July 1, 2002

Hon. Jo Ann B. Barnhardt

Commissioner of Social Security

P.O. Box 17703

Baltimore, Maryland 21235 -7703

Re: Comments on Proposed Regulation Requiring Claimants to Obtain

Third Party Authorization Allowing the Social Security Administration

to Access Their Financial Records.

Dear Commissioner Barnhardt:

We appreciate the opportunity to comment on the proposed regulations of
the Social Security Administration published in the May 2, 2002 Federal
Register (volume 67, Number 85).

One effect of the proposed regulation would be to categorically deny
disability benefits to otherwise eligible individuals who, through no
fault of their own, are unable to obtain from third parties over whom
they have no control, permission for the Social Security Administration
to access their financial information. We are very concerned that
without substantial changes, the proposed regulation will deprive
individuals with disabilities who have done everything in their power to
cooperate with the Social Security Administration the material benefits
and sense of dignity that they deserve. Since such a result is neither
justified nor required under the terms of Title II of the Foster Care
Independence Act of 1999, Public Law 106‑169, pursuant to which the
regulations are being proposed, we respectfully request that the Social
Security Administration rescind and rewrite the proposed regulation.

Founded in 1876, the Legal Aid Society is the nation's oldest non-profit
law firm dedicated to serving low-income families throughout New York
City. The staff of the Society's Civil Division includes some 140
attorneys and paralegals who work on issues ranging from health care,
housing, employment and training, economic development, public
assistance, immigration, and domestic violence as well as
disability-related issues. In the past year our Disability Advocacy
Project served approximately 1500 individuals, providing them with
information, advice, or direct representation. Our comments are based on
interactions of our field staff with many individuals who have sought
our assistance over the past several years, and the experience of
colleagues in other legal services and advocacy organizations with whom
we regularly collaborate.

**1.** **The proposed regulation will result in the denial of benefits
to otherwise eligible individuals who simply cannot obtain permission
from third parties to grant SSA access to their financial records and
information.**

In addition to granting SSA permission to contact any financial
institution and request financial records the institution has about the
individual receiving or applying for benefits, the newly proposed
Section 416.207 (a), also requires, as a condition of eligibility that:

> You must also provide us with permission from *anyone* whose income
> and resources we consider as being available to you \[to access
> *their* financial records\]*.*

(*Id*.., emphasis supplied)

Similarly, the proposed Section 416.207 (d) states:

> We may ask any financial institution for information on any financial
> account concerning you. We may also ask for information on any
> financial accounts for *anyone* whose income and resources we consider
> as being available to you (see Sec. 416.1160, 416.1202, 416.1203, and
> 416. 1204).

(*Id.* emphasis supplied.)

The proposed Section 416.207 (g), underscores how totally reliant an
applicant or recipient will be on the willingness of third parties to
grant the SSA broad consent to inquire as to any of that person's
financial information. It states in unequivocal terms:

> Also, if *anyone* whose income and resources we consider as being
> available to you (see Sec. 416.1160, 416.1202, 416.1203, and 416.
> 1204) doesn't give SSA permission to contact any financial institution
> and request any financial records about theat person when we think it
> is necessary to determine your eligibility or payment amount, you
> *cannot be eligible* for SSI payments. This means that if you are
> applying for SSI payments you cannot receive them. If you are
> receiving SSI payments, we *will stop* your payments.

(*Id*., emphasis supplied)

Whether intended or not, the rigid language and structure of the
proposed regulation appears to leave no room for the type of situations
that arise in the real world when claimants are fully cooperative with
the SSA but are unable, through no fault of their own, to obtain the
required permission for financial disclosure from third parties. The
apparent lack of any allowance for such circumstances in the proposed
regulation will inevitably cause harm to individuals who may be most in
need of the protections against undeserved abject poverty that are the
hallmark of the Social Security Act.

One obvious example is the completely incongruous situation that would
arise under the regulations when an abused spouse would be instructed
that, in order to obtain or continue obtaining benefits, the claimant
(used here to include both recipients and applicants) *must* produce
permission from the abuser to allow the government access to any and of
that person's own financial records. As has been noted, the absurd
result in this scenario is that the abusive spouse would end up --
courtesy of a government regulation -- with the complete control and
virtual veto power over whether the victim received any benefits at all.

Given the sheer magnitude of the domestic violence problem in this
country, and the likelihood that a fair percentage of claimants,
especially women claimants, may be victims of physical and mental abuse
at the hands of their partners, the Social Security Administration
cannot adopt a regulation which threatens to further victimize such
claimants through the omission of a "good cause" type exception.

As recently confirmed in a National Institute of Justice study,
"\[i\]ntimate partner violence is pervasive in U.S. society".

> Nearly 25 percent of surveyed women and 7.5 percent of surveyed men
> said they were raped and/or physically assaulted by a current or
> former spouse, cohabiting partner, or date at some time in their
> lifetime\.... According to these estimates, approximately 1.5 million
> women and 834,732 men are raped and/or physically assaulted by an
> intimate partner annually in the United States. Because many victims
> are victimized more than once, the number of intimate partner
> victimizations exceeds the number of intimate partner victims
> annually. Thus, approximately 4.9 million intimate partner rapes and
> physical assaults are perpetrated against U.S. women annually, and
> approximately 2.9 million intimate partner physical assaults are
> committed against U.S. men annually\...intimate partner violence is a
> serious criminal justice and public health concern.

Id. Tjaden, P. and Thoennes, N. **Extent, Nature, and Consequences of
Intimate Partner Violence Series: Research Report**. National Institute
of Justice and the Centers for Disease Control and Prevention, July 2000

The Social Security Administration itself has acknowledged the breadth
of this epidemic and its relationship to its work.

> Millions of people in all walks of domestic life are victims of
> harassment, abuse or life threatening situations in their daily lives.
> If you are such a victim we can help you.

**New Numbers For Domestic Violence Victims and Others**. SSA
Publication No. 05-10093.

While we are unaware of any specific study estimating the prevalence of
domestic violence against individuals applying for or receiving
disability benefits, the New York City Mayor's Office to Combat Domestic
Violence has cited a 1997 study of over 500 women involved with the
City's preventative services child welfare agencies in which 49% of
those surveyed reported violence in their intimate relationship.
**Family Violence Prevention Project Data, 1996-97, Administration for
Children's Services.** (Cited at
[www.nyc.gov/html/ocdv/html/stats.html.]{.underline}

In addition to the inferences that can be drawn from this data,
anecdotal evidence, our organizational experience and common sense tells
us that the prevalence of domestic violence amongst eligible applicants
and recipients is substantial. In some cases our clients' physical and
mental impairments are sometimes a direct result of abuse they have
suffered. For many of our clients, obtaining disability benefits may be
critical to securing their physical safety and well being as well as
their financial independence. The risk that victims of domestic violence
or other abusive relationships who are suffering real physical and
mental disabilities will be denied benefits due to a lack of a
reasonably drawn regulation with "good cause" type exceptions and
recourse to review is a risk that we, as a society, need not and should
not take.

> **2. The proposed regulation will have a misdirected punitive impact
> that does not reflect common sense or Congressional intent.**

The unwarranted deprivations of benefits that the proposed regulation
threatens are not limited to victims of domestic violence. Eligible
aliens may be deprived of benefits by their inability to secure
permission from abusive sponsors. Other situations will arise, including
some situations wherein the claimant's very mental or physical
disability itself may make compliance with this requirement
impracticable, and the inequities inherent in the bald all-or-nothing
language will be all too apparent. A "good cause" exception to the
requirement that claimants provide third party authorization to SSA to
access their financial records is supported both by a common sense of
fairness and a reasonable reading of the very act the of Congress upon
which these proposed "fraud prevention" regulations are based.

In Section 213 of the "SSI Fraud Prevention" provisions (Title II) (P.L.
106-169), of the Foster Care and Independence Act of 1999, Congress was
careful to use permissive language indicating only that the Commissioner
*may require* applicants or recipients to provide the Commissioner
authorization from third parties to access their financial records and
information. *Id*., *amending* 42 U.S.C. § 163 (e) (1) (b) by adding 42
U.S.C. § 163 (e)(1)(b)(ii)(I). (emphasis supplied). In the concluding
paragraph of this section, Congress also chose language which suggests
that individuals who, through no fault of their own *cannot* comply with
a requirement for third-party authorization, should not be categorically
excluded from the program. As amended by Section 213 of the Act, 42
U.S.C. § 163 (e)(1)(b)(ii)(V) states that

> If an applicant for, or recipient of, benefits under this Title (SSI),
> (or any such other person referred to in subclass I) \[e.g.,
> third-parties\], refuses to provide, or revokes any authorization made
> by the applicant or recipient for the Commissioner of Social Security
> to obtain \...any financial records, the Commissioner *may*, on that
> basis determine that the applicant or recipient is ineligible for
> benefits under this title.

*Id.* (emphasis supplied*).*

In addition to used the permissive term *may*, Congress chose active
verbs indicating wilful conduct, e.g, authorizing the Commissioner to
declare as categorically ineligible an applicant who *"refuses to
provide "* or *"revokes"* an authorization. Although this section does
not explicitly proscribe the Commissioner from declaring ineligible a
claimant when a third party refuses to provide or revokes authorization,
other, relevant sections of the same statute demonstrate that it is
highly unlikely that Congress intended that the Commissioner would adopt
a regulation that would routinely inflict such a harsh penalty as total
disqualification on non-culpable disability claimants without providing
them any "good cause" exception and recourse to administrative or
judicial remedies.

In choosing administrative penalties for those who *willfully*
misrepresented material facts relevant to their benefits applications,
Congress chose a three- tiered penalty system, requiring that the
Commissioner declare a person ineligible for a period of six, twelve, or
twenty-four months, for a first, second, third, or subsequent offense
respectively. *See*, Section 207, Title II, SSI Fraud Prevention, Foster
Care Independence Act of 1999, *amending* 42 U.S.C. 1301 et seq. by
adding § 1129A. Thus, while Congress itself crafted a range of
time-limited sanctions as a program penalty for outright fraud, the
proposed regulation imposes a total and perhaps permanent exclusion of
claimants who have otherwise complied with the disclosure requirements
under their control, and grants them no administrative review or
recourse. A more balanced approach is clearly in order.

**Conclusion**

The Commissioner should rescind or rewrite the proposed regulation to
make it clear that applicants and recipients who have bona fide reasons
why they are unable to obtain authorization from third parties will not
be penalized due to their inability to do so. Claimants who are not
guilty of any misconduct themselves should have at least the same level
of procedural protections and recourse afforded to those who are accused
of wilful acts of deceit and fraud.

The Social Security Administration has shown a degree of institutional
sensitivity to issues of abuse, evidenced, for instance in the protocol
on assisting victims of family violence and other abusive situations
with applications for new Social Security numbers. This same sensitivity
should be carried over into the new regulations and any implementing
instructions.

Thank you for your consideration of these comments and suggestions.

Respectfully Submitted,

Kenneth R. Stephens

Staff Attorney.