Deeming in the Supplemental Security Income (SSI) Program When an Ineligible Spouse or Parent is Absent From the Household Due Solely to Active Military Service

SOCIAL SECURITY ADMINISTRATION

20 CFR Part 416

[Regulations No. 16]

RIN 0960-AD86

Deeming in the Supplemental Security Income (SSI) Program When an

Ineligible Spouse or Parent is Absent From the Household Due Solely to

Active Military Service

AGENCY: Social Security Administration.

ACTION: Final rule.

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SUMMARY: We are adding a rule on how the income and resources of

ineligible spouses or parents affect the eligibility and benefit

amounts of Supplemental Security Income (SSI) claimants and recipients

when those spouses or parents are absent from their households due

solely to a duty assignment as a member of the Armed Forces on active

duty. We are adding this rule because the current rules do not reflect

the provision of the Social Security Act (the Act), as amended by the

Omnibus Budget Reconciliation Act of 1993 (OBRA 1993), that addresses

this situation.

DATES: This rule is effective September 8, 1997.

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 this rule.

For information on eligibility or claiming benefits, call our

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

SUPPLEMENTARY INFORMATION: Regulations at Sec. 416.1167(a) state

that a ``temporary'' absence, for SSI deeming purposes, occurs when

an SSI claimant/recipient, an ineligible spouse or parent, or an

ineligible child leaves the household but intends to, and does,

return in the same month or the month immediately following. If the

absence is temporary, we continue to consider the person a member

of the household for deeming purposes.

Under our policy prior to October 1, 1993, an ineligible spouse or

parent who was absent from an SSI claimant's or recipient's household

for any reason, including active duty military service, and whose

absence was not temporary (Sec. 416.1167(a)), was not considered to be

a member of the household for deeming purposes effective with the first

day of the month following the month the spouse or parent left the

household.

Section 13733(a) of OBRA 1993 (Pub. L. 103-66) changed SSI policy,

effective October 1, 1993, on the treatment of ineligible spouses and

parents who are absent from deeming households solely because of active

duty military assignments. Under this legislation, which added

paragraph (4) to section 1614(f) of the Act, the service member

continues to be considered a member of the household, absent evidence

to the contrary, for income and resources deeming purposes. Current

regulations do not specifically address this situation.

The change in the deeming rules made by section 13733(a) of Public

Law 103-66 was intended to prevent an absent deemor's active military

service from adversely affecting an SSI claimant's or recipient's

benefits. Prior to the change in the deeming rules, and under certain

circumstances, it was possible for an individual to receive a smaller

SSI benefit--or no benefit at all--as a result of a spouse's or

parent's absence from the household due to military service.

For SSI purposes, the treatment of an ineligible spouse's or

parent's earnings differs depending on whether the spouse or parent is

considered to be living in the same household as the SSI recipient. If

the spouse or parent is considered to be living in the same household

as the SSI recipient, the earnings are treated as earned income. If the

spouse or parent is not considered to be living in the same household,

any earnings that are made available to the household are treated as

unearned income. In the SSI program, more generous exclusions apply to

earned income than to unearned income.

For example, under prior policy, if an absent military member whose

income and resources were no longer deemed sent wages home, or his or

her wages were directly deposited into a bank account held jointly with

other family members, income so received by household members was

considered to be unearned for SSI eligibility and payment computation

purposes. In contrast, wages received while the military deemor resided

in the household were considered to be earned income for program

purposes. Accordingly, prior policy had the effect of disadvantaging

certain SSI claimants and recipients.

As a result of section 13733(a) of OBRA 1993, a military spouse's

or parent's absence from the SSI household because of an active duty

assignment is generally not considered for program purposes; the same

deeming rules that apply to ``at home'' spouses and parents will

generally apply to spouses and parents who are temporarily absent from

the household due to active duty military service. Therefore, we are

amending our regulations at Sec. 416.1167 to reflect section 13733(a)

of OBRA 1993.

The statute and the rule recognize that circumstances may change,

and an absent service member who originally intended to continue to

live in the deeming household may decide not to do so. Taking this into

consideration, under the final rule, we provide that if an absent

service member's intent to continue to live in the household changes,

deeming stops beginning with the month following the month in which the

intent changed.

We assume, absent evidence to the contrary, that the absent service

member intends to return to the deeming household upon conclusion of

the military assignment. ``Evidence to the contrary'' is evidence

indicating that the service member does not intend to return to the

deeming household upon conclusion of the military assignment. Evidence

to the contrary includes (but is not limited to) a signed statement by

the ``at home'' spouse or parent, or by the absent service member,

indicating that the service member does not intend to return to the

deeming household. Other examples of evidence to the contrary are

evidence of divorce or legal separation that will result in the service

member not returning to the deeming household. Also, diminished support

from the absent service member to the household--e.g., an absent spouse

who no longer makes his or her military wages available to the deeming

household--may be evidence that the absent service member no longer

intends to return to the deeming household.

On January 24, 1997, we published this final rule as a proposed

rule in the Federal Register at 62 FR 3633 with a 60-day comment

period. We received no comments during the public comment period.

Therefore, we are publishing the final rule unchanged from the proposed

rule.

Regulatory Procedures

Executive Order 12866

We have consulted with the Office of Management and Budget and

determined that this rule does not meet

[[Page 42411]]

the criteria for a significant regulatory action under Executive Order

12866.

Regulatory Flexibility Act

We certify that this rule will not have a significant economic

impact on a substantial number of small entities since this rule

affects only individuals. Therefore, a regulatory flexibility analysis

as provided in the Regulatory Flexibility Act, as amended, is not

required.

Paperwork Reduction Act

This rule imposes no additional reporting or recordkeeping

requirements subject to Office of Management and Budget clearance.

(Catalog of Federal Domestic Assistance: Program No. 96.006-

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 (SSI).

Dated: July 28, 1997.

John J. Callahan,

Acting Commissioner for Social Security.

For the reasons set out in the preamble, part 416 of chapter III of

title 20 of the Code of Federal Regulations is amended as follows:

PART 416--SUPPLEMENTAL SECURITY INCOME FOR THE AGED, BLIND, AND

DISABLED

Subpart K--[Amended]

1. The authority citation for subpart K of part 416 continues to

read as follows:

Authority: Secs. 702(a)(5), 1602, 1611, 1612, 1613, 1614(f),

1621, and 1631 of the Social Security Act (42 U.S.C. 902(a)(5),

1381a, 1382, 1382a, 1382b, 1382c(f), 1382j, and 1383); sec. 211 of

Pub. L. 93-66, 87 Stat. 154 (42 U.S.C. 1382 note).

2. Section 416.1167 is amended by adding new paragraph (c) to read

as follows:

Sec. 416.1167 Temporary absences and deeming rules.

* * * * *

(c) Active duty military service. If your ineligible spouse or

parent is absent from the household due solely to a duty assignment as

a member of the Armed Forces on active duty, we continue to consider

that person to be living in the same household as you, absent evidence

to the contrary. If we determine that during such an absence, evidence

indicates that your spouse or parent should no longer be considered to

be living in the same household as you, then deeming will cease. When

such evidence exists, we determine the month in which your spouse or

parent should no longer be considered to be living in the same

household as you and stop deeming his or her income and resources

beginning with the month following that month.

Example. Tom is a child who receives SSI. In January 1996, Tom's

father leaves the household due solely to an active duty assignment

as a member of the Armed Forces. Five months later in June 1996,

while Tom's father is still on an active duty assignment, Tom's

parents file for divorce. As a result, Tom's father will not be

returning to live in Tom's household. Therefore, Tom's father should

no longer be considered to be living in the same household with Tom.

Beginning July 1, 1996, deeming from Tom's father will cease.

[FR Doc. 97-20743 Filed 8-6-97; 8:45 am]

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