Administrative Regulations; Tort Claims

SOCIAL SECURITY ADMINISTRATION

20 CFR Part 429

RIN 0960-AE51

Administrative Regulations; Tort Claims

AGENCY: Social Security Administration (SSA).

ACTION: Final rule.

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SUMMARY: These final rules adopt as SSA rules the same procedures and

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practices on tort claims against the Government that were applicable to

SSA when it was a component of HHS. The Social Security Independence

and Program Improvements Act of 1994 established the Social Security

Administration as an independent agency in the executive branch of the

United States Government effective March 31, 1995 and vested general

regulatory authority in the Commissioner of Social Security. These

regulations establish a new part 429 in title 20 of the Code of Federal

Regulations.

EFFECTIVE DATE: These rules are effective May 5, 1997.

FOR FURTHER INFORMATION CONTACT: Suzanne DiMarino, Division of

Regulations and Rulings, Social Security Administration, 6401 Security

Boulevard, Baltimore, MD 21235, (410) 965-1769 for information about

this rule. For information on eligibility or claiming benefits, call

our national toll-free number, 1-800-772-1213.

SUPPLEMENTARY INFORMATION: Prior to March 31, 1995, SSA was an

operating component of the Department of Health and Human Services

(HHS) and the general regulatory authority for SSA programs and

administration was vested in the Secretary of Health and Human Services

(the Secretary) based on section 1102 of the Social Security Act (the

Act) (42 U.S.C. Sec. 1302). The SSIPIA established SSA as an

independent agency in the Executive Branch of the Federal government

effective March 31, 1995 and vested general regulatory authority in the

Commissioner of Social Security (the Commissioner). SSA continues to

administer the old-age, survivors, and disability insurance programs

under title II and the supplemental security income program under title

XVI.

These final rules adopt, with only technical changes, into a new

part 429 for SSA, the same procedures and practices set out in 45 CFR

part 35, entitled, Tort Claims Against the Government. The rules at 45

CFR part 35 prescribe the procedure HHS follows when claims are

asserted under the Federal Tort Claims Act for money damages against

the United States for damage to or loss of property or personal injury

or death caused by the negligent or wrongful act or omission of any HHS

employee.

All changes are technical, that is, changes in names, addresses and

legal citations, or paragraph redesignation. These final rules also

amend our regulations to revise references to HHS, HEW or ``the

Secretary'' to refer to the Social Security Administration or ``the

Commissioner''. They also delete references to other operating

divisions, major components, or principal operating components of HEW

or HHS and refer solely to SSA.

Electronic Version

The electronic file of this document is available on the Federal

Bulletin Board (FBB) at 9:00 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.

Regulatory Procedures

When required, SSA follows the Administrative Procedure Act (APA)

rulemaking procedures specified in 5 U.S.C. 553. The APA provides

exceptions to its prior notice and public comment procedures when an

agency finds there is good cause for dispensing with such procedures on

the basis that they are impracticable, unnecessary, or contrary to the

public interest. We have determined that, since these final rules

reflect a continuation of the procedures and practices in effect when

SSA was an operating component of the HHS, notice of proposed

rulemaking and public comment procedures are unnecessary. Accordingly,

we have determined that, under 5 U.S.C. 553(b)(B), good cause exists

for dispensing with the notice and public comment procedures in this

case. Good cause exists because the only changes are minor and

technical in nature. These changes make no substantive change in the

regulations and have no impact on the public. Therefore, opportunity

for prior comment is unnecessary, and we are issuing these changes to

our regulations as a final rule.

SSA is not providing a 30-day delay in the effective date of this

final rule under 5 U.S.C. 553(d). This is not a substantive rule, and

there is no change in policy. Accordingly, it is in the public interest

to make these regulations effective on publication.

Executive Order 12866

SSA has consulted with the Office of Management and Budget (OMB)

and determined that this final rule does not meet the criteria for a

significant regulatory action under Executive Order 12866. Thus, it was

not subject to OMB review.

Regulatory Flexibility Act

SSA certifies that this final rule will not have a significant

economic impact on a substantial number of small entities since it

makes no changes in policy. Therefore, a regulatory flexibility

analysis as provided in Public Law 96-354, the Regulatory Flexibility

Act, is not required.

Paperwork Reduction Act

This final rule imposes 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; 96.003 Social Security--Special Benefits for Persons Aged

72 and Over; 96.004 Social Security--Survivors Insurance; 96.005

Special Benefits for Disabled Coal Miners; 96.006 Supplemental

Security Income; 96.007 Social Security--Research and Demonstration)

List of Subjects in 20 CFR Part 429

Claims.

Dated: April 15, 1997.

John J. Callahan,

Acting Commissioner of Social Security.

For reasons set out in the preamble, Chapter III of Title 20 of the

Code of Federal Regulations is amended by adding the following:

PART 429--ADMINISTRATIVE REGULATIONS

Tort Claims Against the Government

Sec.

429.101 Scope of regulations.

429.102 Administrative claims; when presented; place of filing.

429.103 Administrative claims; who may file.

429.104 Administrative claims; evidence and information to be

submitted.

429.105 Investigation, examination, and determination of claims.

429.106 Final denial of claims.

429.107 Payment of approved claims.

429.108 Release.

429.109 Penalties.

429.110 Limitation on SSA's authority.

Authority: Sec. 702(a)(5) of the Social Security Act (42 U.S.C.

Sec. 902(a)(5)), 28 U.S.C. Sec. 2672; 28 CFR Part 14.

Sec. 429.101 Scope of regulations.

The regulations in this part shall apply only to claims asserted

under the Federal Tort Claims Act, as amended, 28 U.S.C. sections 2671-

2680, for money damages against the United States for damage to or loss

of property or personal injury or death caused by the negligent or

wrongful act or omission of any employee of the Social Security

Administration (SSA) while acting within the scope of his office or

employment.

Sec. 429.102 Administrative claims; when presented; place of filing.

(a) For purposes of the regulations in this part, a claim shall be

deemed to have been presented when SSA

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receives, at a place designated in paragraph (c) of this section, an

executed Standard Form 95 or other written notification of an incident

accompanied by a claim for money damages in a sum certain for damage to

or loss of property, for personal injury, or for death, alleged to have

occurred by reason of the incident. A claim which should have been

presented to SSA but which was mistakenly addressed to or filed with

another Federal agency, shall be deemed to be presented to SSA as of

the date that the claim is received by SSA. A claim mistakenly

addressed to or filed with SSA shall forthwith be transferred to the

appropriate Federal agency, if ascertainable, or returned to the

claimant.

(b) A claim presented in compliance with paragraph (a) of this

section may be amended by the claimant at any time prior to final

action by the SSA Claims Officer or prior to the exercise of the

claimant's option to bring suit under 28 U.S.C. 2675(a). Amendments

shall be submitted in writing and signed by the claimant. Upon the

timely filing of an amendment to a pending claim, SSA shall have 6

months in which to make a final disposition of the claim as amended and

the claimant's option under 28 U.S.C. 2675(a) shall not accrue until 6

months after the filing of an amendment.

(c) Forms may be obtained from and claims may be filed with the SSA

Claims Officer, Room 611, Altmeyer Building, 6401 Security Boulevard,

Baltimore, Maryland 21235.

Sec. 429.103 Administrative claims; who may file.

(a) A claim for injury to or loss of property may be presented by

the owner of the property interest which is the subject of the claim,

his duly authorized agent, or his legal representative.

(b) A claim for personal injury may be presented by the injured

person, his duly authorized agent, or his legal representative.

(c) A claim based on death may be presented by the executor or

administrator of the decedent's estate or by any other person legally

entitled to assert such a claim under applicable state law.

(d) A claim for loss wholly compensated by an insurer with the

rights of a subrogee may be presented by the insurer. A claim for loss

partially compensated by an insurer with the rights of a subrogee may

be presented by the insurer or the insured individually, as their

respective interests appear, or jointly. Whenever an insurer presents a

claim asserting the rights of a subrogee, he shall present with his

claim appropriate evidence that he has the rights of a subrogee.

(e) A claim presented by an agent or legal representative shall be

presented in the name of the claimant, be signed by the agent or legal

representative, show the title or legal capacity of the person signing,

and be accompanied by evidence of his authority to present a claim on

behalf of the claimant as agent, executor, administrator, parent,

guardian, or other representative.

Sec. 429.104 Administrative claims; evidence and information to be

submitted.

(a) Death. In support of a claim based on death, the claimant may

be required to submit the following evidence or information:

(1) An authenticated death certificate or other competent evidence

showing cause of death, date of death, and age of the decedent.

(2) Decedent's employment or occupation at time of death, including

his monthly or yearly salary or earnings (if any), and the duration of

his last employment or occupation.

(3) Full names, addresses, birth dates, kinship, and marital status

of the decedent's survivors, including identification of those

survivors who were dependent for support upon the decedent at the time

of his death.

(4) Degree of support afforded by the decedent to each survivor

dependent upon him for support at the time of his death.

(5) Decedent's general physical and mental condition before death.

(6) Itemized bills for medical and burial expenses incurred by

reason of the incident causing death, or itemized receipts of payments

for such expenses.

(7) If damages for pain and suffering prior to death are claimed, a

physician's detailed statement specifying the injuries suffered,

duration of pain and suffering, any drugs administered for pain and the

decedent's physical condition in the interval between injury and death.

(8) Any other evidence or information which may have a bearing on

either the responsibility of the United States for the death or the

damages claimed.

(b) Personal injury. In support of a claim for personal injury,

including pain and suffering, the claimant may be required to submit

the following evidence or information:

(1) A written report by his attending physician or dentist setting

forth the nature and extent of the injury, nature and extent of

treatment, any degree of temporary or permanent disability, the

prognosis, period of hospitalization, and any diminished earning

capacity. In addition, the claimant may be required to submit to a

physical or mental examination by a physician employed or designated by

SSA. A copy of the report of the examining physician shall be made

available to the claimant upon the claimant's written request provided

that claimant has, upon request, furnished the report referred to in

the first sentence of this paragraph (b)(1) and has made or agrees to

make available to SSA any other physician's reports previously or

thereafter made of the physical or mental condition which is the

subject matter of his claim.

(2) Itemized bills for medical, dental, and hospital expenses

incurred, or itemized receipts of payment for such expenses.

(3) If the prognosis reveals the necessity for future treatment, a

statement of expected duration of and expenses for such treatment.

(4) If a claim is made for loss of time from employment, a written

statement from his employer showing actual time lost from employment,

whether he is a full or part-time employee, and wages or salary

actually lost.

(5) If a claim is made for loss of income and the claimant is self-

employed, documentary evidence showing the amount of earnings actually

lost.

(6) Any other evidence or information which may have a bearing on

either the responsibility of the United States for the personal injury

or the damages claimed.

(c) Property damage. In support of a claim for damage to or loss of

property, real or personal, the claimant may be required to submit the

following evidence or information:

(1) Proof of ownership.

(2) A detailed statement of the amount claimed with respect to each

item of property.

(3) An itemized receipt of payment for necessary repairs or

itemized written estimates of the cost of such repairs.

(4) A statement listing date of purchase, purchase price, market

value of the property as of date of damage, and salvage value, where

repair is not economical.

(5) Any other evidence or information which may have a bearing

either on the responsibility of the United States for the injury to or

loss of property or the damages claimed.

(d) Time limit. All evidence required to be submitted by this

section shall be furnished by the claimant within a reasonable time.

Failure of a claimant to furnish evidence necessary to a determination

of his claim within three months after a request therefor has been

mailed to his last known address may be deemed an abandonment of the

claim.

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The claim may be thereupon disallowed.

Sec. 429.105 Investigation, examination, and determination of claims.

When a claim is received, SSA shall make such investigation as may

be necessary or appropriate for a determination of the validity of the

claim and thereafter shall forward the claim, together with all

pertinent material, and a recommendation based on the merits of the

case, with regard to allowance or disallowance of the claim, to the SSA

Claims Officer to whom authority has been delegated to adjust,

determine, compromise and settle all claims hereunder.

Sec. 429.106 Final denial of claims.

(a) Final denial of an administrative claim shall be in writing and

sent to the claimant, his attorney, or legal representative by

certified or registered mail. The notification of final denial may

include a statement of the reasons for the denial and shall include a

statement that, if the claimant is dissatisfied with SSA's action, he

may file suit in an appropriate U.S. District Court not later than 6

months after the date of mailing of the notification.

(b) Prior to the commencement of suit and prior to the expiration

of the 6-month period after the date of mailing, by certified or

registered mail of notice of final denial of the claim as provided in

28 U.S.C. 2401(b), a claimant, his duly authorized agent, or legal

representative, may file a written request with SSA for reconsideration

of a final denial of a claim under paragraph (a) of this section. Upon

the timely filing of a request for reconsideration SSA shall have 6

months from the date of filing in which to make a final disposition of

the claim and the claimant's option under 28 U.S.C. 2675(a) to bring

suit shall not accrue until 6 months after the filing of a request for

reconsideration. Final SSA action on a request for reconsideration

shall be effected in accordance with the provisions of paragraph (a) of

this section.

Sec. 429.107 Payment of approved claims.

(a) Upon allowance of his claim, claimant or his duly authorized

agent shall sign the voucher for payment, Standard Form 1145, before

payment is made.

(b) When the claimant is represented by an attorney, the voucher

for payment (SF 1145) shall designate both the claimant and his

attorney as ``payees.'' The check shall be delivered to the attorney

whose address shall appear on the voucher.

Sec. 429.108 Release.

Acceptance by the claimant, his agent or legal representative, of

any award, compromise or settlement made hereunder, shall be final and

conclusive on the claimant, his agent or legal representative and any

other person on whose behalf or for whose benefit the claim has been

presented, and shall constitute a complete release of any claim against

the United States and against any employee of the Government whose act

or omission gave rise to the claim, by reason of the same subject

matter.

Sec. 429.109 Penalties.

A person who files a false claim or makes a false or fraudulent

statement in a claim against the United States may be liable to a fine

of not more than $10,000 or to imprisonment of not more than 5 years,

or both (18 U.S.C. Secs. 287; 1001), and, in addition, to a forfeiture

of $2,000 and a penalty of double the loss or damage sustained by the

United States (31 U.S.C. Sec. 231).

Sec. 429.110 Limitation on SSA's authority.

(a) An award, compromise or settlement of a claim hereunder in

excess of $25,000 shall be effected only with the prior written

approval of the Attorney General or his designee. For the purposes of

this paragraph, a principal claim and any derivative or subrogated

claim shall be treated as a single claim.

(b) An administrative claim may be adjusted, determined,

compromised or settled hereunder only after consultation with the

Department of Justice when, in the opinion of SSA:

(1) A new precedent or a new point of law is involved; or

(2) A question of policy is or may be involved; or

(3) The United States is or may be entitled to indemnity or

contribution from a third party and SSA is unable to adjust the third

party claim; or

(4) The compromise of a particular claim, as a practical matter,

will or may control the disposition of a related claim in which the

amount to be paid may exceed $25,000.

(c) An administrative claim may be adjusted, determined,

compromised or settled only after consultation with the Department of

Justice when it is learned that the United States or an employee, agent

or cost plus contractor of the United States is involved in litigation

based on a claim arising out of the same incident or transaction.

[FR Doc. 97-11530 Filed 5-2-97; 8:45 am]

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