U n it e d S t a t e s G o v e r n m e n t

M e m o r a n d u m

FORM 0-1151(1-82)

R a il r o a d R e t ir e m e n t B o a r d

December 2,2003

L-2003-15

TO

FROM

Richard T. Murphy

Bureau of Hearings a n d A ppeals

Steven A. Bartholow 

G eneral Counsel

?w 9_t2>

SUBJECT : Annuity Beginning D ate for a Re-entitled Child's Annuity

This is in response to a m em orandum d a te d S ep tem b er 23,2003, from th e form er 

Director of Hearings a n d A ppeals, which req u ested g u id a n c e regarding the 

interpretation of section 216.73(b) of the Board's regulations (20 CFR 216.73(b)). 

The facts in this c a se , as set forth in the m em orandum , a re th at th e claim ant w as 

paid a child’s annuity until it w as term inated in M ay 1981, w hen the claim ant 

finished high school. On M arch 15,2002, the claim ant, through a representative 

p a y e e , filed a n application for a disabled child's annuity after being a w a rd e d a 

benefit under th e Supplem ental Security Incom e program . In a decision d a te d 

N ovem ber 22,2002, a hearings officer d eterm ined th at the claim an t w as 

disabled prior to a g e 22 a n d a w a rd e d the claim ant a disabled child’s annuity 

with a n annuity beginning d a te of S eptem ber 1,2001, six m onths prior to the 

application d a te for the disabled child's annuity. The claim an t has a p p e a le d 

th at annuity beginning d a te , arguing th at in a c c o rd with section 216.73(b) of 

the Board's regulations, the claim ant should b e p aid from th e d a te th e child's 

insurance annuity w as term inated.

Section 216.73 of th e Board’s regulations (20 CFR 216.73) provides in pertinent 

part as follows:

If a n individual’s entitlem ent to a child’s annuity has e n d e d , the 

individual m ay b e re-entitled jf he or she has not m arried a n d h e or she 

applies to b e re-entitled. The re-entitlem ent m av begin with: * * *
(b) The first m onth th e individual is disabled, if th e disability b e g a n 

before h e or she a tta in e d a g e 22 a n d continues through th e time of 

application for benefits; * * *. (Emphasis supplied.!

This regulation a p p e a rs to h av e b e e n a d d e d to the regulations as part of a 

larger u p d a te of the B oard’s regulations in 1982. No explanation of this 

particular regulation w as provided in the pream ble. 47 FR 7636 (Feb 22, 

1982). However, th e phrasing of th e regulation is helpful in responding to this 

inquiry. A child has no right to re-entitlem ent simply b e c a u se (s)he has - 

previously b e e n entitled to an annuity. Rather, section 216.73 is p h rased in 

permissive term s in th at it provides th at a child w hose annuity entitlem ent 

has e n d e d m ay b e c o m e re-entitled if the child m eets th e eligibility 

requirem ents a n d if the child files a n application for re-entitlem ent. Section 

216.73 is a n entitlem ent regulation; in fact, Part 216 is entitled, “Eligibility for 

An Annuity.” Section 216.73 d o es not w aive the other procedural 

requirem ents of th e Railroad Retirement Act that permit p ay m en t of an 

annuity. In other words, section 216.73 sets forth the rule only as to w h at 

child m ay b e re-entitled to an annuity. It is b a se d on a statutory provision in 

th e Railroad Retirem ent Act. Section 216.73 d o es not govern th e d a te th at 

p a y m e n t of a n annuity m ay begin. A se p a ra te statutory provision governs 

th e d a te a n annuity c a n begin for a claim ant w ho has filed an application 

a n d m et th e requirem ents for eligibility a n d thereby has b e c o m e re-entitled 

to a n annuity.

The last se n te n c e of section 5(c)(7) of the Railroad Retirem ent Act (45 U.S.C. 

§ 23Id(c)(7)) provides the statutory authority for the re-entitlem ent of a child 

annuity claim ant. That se n te n c e states as follows:

A child w hose entitlem ent to an annuity under p a ra g rap h (iii) of section 

2(d)(1) term inated with th e m onth p reced in g the m onth in which h e or 

she a ttain e d a g e 18, or with a subsequent month, m ay ag ain b e c o m e 

entitled to such an annuity (providing no ev en t to disqualify th e child has 

o ccurred) beginning with th e first m onth thereafter in which h e or she 

m eets the qualifications set forth in clause (B) or (C) of such p a ra g ra p h 

(iii), if h e or she has filed an application for such reentitlem ent, (em phasis 

supplied).
The statutory la n g u a g e set forth a b o v e m akes it c le ar th at in o rd er for th e child 

claim an t to b e c o m e re-entitled to a n annuity, the claim ant m ust file a new 

application for th a t re-entitlem ent. This requirem ent th a t a n ap p licatio n b e filed 

is reflected in section 216.73. After a child has filed a new ap p licatio n a n d m et 

all of th e eligibility requirem ents, th e annuity beginning d a te for th e child's 

annuity is then established with referen ce to th e d a te th at th e ap p licatio n w as 

filed. Section 5(a) (iii) of th e Railroad Retirem ent Act (45 U.S.C. §231 d(a) (iii)) limits 

th e retroactivity to six m onths prior to the d a te th e application w as filed.

The regulation 20 CFR 216.73 (b) must b e re a d with this limit on th e retroactivity 

of th e ap p licatio n in mind. In this c ase , there is a statutory requirem ent th at a n 

application b e filed, a n d th e Act also prescribes th e limits of retroactivity of th at 

application. The a g e n c y m ay not disregard either of th ese statutory 

requirem ents in applying th e Board's regulations. Section 216.73(b) is a 

regulation th at sets forth th e earliest possible re-entitlem ent d a te perm itted, but 

it d o e s not elim inate the m andatory retroactivity requirem ents set forth in the 

Act.