Federal Old-Age, Survivors, and Disability Insurance and Supplemental Security Income for the Aged, Blind, and Disabled; Standards Applicable in Certain Determinations of Good Cause, Fault, and Good Faith

Federal RegisterJan 12, 1994

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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Social Security Administration

20 CFR Parts 404 and 416

RIN 0960-AC88

Federal Old-Age, Survivors, and Disability Insurance and

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

Standards Applicable in Certain Determinations of Good Cause, Fault,

and Good Faith

AGENCY: Social Security Administration, HHS.

ACTION: Final rule.

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SUMMARY: These final regulations amend the existing regulations to

reflect the provisions of section 10305 of the Omnibus Budget

Reconciliation Act of 1989 (OBRA 1989).

Section 10305 requires that the Secretary of Health and Human

Services (the Secretary), in making certain determinations of good

cause, without fault, and good faith under title II of the Social

Security Act (the Act), take into account any physical, mental,

educational, or linguistic limitations (including any lack of facility

with the English language) the individual has.

In addition, section 10305 amended title XVI of the Act to require

that the Secretary take these limitations into account in determining

with respect to an individual's eligibility for title XVI benefits,

whether the individual acted in good faith or was without fault, and in

determining fraud, deception, or intent.

EFFECTIVE DATE: These final regulations are effective January 12, 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: On October 30, 1991, we published a notice

of proposed rulemaking (NPRM) at 56 FR 55848. We received comments from

a nonprofit public interest law center and a national nonprofit

organization. Both organizations represent people who are hearing

impaired and both strongly supported the proposed rule and urged its

adoption. The final rule, with the exception of several technical

changes we have made and which we discuss below, is the same as the

NPRM.

Sections 10305 (a), (b), (c), and (d) of OBRA 1989 amended sections

203(l), 204(b), 223(f), and 223(g)(2)(B) of title II of the Act,

respectively, to require that the Secretary, in making certain

determinations and decisions of good cause, fault, and good faith under

the respective sections of the Act, take into account any physical,

mental, educational, or linguistic limitations (including any lack of

facility with the English language) the individual has. In addition,

section 10305(e) of OBRA 1989 amended section 1631(c)(1) of title XVI

of the Act to require that the Secretary take these limitations into

account in determining with respect to the eligibility of an individual

for benefits under title XVI, whether the individual acted in good

faith or was without fault, and in determining fraud, deception, or

intent. The Conference Committee Report on OBRA 1989 indicates that the

Congress intended that the amendment to section 1631(c)(1) of the Act

would apply to provisions of title XVI that are similar to the title II

provisions amended by sections 10305 (a) through (d). (H.R. Rep. No.

386, 101st Cong., 1st Sess. 708 (1989).) The amendments made by section

10305 are effective for determinations or decisions made after June 30,

1990.

Generally, it has been our policy to take into account the

limitations described in section 10305 in making determinations or

decisions of good cause, without fault, or good faith (or

determinations or decisions concerning fraudulent or similar intent)

with respect to the rights and duties of applicants and beneficiaries

under the title II and title XVI programs. However, our existing

regulations were not explicit in this respect. Therefore, we are

revising our regulations under the title II and title XVI programs to

reflect explicitly the amendments to the Act made by section 10305 of

OBRA 1989. The changes to the regulations make it clear that we will

take into account any physical, mental, educational, or linguistic

limitations of an individual (including any lack of facility with the

English language) in making a determination of good cause, without

fault, or good faith, as appropriate, under section 203(l), 204(b),

223(f), or 223(g)(2)(B) of the Act (as required by the amendments made

by sections 10305 (a) through (d)), and in determining with respect to

an individual's eligibility for benefits under title XVI of the Act,

whether such individual acted in good faith or was without fault, and

in determining fraud, deception, or intent (as required under the

amendment made to section 1631(c)(1) of the Act by section 10305(e)).

Also, in keeping with the intent of Congress and in the interest of

consistency, we are amending certain provisions of the title II

regulations to provide expressly for the consideration of the

limitations described in section 10305 in making certain determinations

and decisions under the title II program which relate to good cause or

fraudulent intent and which are not covered expressly by the amendments

under sections 10305 (a) through (d) of OBRA 1989. The changes we are

making are discussed below.

Good Cause for Failure to Make Timely Reports

Generally, in certain cases described in section 203 of the Act, a

title II beneficiary who (1) Works for more than 45 hours during a

month in noncovered employment outside the United States, (2) ceases to

have a child in his or her care, or (3) has earnings in excess of the

annual exempt amount under the earnings test, is subject to a penalty

(in the form of benefit deductions) if he or she fails to report these

facts to us within a specified time. However, under section 203(l) of

the Act, a penalty does not apply if the individual can demonstrate to

the satisfaction of the Secretary that he or she has good cause for

failing to make a timely report.

Section 10305(a) of OBRA 1989 amended section 203(l) to provide

that the Secretary, in making determinations and decisions of good

cause, must take into account any physical, mental, educational, or

linguistic limitations (including any lack of facility with the English

language) the individual has.

Section 404.454 is the regulation which implements section 203(l).

Accordingly, we are amending Sec. 404.454(a) to provide that in making

determinations and decisions of good cause for failure to make timely

reports, we will take into account any physical, mental, educational,

or linguistic limitations (including any lack of facility with the

English language) the individual has. In addition, we are adding a new

paragraph, (a)(9), to Sec. 404.454 to illustrate that good cause may be

found where failure to file a timely report was due, for example, to a

failure on the part of the individual to understand reporting

responsibilities due to his or her physical, mental, educational, or

linguistic limitation(s).

Under section 1631(e)(2) of the Act, an individual who is required

under rules prescribed by the Secretary to make a timely report of

circumstances affecting eligibility for, or the amount of, title XVI

benefits is subject to a penalty (in the form of benefit deductions) if

the individual fails to make the required report on time. However, the

penalty under section 1631(e)(2) does not apply if the individual is

without fault or has good cause for not reporting timely.

Section 416.732 of our current regulations explains how we

determine whether an individual has good cause for failure to make a

timely report for purposes of section 1631(e)(2). We are adding a new

paragraph to Sec. 416.732 to provide that we will take into account any

physical, mental, educational, or linguistic limitations (including any

lack of facility with the English language) the individual has in

making determinations and decisions of good cause for failure to make

timely reports.

Fraudulent Behavior or Failure To Cooperate or To Take Any

Required Action in Disability Determinations

Under sections 223(f) and 1614(a)(4) of the Act, title II or title

XVI disability benefits may be terminated if a prior favorable

determination of disability was fraudulently obtained or if the

beneficiary fails, without good cause, to cooperate with the Secretary

in reviewing his or her entitlement or to follow prescribed treatment

which is expected to restore his or her ability to work.

Section 10305(c) of OBRA 1989 amended section 223(f) of the Act to

provide that in making, for purposes of section 223(f), any

determination or decision relating to fraudulent behavior by any

individual or failure by any individual without good cause to cooperate

or to take any required action, the Secretary shall take into account

any physical, mental, educational, or linguistic limitations (including

any lack of facility with the English language) the individual may

have. In addition, with respect to making similar determinations and

decisions for purposes of section 1614(a)(4) of the Act, section

1631(c)(1) of title XVI of the Act, as amended by OBRA 1989, requires

the Secretary to take these limitations into account in determining

whether an individual acted in good faith or was at fault, and in

determining fraud, deception, or intent.

Sections 404.1518, 404.1530, 404.1579, 404.1594, 416.918, 416.930,

416.994 and 416.994a reflect the pertinent provisions of sections

223(f) and 1614(a)(4) of the Act. We are making the following changes

in these regulations:

Amend Secs. 404.1518 and 416.918 to provide that we will

take into account any physical, mental, educational, or linguistic

limitations (including any lack of facility with the English language)

the individual has when determining if the individual has a good reason

for failing to attend a consultative examination which we have arranged

for the individual. These specific amendments were not included in the

NPRM. Current Secs. 404.1518 and 416.918 provide that we may determine

that an individual who is applying for benefits based on disability or

blindness is not disabled or blind, or that an individual who is

entitled to or eligible for benefits based on disability or blindness

is no longer disabled or blind, if we find that the individual failed

or refused to attend a consultative examination without a good reason.

While Secs. 404.1518 and 416.918 provide rules for determining whether

an individual has a good reason for such failure or refusal and, thus,

are within the scope of the amendments to sections 223(f) and

1631(c)(1) of the Act, we inadvertently failed to include these

regulations when we developed the proposed regulations to implement

section 10305 of OBRA 1989. We are amending Secs. 404.1518(a) and

416.918(a) in the final rule to make it clear that we will consider an

individual's physical, mental, educational, and linguistic limitations

(including any lack of facility with the English language) in

determining whether the individual has a good reason for failing to

attend a consultative examination. In connection with this change, we

also are making related changes, which were not in the NPRM, to

Secs. 404.1579(e)(2), 404.1586(d), 404.1594(e)(2), 416.986(c),

416.994(b)(4)(ii) and 416.994a(g)(2) to include in these sections a

cross-reference to Sec. 404.1518 or Sec. 416.918, as appropriate, to

clarify that Secs. 404.1518 and 416.918 provide the rules for

determining whether an individual has a good reason for not attending a

consultative examination. Current Sec. 416.994a(g)(2) already contains

such a cross-reference.

Amend Secs. 404.1530(c) and 416.930(c) to provide that we

will take into account any physical, mental, educational, or linguistic

limitations (including any lack of facility with the English language)

the individual has when deciding if the individual has acceptable

reasons for failure to follow prescribed treatment.

Amend Secs. 404.1579 (e)(1) and (e)(2), 404.1594 (e)(1)

and (e)(2), 416.994 (b)(4)(i) and (b)(4)(ii) and 416.994a (g)(1) and

(g)(2) to indicate that we will take into account any physical, mental,

educational, or linguistic limitations (including any lack of facility

with the English language) the individual has in determining whether a

prior favorable determination or decision was fraudulently obtained or

in determining whether an individual has good cause for failure to

supply evidence we ask for or to go for a physical or mental

examination. The amendments to these sections of the regulations

include certain technical changes that were not reflected in the NPRM.

For the final rule, we are adding the phrase ``or decision'' to

Secs. 404.1579(e)(1), 404.1594(e)(1), 416.994(b)(4)(i) and

416.994a(g)(1) to clarify that these provisions apply not only to

determinations we make, but also to decisions we make. Section

416.994a(g)(1) already contains this language. Also, as discussed

above, Secs. 404.1579(e)(2), 404.1586(d), 404.1594(e)(2), 416.986(c),

416.994(b)(4)(ii) and 416.994a(g)(2) of the final rule include a cross-

reference to Sec. 404.1518 or Sec. 416.918, as appropriate, which

provides rules for determining whether an individual has good cause for

failing to attend a consultative examination.

Consistent with the NPRM, the final changes to

Secs. 404.1579(e)(2), 404.1594(e)(2), 416.994(b)(4)(ii) and

416.994a(g)(2) also explain that we will consider the factors described

in Secs. 404.911 and 416.1411 for purposes of determining generally

whether an individual has good cause for failure to cooperate in a

review of his or her entitlement to benefits based on disability.

(Current Secs. 404.911 and 416.1411 explain the factors we consider in

determining whether an individual has good cause for missing a deadline

to request review of a determination or decision under our

administrative review process. As explained later in this preamble, we

are amending Secs. 404.911 and 416.1411, which apply to title II and

title XVI cases, respectively, to provide explicitly for the

consideration of the limitations described in section 10305 of OBRA

1989 in determining whether an individual has good cause for missing a

deadline to request review.) We are also revising Secs. 404.1586(d) and

416.986(c) to clarify that we will consider the factors described in

Secs. 404.911 and 416.1411, respectively, for purposes of determining

generally whether an individual has good cause for failure to cooperate

in a review of his or her continuing entitlement to title II benefits,

or continuing eligibility for title XVI benefits, based on blindness.

Without Fault--Waiver of Adjustment or Recovery of

Overpayments

Under sections 204(b) and 1631(b)(1)(B) of the Act, recovery or

adjustment of overpayments to a title II or title XVI beneficiary may

be waived in situations where the individual is without fault in

connection with the overpayment and recovery or adjustment would defeat

the purposes of the program or would be against equity and good

conscience or, with respect to the title XVI program, would impede

efficient or effective administration of title XVI because of the small

amount involved. Our existing regulations explain that in determining

whether an individual was without fault, all pertinent factors

surrounding the overpayment will be considered, including the

individual's age, intelligence, education, and physical and mental

capabilities.

Section 10305(b) of OBRA 1989 amended section 204(b) of the Act to

provide that the Secretary, in making determinations or decisions of

``without fault'' for purposes of section 204(b), must take into

account any physical, mental, educational, or linguistic limitations

(including any lack of facility with the English language) the

individual has. In addition, the amendment to section 1631(c)(1) of the

Act made by section 10305(e) of OBRA 1989 provides that, for the

purposes of the title XVI program, the Secretary must take these same

limitations into account in determining, among other things, whether an

individual is without fault.

We are making the following changes in our regulations which

implement sections 204(b) and 1631(b)(1)(B) of the Act to reflect the

pertinent amendments made by section 10305.

Amend Sec. 404.507 to provide that in making

determinations of without fault with respect to title II overpayments,

we will take into account any physical, mental, educational, or

linguistic limitations (including any lack of facility with the English

language) the individual has.

Amend Sec. 404.510 to provide that in determining whether

an individual is without fault with respect to a title II deduction

overpayment, we will consider all pertinent circumstances, including an

individual's age and intelligence and any physical, mental,

educational, or linguistic limitations of the individual (including any

lack of facility with the English language). In addition, to eliminate

any ambiguity with respect to the application of the amendment to

section 204(b) of the Act made by section 10305(b) of OBRA 1989 in

cases involving title II deduction overpayments, the changes to

Sec. 404.510 will: (1) clarify that the situations described in

Sec. 404.510 in which an individual will be considered without fault in

connection with a deduction overpayment are not all-inclusive; and (2)

eliminate the provision in paragraph (n) of Sec. 404.510 which requires

that for an individual to be considered without fault with respect to a

deduction overpayment in certain circumstances described in paragraph

(n), such individual must have made a bona fide attempt to restrict his

or her annual earnings or otherwise comply with the deduction

provisions of the Act.

Amend Sec. 404.511(b) to show that the Social Security

Administration generally will not find an individual to be without

fault when, after having been exonerated for a title II ``deduction

overpayment'' and after having been advised of the correct

interpretation of the deduction provision, the individual incurs

another ``deduction overpayment'' under the same circumstances as the

first overpayment. The change to Sec. 404.511(b) also explains that in

determining ``without fault'' under such circumstances, however, any

physical, mental, educational, or linguistic limitations (including any

lack of facility with the English language) the individual has will be

taken into consideration.

Amend Sec. 416.552 to provide that we will take into

account any physical, mental, educational, or linguistic limitations

(including any lack of facility with the English language) the

individual has in determining whether the individual is without fault

for purposes of the waiver of adjustment or recovery of a title XVI

overpayment.

In general, under section 1631(b)(4) of the Act and the

implementing regulation, Sec. 416.556, if any title XVI overpayment is

attributable solely to the ownership or possession by an individual (or

by an individual and his or her spouse, if any) of countable resources

having a value which exceeds, by $50 or less, the applicable limitation

on resources specified in the Act and regulations, such individual (and

spouse if any) will be deemed to have been without fault in connection

with the overpayment, and waiver of adjustment or recovery will be

made, unless the failure to report the value of the excess resources

correctly and in a timely manner was willful and knowing. Based on the

amendment to section 1631(c)(1) of the Act made by section 10305(e) of

OBRA of 1989, we are amending Sec. 416.556(b) to provide that in

determining whether failure to report the excess resources correctly

and in a timely manner was willful and knowing, and, thus, whether the

individual was at fault, we will take into account any physical,

mental, educational, or linguistic limitations (including any lack of

facility with the English language) the individual has.

Good Faith--Waiver of Recovery of Overpayments--Continuation

of Disability Benefits Pending Appeal

Under sections 223(g) and 1631(a)(7) of the Act and the

implementing regulations at Secs. 404.1597a and 416.996, a title II or

title XVI beneficiary receiving benefits based on disability whom the

Secretary determines is no longer disabled based on medical factors has

the option of having his or her benefits continued through a hearing

before an administrative law judge (ALJ). Benefits paid during this

period are considered overpayments if the beneficiary loses the appeal.

However, if the beneficiary acted in good faith in pursuing the appeal,

repayment can be waived (sections 223(g)(2)(B) and 1631(a)(7)(B)(ii) of

the Act and 404.1597a(j) and 416.996(g) of our regulations). Our

regulations establish a presumption that appeals are made in good faith

unless the beneficiary fails, without good cause, to cooperate during

the appeal.

Section 10305(d) of OBRA 1989 amended section 223(g)(2)(B) of the

Act to require that the Secretary take into account any physical,

mental, educational, or linguistic limitations an individual may have

(including any lack of facility with the English language) in

determining whether an individual's appeal is made in good faith.

Based on this amendment and the amendment to title XVI of the Act

made by section 10305(e) of OBRA 1989, we are amending

Secs. 404.1597a(j)(3) and 416.996(g)(2) to provide that we will take

into account any physical, mental, educational, or linguistic

limitations (including any lack of facility with the English language)

the individual has in determining whether the individual acted in good

faith in pursuing the appeal.

Determinations of Good Cause or of Fraud or Similar Fault in

Connection With the Administrative Review Process

Section 10305(e) amended section 1631(c)(1) of the Act to provide

that the Secretary shall specifically take into account any physical,

mental, educational, or linguistic limitations of an individual

(including any lack of facility with the English language) in

determining, with respect to the eligibility of the individual for

benefits under title XVI, whether the individual acted in good faith or

was at fault, and in determining fraud, deception, or intent.

The changes we are making in part 416 of the regulations in

connection with the administrative review process are based on the

amendment to section 1631(c)(1). We are making comparable changes in

part 404 in the interest of consistency.

Our current regulations provide that a determination or decision

which we make about an individual's rights under title II or title XVI

of the Act is generally final and binding unless the individual files a

request for review of the determination or decision within a specified

time period. However, the time period to request review will be

extended if good cause can be established for missing the deadline to

request review (Secs. 404.911 and 416.1411). Also, under our

regulations, we may reopen a determination or decision at any time if

it was obtained by fraud or similar fault (Secs. 404.988(c)(1) and

416.1488(c)), or, in title II cases, if certain other circumstances

exist (Sec. 404.988(c)).

Under our regulations, a request for a hearing before an ALJ may be

dismissed if neither the person requesting the hearing nor his or her

designated representative appears at the time and place set for the

hearing. However, if good cause for failure to appear can be

established, the hearing request will not be dismissed

(Secs. 404.957(b) and 416.1457(b)).

We are making the following changes to Secs. 404.911, 404.936,

404.957, 404.988, 416.1411, 416.1436, 416.1457, and 416.1488 to reflect

the consideration of the factors described in section 10305 of OBRA

1989.

Amend Secs. 404.911(a) and (b)(9) and 416.1411(a) and

(b)(9) to provide that in determining whether an individual had good

cause for missing a deadline to request review, we will take into

account any physical, mental, educational, or linguistic limitations of

the individual (including any lack of facility with the English

language) which may have prevented the individual from filing a timely

request or from understanding or knowing about the need to file a

timely request for review.

Amend Secs. 404.936 and 416.1436 to further describe

circumstances which an individual, who will not be represented at a

hearing before an ALJ, may give for requesting a change in the time or

place of the hearing.

Amend Secs. 404.957(b) and 416.1457(b) to require that in

making determinations of whether an individual had good cause for

failure to appear for a hearing before an ALJ, we will take into

account any physical, mental, educational, or linguistic limitations

(including any lack of facility with the English language) the

individual has.

Amend Secs. 404.988(c)(1) and 416.1488(c) to indicate that

in determining whether a determination or decision was obtained by

fraud or similar fault for the purposes of reopening, we will take into

account any physical, mental, educational, or linguistic limitations

(including any lack of facility with the English language) the

individual has.

Good Cause for Refusal To Accept Rehabilitation Services

Under sections 222(b) and 1615(c) of the Act and the implementing

regulations at Secs. 404.422 and 416.1328, deductions may be imposed

against title II benefits, or title XVI benefits may be suspended, if a

disabled or blind beneficiary refuses without good cause to accept

certain rehabilitation services. If good cause can be established for

the refusal, benefits will not be affected. The final regulations amend

the pertinent regulations relating to good cause for refusal of

rehabilitation services.

The change we are making in part 416 of the regulations is based on

the amendment to section 1631(c)(1) of the Act. We are making a

comparable change in part 404 in the interest of consistency.

Sections 404.422 and 416.1715 of our regulations discuss how we

determine whether an individual has good cause for refusing

rehabilitation services. We are amending Secs. 404.422(e) and

416.1715(a) to provide that in making good cause determinations

concerning the refusal of rehabilitation services, we will take into

account any physical, mental, educational, or linguistic limitations

(including any lack of facility with the English language) the

individual has. We are also making a technical correction in a cross-

reference contained in Sec. 416.2203 to indicate that ``good cause''

for refusal of vocational rehabilitation services is defined in

Sec. 416.1715.

Good Reason for Not Applying for Other Benefits

Section 1611(e)(2) of the Act requires that SSI applicants and

beneficiaries apply for other benefits for which they may be eligible

within 30 days from the date the individual receives our notice about

any other benefits for which the individual is likely to be eligible.

Our existing regulations Secs. 416.210(e) and 416.1330(a) provide that

individuals are not eligible for SSI benefits if they do not apply for

the other benefits when told to do so. However, both Secs. 416.210(e)

and 416.1330(a) provide that the individual will not be found

ineligible for SSI benefits if the individual had good reason

(Sec. 416.210(e)) or good cause (Sec. 416.1330(a)) for not applying for

the other benefits within the 30-day period or taking other necessary

steps to obtain them.

We are amending Sec. 416.210(e)(2) to provide that we will take

into account any physical, mental, educational, or linguistic

limitations (including any lack of facility with the English language)

the individual has in determining good reason or good cause for not

filing for other benefits. Since Sec. 416.1330(a) refers to

Sec. 416.210(e), we are not amending Sec. 416.1330(a).

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 and States.

Therefore, a regulatory flexibility analysis as provided in Public

Law 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. 93.802 through

93.805 Social Security; and 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: November 3, 1993.

Shirley Chater,

Commissioner of Social Security.

Approved: January 3, 1994.

Donna E. Shalala,

Secretary of Health and Human Services.

For the reasons set out in the preamble, subparts E, F, J, and P of

part 404 and subparts B, E, G, I, N, Q and V of part 416 of 20 CFR

chapter III are amended as follows:

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

(1950- )

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

follows:

Authority: Secs. 202, 203, 204 (a) and (e), 205(a), 222(b),

223(e), 224, 227, and 1102 of the Social Security Act; 42 U.S.C.

402, 403, 404 (a) and (e), 405(a), 422(b), 423(e), 424, 427, and

1302.

2. Section 404.422 is amended by adding two new sentences

immediately before the second sentence of the introductory text of

paragraph (e) to read as follows:

Sec. 404.422 Deductions because of refusal to accept rehabilitation

services.

* * * * *

(e) * * * In determining whether an individual has good cause for

refusing rehabilitation services, we will take into account any

physical, mental, educational, or linguistic limitations (including any

lack of facility with the English language) the individual may have

which may have caused the individual to refuse such services. We also

consider other factors that may have caused an individual to refuse

such services. * * *

* * * * *

3. Section 404.454 is amended by revising the third and fourth

sentences of the introductory text of paragraph (a), by removing the

word ``or'' that follows the semicolon at the end of paragraph (a)(7),

by removing the period at the end of paragraph (a)(8) and replacing it

with ``; or'', and by adding a new paragraph (a)(9) to read as follows:

Sec. 404.454 Good cause for failure to make required reports.

(a) General. * * * The failure of the individual to submit evidence

to establish good cause within a specified time may be considered a

sufficient basis for a finding that good cause does not exist (see

Sec. 404.705). In determining whether good cause for failure to report

timely has been established by the individual, consideration is given

to whether the failure to report within the proper time limit was the

result of untoward circumstances, misleading action of the Social

Security Administration, confusion as to the requirements of the Act

resulting from amendments to the Act or other legislation, or any

physical, mental, educational, or linguistic limitations (including any

lack of facility with the English language) the individual may have. *

* *

* * * * *

(9) Failure of the individual to understand reporting

responsibilities due to his or her physical, mental, educational, or

linguistic limitation(s).

* * * * *

4. The authority citation for subpart F continues to read as

follows:

Authority: Secs. 204(a)-(d), 205(a), and 1102 of the Social

Security Act; 42 U.S.C. 404(a)-(d), 405(a), and 1302.

5. Section 404.507 is amended by revising the third sentence of the

introductory text to read as follows:

Sec. 404.507 Fault.

* * * In determining whether an individual is at fault, the Social

Security Administration will consider all pertinent circumstances,

including the individual's age and intelligence, and any physical,

mental, educational, or linguistic limitations (including any lack of

facility with the English language) the individual has. * * *

* * * * *

6. Section 404.510 is amended by revising the section heading, by

removing the last sentence of paragraph (n) and by revising the

introductory text of Sec. 404.510 to read as follows:

Sec. 404.510 When an individual is ``without fault'' in a deduction

overpayment.

In determining whether an individual is ``without fault'' with

respect to a deduction overpayment, the Social Security Administration

will consider all pertinent circumstances, including the individual's

age and intelligence, and any physical, mental, educational, or

linguistic limitations (including any lack of facility with the English

language) the individual has. Except as provided in Sec. 404.511 or

elsewhere in this subpart F, situations in which an individual will be

considered to be ``without fault'' with respect to a deduction

overpayment include, but are not limited to, those that are described

in this section. An individual will be considered ``without fault'' in

accepting a payment which is incorrect because he/she failed to report

an event specified in sections 203 (b) and (c) of the Act, or an event

specified in section 203(d) of the Act as in effect for monthly

benefits for months after December 1960, or because a deduction is

required under section 203 (b), (c), (d), or section 222(b) of the Act,

or payments were not withheld as required by section 202(t) or section

228 of the Act, if it is shown that such failure to report or

acceptance of the overpayment was due to one of the following

circumstances:

* * * * *

7. Section 404.511 is amended by revising the section heading and

by revising paragraph (b) to read as follows:

Sec. 404.511 When an individual is at ``fault'' in a deduction

overpayment.

* * * * *

(b) Subsequent deduction overpayments. The Social Security

Administration generally will not find an individual to be without

fault where, after having been exonerated for a ``deduction

overpayment'' and after having been advised of the correct

interpretation of the deduction provision, the individual incurs

another ``deduction overpayment'' under the same circumstances as the

first overpayment. However, in determining whether the individual is

without fault, the Social Security Administration will consider all of

the pertinent circumstances surrounding the prior and subsequent

``deduction overpayments,'' including any physical, mental,

educational, or linguistic limitations (including any lack of facility

with the English language) which the individual may have.

8. The authority citation for subpart J of part 404 is revised 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. 5 of Pub. L. 97-

455, 96 Stat. 2500; sec. 6 of Pub. L. 98-460, 98 Stat. 1802.

9. Section 404.911 is amended by removing the period after

paragraph (a)(3) and replacing it with ``; and'', by adding a new

paragraph (a)(4) after paragraph (a)(3), and by revising paragraph

(b)(9) to read as follows:

Sec. 404.911 Good cause for missing the deadline to request review.

(a) * * *

(4) Whether you had any physical, mental, educational, or

linguistic limitations (including any lack of facility with the English

language) which prevented you from filing a timely request or from

understanding or knowing about the need to file a timely request for

review.

(b) * * *

(9) Unusual or unavoidable circumstances exist, including the

circumstances described in paragraph (a)(4) of this section, which show

that you could not have known of the need to file timely, or which

prevented you from filing timely.

10. Section 404.936 is amended by revising paragraph (d)(7) to read

as follows:

Sec. 404.936 Time and place for a hearing before an administrative law

judge.

* * * * *

(d) * * *

(7) You are unrepresented, and you are unable to respond to the

notice of hearing because of any physical, mental, educational, or

linguistic limitations (including any lack of facility with the English

language) which you may have.

11. Section 404.957 is amended by redesignating paragraphs (b)(1)

and (b)(2) as paragraphs (b)(1)(i) and (b)(1)(ii) and by adding a new

paragraph (b)(2) to read as follows:

Sec. 404.957 Dismissal of a request for a hearing before an

administrative law judge.

* * * * *

(b) * * *

(2) In determining good cause or good reason under this paragraph,

we will consider any physical, mental, educational, or linguistic

limitations (including any lack of facility with the English language)

which you may have.

* * * * *

12. Section 404.988 is amended by revising paragraph (c)(1) to read

as follows:

Sec. 404.988 Conditions for reopening.

* * * * *

(1) It was obtained by fraud or similar fault (see Sec. 416.1488(c)

of this chapter for factors which we take into account in determining

fraud or similar fault);

* * * * *

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

follows:

Authority: Secs. 202, 205(a), (b), and (d)-(h), 216(i), 221(a)

and (i), 222(c), 223, 225, and 1102 of the Social Security Act; 42

U.S.C. 402, 405(a), (b), and (d)-(h), 416(i), 421(a) and (i),

422(c), 423, 425, and 1302, sec. 505(a) of Pub. L. 96-265, 94 Stat.

473; secs. 2(d)(2),5,6, and 15 of Pub L. 98-460, 96 Stat. 1797,

1801, 1802, and 1808; sec. 10103 of Pub. L. 101-239, 103 Stat. 2472.

14. Section 404.1518 is amended by adding a new sentence at the end

of paragraph (a) to read as follows:

Sec. 404.1518 If you do not appear at a consultative examination.

(a) * * * We will consider your physical, mental, educational, and

linguistic limitations (including any lack of facility with the English

language) when determining if you have a good reason for failing to

attend a consultative examination.

* * * * *

15. Section 404.1530 is amended by revising the introductory text

of paragraph (c) to read as follows:

Sec. 404.1530 Need to follow prescribed treatment.

* * * * *

We will consider your physical, mental, educational, and linguistic

limitations (including any lack of facility with the English language)

when determining if you have an acceptable reason for failure to follow

prescribed treatment. The following are examples of a good reason for

not following treatment:

* * * * *

16. Section 404.1579 is amended by revising the section heading and

by revising paragraphs (e)(1) and (e)(2) to read as follows:

Sec. 404.1579 How we will determine whether your disability continues

or ends.

* * * * *

(e) * * *

(1) A prior determination or decision was fraudulently obtained. If

we find that any prior favorable determination or decision was obtained

by fraud, we may find that you are not disabled. In addition, we may

reopen your claim under the rules in Sec. 404.988. In determining

whether a prior favorable determination or decision was fraudulently

obtained, we will take into account any physical, mental, educational,

or linguistic limitations (including any lack of facility with the

English language) which you may have had at the time.

(2) You do not cooperate with us. If there is a question about

whether you continue to be disabled and we ask you to give us medical

or other evidence or to go for a physical or mental examination by a

certain date, we will find that your disability has ended if you fail,

without good cause, to do what we ask. Section 404.911 explains the

factors we consider and how we will determine generally whether you

have good cause for failure to cooperate. In addition, Sec. 404.1518

discusses how we determine whether you have good cause for failing to

attend a consultative examination. The month in which your disability

ends will be the first month in which you failed to do what we asked.

* * * * *

17. Section 404.1586 is amended by revising paragraph (d) to read

as follows:

Sec. 404.1586 Why and when we will stop your cash benefits.

* * * * *

(d) If you do not cooperate with us. If we ask you to give us

medical or other evidence or to go for a medical examination by a

certain date, we will find that your disability has ended if you fail,

without good cause, to do what we ask. Section 404.911 explains the

factors we consider and how we will determine generally whether you

have good cause for failure to cooperate. In addition, Sec. 404.1518

discusses how we determine whether you have good cause for failing to

attend a consultative examination. The month in which your disability

will be found to have ended will be the month in which you failed to do

what we asked.

* * * * *

18. Section 404.1594 is amended by revising the section heading and

by revising paragraphs (e)(1) and (e)(2) to read as follows:

Sec. 404.1594 How we will determine whether your disability continues