Supplemental Security Income for the Aged, Blind, and Disabled; Waiver of Parent-to-Child Deeming for Certain Disabled Children

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Social Security Administration

20 CFR Part 416

[Regulation No. 16]

RIN 0960-AC96

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

Waiver of Parent-to-Child Deeming for Certain Disabled Children

AGENCY: Social Security Administration, HHS.

ACTION: Final rule.

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SUMMARY: This final rule implements section 8010 of the Omnibus Budget

Reconciliation Act of 1989 which provides that a disabled child under

age 18 who lives with his or her parent(s) will not have parental

income or resources deemed to him or her if the child previously

received a reduced supplemental security income (SSI) benefit (personal

needs allowance) while a resident of a medical facility for which

Medicaid paid more than 50 percent of the cost of the individual's

care; the child is eligible for medical assistance under a Medicaid

State home care plan; and the child would otherwise be ineligible for a

Federal SSI benefit because of the deeming of the parents' income or

resources. The rule also provides that, although deeming is waived in

these circumstances, the in-kind support and maintenance provided by

the parents will not be counted. Lastly, when such a child would not be

ineligible because of the deeming of his parents' income but would

receive a benefit of less than the amount payable under section 8010,

the child's benefit will be $30 a month plus any optional State

supplementation. Any of the child's own countable income will then be

deducted from that amount.

EFFECTIVE DATE: This rule is effective January 4, 1995.

FOR FURTHER INFORMATION CONTACT: Sandy Bond, 3-B-1 Operations Building,

6401 Security Boulevard, Baltimore, MD 21235, (410) 965-1794.

SUPPLEMENTARY INFORMATION: Section 1614(f)(2) of the Social Security

Act (the Act), requires that, for purposes of determining eligibility

for and the amount of SSI benefits, the income and resources of a child

under age 18 be deemed to include the income and resources of a parent

(or spouse of a parent) who is living in the same household as the

child, except to the extent determined by the Secretary to be

inequitable under the circumstances. Regulations at Sec. 416.1160

through Sec. 416.1169 explain how we deem income and when it is

inequitable to deem part or all of that income. Regulations at

Sec. 416.1202 through Sec. 416.1204a explain how we deem resources.

Section 8010(a) of Pub. L. 101-239 amended section 1614(f)(2) of

the Act to provide that parental income and resources shall not be

deemed to any child under age 18 who is disabled, received SSI benefits

under section 1611(e)(1)(B) while in an institution described in that

section, is eligible for medical assistance under a State home care

plan approved by the Secretary under the provisions of section 1915(c)

of the Act or authorized under section 1902(e)(3), and, except for this

waiver of deeming, would not be eligible for a Federal SSI benefit.

Section 8010(b) amended section 1611(e)(1)(B) of the Act to include

eligible children as described in section 1614(f)(2)(B) of the Act,

among those eligible for the SSI personal needs allowance. These

provisions became effective June 1, 1990.

The regulation provides that we do not deem parental income and

resources to disabled children who:

Previously received SSI personal needs allowance benefits

while residents of a medical facility for which Medicaid paid more than

fifty percent of the cost of the individuals' care;

Are eligible for medical assistance under Medicaid State

home care plans approved by the Secretary under the provisions of

section 1915(c) of the Act or authorized under section 1902(e)(3); and

Would otherwise be ineligible for a Federal SSI benefit

because of the deeming of their parents' income and/or resources.

The regulation also provides that children for whom the deeming

rules are waived may be eligible to receive an SSI benefit up to the

personal needs allowance (currently $30 monthly), plus an optional

State supplement in certain States. The optional State supplement

payable to a child for whom the deeming rules are waived will be

determined by the State and, if the supplement is administered by the

Federal government, set out in Federal/State agreements.

Further, the regulation states that in-kind support and maintenance

provided by a child's parent(s), which we do not count when deeming of

parental income applies, also will not count when deeming of parental

income is waived under section 1614(f)(2) of the Act. Otherwise, the

counting of such in-kind support and maintenance could negate the

beneficial effect of section 8010 of Pub. L. 101-239.

Finally, the regulation addresses the situation of children who do

not meet the criteria for waiver of deeming only because parental

income is not high enough to make them ineligible for SSI benefits but

is high enough to result in an SSI payment that is less than the amount

that would be payable under section 8010 of Pub. L. 101-239. Under the

regulation, such children would receive an SSI benefit up to the

personal needs allowance plus any optional State supplement. Any of the

child's own countable income would then be deducted from that amount.

This change is being made under the Secretary's discretionary deeming

authority in section 1614(f)(2)(A) of the Act which allows the

Secretary to determine the extent to which deeming of parental income

and resources is inequitable under the circumstances. This change is

necessary to prevent anomalies from being introduced into parent-to-

child deeming.

We published this regulation as a notice of proposed rulemaking

(NPRM) on September 22, 1993, (58 FR 49249). The 60-day comment period

ended on November 22, 1993. We received no comments and are adopting

the regulation as proposed.

Regulatory Procedures

Executive Order No. 12866

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

and determined that this rule does not meet [[Page 361]] the criteria

for a significant regulatory action under Executive Order 12866. Thus,

it was not subject to OMB review.

Regulatory Flexibility Act

We certify that this regulation 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 Pub. L. 96-354, the Regulatory

Flexibility Act, is not required.

Paperwork Reduction Act of 1980

This 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, Supplemental Security Income

(SSI), Reporting and recordkeeping requirements.

Dated: November 10, 1994.

Shirley Chater,

Commissioner of Social Security.

Approved: December 27, 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 D of Part 416 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.

2. New Sec. 416.415 is added to read as follows:

Sec. 416.415 Amount of benefits; eligible individual is disabled child

under age 18.

(a) If you are a disabled child under age 18 and meet the

conditions in Sec. 416.1165(i) for waiver of deeming, your parents'

income will not be deemed to you and your benefit rate will be $30 a

month.

(b) If you are a disabled child under age 18 and do not meet the

conditions in Sec. 416.1165(i) only because your parents' income is not

high enough to make you ineligible for SSI but deeming of your parents'

income would result in an SSI benefit less than the amount payable if

you received benefits as a child under Sec. 416.1165(i), your benefit

will be the amount payable if you received benefits as a child under

Sec. 416.1165(i).

3. The authority citation for Subpart K of Part 416 continues 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.

4. Section 416.1148 is revised to read as follows:

Sec. 416.1148 If you have both in-kind support and maintenance and

income that is deemed to you.

(a) The one-third reduction and deeming of income. If you live in

the household of your spouse, parent, essential person, or sponsor

whose income can be deemed to you, or the household of a parent whose

income is not deemed to you because of the provisions of

Sec. 416.1165(i), the one-third reduction does not apply to you. The

rules on deeming income are in Secs. 416.1160 through 416.1169.

However, if you live in another person's household as described in

Sec. 416.1131, and someone whose income can be deemed to you lives in

the same household, we must apply both the one-third reduction and the

deeming rules to you.

(b) The presumed value rule and deeming of income. (1) If you live

in the same household with someone whose income can be deemed to you

(Secs. 416.1160 through 416.1169), or with a parent whose income is not

deemed to you because of the provisions of Sec. 416.1165(i), any food,

clothing, or shelter that person provides is not income to you.

However, if you receive any food, clothing, or shelter from another

source, it is income and we value it under the presumed value rule

(Sec. 416.1140). We also apply the deeming rules.

(2) If you are a child under age 18 who lives in the same household

with an ineligible parent whose income may be deemed to you, and you

are temporarily absent from the household to attend school

(Sec. 416.1167(b)), any food, clothing, or shelter you receive at

school is income to you unless your parent purchases it. Unless

otherwise excluded, we value this income under the presumed value rule

(Sec. 416.1140). We also apply the deeming rules to you

(Sec. 416.1165).

5. In Sec. 416.1165, the introductory text is revised and a new

paragraph (i) is added to read as follows:

Sec. 416.1165 How we deem income to you from your ineligible parents.

If you are a child living with your parents, we apply the deeming

rules to you through the month in which you reach age 18. We follow the

rules in paragraphs (a) through (e) of this section to determine your

eligibility. To determine your benefit amount, we follow the rules in

paragraph (f) of this section. The rules in paragraph (g) of this

section apply to changes in your family situation. Paragraph (i) of

this section discusses the conditions under which we will not deem your

ineligible parents' income to you if you are a disabled child living

with your parents.

* * * * *

(i) Disabled child under age 18.

If you are a disabled child under the age of 18 living with your

parents, we will not deem your parents' income to you if--

(1) You previously received a reduced SSI benefit while a resident

of a medical facility for which Medicaid paid more than 50 percent of

the cost of your care;

(2) You are eligible for medical assistance under a Medicaid State

home care plan approved by the Secretary under the provisions of

section 1915(c) or authorized under section 1902(e)(3) of the Act; and

(3) You would otherwise be ineligible for a Federal SSI benefit

because of the deeming of your parents' income or resources.

6. The authority citation of Subpart L of Part 416 continues 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.

7. In Sec. 416.1202, paragraph (b) is revised to read as follows:

Sec. 416.1202 Deeming of resources.

* * * * *

(b) Child--(1) General. In the case of a child (as defined in

Sec. 416.1856) who is under age 18, such child's resources shall be

deemed to include any resources, not otherwise excluded under this

subpart, of an ineligible parent of such child (or the ineligible

spouse of a parent) who is living in the same household (as defined in

Sec. 416.1851) as such child, whether or not available to such child,

to the extent that the resources of such parent (or such spouse of a

parent) exceed the resource limits described in Sec. 416.1205 except as

provided in paragraph (b)(2) of this section. (If the child is living

with only one parent, the resource limit for an individual applies. If

the child is living with both parents (or one parent and his

[[Page 362]] or her spouse), the resource limit for an individual and

spouse applies.) In addition to the exclusions listed in Sec. 416.1210,

pension funds which the ineligible parent or spouse of a parent may

have are also excluded. ``Pension funds'' are defined in paragraph (a)

of this section. As used in this section, the term ``parent'' means the

natural or adoptive parent of a child and ``spouse of a parent'' means

the spouse (as defined in Sec. 416.1806) of such natural or adoptive

parent.

(2) Disabled child under age 18. In the case of a disabled child

under age 18 who is living in the same household with his or her

parents, the deeming provisions of paragraph (b)(1) of this section

shall not apply if such child--

(i) Previously received a reduced SSI benefit while a resident of a

medical facility for which Medicaid paid more than 50 percent of the

cost of the individual's care;

(ii) Is eligible for medical assistance under a Medicaid State home

care plan approved by the Secretary under the provisions of section

1915(c) or authorized under section 1902(e)(3) of the Act; and

(iii) Would otherwise be ineligible because of the deeming of his

or her parents' resources or income.

* * * * *

[FR Doc. 95-115 Filed 1-3-95; 8:45 am]

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