[Federal Register Volume 89, Number 250 (Tuesday, December 31, 2024)]
[Rules and Regulations]
[Pages 107236-107261]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-30593]
[[Page 107235]]
Vol. 89
Tuesday,
No. 250
December 31, 2024
Part III
Social Security Administration
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20 CFR Parts 404, 416, and 422
Use of Electronic Payroll Data To Improve Program Administration; Final
Rule
Federal Register / Vol. 89 , No. 250 / Tuesday, December 31, 2024 /
Rules and Regulations
[[Page 107236]]
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SOCIAL SECURITY ADMINISTRATION
20 CFR Parts 404, 416, and 422
[Docket No. SSA-2016-0039]
RIN 0960-AH88
Use of Electronic Payroll Data To Improve Program Administration
AGENCY: Social Security Administration.
ACTION: Final rule.
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SUMMARY: Section 824 of the Bipartisan Budget Act of 2015 (BBA)
authorizes the Commissioner of Social Security to enter into
information exchanges with payroll data providers to obtain wage and
employment information. We use wage and employment information to
administer the Old-Age, Survivors, and Disability Insurance (OASDI)
disability and Supplemental Security Income (SSI) programs under titles
II and XVI of the Social Security Act (Act). We are updating our rules
pursuant to the BBA, which requires us to prescribe, by regulation,
procedures for implementing the access to and use of the information
held by payroll data providers. We expect this final rule will support
proper use of information exchanges with payroll data providers that
will help us administer our programs more efficiently, improve our
customers' experience, and prevent improper payments under titles II
and XVI of the Act, which can otherwise occur when we do not receive
timely and accurate wage and employment information.
DATES: This final rule is effective March 3, 2025.
FOR FURTHER INFORMATION CONTACT: Nicole Dunham, Policy Analyst, Office
of Supplemental Security Income and Program Integrity Policy, Social
Security Administration, 6401 Security Boulevard, Baltimore, Maryland
21235-6401, (410) 966-9078. 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: On February 15, 2024, we published a Notice
of Proposed Rulemaking (NPRM), Use of Electronic Payroll Data To
Improve Program Administration.\1\ In the NPRM, we explained that we
expect that receiving monthly wage and employment information
automatically through an information exchange with a participating
payroll data provider \2\ will improve payment accuracy, reduce
improper payments, and reduce reporting burdens on participating
individuals when we receive their wage and employment information
through the exchange. We also explained that the implementation of an
information exchange is expected to result in more efficient use of our
limited administrative resources because our technicians would reduce
the amount of time they spend--
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\1\ 89 FR 11773.
\2\ We define a participating payroll data provider as a payroll
data provider that has an information exchange arrangement with us
to provide wage and employment information.
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Manually requesting this information from payroll data
providers and employers;
Manually entering data into our systems from an
individual's pay records;
Contacting individuals; and
Assisting individuals with the results of incomplete or
untimely reporting.
Additionally, we will not subject individuals who provide
authorization to certain penalties under section 1129A of the Social
Security Act \3\ for any omission or error with respect to wages
reported by a participating payroll data provider.\4\ When we learn of
an inaccurate report causing an underpayment, we will follow our usual
procedures for remitting an underpayment.
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\3\ 42 U.S.C. 1320a-8a. See also 20 CFR 404.459 and 416.1340.
\4\ Under section 1129A of the Act, individuals are subject to
certain penalties for making false or misleading statements: the
penalty is nonpayment of benefits under Title II and ineligibility
for payments under Title XVI. When an individual's wages are
reported by a payroll data provider through the exchange and there
is an error or omission in the wage report, the individual has
(presumedly) not made a false or misleading statement and is
expressly not subject to such penalties.
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Background
We administer the OASDI disability and SSI programs under titles II
and XVI of the Act, respectively. The OASDI program pays benefits to
individuals who meet certain requirements, such as those who are
disabled and insured for disability benefits.\5\ OASDI also pays
benefits to certain members of disabled individuals' families.\6\ The
SSI program provides financial support to: (1) adults and children with
a disability or blindness; and (2) adults aged 65 and older. These
individuals must meet all program eligibility requirements, including
having resources and income below specified amounts.\7\
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\5\ See 20 CFR 404.315 for a full list of the OASDI disability
eligibility requirements.
\6\ This can include, for example, a child of the disabled
individual, a child of the disabled individual entitled to an adult
child disability benefit, a spouse caring for a minor or disabled
child of the disabled individual, or retirement benefits for a
spouse age 62 or older of the disabled individual. See 20 CFR
404.330, 404.350, 404.351.
\7\ See 20 CFR 416.202 for a full list of the SSI eligibility
requirements.
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We take seriously our responsibilities to ensure eligible
individuals receive the benefits to which they are entitled and to
safeguard the integrity of benefit programs to better serve our
customers. We use wage and employment information to help decide who
can receive OASDI disability benefits and SSI payments, and to
determine SSI payment amounts. Receiving complete, accurate, and timely
wage and employment information allows us to administer our programs
efficiently and to avoid improper payments that can occur when we do
not have such information.\8\ Therefore, we seek to have accurate wage
and employment information as quickly as feasible to make correct
payments, and thereby avoid overpayments before they occur, or to
correct them as soon as possible after they occur.
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\8\ Individuals who are entitled to OASDI disability must report
to us when their condition improves, when they return to work, when
they increase the amount they work, and when their earnings
increase. See 20 CFR 404.1588(a). Individuals who are eligible for
SSI based on disability or blindness must make similar reports. See
20 CFR 416.988. All SSI recipients and deemors must also report to
us any change in income as soon as a reportable event happens. (A
deemor is any person whose income or resources are material to
determining the eligibility of someone filing for or receiving SSI,
such as a parent or spouse. 20 CFR 416.1160; SI 01310.127.) See 20
CFR 416.708(c).
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To obtain this necessary wage and employment information, we
largely depend on individuals to report it directly to us. Though we
strive to make reporting as easy as possible, it can be burdensome for
some individuals to track their wage and employment information and
report it to us accurately and timely.\9\ In addition, we do not always
receive complete or timely reports, and even when we do, we may still
need to verify the reports with independent or collateral sources when
we do not have proper wage evidence.
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\9\ To be considered in time to process a particular month's
payment, SSI recipients or their representative payees must report
income changes within the first ten days of the month following the
month of change (20 CFR 416.714). Receiving this information earlier
in the month allows us more time to calculate the correct payment,
send a Notice of Planned Action (NOPA) when an adverse action
applies, and adjust benefits for the following month. If a change is
reported after the first ten days of the month and the change
results in a different payment amount, then it is likely that we
will not be able to adjust the next payment in time, resulting in an
overpayment or underpayment.
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Section 824 of the BBA \10\ authorizes the Commissioner of Social
Security to enter into information exchanges with
[[Page 107237]]
payroll data providers \11\ to obtain wage and employment information.
It authorizes these information exchanges \12\ for the purposes of
efficient program administration and to prevent improper OASDI
disability and SSI payments without the need for verification by
independent or collateral sources. Further, the BBA requires us to
prescribe procedures for implementing the access and use of the
information held by payroll data providers. We refer to an exchange as
the Payroll Information Exchange (PIE).
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\10\ Public Law 114-74, 129 Stat. 584, 607.
\11\ ``Payroll data providers'' include payroll providers, wage
verification companies, and other commercial or non-commercial
entities that collect and maintain information regarding employment
and wages. 42 U.S.C. 1320e-3(c)(1).
\12\ 42 U.S.C. 1320e-3(a). ``Information exchanges'' are the
automated comparison of our system(s) of records with information of
payroll data providers. 42 U.S.C. 1320e-3(c)(2).
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The NPRM proposed policies and procedures for implementing the
access to and use of the information held by payroll data providers,
including: (1) guidelines for establishing and maintaining information
exchanges with payroll data providers (see Sec. 422.150 in this final
rule); (2) beneficiary authorizations (see Sec. Sec. 404.703(b) and
416.709(a)-(b) in this final rule); (3) reduced wage reporting
responsibilities for individuals (see Sec. Sec. 404.708(c),
404.1588(b), 416.709, and 416.988(b) of this final rule); and (4)
procedures for notifying individuals in writing when they become
subject to changes in wage reporting requirements (see Sec. Sec.
404.1588(b)(2) and 416.709(c) in this final rule).\13\ This final rule
adopts these policies and procedures, with minor changes. As discussed
in the NPRM, when we receive wage and employment information from an
employer through a participating payroll data provider, an individual
no longer has to report an increase in the amount of their work for
that employer; an increase in earnings from that employer; or changes
to wages paid in cash from that employer.\14\
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\13\ See the NPRM for additional explanation of these
procedures. 89 FR 11776-11779 (Feb. 15, 2024).
\14\ 89 FR 11778, 11781-82.
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We made changes to the proposed language in 20 CFR 404.1588(b)(3)
and 20 CFR 416.709(c)(3) to better track these reduced reporting
requirements as they were described in the NPRM. We revised 20 CFR
404.1588(b)(3) to state clearly that when reduced reporting applies, an
individual does not need to report an increase in the amount of work or
an increase in earnings (the proposed rule inadvertently referenced
only an increase in earnings). We revised 20 CFR 416.709(c)(3) to
clarify that if someone has multiple employers, they do not have to
report an increase in the amount of work or earnings from any employer
we receive their wages from; but, if we do not get their wages from an
employer, they must continue reporting. While we expect this is clear
from the explanation provided in paragraph (c)(1), we also anticipate
this minor change will more clearly explain reporting requirements to
individuals with more than one employer and also capture the relevant
information in one place. We also revised Sec. 404.1588(b) and Sec.
416.709(c) to make it explicitly clear that we are not imposing
penalties because of information we receive from PIE.
Comments Summary
We received 132 public comments on the NPRM from February 15, 2024
through April 15, 2024, 52 of which were relevant, comprehensible
comments submitted by actual commenters. Of the total comments, 52 are
available for public viewing at https://www.regulations.gov/document/SSA-2016-0039-0007/comment.\15\
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\15\ We excluded comments that were unrelated to the proposal,
were duplicates submitted by the same commenter, or used submitter-
identifying information (such as an email address) that did not
belong to the commenter.
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These comments were from:
Individuals;
Members of Congress; and
Advocacy groups for claimant representatives and other
advocacy groups.
We carefully considered the public comments we received. Most
commenters supported the general principles of the payroll information
exchange, but many recommended amendments or questioned some aspects of
the proposed rule.
We received some comments that were outside the scope of this rule
because they did not relate to the questions we included in the NPRM or
to the rules we proposed for implementing the access to and use of the
information held by payroll data providers. We addressed some of these
out-of-scope comments generally when they relate to wage and employment
information or relate to the questions we proposed in the NPRM and we
anticipate these responses may help the public understand our programs
better.
We summarize and respond to the public comments below.
Reduced Burden
Comment: Multiple commenters expressed support for the regulation,
stating it would make reporting easier and reduce burden. Some
commenters shared current challenges of reporting wages (e.g.,
difficulty obtaining needed information and submitting it on time to
the right place), opining that these would be alleviated when our
regulation was implemented. One commenter said they see how burdensome
the wage reporting process can be and ``despite SSA offering a number
of ways by which recipients and deemors can report wages, all are time
consuming.'' Another commenter expressed that many individuals
experience ``frustration'' when they get overpayments as a result of
wages they reported (or tried to report) but somehow did not get
registered by our systems. A separate commenter stated that many
individuals ``struggle'' with communication and technology and rely for
assistance on others who do not always understand the importance of
reporting wages.
Additional commenters said PIE will help avoid barriers to
reporting, like limited office hours, phone delays, and non-functioning
technology. One commenter said relieving the burden on individuals to
update wage and employment information decreases the potential for
unintentional errors and lessens the need for additional contact with
us to resolve technical or other difficulty with our systems. Several
commenters expressed that PIE will reduce the burdens on our staff, to
include reducing manual workloads and processing time.
Response: We appreciate these comments, and we agree that PIE will
reduce the burden on participating individuals and make program
administration easier for our staff.
More Accurate Info
Comment: Commenters also were favorable toward PIE because they
said it would provide us with more accurate information to administer
our programs. One commenter said that using The Work Number (TWN)
ensures that we issue monthly benefits based on the most accurate data
available, and that this also meets multiple program goals by ensuring
recipients have vital income from our programs. The commenter stated
that access to TWN will ``greatly improve'' our ability to serve the
public. One commenter said, by leveraging wage and employment
information from TWN, PIE will help support our program integrity goal
of getting the ``right payment amount to the right person at the right
time.'' The commenter stated that PIE data supplied by TWN will provide
us with an ``expansive and current view of the beneficiary's wage and
employment status.'' According to the commenter, TWN can also help
identify when wages
[[Page 107238]]
or employment statuses change or hours worked are reduced.
Response: We appreciate these comments, and we agree that PIE will
provide us with more accurate information.
Reduction in Improper Payments
Comment: Many commenters stated that a benefit of the regulation
would be its help in reducing improper payments, because we would
receive more timely and accurate information regarding income and
employment. Some commenters said even if overpayments occur, we could
more quickly identify changes and notify individuals of such
overpayments. According to commenters, faster identification and notice
would reduce the dollar amount of improper payments, making repayment
``more achievable and with less financial harm.'' One commenter stated
that this will be ``particularly beneficial for [t]itle II recipients
who are at risk for huge overpayments and retroactive cessation when
they work too much.'' Another commenter stated that PIE would ``greatly
reduce frustrations and confusion'' about overpayments.
According to one commenter, PIE would allow us to be more
responsive to real-time data and avoid overpayments that occur when we
``take too long to act'' on wage information. Another commenter said
that PIE may identify potential overpayments from new employment or
additional wages sooner, which may result in changes to eligibility.
Finally, one commenter noted that the BBA specified that the purpose of
the automated exchange includes ``preventing improper payments of such
benefits without the need for verification by independent or collateral
sources.''
Response: We appreciate these comments, and we agree that the use
of PIE data can help reduce improper payments.
Better Customer Experience
Comment: One commenter expressed that PIE would improve our
customers' experience because it would reduce the time and energy they
spend providing us with documentation each month, and also would
decrease the need for individuals to call us to follow up on any
issues. According to the commenter, PIE's automated and streamlined
process aligns with President Biden's 2021 Executive Order, (E.O.),
Transforming Federal Customer Experience and Service Delivery to
Rebuild Trust in Government.\16\
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\16\ E.O. 14058, 86 FR 71357 (Dec. 16, 2021).
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Response: We appreciate this comment and agree that the use of PIE
data may improve the customer experience for participating individuals.
Phased Implementation
Comment: Some commenters recommended phased implementation of PIE.
One commenter stated that ``limiting implementation will allow SSA to
evaluate implementation by identifying problems, taking corrective
actions, assessing its impact on SSA operations and staff, and
considering best practices'' before fully implementing PIE. Another
commenter said that the ``system can be rigorously tested prior to
deployment and deployed in stages to identify problems before all
recipients who opt in become subject to it.'' Commenters stated that we
could perform ongoing evaluation during the phased implementation.
Response: We agree with the commenters' suggestions about
implementing PIE in phases. Although we will work toward fully
implementing PIE expeditiously because full implementation would most
benefit the public, commenters raised multiple concerns (described in
more detail further in this document) that may be mitigated, at least
in part, by implementing PIE in phases. We currently plan to implement
PIE first in a controlled number of cases, scaling up towards full
implementation once we see the initial effects of PIE on a smaller
scale, analyze and evaluate these effects, and make adjustments, if
needed.
Authorizations
Comment: For individuals to participate in PIE, they must authorize
us to obtain wage and employment information from a participating
payroll data provider. Several commenters expressed support for an opt-
in authorization process, which requires individuals to communicate
their authorization to us in order to participate in PIE. One commenter
said that an opt-in model would allow individuals ``to maintain control
and a sense of autonomy over their finances.''
Several other commenters expressed that we should change our
proposal to require individuals to ``opt-out'' of authorization, which
would assume individuals want to participate in PIE unless they
communicate to us otherwise. For example, one commenter said an opt-out
authorization seems consistent with the requirements of the law and it
would quickly lead to high rates of enrollment. Another commenter asked
why we decided not to require automatic participation by individuals.
Response: Allowing individuals the choice to provide authorization
offers individuals maximum control over their personal information and
participation in PIE. While we anticipate the benefits of PIE (reducing
burdens, increasing the accuracy of wage and employment information we
receive, and reducing improper payments) will far outweigh any
potentially negative considerations, we understand that some
individuals may weigh this differently. Thus, allowing individuals to
``opt in'' enables them to positively affirm their decision. We further
note that the agency has experienced a high rate of opt-ins (over 97%
when presented the opportunity).
Comment: Several commenters stated that we should consider
additional electronic and verbal opportunities for individuals to
authorize us to obtain their wage and employment information from a
payroll data provider. Commenters suggested, for example, using
mySocialSecurity accounts, blog posts, other notices, field office
visits, or call center interactions as vehicles to prompt PIE
authorizations. Commenters expressed that expanding outreach and
education about PIE will speed up the collection of authorizations and
increase the benefits of participation.
Response: We instruct our technicians to request authorizations
from individuals during OASDI disability and SSI initial claims; during
expedited reinstatements; work continuing disability reviews; and SSI
redeterminations. Our technicians may also request authorization during
other post-entitlement interactions. We already accept verbal
authorizations using attestation.\17\ And we are exploring ways to
receive authorizations electronically, with plans to add the
authorization form to our Upload Documents application, allowing both
electronic submission and electronic signature of the authorization. In
addition, we will work with our Office of Communications to determine
the best approaches to reach others who may benefit from participating
in PIE. These approaches may include some commenter suggestions.
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\17\ Our pre-established attestation policies allow us to accept
oral attestation as a form of alternative signature See Social
Security Ruling 04-1p, Attestation as an Alternative Signature.
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Comment: Multiple commenters expressed that we should provide
standardized, plain-language explanations that identify the benefits
and risks of opting into PIE, notify people that they can opt out, and
inform people how to opt out. One commenter asserted that ``the success
and integrity of this effort will depend on where and
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when these options are explained to individuals, and how the
individual's decision is documented.'' Similarly, another commenter
said we should employ a clearly worded, well-explained, signed
document, and maintain it electronically throughout the period of
entitlement, even if superseded by a later election. The commenter said
we should train our staff to clearly explain choices, default
positions, benefits, and potential downsides of each choice.
Response: We agree that we should provide individuals with clear,
thorough explanations as they consider providing authorization to
participate in PIE. Our written authorization form provides clear
information and our technicians are trained to explain the
authorization. We require a signature on the written form, or
attestation when the authorization is obtained verbally.\18\ In
addition, we are required by law to inform individuals of the duration
and scope of their authorization.\19\ We provide this information on
the receipt that we issue to individuals when they provide their
authorization. The receipt also instructs the individual to continue to
report until they receive a subsequent notification from us about any
reduced reporting responsibilities that may come with this
authorization, if their employer participates. Furthermore, we will
communicate with individuals through notices, telephone contacts, and
in-person contacts to ensure that individuals understand the benefits
and risks of PIE, how PIE affects their reporting responsibilities, and
other relevant information.
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\18\ We have used attestation as an alternative signature method
since 2004. See Social Security Ruling 04-1p, Attestation as an
Alternative Signature.
\19\ See 42 U.S.C. 425(c)(4), 1383(e)(1)(B)(iii)(IV).
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Regarding training, we have already issued instructions to our
staff and published training videos that address collecting the
authorization because the agency began collecting authorizations in
2017. This training includes information about reduced reporting
responsibilities and when they apply so staff are able to clearly
explain this information to affected individuals.
Additionally, as we explained above, a beneficiary is not
automatically opted-in to PIE, so there is no need to explain how to
opt-out. Rather, we explain to the beneficiary that if they give us
their authorization, we may be able to obtain their wage and employment
information so they will no longer have to report that information to
us. We also explain that they can revoke their authorization at any
time.
Comment: One commenter alleged that we fail to notify individuals
that their benefits will not be adversely impacted if they decline to
provide authorization. The commenter said that we should revise our
authorization form and 20 CFR 404.703(b) to state that the individual
is not required to provide authorization and that benefits will not be
``jeopardized'' if they withhold authorization. According to the
commenter, we should stop using reports based on our current
``inadequate'' authorizations until we resend requests for
authorization that provide additional information. The commenter stated
that, in order for ongoing consent to be valid under ``basic consumer
protection principles,'' we must inform individuals that they have the
right to revoke the authorization at any time and the initial
authorization letter should explain how to revoke that authorization.
Additionally, the commenter asserted that we should revise the
regulation and form to explain how to revoke permission at a future
date. Further, the commenter stated that omission of critical
information can be considered a ``deceptive practice.'' \20\ The
commenter asserted that, without clear and accurate information about
the implications of authorizing the use of the TWN reports, the
authorization we are obtaining is not a sufficient grant of permission.
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\20\ The commenter referenced the Federal Trade Commission Act
and state analogs, and cited the ``Federal Trade Commission, 40
Years of Experience with the Fair Credit Reporting Act; An FTC Staff
Report with Summary of Interpretations,'' at p 43, Sec. 604(a)(2)
item 1 (July 2011). The commenter stated that we have a ``separate
permissible purpose to obtain TWN reports (15 U.S.C. 1681b(a)(3)(D),
i.e., in connection with a determination of the individual's
eligibility for a government benefit).'' However, according to the
commenter, to the extent we rely on the permissible purpose of
written authorization, we need to ensure the authorization is not
misleading.
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Response: We agree that the authorization should provide clear and
accurate information. We disagree that our authorization does not
provide such information. The authorization explains what a payroll
data provider is; how we will use any information obtained from a
payroll data provider; how long the authorization will remain in
effect; that by providing the authorization, the individual is
protected from certain penalties; that the authorization may be revoked
(ending that protection); and that the individual might still need to
report wage and employment information to us. Further, the
authorization Privacy Act statement says that the authorization is
voluntary and explains the effects of not providing the authorization.
As we explained in the NPRM, and in the regulations, individuals may
revoke their authorization in writing at any time, and if they revoke
their authorization, we will apply the revocation to all pending or
approved claims under the OASDI disability and SSI programs from the
time we process the revocation, including claims involving deemors.\21\
We will continue to look for opportunities to engage customers and
obtain feedback on various aspects of the PIE process, including the
authorization process and form.
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\21\ 89 FR 11777 (Feb. 15, 2024).
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Comment: One commenter asked whom individuals can speak to for
assistance related to PIE, such as with the enrollment process, the
opt-out (revoke authorization) process, and other related processes.
Response: Our employees, such as technicians at our national 800
number or field offices, can assist individuals. Because our
technicians are instructed to request authorization during initial
claims and various other interactions, they are usually actively
involved in the enrollment process. In addition, we designed a
straightforward process for providing and revoking authorizations.
Payroll Data Provider Vendor
Comment: One commenter alleged that, because we would be making a
fundamental change to program administration that depends entirely on
one company, we are setting up a ``vendor lock'' situation. The
commenter said that ``vendor lock'' would enhance our current payroll
data provider's leverage for any future contract consideration, and
that it would subject individuals to the ``performance of a private
entity with opportunities for predatory behavior and little chance of
meaningful accountability.'' The commenter stated that we could
consider ways to encourage other vendors to participate. According to
the commenter, we could, for example, invite all potential vendors to
understand our current technology, technology-staff interfaces, the
specific technology we use to interface with our current payroll data
provider's reporting system, and other information necessary to build
baseline knowledge to reduce future barriers to submitting bids.
In addition, the commenter stated that we should consider ways to
perform the same functions in house, either by building the needed
infrastructure or using existing or available data sources. The
commenter said, for example, that we currently have access to some wage
reporting data. They asked if it is sufficient, or could be made
sufficient,
[[Page 107240]]
without turning to outside data sources. Further, the commenter stated
we could consider working with other agencies to lessen dependence on
external vendors.
Response: While we are currently in a contract with one payroll
data provider, nothing about the legislation, regulations, processes,
or procedures mandates that we use the same vendor in perpetuity. For
instance, the contracting process allows entities to bid on the
contract near the conclusion of the current contract's performance
period. Recompetition efforts begin, generally, by issuing a Request
for Information (RFI) to www.sam.gov. The RFI may include a draft copy
of the Statement of Work for PIE and request any interested vendors to
submit capability statements to us for consideration. We would review
capability statements received from all interested vendors. Any
proposals for payroll data providers would use full and open
competition in accordance with Federal Acquisition Regulations (FAR)
Part 15.
Regarding the commenter's other suggestions, we are unaware of a
Federal agency that could provide the information we need to implement
PIE, and, while we use the resources available to us, we do not have
access to the necessary information internally.
Comment: One commenter asserted that, because the accuracy study
\22\ used Equifax's TWN platform only, we ignored other payroll data
solutions on the market, which reflected an ``inherent bias'' towards
TWN. Further, the commenter alleged that the reference to Equifax in
our actuarial estimates indicated that we ``will not consider other
income and employment information providers or methodologies, and
erroneously assumes that only Equifax can perform such work.'' \23\
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\22\ The study, ``Evaluation of Payroll Information Exchange
(PIE) Wage Data Accuracy,'' is available in the rulemaking record at
www.regulations.gov as a supporting document for Docket SSA-2016-
0039.
\23\ 89 FR 11783 (Feb. 15, 2024).
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Response: The accuracy study relied on the selected data because we
are currently under contract with Equifax Workforce Solutions
(Equifax). We are unable to analyze match rates from companies who have
not made their data available to us. We disagree that we ``unfairly
excluded'' alternative payroll data solutions. As noted in our NPRM, we
solicited proposals for payroll data providers using full and open
competition in accordance with FAR Part 15, and based our award
decision on a trade-off process (best value), considering both price
and non-price factors.\24\ Equifax was the only payroll data provider
to respond to our solicitation. We evaluated the proposal against the
evaluation criteria listed above, which consisted of technical
approach, corporate experience, past performance, and price. The
Technical Evaluation Committee \25\ determined the Non-Price Proposal
to be acceptable and assigned favorable ratings for the three non-price
factors. The Contracting Officer evaluated the Business Proposal (i.e.,
price proposal) and determined the proposed prices were fair and
reasonable according to FAR 15.404-1(b) and the terms of the
solicitation. In September 2019, the agency awarded the PIE contract to
Equifax, as we determined they offered the best value to the
government, all factors considered.\26\ As explained above as an
example, future contracting processes would follow our standard
recompetition efforts for a new PIE contract.
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\24\ In accordance with FAR Subpart 15.101-1(a), a trade-off
process is appropriate when it may be in the best interest of the
Government to consider award to other than the lowest priced offeror
or other than the highest rated offeror. The non-price factors
(listed in descending order of importance) used were: 1. Technical
approach, 2. Corporate experience, and 3. Past performance. The
solicitation stated factors 1, 2, and 3 when combined were
approximately equal in importance to price.
\25\ The Technical Evaluation Committee supports the source
selection for the acquisition. It is typically comprised of at least
three individuals with the appropriate technical expertise to
evaluate proposals in accordance with the solicited evaluation
factors.
\26\ We published notice of our information exchange with
Equifax, pursuant to section 824 of the BBA, on January 19, 2021. 86
FR 5303.
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Finally, our reference to our current payroll data provider in our
actuarial estimates was not an indication that we are committed to a
single payroll data provider. Actuarial estimates must make assumptions
based on current facts to develop reasonable projections. Assumptions
and estimates are subject to change based on new facts, as they become
available. Because Equifax was the only partner we could engage with
and ultimately the entity we contracted with, we based our actuarial
estimates on aspects of data from Equifax. This has no effect on the
scope of the past, present, or future solicitations, nor does it limit
consideration of other payroll data providers or methodologies.
Further, it does not assume that only Equifax can perform such work.
Payroll Data Provider Data Coverage
Comment: One commenter said that we did not analyze the costs to
serve individuals who are not covered by TWN and similar platforms. The
commenter stated that we should perform a cost analysis to estimate the
true cost to the public, including the costs of missed benefits, the
costs for us to manually obtain and verify data, and the overall
economic impact of no or delayed benefit payments to these individuals.
According to one commenter, TWN and similar platforms are ``overly
reliant upon large-scale payroll databases for traditional W-2
employees and fail to adequately capture gig economy and 1099
employees.'' The commenter asserted that this coverage gap could lead
to processing delays. One commenter said that, by choosing a payroll
exchange model that excludes workers who are not on traditional
payrolls, the study presents ``equity and access concerns,'' and will
hinder our mission and the inclusivity of our programs. In addition,
the commenter said other payroll data solutions options exist that
``flexibly and effectively'' capture data on traditional W-2, gig
economy, and 1099 employees, and we should explore them to avoid
``unfairly excluding'' alternative payroll data solutions.
In contrast, another commenter stated that TWN is the ``industry-
leading centralized commercial repository of wage and employment
information which can be used for verification services in the U.S.''
According to the commenter, the volume and availability of records,
especially current employment, matters when it comes to automating the
efficient and effective verification of wage and employment information
of OASDI disability beneficiaries and SSI recipients. The commenter
said that Equifax offers credentialed verifiers access to nearly 168
million records with active employment status and 657 million total
records through the TWN database.
Other commenters asked questions about the data we will use. For
example, commenters asked: (1) Were studies conducted to estimate how
many employers of disabled individuals are included in the database?
(2) Does the database capture only employers who use electronic wage
reporting? (3) Would wages for self-employed individuals be captured?
(4) Could we expand a data exchange with the Internal Revenue Service
(IRS) to include relevant 1099 data?
Response: We acknowledge that our current payroll data provider
will not provide wage and employment information for all individuals,
which means that standard reporting requirements will continue to apply
for some. We have not analyzed the costs associated with continuing
standard reporting requirements for such
[[Page 107241]]
individuals because we do not have enough information about who will
not be covered or their earnings amount to formulate that estimate. To
the extent that ``gig economy'' workers in particular might need to use
standard reporting, we note that most ``gig economy'' workers are
independent contractors and therefore considered self-employed. This
means that, for SSI, we count net earnings from self-employment on a
taxable year basis, divided equally across the year.\27\ We are not
aware of any payroll data provider that can provide net earnings from
self-employment. However, we remain committed to exploring
possibilities to improve program administration, which could include
finding ways to expand the pool of individuals covered by PIE in the
future.
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\27\ 20 CFR 416.1111(b); POMS SI 00820.210, available at https://secure.ssa.gov/apps10/poms.nsf/lnx/0500820210.
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Regarding other questions from commenters, we note that our current
payroll data provider reports that TWN covers over two-thirds of non-
farm payroll data. However, as stated in the NPRM, neither we nor our
current payroll data provider fully analyzed whether working disability
benefit recipients or deemors are proportionately represented in the
database. Also, we do not have information on the means employers use
to provide information to TWN (e.g., electronic wage reporting or other
means). In addition, we confirm that PIE data we receive does not
include earnings data for self-employed individuals, but we receive net
earnings from self-employment information through a data exchange with
the IRS. Expanding a data exchange with the IRS to include 1099 data
would not be useful because 1099 data alone is not adequate to
determine net earnings from self-employment.
Comment: One commenter suggested that we could get a ``more
specific sense of the match rate'' from the TWN database to disability
beneficiaries by comparing the industry, firm size, and geographic
location with like characteristics of disability beneficiaries from our
records based on past and current employers or population surveys of
the disabled. The commenter also asked if the extent of labor force
coverage in TWN is expected to increase in the future.
Response: We appreciate the suggestion for better understanding how
the payroll data received through PIE relates to the disability
beneficiary population. We will continue to evaluate information as we
implement PIE. Labor force coverage in TWN may increase in the future,
but we are unable to project when and by how much.
Data Security
Comment: Many commenters stated that we should take steps to assure
the privacy and security of personally identifiable information and
provide assurances about how information will be kept safe. Some
commenters said, because data exchange providers are private companies,
there is potential for data breaches with regard to collection,
storage, and use of payroll data. One commenter referred to a data
breach experienced by our current payroll data provider and asked us to
consider how to mitigate the security risks of using this vendor and of
technical infrastructure built to import or export data between us and
a payroll data provider. Another commenter stated that payroll privacy
laws are in place to protect the release of payroll records. A separate
commenter asserted that this is ``invasive,'' and we should not have
access to this data.
One commenter expressed that, because recipients' data may already
be contained within both entities (our records and the payroll data
provider's records), this would present ``minimal additional risk.''
According to the commenter, a plain-language explanation of these risks
may help alleviate concerns from recipients who are wary of the new
approach but want to opt in.
Response: We take seriously the security of personal information,
including the information we receive from outside sources. We will
continue to protect personal information by implementing and evolving
the robust protections we use to safeguard that information. To the
extent these comments expressed concerns with our access to wage and
employment data in general, we note that we already obtain wage and
employment information, when we have individual consent to do so, to
make decisions in our programs.\28\ That use is limited to manual, one-
off transactions, however, and PIE will allow for increased efficiency
over current practices. In addition, individuals are already required
to report this information to us. The BBA allows us to increase
efficiency and reduce public reporting burdens by obtaining this same
information using a broad-based matching process to address multiple
requests and claims simultaneously. To the extent these comments raise
concerns about disclosing information to payroll data providers, we
clarify that we will disclose the minimum information necessary to
match our records to the payroll data provider's records. We follow
federally compliant protections to ensure the administrative,
technical, and physical security of the records match.
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\28\ POMS SI 00820.147, available at https://secure.ssa.gov/apps10/poms.nsf/lnx/0500820147.
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Accuracy Study
Comment: Multiple commenters asserted that the accuracy study \29\
included in the NPRM was ``flawed'' and may underestimate errors. For
example, one commenter observed that the study examined only a subset
of individuals who may participate in PIE--SSI recipients who use our
mobile wage reporting application to scan their pay stubs--and pointed
out that we did not evaluate accuracy for SSI recipients who report
wages in other ways, Social Security Disability Insurance (SSDI)
beneficiaries, or for working family members of SSI recipients. In
addition, the commenter said that the study did not seek to examine
mismatches, where a wage report is associated with the wrong worker
(e.g., if Equifax reports payroll information on an individual who was
not working during a pay period). According to the commenter, such an
error would lower the true accuracy of using the Equifax database but
would not be identified in this study. Furthermore, according to the
commenter, the study did not review the specific payroll information
that we need to correctly adjust benefits, such as whether a paycheck
includes sick pay or vacation pay. The commenter urged us to ``conduct
further review of the PIE data to better understand all potential
errors--for all categories of our beneficiaries--and to take steps to
mitigate such errors, prior to implementation.''
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\29\ The study, ``Evaluation of Payroll Information Exchange
(PIE) Wage Data Accuracy,'' is available in the rulemaking record at
www.regulations.gov as a supporting document for Docket SSA-2016-
0039.
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A separate commenter said that it is important to note that the
percentage provided in the study is the match rate for gross earnings
when comparing PIE to SSA Mobile Wage Reporting (SSAMWR) data, and that
this approach does not represent an assessment of the data accuracy in
either database. The commenter asserted that ``Equifax maintains
numerous procedures to assure maximum possible accuracy and is
committed to industry-leading data privacy and security principles.''
Another commenter said we could gain a rough estimate on the extent of
disability reporting by comparing TWN
[[Page 107242]]
data with our internal databases in the few months before National
Directory of New Hires (NDNH) \30\ and Master Earnings File data is
entered.
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\30\ The Office of Child Support Enforcement (OCSE) and SSA have
a Memorandum of Agreement (MOA) that allows authorized SSA employees
query-only access to the National Directory of New Hires (NDNH).
This database contains quarterly new hire, wage and unemployment
information reported by the States and the District of Columbia to
OCSE. SSA employees utilize the database when investigating
potential earnings.
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Response: We disagree that reviewing only SSI recipients who report
via the SSAMWR application represents a flaw in the study. We consider
reports received via the SSAMWR application like we consider reports
received by any other means. The study used a statistically significant
sample of over 40,000 reports to determine the accuracy rate. The study
examined mandatory paystub elements (e.g., pay period end date, pay
date, and gross earnings) when determining accuracy. The study did not
account for specific payroll information such as sick pay or vacation
pay, as the commentor suggests, because these are optional data
elements that our current payroll data provider submits to us only if
they have the information. Because those additional data elements are
not always present in a PIE wage response, the accuracy study did not
include them in its determination of PIE's overall data accuracy. We
remain committed to continued data analysis upon implementation of PIE.
Further, pay elements like sick and vacation pay are only relevant
in the context of making determinations of substantial gainful activity
(SGA) for OASDI disability (for SSI, gross wages are counted). If we do
not receive sick and vacation pay data through PIE, individuals can
provide it to us before we make a final SGA determination.
We agree with the commenter that the study did not evaluate
``mismatches'' (where a wage report is associated with the wrong
worker) because we designed the study to focus on cases where wage
earners self-reported and uploaded wages. Thus, when the Social
Security number (SSN) and name matched on the SSAMWR and PIE data, we
presumed the PIE data was for the correct individual. However, we
recognize that mismatches may exist outside of the study and
acknowledged this in the NPRM.\31\ We have established procedures that
we follow when we suspect, or when an individual informs us, that a
wage report is associated with the wrong individual.\32\ We are
updating those procedures to include PIE-specific examples. In
addition, as explained in the NPRM, we will notify individuals in
writing whenever we start receiving wage and employment information
from a payroll data provider. Because that notice will identify the
employer(s) from which we are receiving wages, an individual can tell
us if they suspect a mismatch. We plan to add language to this notice
telling individuals to contact us right away if the employer shown is
incorrect.\33\
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\31\ 89 FR 11775 Footnote 28 (Feb. 15, 2024).
\32\ See, e.g., POMS RM 03870.001, available at https://secure.ssa.gov/apps10/poms.nsf/lnx/0103870001, POMS RM 03870.060,
available at https://secure.ssa.gov/apps10/poms.nsf/lnx/0103870060,
POMS RM 03870.045, available at https://secure.ssa.gov/apps10/poms.nsf/lnx/0103870045.
\33\ Whenever an individual is overpaid, we assess an
overpayment. However, if inaccurate data from the payroll data
provider results in an overpayment and the overpaid individual asks
us to waive recovery, then our normal waiver procedures apply. Under
our existing regulations, we will usually find the individual is
``without fault'' in causing the overpayment. Determining that an
individual is ``without fault'' is one of the requirements for
waiver of recovery. See 42 U.S.C. 404(b), 1631(b)(1)(B); 20 CFR
404.506(a), 404.507, 416.550, 416.552.
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Data Accuracy
Comment: Some commenters expressed concerns about the ability to
correct errors. One commenter provided an example of an individual
whose employer reimbursed her for out-of-pocket travel costs that were
incorrectly categorized as earnings in the payroll provider's database.
According to the commenter, the individual's attempt to correct the
erroneous wage information resulted in weeks of being ``bounced between
Equifax, their employer, and SSA.'' As another example, a commenter
referred to a class action lawsuit that asserted that when an
individual tried to correct the errors with Equifax, they faced
significant hurdles, including a ``burdensome `proof of address'
submission'' required to receive her record.\34\ One commenter said we
should consider ways to reduce the burdens associated with correcting
records by, for example, accepting simple attestations from recipients.
The commenter stated that, if an inaccuracy comes from the payroll data
provider, a single report by the individual to us could be considered
sufficient, and we could report the inaccuracy to the payroll data
provider, to be fixed within their database.
---------------------------------------------------------------------------
\34\ The commenter referred to Vanessa Muniz Gerena v. Equifax,
Case No. 3:24-cv-00098 (E.D. Va. Feb. 9, 2024).
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Response: If an individual disputes any wage information we
received, they can directly report the dispute to us and provide
available evidence about their wages.\35\ We will review and develop
that evidence and correct our own records, when appropriate, in
accordance with a priority list of the evidence we might consider,\36\
potentially including direct contact with employers. If an individual
disputes the data, and there is no other evidence that corroborates the
information the payroll data provider supplied, we would not use the
report from the payroll data provider.
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\35\ If inaccurate data from the payroll data provider results
in an overpayment, all of our existing overpayment policies apply.
The overpaid individual may request waiver of recovery, and we will
usually find the individual was without fault in causing the
overpayment (one of the requirements for waiver of recovery).
\36\ POMS DI 10505.005, available at https://secure.ssa.gov/apps10/poms.nsf/lnx/0410505005, SI 00820.130, available at https://secure.ssa.gov/apps10/poms.nsf/lnx/0500820130.
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However, we do not manage the records of the payroll data provider
or the employers that report to the payroll data provider. It is up to
the individual to correct their personal records with entities outside
of SSA. Our Notice of Planned Action (NOPA) and Notice of Proposed
Decision will provide contact information for individuals to directly
dispute the information with the payroll data provider and request that
the payroll data provider flag the data as disputed. If the payroll
data provider has flagged data because it is being disputed, we will
not post the data to our claims records.
When an individual tells us that PIE data is incorrect, we will
remind them that the payroll data provider has its own dispute process
separate from our process, and we encourage the individual to follow
that process. Although the individual is not obligated to contact the
payroll data provider to make the correction, that is the only way the
record can be fixed; we do not have the ability to change a payroll
data provider's records on behalf of anyone. We will also work with the
individual to revoke their authorization, if they choose. Once
authorization is revoked, we will no longer request the individual's
information from the payroll data provider, which will ensure that we
receive no additional PIE data. We will also work with the individual
to develop other evidence to corroborate the individual's report or the
PIE data. If an individual chooses to do so, they may again provide
authorization once their dispute is resolved and receive protection
from certain penalties and reduced reporting responsibilities.
Comment: Commenters expressed concerns about the accuracy and
[[Page 107243]]
reliability of payroll provider data, particularly because the
information that will be automated is provided by a third party. One
commenter said that the discrepancies in the reports leave
``substantial room'' for erroneous improper payments based on PIE data,
and we should work to reduce these discrepancies as much as possible. A
commenter said we should ensure that the PIE system alerts us to
employer corrections that occur after we receive the monthly batch data
so we can notify individuals and take the corrections into account when
determining benefit adjustments. Another commenter suggested that we
institute our own internal quality review procedures to proactively
look for and resolve potential errors in the PIE data.\37\ Another
commenter said we should direct staff to consider potential accuracy
issues. One commenter asked, for example: (1) What accuracy standards
will we require of our payroll data provider? (2) How often will we
measure the accuracy? (3) Does the contract require changes from
Equifax to promptly improve accuracy and correct other deficiencies?
(4) Will we maintain a way to return--in a way that minimizes burdens
on recipients--to other reporting mechanisms if the payroll data
provider does not meet sufficient accuracy standards?
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\37\ The commenter cited a policy (POMS SI 00820.143 (Monthly
Wage Reporting), available at https://secure.ssa.gov/apps10/poms.nsf/lnx/0500820143) where we flag when an SSI recipient's self-
reported wages are more than the wages reflected on their W-2 and we
investigate to resolve the discrepancy.
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Response: Based on our review, we expect that PIE data will be more
accurate, timely, and complete than the information we receive through
other means. We remain committed to continued analysis of PIE data to
ensure information we receive is accurate, complete, and up to date as
we discussed in the NPRM, though we cannot yet speak to the specific
methodology and frequency that we will use to assess the information we
receive from a payroll data provider.\38\ Our payroll data provider
must maintain reasonable procedures that ensure the maximum possible
accuracy, completeness, relevance and timeliness of wage and employment
information. Also, if an employer makes a correction to wage
information we received through PIE, that correction should be
reflected in W-2 information we receive directly from the employer; we
already have a process that uses automation to identify such
discrepancies and alert us of the need to investigate and make
corrections if appropriate--including releasing underpayments or
establishing overpayments. Finally, if the individual has concerns
about whether the payroll data provider is giving us accurate
information, they may revoke their authorization and self-report their
wage and employment information to us. All current self-reporting
methods will remain available, and individuals will continue to be able
to report using the method that serves them best.
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\38\ The accuracy study we cited in the NPRM allowed us to
compare data received in the SSAMWR to that received through PIE.
Once PIE is implemented, if we obtain information for a beneficiary,
we will no longer have self-reported wage and employment information
from that beneficiary to compare to the PIE data we receive.
Therefore, we anticipate developing new methods to analyze PIE
accuracy.
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Comment: Several commenters expressed concerns that identity theft
has the potential to cause problems for individuals whose data is
matched erroneously. Some commenters provided detailed examples of
identity theft and expressed that it is ``very common.'' Commenters
said that we must have procedures in place to ensure that individuals
who are subject to identity theft do not receive repeated erroneous
matches, which has the potential to cause a ``never-ending headache of
repeated adverse actions.'' The commenter stated that we should create
an identity theft flag on an individual's account when we receive an
allegation of identity theft, and we should check for this flag before
taking an adverse action on any payroll data match. One commenter said
mismatches are a ``vital concern for victims of identity theft.'' \39\
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\39\ The commenter provided, as an example, a citation to
Vanessa Muniz Gerena v. Equifax, No. 3:24-cv-00098 (E.D. Va. Feb. 9,
2024).
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Response: We understand that identity theft is a significant
concern. We have established procedures to assist customers when
identity theft is suspected. Generally, we learn of suspected identity
theft when an individual identifies an inaccuracy on their earnings
record while filing a claim or when reviewing their Social Security
Statement. With PIE, we expect to learn of suspected identity theft
even earlier. Further, where an individual suspects identity theft and
has already filed a dispute with the payroll data provider that is
unresolved, that data will be flagged and will not be posted to our
claims records.
We will update our established earnings correction procedures \40\
to account for potential identity theft discovered through PIE. We
expect those procedures to be similar to those we currently follow when
an individual disclaims earnings \41\ or when we must resolve
``scrambled earnings'' (when wages belong to one individual are posted
to another individual's record).\42\ In general, these procedures
outline how we will investigate and when we will accept an individual's
statement that earnings are not correct. If our investigation shows
that no evidence exists to corroborate a payroll data provider report
that the individual told us was erroneous, we will not use the report
from the payroll data provider.
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\40\ POMS RM 03870.001, available at https://secure.ssa.gov/apps10/poms.nsf/lnx/0103870001.
\41\ POMS RM 03870.060, available at https://secure.ssa.gov/apps10/poms.nsf/lnx/0103870060.
\42\ POMS RM 03870.045, available at https://secure.ssa.gov/apps10/poms.nsf/lnx/0103870045.
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In addition to correcting earnings information, we also offer
general guidance and assistance when someone tells us about suspected
identity theft. This may involve general advice, or referral to other
agencies or law enforcement, or issuing a new Social Security number
where appropriate.
Comment: One commenter said that we have a ``known history of
problematic data matching,'' for example, attributing real property of
a different person in a different State to an individual with the same
name, which could affect SSI eligibility. The commenter asserted that
basic data-matching errors continue to persist, which does not
``engender confidence that an automated data-matching scheme for wage
reporting will work.''
Response: We understand that some commenters may be cautious about
data matching agreements. We have a number of safeguards in place, as
explained in our NPRM and elsewhere in this final rule. We expect that
these safeguards will address commenters' concerns. Moreover, current
administrative procedures provide an opportunity for individuals to
appeal decisions we make based on information from the payroll data
provider. Before we take action on a decision that affects someone's
SSI payment, that individual will receive a NOPA. The NOPA explains
that they can appeal and continue to receive SSI during their appeal.
Still, if individuals are hesitant to participate in PIE, they may
choose not to provide authorization or they may revoke authorization in
writing at any time.
Comment: According to one commenter, certain duties are imposed on
TWN (and us) because TWN's data is considered a ``consumer report.''
The commenter stated that, under the Fair Credit Reporting Act (FCRA),
the consumer has a right to dispute errors
[[Page 107244]]
in their consumer report,\43\ and that when the consumer lodges a
dispute, the Consumer Reporting Agency (CRA) must conduct a
``reasonable investigation.'' According to commenters, we should not
reduce or suspend benefits during the FCRA investigation period.
Commenters said, if the consumer continues to dispute information after
the investigation, we should conduct our own independent review. One
commenter said that we should include these protections in proposed 20
CFR 422.150 or our guidelines. Another commenter said TWN must meet
obligations under FCRA to notify individuals of their rights, including
specific, detailed information about where and how to file a FCRA
dispute of TWN data. One commenter said this information should be sent
in advance of the NOPA so that the recipient has the ability to review
a copy of the TWN report and dispute any errors.
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\43\ The commenter cited 15 U.S.C. 1681i(a).
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Further, some commenters said that TWN has failed to adopt required
procedures for when ``logical inconsistencies'' arise.\44\ For example,
one commenter said TWN employs ``no substantive procedures to filter or
parse data to prevent reporting of simultaneous employment that would
be impossible'' because of geographic distance between employment or
residence location or time constraints. Another commenter said that we
must require human review when we flag these types of potential errors
or an individual disputes information. According to the commenter, a
review by a human is ``the least that is required by the due process
principles of the Matching Act.'' \45\
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\44\ For example, according to one commenter, the Consumer
Financial Protection Bureau (CFPB) stated that a Consumer Reporting
Agency must have procedures to identify logical inconsistencies in
consumer information, such that, if included in a consumer report,
some of the information would necessarily be inaccurate. Commenters
cited 15 U.S.C. 1681e(b).
\45\ The commenter acknowledged that the Computer Matching and
Privacy Protection Act of 1988, Public Law 100-503, applies only to
a government database, but asserted that the Office of Management
and Budget advised agencies to consider applying its principles when
a commercial database is involved.
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Another commenter expressed that our current payroll data provider
already complies with FCRA requirements and its data furnishers have
contractual obligations for the provision of accurate data. Further,
they said, if there are concerns that a report may be incomplete or
inaccurate, the individual can dispute it and Equifax will conduct an
investigation under the parameters established by FCRA.
Response: We will send FCRA-compliant adverse action notices to
individuals when we receive data from a payroll data provider. The
current payroll data provider is required by contract to maintain
reasonable procedures that ensure the maximum possible accuracy,
completeness, relevance and timeliness of wage and employment
information. Further, if the payroll data provider has a dispute
annotated and unresolved, the wage information will be flagged by the
payroll data provider and not sent to our claims records. We disagree
that protections that may be afforded by other Federal laws need to be
restated in our regulations. To the extent another Federal law, like
FCRA, is deemed applicable to a payroll data provider exchange, those
laws would continue to apply independent of our regulations; we chose
not to specifically reference such other laws because those laws and
their applicability to PIE could change over time.
We note again that we plan to add language to the notice we send to
inform an individual that we are receiving wage information for a
particular employer, which will instruct individuals to tell us right
away if they do not work for the employer shown. When an individual
tells us the information we received from PIE is incorrect, either in
response to that notice or when appealing the NOPA, we will follow
procedures to investigate and, if appropriate, correct the individual's
record. If there is no evidence to corroborate the disputed report from
the payroll data provider, we will not use that report. Further, our
procedures for investigating and correcting our own records are
separate and apart from the payroll data provider's dispute process
under FCRA; we may correct our own records without waiting for the
payroll data provider to resolve the dispute using FCRA procedures.
Comment: Some commenters expressed concerns about the use of PIE
data as anything other than a ``third-party report.'' Some commenters
said we should establish a procedure similar to that found in our
Program Operations Manual System (POMS) at section SI 01140.100, Non-
Home Real Property, for when individuals disagree with the information
found in a commercial database used to identify non-home real property
owned by SSI recipients. Commenters expressed that the PIE data could
be used as a ``lead'' for further investigation, and not as a basis for
adverse action. Another commenter said we could undertake our own
validation of the payroll data through a combination of staff review
and the use of technology. The commenter asserted that accepting
payroll data from third parties without any collateral validation has
the potential to significantly harm individuals.
Response: The BBA specifically grants us the authority to use an
information exchange with a payroll data provider ``without the need
for verification by independent or collateral sources.'' Being able to
proceed based on the information provided by the payroll data provider,
as authorized by Congress, is crucial to our ability to better serve
the public through more timely and accurate benefit adjustments. Using
data as a lead, or requiring investigation or further validation of
information from PIE, would result in the delayed adjustments and
improper payments that the BBA was intended to prevent. As discussed in
more detail in response to other comments, we have a number of
safeguards in place to prevent harm to individuals, including: when we
start receiving wage information for a new employer, our notice will
tell individuals to contact us right away if the listed employer is
incorrect; we will send a NOPA and apply payment continuation if an
appeal is filed; and we will investigate disputed wages and correct
records where appropriate. Further, an individual can revoke their
authorization if they are dissatisfied with the information the payroll
data provider sends us.
Comment: One commenter said we must require TWN to ensure the
accuracy of its reports by mandating certain measures, such as use of
all nine digits of an SSN. The commenter said that we should mandate
such matching criteria in 20 CFR 422.150 or our guidelines. According
to the commenter, matching based on a partial SSN or no SSN is
``unacceptable,'' as it causes mismatches in which the wrong consumer
gets tagged with information. They expressed that we should not use an
``alternative ID search option'' that permits agencies to obtain a TWN
report without an SSN, which could yield results for someone with
similar information to that of the participant.
Response: As explained in the NPRM, we will specify the records
that will be matched and the procedures for the match when developing
an information exchange with a payroll data provider. In the case of
the current exchange, we already require matching the full nine-digit
SSN.
Comment: Several commenters expressed that the proposal gives ``too
much discretion'' to our employees to decide when to assist with
obtaining additional evidence. Further,
[[Page 107245]]
commenters said that the burden to ``prove a negative'' (e.g., to prove
that reported wages do not belong to them) should not fall on an
individual. Commenters asserted that, if an individual disagrees with
the allegation that the wages reflected in TWN data are theirs, our
technicians must establish additional, acceptable evidence documenting
that TWN data is correct before it can be relied upon to deny a claim
for benefits or adjust an individual's benefits. Another commenter said
that we must accept signed attestations from individuals that the
payroll data does not belong to them and we should not require proof
beyond an individual's attestation that the data match is incorrect.
Response: The policies we develop for implementing PIE will not
require individuals to prove a negative. We already have robust
policies for developing wages in the context of the SSI and OASDI
disability programs and we can learn of potential wages and new
employment from a number of sources, such as computer matching
agreements and employer reports. When we learn of discrepancies in wage
evidence, our current procedures require that we develop other sources
of wage evidence according to a priority order.\46\ As noted above, we
also have established procedures for correcting earnings and resolving
scrambled earnings. We will update these procedures to ensure they are
appropriate for resolving alleged inaccuracies in PIE reports.\47\ If
no other wage evidence exists to corroborate a payroll data provider
report that the individual told us was erroneous, we would not use the
report from the payroll data provider.
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\46\ POMS DI 10505.005, available at https://secure.ssa.gov/apps10/poms.nsf/lnx/0410505005, SI 00820.130 available at https://secure.ssa.gov/apps10/poms.nsf/lnx/0500820130.
\47\ For example, our current wage evidence policy indicates
that pay stubs are the primary (highest priority) source of wage
evidence. But if we receive a payroll data provider report
indicating that an individual is working, and the individual alleges
they are not working, they presumably have no paystubs. We might
look to see if PIE data is corroborated by other sources of wage
information we have received or contact employers where appropriate.
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Due Process
Comment: Multiple commenters said we should strengthen our due
process protections from PIE reporting errors. For example, one
commenter recommended we collaborate with our payroll data provider to
develop stronger data validation measures. Another commenter expressed
that the final rule should feature stronger protections for
individuals, prevent unintended consequences, and emphasize
transparency. Other commenters stated the most important procedural
safeguards are: (1) a timely and adequate notice detailing the reasons
for a proposed reduction or suspension of benefits; (2) an evidentiary
hearing to dispute the reduction or suspension of SSI benefits; and (3)
ensuring SSI benefits continue to be paid at the protected payment
level pending a decision on the appeal.\48\
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\48\ Some commenters suggested through the hearing level of
appeal.
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Several commenters referred to the Fifth Amendment of the
Constitution, which states that no person shall be deprived of ``life,
liberty, or property, without due process of law.'' Commenters also
referred to Goldberg v. Kelly,\49\ a case in which the Supreme Court
held that recipients of means-tested public assistance benefits must be
afforded advance notice and the ``opportunity to be heard'' before
their benefits can be terminated. Some commenters correctly asserted
that SSI benefits, as a means-tested program for extremely low-income
recipients, are subject to the Constitutional due process protections
set forth in Goldberg v. Kelly and subsequent court decisions.\50\
According to commenters, the government should not ``deprive a
recipient of the means to survive'' while they are pursuing their
appeal. They expressed that an erroneous, automated determination to
reduce, suspend, or potentially terminate a benefit could impact an
individual's ability to pay their rent or mortgage, feed themselves, or
pay for other necessities. Another commenter said the process for
disputing discrepancies should be ``clearly delineated and available to
access verbally and electronically.''
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\49\ Goldberg v. Kelly, 397 U.S. 254 (1970).
\50\ The commenter referred to Cardinale v. Mathews, 399 F.
Supp. 1163 (D.D.C. 1975).
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Multiple commenters suggested that we extend the amount of time
between the NOPA (or other notice) and the reduction or suspension.
Some commenters asserted that the proposal does not provide enough time
for: (1) SSI recipients to respond to the NOPA; and (2) for us to
process responses before we reduce or suspend benefits. For example,
one commenter stated that it is ``unrealistic'' to expect that
everything that needs to happen--e.g., notifying the individual;
gathering and submitting proof; staff processing; filing a
reconsideration request; and processing benefits continuation--can be
accomplished under the proposed timeline. Several commenters expressed
that we must account for field office delays in processing information
and inputting appeals. Multiple comments suggested due process
procedures specific to PIE.
Some commenters asserted that existing SSI regulations conform to
the requirements of constitutional due process on paper, but not in
practice. Commenters referred to the example used in the NPRM where we
assumed we would receive PIE data on, for example, November 7 (of any
given year). A commenter opined this could result in a situation where
an individual receives a NOPA on November 12, the individual files a
request for appeal on November 22 (within the 10-day appeal period),
and it would still be too late for the individual to have their
December benefits paid at the protected payment level because the
December benefit data will have already been transmitted to the U.S.
Treasury Department.
Response: We agree that adequate due process protections are
vitally important for any adverse action, and especially important for
those stemming from unverified reports. The law allows us to use PIE
data without verification; we will follow current due process
procedures when making decisions using this data, including protections
we currently afford pursuant to Goldberg v. Kelly (GK).\51\ We
understand that many people, including individuals belonging to
vulnerable groups, rely on the benefits from our programs to meet their
daily needs. Accordingly, individuals will be afforded full due process
protections. A PIE-specific appeal process is not needed to afford full
due process; moreover, such a process would be difficult and burdensome
to implement; would likely cause confusion for beneficiaries and
[[Page 107246]]
recipients; and could negate the increased efficiency we expect to
receive from PIE.
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\51\ Based on the Supreme Court decision in Goldberg v. Kelly
and principles of due process under the Constitution, we provide SSI
recipients advance notice of an adverse action before we take the
action. See 20 CFR 416.1336(a). We provide SSI recipients a Notice
of Planned Action (NOPA), also known as the GK notice. The GK notice
explains the planned adverse action, the right to appeal the adverse
action, and the right to continued or reinstated payment at the
protected payment level (PPL)--what we refer to as ``GK payment
continuation''--if the recipient appeals the adverse action within
10 days of receipt of the GK notice. 20 CFR 416.1336(b). Under our
rules, we presume that the recipient receives the GK notice within
five days after the date on the GK notice. Id. SSI recipients who
file a Request for Reconsideration within 15 days after the date on
the NOPA should have no interruption in their payment until the
appeal is decided. SSI recipients who file a Request for
Reconsideration more than 15 days after the date on the NOPA, but
within 65 days after the date on the NOPA, also receive GK payment
continuation, but this may involve reinstating their payment until
the appeal is decided. See POMS SI 02301.313, available at https://secure.ssa.gov/apps10/poms.nsf/lnx/0502301313.
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As we explained in the NPRM, we will send advance notice providing
sufficient time for individuals to decide whether to appeal the action.
SSI recipients will have their payments continued during their appeal
unless they waive this right in writing.\52\ The appeal alone will
allow payments to continue; we do not require documents or proofs for
payment continuation, and provide a reasonable amount of time to supply
documentation in support of the appeal. The appeal process includes the
opportunity to meet face-to-face with SSA personnel,\53\ who will
follow the policy and procedures we develop for assisting with
development or investigation of disputed wage information.
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\52\ See 20 CFR 416.1336(b).
\53\ See 20 CFR 416.1413(b) and (c).
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Since 2021, we have strengthened due process protections related to
GK payment continuation, and we continue to work to protect the rights
of SSI recipients by improving our processes. In order to reduce
administrative burdens for both SSI recipients and the agency, we have
extended GK payment continuation to SSI recipients who file a
reconsideration more than 15 days after, but within 65 days of
receiving the NOPA.\54\ We updated the NOPA to clearly explain the time
frames to appeal and receive payment continuation or reinstatement and
to make clear that benefits will change or stop if no appeal is filed.
We added SSA's Office Locator website address (URL) to make it easier
for recipients to look for and find one of our offices, including the
office fax number. We also updated the SSI Overpayment Notice to
include SSA's Office Locator URL. Most importantly, we have taken steps
to improve our internal business processes and oversight related to
receiving, tracking, and entering SSI reconsideration requests so that
we provide payment continuation to all those who timely appeal in
response to a NOPA. The agency mandated the use of an application which
assists with the inputs required for payment continuation.
Additionally, we now monitor the accuracy of the workload through a
dashboard and completed agency-wide training on these cases to improve
accuracy. All of these protections will continue to be available to
individuals wishing to appeal decisions based on information from PIE.
And we have plans to further enhance our business process through
increased automation in the payment continuation process.
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\54\ See POMS SI 02301.313, available at https://secure.ssa.gov/apps10/poms.nsf/lnx/0502301313.
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We do not agree with commenters who opined that receiving PIE data
on the 7th day of the month does not permit adequate time to generate a
NOPA, receive an appeal, and have the next month's benefits paid at the
protected payment level. Although the process for ensuring payments
remain at protected levels may differ depending on the time of the
month the appeal is received, we will follow current policy to ensure
payments are made correctly.\55\ In the hypothetical scenario discussed
in public comments, which involves an appeal filed on November 22,
protected payments would continue based on agency systems and policies.
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\55\ See POMS SI 02301.320 available at https://secure.ssa.gov/apps10/poms.nsf/lnx/0502301320.
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Comment: One commenter stated that to ensure the PIE data is used
in a timely manner, we should create explicit safeguards ``prohibiting
adverse action more than two years after SSA's receipt of the report.''
Response: We will receive the PIE wage and employment information
from payroll data providers monthly. At this time, the exchange is
built to request the prior month's wage data only, and the system is
designed to use the data in a timely manner. Our administrative
finality rules will apply to determinations made using PIE wage data,
as they also apply to determinations using any other past wage and
employment information we receive. If we assess an overpayment, our
usual overpayment policies would apply, including our waiver policies.
Notices and Communication
Comment: Multiple commenters suggested ways to improve our notices
and communication with individuals, and stressed the importance of
using clear, easy to understand language. For example, one commenter
suggested we use different formatting and language to explain the
information we used to make a decision. In fact, a commenter provided
potential sample language for our consideration. Others expressed that
we need to provide ``adequate notice'' that includes enough information
for the individual to understand the payroll information being reported
to us (such as a copy of the payroll data provided by third parties)
and steps the individual can take to dispute or appeal payroll data. A
different commenter suggested that we consult with the CFPB about the
adequacy of the adverse action notice we develop. Commenters also
remarked on a sample adverse action notice, stating, for example, that
(1) the notice should unequivocally state when we base a decision on
the TWN report (not state that we ``may'' have used the information in
making a decision); (2) the notice includes an incorrect web address to
request a file disclosure; (3) The formatting of the notice is ``dense
and difficult to read'' and we should use a ``tabular'' format; (4) we
should include the name of the person at Social Security to contact for
additional information; (5) we should note the ability to submit
information about any applicable work incentives to the Social Security
contact; and (6) we should provide the name and phone number of a local
Work Incentives Planning and Assistance (WIPA) project or a local
credentialed benefits counselor.
Another commenter expressed that when payroll data would cause an
unfavorable determination, we should send a notice recommending that
individuals call the Ticket to Work Help Line to be referred to a WIPA
counselor or that they consult with a benefits planner through a
different agency. According to the commenter, a benefits planner can
assist the individual to use any work incentives for which they may be
eligible to reduce the impact of earnings on their benefits.
Response: We appreciate the suggestions from the commenters
regarding ways to potentially improve our notices, and we agree that
well-formatted, complete, clear and accurate notices are important. We
will continue to evaluate our notices and potential improvements to
them, including through customer experience feedback. Regarding one of
the commenters' specific suggestions, we clarify that our notices
cannot unequivocally state that we based a decision on the payroll data
provider report received through PIE because other factors contribute
to a payment determination besides an individual's wages.
Considering this, we will inform the individual that we may have
used PIE information as part of a decision, but we cannot specify that
it is the sole reason behind the decision. In addition, we have a
standard paragraph in our notices informing recipients how we received
our information and how to contact us if something appears incorrect.
Further, we do not provide the name and phone number of the local WIPA
or benefit counselor in our notices because of the burden involved.
However, our Ticket to Work Helpline,\56\ can be used to refer the
[[Page 107247]]
individual to these services. We make the Ticket to Work Helpline
information available to individuals in multiple ways.\57\ Our notices
also advise members of the public that they can also contact us through
our 800 number with additional questions or requests for guidance.
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\56\ For more information about the Ticket to Work Help Line,
visit https://choosework.ssa.gov/contact, email
[email protected], or call 1-866-968-7842/1-866-833-2967
(TTY).
\57\ For example: (1) When SSI and OASDI disability
beneficiaries report a return to work, we give them a receipt of the
report that contains information about the Ticket to Work Program
and the Help Line contact information; (2) The SSI Database Analysis
(DABA) Work Incentive Notice includes information about work
incentives and the Ticket to Work Program and the Help Line contact
information; and (3) title II and title XVI Cost of Living
Adjustments (COLA) Notices are sent annually to beneficiaries and
recipients about COLA changes to their benefits. These notices
include general Ticket to Work and work incentive language that
includes Help Line contact information.
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Lastly, we clarify that the sample notices that the commenter cited
were uploaded to an OMB website in August 2020.\58\ These do not
reflect the current versions of these notices. We confirm that the
updated notices contain current information.
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\58\ The examples the commenter cited are available at: https://www.reginfo.gov/public/do/PRAViewIC?ref_nbr=202008-0960-020&icID=8980.
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Comment: According to one commenter, the language used in the
sample NOPA does not explain that we used a ``specialized'' type of
payroll data provider report. The commenter stated that recipients may
see the name ``Equifax'' and assume that we used a traditional credit
report in our decision.
Response: The NOPA language explains that ``We may receive wage and
employment information from Equifax that is part of a consumer
report.'' This language adequately explains the nature of the
information we are using.
Comment: Commenters asserted that, under the NPRM, we will treat
OASDI disability beneficiaries and SSI recipients differently and we
did not explain why. Specifically, under our proposal, SSDI
beneficiaries will receive an advanced notice without any accompanying
change in benefit amount (allowing individuals 35 days to respond with
information showing that the benefit amount calculation should not be
changed). If the OASDI disability beneficiary does not respond, then it
would trigger another notice that the beneficiary can appeal. In
contrast, under our proposal, commenters stated that SSI recipients
will be subject to an adverse action and benefit reduction
``immediately'' without the ``advanced opportunity to cure.''
Commenters stated that SSI recipients would benefit from an advanced
notice like the one OASDI disability recipients will receive. Some
commenters recommended that SSI recipients should receive an adverse
action notice at least 30 days before a NOPA is generated. According to
commenters, ``given the complexity of the rules and equity
considerations for people with disabilities, recipients would benefit
from every opportunity'' to correct incorrect information before facing
benefit reduction.
Response: PIE data prompts us to take different actions in SSA's
programs, and the notice process depends on the action we take. For
SSI, we use wage information to determine the recipient's monthly
eligibility and payment amount and generally consider only gross wages
for this purpose. Because SSI guarantees a minimum level of income for
aged, blind, or disabled individuals who have limited income and
resources, a change in a recipient's countable monthly income, such as
wages, can have a direct effect on non-medical SSI eligibility and
payment amount. This necessarily requires a month-by-month
determination that is immediately appealable whenever the benefit
amount may change to ensure due process protections. This allows SSI
recipients to quickly make corrections to inaccurate wage information
and prevents significant overpayments or underpayments of benefits. As
discussed, though, we provide advanced notice and an opportunity for
payment continuation while an appeal is pending.
In contrast, information about a disabled individual's wages may
require us to investigate whether the person has engaged in SGA, the
primary question for OASDI disability post-entitlement determinations.
A determination that someone has engaged in SGA after their trial work
period is a determination that they no longer meet the requirements for
disability due to work, and we say that benefits ``ceased.'' When this
happens, we pay benefits for the month benefits ceased and the
following two months. After this period, we suspend cash benefits for
any month in which the individual engages in SGA during their 36-month
extended period of eligibility. This determination is more complex
because we must decide whether work involves significant physical or
mental activities, which requires considerations beyond just gross
earnings. For example, we consider whether an individual's earnings
include sick or vacation pay, or if their work is subsidized or
performed under special conditions or in a sheltered environment.\59\
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\59\ 20 CFR 404.1574.
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In the table below, we summarize some key points about the notices
we send for SSI and OASDI disability:
----------------------------------------------------------------------------------------------------------------
Concurrent SSI and
SSI OASDI disability OASDI disability
----------------------------------------------------------------------------------------------------------------
Point at Which We Send Notice to We send a NOPA We send a due Individuals
Individuals \60\. when an individual's process notice when an would receive both the
earnings increase and individual is SSI and OASDI
their SSI payments performing SGA in the disability
will be reduced in an Extended Period of notifications.
upcoming month. Eligibility.
We send a We send a
Notice of Change in final SGA notice
Payment when an explaining our
individual's earnings decision and
decrease and their SSI documenting which
payments will be months the individual
increased. is over SGA.
Reason We Send Notice................ The NOPA The due The reason is
explains the change to process notice issue specific and
the payment and what explains our proposed applies to whichever
information we used to decision and presents notice they receive,
determine the new an opportunity to since they may receive
amount. It provides provide additional more than one notice
appeal rights and evidence. It provides depending on their
other important contact information circumstances as they
information. and other important relate to the specific
The Notice of information. program.
Change in Payment The final SGA
explains the new notice will explain
payment amount and how our decision. It
we computed it. It provides appeal rights
provides appeal rights and other important
and other important information.
information.
----------------------------------------------------------------------------------------------------------------
[[Page 107248]]
Comment: One commenter stated the use of payroll provider data to
automatically generate NOPAs reflecting even small changes in payment
amounts could result in many SSI recipients receiving a new NOPA every
month due to a fluctuating number of hours worked from month to month.
The commenter expressed concern that, rather than increasing the
efficiency of program administration, this ``flood of notices'' would
result in more calls to our national 800 number and field offices with
questions and concerns. Some commenters said that our proposed rule may
result in very frequent (even monthly) NOPAs for some. They stated that
these frequent notices may cause ``confusion and distress.'' Another
commenter said we should examine the potential for an increase in calls
to our national 800 number and an increase in visits to our field
offices due to the new rule, and we should plan accordingly. The
commenter stated that individuals will ``undoubtedly reach out'' to us
if they have questions about the ``many new notices'' that will be
mailed out under the final rule, such as those to dispute an error in
payroll data or to appeal a benefit reduction. According to the
commenter, individuals may also contact us if they are confused about
their wage reporting obligations. The commenter asserted, that if calls
and office visits increase significantly due to PIE, it could become
more difficult for all of our customers to get help from us. Some
commenters expressed concerns about our staffing levels and the effect
staffing levels may have on the ability to get help with PIE-related
concerns or questions.
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\60\ As noted earlier, we will also send individuals a notice:
(1) any time we start receiving wages from a new employer (the
notice will explain they no longer have to report wages from that
employer); and (2) any time we stop receiving wages from that
employer (the notice will explain that they must again report wages
from that employer). These notices give individuals the opportunity
to dispute the information and they explain how to reach out to us.
---------------------------------------------------------------------------
Response: We anticipate that the PIE implementation may result in
more notices. However, this is mostly because, with PIE in place, we
will be able to capture and process more accurate and timely wage and
employment information than before. Timely receipt of this information
through PIE allows us to send correct and appropriate notices more
quickly to ensure payment accuracy. Under PIE, the only additional
notices are those that would generate when we receive wages from a new
employer or stop receiving wages from an employer. While this may
result in an increase in notice frequency, as well as related calls to
our 800 number, we expect that PIE will also bring about decreased
burdens in the form of reduced of routine reporting for hundreds of
thousands of beneficiaries and recipients--if someone allows us to
access their wage and employment information from a payroll data
provider, and we receive that information, the individual will not have
to report information about that employer for as long as we continue to
receive it. And while some additional notices will go out, we
anticipate that, because of the efficiencies gained from PIE, our staff
will spend less time on wage reporting workloads because they will
spend less time investigating wage information. Thus, staff would have
more time to assist beneficiaries and recipients should questions arise
from receipt of these notices. We expect to gather preliminary data on
these issues as we implement PIE in phases and study its effects. As
always, we remain committed to assisting individuals with any potential
issues as soon as possible.
Comment: One commenter said we should reevaluate the information we
provide to individuals who do not opt into PIE. Specifically, they
asked us to examine the information we provide about reporting
requirements, including the literacy level, accessibility, timing, and
frequency. The commenter asserted that some individuals are unaware of
the importance of reporting earnings and we should ensure they
understand the projected amount of their monthly payments. According to
the commenter, we should emphasize the importance of regularly checking
their payment amounts to prevent overpayments.
Response: We appreciate the commenter's suggestion to improve our
current notices. While we commit to continually improving our
communication, including the notices relating to PIE, this rulemaking
seeks to address factors specific to PIE.
Comment: A commenter asserted that we are subject to Executive
Order (E.O.) 13166, Improving Access to Services for Persons With
Limited English Proficiency,\61\ and that we have obligations to
individuals with limited English proficiency (LEP) to provide
meaningful language access. Specifically, the commenter said we should
provide a translated NOPA whenever an individual requested language
translation services in the past. According to the commenter, we should
translate our NOPAs into additional languages commonly spoken by
individuals with LEP in the United States and add more languages over
time. Some commenters said that these notices should be fully
accessible, in multiple formats including braille, large print and
audio.
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\61\ 65 FR 50121 (Aug. 16, 2000).
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Another commenter alleged that field offices often fail to provide
timely, accurate language services to people who primarily speak a
language other than English, and the introduction of automated wage
reporting will add a new element. The commenter stated that it is
imperative that all related information--written or oral--be provided
in the recipient's preferred language. The commenter said we should
consider improving language service capabilities, especially the
availability of interpreters and adoption of standardized scripts for
explaining the automated wage reporting system.
Response: PIE notices are supported in English and Spanish and are
made available based on the selected Special Notice Option, which are:
standard print notice by certified mail, standard print notice by first
class mail and a follow-up phone call to read the notice within five
business days, braille notice and standard print notice by first-class
mail, data compact disc (CD) in Microsoft Word format and a standard
print notice by first-class mail, large print notice (18 point font)
and a standard print notice by first-class mail, or audio CD and a
standard print notice by first-class mail. Individuals with LEP may
also bring a speaker of a given language into the office to translate
for them.
Comment: One commenter asserted that we should clarify that,
because TWN is receiving Federal funds as a Federal contractor, it is
subject to E.O. 13166 and should provide language access for LEP
individuals. According to the commenter, we should assess, under our
contract, whether TWN is providing quality LEP services and has
sufficient resources for translation and interpreter services. The
commenter asserted, to meet its obligations, TWN should provide
meaningful access for LEP individuals to their wage and employment
information reports by translating them into the top languages spoken
by LEP SSI recipients.
Response: E.O. 13166 places an obligation on the agency, not third
parties. As we state on ssa.gov, ``we provide free interpretive
services to help you conduct your Social Security business. These
interpreter services are available whether you talk to us by phone or
in the Social Security office.'' \62\ TWN is a database belonging
[[Page 107249]]
to Equifax, who is a third-party contractor.
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\62\ https://www.ssa.gov/ssi/spotlights/spot-interpreter.htm.
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Consistent with the above, our contract with Equifax does not put
any LEP obligations on Equifax, a third-party contractor.
Accessing Report Used To Make Adverse Action
Comment: Commenters stated that we must ensure that individuals can
easily obtain file disclosures from TWN or we must provide recipients
with the copy that we obtained to make an adverse action. According to
one commenter, FCRA provides that consumers can obtain a copy of their
own consumer report, and they are entitled to free file disclosure
annually and when an adverse action has been taken against them.\63\
Commenters asserted that these free disclosures are ``critical''
because they enable consumers to identify and dispute errors in their
reports. Other commenters stated that access to their own information
is a ``basic principle of fair information practices.'' Some commenters
alleged payroll data providers do not always meet their file disclosure
requirements under FCRA. For example, one commenter said, ``TWN's
systems appear to impose barriers or an outright inability for
consumers to obtain a copy of their own TWN report.'' The commenter
expressed that we should mandate performance standards for accessing
reports in 20 CFR 422.150, our guidelines, or our contract with TWN.
The commenter cited an example of a consumer who had significant
difficulty accessing these reports. Another commenter stated that
``consumers have a right to review their wage and employment
information contained within TWN by requesting their Employment Data
Report at any time.''
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\63\ The commenter cited 15 U.S.C. 1681g(a), 15 U.S.C.
1681j(a)(1)(C) and 15 U.S.C. 1681j(b).
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Response: Under the Privacy Act of 1974, individuals have a right
to access records about themselves that are retrievable by a personal
identifier from our (SSA) non-exempt systems of records. Accordingly,
individuals would have a right to access the wage reporting records
stored in our files and used to make a determination, including any
adverse action.\64\ For wages we receive from our current payroll data
provider, when sending an adverse action notice, we will provide
individuals notice of their right to a free copy of their consumer
report and how to contact our current payroll data provider.
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\64\ See 20 CFR 401.40.
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Reporting
Comment: One commenter said we should clarify why we will require
individuals to report a new employer and explain the consequences of
reporting or not reporting a new employer. In addition, the commenter
asked several questions: (1) If an individual does not report a new
employer, will we still be able to match payroll data? (2) Is the
affirmative report of a new employer necessary to allow us to manually
input the new employer information in the system so that any later
payroll data has a ``place'' to go? (3) When an individual reports
their new employer, what happens to payroll data provided by PIE for
the new employer? (4) Will we tell an individual whether the new
employer's data is accessible via matching or manual reporting is
needed? If so, how and when will this information be provided?
Response: We will continue to require individuals to report new
employers to us because, as noted, our payroll data provider will not
be able to provide us with wage information from every employer. We
will inform the individual of their reporting obligations each time we
receive a report that they began work with a new employer. Thus, if we
receive wage information from the payroll data provider for the new
employer, we will notify the individual they no longer are required to
report wage information for that employer to us. If an individual
begins to work for a new employer and we have not notified them that we
are receiving wage and employment information through our payroll data
provider, the individual will still need to report wages to us for that
employer.
Regarding the commenter's questions, we clarify that even if an
individual does not tell us about the new employer, we will generally
be able to match payroll data if an individual has provided us with
authorization to obtain their wage and employment information through
PIE and the new employer reports their wages to our payroll data
provider. We nonetheless require individuals to report new employers
because there is no way for us to know whether a new employer's wage
information will be available through PIE or not. Thus, reporting the
new employer will help us make more accurate and timely payments.
Finally, as mentioned earlier, we instruct individuals to continue
reporting their wages until they receive notice from us to stop. We
will send a notice to individuals whenever their wage reporting
responsibilities change, as discussed in the NPRM.
Comment: Several commenters asked how we will clearly communicate
when individuals need to continue reporting wages to us. One commenter
said that individuals may misunderstand the new rules to mean that they
no longer need to track their wage information. According to the
commenter, this could lead to significantly delayed or inaccurate wage
reporting and the ``mixed messages'' we will send to individuals will
confuse them, particularly those with cognitive difficulties, and
potentially lead to noncompliance with our rules, frustration, and
overpayment or a loss of benefits.
One commenter stated that, when we learn that an individual's
employer does not use TWN, we should inform them to continue wage
reporting using the existing methods. According to the commenter, this
communication would prevent individuals from incorrectly assuming that
they no longer need to report because they authorized us to use PIE.
Another commenter said that individuals often work multiple jobs for
short periods and their disabilities may hinder their ability to
maintain consistent employment. According to the commenter, if wage
reporting responsibilities change from one employer to the next, some
recipients will be unable to keep up with their reporting obligations.
The commenter said recipients should be clearly and promptly advised
that payroll data providers may not receive information from every
employer, so the individual may need to report earnings from some
employers, even if we automatically receive payroll data from other
employers.
An additional commenter asked how the individual will know, once
they've opted in, that the data has or has not been received from the
payroll data provider, and, if the payroll data provider fails to
transmit data to us, transmits incorrect data, or delays transmitting
data--if the individual will continue to be exempt from certain
penalties.
Response: We will tell individuals to continue reporting their
wages using existing methods until they receive notice from us telling
them otherwise, and our notices will communicate any other changes to
reporting requirements. This information is provided through a receipt
they receive after providing authorization. We understand that
individuals may work for multiple employers, change employers
frequently, or not be aware initially whether their employer reports
wages to us. Accordingly, as explained in the NPRM, we will notify
individuals in
[[Page 107250]]
writing of changes to their reporting responsibilities, including
whenever we start or stop receiving their wage and employment
information from an employer through a payroll data provider. The
notices for changes in reporting responsibilities will list the
employer(s) we receive wages from and the employer(s) we stop receiving
wages from. Since the notices list specific employer(s), and also
explain the need to continue reporting for any other employer(s), we
expect to minimize confusion. Finally, as noted in the NPRM,
individuals who authorize us to obtain wage and employment information
from a payroll data provider will not be subject to penalties under
section 1129A of the Act for omissions or errors in the data we receive
from a participating payroll data provider. We will provide notice of
this penalty relief, including the identity of the relevant
employer(s).\65\
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\65\ 42 U.S.C. 1320a-8a. See 20 CFR 404.459, 416.1340. The
relevant penalty under section 1129A of the Act and 20 CFR 404.459,
416.1340 is the non-payment of OASDI disability benefits and
ineligibility for SSI cash benefits. Other penalties under section
1129A of the Act may apply in situations involving false or
misleading statements, including statements regarding wages and
employment.
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Comment: One commenter asserted that starting or stopping a job is
a major event that can disrupt people's lives and offering an extended
grace period, especially for those who experience unexpected job
losses, would benefit people who are likely in the process of applying
for other programs to take care of their immediate needs.\66\ The
commenter asked if there are exceptions to the reporting timeline for
major life event experiences and, if an individual knows a change in
their earnings is coming (e.g., a raise), how far in advance are they
able to notify us of these changes.
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\66\ The commenter referred to our requirement to report
starting or stopping work or a change in earnings no later than the
10th day of the month after the month of change.
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Response: While we appreciate that starting or stopping a job may
be a big change, the suggestion to offer an ``extended grace period''
is not within the scope of this current rulemaking. Further, we cannot
consider changing the time periods allowed for making required reports.
We anticipate that the changes we are making with these new rules will
significantly reduce reporting responsibilities for most individuals.
Timely reporting, however, is still necessary to ensure we have enough
time to adjust benefits, so we pay individuals the correct amount at
the correct time. In the SSI program, individuals should continue to
report to us as soon as an event listed in Sec. 416.708 happens.\67\
If they do not report within 10 days after the close of the month in
which the event happens, the report will be late.\68\ For disability,
individuals should report changes ``promptly.'' \69\
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\67\ 20 CFR 416.714.
\68\ We may impose a penalty deduction from your benefits for a
late report (see Sec. Sec. 416.722 through 416.732).
\69\ 20 CFR 404.1588, 416.988.
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When an individual knows that a change in their earnings will
happen in the future (such as a raise), they can report the future
event to us in advance and we will use that report to estimate their
future wages.
Internal Quality Review
Comment: One commenter said we should conduct rigorous evaluations
of our implementation to ensure that the PIE authority is operating as
intended by Congress. In addition, the commenter stated that we should
publish annual reports so that the public and Congress can understand
the impact. For example, according to the commenter, we should publish
information on the number of individuals: (1) who have authorized us to
access their commercial payroll data; (2) whose benefits have been
reduced or stopped due to PIE wage reports; (3) who have reported
errors in their PIE wage data and the outcomes of those reports; and
(4) who have appealed and the outcome of those appeals. Further the
commenter said we should report: (1) our actions to prevent, identify,
and correct wage report errors; (2) the impact of the PIE on
overpayments; and (3) the impact of the PIE on our customer service.
Another commenter asked what the quality control process for PIE
entails.
Response: We understand and share the commenter's desire for public
transparency. We intend to conduct PIE rollout in phases, so that we
can study its effects before full implementation and ensure our program
complies with all applicable authorities. We will continue to evaluate
these questions and information as we implement PIE. We currently
publish a number of reports. However, we do not anticipate that a new,
dedicated PIE report will be necessary. The most salient information is
contained in reports that we already issue. For example, we include
information related to wage and earnings overpayments in the Agency
Financial Report.\70\ We anticipate that the reports we issue will be
sufficient to publicly track the most important issues.
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\70\ https://www.ssa.gov/finance/. Examples of other reports
that may contain relevant information include the Report on
Supplemental Security Income Non-medical Redeterminations (https://www.ssa.gov/legislation/FY2014SSINon-MedicalRedeterminationReport.pdf) and the Annual Report on Work-
Related Continuing Disability Reviews (https://www.ssa.gov/legislation/WorkCDRFY2021Final.pdf).
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Overpayments
Comment: Many commenters said that the agency should revise
overpayment waiver policies and recommended options like finding
individuals ``without fault'' for overpayments created by inaccurate or
incomplete reporting from employers or the payroll data provider, and
that these ``without fault'' overpayments should always be waived. One
commenter stated policy changes such as these ensure that the
efficiency gained from PIE does not result in ``harm'' to individuals
who rely on our programs for their basic needs.
Several commenters said we should take waivers a step further. One
commenter said if, at the time the overpayment is posted, the
individual meets the ``deemed to defeat the purpose'' provision, then
we should consider waiving the overpayment without requiring any action
by the beneficiary. According to the commenter, this would ``lower the
burden on individuals, promote equity and fairness, and improve
administrative efficiency.'' Another commenter said we should
incorporate into the final rule a provision allowing for automatic
waiver of any overpayments caused by third-party reporting errors to
eliminate the burden on the individual to request a waiver of the
overpayment and staff time to process the waiver. Similarly, other
commenters also said we should adopt a ``liberal interpretation'' of
both ``defeat the purpose of the act'' and the ``against equity and
good conscious'' provisions, and asserted that if an individual is
overpaid because of reliance on the data exchange program, even after
we advised them that reporting is no longer required, then ``equity is
not served and some aspects of the purpose of the act are defeated.''
Another commenter said that any time an individual questions an
overpayment caused by inaccurate reporting from a third party, we
should initiate an administrative waiver review, without requiring the
individual to complete SSA Form 632 (Request for Waiver of Overpayment
Recovery) or to undergo any similar administrative burden.
In contrast, a separate commenter stated that, because a ``without
fault'' determination results in ``writing off of
[[Page 107251]]
the beneficiary's obligation to repay mistakenly received funds,'' it
is contrary to our stewardship responsibilities. The commenter also
stated that it is an unnecessary incentive considering the high
authorization rates that we are experiencing without that rule. The
commenter asserted that it might be ``fair'' to presume ``without
fault'' if the overpayment is discovered after a long period, for
example, five or seven years.
Response: We appreciate the feedback from commenters on the
``without fault'' provisions in our overpayment recovery waiver policy.
As stated previously, we take our program stewardship responsibilities
seriously, and we strive to pay the right person the right amount at
the right time. As explained in the NPRM, we sought these comments to
help inform our consideration of possible clarifications to this aspect
of our overpayment policy for individuals who participate in PIE. We
agree with the commenter who stated that, if inaccurate data from the
payroll data provider results in an overpayment and the overpaid
individual asks us to waive recovery of their overpayment, we should
usually find the individual to be ``without fault'' in causing the
overpayment under our existing regulations, and would therefore assess
whether we can waive the overpayment based on our existing overpayment
procedures.\71\ However, there is no legal basis for simply dismissing
repayment of the overpayment in all circumstances as the commenter
further suggests. We are also considering the commenters' other
suggested changes as part of a comprehensive review of overpayment
policies.
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\71\ See 20 CFR 404.507, 416.442.
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Earnings Considerations, Including Work Incentives and Sick, Vacation,
and Bonus Compensation
Comment: Some commenters questioned how payroll data will
distinguish between paid hours that count toward SGA and those that do
not. Specifically, commenters asked if the payroll data system will
distinguish pay that represents bonus, sick, vacation, and holiday pay.
They said that, without this differentiation, it is not clear how we
will accurately determine SGA.
Multiple commenters stated concerns about addressing work
incentives in the context of PIE and asked how we will integrate work
incentives into the process. Commenters said individuals will continue
to be burdened with reporting work incentives and our staff will
continue to be burdened with processing them. Some commenters suggested
potential improvements, such as using mySocialSecurity as a platform
for reporting both wages and work incentives. Another commenter stated
that we should provide easy-to-understand information about impairment-
related work expenses and subsidized work and this rulemaking could
allow us to increase outreach to large employers about what subsidized
work is and how it impacts individuals with disabilities who receive
benefits from us. One commenter said, for SSI, we should analyze how to
best integrate third-party payroll data reporting and individual
reporting of work incentives, prior to making determinations resulting
in an adverse action. For OASDI disability, the commenter stated that
we should consider notifying individuals about trial work period (TWP)
progress and when they enter the extended period of eligibility.
Response: We do not expect PIE to meaningfully improve our access
to the type of detailed information sometimes needed to make accurate
SGA determinations (such as distinguishing pay for actual work versus
holiday or sick pay or providing details about subsidized work,
accommodations, or impairment related work expenses). Prior to making
an SGA decision, we will continue to request information about special
pay (sick, vacation, etc.) and any work incentives (including subsidy)
from the beneficiary on form SSA-821 (Work Activity Report).\72\ If the
information impacts the SGA decision, we will request proof of the
information before effectuating a decision. In addition, we send the
beneficiary a Notice of Proposed Decision, which includes a chart of
the monthly earnings amounts that we used in our review and offers the
individual a chance to supply any additional evidence before we
finalize the decision.
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\72\ https://www.ssa.gov/agency/plain-language/Examples/Forms/Form%20SSA-821%20-%20BEFORE.pdf.
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Likewise, PIE will not affect how individuals report impairment-
related work expenses that we exclude from earned income under SSI.
Individuals should still report to us if their earnings are used for
impairment-related work expenses, or if the amount of impairment-
related work expenses changes. If an individual has reported
impairment-related work expenses that occur on a regular and continuing
basis, the appropriate deduction from earnings will be included in
payment calculations when we receive wage information through PIE.
We will continue to explore ways for individuals to report work
incentive information to us, potentially through mySocialSecurity or
other channels.
Various notices and publications contain information about our work
incentives such as Working While Disabled: How We Can Help \73\ and The
Redbook.\74\ In addition, we are currently revising forms SSA-821 (Work
Activity Report) and SSA-3033 (Work Activity Questionnaire) \75\ for
clarity about our work incentives. The planned revisions to form SSA-
821 include descriptions of the various work incentives (like
Impairment-Related Work Expenses), explain that we can deduct these
items when making the SGA decisions, and provide examples of the work
incentives. Form SSA-3033, The Employee Work Activity Questionnaire
(OMB No. 0960-0483) collects information from the employer about
subsidized work and special conditions given to the employee. We are
updating this form so it explains how providing the information is
beneficial to the employee, gives clear examples, and provides easier
ways to calculate the information.
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\73\ https://www.ssa.gov/pubs/EN-05-10095.pdf.
\74\ https://www.ssa.gov/redbook/.
\75\ https://www.ssa.gov/forms/ssa-3033.pdf.
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For OASDI, the Notice of Proposed Decision explains where an
individual is in their TWP \76\ and Extended Period of Eligibility
(EPE).\77\ It includes a chart and labels the earnings as month one
through nine of the TWP and indicates which earnings are SGA in the
EPE.
---------------------------------------------------------------------------
\76\ See 20 CFR 404.1592.
\77\ See 20 CFR 404.1592a.
---------------------------------------------------------------------------
Comment: One commenter expressed concerns about the ``complexity
and variance of data application.'' A few commenters noted that, there
are two different earnings considerations in using payroll data: (1)
title II entitlement (OASDI disability), based on when wages are
earned, and (2) title XVI payment amount (SSI), based on when wages are
paid. The commenter said we should clearly explain how the two separate
computations will be approached and asked if the data we receive will
show both the date earned and the date paid.
Response: How we consider earnings depends on which program a
person receives benefits from. For SSI determinations, we consider when
wages are paid. The exchange will always provide the pay date and gross
earnings for this determination. For OASDI disability, we consider when
wages are earned. Section 825 of the BBA \78\ simplifies post-
entitlement SGA
[[Page 107252]]
determinations by allowing us to presume earnings were earned in the
month they were paid if more precise information is not available.
Prior to applying this paid-versus-earned assumption, we evaluate any
readily available evidence to determine when earnings were earned.
Thus, we primarily use the pay period end date, and sometimes the pay
period start date, to determine when wages were earned. The exchange
will always provide a pay period end date; when the exchange does not
include a pay period start date, our systems have incorporated logic to
calculate one.
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\78\ Public Law 114-74, 129 Stat. 584, 610.
---------------------------------------------------------------------------
Comment: One commenter noted that the proposal states that the
``pay period start date would have no discernible impact on benefit
determinations'' and will not be collected. The commenter stated that
it is unclear if this statement includes post-entitlement
determinations, and if it does, it is in direct conflict with POMS DI
10505.005, which states, ``The Bipartisan Budget Act of 2015 simplifies
post entitlement SGA determinations by allowing us to presume earnings
were earned in the month they were paid. However, prior to applying
this paid versus earned assumption, evaluate any readily available
earnings verification sources and determine when earnings were
earned.'' \79\ The commenter expressed concerns about the impact on
title II beneficiaries if pay period start dates are ignored. Further,
the commenter stated that documenting exactly when work is performed,
along with any utilization of work incentives, is crucial for title II
beneficiaries to accurately demonstrate whether they are engaging in
SGA.
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\79\ DI 10505.005, available at https://secure.ssa.gov/apps10/poms.nsf/lnx/0410505005.
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Response: For OASDI disability, we have the ability to use the pay
period end date or start date to determine when wages were earned.
However, we primarily use the pay period end date because we generally
expect to receive more information about the end date. As a
clarification, we collect the pay period start date when the payroll
data provider supplies that information. When the exchange does not
include the pay period start date, our systems have incorporated logic
to calculate one. In addition, we will send form SSA-821 to the
individual to develop more detailed information about the individual's
work, including information relevant to work incentives. Also, we will
send the individual a Notice of Proposed Decision which includes a
monthly table of earnings that were used in making the decision and
allows the individual to provide any additional information.
Internally Inconsistent Information
Comment: One commenter said that we made an error because our
transfer estimates for implementation begin on October 7, 2023, but we
published the NPRM on February 15, 2024.
Response: The actuarial estimates provided in the NPRM projected
reductions in program costs as if PIE would have been implemented in
October 2023. Actuarial estimates must make assumptions based on
current facts to develop reasonable projections. While the effective
date, as the commenter noted, could not actually occur in 2023, the
estimates still provided a reasonable reference for individuals
interested in the effects of PIE on our future costs and savings. We
updated the projected effective date of the estimates in this final
rule.
Comment: One commenter pointed to sections of the NPRM where we
reported: (1) that SGA-related overpayments in the OASDI disability
program, occurring predominately because individuals fail to report
earnings in a timely manner, averaged $500 million a year; and (2) that
individuals in this category were overpaid $1,163 million a year. The
commenter asked which is correct and, in particular, which we used to
estimate the savings to taxpayers. The commenter requested a more
complete explanation and documentation of the savings estimate.
Response: The average of $500 million per year came from the FY2023
Agency Financial Report and relates to OASDI SGA errors.\80\ The
average of $1,163 million per year comes from an internal study of SSI
wage errors. We inadvertently mischaracterized this figure in the NPRM,
and the NPRM should have referred to this as SSI wage-related
overpayments. We regret any confusion.
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\80\ FY2023 Agency Financial Report, page 180, available at
https://www.ssa.gov/finance/2023/Full%20FY%202023%20AFR.pdf.
Beneficiaries' failure to report earnings in a timely manner
accounted for 82 percent of SGA-related improper payments and our
failure to take the proper actions to process work reports accounted
for the remainder.
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Reconsideration Requests
Comment: Many commenters said we should allow individuals to
request reconsideration orally. Commenters stated that obstacles such
as insufficient internet access, field office delays, telephone delays,
travel challenges, and communication barriers are reasons to accept
reconsideration orally. Commenters asserted that language challenges
further complicate the burden of making written requests, and accepting
oral requests would allow us to comply with Federal laws requiring
language access and disability accommodations.
Some commenters said we should ensure ``adequate staffing'' if we
accept reconsiderations by phone and that our staff would need training
to ensure that they would easily recognize stated requests for
reconsideration. Other commenters suggested that we could find ways to
automate the process. Commenters also expressed concerns about the
documentation and processing of oral appeals. Some proposed that we
provide a confirmation number (or similar proof) any time an individual
requests an oral reconsideration request. Several commenters said that,
if we allow such requests orally, we should accept a later attestation
by the individual that they made an oral reconsideration request,
without requiring further proof.
In contrast, one commenter asserted that, to ensure individuals'
rights are protected, we should continue to require reconsideration
requests in writing.
Response: We appreciate the feedback from commenters on accepting
oral reconsideration requests. Commenters noted they find our current
requirement for a written reconsideration request to be burdensome for
some claimants and their representatives. As an agency that values
customer experience and considers administrative burden reduction on
the public to be an important priority, we appreciate the feedback and
plan to seriously consider this proposal. Our ultimate goal is to
achieve a balance between reducing burden to the extent possible, while
ensuring the consistency and integrity of our processes. Further
exploration of this proposal requires a review of multiple agency
processes in which an appeal is involved, and would also entail seeking
more fulsome feedback from the public on this issue specifically. At
the present time as noted in the NPRM, we are not making any changes to
the appeals filing process. Our regulations for both title II and title
XVI require that the party seeking reconsideration file a written
request.\81\ Whether we should amend these regulations to accept oral
reconsideration requests requires consideration of all the contexts in
which they arise, not just the sub-set of reconsideration requests that
appeal an initial determination of income based
[[Page 107253]]
on PIE data. Accordingly, we did not intend this rulemaking to decide
the complex issue of accepting oral reconsideration requests.\82\
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\81\ 20 CFR 404.909(a) and 416.1409(a).
\82\ 89 FR 11781 (Feb. 15, 2024).
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Comment: Several commenters said we should eliminate the
reconsideration step for initial disability cases. One commenter said
we never published an analysis of the efficacy of the reconsideration
step, ``despite a promise years ago to do so when evaluating the ten-
state disability adjudication prototype experiment.''
Another commenter stated that requiring reconsideration after an
initial denial ``depletes SSA resources and significantly burdens
claimants without improving the accuracy of disability
determinations.'' The commenter said the agency could expand existing
sub-regulatory guidance on informal remands, which already permits
additional review from Disability Determination Services staff in cases
where new evidence or certain other circumstances warrant an additional
level of review before a hearing.
Response: We appreciate the comments received but they are outside
the scope of this final rule.
Systems Questions
Comment: One commenter asked what system would support the data
exchange to upload the monthly verification.
Response: We first verify that the data are complete and in the
right format. The data are then stored in a centralized repository
before they are moved to the appropriate title II and title XVI systems
where the data are automated to beneficiary and recipient records or
flagged for technician review.
Comment: A commenter asked how employees will handle the new
workload for exceptions and failed submissions.
Response: Our OASDI work review system will send wage alerts when
incoming PIE data is incomplete, due to such issues as missing pay
period start date information. When this happens, the alert will guide
our technicians to manually query sources of earnings (including PIE)
to determine if the individual has substantial earnings. All work
reviews require manual review of earnings prior to effectuating a
determination. Similarly, our SSI systems will create a diary to be
worked by a technician when we do not have an Employer Identification
Number (EIN) match for an individual who has already reported an
employer/EIN to us. Once the technician confirms the incoming
employment, future PIE wages will automate to the recipient's record
for that employer. Any name mismatch cases (where the name and SSN do
not match) will not go downstream to any application.
Comment: A commenter asked what percentage of liability the
representative payee, deemor, essential person, and claimant have
regarding wages.
Response: When the representative payee, beneficiary, recipient, or
claimant receives a PIE reporting responsibilities notice, they would
not have to report wages monthly, and they would not be considered ``at
fault'' for any inaccuracies. All SSI recipients (or their
representative payees) are responsible for reporting their wages as
well as the wages of any deemors or essential persons.\83\ In any
event, we are not changing who is responsible for making required
reports.
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\83\ Deeming also applies to any individual who lives with an
essential person (a concept carried over from the former State
assistances plans.) As of February 2024, there were only 4 cases
with an essential person remaining.
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Comment: A commenter asked if individuals have to report initial
work to update the Consolidated Claims Experience (CCE).\84\
---------------------------------------------------------------------------
\84\ The commenter used the acronym ``CCE.'' We assumed they
referred to the ``Consolidated Claim Experience.''
---------------------------------------------------------------------------
Response: Yes, we continue to require individuals to report a
change in employment, including new employment.
Comment: A commenter asked if the Retrospective Monthly Accounting
(RMA) cycle will remain in effect.\85\
---------------------------------------------------------------------------
\85\ The commenter used the acronym ``RMA.'' We assumed they
referred to ``Retrospective Monthly Accounting.''
---------------------------------------------------------------------------
Response: Yes, normal RMA accounting rules will still apply.
Comment: A commenter asked if employers report wages monthly or
quarterly.
Response: We will receive wages that are readily available to the
payroll data provider at the time of our monthly information exchange
regardless of how often the employer provides that data to them.
Comment: A commenter asked if the report will be delayed.
Response: We are not certain what the commenter means by ``the
report.'' We expect to receive the information through PIE prior to the
GK payment continuation cutoff date in a given month to ensure we
receive the data in time to determine an individual's eligibility or
payment amount.
Comment: A commenter asked if there will be an overpayment if this
program works.
Response: While we anticipate PIE will lead to more accurate and
timely payments, it cannot eliminate overpayments and underpayments
altogether for a variety of reasons, some of which may be that not
everyone will opt in, not all employers are covered, and there will
still be cases where manual actions are necessary.
Comment: A commenter asked if the system will understand pre-tax
deductions.
Response: PIE data only includes employer wage data. Calculations
are based on gross wages, not on net pay.
Comment: A commenter asked if counting the net and removing the
wage exclusion provision would ``change the game'' as more individuals
become eligible for benefits.
Response: Laws and regulations govern how we count earned income
and what we can exclude from income counting. Changes to income
counting are outside of the scope of this rule.
Comment: One commenter asked how we will rectify duplicate
reporting, particularly with the EIN or corporate name reported in the
data exchange and the ``doing business as'' (DBA) name on paystubs with
an individual continuing to manually report.
Response: We will receive the DBA name on the incoming wage and
employment information from the payroll data provider through PIE and
will prioritize PIE information over other reporting methods, unless
manually adjusted by one of our technicians.
Comment: A commenter asked if there is a plan to address benefits
received under a cross referenced number (e.g., a parent).
Response: Yes, PIE data is based on the individual's own SSN, so
their wages for SSI or OASDI disability will be posted to their record
with any cross-referenced SSNs.
Other Public Comments
Comment: One commenter requested information about how PIE
implementation will increase efficiency. The commenter asked: (1) Is
there data showing how much time is saved or how much greater accuracy
is achieved by this process? (2) If time is saved, how much and in
which components? (3) What benefits might be realized by redirecting
this saved time toward other workloads? (4) Are there any critical
workloads that would be addressed because of such savings? and (5) How
might this benefit individuals in general?
Response: PIE will increase efficiency by allowing our systems to
receive and automate wage and employment information timely. Timely
receipt of this information allows us to administer
[[Page 107254]]
the OASDI disability and SSI programs more efficiently, as well as
reduce improper payments, because we will receive the information
sooner and will process it quicker when the information automates for
SSI and when the information alerts us to wages sooner for OASDI
disability. This also creates administrative efficiencies because it
reduces the time our technicians would otherwise use to verify
wages.\86\ In our NPRM, we anticipated some administrative savings from
a shorter wage development process in affected cases during SSI pre-
effectuation reviews, redeterminations, post-eligibility actions, and
overpayments, as well as during OASDI disability work continuing
disability reviews. However, we do not attempt to quantify these time
savings. As we explained in the NPRM, under our current process, we
sometimes conduct a manual query to request records from payroll data
providers or employers. We estimate we would save approximately 20
minutes of our staff's time each time we no longer need to complete
this query.\87\
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\86\ As noted elsewhere, information received through PIE is
already considered ``verified.''
\87\ These savings are for our staff. They do not represent
public reporting burden savings.
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We expect that our Operations components would realize these time
savings and could redirect this time toward other critical workloads.
In addition to the benefits identified elsewhere in this rule (e.g.,
reduced burden on individuals), we anticipate others may benefit if we
are able to initiate work on their cases sooner because of the time
savings PIE will afford staff.
Comment: One commenter said the public must have the ``maximal
ability'' to understand the technology we will use to implement PIE
before we implement it, including how it works, potential problem
points, plans to work through such problem points, plans to identify
and fix unanticipated and anticipated problems, and ways to revert to
``non-automated'' means in the event that the system produces
widespread inaccuracies or other problems. The commenter said this
information should be posted publicly, and we should consider engaging
individuals and their advocates in system design, and we should support
individuals to enable them to meaningfully participate.
Response: While we are unable to share sensitive information for
security reasons, we will publish procedures describing the process for
requesting and receiving wage and employment information from a payroll
data provider through an information exchange. In the unlikely event
the system produces ``unanticipated problems,'' we can, as always,
accept alternative wage evidence (e.g., pay stubs) from the wage
reporter.
Comment: One commenter asserted that adding the penalty of
ineligibility will create a potentially ``insurmountable barrier to
employment'' for individuals. The commenter said that individuals
consistently report that ``fear of prematurely losing their benefits is
a primary reason they are reluctant to try working,'' and work
incentives planners spend ``countless hours'' reassuring them that they
will not lose their benefits just because they return to work. The
commenter stated we must remove the language about the penalty of
ineligibility related to wage reporting mistakes because these rules
create ``new and extreme penalties.''
Response: Neither the BBA nor the NPRM propose new penalties of any
kind. Nor does this final rule. Rather, the BBA and this final rule
create protections from some existing penalties for individuals. As we
explained in the NPRM, we may not subject individuals to certain
penalties related to reporting if they authorize us to obtain
information from a payroll data provider.\88\ For example, when an
individual is reporting wages to us currently, and they omit material
facts related to the wage data they report, we can, under 1129A of the
Act, stop their benefits. However, if we are receiving wage data from a
payroll data provider under the PIE program, we will not stop the
individual's benefits because of any errors made in reporting by the
payroll data provider. This will alleviate some of the ``fear'' the
commentator described currently associated with having to report wage
data to us directly.
---------------------------------------------------------------------------
\88\ Individuals who authorize us to obtain wage and employment
information from a payroll data provider will not be subject to
penalties under section 1129A of the Act for omissions or errors in
the data we receive from a participating payroll data provider. 42
U.S.C. 1320a-8a. See 20 CFR 404.459, 416.1340. The relevant penalty
under section 1129A of the Act and 20 CFR 404.459, 416.1340 is the
non-payment of OASDI disability benefits and ineligibility for SSI
cash benefits. Other penalties under section 1129A of the Act may
apply in situations involving false or misleading statements,
including statements regarding wages and employment.
---------------------------------------------------------------------------
However, in reviewing the CFR text we understand that as written in
the NPRM it might not clearly reflect the explanation provided in the
preamble. Accordingly, we have rewritten the CFR text.
Comment: One commenter asserted that our proposal would impose a
financial burden on payroll companies, particularly small businesses.
The commenter said that payroll reporting to us and IRS is already
``more difficult and time-consuming than it needs to be.'' According to
the commenter, small businesses are ``drowning in federal, state and
local government regulations,'' and if we require reporting, we should
reimburse payroll companies for the cost.
Response: This rule and the implementation of PIE will not impose
burdens on payroll companies, including small businesses, because we
are not requiring, nor requesting, they change reporting or any other
aspects of their business processes. Rather, we are working with a
payroll data provider that already receives information from employers,
and that payroll data provider (that is under a contract with us) will
provide that information to us directly.
Comment: One commenter said we should not obtain information
without working with the employer to request information. They stated
this proposal is an overreach that should not be pursued. According to
the commenter, irregularities can present an ``opportunity to interact
with an employer to request additional information.'' Further, the
commenter said every employer has the right to oversee their own
payroll service, without having them ``work for the government.''
Response: We are not mandating any employers to ``work for the
government,'' nor do we have the authority to do so. Rather, we have
exercised the authority in the BBA to enter into an information
exchange arrangement with a payroll data provider. We will work
directly with our contracted payroll data provider who has willingly
entered into an information exchange with us.
To the extent this comment applies to individual employees, anyone
who does not want us to obtain their information from our payroll data
provider may decide not to provide authorization or may revoke their
authorization at any time. We will not obtain payroll data provider
information without authorization and the individual can continue to
submit their information to us directly.
Comment: One commenter referred to our policy that extends the time
period for individuals to request benefit continuation from 10 to 60
days pursuant to the settlement agreement in Amin v. Kijakazi.\89\ The
commenter
[[Page 107255]]
stated that we should formalize this policy through rulemaking,
updating POMS, and communicating the modified policy to our staff prior
to finalizing the payroll data rule.
---------------------------------------------------------------------------
\89\ Amin v. Kijakazi, Case 1:15-cv-07429 (E.D.N.Y.).
---------------------------------------------------------------------------
Response: We would like to emphasize that, in accordance with the
settlement agreement in the referenced litigation, we already use this
policy in practice. Codifying the policy into regulations is out of the
scope of this final rule.
Comment: One commenter said SSI or SSDI ``navigators'' or case
managers could help streamline the current wage reporting process and
reduce the administrative burden on individuals. According to the
commenter, the use of navigators can also improve the accessibility of
current reporting options. Further, the commenter said, if multiple
individuals request assistance for a recurring accessibility issue,
navigators or case managers can review these reporting methods and
bring accessibility concerns to the appropriate person or team at the
SSA.
Response: While we are unsure precisely who the commenter intended
when referencing ``navigators'' and ``case managers'' in the SSA
context, we clarify that our technicians will be available to help
individuals with their PIE-related questions and we will publish policy
describing the process for requesting and receiving wage and employment
information from a payroll data provider through an information
exchange. For any concerns or questions about accessibility, please
visit https://www.ssa.gov/accessibility/504_overview.html. Our notices
also advise members of the public that they can contact us through our
800 number with additional questions or requests for guidance.
Comment: One commenter expressed that individuals would benefit
from ``well-considered policy and implementation choices that guarantee
full access and do not discriminate.'' The commenter said, among other
ideas, we can consider implementing a ``clear process that informs
people that reasonable accommodations are available, recognizes
requests, and acts on them quickly and appropriately.''
Response: We comply with relevant and applicable anti-
discrimination policies and laws, including section 504 of the
Rehabilitation Act and its reasonable accommodation requirements. As
part of this final rule, we are not revising our obligations under
section 504, including our reasonable accommodation process, or our
language support for the public. For more information about those
policies, please visit https://www.ssa.gov/accessibility/504_overview.html and https://www.ssa.gov/site/languages/en/.
Comment: One commenter said, to ensure that the ``automated wage
reporting does not simply replace monthly income reports required of
recipients with monthly notices that prompt them to call,'' we could
consider building in ``tolerances'' for income fluctuations so small
changes in benefit amounts do not trigger notices for a certain period
of time. The commenter suggested that we could consider couching these
as small overpayments and use existing waiver authority to waive them.
Relatedly, the commenter also suggested that we could average wage
income over a set span of time (e.g., three or six months), make one
determination about benefit amounts for the next span, send one notice
for that span, and allow recipients to present evidence if they believe
we should adjust their benefit amount. The commenter asserted that
recipients would benefit most from simplified benefit calculations and
fewer notices.
Response: This suggestion is not within the scope of this final
rule. Nevertheless, we will continue to evaluate our processes on an
ongoing basis, looking for opportunities to provide enhancements and
improvements that reduce burdens for our customers or increase agency
efficiency and that provide effective program stewardship.
Comment: One commenter proposed that we eliminate the complex rules
and make the program simpler for recipients to navigate.
Response: We appreciate this comment and always look for ways to
simplify our programs. We anticipate that implementation of PIE will
make one part of the SSI and OASDI disability process (wage reporting)
simpler for most individuals who provide authorization for us to
receive their wages through PIE.
Comment: Commenters brought up a variety of other issues not
directly related to the proposal. For example, one commenter asserted
that people cannot live on SSI alone and they deserve at least $2,500 a
month to survive. Another commenter questioned whether the States
should have a bigger role in managing Social Security. Other commenters
raised issues about personal loans or changes in qualifying for
disability. An additional commenter expressed that we may be able to
use PIE data to establish insured status for applicants.
Response: While we appreciate these suggestions, they are outside
the scope of this rulemaking.
Rulemaking Analyses and Notices
Regulatory Procedures
E.O. 12866 as Supplemented by E.O. 13563 and Amended by E.O. 14094
We consulted with the Office of Management and Budget (OMB) and OMB
has determined that this final rule meets the criteria for a section
3(f)(1) 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.
Assumptions
We estimate that, by 2034, 98 percent of SSI recipients will have
provided an active authorization as of that time allowing us to obtain
this information from payroll data providers through information
exchanges, and about 87 percent of disabled OASDI beneficiaries will
have also provided this authorization.\90\ We base this estimate on
current rates of adoption as we have sought authorization from
beneficiaries during both new enrollment and disability review
processes since late 2017. Since 2017, about 98 percent of OASDI
disability beneficiaries and SSI recipients who have been asked have
provided authorization--this corresponds to about 35 percent of all
current OASDI disability beneficiaries as of the end of fiscal year
2024. As of July 2024, 64 percent of all current SSI recipients and 72
percent of SSI deemors have provided an active authorization as of that
time.\91\
---------------------------------------------------------------------------
\90\ The projected period in the NPRM extended through 2033. The
revised projected period in this final rule extends through 2034.
\91\ We have not conducted any analysis to investigate why a
higher share of all SSI deemors have provided authorization compared
to all SSI recipients. It is possible this is a result of the non-
medical redetermination process. If a redetermination is initiated,
and a recipient or deemor has not previously provided authorization,
we request authorization. SSI recipients with deemors are relatively
more likely to have a redetermination initiated.
---------------------------------------------------------------------------
We estimate that there are about 1,100,000 OASDI disability
beneficiaries, between 200,000 and 300,000 SSI recipients, and another
500,000 to 600,000 deemors of SSI recipients who work in a given year.
Because employers representing approximately two-thirds of the non-farm
workforce provide payroll data to Equifax, and we will be able to
receive payroll data from Equifax for anyone who has authorized us to
do so, we expect individuals will submit fewer wage reports to us.\92\
---------------------------------------------------------------------------
\92\ As stated in the preamble, neither SSA nor Equifax has
analyzed whether working disability benefit recipients are
represented in a similar proportion in the database, but we assume
it for the purposes of this analysis.
---------------------------------------------------------------------------
[[Page 107256]]
Additionally, we estimate that there are about 100,000 OASDI
disability beneficiaries who are overpaid due to working at or above
the SGA level. Based on the most recent data available, over FYs 2019
through 2023, these individuals were overpaid an annual average of $729
million. We estimate that, through the information exchange, we will be
able to identify both wages we otherwise would not have known about, as
well as wages that will be identified timelier than under current
processes. Additionally, we estimate that we will identify and assess
approximately an additional 10 percent of overpayments due to working
at or above SGA (OASDI) or having wages from employment (SSI) which we
would likely not have assessed through our current processes.\93\
---------------------------------------------------------------------------
\93\ We do not have data to specifically support the assumption
that we will identify 10% more overpayments. However, we do know
certain small overpayments may be currently overlooked through our
current systems. Through review processes such as the Master
Earnings File, SSA is generally able to identify overpayments from
unreported wage changes at least on an annual basis. In certain
circumstances, however, annual earnings as identified on the Master
Earnings File or on a quarterly match may be below the threshold for
identifying an overpayment even though the beneficiary's monthly
earnings in certain months would have resulted in changes to the
amount they were owed. For example, if an OASDI disability
beneficiary worked at $50 above SGA for 11 months of the year, and
worked $0 in the 12th month, they would generally be passed over in
the annual match because their total annual wages would be below 12
times the monthly SGA amount. Having the monthly data would give SSA
more exact information and the agency would be able to compare on a
monthly basis whether earnings exceeds SGA. As another example,
certain de minimis changes in benefit payment rates due to changes
in income may not be assessed under current policy because of
required efforts under current processes; because these processes
will be automated through PIE, these changes will be made in a
timely manner.
---------------------------------------------------------------------------
Anticipated Costs to the Public
As discussed in the NPRM, there are minor costs to the public
associated with this rulemaking.\94\ For example, individuals who apply
for or are receiving OASDI disability, individuals who apply for or are
receiving SSI, and SSI deemors, will need to spend a minimal amount of
time to complete the authorization to allow us to obtain wage and
employment information from payroll data providers through an
information exchange. As another example, there is a potential burden
on the public to correct any inaccurate data reported to us from a
payroll data provider if an individual identifies an error in the
information we receive through an information exchange. See the NPRM
for more explanation.\95\
---------------------------------------------------------------------------
\94\ 89 FR 11783.
\95\ Id.
---------------------------------------------------------------------------
Anticipated Benefit to the Public
As discussed in the NPRM,\96\ an information exchange has many
benefits. For example, it will reduce wage reporting responsibilities
for some individuals. PIE would also help us obtain timelier wage and
employment information, which we anticipate will also help us reduce
improper payments, which is a potential source of confusion for the
public and may cause individuals to spend time addressing errors
associated with improper payments or filing appeals or waiver requests.
See the NPRM for more explanation.\97\
---------------------------------------------------------------------------
\96\ Id.
\97\ Id.
---------------------------------------------------------------------------
Anticipated Transfers to Our Program
Our Office of the Chief Actuary estimates that implementation of
this proposed rule would result in a total net reduction in OASDI
benefit payments of $1.1 billion \98\ and a total net reduction in
Federal SSI payments of $1.8 billion over fiscal years 2025 through
2034. The estimates assume implementation of this rule on March 11,
2025, and that SSA will not, during the estimate period, contract with
any other payroll data provider beyond Equifax. We note that the
increase in the amount of overpayments identified or prevented in this
period would be larger than the reduction in actual benefits paid in
this period. First, regarding overpayments newly identified, as
discussed in our Assumptions section, these estimates assume that 50
percent of work-related overpayments identified for OASDI beneficiaries
and 80 percent of earned-income related overpayments for SSI recipients
will be recovered within 10 years after they are identified. Thus, much
of the overpayments newly identified, especially those identified late
in this 10-year period, will be only partially recovered with
subsequent reductions in payments through fiscal year 2034. Second,
while potential overpayments that would be prevented due to
implementation of this rule will immediately reduce benefit payments,
such early identification of earnings will also avoid subsequent
potential overpayments through fiscal year 2034 and beyond.
---------------------------------------------------------------------------
\98\ We note that in the NPRM, we estimated this figure would be
$1.8 billion. The new estimated amount of $1.1 billion reflects
updated information that is used to develop our actuarial estimates.
---------------------------------------------------------------------------
Anticipated Administrative Costs to the Social Security Administration
The Office of Budget, Finance, and Management estimates that this
proposal will result in a net administrative cost of $846 million for
the 10-year period from FY 2025 to FY 2034. The net administrative cost
is mainly a result of the contract and IT costs to administer the
information exchange. The total costs are offset by some administrative
savings from a shorter wage development process in affected cases
during Title XVI pre-effectuation reviews, redeterminations, post-
eligibility actions, and overpayments, as well as during Title II work
continuing disability reviews.
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 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 because it
primarily affects individuals. In some instances, this final rule may
reduce the burden on employers because we may need to contact employers
for information less frequently when we receive wage and employment
information from payroll data providers through an information
exchange. Because our contact with employers for this reason is limited
now, we do not expect a significant difference. Therefore, a regulatory
flexibility analysis is not required under the Regulatory Flexibility
Act, as amended. We discuss the time burden savings for employers
stemming from this final rule in the Paperwork Reduction Act section of
the preamble.
Paperwork Reduction Act Statement
SSA already has existing OMB approved information collection tools
relating to this proposed rule: the Letter to Employer Requesting
Information About Wages Earned by Beneficiary
[[Page 107257]]
(SSA-L725, OMB Control No. 0960-0034); Letter to Employer Requesting
Wage Information (SSA-L4201, OMB Control No. 0960-0138); Monthly SSI
Wage Reporting (SSA's Mobile Wage Reporting, Telephone Wage Reporting,
and internet myWage Report application, OMB Control No. 0960-0715); the
Authorization for the Social Security Administration to Obtain Wage and
Employment Information from Payroll Data Providers (Form SSA-8240, OMB
Control No. 0960-0807); and the Notice to Electronic Information
Exchange Partners to Provide Contractor List (SSA-731, OMB Control No.
0960-0820). While we previously obtained OMB approval for the new form
(under OMB Control No. 0960-0807) to collect the authorization for the
wage and employment information from payroll providers, SSA has not
utilized this information through an automated exchange, because those
exchanges have not, yet gone live. The final rule provides additional
information on OASDI and SSI reduced reporting requirements, as well as
the effects of beneficiaries, recipients, and deemors authorizing us to
obtain records from payroll data providers. In addition, the final rule
describes the establishment of the requirements to enter into an
information exchange with payroll data providers. SSA established the
information collection for the Authorization for the Social Security
Administration to Obtain Wage and Employment Information from Payroll
Data Providers (0960-0807) prior to the creation of this new rule. We
will include the appropriate CFR citations under that OMB approved
information collection upon publication of the final rule. In addition,
we will obtain OMB approval for revisions to the collection instruments
as needed 30 days after publication of the final rule. Finally, the
implementation of this final rule will decrease the time burden for the
public, as it removes the need for individuals or employers to submit
wages to SSA when we receive them through payroll data providers
through an information exchange instead. While we acknowledge that
there is a burden on the public for 20 CFR 422.150(a)(3), we did not
include it in the chart below because fewer than 10 providers submit
this information to SSA. The following chart shows the anticipated
burden reduction due to the other regulatory requirements from this
rule:
--------------------------------------------------------------------------------------------------------------------------------------------------------
Anticipated Anticipated Anticipated
Current Current new number new burden estimated Estimated
Number of Frequency average estimated of per response total burden burden
OMB #; Form #; CFR citations respondents of response burden per total respondents under under savings
response burden under regulation regulation (hours)
(minutes) (hours) regulation (minutes) (hours)
--------------------------------------------------------------------------------------------------------------------------------------------------------
0960-0034--SSA-L725........................ 170,000 1 40 113,333 170,000 40 113,333 * 0
0960-0138--SSA-L4201....................... 133,000 1 30 66,500 133,000 30 66,500 * 0
0960-0715--Mobile Wage reporting 88,382 12 6 106,058 36,237 6 43,484 62,574
404.703(a), 416.708(c), 416.709 (new).....
0960-0715--Telephone Wage reporting 16,341 12 5 16,341 6,700 5 6,700 9,641
404.703(a), 416.708(c), 416.709 (new).....
0960-0715--myWage Report 404.703(a), 3,557 12 7 4,980 1,458 7 2,041 ** 2,939
416.708(c), 416.709 (new).................
0960-0807--SSA-8240, 404.703(b), 150,000 1 8 20,000 150,000 8 20,000 * 0
404.1588(a), 404.1588(b)(3)(iii),
404.1588(b)(4), 416.988(a)................
0960-0807--MCS/SSI Claim System 404.703(b), 697,580 1 3 34,879 697,580 3 34,879 * 0
404.1588(a), 404.1588(b)(3)(iii),
404.1588(b)(4), 416.988(a)................
0960-0807--Internet 404.703(b), 147,820 1 3 7,391 147,820 3 7,391 * 0
404.1588(a), 404.1588(b)(3)(iii),
404.1588(b)(4), 416.988(a)................
------------------------------------------------------------------------------------------------------------
Totals................................. 1,406,680 ........... ........... 369,482 1,342,795 ............ 294,328 75,154
--------------------------------------------------------------------------------------------------------------------------------------------------------
* This final rule will not significantly affect the burden for this information collection; therefore, we do not anticipate any burden reduction for
this information collection due to the implementation of this rule.
** SSA is providing this figure as a current best estimate for burden reduction under this final rule. We will not have accurate data until we implement
the rule.
The following chart shows the reduction in theoretical cost burdens
associated with the rule:
--------------------------------------------------------------------------------------------------------------------------------------------------------
Average
Estimated Anticipated Average combined wait Anticipated
Anticipated burden per estimated theoretical time in field annual
OMB #; Form #; CFR citations new number of response from total burden hourly cost office and/or opportunity
respondents chart above under amount teleservice cost (dollars)
(minutes) regulation (dollars) * centers ***
(hours) (minutes) **
--------------------------------------------------------------------------------------------------------------------------------------------------------
0960-0034--SSA-L725..................................... 170,000 40 113,333 * $26.29 0 *** $2,979,525
0960-0138--SSA-L4201.................................... 133,000 30 66,500 * 26.29 0 *** 1,784,285
0960-0715--Mobile Wage reporting, 404.703(a), 36,237 6 43,484 * 22.39 0 *** 973,607
416.708(c), 416.709 (new)..............................
0960-0715--Telephone Wage reporting, 404.703(a), 6,700 5 6,700 * 22.39 0 *** 150,013
416.708(c), 416.709 (new)..............................
0960-0715--myWage Report, 404.703(a), 416.708(c), 1,458 7 2,041 * 22.39 0 *** 45,698
416.709 (new)..........................................
0960-0807--SSA-8240, 404.703(b), 404.1588(a), 150,000 8 20,000 * 22.39 ** 24 *** 1,791,200
404.1588(b)(3)(iii), 404.1588(b)(4), 416.988(a)........
0960-0807--MCS/SSI Claim System, 404.703(b), 697,580 3 34,879 * 22.39 ** 21 *** 6,247,526
404.1588(a), 404.1588(b)(3)(iii), 404.1588(b)(4),
416.988(a).............................................
[[Page 107258]]
0960-0807--Internet, 404.703(b), 404.1588(a), 147,820 3 7,391 * 22.39 ** 21 *** 1,323,876
404.1588(b)(3)(iii), 404.1588(b)(4), 416.988(a)........
-----------------------------------------------------------------------------------------------
Totals.............................................. 1,342,795 .............. 294,328 .............. .............. *** 15,295,730
--------------------------------------------------------------------------------------------------------------------------------------------------------
* We based this figure on the average Payroll and Timekeeping Clerks hourly salary, as reported by the Bureau of Labor Statistics data (https://www.bls.gov/oes/current/oes433051.htm); as well as the averaging of DI payments based on SSA's current FY 2024 data (https://www.ssa.gov/legislation/2023factsheet.pdf) and 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 revisions to information collections currently under OMB
Numbers 0960-0034, 0960-0138, 0960-0715, 0960-0807) to OMB for the
approval of the changes due to the final rule. After approval, we will
adjust the figures associated with the current OMB numbers for these
forms to reflect the new burden. We are soliciting comments on the
burden estimate; the need for the information; its practical utility;
ways to enhance its quality, utility, and clarity; and ways to minimize
the burden on respondents, including the use of automated techniques or
other forms of information technology. In addition, we are specifically
seeking comment on whether you have any questions or suggestions for
edits to the forms referenced above in the context of this regulatory
change. If you would like to submit comments, please send them to the
following locations:
Office of Management and Budget, Attn: Desk Officer for SSA, Social
Security Administration, OLCA, Attn: Reports Clearance Director, Mail
Stop 3253 Altmeyer, 6401 Security Blvd., Baltimore MD 21235, Fax: 410-
966-2830, Email address: ssa.gov">OR.Reports.Clearance@ssa.gov.
Or you may submit your comments online through https://www.reginfo.gov/public/do/PRAmain \99\ by clicking on Currently under
Review--Open for Public Comments and choosing to click on one of SSA's
published items. Please reference Docket ID Number SSA-2016-0039 in
your submitted response.
---------------------------------------------------------------------------
\99\ Please note that the link to the specific ICR connected to
this regulation will only become active the day after the final rule
publishes in the Federal Register.
---------------------------------------------------------------------------
You can submit comments until January 30, 2025, which is 30 days
after the publication of this rule. 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
20 CFR Part 404
Administrative practice and procedure. Blind; Disability benefits,
Old-age, survivors, and disability insurance, Reporting and
recordkeeping requirements, Social Security.
20 CFR Part 416
Administrative practice and procedure, Aged, Blind, Disability
benefits, Public Assistance programs, Reporting and recordkeeping
requirements, Supplemental Security Income (SSI).
20 CFR Part 422
Administrative practice and procedure, Organization and functions
(Government agencies), Operational effectiveness, Social Security.
The Acting Commissioner of Social Security, Carolyn W. Colvin,
having reviewed and approved this document, is delegating the authority
to electronically sign this document to Erik Hansen, a Federal Register
Liaison for the Social Security Administration, for purposes of
publication in the Federal Register.
Erik Hansen,
Associate Commissioner for Legislative Development and Operations,
Social Security Administration.
For the reasons set out in the preamble, we amend 20 CFR chapter
III parts 404, 416, and 422 as set forth below:
PART 404--FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE
Subpart H--Evidence
0
1. The authority citation for subpart H of part 404 is revised to read
as follows:
Authority: 42 U.S.C. 405(a), 902(a)(5), and 1320e-3.
0
2. In Sec. 404.702, add in alphabetical order definitions for
``Participating payroll data provider'' and ``Payroll data provider''
to read as follows:
Sec. 404.702 Definitions.
* * * * *
Participating payroll data provider means a payroll data provider
that has established an information exchange with us to provide wage
and employment information.
Payroll data provider means payroll providers, wage verification
companies, and other commercial or non-commercial entities that collect
and maintain information regarding employment and wages.
* * * * *
0
3. Revise Sec. 404.703 to read as follows:
Sec. 404.703 When evidence is needed
(a) Evidence. When you apply for benefits, we will ask for evidence
that you are eligible for them. After you become entitled to benefits,
we may ask for evidence showing whether you continue to be entitled to
benefits; or evidence showing whether your benefit payments should be
reduced or stopped. See Sec. 404.401 for a list showing when benefit
payments must be reduced or stopped.
(b) Authorization to obtain data from a payroll data provider. (1)
We will ask you for a written authorization to obtain information about
you from a payroll data provider whenever we determine the information
is needed in connection with a determination of initial or ongoing
entitlement to benefits.
[[Page 107259]]
(2) When we ask for your authorization, we will explain the
authorization's scope and duration.
(i) We will explain to you that we will use the information
obtained from a payroll data provider when it is needed in connection
with a determination of initial or ongoing entitlement to title II
benefits based on disability, or for eligibility or the amount of
benefits under the Supplemental Security Income program of title XVI of
the Social Security Act, and to prevent improper payments. We will
explain to you that we may also use the authorization to obtain wage
and employment information from a payroll data provider for claims
associated with the claim filed, such as a claim for benefits by a
spouse or child. We will also explain that we may use and disclose your
information consistent with applicable Federal law (see, e.g., part 401
of this chapter) and any privacy notices we provide to you.
(ii) We will also inform you that your authorization will remain
effective until the earliest of one of the following occurrences:
(A) You revoke your authorization in writing (see Sec.
404.1588(b)(4));
(B) We have terminated all entitlement for benefits, you have no
other claims or appeals pending under this title, and the period for
appealing the determination or decision terminating entitlement has
lapsed; or
(C) There has been an adverse determination or decision on your
claim, you have no other claims or appeals pending under this title,
and the period for appealing the adverse determination or decision has
lapsed.
Subpart P--Determining Disability and Blindness
0
4. The authority citation for subpart P of part 404 is revised to read
as follows:
Authority: 42 U.S.C. 402, 405(a)-(b) and (d)-(h), 416(i), 421(a)
and (h)-(j), 422(c), 423, 425, 902(a)(5), and 1320e-3; sec. 211(b),
Pub. L. 104-193, 110 Stat. 2105, 2189; sec. 202, Pub. L. 108-203,
118 Stat. 509 (42 U.S.C. 902 note).
0
5. Revise Sec. 404.1588 to read as follows:
Sec. 404.1588 Your responsibility to tell us of events that may
change your disability status.
(a) Your responsibility to report changes to us. If you are
entitled to cash benefits or to a period of disability because you are
disabled, you should promptly tell us if--
(1) Your condition improves;
(2) You return to work;
(3) You have a new employer;
(4) You increase the amount of your work; or
(5) Your earnings increase.
(b) Effect of authorizing us to obtain your information from
payroll data providers. (1) We will reduce your reporting
responsibilities as described in paragraphs (a)(4) and (5) of this
section if we have your authorization to obtain wage and employment
information from a payroll data provider (see Sec. 404.703), and we
receive your wage and employment information from your employer(s)
through a participating payroll data provider (see Sec. 404.702). You
will not be subject to a penalty described in Sec. 404.459 related to
any wage and employment information we receive from a payroll data
provider.
(2) We will notify you in writing whenever there is a change in
your reporting responsibilities relating to the authorization described
in Sec. 404.703. You are always required to submit any changes
described in paragraphs (a)(1) through (3) of this section.
(3) When your reporting requirements will change--
(i) If we have your authorization to obtain wage and employment
information from a payroll data provider (see Sec. 404.703), and we
receive your wage and employment information from your employer through
a participating payroll data provider, you will not have to report an
increase in the amount of work for that employer or an increase in
earnings from that employer.
(ii) If we have your authorization to obtain wage and employment
information from a payroll data provider (see Sec. 404.703), but we do
not receive your wage and employment information from your employer
through a participating payroll data provider, we will not reduce your
reporting responsibilities.
(iii) If we have your authorization to obtain wage and employment
information from a payroll data provider (see Sec. 404.703) and you
have more than one employer:
(A) You do not need to report an increase in the amount of work or
an increase in earnings for an employer if we receive your wage and
employment information for that employer through a participating
payroll data provider; and
(B) You must still report an increase in the amount of work or an
increase in earnings for an employer if we do not receive your wage and
employment information for that employer through a participating
payroll data provider.
(4) You may revoke your authorization at any time, but you must do
so in writing. We will apply the revocation to all pending or approved
disability claims under this title, as well as all pending or approved
claims under title XVI, from the time we process your revocation. If
you revoke your authorization, all your reporting responsibilities will
resume, and you will again be subject to all related penalties. We will
notify you in writing of these changes.
(c) Our responsibility when you report your work to us. When you or
your representative report changes in your work activity to us under
paragraphs (a)(2) through (5) of this section, we will issue a receipt
to you or your representative.
PART 416--SUPPLEMENTAL SECURITY INCOME FOR THE AGED, BLIND, AND
DISABLED
Subpart G--Reports Required
0
6. The authority citation for subpart G of part 416 is revised to read
as follows:
Authority: 42 U.S.C. 902(a)(5), 1320a-8a, 1320e-3, 1382, 1382a,
1382b, 1382c, and 1383; sec. 211, Pub. L. 93-66, 87 Stat. 154 (42
U.S.C. 1382 note); sec. 202, Pub. L. 108-203, 118 Stat. 509 (42
U.S.C. 902 note).
0
7. In Sec. 416.701, revise the third sentence of paragraph (a) to read
as follows:
Sec. 416.701 Scope of subpart.
(a) * * * This subpart tells you what events you must report; what
your reports must include; when reports are due; and when certain
reporting requirements, and penalties relating to reporting
requirements, do not apply. * * *
* * * * *
0
8. In Sec. 416.702, add in alphabetical order definitions for
``Participating payroll data provider'' and ``Payroll data provider''
to read as follows:
Sec. 416.702 Definitions.
* * * * *
Participating payroll data provider means a payroll data provider
that has established an information exchange with us to provide wage
and employment information.
Payroll data provider means payroll providers, wage verification
companies, and other commercial or non-commercial entities that collect
and maintain information regarding employment and wages.
* * * * *
0
9. In Sec. 416.708, revise paragraph (c) to read as follows:
Sec. 416.708 What you must report.
* * * * *
(c) A change in income. (1) Unless the circumstances in Sec.
416.709(a) and (c) apply, you must report to us any
[[Page 107260]]
increase or decrease in your income and any increase or decrease in the
income of--
(i) Your ineligible spouse who lives with you;
(ii) Your essential person;
(iii) Your parent, if you are an eligible child and your parent
lives with you; or
(iv) An ineligible child who lives with you.
(2) However, you need not report an increase in your Social
Security benefits if the increase is only a cost-of-living adjustment.
(For a complete discussion of what we consider income, see subpart K of
this part. See Sec. 416.1323 regarding suspension because of excess
income.) If you receive benefits based on disability, when you or your
representative report changes in your earned income, we will issue a
receipt to you or your representative.
* * * * *
0
10. Add Sec. 416.709 to read as follows:
Sec. 416.709 Reduced reporting requirements when you authorize us to
obtain your information from payroll data providers.
(a) Authorization to obtain data from a payroll data provider. We
will ask you for written authorization to obtain information about you
from a payroll data provider whenever we determine the information is
needed in connection with a determination of initial or ongoing
eligibility for benefits.
(b) Scope and duration. When we ask for your authorization, we will
explain the authorization's scope and duration.
(1) We will explain to you that we will use information obtained
from a payroll data provider, when it is needed, in connection with a
determination of eligibility or the amount of benefits under this
title, or for the initial or ongoing entitlement to disability benefits
under title II of the Social Security Act, and to prevent improper
payments. We will explain to you that we may also use the authorization
to obtain wage and employment information from a payroll data provider
for claims associated with the claim filed, such as an SSI claim by a
spouse or child. We will also explain that we may use and disclose your
information consistent with applicable Federal law (see part 401 of
this chapter) and any privacy notices we provide to you.
(2) We will also inform you that your authorization will remain
effective until the earliest of one of the following occurrences:
(i) You revoke your authorization in writing (see paragraph (c)(4)
of this section);
(ii) We have terminated all eligibility for benefits and you have
no other claims or appeals pending under this title, and the period for
appealing the determination or decision terminating entitlement has
lapsed;
(iii) There has been an adverse determination or decision on your
claim, you have no other claims or appeals pending under this title,
and the period for appealing the determination or decision terminating
eligibility has lapsed; or
(iv) Your deeming relationship ends.
(c) When reporting requirements will change. We will notify you in
writing whenever there is a change in your reporting responsibilities
relating to the authorization described in paragraph (a) of this
section. Whenever we are getting your wage and employment information
from a payroll data provider, we will tell you that you are not subject
to a penalty of ineligibility for cash benefits described in Sec.
416.1340 related to any wage and employment information we get from a
payroll data provider. We will also tell you when we will find good
cause, under Sec. 416.732, for a failure or delay in reporting a
change in employer.
(1) If we have your authorization to obtain wage and employment
information from a payroll data provider as described in paragraph (a)
of this section, and we receive your wage and employment information
from your employer(s) through a participating payroll data provider,
you will not have to report changes in your wages paid in cash, as
defined in Sec. 416.1110(a), from that employer(s). Also, you will not
have to report an increase in the amount of work from that employer or
an increase in earnings from that employer, as described in Sec.
416.988(a)(4) and (5). All other reporting requirements still apply.
(2) If we have your authorization to obtain wage and employment
information from a payroll data provider as described in paragraph (a)
of this section, but we do not receive your wage and employment
information from your employer(s) through a participating payroll data
provider, we will not reduce your reporting responsibilities.
(3) If we have your authorization to obtain wage and employment
information from a payroll data provider as described in paragraph (a)
of this section, and you have more than one employer,
(i) You do not need to report wages paid in cash, or an increase in
the amount of work or earnings, for an employer if we receive your wage
and employment information for that employer through a participating
payroll data provider, and
(ii) You must still report wages paid in cash, or an increase in
the amount of work or earnings, for an employer if we do not receive
your wage and employment information for that employer through a
participating payroll data provider.
(4) You may revoke your authorization at any time, but you must do
so in writing. We will apply the revocation to all pending or approved
claims under this title as well as all pending or approved disability
claims under title II from the time we process your revocation. If you
revoke your authorization, all your reporting responsibilities will
resume; you will again be subject to all related penalties; and we may
not find good cause, under Sec. 416.732, for a failure to report
timely a change in employer. We will notify you in writing of these
changes.
Subpart I--Determining Disability and Blindness
0
11. The authority citation for subpart I of part 416 is revised to read
as follows:
Authority: 42 U.S.C. 421(m), 902(a)(5), 1382, 1382c, 1382h,
1383, and 1383b; secs. 4(c) and 5, 6(c)-(e), 14(a), and 15, Pub. L.
98-460, 98 Stat. 1794, 1801, 1802, and 1808 (42 U.S.C. 421 note, 423
note, and 1382h note).
0
12. Revise Sec. 416.988 to read as follows:
Sec. 416.988 Your responsibility to tell us of events that may change
your disability or blindness status.
(a) If you are entitled to payments because you are disabled or
blind, you should promptly tell us if--
(1) Your condition improves;
(2) You return to work;
(3) You have a new employer;
(4) You increase the amount of your work; or
(5) Your earnings increase.
(b) If we have your authorization to obtain wage and employment
information (see Sec. 416.709(a)) from a payroll data provider (see
Sec. 416.702), and we receive your wage and employment information
from your employer(s) through a participating payroll data provider,
your reporting requirements under paragraphs (a)(4) and (5) will be
reduced as described in Sec. 416.709(c).
PART 422--ORGANIZATION AND FUNCTIONS OF THE SOCIAL SECURITY
ADMINISTRATION
Subpart B--General Procedures
0
13. The authority citation for subpart B of part 422 is revised to read
as follows:
[[Page 107261]]
Authority: 42 U.S.C. 405, 432, 902(a)(5), 1320b-1, 1320b-13, and
1320e-3, and sec. 7213(a)(1)(A) of Pub. L. 108-458.
0
14. Add Sec. 422.150 to read as follows:
Sec. 422.150 Guidelines for establishing and maintaining an
information exchange with payroll data providers.
(a) Guidelines for establishing an information exchange with
payroll data providers. In establishing an information exchange under
section 1184 of the Social Security Act, we will do the following:
(1) Identify the payroll data providers (as defined in Sec. Sec.
404.702 and 416.702 of this chapter) that may be interested in
participating in an information exchange with us.
(2) Review the payroll data providers and consider factors such as:
whether a payroll data provider is able and willing to engage in an
information exchange; what data the payroll data provider could
provide; whether the data from the payroll data provider is
sufficiently accurate, complete, and up to date; and any conditions and
limitations associated with our receipt of the data.
(3) Consistent with applicable law and regulations, establish an
information exchange with the selected payroll data provider. The
arrangement between us and the selected payroll data provider will
describe:
(i) The records that will be matched;
(ii) The procedures for the match;
(iii) Any requirements established related to accuracy,
completeness, and up-to-date records;
(iv) The procedures for ensuring the administrative, technical, and
physical security of the records matched; and
(v) Such other provisions as are necessary.
(4) Prior to receiving payroll data provider information, publish a
notice in the Federal Register that describes the information exchange
and the extent to which the information received through such exchange
is:
(i) Relevant and necessary to:
(A) Accurately determine initial and ongoing entitlement to, and
the amount of, disability benefits under title II of the Social
Security Act;
(B) Accurately determine eligibility for, and the amount of,
benefits under the Supplemental Security Income program under title XVI
of the Social Security Act; and
(C) Prevent improper payments of such benefits; and
(ii) Sufficiently accurate, up to date, and complete.
(b) Guidelines for maintaining an information exchange with payroll
data providers. We will perform the following activities while we
maintain an established information exchange with a payroll data
provider described in paragraph (a) of this section:
(1) Periodically assess whether the data we receive under the
information exchange continues to be accurate, complete, and up to
date; and
(2) Monitor compliance with the requirements of the information
exchange described in paragraph (a)(3) of this section.
[FR Doc. 2024-30593 Filed 12-30-24; 8:45 am]
BILLING CODE 4191-02-P