Supplemental Security Income for the Aged, Blind, and Disabled; Elimination of Waiting Period for Termination of Couple Status

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Social Security Administration

20 CFR Part 416

RIN 0960-AC98

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

Elimination of Waiting Period for Termination of Couple Status

AGENCY: Social Security Administration, HHS.

ACTION: Proposed rule.

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SUMMARY: This proposed rule implements section 8012(a) of the Omnibus

Budget Reconciliation Act changed the definition of the term ``eligible

spouse'' as it is used in the supplemental security income (SSI)

program. Under the former definition of ``eligible spouse,'' members of

an SSI eligible couple who began living apart could not be treated as

individuals for SSI eligibility and payment purposes during the first 6

months following the month in which they began living apart. The

statutory change eliminated the 6-month waiting period. The proposed

rule would revise the definition of ``eligible spouse'' contained in

the regulations as well as make a number of other conforming changes.

Finally, the rule would eliminate provisions in the regulations

pertaining to eligible couples living apart.

DATES: To be sure that your comments are considered, we must receive

them no later than May 9, 1994.

ADDRESSES: Comments should be submitted in writing to the Commissioner

of Social Security, Department of Health and Human Services, P.O. Box

1585, Baltimore, Maryland 21235, sent by telefax to (410) 966-0869 or

delivered to the Office of Regulations, Social Security Administration,

3-B-1 Operations Building, 6401 Security Boulevard, Baltimore, Maryland

21235, between 8 a.m. and 4:30 p.m. on regular business days. Comments

may be inspected during these same hours by making arrangements with

the contact person shown below.

FOR FURTHER INFORMATION CONTACT: Irving Darrow, Legal Assistant, Office

of Regulations, Social Security Administration, 6401 Security

Boulevard, Baltimore, MD 21235, telephone (410) 966-0512.

SUPPLEMENTARY INFORMATION: Section 1614(b) of the Social Security Act

(the Act), as in effect until October 1, 1990, defined an eligible

spouse as ``an aged, blind, or disabled individual who is the husband

or wife of another aged, blind, or disabled individual and who has not

been living apart from such other aged, blind, or disabled individual

for more than six months.'' One effect of this definition was to create

a 6-month waiting period before the members of an eligible couple, who

began living apart, could be treated as individuals for SSI purposes.

Section 8012 of Public Law 101-239 (the Omnibus Budget

Reconciliation Act of 1989) eliminated the 6-month waiting period by

revising the definition of an eligible spouse. Effective October 1,

1990, ``eligible spouse'' means an aged, blind, or disabled individual

who is the husband or wife of another aged, blind, or disabled

individual and who is living with that eligible individual on the first

day of the month, or, in any case in which either spouse files an

application for benefits or requests restoration of eligibility under

the SSI program during the month, at the time the application or

request is filed.

The proposed rule revises the definition of ``eligible spouse'' in

Secs. 416.120(c)(14) and 416.1801(c) to reflect section 8012 of Public

Law 101-239.

The legislative history does not indicate that Congress intended to

treat couples who are temporarily separated as individuals. Therefore,

the rule also provides in Sec. 416.1801(c) that an individual is

considered to be living with an eligible spouse during temporary

absences as defined in Sec. 416.1149 and while receiving continued

benefits under section 1611(e)(1) (E) or (G) of the Act.

In addition to revising the definition of ``eligible spouse'' in

Secs. 416.120(c)(14) and 416.1801(c), a number of other sections in the

regulations are being revised to eliminate provisions which refer to

the prior rule for terminating eligible couple status based on a 6-

month period of living apart. These sections are as follows:

Section 416.305(b)(1) is being revised to remove language

regarding the eligible spouse living apart from the eligible individual

for a period of 6 months.

Section 416.412 is being amended by using more precise

language in the first sentence when referring to a member of an

eligible couple temporarily residing in a medical care facility.

Section 416.414 is being revised to specify that the

computations in paragraphs (b)(2) and (b)(3) are applicable only when

one or both members of an eligible couple are temporarily absent from

home per Sec. 416.1149(c)(1). As their absence is temporary, they are

not separated.

Section 416.430, which deals with essential person

increments, is being revised by removing language regarding when the

members of an eligible couple live apart and adding language to explain

how to pay a couple when one member is temporarily absent and subject

to the $30 payment limit while an inpatient at a medical facility where

Medicaid is paying more than half the cost of care. The reference to

Sec. 416.531 is also being changed to Sec. 416.413.

In Sec. 416.432, a portion of the introductory language

and paragraphs (a) and (b) are being removed. The removed material

concerns members of an eligible couple who have separated.

Section 416.532(e), which provides for essential person

increments when members of an eligible couple live apart, is being

removed.

In Sec. 416.554, the last sentence of the text and example

three regarding separated members of an eligible couple are being

revised.

In Sec. 416.1130(c), the last sentence, which refers to

members of an eligible couple who have different living arrangements,

is being removed.

In Sec. 416.1147, paragraphs (a) and (d) are being removed

and the remaining paragraphs are being revised and redesignated (a),

(b), (c), and (d) respectively. The deleted material deals with

valuation of in-kind support and maintenance for a member of an

eligible couple who is separated from his or her spouse.

Section 416.1802(b) is being revised to remove language

referring to computation of benefits for separated members of an

eligible couple.

Section 416.1806 is being revised to contain rules on who

will be considered the individual's spouse, if more than one person

would qualify.

Section 416.1811 is being removed as a result of the

revision to Sec. 416.1806. The cross-reference to Sec. 416.1811 in

Sec. 416.1101 (definition of ``spouse'') is also being removed.

Section 416.1830(a)(1) is being revised to provide that,

if the members of an eligible couple begin living apart, they will be

treated as individuals beginning with the month following the calendar

month they stopped living together.

In Sec. 416.1832(c) and (d), the cross-references to

Sec. 416.1806(b) and (c) respectively are being revised to refer to

Sec. 416.1806(a)(2) and (a)(3) respectively. This change is

necessitated by the revision we are making to Sec. 416.1806.

Section 416.1832(d) is being revised to provide that, if a

marital relationship has been found to exist solely because a man and

woman are living together and leading others to believe that they are

husband and wife, such marital relationship will be considered to end

as of the date the man and woman stop living together.

Enactment of section 8012(a) of Public Law 101-239 has made the

following Social Security Rulings (SSRs) obsolete: 76-28, 76-41, and

88-11c.

Regulatory Procedures

Regulatory Flexibility Act

We certify that this proposed regulation, if promulgated, will not

have a significant economic impact on a substantial number of small

entities because it will affect only individuals and States. Therefore,

a regulatory flexibility analysis as provided in Public Law 96-354, the

Regulatory Flexibility Act, is not required.

Paperwork Reduction Act of 1980

This proposed regulation imposes no additional reporting and

recordkeeping requirements necessitating clearance by the Office of

Management and Budget.

(Catalog of Federal Domestic Assistance Program No. 93.807,

Supplemental Security Income).

List of Subjects in 20 CFR Part 416

Administrative Practice and Procedure, Aged, Blind, Disability

benefits, Public assistance programs, Reporting and recordkeeping

requirements, Supplemental Security Income.

Dated: January 13, 1994.

Shirley Chater,

Commissioner of Social Security.

Approved: February 22, 1994.

Donna E. Shalala,

Secretary of Health and Human Services.

Part 416 of chapter III of title 20 of the Code of Federal

Regulations is amended as follows:

PART 416--[AMENDED]

1. The authority citation for subpart A is revised to read as

follows:

Authority: Secs. 1102 and 1601-1634 of the Social Security Act;

42 U.S.C. 1302 and 1381-1383c; sec. 212 of Pub. L. 93-66, 87 Stat.

155 and sec. 502(a) of Pub. L. 94-241, 90 Stat. 268.

2. In Sec. 416.120, paragraph (c)(14) is revised to read as

follows:

Sec. 416.120 General definitions and use of terms.

* * * * *

(c) Miscellaneous. * * *

(14) ``Eligible spouse'' means an aged, blind, or disabled

individual who is the husband or wife of another aged, blind, or

disabled individual and who is living with that individual (see

Sec. 416.1801(c)).

* * * * *

3. The authority citation for subpart C 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, 1383(a), (d), and (e).

4. In Sec. 416.305, paragraph (b) introductory text is republished

and paragraph (b)(1) is revised to read as follows:

Sec. 416.305 You must file an application to receive supplemental

security income benefits.

* * * * *

(b) Exceptions. You need not file a new application if--

(1) You have been receiving benefits as an eligible spouse and are

no longer living with your husband or wife;

* * * * *

5. The authority citation for subpart D continues to read as

follows:

Authority: Secs. 1102, 1611(a), (b), (c), and (e), 1612, 1617,

and 1631 of the Social Security Act; 42 U.S.C. 1302, 1382(a), (b),

(c), and (e), 1382a, 1382f, and 1383.

6. Section 416.412 is revised to read as follows:

Sec. 416.412 Amount of benefits; eligible couple.

The benefit under this part for an eligible couple, neither of whom

is temporarily residing in a medical care facility as described in

Sec. 416.1149(c)(1) nor is a qualified individual (as defined in

Sec. 416.221), shall be payable at the rate of $6,048 per year ($504

per month) after rounding, effective for the period beginning January

1, 1986. This rate is the result of a 3.1 percent cost-of-living

adjustment (see Sec. 416.405) to the December 1985 rate. For the period

January 1, 1985, through December 31, 1985, the rate payable, as

increased by the 3.5 percent cost-of-living adjustment, was $5,856

($488 per month). For the period January 1, 1984, through December 31,

1984, the rate payable, as increased by the 3.5 percent cost-of-living

adjustment, was $5,664 per year ($472 per month). For the period July

1, 1983, through December 31, 1983, the rate payable was $5,476.80 per

year ($456.40 per month), as provided by the Social Security Amendments

of 1983 (Pub. L. 98-21, Section 401). For the period July 1, 1982,

through June 30, 1983, the rate, as increased by the 7.4 percent cost-

of-living adjustment, was $5,116.80 yearly ($426.40 monthly). The

monthly rate is reduced by the amount of the couple's income which is

not excluded pursuant to subpart K of this part.

7. In Sec. 416.414, the paragraph headings for paragraphs (b)(2)

and (b)(3) are revised to read as follows:

Sec. 416.414 Amount of benefits; eligible individual or eligible

couple in a medical care facility.

* * * * *

(b) * * *

(2) Eligible couple both of whom are temporarily absent from home

in medical care facilities as described in Sec. 416.1149(c)(1). * * *

(3) Eligible couple with one spouse who is temporarily absent from

home as described in Sec. 416.1149(c)(1). * * *

* * * * *

8. Section 416.430 is revised to read as follows:

Sec. 416.430 Eligible individual with eligible spouse; essential

person(s) present.

(a) When an eligible individual with an eligible spouse have an

essential person (Sec. 416.222) living in his or her home, or when both

such persons each has an essential person, the increase in the rate of

payment is determined in accordance with Secs. 416.413 and 416.532. The

income of the essential person(s) is included in the income of the

couple and the payment due will be equally divided between each member

of the eligible couple.

(b) When one member of an eligible couple is temporarily absent in

accordance with Sec. 416.1149(c)(1) and Sec. 416.222(c) and either one

or both individuals has an essential person, add the essential person

increment to the benefit rate for the member of the couple who is

actually residing with the essential person and include the income of

the essential person in that member's income. See Sec. 416.414(b)(3).

9. Section Sec. 416.432 is revised to read as follows:

Sec. 416.432 Change in status involving a couple; eligibility

continues.

When there is a change in status which involves the formation or

dissolution of an eligible couple (for example, marriage, divorce), a

redetermination of the benefit amount shall be made for the months

subsequent to the month of such formation or dissolution of the couple

in accordance with the following rules:

(a) When there is a dissolution of an eligible couple and each

member of the couple becomes an eligible individual, the benefit amount

for each person shall be determined individually for each month

beginning with the first month after the month in which the dissolution

occurs. This shall be done by determining the applicable benefit rate

for an eligible individual with no eligible spouse according to

Sec. 416.410 or Sec. 416.413 and Sec. 416.414 and applying

Sec. 416.420(a). See Sec. 416.1147a for the applicable income rules

when in-kind support and maintenance is involved.

(b) When two eligible individuals become an eligible couple, the

benefit amount will be determined for the couple beginning with the

first month following the month of the change. This shall be done by

determining which benefit rate to use for an eligible couple according

to Sec. 416.412 or Sec. 416.413 and Sec. 416.414 and applying the

requirements in Sec. 416.420(a).

10. The authority citation for subpart E continues to read as

follows:

Authority: Secs. 1102, 1601, 1602, 1611(c), and 1631 (a), (b),

(d), and (g) of the Social Security Act; 42 U.S.C. 1302, 1381,

1381a, 1382(c), and 1383 (a), (b), (d), and (g).

Sec. 416.532 [Removed]

11. In Sec. 416.532, paragraph (e) is removed.

12. Section 416.554 is revised to read as follows:

Sec. 416.554 Waiver of adjustment or recovery--against equity and good

conscience.

We will waive adjustment or recovery of an overpayment when an

individual on whose behalf waiver is being considered is without fault

(as defined in Sec. 416.552) and adjustment or recovery would be

against equity and good conscience. Adjustment or recovery is

considered to be against equity and good conscience if an individual

changed his or her position for the worse or relinquished a valuable

right because of reliance upon a notice that payment would be made or

because of the incorrect payment itself. In addition, adjustment or

recovery is considered to be against equity and good conscience for an

individual who is a member of an eligible couple that is legally

separated and/or living apart, on a 6-month trip, for that part of an

overpayment not received, but subject to recovery under Sec. 416.570.

Example 1: Upon being notified that he was eligible for

supplemental security income payments, an individual signed a lease

on an apartment renting for $15 a month more than the room he had

previously occupied. It was subsequently found that eligibility for

the payment should not have been established. In such a case,

recovery would be considered ``against equity and good conscience.''

Example 2: An individual fails to take advantage of a private or

organization charity, relying instead on the award of supplemental

security income payments to support himself. It was subsequently

found that the money was improperly paid. Recovery would be

considered ``against equity and good conscience.''

Example 3: Mr. and Mrs. Smith--members of an eligible couple--

separate in July. Later in July, Mr. Smith receives earned income

resulting in an overpayment to both. Mrs. Smith is found to be

without fault in causing the overpayment. Recovery from Mrs. Smith

of Mr. Smith's part of the couple's overpayment is waived as being

against equity and good conscience. Whether recovery of Mr. Smith's

portion of the couple's overpayment can be waived will be evaluated

separately.

13. The authority citation for subpart K is revised to read as

follows:

Authority: Secs. 1102, 1602, 1611, 1612, 1613, 1614(f), 1621,

and 1631 of the Social Security Act; 42 U.S.C. 1302, 1381a, 1382,

1382a, 1382b, 1382c(f), 1382j, and 1383; sec. 211 of Pub. L. 93-66,

87 Stat. 154.

Sec. 416.1110 [Amended]

14. In Sec. 416.1101, the parenthetical reference in the definition

of ``Spouse'' which reads ``(See Secs. 416.1806 through 416.1811)'' is

revised to read ``(See Sec. 416.1806).''

15. In Sec. 416.1130, paragraph (c) is revised to read as follows:

Sec. 416.1130 Introduction.

* * * * *

(c) How we value in-kind support and maintenance. Essentially, we

have two rules for valuing the in-kind support and maintenance which we

must count. The one-third reduction rule applies if you are living in

the household of a person who provides you with both food and shelter

(Secs. 416.1131 through 416.1133). The presumed value rule applies in

all other situations where you are receiving countable in-kind support

and maintenance (Secs. 416.1140 through 416.1145). If certain

conditions exist, we do not count in-kind support and maintenance.

These are discussed in Secs. 416.1141 through 416.1145.

16. Section 416.1147 is revised to read as follows:

Sec. 416.1147 How we value in-kind support and maintenance for a

couple.

(a) Both members of a couple live in another person's household and

receive food and shelter from that person. When both of you live in

another person's household through-out a month and receive food and

shelter from that person, we apply the one-third reduction to the

Federal benefit rate for a couple (Sec. 416.1131).

(b) One member of a couple lives in another person's household and

receives food and shelter from that person and the other is in a

medical institution. If one of you is living in the household of

another person who provides you with both food and shelter and the

other is temporarily absent from the household as provided in

Sec. 416.1149(c)(1) (in a medical institution that receives Medicaid

payments for his or her care (Sec. 416.211(b)), we compute your

benefits as if you were separately eligible individuals (see

Sec. 416.414(b)(3)). This begins with the first full calendar month one

of you is in the medical institution. The one living in another

person's household is eligible at an eligible individual's Federal

benefit rate and one-third of that rate is counted as income not

subject to any income exclusions. The one in the medical institution

cannot receive more than the rate described in Sec. 416.414(b)(3)(i).

(c) Both members of a couple are subject to the presumed value

rule. If the presumed value rule applies to both of you, we value any

food, clothing, or shelter you and your spouse receive at one-third of

the Federal benefit rate for a couple plus the amount of the general

income exclusion (Sec. 416.1124(c)(12)), unless you can show that their

value is less as described in Sec. 416.1140(a)(2).

(d) One member of a couple is subject to the presumed value rule

and the other is in a medical institution. If one of you is subject to

the presumed value rule and the other is temporarily absent from the

household as provided in Sec. 416.1149(c)(1) (in a medical institution

that receives Medicaid payments for his or her care (Sec. 416.211(b)),

we compute your benefits as if you were separately eligible individuals

(see Sec. 416.414(b)(3)). This begins with the first full calendar

month that one of you is in the medical institution (Sec. 416.211(b)).

We value any food, clothing, or shelter received by the one outside of

the medical institution at one-third of an eligible individual's

Federal benefit rate, plus the amount of the general income exclusion

(Sec. 416.1124(c)(12)), unless you can show that their value is less as

described in Sec. 416.1140(a)(2). The one in the medical institution

cannot receive more than the rate described in Sec. 416.414(b)(3)(i).

17. The authority citation for subpart R continues to read as

follows:

Authority: Secs. 1102, 1614(b), (c), and (d), and 1631(d)(1) and

(e) of the Social Security Act; 42 U.S.C. 1302, 1382c (b), (c), and

(d), and 1383 (d)(1) and (e).

18. In Sec. 416.1801(c), the definition of ``eligible spouse'' is

revised to read as follows:

Sec. 416.1801 Introduction

* * * * *

(c) * * *

Eligible spouse means a person--

(1) Who is eligible for SSI,

(2) Whom we consider the spouse of another person who is eligible

for SSI, and

(3) Who was living in the same household with that person on--

(i) The date of filing an application for benefits (for the month

of an application);

(ii) The date a request for reinstatement of eligibility is filed

(for the month of such request); or

(iii) The first day of the month, for all other months.

An individual is considered to be living with an eligible spouse during

temporary absences as defined in Sec. 416.1149 and while receiving

continued benefits under section 1611(e)(1) (E) or (G) of the Act.

* * * * *

19. In Sec. 416.1802, paragraph (b) is revised to read as follows:

Sec. 416.1802 Effects of marriage on eligibility and amount of

benefits.

* * * * *

(b) If you have an eligible spouse--(1) Counting income. If you

apply for or receive SSI benefits and have an eligible spouse as

defined in Sec. 416.1801(c), we will count your combined income and

calculate the benefit amount for you as a couple. Section 416.412 gives

a detailed statement of the amount of benefits and subpart K of this

part explains how we count income for an eligible couple.

(2) Counting resources. If you have an eligible spouse as defined

in Sec. 416.1801(c), we will count the value of your combined resources

(money and property), minus certain exclusions, and use the couple's

resource limit when we determine your eligibility. Section 416.1205(b)

gives a detailed statement of the resource limit for an eligible

couple.

* * * * *

20. Section 416.1806 is revised to read as follows:

Sec. 416.1806 Whether you are married and who is your spouse.

(a) We will consider someone to be your spouse (and therefore

consider you to be married) for SSI purposes if--

(1) You are legally married under the laws of the State where your

and his or her permanent home is (or was when you lived together);

(2) We have decided that either of you is entitled to husband's or

wife's Social Security insurance benefits as the spouse of the other

(this decision will not affect your SSI benefits for any month before

it is made); or

(3) You and an unrelated person of the opposite sex are living

together in the same household at or after the time you apply for SSI

benefits, and you both lead people to believe that you are husband and

wife.

(b) If more than one person would qualify as your husband or wife

under paragraph (a) of this section, we will consider the person you

are presently living with to be your spouse for SSI purposes.

Sec. 416.1811 [Removed]

21. Section 416.1811 is removed.

22. In Sec. 416.1830, paragraph (a) is revised to read as follows:

Sec. 416.1830 When we stop considering you and your spouse an eligible

couple.

* * * * *

(a) The calendar month after the month you stopped living with your

eligible spouse, or

* * * * *

23. In Sec. 416.1832, paragraphs (c) and (d) are revised to read as

follows:

Sec. 416.1832 When we consider your marriage ended.

* * * * *

(c) We decide that either of you is not a spouse of the other for

purposes of husband's or wife's social security insurance benefits, if

we considered you married only because of Sec. 416.1806(a)(2); or

(d) You and your spouse stop living together, if we considered you

married only because of Sec. 416.1806(a)(3).

[FR Doc. 94-4910 Filed 2-7-94; 8:45 am]

BILLING CODE 4190-29-P