42410 Federal Register / Vol. 62, No. 152 / Thursday, August 7, 1997 / Rules and Regulations

Dated: July 31, 1997.

Margaret H. McFarland,

Deputy Secretary.

[FR Doc. 97–20747 Filed 8–6–97; 8:45 am]

BILLING CODE 8010–01–P

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.

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 tollfree number, 1–800–772–1213.

SUPPLEMENTARY INFORMATION:

Regulations at § 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

(§ 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 § 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
Federal Register / Vol. 62, No. 152 / Thursday, August 7, 1997 / Rules and Regulations 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:

§ 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]

BILLING CODE 4190–29–P

SOCIAL SECURITY ADMINISTRATION

20 CFR Part 416

[Regulation No. 16]

RIN 0960–AE61

Reduction in Supplemental Security

Income (SSI) Payable to

Institutionalized Children Whose

Medical Costs Are Covered by Private

Insurance

AGENCY: Social Security Administration.

ACTION: Final rules.

SUMMARY: The interim final rules

published at 62 FR 1053, on January 8,

1997, are adopted as final without

change. These rules implement an

amendment to section 1611(e)(1)(B) of

the Social Security Act (the Act) made

by section 214 of Pub. L. 104–193, the

Personal Responsibility and Work

Opportunity Reconciliation Act of 1996.

DATES: These rules are effective

beginning January 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 these rules. For information on

eligibility or claiming benefits, call our

national toll-free number, 1–800–772–

1213.

SUPPLEMENTARY INFORMATION:

Background

Section 1611(e)(1)(A) of the Act

generally precludes eligibility for SSI

benefits when a claimant is a resident of

a public institution throughout a month.

However, section 1611(e)(1)(B) provided

an exception to that bar. Under that

section, payments could be made at the

reduced Federal benefit rate to

individuals in institutions ‘‘receiving

payments (with respect to such

individual or spouse) under a State plan

approved under title XIX * * *’’ This

language was implemented through

regulations to mean that individuals in

institutions would receive only the

reduced benefit amount when

‘‘Medicaid (title XIX of the Social

Security Act) pays a substantial part

(more than 50 percent) of the cost of’’

the claimant’s care (§ 416.211(b)).

Section 214 of Pub. L. 104–193,

effective for benefits beginning with the

month of December 1996, amends

section 1611(e)(1)(B) of the Act by

extending applicability of the reduced

SSI benefit rate to children under age 18

in medical care facilities receiving

payments on their behalf under a health

insurance policy issued by a private

provider (hereinafter referred to as

private health insurance). Prior to the

enactment of section 214, children

under the age of 18 in private

institutions with private health

insurance generally could be eligible for

a full SSI payment. Section 214 now

restricts the SSI payment for such

children to the Federal reduced benefit

rate. Also, prior to this legislation,

individuals in public institutions not

receiving substantial Medicaid

payments on their behalf generally were

ineligible for SSI. However, as a result

of this legislation, children under age 18

in public institutions receiving private

health insurance on their behalf now are

eligible for SSI payments at the reduced

Federal benefit amount.

The final rules apply the reduced

Federal benefit amount to children

under age 18 with private health

insurance when it, either alone or in

combination with Medicaid, pays a

substantial part (more than 50 percent)

of the cost of their care in the

institution.

Regulatory Changes

During the public comment period,

we received two comments within the

scope of this rulemaking. One

commenter, representing a major

advocacy group for retarded citizens,

expressed agreement with the Social

Security Administration’s interpretation

of the provision regarding the amount of

private insurance payments required in

order for the reduced Federal SSI

benefit rate to apply. Another

commenter asked that we add a

clarification specifying that Health

Maintenance Organizations (HMOs) are