**[National Organization of]{.smallcaps}**

**[Social Security Claimants\' Representatives]{.smallcaps}**

**(NOSSCR)**

**Government Affairs Office •** **1101 Vermont Avenue, NW Suite 1001 •
Washington, D.C. 20005**

**Telephone: (202) 216-0030 • Fax:** **(202) 216-0031 • email:
nosscrdc@worldnet.att.net**

***Executive Director***

**Nancy G. Shor**

# 

# 

# June 27, 2002

# 

# 

# Commissioner of Social Security

P. O. Box 17703

Baltimore, MD 21235-7703

Re: Comments on NPRM re access to information held by financial
institutions

Dear Commissioner:

These comments are submitted on behalf of the National Organization of
Social Security Claimants' Representatives (NOSSCR) in response to the
proposed rules to implement 42 U.S.C. § 1383(e)(1)(B)(ii). 67 Fed. Reg.
22021 (May 2, 2002). This 1999 legislative change provided SSA with
authorization to require SSI applicants and recipients to obtain
information relevant to their SSI eligibility from any financial
institution.

NOSSCR's current membership is approximately 3,450 attorneys and others
from across the country who represent claimants for Social Security and
Supplemental Security Income (SSI) benefits. Collectively, we have many
years of experience in representing claimants at every level of the
administrative and judicial process. NOSSCR is committed to providing
the highest quality representation and advocacy on behalf of persons who
are seeking Social Security and SSI benefits.

Our main concern with the proposed rule is the requirement that the
applicant/recipient provide permission from third parties with broad
permission to obtain information from a wide range of financial
institutions. Our comments include the need to clarify language and to
provide some type of "good cause" exception when it is impossible to
obtain information from a relevant third party.

1.  **Clarify that permission required from third parties is limited to
    statutorily required deeming situations.**

The NPRM states that permission must be obtained from "anyone whose
income and resources we consider as being available to you" and then is
followed by reference to regulations on deeming of income and resources.
It would be useful to include a statement that deeming situations are
the only circumstances when third party permission will be required. SSI
applicants and recipients may be confused about this essentially legal
terminology and might be led to think that it applies in many other
situations where there is no requirement to deem income and/or
resources, e.g., roommates, other family members, etc.

2.  Clarify that the applicant/recipient is required only to provide
    contact information, not to obtain the actual permission.

As noted above, the proposed rule states that "(y)ou must also provide
us with permission from anyone whose income and resources we consider as
being available to you." This language is unclear regarding the
individual's responsibility: Is she/he required to provide SSA with
contact information or to obtain the actual permission?

It is reasonable to require the individual to provide SSA with the third
party contact information, e.g., name, address, telephone number.
However, it is not reasonable to require the individual to obtain the
actual written permission from the third party. We believe that this
interpretation is consistent with existing procedures regarding efforts
to obtain information and SSA assistance in developing claims. For
example, see POMS SI 00601.100, 00601.110 and 00601.120 (detailing SSA
duty to assist and requirement to document efforts). The regulations
should mention SSA's duty to assist the individual as detailed in these
POMS.

3.  Establish a "good cause" exception for inability to obtain third
    party information.

We are concerned that benefits will be denied when permission is not
provided or is revoked by a third party, over whom the
applicant/recipient has no control. This could arise in domestic
situations where spouses or parents are uncooperative with each other,
or where a sponsor of a noncitizen breaks off contact with the
applicant/recipient. This difficult situation could be rectified by
including a "good cause" exception. We believe that this would be
consistent with the statute and with SSA's existing procedures.

First, the law does not preclude or otherwise limit SSA from
establishing a "good cause" exception. It is essential that the statute
uses the word "may" and not "shall" regarding SSA's authority,
indicating that it is left in the Commissioner's discretion to implement
this provision: "The Commissioner ***may*** require each applicant for,
or recipient of, benefits under \[Title XVI\] to provide authorization
...." 42 U.S.C. 42 U.S.C. § 1383(e)(1)(B)(ii)(I). The remainder of the
provision primarily deals with limitations on SSA's authority to use the
permission in light of the Right to Financial Privacy Act. We believe
that this permissive authority allows SSA to establish an exception.

Further, there is nothing in the legislative history precluding SSA from
creating the exception and, in fact, supports SSA's authority to take
such action. A June 1999 House Ways and Means Subcommittee report
explaining this provision again states the permissive, and not
mandatory, nature of this provision by explaining that "applicants for
or recipients of SSI ***may*** be required to authorize SSA to obtain
financial information ....."

Second, existing regulations and POMS provisions also provide authority
for an exception. The general rule is that a claimant is ineligible for
SSI if requested information is not provided, which also can lead to
suspension of benefits. 20 C.F.R. §§ 416.714 and 416.1322. However,
benefits will not be suspended if a determination can be made based on
information in the file. 20 C.F.R. § 416.1332(b). The POMS elaborate,
stating that an individual "is **not** ineligible for SSI based on
failure to cooperate if ... you cannot obtain the information/evidence
from the third party, the claimant has acted in good faith and you can
determine eligibility and payment based on the information in the file
..." SI 00601.110 A.2. If benefits are ultimately denied or suspended
for failure to cooperate, the basis for the decision, including attempts
to contact and pursuing leads, must be documented. SI 00601.110 B.5.

4.  Permission should terminate when deeming ends.

The NPRM sets forth the circumstances when the permission to contact
financial institutions ends. Proposed 20 C.F.R. § 416.207(f). A
provision should be added that third party permission will terminate
when deeming is no longer required or otherwise ends.

Sincerely,

Ethel Zelenske

NOSSCR Director of Government Affairs