Federal Old-Age, Survivors, and Disability Insurance and Supplemental Security Income for the Aged, Blind, and Disabled; Limitation of Travel Expenses for Representation of Claimants at Administrative Proceedings

Federal RegisterFeb 23, 1994

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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Social Security Administration

20 CFR Parts 404 and 416

RIN 0960-AD46

Federal Old-Age, Survivors, and Disability Insurance and

Supplemental Security Income for the Aged, Blind, and Disabled;

Limitation of Travel Expenses for Representation of Claimants at

Administrative Proceedings

AGENCY: Social Security Administration, HHS.

ACTION: Final rules.

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SUMMARY: We are amending our regulations concerning payment of certain

travel expenses to implement section 5106(c) of the Omnibus Budget

Reconciliation Act of 1990 (OBRA 1990). Section 5106(c) amends certain

sections of the Social Security Act (the Act) to limit the amount

available for payment under those sections for travel expenses of

individuals who represent claimants at certain administrative

proceedings.

EFFECTIVE DATE: These final rules are effective February 23, 1994.

FOR FURTHER INFORMATION CONTACT: Philip Berge, Legal Assistant, 3-B-1

Operations Building, 6401 Security Boulevard, Baltimore, MD 21235,

(410) 965-1769.

SUPPLEMENTARY INFORMATION: We published proposed rules to implement

section 5106(c) of OBRA 1990, Public Law 101-508, in a Notice of

Proposed Rulemaking in the Federal Register on January 19, 1993 (58 FR

4950). We provided interested individuals and organizations 60 days

within which to submit comments on the proposed rules. The comment

period closed March 22, 1993. We did not receive any comments on the

proposed rules. Therefore, except for a technical correction discussed

below and some editorial changes, these final rules are the same as the

proposed rules.

These final rules amend our regulations on the payment of travel

expenses of individuals who represent claimants at certain

administrative proceedings to implement the amendments to sections

201(j), 1631(h) and 1817(i) of the Act made by section 5106(c) of OBRA

1990. In general, sections 201(j), 1631(h) and 1817(i) of the Act

provide authority to reimburse certain persons for certain travel

expenses which they incur in connection with the Social Security,

Supplemental Security Income (SSI) or Medicare program under titles II,

XVI and XVIII of the Act, respectively. Among other things, these

sections of the Act authorize the payment of certain travel expenses to

a claimant's representative for travel to attend a reconsideration

interview or a proceeding before an administrative law judge (ALJ).

Section 5106(c) of OBRA 1990 amends sections 201(j), 1631(h) and

1817(i) of the Act to limit the amount available for payment under

these sections of the Act for travel by a representative to attend an

administrative proceeding before an ALJ or other adjudicator. The

amendments under section 5106(c) specify that the amount available for

such payment shall not exceed the maximum amount allowable under these

sections of the Act for a representative's travel originating within

the geographic area of the office having jurisdiction over the

proceeding. The Conference Committee Report on OBRA 1990 states that

under the amendments the reimbursement for travel by a representative

``could not exceed the maximum amount that would be payable for travel

to the site of the reconsideration interview or proceeding before an

ALJ from a point within the geographical area served by the office

having jurisdiction over the interview or proceeding.'' H.R. Rep. No.

964, 101st Cong., 2d Sess. 934 (1990).

The final regulations amend our regulations relating to the payment

of travel expenses of a claimant's representative for travel to attend

a disability hearing or hearing before an ALJ under the Social Security

or SSI programs to implement the amendments made by section 5106(c) of

OBRA 1990. The title II regulations on travel reimbursement, like the

rules in subpart J of 20 CFR part 404 generally, are made applicable to

certain proceedings under the Medicare program pursuant to 42 CFR

405.701(c). Therefore, the changes to the title II regulations on

travel reimbursement also affect reimbursement of travel expenses of a

representative in connection with those Medicare proceedings under the

Medicare program and, thus, implement the amendment to section 1817(i)

of the Act made by section 5106(c) of OBRA 1990.

Our existing regulations on the payment of certain travel expenses,

Secs. 404.999a et seq. and Secs. 416.1495 et seq., implement the

pertinent provisions of the Act regarding travel reimbursement that

were in effect prior to April 1, 1991, the effective date of section

5106(c) of OBRA 1990. With respect to travel expenses incurred prior to

that date, we reimbursed a representative for allowable expenses for

travel to a disability hearing or ALJ hearing site from the

representative's residence or office (depending upon whether the

representative's travel originated from his or her residence or from

the office) regardless of its geographic location. Based on travel

distance between the hearing site and the representative's travel

origination point (residence or office) and subject to the limitations

in Secs. 404.999c(d) and 416.1498(d), we determined the amount

allowable for reimbursement for the ordinary expenses of transportation

(Secs. 404.999c(a) and 416.1498(a)) and for unusual travel costs

(Secs. 404.999c(b) and 416.1498(b)) pursuant to the applicable rules

governing rates and conditions of payment (Secs. 404.999c(c) and

416.1498(c)).

Effective with travel expenses incurred by a representative on or

after April 1, 1991, however, section 5106(c) of OBRA 1990 provides

that the amount of reimbursement for such expenses shall not exceed the

allowable amount that we could reimburse the representative for travel

originating within the geographic area of the office having

jurisdiction over the proceeding. Accordingly, the final regulations

amend our regulations to provide that the amount available to reimburse

a representative for travel to attend a disability hearing or a hearing

before an ALJ shall not exceed the maximum amount allowable for travel

to the hearing site from any point within the geographic area of the

office having jurisdiction over the hearing.

The final rules explain that the geographic area of the office

having jurisdiction over the hearing means, as appropriate--

--The designated georgraphic service area of the State agency

adjudicatory unit having responsibility for providing the disability

hearing;

--If a Federal disability hearing officer holds the disability hearing,

the geographic area of the State in which the claimant resides or, if

the claimant is not a resident of a State, in which the hearing officer

holds the disability hearing; or

--The designated geographic service area of the Office of Hearings and

Appeals hearing office having responsibility for providing the hearing

before an ALJ.

In cases in which a Federal disability hearing officer holds the

disability hearing, the hearing officer travels to the State in which

the claimant resides to hold the hearing. In those infrequent cases in

which the claimant is not a resident of a State, the Federal disability

hearing officer holds the disability hearing in a location in a State

that is convenient for the claimant and the hearing officer. With

respect to these cases, the final regulations define the geographic

area of the office having jurisdiction over the hearing to mean the

geographic area of the State in which the claimant resides or, if the

claimant is not a resident of a State, in which the hearing officer

holds the disability hearing. This definition is consistent with the

congressional intent underlying section 5106(c) of OBRA 1990 in that it

treats the claimant and his or her representative in the same manner as

if a State agency hearing officer held the disability hearing. In the

final title II regulations relating to cases in which a Federal

disability hearing officer holds the disability hearing, the term

``State'' has the meaning assigned to it in current Sec. 404.2(c)(5),

except that the term also includes the Northern Mariana Islands. In the

final title XVI regulations relating to such cases, the term ``State''

means a State as defined in current Sec. 416.120(c)(9). This definition

of ``State'' in the final title XVI regulations

Sec. 416.1498(d)(3)(i)(B), was omitted from the text of the proposed

rules, although it was discussed in the preamble to those rules (58 FR

4950, 4951). Its inclusion in the final rules represents a technical

correction.

We are basing the maximum amount allowable on the distance to the

hearing site from the farthest point within the appropriate geographic

area. We will determine the maximum amount allowable for travel between

these two points under the existing regulations, i.e., subject to the

existing limitations in paragraph (d)(1) and paragraph (d)(3) (herein

to be redesignated as paragraph (d)(4)) of Secs. 404.999c and 416.1498

(relating to travel within the United States and a claimant's request

for a change to a more distant hearing site) and pursuant to the

applicable rules governing rates and conditions of payment under

paragraphs (a) through (c) of Secs. 404.999c and 416.1498. Under our

existing regulations, we will not reimburse a representative's travel

expenses unless the distance he or she travels, i.e., the distance to

the hearing site from the representative's residence or office

(whichever he or she travels from), exceeds 75 miles

(Secs. 404.999c(d)(2) and 416.1498(d)(2)). The final regulations

provide a similar limitation. Under the final rules, we will use the

point within the appropriate geographic area that is the farthest point

from the hearing site as the representative's travel origination point

(equivalent to residence or office under the existing regulations) for

purposes of determining the maximum amount allowable for reimbursement.

The final rules provide that if the distance to the hearing site from

the farthest point within the appropriate geographic area does not

exceed 75 miles, we will not reimburse a representative for any travel

expenses. This is consistent with the 75-mile rule in the current

regulations.

Under the final regulations, actual reimbursement for a

representative's travel expenses is limited to the lesser of: (1)

Actual travel expenses incurred and allowable under the regulations

(whether travel actually originates within the designated geographic

area or outside that area); or (2) the maximum amount allowable for

travel to the hearing site from the farthest point within the

geographic area of the office having jurisdiction over the hearing.

In practice, the final rules will not affect reimbursement of

travel expenses of a representative whose travel originates within the

geographic area of the office having jurisdiction over the hearing.

This is because the expenses incurred and allowable under the

regulations for such travel would be less than, or equal to, the

maximum amount allowable for travel to the hearing site from the

farthest point within the appropriate geographic area.

We are amending Secs. 404.999c and 416.1498 by redesignating

paragraph (d)(3) as (d)(4) and adding a new paragraph (d)(3) to state

and define the limit on the amount of reimbursement for a

representative's travel expenses mandated by section 5106(c) of OBRA

1990. The final regulations state that the amount of reimbursement for

travel expenses for a representative shall not exceed the maximum

amount allowable for travel to the hearing site from any point within

the geographic area of the office having jurisdiction over the hearing;

define the geographic area of the office having jurisdiction over the

hearing; and explain how we determine the maximum amount allowable for

travel by a representative based on the distance to the hearing site

from the farthest point within the appropriate geographic area.

We also are amending Secs. 404.999c(c) and 416.1498(c) to change

the reference from 41 CFR Part 101-7 to 41 CFR chapter 301, where the

Federal Travel Regulations are now codified.

Regulatory Procedures

Regulatory Flexibility Act

We certify that these regulations will not have a significant

economic impact on a substantial number of small entities because these

rules will affect only individuals. Therefore, a regulatory flexibility

analysis as provided in Pub. L. 96-354, the Regulatory Flexibility Act,

is not required.

Paperwork Reduction Act

These regulations impose no new reporting or recordkeeping

requirements requiring Office of Management and Budget clearance.

(Catalog of Federal Domestic Assistance Program Nos. 93.773 and

93.774, Medicare; 93.802-93.805, Social Security; and 93.807,

Supplemental Security Income.)

List of Subjects

20 CFR Part 404

Administrative practice and procedure, Aged, Blind, Death benefits,

Disability benefits, Insurance, 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, Supplemental Security Income

(SSI), Reporting and recordkeeping requirements.

Dated: November 19, 1993.

Shirley Chater,

Commissioner of Social Security.

Approved: February 8, 1994.

Donna E. Shalala,

Secretary of Health and Human Services.

For the reasons set out in the preamble, subpart J of part 404 and

subpart N of part 416 of 20 CFR chapter III are amended as follows:

PART 404--FEDERAL OLD-AGE, SURVIVORS AND DISABILITYINSURANCE (1950-

)

1. The authority citation for subpart J of part 404 continues to

read as follows:

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

1102 of the Social Security Act; 31 U.S.C. 3720A; 42 U.S.C. 401(j),

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

Sec. 404.999c [Amended]

2. In Sec. 404.999c(c) introductory text, the reference to ``41 CFR

part 101-7'' is revised to read ``41 CFR chapter 301''.

3. Section 404.999c is amended by redesignating paragraph (d)(3) as

(d)(4) and adding a new paragraph (d)(3) to read as follows:

Sec. 404.999c What travel expenses are reimbursable.

* * * * *

(d) * * *

(3) For travel expenses incurred on or after April 1, 1991, the

amount of reimbursement under this section for travel by your

representative to attend a disability hearing or a hearing before an

administrative law judge shall not exceed the maximum amount allowable

under this section for travel to the hearing site from any point within

the geographic area of the office having jurisdiction over the hearing.

(i) The geographic area of the office having jurisdiction over the

hearing means, as appropriate--

(A) The designated geographic service area of the State agency

adjudicatory unit having responsibility for providing the disability

hearing;

(B) If a Federal disability hearing officer holds the disability

hearing, the geographic area of the State (which includes a State as

defined in Sec. 404.2(c)(5) and also includes the Northern Mariana

Islands) in which the claimant resides or, if the claimant is not a

resident of a State, in which the hearing officer holds the disability

hearing; or

Hearings and Appeals hearing office having responsibility for providing

the hearing before an administrative law judge.

(ii) We or the State agency determine the maximum amount allowable

for travel by a representative based on the distance to the hearing

site from the farthest point within the appropriate geographic area. In

determining the maximum amount allowable for travel between these two

points, we or the State agency apply the rules in paragraphs (a)

through (c) of this section and the limitations in paragraph (d) (1)

and (4) of this section. If the distance between these two points does

not exceed 75 miles, we or the State agency will not reimburse any of

your representative's travel expenses.

* * * * *

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

DISABLED

1. The authority citation for subpart N of part 416 is revised to

read as follows:

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

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

Sec. 416.1498 [Amended]

2. In Sec. 416.1498(c) introductory text, the reference to ``41 CFR

part 101-7'' is revised to read ``41 CFR chapter 301''.

3. Section 416.1498 is amended by redesignating paragraph (d)(3) as

(d)(4) and adding a new paragraph (d)(3) to read as follows:

Sec. 416.1498 What travel expenses are reimbursable.

* * * * *

(d) * * *

(3) For travel expenses incurred on or after April 1, 1991, the

amount of reimbursement under this section for travel by your

representative to attend a disability hearing or a hearing before an

administrative law judge shall not exceed the maximum amount allowable

under this section for travel to the hearing site from any point within

the geographic area of the office having jurisdiction over the hearing.

(i) The geographic area of the office having jurisdiction over the

hearing means, as appropriate--

(A) The designated geographic service area of the State agency

adjudicatory unit having responsibility for providing the disability

hearing;

(B) If a Federal disability hearing officer holds the disability

hearing, the geographic area of the State (as defined in

Sec. 416.120(c)(9)) in which the claimant resides or, if the claimant

is not a resident of a State, in which the hearing officer holds the

disability hearing; or