Deemed Application Date Based on Misinformation

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Social Security Administration

20 CFR Parts 404 and 416

[Regulations Nos. 4 and 16]

RIN 0960-AD05

Deemed Application Date Based on Misinformation

AGENCY: Social Security Administration, HHS.

ACTION: Final rules.

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SUMMARY: We are adding new rules to our regulations on filing an

application for Social Security or Supplemental Security Income (SSI)

benefits to implement the provisions of section 10302 of the Omnibus

Budget Reconciliation Act of 1989 (OBRA 1989), Pub. L. 101-239. Section

10302 added sections 202(j)(5) and 1631(e)(5) of the Social Security

Act (the Act) to provide, in general, for the establishment of a

``deemed'' filing date of an application for benefits under title II or

title XVI of the Act, respectively, in any case in which it is

determined to the satisfaction of the Secretary that an individual

failed to apply for monthly Social Security or SSI benefits because of

misinformation provided to the individual by an officer or employee of

the Social Security Administration (SSA) about his or her eligibility

for the benefits. In general, sections 202(j)(5) and 1631(e)(5) provide

that, in such a case, an individual will be ``deemed'' to have applied

for monthly Social Security or SSI benefits, as appropriate, on the

later of: The date the misinformation was provided to such individual;

or the date such individual met all requirements for entitlement to or

eligibility for such benefits, other than the requirement of filing an

application.

EFFECTIVE DATE: These rules are effective August 31, 1994.

FOR FURTHER INFORMATION CONTACT: Henry D. Lerner, Legal Assistant,

Office of Regulations, Social Security Administration, 6401 Security

Blvd., Baltimore, MD 21235, (410) 965-1762.

SUPPLEMENTARY INFORMATION:

Background

These regulations implement the provisions of section 10302 of OBRA

1989, Pub. L. 101-239, which added sections 202(j)(5) and 1631(e)(5) of

the Act. Sections 202(j)(5) and 1631(e)(5) of the Act provide that in

any case in which it is determined to the satisfaction of the Secretary

that an individual failed to apply for monthly Social Security or SSI

benefits because of misinformation provided to such individual by an

officer or employee of SSA relating to the individual's eligibility for

the respective benefits, such individual will be ``deemed'' to have

applied for monthly Social Security or SSI benefits, as the case may

be, on the later of: (1) The date the misinformation was provided to

such individual; or (2) the date on which such individual met all

requirements for entitlement to Social Security benefits, or all

requirements of eligibility for SSI benefits, as appropriate, other

than the requirement of filing an application. The amendment relating

to applications for monthly Social Security benefits, under section

202(j)(5) of the Act, applies to misinformation provided after December

31, 1982, and is effective for benefits payable for months beginning

after that date. The amendment relating to applications for SSI

benefits, under section 1631(e)(5) of the Act, applies to

misinformation provided on or after December 19, 1989, the date of the

enactment of OBRA 1989, and is effective for benefits payable for

months after December 1989.

We are amending our regulations on filing an application for Social

Security or SSI benefits to include rules to implement section 10302 of

OBRA 1989. These final regulations describe the rules for establishing

a ``deemed'' filing date of an application for benefits under section

202(j)(5) or 1631(e)(5) of the Act in a case in which an individual

failed to apply for benefits because of certain misinformation provided

to the individual by an officer or employee of SSA. Among other things,

the regulations explain what is meant by ``misinformation'' for

purposes of these rules, describe the kinds of evidence we will

consider in determining whether misinformation was provided, and

explain that a determination on a claim for benefits under these

sections of the Act, i.e., a determination as to whether or not to

establish a ``deemed'' filing date of an application on the basis that

misinformation was provided which caused an individual not to apply for

benefits, is an initial determination for purposes of administrative

and judicial review.

In general, our current regulations at Secs. 404.603 and 416.305(a)

provide that to become entitled to Social Security benefits or become

eligible to receive SSI benefits, an individual, in addition to meeting

all other requirements, must file an application for Social Security

benefits or for SSI benefits, as appropriate. An application must be on

a prescribed application form and meet certain other requirements

specified in Sec. 404.610 or Sec. 416.310.

Current Sec. 404.614 provides, with certain exceptions, that an

application for Social Security benefits is filed on the day it is

received by an SSA employee at one of our offices or by an SSA employee

who is authorized to receive it at another place. If a written

statement indicating intent to claim Social Security benefits is filed,

we will use the filing date of the written statement as the filing date

of the application under the conditions described in Sec. 404.630.

Also, if an individual telephones us and advises us that he or she

intends to file a claim for Social Security benefits but cannot file an

application before the end of the month, Sec. 404.630(b) provides that

we will prepare and sign a written statement if it is necessary to

prevent the loss of benefits.

In the SSI program, current Sec. 416.325 provides, with certain

exceptions, that an application for SSI benefits is considered to be

filed on the day it is received by an SSA employee at any Social

Security office, by someone at another Federal or State office

designated to receive applications for us, or by a person whom we have

authorized to receive applications for us. Also, under the conditions

described in Secs. 416.340, 416.345 and 416.350, if we receive a

written statement indicating an intent to claim SSI benefits or an oral

inquiry about SSI benefits, we will use the filing date of the written

statement or the date of the oral inquiry as the filing date of the

application, if the use of that date will result in eligibility for

additional benefits.

Under these final rules, we continue to require the filing of a

formal written application before we will make a determination on a

claim for benefits under section 202(j)(5) or 1631(e)(5) of the Act

based on an allegation that misinformation was provided which caused an

individual not to apply for benefits. If we determine that such

misinformation was provided, however, we will deem the filing date of

the application to be the date the misinformation was provided or, if

later, the date the claimant, i.e., the individual who is claiming

benefits for himself or herself or the person on whose behalf benefits

are being claimed, met all the requirements for entitlement to Social

Security benefits or eligibility for SSI benefits, as appropriate,

other than the requirement of filing an application.

Under our current regulations, an application for SSI benefits is

also an application for any applicable federally administered State

supplementary payments under section 1616 of the Act. The current

regulations which govern the filing of applications for SSI benefits,

therefore, also apply to applications for these State supplementary

payments. This is reflected in current Sec. 416.302 which provides that

for purposes of the regulations on filing applications for SSI

benefits, Sec. 416.301 et seq., ``[b]enefits means any payments made

under the SSI program,'' and ``SSI benefits also include any federally

administered State supplementary payments.'' As explained below, these

definitions would continue to apply under the regulations which

implement section 1631(e)(5) of the Act.

Section 1631(e)(5) of the Act applies specifically to cases in

which an individual failed to apply for SSI benefits because of the

receipt of misinformation relating to eligibility for SSI benefits.

However, because the application form and our current rules on filing

applications are the same for both SSI claims and claims for federally

administered State supplementary payments, we also will apply the

provisions under section 1631(e)(5) to cases involving misinformation

about eligibility for federally administered State supplementary

payments. This rule is based on the authority under section

1631(e)(1)(A) of the Act which directs the Secretary to ``prescribe

such requirements with respect to the filing of applications * * * as

may be necessary for the effective and efficient administration of this

title.'' Therefore, while not required under section 1631(e)(5) of the

Act, the final regulations will permit the establishment of a

``deemed'' filing date of an application in situations in which an

individual failed to file an application because we provided the

individual misinformation about his or her eligibility for these State

supplementary payments.

Deemed Filing Date of an Application in a Case of Misinformation

We are adding new Secs. 404.633 and 416.351 to our regulations to

explain the rules we will follow in implementing sections 202(j)(5) and

1631(e)(5) of the Act, respectively. Sections 404.633(b) and 416.351(b)

of the final regulations explain that we may establish a ``deemed''

filing date of an application for benefits under these sections of the

Act if we determine to our satisfaction that--

(1) An individual failed to apply for monthly Social Security or

SSI benefits for himself or herself because we provided such

individual misinformation about his or her eligibility for the

respective benefits, including misinformation about the amount or

payment of such benefits; or

(2) An individual who had authority to sign an application for

another person under Sec. 404.612 or Sec. 416.315, as appropriate,

failed to apply for monthly Social Security or SSI benefits for that

person because we provided the individual misinformation about such

person's eligibility for the respective benefits, including

misinformation about the amount or payment of such benefits.

In the first situation, we would deem an application to have been

filed on the date the misinformation was provided to the individual or,

if later, the date on which such individual met all of the requirements

for entitlement to monthly Social Security benefits or eligibility for

SSI benefits, as the case may be, other than the requirement of filing

an application. In the second situation, we would deem an application

to have been filed on the date the misinformation was provided to the

individual or, if later, the date on which the person referred to in

item (2) above, i.e., the person on whose behalf the individual was

inquiring about getting benefits, met all the requirements for

entitlement to monthly Social Security benefits or eligibility for SSI

benefits, as the case may be, other than the requirement of filing an

application.

The regulations explain that we will apply certain requirements and

conditions which are specified in the regulations in making the

determination described above, i.e., a determination as to whether

misinformation was provided. The regulations explain that before we may

make such a determination and establish a ``deemed'' filing date of an

application for benefits, an application for such benefits must be

filed with us either by the claimant, i.e., the individual in item (1)

above or the person referred to in item (2) above, or by someone who is

authorized to sign an application on behalf of the claimant under

Sec. 404.612 or Sec. 416.315. The regulations also provide that if the

claimant dies after the alleged misinformation was provided but before

an application is filed, an application for monthly Social Security

benefits must be filed by a person who would be qualified to receive

any benefits due the deceased. With respect to SSI benefits, if the

claimant dies after the alleged misinformation was provided but before

an application is filed, a person who would be qualified under

Sec. 416.542(b) to receive any benefits due the deceased, or someone on

behalf of such a person, must file an application for the benefits.

This latter provision is consistent with the provisions of our final

regulations on ``Payment of Benefits Due Deceased Recipients,'' which

were published in the Federal Register on October 13, 1993, at 58 FR

52909.

Our regulations on ``Payment of Benefits Due Deceased Recipients''

amended certain sections of the SSI regulations, including, as

pertinent here, Secs. 416.340(d)(2), 416.345(e)(2), and 416.542(b), to

implement section 8 of Pub. L. 99-643. Section 8 of Pub. L. 99-643

amended section 1631(b)(1) of the Act to expand the circumstances under

which SSI benefits due a deceased individual may be paid to survivors.

Among other things, those regulations amended Secs. 416.340(d)(2) and

416.345(e)(2) to permit, in general, a deceased claimant's surviving

spouse or parent(s) who could receive the claimant's benefits under

Sec. 416.542(b), or someone on behalf of such surviving spouse or

parent(s), to file an application for SSI benefits for the claimant

where the claimant dies after we receive a written statement indicating

an intent to claim SSI benefits or an oral inquiry about SSI

eligibility. The rule which we now are adding regarding who may file an

application for SSI benefits on behalf of a claimant where the claimant

dies after the alleged misinformation was provided, discussed above, is

consistent with these earlier changes to the SSI regulations.

We are amending Secs. 404.612, 404.615 and 416.310 to reflect the

provisions of Secs. 404.633(b) and 416.351(b) concerning who may file

an application if a claimant dies after the alleged misinformation was

provided.

Sections 404.633(c) and 416.351(c) explain that the provisions for

establishing a ``deemed'' filing date of an application apply only to

cases in which the misinformation was provided to the individual by an

employee of SSA, including an officer of the Agency, while such person

was acting in his or her official capacity as an employee or officer of

the Agency. The regulations also explain that ``misinformation'' is

information which we would consider incorrect, misleading, or

incomplete in view of the facts which the individual gave to the

employee, or of which the employee otherwise was aware or should have

been aware, regarding the claimant's particular circumstances. Under

these regulations, we will consider the information provided to be

incomplete if the employee failed to provide the individual with

appropriate, additional information which he or she is required to

provide in carrying out his or her official duties. The misinformation

may have been provided orally or in writing. However, the

misinformation must have been provided to the individual in response to

his or her request to us for information about applying for benefits,

either for himself or herself or for another person for whom he or she

could sign an application.

We also are amending Secs. 404.614 and 416.325, which explain when

an application for benefits is considered filed, to reflect the

provisions of Secs. 404.633 and 416.351.

Evidence That Misinformation Was Provided

In Secs. 404.633(d) and 416.351(d), we describe the kinds of

evidence we will consider in determining whether misinformation was

provided. We explain that preferred evidence is written evidence that

relates directly to an individual's inquiry about his or her

eligibility for benefits, or about the eligibility of another person on

whose behalf the individual was considering applying for benefits, and

which shows that we gave the individual misinformation which caused him

or her not to file an application for such benefits. Preferred evidence

includes, but is not limited to, the following--

A notice, letter, or other document which was issued by

SSA and addressed to the individual; and

An SSA record of a telephone call, letter or in-person

contact.

In the absence of preferred evidence, we will consider other

evidence which includes, but is not limited to, the following--

The individual's statements about the alleged

misinformation, including statements about the date and time of the

alleged contact(s); how the contact was made, e.g., by telephone or

in person; the reason(s) the contact was made; who gave the

misinformation; and the questions asked by the individual and the

facts the individual gave us, and the questions asked by the SSA

employee and the information the employee gave the individual at the

time of the contact;

Statements from others who were present when the

alleged misinformation was given, e.g., a neighbor who accompanied

the individual to the SSA office;

If the individual can identify the employee or the

employee can recall the individual's inquiry about benefits--

(1) Statements from the employee concerning the alleged contact,

including statements about the questions the individual asked, the

facts the individual gave, the questions the employee asked, and the

information provided to the individual at the time of the alleged

contact; and

(2) An assessment of the likelihood that the SSA employee gave

the alleged misinformation;

An evaluation of the credibility and the validity of

the individual's allegations in conjunction with other relevant

information; and

Any other information regarding the individual's

alleged contact.

We will evaluate the individual's allegations and seek

corroboration; we will resolve reasonable doubt in the individual's

favor if the allegation of misinformation seems credible, is supported

by other evidence, and there is no contradictory evidence.

Information Which Does Not Constitute Satisfactory Proof That

Misinformation Was Given

Sections 404.633(e) and 416.351(e) explain that certain kinds of

information will not constitute satisfactory proof that we gave the

individual misinformation which caused him or her not to file an

application. Examples of such information include--

General informational pamphlets that we issue to

provide basic program information;

The Personal Earnings and Benefit Estimate Statement

that is based on an individual's reported and projected earnings and

is an estimate of Social Security benefits which can be requested at

any time; the estimate is only a projection based on our records and

the individual's estimated future earnings and is not necessarily

associated with an intent to file or an inquiry about eligibility;

The SSI Benefit Estimate Letter that is based on an

individual's reported and projected income and is an estimate which

can be requested at any time; the estimate is only a projection

based on our records and the individual's estimated income and is

not necessarily associated with an intent to file or an inquiry

about eligibility;

General information we review or prepare but which is

disseminated by the media, e.g., radio, television, magazines, and

newspapers; and

Information concerning Social Security and SSI benefits

provided by other governmental agencies, e.g., the Department of

Veterans Affairs, the Department of Defense, State unemployment

agencies, and State and local governments.

Claim for Benefits Based on Alleged Misinformation

Under Secs. 404.633(f) and 416.351(f), an individual at any time

may ask us to consider establishing a deemed filing date on the basis

that misinformation was provided. However, the regulations explain that

we will not make a determination on such a claim for benefits unless

the following conditions are met.

First, a claim for benefits based on an allegation that we provided

misinformation must be made in writing. The written statement must

explain what information was provided; how, when and where it was

provided and by whom; and why the information caused the individual not

to file an application for benefits.

Second, an application for the benefits must be filed by the

claimant or by someone who could file on behalf of the claimant. The

application must be filed after the occurrence of the alleged

misinformation. This application may be--

An application on which we have made a previous final

determination or decision awarding such benefits to the claimant,

provided that the claimant continues to be entitled to Social

Security benefits, or continues to be eligible for SSI benefits (or

again could be eligible for SSI benefits), based on that

application;

An application on which we have made a previous final

determination or decision denying the benefits to the claimant, but

only if such determination or decision is reopened under

Sec. 404.988 or Sec. 416.1488; or

A new application on which we have not made a final

determination or decision.

Third, if the only issue in dispute is whether or not the alleged

misinformation occurred, we will not make an initial determination on a

claim for benefits under Sec. 404.633 or Sec. 416.351 unless the

establishment of a deemed filing date of an application based on the

alleged misinformation would result in the claimant becoming entitled

to, or eligible for, benefits or additional benefits.

Fourth, we will not make an initial determination on a claim for

benefits under Sec. 404.633 or Sec. 416.351 if we have made a previous

determination or decision on a claim for benefits based on the alleged

misinformation which involved the same party(ies), the same facts and

the same issues, and this previous determination or decision has become

final. This rule does not apply, however, if the previous final

determination or decision may be reopened under Sec. 404.988 or

Sec. 416.1488.

We are amending Secs. 404.903 and 416.1403 to explain that if we

decline to make an initial determination on a claim for benefits based

on an allegation of misinformation because one or more of the

conditions specified above are not met, our action is not an initial

determination for purposes of our administrative review process or

judicial review. We also are amending Secs. 404.902 and 416.1402 to

make it clear that if we make a determination on a claim for benefits

based on an allegation of misinformation, the determination is an

initial determination subject to administrative and judicial review

under Sec. 404.900 et seq. or Sec. 416.1400 et seq.

Public Comments

We published proposed rules in the Federal Register on October 16,

1992, 57 FR 47415. We gave interested parties 60 days to submit

comments. We also published an amendment to the proposed rules on

January 22, 1993, 58 FR 5687, and we gave interested parties another 60

days to submit comments on the proposed rules, as amended. We received

comments from four commenters: a public policy research center

concerned with child health care, a State public health agency

employee, and two attorneys who represent claimants and beneficiaries.

One commenter supported the proposed rules without modification.

Another commenter supported the proposed rules but recommended that

another example of a situation involving misinformation be included in

the rules. The other commenters believed that the proposed rules should

be expanded to cover certain other situations in which an individual

failed to file an application for benefits. In addition, while

commending the proposed rules, two of the commenters recommended that

SSA also take steps to ensure that Agency employees provide correct

information to potential applicants when they inquire about eligibility

for benefits. A summary of the comments and our responses to the

comments are provided below.

We considered carefully all of the substantive comments which we

received on the proposed rules. However, for the reasons explained

below, we did not make any changes to the proposed rules other than

certain editorial changes discussed below. Therefore, except for some

editorial changes, these final rules are the same as the proposed

rules.

Comment: One commenter recommended that the proposed rules be

expanded to include an example of a situation in which an individual,

such as a parent, inquires about filing an application on behalf of a

child for SSI benefits based on disability or blindness and is provided

misinformation by SSA about the child's eligibility for benefits which

causes the individual not to file an application for the benefits. This

commenter also stated that often a parent of a child who may be

disabled or blind contacts SSA to inquire about SSI benefits for the

child at the suggestion of a child advocate, case manager or hospital

social worker. The commenter believed that these case workers can serve

as sources to corroborate dates and facts of the contact in cases of

alleged misinformation since parents in these situations usually

recontact the case worker to advise the worker that they were dissuaded

from applying for benefits because of the information which SSA

provided to them about the child's eligibility.

Response: The examples in Sec. 416.351(a) are intended simply to

illustrate situations in which misinformation provided by an SSA

employee concerning a potential claimant's eligibility for SSI benefits

causes an individual not to file an application for the benefits. The

examples are not intended to cover all situations involving alleged

misinformation or all categories of SSI benefits. Existing

Sec. 416.315(b) provides that an application for SSI benefits for a

claimant who is under age 18 may be signed by an individual who is

responsible for the care of the claimant, including a relative, or by

certain other individuals described in that section. In

Sec. 416.351(b)(2)(i) of the final regulations, we explain that if an

individual had authority under Sec. 416.315 to sign an application for

benefits for another person, and we determined that the individual

failed to apply for SSI benefits for that person because we gave the

individual misinformation about that person's eligibility for such

benefits, we will deem an application for the benefits to have been

filed on the date specified in Sec. 416.351(b)(2)(i) (A) or (B), as

appropriate. Section 416.351(b)(2)(i) makes it clear that the rules for

establishing a deemed filing date of an application for benefits based

on misinformation apply to cases in which a parent, or other individual

authorized to sign an application for a child, failed to apply for SSI

benefits for a child because we gave the parent, or such other

individual, misinformation about the child's eligibility for SSI

benefits. Section 404.633(b)(2)(i) of the final regulations provides

similar rules with respect to claims for Social Security benefits. We

do not believe that it is necessary, therefore, to add an example to

the regulations to cover the specific situation in which an individual

failed to apply for benefits on behalf of a child because we gave the

individual misinformation about the child's eligibility for the

benefits.

We agree with the commenter that in some circumstances a child

advocate, case manager or hospital social worker may be able to provide

information regarding an individual's alleged contact with SSA. Under

Secs. 404.633(f) and 416.351(f), an individual who makes a claim for

benefits based on alleged misinformation must furnish information that

will enable us to determine if we did provide misinformation to the

individual about his or her eligibility for benefits, or the

eligibility of a person on whose behalf the individual was considering

applying for benefits, which caused the individual not to file an

application for the benefits. Preferred evidence of such misinformation

is written evidence, such as a letter, which shows that we gave the

individual misinformation which caused the individual not to file an

application. In the absence of preferred evidence, we will consider

other evidence, including the individual's statements about the alleged

misinformation as well as ``[a]ny other information regarding [the

individual's] * * * alleged contact,'' as explained in

Secs. 404.633(d)(2) and 416.351(d)(2). This would include statements

provided by a case worker concerning the individual's alleged contact.

Comment: A commenter expressed the view that the proposed

regulations do not address the situation in which an individual who

might be eligible for Social Security and SSI benefits files an

application for Social Security benefits but does not ask about or

express interest in SSI benefits and does not file an application for

those benefits at that time. The commenter suggested that the proposed

rules be amended to provide for the use of the filing date of the

application for Social Security benefits in such a case to establish

the filing date of an application for SSI benefits.

Response: Existing Secs. 416.345 and 416.350, which are not

affected by these final rules, already address the situation discussed

by the commenter. Section 416.350 provides that when an individual

applies for Social Security benefits, we will explain the requirements

for eligibility for SSI benefits to the individual and give the

individual a chance to file an SSI application if it appears that he or

she might be eligible for SSI benefits as explained in that section. If

the individual does not apply for SSI benefits at that time,

Sec. 416.350 provides that we will treat his or her filing of an

application for Social Security benefits as an oral inquiry about SSI

benefits for purposes of Sec. 416.345. The filing date of the

individual's Social Security application, therefore, may be used to

establish the filing date of an SSI application in accordance with

Sec. 416.345. For these reasons, we did not adopt the change suggested

by the commenter.

Comment: One commenter questioned the requirement of proposed

Secs. 404.633(c)(4) and 416.351(c)(4) that ``[t]he misinformation must

have been provided to you in response to a specific request by you to

us for information about your eligibility for benefits or the

eligibility for benefits of [another] * * * person * * * for which you

were considering filing an application.'' The commenter believed that

this provision, as well as proposed Secs. 404.633(a) and 416.351(a),

would require an individual who requests a deemed filing date of an

application based on misinformation to show that he or she had a

specific intent to claim benefits at the time the alleged

misinformation was provided. The commenter believed that such a

requirement would be inconsistent with section 10302 of OBRA 1989.

It was the commenter's opinion that in enacting this statute,

Congress intended to place an affirmative duty on SSA to develop or

encourage claims that could be filed, at least where a potential

applicant presents material facts to the Agency and an employee makes

an incorrect or incomplete response. Therefore, the commenter believed

that the proposed rules should be revised to permit the establishment

of a deemed filing date of an application where an individual does not

inquire about possible eligibility for benefits but simply presents

information to the Agency that might have alerted an SSA employee to a

potential claim, and, because the employee does not consider and does

not advise the individual of the potential claim, the individual does

not file an application for benefits. As an illustration, the commenter

described a situation in which information showing that a disability

insurance beneficiary had children who were born after the beneficiary

began receiving disability benefits and who, upon the filing of the

required applications, could become entitled to child's insurance

benefits based on the beneficiary's earnings record, was overlooked

during a continuing disability review interview with the beneficiary.

Response: Sections 404.633(c)(4) and 416.351(c)(4) prescribe the

circumstances in which the misinformation must have been provided in

order to have caused the individual not to file an application for

benefits. These sections do not require an individual to show that he

or she had the express intention of filing an application for benefits

at the time he or she was provided the alleged misinformation. Rather,

these sections provide only that the alleged misinformation must have

been provided in a situation in which the individual was considering

applying for benefits and contacted SSA to inquire about his or her

eligibility for benefits or the eligibility of another person for whom

the individual had authority to sign an application. We believe this

requirement, which is also reflected in Secs. 404.633(a) and

416.351(a), is consistent with sections 202(j)(5) and 1631(e)(5) of the

Act, which were added by section 10302 of OBRA 1989.

Sections 202(j)(5) and 1631(e)(5) of the Act do not provide for a

deemed filing date of an application for benefits in the situation

described by the commenter. These sections provide for a deemed filing

date when:

* * * it is determined to the satisfaction of the Secretary that

an individual failed as of any date to apply for [Social Security or

SSI] benefits * * * by reason of misinformation provided to such

individual by any officer or employee of the Social Security

Administration relating to such individual's eligibility for [the

respective] benefits * * *.

To be accorded a deemed filing date under these sections of the Act, an

individual must demonstrate to our satisfaction that his or her failure

to apply for benefits was due to misinformation which was communicated

to that individual by an officer or employee of SSA and which concerned

that individual's eligibility for the benefits. There must be a

satisfactory showing that the failure to apply for benefits was the

direct result of such misinformation. For this purpose, we require in

Secs. 404.633(c)(4) and 416.351(c)(4) that the misinformation must have

been provided to an individual in response to his or her request to us

for information about his or her eligibility for benefits, or the

eligibility for benefits of another person, for which he or she was

considering filing an application.

Comment: While expressing strong support for the proposed rules,

one commenter urged that efforts be made by SSA to ensure that

misinformation is not disseminated from SSA field offices or

teleservice centers. Another commenter who supported the proposed rules

recommended that SSA establish a monitoring process to identify sources

of misinformation and implement strategies to correct any problems that

are found.

Response: We are committed to ensuring that we provide the highest

quality service possible to the public in a courteous, timely and

accurate manner. We already have put into place procedures for

monitoring the service provided to the public and for addressing

problems discovered in the delivery of service by our employees. As

part of this effort, employees are instructed to answer all calls by

identifying their Agency, followed by their full name or a title and

last name for identification purposes. In addition, ongoing training is

conducted, incoming telephone calls are randomly monitored, in-office

interviews are monitored, and quality reviews are conducted. We believe

that these measures to protect the public from being given

misinformation will help to ensure that potential applicants are

provided timely and accurate information.

Changes to the Proposed Rules

In Secs. 404.633(b)(2)(ii) and 416.351(b)(2)(ii) of the final

rules, we are revising the phrase ``Before we may consider

establishing'' which was used in the corresponding sections of the

proposed rules. We are changing the phrase to ``Before we may

establish'' to conform to the wording of Secs. 404.633(b)(1)(ii) and

416.351(b)(1)(ii). This is simply an editorial change to make the

provisions of the final rules consistent. The final rules also reflect

a few other nonsubstantive changes to the proposed rules.

Regulatory Procedures

Executive Order 12866

We have consulted with the Office of Management and Budget (OMB)

and determined that these rules do not meet the criteria for a

significant regulatory action under E.O. 12866. Thus, they were not

subject to OMB review.

Paperwork Reduction Act

These regulations contain information collection requirements in

Secs. 404.633(f) and 416.351(f). We ordinarily would seek approval of

these requirements from OMB under the Paperwork Reduction Act. We are

not doing so in this situation because we already have clearance from

OMB to collect this information using form SSA-795 (OMB No. 0960-0045).

Public reporting burden for this collection of information is

estimated to average 15 minutes per response. This includes the time it

will take to read the instructions, gather the necessary facts, and

provide the information. We expect approximately 1,000 claimants or

applicants to complete form SSA-795 annually, and estimate the total

burden to be 250 hours. If you have any comments or suggestions on this

estimate, write to the Social Security Administration, Attn: Reports

Clearance Officer, 1-A-21 Operations Building, Baltimore, MD 21235, and

to the Office of Management and Budget, Paperwork Reduction Project

(0960-0045), Washington, DC 20503.

Regulatory Flexibility Act

We certify that these regulations will not have a significant

economic impact on a substantial number of small entities because they

affect only individuals. Therefore, a regulatory flexibility analysis

as provided in Pub. L. 96-354, the Regulatory Flexibility Act, is not

required.

(Catalog of Federal Domestic Assistance Program Nos. 93.802, Social

Security-Disability Insurance; 93.803, Social Security-Retirement

Insurance; 93.805, Social Security-Survivors Insurance; 93.807,

Supplemental Security Income).

List of Subjects

20 CFR Part 404

Administrative Practice and Procedure, Death benefits, Disability

benefits, Old-Age, Survivors and Disability Insurance, Reporting and

recordkeeping requirements.

20 CFR Part 416

Administrative Practice and Procedure, Aged, Blind, Disability

benefits, Public assistance programs, Reporting and recordkeeping

requirements, Supplemental Security Income (SSI).

Dated: June 28, 1994.

Shirley S. Chater,

Commissioner of Social Security.

Approved: August 11, 1994.

Donna E. Shalala,

Secretary of Health and Human Services.

For the reasons set out in the preamble, Parts 404 and 416 of

Chapter III of Title 20 of the Code of Federal Regulations are amended

as set forth below.

PART 404--FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE

(1950- )

20 CFR Part 404, Subparts G and J are amended as follows:

1. The authority citation for Subpart G continues to read as

follows:

Authority: Secs. 202(i), (j), (o), (p), and (r), 205(a),

216(i)(2), 223(b), 228(a), and 1102 of the Social Security Act; 42

U.S.C. 402(i), (j), (o), (p), and (r), 405(a), 416(i)(2), 423(b),

428(a), and 1302.

2. Section 404.612 is amended by redesignating paragraph (g) as

paragraph (h) and by adding a new paragraph (g) to read as follows:

Sec. 404.612 Who may sign an application.

* * * * *

(g) If a person who could receive benefits on the basis of a

``deemed'' filing date of an application under Sec. 404.633(b)(1)(i) or

(b)(2)(i) dies before an application for the benefits is filed, the

application may be signed by a person who would be qualified to receive

any benefits due the deceased person as explained in

Sec. 404.633(b)(1)(ii) and (b)(2)(ii).

* * * * *

3. Section 404.614 is amended by revising paragraph (a) to read as

follows:

Sec. 404.614 When an application or other form is considered filed.

(a) General rule. Except as otherwise provided in paragraph (b) of

this section and in Secs. 404.630 through 404.633 which relate to the

filing date of an application, an application for benefits, or a

written statement, request, or notice is filed on the day it is

received by an SSA employee at one of our offices or by an SSA employee

who is authorized to receive it at a place other than one of our

offices.

* * * * *

4. Section 404.615 is amended by adding paragraph (d) to read as

follows:

Sec. 404.615 Claimant must be alive when an application is filed.

* * * * *

(d) If a person who could receive benefits on the basis of a

``deemed'' filing date of an application under Sec. 404.633(b)(1)(i) or

(b)(2)(i) dies before an application for the benefits is filed, the

application may be signed by a person who would be qualified to receive

any benefits due the deceased person as explained in

Sec. 404.633(b)(1)(ii) and (b)(2)(ii).

5. A new undesignated heading and a new Sec. 404.633 are added to

read as follows:

Deemed Filing Date Based on Misinformation

Sec. 404.633 Deemed filing date in a case of misinformation.

(a) General. You may have considered applying for monthly benefits

for yourself or for another person, and you may have contacted us in

writing, by telephone or in person to inquire about filing an

application for these benefits. It is possible that in responding to

your inquiry, we may have given you misinformation about your

eligibility for such benefits, or the eligibility of the person on

whose behalf you were considering applying for benefits, which caused

you not to file an application at that time. If this happened, and

later an application for such benefits is filed with us, we may

establish an earlier filing date under this section.

Example 1: Mrs. Smith, a widow of an insured individual, contacts a

Social Security office when she reaches age 60 to inquire about

applying for widow's insurance benefits. She is told by an SSA employee

that she must be age 62 to be eligible for these benefits. This

information, which was incorrect, causes Mrs. Smith not to file an

application for benefits. When Mrs. Smith reaches age 62, she again

contacts a Social Security office to ask about filing for widow's

insurance benefits and learns that she could have received the benefits

at age 60. She files an application for these benefits, provides the

information required under paragraph (f) of this section to show that

an SSA employee provided misinformation, and requests a deemed filing

date based on the misinformation which she received from an SSA

employee when she was age 60.

Example 2: Ms. Hill, a 22-year-old, is forced to stop work because

of illness. When she contacts a Social Security office to inquire about

applying for disability insurance benefits, she is told by an SSA

employee that she must have 20 quarters of coverage out of the last 40

calendar quarters to be insured for disability insurance benefits. The

employee fails to consider the special rules for insured status for

persons who become disabled before age 31 and, consequently, tells Ms.

Hill that she is not insured because she only has 16 quarters of

coverage. The misinformation causes Ms. Hill not to file an application

for disability insurance benefits. Because of her illness, she is

unable to return to work. A year later, Ms. Hill reads an article that

indicates that there are special rules for insured status for young

workers who become disabled. She again contacts a Social Security

office to inquire about benefits based on disability and learns that

she was misinformed earlier about her insured status. She files an

application for disability insurance benefits, provides the information

required under paragraph (f) of this section to show that an SSA

employee provided misinformation, and requests a deemed filing date

based on the misinformation provided to her earlier.

(b) Deemed filing date of an application based on misinformation.

Subject to the requirements and conditions in paragraphs (c) through

(g) of this section, we may establish a deemed filing date of an

application for monthly benefits under the following provisions.

(1)(i) If we determine that you failed to apply for monthly

benefits for yourself because we gave you misinformation about your

eligibility for such benefits, we will deem an application for such

benefits to have been filed with us on the later of--

(A) The date on which the misinformation was provided to you; or

(B) The date on which you met all of the requirements for

entitlement to such benefits, other than the requirement of filing an

application.

(ii) Before we may establish a deemed filing date of an application

for benefits for you under paragraph (b)(1)(i) of this section, you or

a person described in Sec. 404.612 must file an application for such

benefits. If you die before an application for the benefits is filed

with us, we will consider establishing a deemed filing date of an

application for such benefits only if an application for the benefits

is filed with us by a person who would be qualified to receive any

benefits due you.

(2)(i) If you had authority under Sec. 404.612 to sign an

application for benefits for another person, and we determine that you

failed to apply for monthly benefits for that person because we gave

you misinformation about that person's eligibility for such benefits,

we will deem an application for such benefits to have been filed with

us on the later of--

(A) The date on which the misinformation was provided to you; or

(B) The date on which the person met all of the requirements for

entitlement to such benefits, other than the requirement of filing an

application.

(ii) Before we may establish a deemed filing date of an application

for benefits for the person under paragraph (b)(2)(i) of this section,

you, such person, or another person described in Sec. 404.612 must file

an application for such benefits. If the person referred to in

paragraph (b)(2)(i) of this section dies before an application for the

benefits is filed with us, we will consider establishing a deemed

filing date of an application for such benefits only if an application

for the benefits is filed with us by a person who would be qualified to

receive any benefits due the deceased person.

(c) Requirements concerning the misinformation. We apply the

following requirements for purposes of paragraph (b) of this section.

(1) The misinformation must have been provided to you by one of our

employees while he or she was acting in his or her official capacity as

our employee. For purposes of this section, an employee includes an

officer of SSA.

(2) Misinformation is information which we consider to be

incorrect, misleading, or incomplete in view of the facts which you

gave to the employee, or of which the employee was aware or should have

been aware, regarding your particular circumstances, or the particular

circumstances of the person referred to in paragraph (b)(2)(i) of this

section. In addition, for us to find that the information you received

was incomplete, the employee must have failed to provide you with the

appropriate, additional information which he or she would be required

to provide in carrying out his or her official duties.

(3) The misinformation may have been provided to you orally or in

writing.

(4) The misinformation must have been provided to you in response

to a specific request by you to us for information about your

eligibility for benefits or the eligibility for benefits of the person

referred to in paragraph (b)(2)(i) of this section for which you were

considering filing an application.

(d) Evidence that misinformation was provided. We will consider the

following evidence in making a determination under paragraph (b) of

this section.

(1) Preferred evidence. Preferred evidence is written evidence

which relates directly to your inquiry about your eligibility for

benefits or the eligibility of another person and which shows that we

gave you misinformation which caused you not to file an application.

Preferred evidence includes, but is not limited to, the following--

(i) A notice, letter or other document which was issued by us and

addressed to you; or

(ii) Our record of your telephone call, letter or in-person

contact.

(2) Other evidence. In the absence of preferred evidence, we will

consider other evidence, including your statements about the alleged

misinformation, to determine whether we gave you misinformation which

caused you not to file an application. We will not find that we gave

you misinformation, however, based solely on your statements. Other

evidence which you provide or which we obtain must support your

statements. Evidence which we will consider includes, but is not

limited to, the following--

(i) Your statements about the alleged misinformation, including

statements about--

(A) The date and time of the alleged contact(s);

(B) How the contact was made, e.g., by telephone or in person;

(C) The reason(s) the contact was made;

(D) Who gave the misinformation; and

(E) The questions you asked and the facts you gave us, and the

questions we asked and the information we gave you, at the time of the

contact;

(ii) Statements from others who were present when you were given

the alleged misinformation, e.g., a neighbor who accompanied you to our

office;

(iii) If you can identify the employee or the employee can recall

your inquiry about benefits--

(A) Statements from the employee concerning the alleged contact,

including statements about the questions you asked, the facts you gave,

the questions the employee asked, and the information provided to you

at the time of the alleged contact; and

(B) Our assessment of the likelihood that the employee provided the

alleged misinformation;

(iv) An evaluation of the credibility and the validity of your

allegations in conjunction with other relevant information; and

(v) Any other information regarding your alleged contact.

(e) Information which does not constitute satisfactory proof that

misinformation was given. Certain kinds of information will not be

considered satisfactory proof that we gave you misinformation which

caused you not to file an application. Examples of such information

include--

(1) General informational pamphlets that we issue to provide basic

program information;

(2) The Personal Earnings and Benefit Estimate Statement that is

based on an individual's reported and projected earnings and is an

estimate which can be requested at any time;

(3) General information which we review or prepare but which is

disseminated by the media, e.g., radio, television, magazines, and

newspapers; and

(4) Information provided by other governmental agencies, e.g., the

Department of Veterans Affairs, the Department of Defense, State

unemployment agencies, and State and local governments.

(f) Claim for benefits based on misinformation. You may make a

claim for benefits based on misinformation at any time. Your claim must

contain information that will enable us to determine if we did provide

misinformation to you about your eligibility for benefits, or the

eligibility of a person on whose behalf you were considering applying

for benefits, which caused you not to file an application for the

benefits. Specifically, your claim must be in writing and it must

explain what information was provided; how, when and where it was

provided and by whom; and why the information caused you not to file an

application. If you give us this information, we will make a

determination on such a claim for benefits if all of the following

conditions are also met.

(1) An application for the benefits described in paragraph

(b)(1)(i) or (b)(2)(i) of this section is filed with us by someone

described in paragraph (b)(1)(ii) or (b)(2)(ii) of this section, as

appropriate. The application must be filed after the alleged

misinformation was provided. This application may be--

(i) An application on which we have made a previous final

determination or decision awarding the benefits, but only if the

claimant continues to be entitled to benefits based on that

application;

(ii) An application on which we have made a previous final

determination or decision denying the benefits, but only if such

determination or decision is reopened under Sec. 404.988; or

(iii) A new application on which we have not made a final

determination or decision.

(2) The establishment of a deemed filing date of an application for

benefits based on misinformation could result in the claimant becoming

entitled to benefits or to additional benefits.

(3) We have not made a previous final determination or decision to

which you were a party on a claim for benefits based on alleged

misinformation involving the same facts and issues. This provision does

not apply, however, if the final determination or decision may be

reopened under Sec. 404.988.

(g) Effective date. This section applies only to misinformation

which we provided after December 1982. In addition, this section is

effective only for benefits payable for months after December 1982.

6. The authority citation for Subpart J is revised to read as

follows:

Authority: Secs. 201(j), 205 (a), (b), (d)-(h), and (j), 221(d),

and 1102 of the Social Security Act; 31 U.S.C. 3720A; 42 U.S.C.

401(j), 405 (a), (b), (d)-(h), and (j), 421(d), and 1302.

7. Section 404.902 is amended by removing ``and'' following the

semicolon at the end of paragraph (t), by inserting a semicolon in

place of the period at the end of paragraph (u) and adding ``and''

following such semicolon, and by adding a new paragraph (v) to read as

follows:

Sec. 404.902 Administrative actions that are initial determinations.

* * * * *

(v) A claim for benefits under Sec. 404.633 based on alleged

misinformation.

8. Section 404.903 is amended by removing ``and'' following the

semicolon at the end of paragraph (l), by inserting semicolons in place

of the periods at the end of paragraphs (m), (n), (o), (p) and (q), by

adding ``and'' following such semicolon at the end of paragraph (q), by

inserting ``procedure (see'' in place of ``procedure. (See'' in

paragraph (p), by inserting ``payee (see'' in place of ``payee. (See''

in paragraph (q), and by adding a new paragraph (r) to read as follows:

Sec. 404.903 Administrative actions that are not initial

determinations.

* * * * *

(r) Declining under Sec. 404.633(f) to make a determination on a

claim for benefits based on alleged misinformation because one or more

of the conditions specified in Sec. 404.633(f) are not met.

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

DISABLED

20 CFR Part 416, Subparts C and N are amended as follows:

1. The authority citation for Subpart C of Part 416 continues to

read as follows:

Authority: Secs. 1102, 1611, and 1631 (a), (d), and (e) of the

Social Security Act; 42 U.S.C. 1302, 1382, and 1383 (a), (d), and

(e).

2. Section 416.310 is amended by revising paragraph (d) to read as

follows:

Sec. 416.310 What makes an application a claim for benefits.

* * * * *

(d) The claimant must be alive at the time the application is

filed. See Secs. 416.340, 416.345, and 416.351 for exceptions.

3. Section 416.325 is amended by adding a new paragraph (b)(3) to

read as follows:

Sec. 416.325 When an application is considered filed.

* * * * *

(b) * * *

(3) We will establish a ``deemed'' filing date of an application in

a case of misinformation under the conditions described in

Sec. 416.351. The filing date of the application will be a date

determined under Sec. 416.351(b).

4. A new undesignated heading and a new Sec. 416.351 are added to

read as follows:

Deemed Filing Date Based on Misinformation

Sec. 416.351 Deemed filing date in a case of misinformation.

(a) General. You may have considered applying for SSI benefits for

yourself or for another person, and you may have contacted us in

writing, by telephone or in person to inquire about filing an

application for these benefits. It is possible that in responding to

your inquiry, we may have given you misinformation about your

eligibility for such benefits, or the eligibility of the person on

whose behalf you were considering applying for benefits, which caused

you not to file an application at that time. If this happened, and

later an application for such benefits is filed with us, we may

establish an earlier filing date under this section.

Example 1: Ms. Jones calls a Social Security office to inquire

about filing an application for SSI benefits. During her conversation

with an SSA employee, she tells the employee about her resources. The

SSA employee tells Ms. Jones that because her countable resources are

above the allowable limit, she would be ineligible for SSI benefits.

The employee fails to consider certain resource exclusions under the

SSI program which would have reduced Ms. Jones' countable resources

below the allowable limit, making her eligible for benefits. Because

Ms. Jones thought that she would be ineligible, she decides not to file

an application for SSI benefits. Ms. Jones later reads about resource

exclusions under the SSI program. She recontacts the Social Security

office to file an SSI application, and alleges that she had been

previously misinformed about her eligibility for SSI benefits. She

files an application for SSI benefits, provides the information

required under paragraph (f) of this section to show that an SSA

employee provided misinformation, and requests a deemed filing date

based upon her receipt of misinformation.

Example 2: Mr. Adams resides in a State which provides State

supplementary payments that are administered by SSA under the SSI

program. He telephones a Social Security office and tells an SSA

employee that he does not have enough income to live on and wants to

file for SSI benefits. Mr. Adams states that his only income is his

monthly Social Security benefit check. The SSA employee checks Mr.

Adams' Social Security record and advises him that he is ineligible for

SSI benefits based on the amount of his monthly Social Security

benefit. The employee does not consider whether Mr. Adams would be

eligible for State supplementary payments. Because Mr. Adams was told

that he would not be eligible for benefits under the SSI program, he

does not file an application. The employee does not make a record of

Mr. Adams' oral inquiry or take any other action. A year later, Mr.

Adams speaks to a neighbor who receives the same Social Security

benefit amount that Mr. Adams does, but also receives payments under

the SSI program. Thinking the law may have changed, Mr. Adams

recontacts a Social Security office and learns from an SSA employee

that he would be eligible for State supplementary payments under the

SSI program and that he could have received these payments earlier had

he filed an application. Mr. Adams explains that he did not file an

application earlier because he was told by an SSA employee that he was

not eligible for SSI benefits. Mr. Adams files an application for the

benefits, provides the information required under paragraph (f) of this

section to show that an SSA employee provided misinformation, and

requests a deemed filing date based on the misinformation provided to

him earlier.

(b) Deemed filing date of an application based on misinformation.

Subject to the requirements and conditions in paragraphs (c) through

(g) of this section, we may establish a deemed filing date of an

application for SSI benefits under the following provisions.

(1)(i) If we determine that you failed to apply for SSI benefits

for yourself because we gave you misinformation about your eligibility

for such benefits, we will deem an application for such benefits to

have been filed with us on the later of--

(A) The date on which the misinformation was provided to you; or

(B) The date on which you met all of the requirements for

eligibility for such benefits, other than the requirement of filing an

application.

(ii) Before we may establish a deemed filing date of an application

for benefits for you under paragraph (b)(1)(i) of this section, you or

a person described in Sec. 416.315 must file an application for such

benefits. If you die before an application for the benefits is filed

with us, we will consider establishing a deemed filing date of an

application for such benefits only if a person who would be qualified

under Sec. 416.542(b) to receive any benefits due you, or someone on

his or her behalf, files an application for the benefits.

(2)(i) If you had authority under Sec. 416.315 to sign an

application for benefits for another person, and we determine that you

failed to apply for SSI benefits for that person because we gave you

misinformation about that person's eligibility for such benefits, we

will deem an application for such benefits to have been filed with us

on the later of--

(A) The date on which the misinformation was provided to you; or

(B) The date on which the person met all of the requirements for

eligibility for such benefits, other than the requirement of filing an

application.

(ii) Before we may establish a deemed filing date of an application

for benefits for the person under paragraph (b)(2)(i) of this section,

you, such person, or another person described in Sec. 416.315 must file

an application for such benefits. If the person referred to in

paragraph (b)(2)(i) of this section dies before an application for the

benefits is filed with us, we will consider establishing a deemed

filing date of an application for such benefits only if a person who

would be qualified under Sec. 416.542(b) to receive any benefits due

the deceased person, or someone on his behalf, files an application for

the benefits.

(c) Requirements concerning the misinformation. We apply the

following requirements for purposes of paragraph (b) of this section.

(1) The misinformation must have been provided to you by one of our

employees while he or she was acting in his or her official capacity as

our employee. For purposes of this section, an employee includes an

officer of SSA.

(2) Misinformation is information which we consider to be

incorrect, misleading, or incomplete in view of the facts which you

gave to the employee, or of which the employee was aware or should have

been aware, regarding your particular circumstances, or the particular

circumstances of the person referred to in paragraph (b)(2)(i) of this

section. In addition, for us to find that the information you received

was incomplete, the employee must have failed to provide you with the

appropriate, additional information which he or she would be required

to provide in carrying out his or her official duties.

(3) The misinformation may have been provided to you orally or in

writing.

(4) The misinformation must have been provided to you in response

to a specific request by you to us for information about your

eligibility for benefits or the eligibility for benefits of the person

referred to in paragraph (b)(2)(i) of this section for which you were

considering filing an application.

(d) Evidence that misinformation was provided. We will consider the

following evidence in making a determination under paragraph (b) of

this section.

(1) Preferred evidence. Preferred evidence is written evidence

which relates directly to your inquiry about your eligibility for

benefits or the eligibility of another person and which shows that we

gave you misinformation which caused you not to file an application.

Preferred evidence includes, but is not limited to, the following--

(i) A notice, letter, or other document which was issued by us and

addressed to you; or

(ii) Our record of your telephone call, letter, or in-person

contact.

(2) Other evidence. In the absence of preferred evidence, we will

consider other evidence, including your statements about the alleged

misinformation, to determine whether we gave you misinformation which

caused you not to file an application. We will not find that we gave

you misinformation, however, based solely on your statements. Other

evidence which you provide or which we obtain must support your

statements. Evidence which we will consider includes, but is not

limited to, the following--

(i) Your statements about the alleged misinformation, including

statements about--

(A) The date and time of the alleged contact(s);

(B) How the contact was made, e.g., by telephone or in person;

(C) The reason(s) the contact was made;

(D) Who gave the misinformation; and

(E) The questions you asked and the facts you gave us, and the

questions we asked and the information we gave you at the time of the

contact;

(ii) Statements from others who were present when you were given

the alleged misinformation, e.g., a neighbor who accompanied you to our

office;

(iii) If you can identify the employee or the employee can recall

your inquiry about benefits--

(A) Statements from the employee concerning the alleged contact,

including statements about the questions you asked, the facts you gave,

the questions the employee asked, and the information provided to you

at the time of the alleged contact; and

(B) Our assessment of the likelihood that the employee provided the

alleged misinformation;

(iv) An evaluation of the credibility and the validity of your

allegations in conjunction with other relevant information; and

(v) Any other information regarding your alleged contact.

(e) Information which does not constitute satisfactory proof that

misinformation was given. Certain kinds of information will not be

considered satisfactory proof that we gave you misinformation which

caused you not to file an application. Examples of such information

include--

(1) General informational pamphlets that we issue to provide basic

program information;

(2) The SSI Benefit Estimate Letter that is based on an

individual's reported and projected income and is an estimate which can

be requested at any time;

(3) General information which we review or prepare but which is

disseminated by the media, e.g., radio, television, magazines, and

newspapers; and

(4) Information provided by other governmental agencies, e.g., the

Department of Veterans Affairs, the Department of Defense, State

unemployment agencies, and State and local governments.

(f) Claim for benefits based on misinformation. You may make a

claim for benefits based on misinformation at any time. Your claim must

contain information that will enable us to determine if we did provide

misinformation to you about your eligibility for SSI benefits, or the

eligibility of a person on whose behalf you were considering applying

for benefits, which caused you not to file an application for the

benefits. Specifically, your claim must be in writing and it must

explain what information was provided; how, when, and where it was

provided and by whom; and why the information caused you not to file an

application. If you give us this information, we will make a

determination on such a claim for benefits if all of the following

conditions are also met.

(1) An application for the benefits described in paragraph

(b)(1)(i) or (b)(2)(i) of this section is filed with us by someone

described in paragraph (b)(1)(ii) or (b)(2)(ii) of this section, as

appropriate. The application must be filed after the alleged

misinformation was provided. This application may be--

(i) An application on which we have made a previous final

determination or decision awarding the benefits, but only if the

claimant continues to be eligible for benefits (or again could be

eligible for benefits) based on that application;

(ii) An application on which we have made a previous final

determination or decision denying the benefits, but only if such

determination or decision is reopened under Sec. 416.1488; or

(iii) A new application on which we have not made a final

determination or decision.

(2) The establishment of a deemed filing date of an application for

benefits based on misinformation could result in the claimant becoming

eligible for benefits or for additional benefits.

(3) We have not made a previous final determination or decision to

which you were a party on a claim for benefits based on alleged

misinformation involving the same facts and issues. This provision does

not apply, however, if the final determination or decision may be

reopened under Sec. 416.1488.

(g) Effective date. This section applies only to misinformation

which we provided on or after December 19, 1989. In addition, this

section is effective only for benefits payable for months after

December 1989.

5. The authority citation for Subpart N continues to read as

follows:

Authority: Secs. 1102, 1631, and 1633 of the Social Security

Act; 42 U.S.C. 1302, 1383, and 1383b.

6. Section 416.1402 is amended by removing ``and'' following the

semicolon at the end of paragraph (k), by inserting a semicolon in

place of the period at the end of paragraph (l) and adding ``and''

following such semicolon, and by adding a new paragraph (m) to read as

follows:

Sec. 416.1402 Administrative actions that are initial determinations.

* * * * *

(m) A claim for benefits under Sec. 416.351 based on alleged

misinformation.

7. Section 416.1403 is amended by removing ``and'' following the

semicolon at the end of paragraph (a)(7), by inserting semicolons in

place of the periods at the end of paragraphs (a)(2), (a)(8), (a)(9),

(a)(10) and (a)(11), by adding ``and'' following such semicolon at the

end of paragraph (a)(11), by inserting ``payee (see'' in place of

``payee. (See'' in paragraph (a)(11), and by adding a new paragraph

(a)(12) to read as follows:

Sec. 416.1403 Administrative actions that are not initial

determinations.

(a) * * *

(12) Declining under Sec. 416.351(f) to make a determination on a

claim for benefits based on alleged misinformation because one or more

of the conditions specified in Sec. 416.351(f) are not met;

* * * * *

[FR Doc. 94-20519 Filed 8-30-94; 8:45 am]

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