Living In The Same Household And The Lump-Sum Death Payment

SOCIAL SECURITY ADMINISTRATION

20 CFR Part 404

[Regulation No. 4]

RIN 0960-AE20

Living In The Same Household And The Lump-Sum Death Payment

AGENCY: Social Security Administration.

ACTION: Proposed rules.

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SUMMARY: We propose to revise our rules on ``living in the same

household'' (LISH) and the lump-sum death payment (LSDP) to bring them

into accord with legislation that restricted the payment of the LSDP.

This revision will include the removal from our regulations of several

outdated sections and paragraphs. We also propose to incorporate into

our rules the policy established previously in a Social Security Ruling

(SSR) that interpreted the definition of LISH to allow for extended

separations that are based solely on medical reasons.

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

them no later than February 5, 1996.

ADDRESSES: Comments should be submitted in writing to the Commissioner

of Social Security, P.O. Box 1585, Baltimore, MD 21235, sent by telefax

to (410) 966-2830, sent by E-mail to ``[email protected]'', or

delivered to the Division of Regulations and Rulings, Social Security

Administration, 3-B-1 Operations Building, 6401 Security Boulevard,

Baltimore, MD 21235, between 8:00 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: Daniel T. Bridgewater, Legal

Assistant, Division of Regulations and Rulings, Social Security

Administration, 6401 Security Boulevard, Baltimore, MD 21235, (410)

965-3298 for information about these rules. For information on

eligibility or claiming benefits, call our national toll-free number,

1-800-772-1213.

SUPPLEMENTARY INFORMATION:

Background

Prior to passage of the Omnibus Budget Reconciliation Act of 1981,

Public Law (Pub. L.) 97-35, the widow(er) of a deceased worker could

qualify for the LSDP if he/she had been LISH with the deceased at the

time of death or, under certain conditions, if he/she paid the burial

expenses of the deceased. Thus, a widow(er) who was not LISH with the

deceased could still receive the LSDP if he/she paid the deceased's

burial expenses.

Public Law 97-35 redefined who could qualify for the LSDP.

Effective September 1, 1981, the LSDP no longer was payable to any

individuals, other than those described in Pub. L. 97-35, or to funeral

homes.

Under Public Law 97-35, the LSDP is payable to 3 categories of

individuals: (1) the surviving spouse of the deceased who was LISH with

the deceased at the time of death; (2) a person who is entitled to (or

was eligible for) benefits as a widow(er) or mother or father on the

deceased's earnings record for the month of death; or (3) a child of

the deceased who is entitled to (or was eligible for) benefits on the

deceased's earnings record for the month of death.

For those widow(ers) who were not LISH, a possible anomaly was

created by the LSDP limitations in Public Law 97-35 and existing

regulations. An example of such an anomaly is the following situation.

A worker had been living in a nursing home for 3 years prior to his

death because his wife was unable to provide the daily medical care he

needed. Until

[[Page 62355]]

his death, the worker was visited frequently by his wife, who lived in

the house to which the worker would have returned if he were able. The

widow was receiving a Retirement Insurance Benefit (RIB) which exceeded

her late husband's Primary Insurance Amount (PIA). Based on Pub. L. 97-

35 and a strict interpretation of the regulatory definition of LISH,

this widow would not qualify for the LSDP because she was neither LISH

nor entitled to benefits based on her late husband's earnings record.

(However, if the widow's RIB did not exceed her late husband's PIA, she

would qualify for the LSDP.)

Present Policy

Operating instructions, as well as most of the pertinent regulatory

sections, have been changed to reflect the changes in the law

established by Public Law 97-35. To qualify as a LISH spouse, the

widow(er) and the deceased must have ``customarily lived together as

husband and wife in the same residence'' (Sec. 404.347). While

temporary separations do not necessarily preclude the Social Security

Administration (SSA) from considering a couple to be LISH, extended

separations (including most that last 6 months or more) generally

indicate the couple was not LISH.

However, in order to avoid the possible anomaly discussed above,

SSR 82-50 was issued to provide for an exception when an extended

separation is based solely on medical reasons. SSR 82-50 states:

If a husband and wife are (or were) separated and continue(d) to

be separated, solely for medical reasons, SSA may consider them to

be living in the same household even if the separation is (or was)

likely to be permanent and there is (or was) little or no

expectation of the parties again physically residing together. As

long as the spouse who is now applying for the LSDP or spouse's

benefits based on a deemed marriage has continued to demonstrate

strong personal and/or financial concern for the worker, SSA will

assume they would have lived together (absent evidence to the

contrary) had the medical reasons not necessitated their separation,

and will pay the LSDP or spouse's benefits to the spouse.

Proposed Policy

Since there are still some sections of our regulations that refer

to the law on entitlement to the LSDP which predated Public Law 97-35

and since these sections no longer are applicable, we propose to update

or remove them. We will eliminate obsolete Secs. 404.393, 404.394,

404.395, and 404.765, 404.3(a), 404.612(e), 404.615(b), and 404.2

(a)(2) through (a)(6).

Also, we propose to incorporate the LISH policy interpretation

found in SSR 82-50 into our regulations. The proposed policy

interpretation will clearly allow for extended separations due to the

confinement of either spouse in a nursing home, hospital, or other

medical institution. As long as evidence indicates the husband and wife

were initially separated, and continue to be separated, solely for

medical reasons and would otherwise have resided together, they will be

considered to be LISH.

Electronic Version

The electronic file of this document is available on the Federal

Bulletin Board (FBB) at 9 a.m. on the date of publication in the

Federal Register. To download the file, modem dial (202) 512-1387. The

FBB instructions will explain how to download the file and the fee.

This file is in WordPerfect and will remain on the FBB during the

comment period.

Regulatory Procedures

Executive Order 12866

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

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

significant regulatory action under Executive Order 12866. Thus, they

were not subject to OMB review.

Regulatory Flexibility Act

We certify that these proposed rules will not have a significant

economic impact on a substantial number of small entities since these

rules 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 proposed rules impose no additional reporting or

recordkeeping requirements subject to OMB clearance.

(Catalog of Federal Domestic Assistance Program Nos. 96.001 Social

Security--Disability Insurance; 96.002 Social Security--Retirement

Insurance; 96.004 Social Security--Survivors Insurance)

List of Subjects in 20 CFR Part 404

Administrative practice and procedure, Blind, Disability benefits,

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

recordkeeping requirements, Social security.

Dated: November 27, 1995.

Shirley S. Chater,

Commissioner of Social Security.

For the reasons set out in the preamble, subparts A, D, G, and H of

part 404 of chapter III of title 20 of the Code of Federal Regulations

are proposed to be amended as follows:

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

(1950- )

Subpart A--[Amended]

1. The authority citation for subpart A of part 404 is revised to

read as follows:

Authority: Secs. 203, 205(a), 216(j), and 702(a)(5) of the

Social Security Act (42 U.S.C. 203, 405(a), 416(j), and 902(a)(5)).

Sec. 404.2 [Amended]

2. Section 404.2 is amended by removing paragraphs (a)(2) through

(a)(6) and redesignating paragraph (a)(7) as paragraph (a)(2).

Sec. 404.3 [Amended]

3. Section 404.3 is amended by removing paragraph (a) and

redesignating paragraphs (b) and (c) as paragraphs (a) and (b),

respectively.

Subpart D--[Amended]

4. The authority citation for subpart D of part 404 is revised to

read as follows:

Authority: Secs. 202, 203 (a) and (b), 205(a), 216, 223, 225,

228(a)-(e), and 702(a)(5) of the Social Security Act (42 U.S.C. 402,

403 (a) and (b), 405(a), 416, 423, 425, 428(a)-(e), and 902(a)(5)).

5. Section 404.347 is revised to read as follows:

Sec. 404.347 ``Living in the same household'' defined.

Living in the same household means that you and the insured

customarily lived together as husband and wife in the same residence.

You may be considered to be living in the same household although one

of you is temporarily absent from the residence. An absence will be

considered temporary if:

(a) It was due to service in the U.S. Armed Forces;

(b) It was 6 months or less and neither you nor the insured were

outside of the United States during this time and the absence was due

to business, employment, or confinement in a hospital, nursing home,

other medical institution, or a penal institution;

(c) It was for an extended separation, regardless of the duration,

due to the confinement of either you or the insured in a hospital,

nursing home, or other medical institution, if the evidence indicates

that you were separated solely for medical reasons and you otherwise

would have resided together; or

(d) It was based on other circumstances, and it is shown that you

and the insured reasonably could have

[[Page 62356]]

expected to live together in the near future.

6. Section 404.390 is amended by revising the second sentence to

read as follows:

Sec. 404.390 General.

* * * If the insured is not survived by a widow(er) who meets this

requirement, all or part of the $255 payment may be made to someone

else as described in Sec. 404.392.

7. Section 404.392 is amended by revising the section heading and

the introductory text of paragraph (a) to read as follows:

Sec. 404.392 Who is entitled to the lump-sum death payment when there

is no widow(er) who was living in the same household.

(a) General. If the insured individual is not survived by a

widow(er) who meets the requirements of Sec. 404.391, the lump-sum

death payment shall be paid as follows:

* * * * *

Sec. 404.393 [Removed]

8. Section 404.393 is removed.

Sec. 404.394 [Removed]

9. Section 404.394 is removed.

Sec. 404.395 [Removed]

10. Section 404.395 is removed.

Subpart G--[Amended]

11. The authority citation for subpart G of part 404 is revised to

read as follows:

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

216(i)(2), 223(b), 228(a), and 702(a)(5) of the Social Security Act

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

423(b), 428(a), and 902(a)(5)).

Sec. 404.612 [Amended]

12. Section 404.612 is amended by removing paragraph (e) and

redesignating paragraphs (f), (g), and (h) as paragraphs (e), (f), and

(g), respectively.

Sec. 404.615 [Amended]

13. Section 404.615 is amended by removing paragraph (b) and

redesignating paragraphs (c) and (d) as paragraphs (b) and (c),

respectively.

Subpart H--[Amended]

14. The authority citation for subpart H of part 404 is revised to

read as follows:

Authority: Secs. 205(a) and 702(a)(5) of the Social Security Act

(42 U.S.C. 405(a) and 902(a)(5)).

Sec. 404.765 [Removed]

15. Section 404.765 is removed.

[FR Doc. 95-29533 Filed 12-5-95; 8:45 am]

BILLING CODE 4190-29-P