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###### Social Security Administration

          - 20 CFR Parts 416 and 422 
          - RIN 0960-AF31

# AGENCY:

Social Security Administration.

# ACTION:

Proposed rules. 

# SUMMARY:

We propose to modify the regulations dealing with the recovery of supplemental security income (SSI) overpayments made under title XVI of the Social Security Act (the Act). The modifications reflect statutory authority for the Social Security Administration (SSA) to selectively refer information about SSI overpayments to consumer reporting agencies and to recover SSI overpayments through administrative offset by the Department of the Treasury against other Federal payments to which the overpaid individual may be entitled. These collection practices would be limited to overpayments made to a person after he or she attained age 18 that are determined to be otherwise unrecoverable under section 1631(b) of the Act after the individual ceases to be a beneficiary under title XVI of the Act.

# DATES:

To be sure your comments are considered, we must receive them no later than December 22, 2000.

# ADDRESSES:

Comments should be submitted in writing to the Commissioner of Social Security, P.O. Box 1585, Baltimore, Maryland 21235-1585, sent by telefax to (410) 966-2830, sent by e-mail to “regulations@ssa.gov,” or delivered to the Office of Process and Innovation Management, Social Security Administration, 2109 West Low Rise Building, 6401 Security Boulevard, Baltimore, MD 21235-6401, between 8 a.m. and 4:30 p.m. on regular business days. Comments may be inspected during these same hours by making arrangements with the contact person shown below.

# FOR FURTHER INFORMATION CONTACT:

                        Robert J. Augustine, Social Insurance Specialist, Office of Process and Innovation Management, Social Security Administration, 2109 West Low Rise                               ( print page 63222)                            Building, 6401 Security Boulevard, Baltimore, MD 21235-6401, (410) 966-5121 or TTY (410) 966-5609 for information about these proposed rules. For information on eligibility or claiming benefits, call our national toll-free number, 1-800-772-1213 or TTY 1-800-325-0778 or visit our Internet site, SSA Online, at                         *http://www.ssa.gov/​.*

# SUPPLEMENTARY INFORMATION:

Section 1631(b) of the Act prescribes the methods SSA may use to recover SSI overpayments. Until enactment of Pub. L. 106-169 on December 14, 1999, SSA was not authorized to use certain tools found in 31 U.S.C. Chapter 37 to recover title XVI program overpayments. Section 203 of Pub. L. 106-169 amended section 1631(b) of the Act to permit SSA to use for SSI overpayments several of the debt collection practices that have been available for use regarding social security benefit overpayments under title II of the Act. Among other things, these practices include reporting delinquent debts to consumer reporting agencies and recovering debts by administrative offset against other Federal payments to which the overpaid person is entitled. Under section 1631(b) of the Act, these additional practices may be used only if the SSI overpayment was made to a person after he or she attained age 18 and the overpayment has been determined to be otherwise unrecoverable under section 1631(b) of the Act after the overpaid person is no longer entitled to benefits under title XVI of the Act.

Before we would refer information to consumer reporting agencies or refer an SSI overpayment to the Department of the Treasury for administrative offset, we would:
    - Send the overpaid person written notice (or, in the case of an individual for whom we do not have a current address, take reasonable action to locate and send written notice) describing, among other things, the amount and nature of the overpayment, the action that we propose to take, and the overpaid person's rights to request us to review the debt and to inspect or copy our records about the overpayment; and
    - Give the overpaid person at least 60 calendar days to present evidence that all or part of the overpayment is not past-due or not legally enforceable, or enter into a written agreement to pay the overpayment.

In these proposed rules, we set forth our proposed policies on referral of information on title XVI overpayment debts to consumer reporting agencies and referral of such debts to the Department of the Treasury for administrative offset. In the future, as we make the necessary systems changes and develop policies and procedures to enable us to use additional debt collection tools for recovery of SSI overpayments, we will make further modifications to our overpayment recovery rules.

## Explanation of Changes to Regulations

We propose to add a new § 416.590 to our regulations to explain that we will use the additional tools authorized by section 1631(b) of the Act when the title XVI program overpayments occurred after the individual attained age 18, and the overpayment has been determined to be otherwise unrecoverable under section 1631(b) of the Act after the individual is no longer entitled to benefits under title XVI of the Act. Proposed § 416.590 also contains the criteria under which we determine that an overpayment is otherwise unrecoverable under section 1631(b) of the Act. An overpayment will be determined to be unrecoverable when all of the following conditions are met:
    - We completed our billing sequence ( i.e.,                      we have sent the overpaid person an initial notice of the overpayment, a reminder notice, and a past-due notice) or suspended or terminated collection activity in accordance with the Federal Claims Collection Standards in  4 CFR 104.2  and  104.3 ;                
    - There is no installment payment agreement, or the overpaid person has failed to pay in accordance with such an agreement for two consecutive months;
    - We cannot collect the overpayment by adjusting benefits payable to individuals other than the overpaid person.

For purposes of proposed § 416.590, if the overpaid person is a member of an eligible couple that is legally separated and/or living apart, we will deem unrecoverable from the other spouse that part of the overpayment which the other spouse did not receive. Adjustment of benefits will be waived for the overpaid person's spouse when that spouse is without fault (as defined in § 416.552) and waiver is requested under these circumstances. See § 416.554.

We propose to add to § 416.1403(a) (the list of administrative actions that are not initial determinations) new paragraphs (18) and (19) to include our determinations whether we will refer information about an overpayment to consumer reporting agencies and whether we will refer the overpayment to the Department of the Treasury for offset against other Federal payments due the overpaid person. Administrative actions that are not initial determinations may be reviewed by us, but they are not subject to the administrative review process provided by subpart N of our regulations at 20 CFR Part 416, and they are not subject to judicial review.

We also propose to expand our existing regulations in subpart D of part 422 to cover SSI overpayments. Specifically, we would revise § 422.301 to add language to specify that the debt collection tools in subpart D may be used to recover title XVI program overpayments the Commissioner has determined, through proposed § 416.590, to be unrecoverable under section 1631(b) of the Act. In § 422.305, we would revise both the section title and paragraph (a). The effect of the changes we propose to make to §§ 422.301 and 422.305 would allow us to apply to overpayments under both title II and title XVI of the Act the rules in subpart D of the referral of information to consumer reporting agencies and the use of administrative offset.

## Clarity of This Regulation

Executive Order (E.O.) 12866 and the President's memorandum of June 1, 1998, require each agency to write all rules in plain language. In addition to your substantive comments on these proposed rules, we invite your comments on how to make these proposed rules easier to understand.

For example:
    - Have we organized the material to suit your needs?
    - Are the requirements in the rules clearly stated?
    - Do the rules contain technical language or jargon that is unclear?
    - Would a different format (grouping and order of sections, use of headings, paragraphing) make the rules easier to understand?
    - Would more (but shorter) sections be better?
    - Could we improve clarity by adding tables, lists, or diagrams?
    - What else could we do to make the rules easier to understand?

## Electronic Version

                    The electronic file of this document is available on the date of publication in the                     **Federal Register**                     on the Internet site for the Government Printing Office:                     *http://www.access.gpo.gov/​su_​docs/​aces/​aces140.html*. It is also available on the Internet site for SSA (                    *i.e., SSA Online): http://www.ssa.gov/​*.                          ( print page 63223)    

## Regulatory Procedures

### Executive Order 12866

We have consulted with the Office of Management and Budget (OMB) and determined that these proposed rules do not meet the criteria for a significant regulatory action under Executive Order 12866. Thus, they are not subject to OMB review.

### Regulatory Flexibility Act

We certify that these proposed regulations will not have a significant impact on a substantial number of small entities. Therefore, a regulatory flexibility analysis, as provided in the Regulatory Flexibility Act, as amended, is not required.

### Paperwork Reduction Act

These proposed regulations will impose no new reporting on recordkeeping requirements requiring OMB clearance.

(Catalog of Federal Domestic Assistance Programs No. 96.006, Supplemental Security Income)

# List of Subjects

### 20 CFR Part 416

      - Administrative practice and procedure
      - Aged
      - Blind
      - Disability benefits
      - Public assistance programs
      - Reporting and recordkeeping requirements
      - Supplemental Security Income (SSI)

### 20 CFR Part 422

      - Administrative practice and procedure
      - Organization and functions (Government agencies)
      - Social Security

Dated: October 5, 2000.

Kenneth S. Apfel,

Commissioner of Social Security.

For the reasons set out in the preamble, we propose to amend subparts E and N of Part 416 and subpart D of Part 422 of Chapter III of Title 20 of the Code of Federal Regulations as follows:

# PART 416—SUPPLEMENTAL SECURITY INCOME FOR THE AGED, BLIND, AND DISABLED

1. The authority citation for subpart E of Part 416 continues to read as follows:

Authority: Secs. 702(a)(5), 1601, 1602, 1611(c) and (e), and 1631(a)-(d) and (g) of the Social Security Act (42 U.S.C. 902(a)(5), 1381, 1381a, 1382(c) and (e), and 1383(a)-(d) and (g)); 31 U.S.C. 3720A.

2. Section 416.590 is added to read as follows:

§ 416.590

                            (a)                             *General.*                            In addition to the methods specified in §§ 416.560, 416.570 and § 416.580, we may recover an overpayment under title XVI of the Act from you under the rules in subpart D of part 422 of this chapter, provided:                        

(1) The overpayment occurred after you attained age 18; 

(2) You are no longer entitled to benefits under title XVI of the Act; and 

(3) Pursuant to paragraph (b) of this section, we have determined that the overpayment is otherwise unrecoverable under section 1631(b) of the Act.

                            (b)                             *When we consider an overpayment to be otherwise unrecoverable.*                            We consider an overpayment under title XVI of the Act to be otherwise unrecoverable under section 1631(b) of the Act if all of the following conditions are met:                        

                            (1) We have completed our billing system sequence (                            *i.e.,*                             we have sent you an initial notice of the overpayment, a reminder notice, and a past-due notice) or we have suspended or terminated collection activity under the Federal Claims Collection Standards in 4 CFR 104.2 or 104.3.                        

(2) We have not entered into an installment payment arrangement with you or, if we have entered into such an arrangement, you have failed to make any payment for two consecutive months. 

(3) You have not requested waiver pursuant to § 416.550 or § 416.582 or, after a review conducted pursuant to those sections, we have determined that we will not waive collection of the overpayment. 

(4) You have requested reconsideration of the initial overpayment determination pursuant to §§ 416.1407 and 416.1409 or, after a review conducted pursuant to § 416.1413, we have affirmed all or part of the initial overpayment determination. 

(5) We cannot recover your overpayment pursuant to § 416.570 by adjustment of benefits payable to any individual other than you.  For purposes of this paragraph, if you are a member of an eligible couple that is legally separated and/or living apart, we will deem unrecoverable from the other person that part of your overpayment which he or she did not receive. 

3. The authority citation for subpart N of Part 416 is revised to read as follows: 

Authority:Secs. 702(a)(5), 1631, and 1633 of the Social Security Act (42 U.S.C. 902(a)(5), 1383, and 1383b).

4. In § 416.1403, paragraph (a) is amended by removing the word “and” at the end of paragraph (a)(16), removing the first period in paragraph (a)(17), replacing “See” with “see” in the parenthetical in paragraph (a)(17), replacing the second period at the end of paragraph (a)(17) with a semicolon, and adding new paragraphs (a)(18) and (a)(19) to read as follows:

§ 41.1403

(a) * * *

(18) Determining whether we will refer information about your overpayment to a consumer reporting agency (see § 416.590 and § 422.305 of this chapter); and 

(19) Determining whether we will refer your overpayment to the Department of the Treasury for collection by offset against Federal payment due you (see § 416.590 and § 422.310 of this chapter).

* * * * *

# PART 422—ORGANIZATION AND PROCEDURES

5. The authority citation for subpart D of Part 422 is revised to read as follows: 

Authority:Secs. 204(f), 205(a), 702(a)(5), and 1631(b) of the Social Security Act (42 U.S.C. 404(f), 405(a), 902(a)(5), and 1383(b)); 31 U.S.C. 3711(e); 31 U.S.C. 3716.

§ 422.301

6. Section 422.301(b) is amended by removing the words “title II” and by replacing “§ 404.527” with “§§ 404.527 and 416.590.”

§ 422.305

7. Section 422.305 is amended by removing the reference to “title II” in the heading and in paragraph (a).

[FR Doc. 00-27164  Filed 10-20-00; 8:45 am]

BILLING CODE 4191-02-P