2024 attributable to
implementation of this rule. There would also be an annual average of
an additional 14,000 individuals from fiscal year 2024 through 2033 who
are not eligible under current rules who would be newly eligible and
would receive payments under the final rule.\58\
---------------------------------------------------------------------------
\58\ Implementation of this final rule will cause the ISM amount
charged to some individuals to decrease. If such individuals are
already receiving an SSI payment under current rules, their SSI
payment will increase. Individuals whose ISM under current rules
causes them to be ineligible for SSI because of excess income may
become eligible under this final rule, assuming they meet all other
eligibility criteria.
---------------------------------------------------------------------------
Anticipated Net Administrative Cost Savings to the Social Security
Administration
Our Office of Budget, Finance, and Management estimates that this
regulation will result in net administrative savings of $10 million for
the 10-year period from FY 2024 to FY 2033. The net administrative
savings are mainly a result of unit time savings as field office
employees will not have to spend time developing CMRV for all rental
subsidy calculations during initial claims, pre-effectuation reviews,
redeterminations, and post-eligibility actions. The savings are offset
by costs to update our systems, costs to send notices to inform current
recipients of the policy changes, costs to address inquiries from the
notices, and costs because of more individuals being eligible for SSI
benefits, which increases claims, reconsiderations, appeals,
redeterminations, and post-eligibility actions.
Anticipated Time-Savings and Qualitative Benefits to the Public
We anticipate the following qualitative benefits generated from
this policy:
Saving time and effort for claimants and third parties who
may have evidence related to a claimant's application because they
would need to submit less information. We estimate at a minimum that
this will result in more than 7,000 hours of time saved in annual
reduced paperwork burden, representing an opportunity cost of
$1,140,526 (see the Paperwork Reduction Act section of the preamble
below for specifics).
Potentially get faster determinations or decisions
regarding SSI eligibility, payment amount, or both, which would have
both quantitative effects financially and qualitatively may alleviate
stress for applicants and recipients associated with the length of time
it may take to obtain SSI.
Administratively easier to apply the same policy
nationwide.
Anticipated Qualitative Costs
We do not anticipate more than de minimis costs associated with
this rulemaking. We do not anticipate that this final rule would affect
labor market participation in any significant way, in part because of
the limited understanding of the current policy in the SSI applicant
and recipient community.
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).
Executive Order 13132 (Federalism)
We analyzed this final rule in accordance with the principles and
criteria established by Executive Order 13132 and determined that this
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
[[Page 25513]]
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 because it
affects individuals only. Therefore, a regulatory flexibility analysis
is not required under the Regulatory Flexibility Act, as amended.
Paperwork Reduction Act
This final rule does not require any new collections or revisions
to existing collections. However, we anticipate the application of the
revisions based on this rule will cause a burden change to our
currently approved information collections under the following
information collection requests: 0960-0174, the SSA-8006, Statement of
Living Arrangements, In-Kind Support and Maintenance; and 0960-0454,
the SSA-L5061, Letter to Landlord Requesting Rental Information. Based
on our current management information data from the seven states
currently implementing these changes, we anticipate these changes will
allow for verbal responses from landlords in place of the current form
in some situations, thus reducing the overall burden as SSA will not
require those respondents to complete the entirety of Form SSA-L5061.
In addition, we note that for those who use the paper form, we will
send a revised version with question #5 removed. We also anticipate a
slight burden reduction to Form SSA-8006, as the respondents may not
need to provide as much detail pertaining to their rental subsidy
agreement due to the proposed rule.
We published a notice of proposed rulemaking on August 24, 2023, at
88 FR 75910. In that NPRM, we solicited comments under the Paperwork
Reduction Act (PRA) on the burden estimate; the need for the
information; its practical utility; ways to enhance its quality,
utility, and clarity; and on ways to minimize the burden on
respondents, including the use of automated collection techniques or
other forms of information technology. The comments section above
includes our responses to the PRA-related public comments we received
under the NPRM.
The following chart shows the time burden information associated
with the final rule:
--------------------------------------------------------------------------------------------------------------------------------------------------------
Anticipated Anticipated
Current Current new burden estimated
average estimated per total Estimated
OMB #; Form # Number of Frequency burden per total response burden burden
respondents of response response burden under under savings
(minutes) (hours) regulation regulation (hours)
(minutes) (hours)
--------------------------------------------------------------------------------------------------------------------------------------------------------
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
0960-0454 SSA-L5061 (Paper Form)............................. 35,640 1 10 5,940 8 4,752 1,188
0960-0454 SSA-L5061 (Phone Call)............................. 35,640 1 10 5,940 3 1,782 4,158
------------------------------------------------------------------------------------------
Totals................................................... 192,876 ........... ........... 26,067 ........... 18,694 7,373
--------------------------------------------------------------------------------------------------------------------------------------------------------
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
respondents regulation amount teleservice cost (dollars)
from chart (dollars) * centers ***
above (hours) (minutes) **
----------------------------------------------------------------------------------------------------------------
0960-0174 SSA-8006 (Paper Form). 12,160 1,216 * $13.30 ** 19 *** $67,391
0960-0174 SSA-8006 (SSI Claims 109,436 10,944 * 13.30 ** 24 *** 727,749
System)........................
0960-0454 SSA-L5061 (Paper Form) 35,640 4,752 * 31.48 ** 24 *** 598,372
0960-0454 SSA-L5061 (Phone Call) 35,640 1,782 * 31.48 .............. *** 56,097
-------------------------------------------------------------------------------
Totals...................... 192,876 18,694 .............. .............. *** 1,449,609
----------------------------------------------------------------------------------------------------------------
* We based this figure on the average disability insurance (DI) payments based on SSA's current FY 2024 data
(2024FactSheet.pdf (ssa.gov)); 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).
** We based this figure 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 submitted a single new Information Collection Request which
encompasses the revisions to both information collections (currently
under OMB Numbers 0960-0174, and 0960-0454) to OMB for the approval of
the changes due to the final rule. After approval of this information
collection, we will adjust the figures associated with the current OMB
numbers for these forms to reflect the new burden.
As we have revised the associated burdens for the above-mentioned
forms since we made revisions to the final rule which were not included
at the NPRM stage, we are currently soliciting comment on the burden
for the forms as shown in the charts above. 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-
[[Page 25514]]
2830, Email address: ssa.gov">OR.Reports.Clearance@ssa.gov
You can submit comments until May 13, 2024, which is 30 days after
the publication of this document. 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.
(Catalog of Federal Domestic Assistance Programs No 96.006 Supplemental
Security Income)
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 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 stated in the preamble, we amend 20 CFR part 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 is revised to read
as follows:
Authority: 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. In Sec. 416.1130, revise paragraph (b)(1) to read as follows:
Sec. 416.1130 Introduction.
* * * * *
(b) * * *
(1) We calculate in-kind support and maintenance considering any
shelter that is given to you or that you receive because 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 required rent to be paid equals or exceeds
the presumed maximum value described in Sec. 416.1140(a)(1). If the
required amount of rent is less than the presumed maximum value, we
will impute as in-kind support and maintenance the difference between
the required amount of rent and either the presumed maximum value or
the current market rental value (see Sec. 416.1101), whichever is
less. In addition, cash payments to uniformed service members as
allowances for on-base housing or privatized military housing are in-
kind support and maintenance.
* * * * *
[FR Doc. 2024-07675 Filed 4-10-24; 8:45 am]
BILLING CODE 4191-02-P