57132 Federal Register / Vol. 70, No. 189 / Friday, September 30, 2005 / Rules and Regulations 

By the Commission. 

Jonathan G. Katz, 

Secretary. 

[FR Doc. 05–19315 Filed 9–29–05; 8:45 am] 

BILLING CODE 8010–01–P 

SOCIAL SECURITY ADMINISTRATION 

20 CFR Parts 404 and 416 

[Regulations No. 4 and 16] 

RIN 0960–AF21 

Reinstatement of Entitlement to 

Disability Benefits 

AGENCY: Social Security Administration. 

ACTION: Final rules. 

SUMMARY: We are publishing final rules 

regarding the Reinstatement of 

Entitlement (Expedited Reinstatement) 

provision in section 112 of the Ticket to 

Work and Work Incentives 

Improvement Act of 1999. This 

provision allows former Social Security 

disability and Supplemental Security 

Income (SSI) disability or blindness 

beneficiaries, whose entitlement or 

eligibility had been terminated due to 

their work activity, to have their 

entitlement or eligibility reinstated in a 

timely fashion if they become unable to 

do substantial gainful work. These rules 

provide beneficiaries an additional 

incentive to return to work. 

DATES: Effective Date: These final rules 

are effective on October 31, 2005. 

Electronic Version: The electronic file 

of this document is available on the date 

of publication in the Federal Register at 

http://www.gpoaccess.gov/fr/ 

index.html. It is also available on the 

Internet site for SSA (i.e., Social 

Security Online): http:// 

www.socialsecurity.gov/regulations/. 

FOR FURTHER INFORMATION CONTACT: John 

Nelson, Team Leader, Employment 

Policy Team, Office of Program 

Development and Research, Social 

Security Administration, 6401 Security 

Boulevard, Room 128 Altmeyer 

Building, Baltimore, Maryland 21235–

6401, (410) 966–5114 or TTY (410) 966–

5609. For information on eligibility or 

filing for benefits: Call our national tollfree number, 1–(800) 772–1213 or TTY 

1–(800) 325–0778, or visit our Internet 

web site, Social Security Online, at 

http://www.socialsecurity.gov/. 

SUPPLEMENTARY INFORMATION: 

Background 

The expedited reinstatement 

provision, along with other work 

incentives and the Ticket to Work 

program contained in the Ticket to 

Work and Work Incentives 

Improvement Act of 1999 (Pub. L. 106–

170) is intended to expand your options 

as a Social Security disability 

beneficiary or a disabled or blind 

Supplemental Security Income 

recipient. We expect that the expedited 

reinstatement provision along with 

other provisions in the Ticket to Work 

and Work Incentives Improvement Act 

of 1999 will remove some of the 

disincentives that may discourage you 

from either attempting to work or 

increasing your work activity. If more 

beneficiaries with disabilities engage in 

self-supporting work, the net result will 

be an increase in the independence of 

disabled beneficiaries, a reduction in 

the Social Security and Supplemental 

Security Income disability rolls, and 

savings to the Social Security Trust 

Fund and general revenues. 

General Goals of the Expedited 

Reinstatement Provision 

The expedited reinstatement 

provision is intended to relieve some 

concerns you may have about returning 

to work. If we terminate your 

entitlement or eligibility for benefits due 

to your work activity, this provision 

provides you an easier way to have your 

entitlement or eligibility reinstated and 

to be placed back into payment status. 

This process should ease some concerns 

you may have about what will happen 

if your attempt to return to work is 

unsuccessful. 

Advice of the Ticket to Work and Work 

Incentives Advisory Panel 

During the preparation of these final 

rules, we consulted with the Ticket to 

Work and Work Incentives Advisory 

Panel. The Ticket to Work and Work 

Incentives Advisory Panel was 

established by section 101(f) of the 

Ticket to Work and Work Incentives 

Improvement Act of 1999. This panel 

advises the President, the Congress, and 

us on issues related to work incentive 

programs, planning and assistance for 

individuals with disabilities and the 

Ticket to Work Program established 

under this Act. 

Section 112 of the Ticket to Work and 

Work Incentives Improvement Act of 

1999 

Congress indicated that the purpose of 

section 112 of the Ticket to Work and 

Work Incentives Improvement Act of 

1999 (the expedited reinstatement 

provision) was to encourage disability 

beneficiaries to return to work by 

reassuring them that if they meet our 

disability standards their benefits would 

be restored in a timely fashion should 

they become unable to continue 

working. 

The expedited reinstatement 

provision provides a method for you to 

have your disability benefits reinstated 

without filing an application if you have 

had your entitlement to, or eligibility 

for, benefits terminated due to your 

work activity during the previous 5 

years, and you can no longer do 

substantial gainful activity. 

Effect of the Expedited Reinstatement 

Provision 

The expedited reinstatement 

provision provides you another option 

for regaining entitlement to benefits 

under title II and eligibility under title 

XVI of the Act after we have terminated 

your entitlement to or eligibility for 

disability benefits due to your work 

activity. If you file a request for 

expedited reinstatement, you can still 

file a new application for benefits under 

existing initial claim rules. 

Prior to the effective date of this 

provision, when we terminated your 

entitlement or eligibility due to work 

activity, you were required to file a new 

application to become entitled to or 

eligible for benefits again. We processed 

your application under rules that 

required a new disability determination 

using the medical requirements that we 

apply when you file an initial claim for 

benefits. You generally were entitled to 

receive benefits only after we processed 

your entitlement or eligibility 

determination. If we determined that 

you again qualified for benefits, you 

became eligible for work incentives 

such as the trial work period, the 

reentitlement period, and special SSI 

eligibility status under your new period 

of disability. 

The expedited reinstatement 

provision provides you the option of 

requesting that your prior entitlement to 

or eligibility for disability benefits be 

reinstated, rather than filing a new 

application for a new period of 

entitlement or eligibility. Since January 

1, 2001, you can request to be reinstated 

to benefits if you stop doing substantial 

gainful activity within 60 months of 

your prior termination. At the time you 

request reinstatement, you must be 

unable to engage in substantial gainful 

activity because of your medical 

condition. Your current impairment 

must be the same as or related to your 

prior impairment and you must be 

disabled. To determine if you are 

disabled, we will use our medical 

improvement review standard that we 

use in our continuing disability review 

process. Under the medical 

improvement review standard, we will 

generally find that you are disabled, 

Federal Register / Vol. 70, No. 189 / Friday, September 30, 2005 / Rules and Regulations 57133 

unless there is substantial evidence 

demonstrating that there has been 

medical improvement in your 

impairment(s) and the improvement is 

related to your ability to work. 

When you request reinstatement you 

can be paid up to 6 months of 

provisional benefits, and may be 

entitled to Medicare benefits or 

Medicaid, while we are deciding 

whether you qualify for reinstatement. 

Provisional benefits, or payments, are 

cash benefits that can be paid to you on 

a temporary basis when you were 

previously a Social Security (title II) 

disability beneficiary or a disabled or 

blind Supplemental Security Income 

(title XVI) recipient and you are now 

requesting reinstatement. The period 

during which you can receive 

provisional benefits is your provisional 

benefit period. This period begins with 

the first month you can receive 

provisional benefits and can never 

extend beyond six consecutive months. 

Your provisional benefit period will end 

earlier than the sixth consecutive month 

if we make our determination on your 

request for reinstatement before that 

month. Your title II provisional benefit 

period will also end if you attain full 

retirement age or if you do substantial 

gainful work activity. 

You can receive title II provisional 

benefits beginning with the month you 

file your request for reinstatement. We 

will base your provisional benefit 

amount (i.e., the amount of the monthly 

cash benefit you receive during the 

provisional benefit period) on the prior 

benefit amount that was actually 

payable to you under title II. We will 

terminate your title II provisional 

benefits when your provisional benefit 

period ends, such as if you do 

substantial gainful activity. You can 

receive title XVI provisional payments 

beginning with the month after you file 

your request for reinstatement. We will 

base your title XVI provisional benefit 

amount (i.e., the amount of the monthly 

cash payment you receive during the 

provisional benefit period) on the 

Federal Supplemental Security Income 

benefit that would actually be payable 

to you for each month in the provisional 

benefit period, depending on your 

income. We will terminate your title 

XVI provisional payments when your 

provisional benefit period ends. If you 

have previously received provisional 

benefits based upon a prior request for 

reinstatement, you cannot receive 

additional provisional benefits if you 

file a second request for reinstatement 

based on the same prior entitlement or 

eligibility. This could occur, for 

example, if we denied your prior 

request for reinstatement and then you 

subsequently file a new request for 

reinstatement because you believe you 

meet the requirements. 

We are also amending §§ 404.903 and 

416.1403 to indicate, consistent with the 

expedited reinstatement legislation, that 

the determination we make regarding 

your right to receive provisional benefits 

is not an initial determination and it is, 

therefore, not subject to administrative 

review under subpart J of part 404 and 

subpart N of part 416. 

If we deny your request for 

reinstatement, we generally will not 

consider the provisional benefits you 

received as an overpayment. If your 

reinstatement request is denied, and you 

have not filed a new benefits 

application, we will treat that request as 

your intent to file an initial application 

for benefits. If we approve your request 

for reinstatement, we will reinstate your 

prior disability entitlement or eligibility 

and reestablish your Medicare/Medicaid 

entitlement, as appropriate, if you are 

not already entitled to Medicare/ 

Medicaid. We will pay you reinstated 

benefits under title XVI beginning with 

the month after the month in which you 

file your request. We will pay you 

reinstated benefits under title II 

beginning no later than the month in 

which you file your request. We can pay 

you title II reinstated benefits for any of 

the 12 months preceding your request 

for reinstatement if you would have met 

all of the requirements for reinstatement 

had you requested reinstatement in that 

month. We will reduce reinstated 

benefits payable for a month by the 

amount of any provisional benefits that 

you already received for that month. 

When we reinstate your entitlement 

under this provision, you are then 

entitled to a 24-month initial 

reinstatement period. Your 24-month 

initial reinstatement period begins with 

the month your benefits are reinstated 

and ends with the 24th month that you 

have a benefit payable. For title II 

purposes, we consider a benefit to be 

payable in a month when you do not do 

substantial gainful activity and the nonpayment provisions in subpart E of part 

404 do not apply. For title XVI 

purposes, we consider a benefit to be 

payable in a month when, using normal 

payment calculation procedures in 

subpart D of part 416, we determine you 

are due a monthly payment, or you are 

considered to be receiving SSI benefits 

in a month under section 1619(b) of the 

Act. After the 24-month initial 

reinstatement period is completed, you 

are eligible for additional work 

incentives under title II (such as a trial 

work period and a reentitlement 

period), as well as possible future 

reinstatement through the expedited 

reinstatement provision under title II 

and title XVI. 

Notice of Proposed Rulemaking 

We published a Notice of Proposed 

Rulemaking (NPRM) in the Federal 

Register on October 27, 2003 (68 FR 

61162), which proposed rules regarding 

the expedited reinstatement provision of 

the Act. We provided a 60-day period 

for the public to comment. We 

subsequently extended the comment 

period to January 16, 2004 (69 FR 307 

(2004)). We received comments from 72 

commenters. We discuss the significant 

public comments we received on the 

NPRM and provide our responses to 

those comments later in this preamble 

under ‘‘Public Comments on the Notice 

of Proposed Rulemaking.’’ As we 

explain below under ‘‘Explanation of 

Changes to Regulations,’’ in these final 

rules we are making some changes from 

the proposed rules in response to these 

public comments. 

Explanation of Changes to Regulations 

We are amending our regulations to 

provide the rules for expedited 

reinstatement. These rules add 

§§ 404.1592b through 404.1592f to part 

404 and §§ 416.999 through 416.999d to 

part 416. 

Part 404 

Section 404.1592b provides a general 

overview of expedited reinstatement 

and summarizes the basic requirements 

for expedited reinstatement, as 

discussed in §§ 404.1592c through 

404.1592f. In response to public 

comments, we have revised the 

requirement in the NPRM that you must 

have stopped doing substantial gainful 

activity because of your medical 

condition to instead provide that you 

must be unable to do substantial gainful 

activity because of your medical 

condition. In these final rules we also 

revised the proposed reference in the 

last sentence of this section from 

§ 404.1592g to § 404.1592f because we 

deleted proposed § 404.1592e. 

Section 404.1592c describes the 

requirements for reinstatement to title II 

benefits. Section 223(i)(1) of the Act 

lists the requirements you must meet to 

have your entitlement reinstated under 

the title II expedited reinstatement 

provision. These rules explain that you 

must have previously been entitled as a 

disabled insured individual, a disabled 

child, a disabled widow or widower, or 

a disabled Medicare qualified 

government employee. We must have 

terminated your prior entitlement due to 

your doing substantial gainful activity. 

You must be unable to do substantial 

gainful activity due to your medical 

57134 Federal Register / Vol. 70, No. 189 / Friday, September 30, 2005 / Rules and Regulations 

condition. Your current impairment 

must be the same as or related to the 

impairment on which we based your 

prior period of disability, and you must 

currently be disabled. Section 223(i)(3) 

of the Act requires us to use the medical 

improvement review standard in section 

223(f) of the Act when we determine if 

you are disabled for the purposes of this 

provision. If your entitlement is 

reinstated, an auxiliary beneficiary who 

was previously entitled on your record 

can also be reinstated. The auxiliary 

beneficiary must request reinstatement 

and must meet the current entitlement 

factors for the benefit. 

In response to public comments, we 

are not requiring in these final rules that 

you stopped working due to your 

medical condition. However, as 

required under section 223(i)(1)(B)(iii) 

of the Act, these final rules provide that 

you must be unable to do substantial 

gainful activity because of your medical 

condition. We will determine that you 

meet the requirement that you are 

unable to do substantial gainful activity 

due to your medical condition when: 

(1) You file, under § 404.1592d, your 

request for reinstatement stating that 

you are unable do substantial gainful 

activity due to your medical condition, 

(2) You do not do substantial gainful 

activity in the month you file your 

request for reinstatement, and 

(3) We determine that you are under 

a disability, based on the application of 

the medical improvement review 

standard, as required by 

§ 404.1592c(a)(4). 

We believe this more closely follows 

the requirement in section 

223(i)(1)(B)(iii) of the Social Security 

Act and removes a possible disincentive 

for you to return to work. 

In response to public comments, in 

these final rules we also deleted 

proposed § 404.1592c(b) and 

redesignated proposed § 404.1592c(c) to 

§ 404.1592c(b). We made these changes 

from the proposed rules so that you may 

be able to make a second request for 

reinstatement of entitlement. Therefore, 

for example, if your request for 

expedited reinstatement is denied 

because we either determine that your 

current impairment is not the same as 

or related to the impairment that we 

used as the basis for your previous 

entitlement or eligibility, or that you are 

not disabled, you may be able to be 

reinstated on a later request for 

reinstatement provided you meet the 

requirements in § 404.1592c at that 

time. However, as we explain in 

§ 404.1592e, in these final rules we have 

added that you cannot be paid 

additional provisional benefits based on 

the subsequent request if you received 

provisional benefits based on the first 

request. By deleting proposed 

§ 404.1592c(b), these final rules now 

provide that you may be able to be 

reinstated on your request for 

reinstatement even if, after your prior 

entitlement had been terminated 

because of the performance of 

substantial gainful activity, we had 

made an intervening determination that 

you were no longer disabled under the 

medical improvement review standard 

because we conducted a continuing 

disability review on a disability 

entitlement or a medical review on your 

Medicare entitlement. We believe these 

changes make expedited reinstatement 

more responsive to your needs, while 

maintaining the integrity of the 

program. 

Section 404.1592d describes how to 

request reinstatement of benefits under 

the expedited reinstatement provision. 

Your request must be made in writing. 

Section 223(i)(2)(A) of the Act lists what 

you must include in your request for 

reinstatement and authorizes us to 

determine the form of the request and 

the information it must contain. You 

must file your request within the 

consecutive 60-month period that 

begins with the month that we 

terminated your prior entitlement to 

disability benefits due to the 

performance of substantial gainful 

activity. However, we may extend this 

time period if we determine that you 

had good cause for failing to file your 

request within the 60-month time 

period. Your request must state that you 

are disabled, that your current 

impairment is the same as or related to 

the impairment that was used as the 

basis for your prior disability 

entitlement, and that you cannot do 

substantial gainful activity because of 

your medical condition. Your request 

must also include the information we 

need to help us determine whether you 

meet the non-medical factors of 

entitlement for the benefit and the 

information we need to make the 

medical determination. Your request for 

reinstatement must be filed on or after 

January 1, 2001. In response to public 

comments, in these final rules we 

changed the proposed rule in 

§ 404.1592d(d)(2) which stated that you 

must certify that you became unable to 

continue to do substantial gainful 

activity because of your medical 

condition. These final rules have been 

revised to require that you certify that 

you cannot do substantial gainful 

activity due to your medical condition. 

This change is necessary due to our 

decision to delete the proposed 

§ 404.1592e. 

In response to public comments, we 

deleted the proposed § 404.1592e as 

these final rules do not require that you 

stopped working (or reduced your work 

and earnings below the substantial 

gainful activity level) because of your 

impairment. Therefore, the proposed 

§ 404.1592e is no longer necessary. As a 

result of this deletion, we changed 

§§ 404.1592f and 404.1592g in the 

proposed rules to § 404.1592e and 

§ 404.1592f, respectively, in these final 

rules. 

Section 404.1592e now provides 

information on when your title II 

provisional benefits start, how they are 

computed, when they are paid, and 

when they end. Section 223(i)(7) of the 

Act lists the requirements for us to pay 

provisional benefits while we are 

determining whether to approve your 

request for reinstatement. Consistent 

with the law, these rules explain that we 

can pay you up to 6 months of 

provisional benefits during your 

provisional benefit period. In addition, 

if you are not already entitled to 

Medicare, we can reestablish your 

Medicare entitlement during your 

provisional benefit period. Your 

entitlement to provisional benefits 

begins with the month your 

reinstatement request is filed. We will 

base your provisional benefit amount on 

your monthly insurance benefit that was 

actually payable to you at the time we 

terminated your prior entitlement. We 

will increase your prior benefit amount 

payable by any intervening cost of living 

increases that would have been 

applicable to the prior benefit amount 

under section 215(i) of the Act. If you 

are entitled to another title II benefit or 

another provisional benefit, the 

maximum benefit amount we will pay 

you when all benefits are combined will 

be the amount of your highest computed 

benefit. If you request reinstatement as 

a disabled widow or widower or a 

disabled child, we will not reduce your 

provisional benefit, or the payable 

benefits to other individuals entitled at 

that time on the same record when your 

provisional benefit causes the total 

benefits payable on the record to exceed 

the family maximum. 

Based on revisions to the proposed 

rules that we are making in response to 

public comments, these final rules 

provide that if you have previously 

received provisional benefits based 

upon a prior request for reinstatement, 

you cannot receive a second period of 

provisional benefits if you file a second 

request for reinstatement based on the 

same prior entitlement. In addition, as 

already provided in the proposed rules, 

we will not pay you provisional benefits 

for a month if you are not entitled to 

Federal Register / Vol. 70, No. 189 / Friday, September 30, 2005 / Rules and Regulations 57135 

payment for the month under our usual 

rules, such as if you are a prisoner. We 

also will not pay you provisional 

benefits for any month that is after the 

earliest of the following months: the 

month we send you notice of our 

determination on your request for 

reinstatement; the first month you do 

substantial gainful activity; the month 

before you attain retirement age; or the 

fifth month following the month you 

filed your request for reinstatement. You 

are not entitled to provisional benefits 

if, prior to starting your provisional 

benefits, we determine that you do not 

meet the requirements for reinstatement 

such as when: we determine that you 

did not file your request for 

reinstatement in a timely manner; or we 

determine that your prior entitlement 

did not terminate because of your doing 

substantial gainful activity; or, as 

provided in these final rules, we 

determine that, in the month you 

requested reinstatement, you did not 

meet the requirement of being unable to 

engage in substantial gainful activity 

because of your medical condition. As 

provided in the final rules, you are also 

not entitled to provisional benefits if we 

determine that your statements on your 

request for reinstatement are false. Our 

determinations on provisional benefit 

amounts, when they are payable, and 

when they terminate, are final and are 

not subject to formal administrative 

review. We will not recover a previously 

existing overpayment from your 

provisional payments unless you give us 

permission to do so. If we determine 

you are not entitled to reinstated 

benefits, usually we will not consider 

the provisional benefits you received as 

an overpayment unless we determine 

you knew or should have known that 

you did not qualify for reinstatement 

and therefore you should not have 

received the provisional benefits. In 

these final rules we added a clarification 

in § 404.1592e(h) that provides if you 

receive provisional benefits when you 

are not entitled to provisional benefits 

because we determined you are not 

entitled to reinstatement before any 

provisional benefits were paid to you, 

the payments may be subject to recovery 

as an overpayment. Provisional benefits 

may also be subject to recovery as an 

overpayment if we pay you a 

provisional benefit for a month that 

comes after we determine you are not 

entitled to reinstated benefits. 

In response to public comments, these 

final rules have been revised from the 

proposed rules to allow you to request 

reinstatement after being denied in a 

prior request. As these final rules 

provide you can file subsequent 

requests for reinstatement, we have also 

revised these final rules to provide that 

if you file a subsequent request for 

reinstatement on the same prior 

entitlement, after having received 

provisional benefits based upon the 

prior reinstatement request, you cannot 

be paid additional provisional benefits. 

In these final rules we changed 

§ 404.1592f from the proposed rule to 

§ 404.1592e since we deleted in its 

entirety the proposed § 404.1592e. In 

these final rules we have also deleted 

proposed § 404.1592f(d)(2) and 

redesignated proposed § 404.1592f(d)(3) 

as § 404.1592e(e)(2). This was necessary 

since proposed § 404.1592f(2) 

referenced deleted § 404.1592c(b). 

Section 404.1592f now discusses how 

we determine your reinstated benefits 

consistent with the requirements 

regarding paying reinstated benefits in 

section 223(i) of the Act. These final 

rules explain that if we have determined 

we can reinstate you in the month you 

filed your reinstatement request, we will 

then consider whether we can pay you 

retroactive reinstated benefits. We will 

reinstate your benefits beginning with 

the earliest month in the 12-month 

period immediately preceding the 

month you requested reinstatement in 

which you would have met all of the 

reinstatement requirements if you had 

filed your request for reinstatement in 

that month. We will also reinstate your 

Medicare entitlement. Your entitlement 

to title II disability benefits and 

Medicare, under the expedited 

reinstatement provision, cannot be 

reinstated for a month prior to January 

2001. 

We will determine and pay your 

reinstated monthly benefits under our 

normal payment provisions of title II of 

the Act, with some exceptions. We will 

withhold from your reinstated benefits 

due for a month the amount of any 

provisional payments we already paid 

for that month. If the provisional 

benefits we paid you for a month exceed 

the amount of reinstated benefits due 

you for that month, we will consider the 

difference as an overpayment. We will 

use the same date of onset to calculate 

your new primary insurance amount as 

a reinstated individual that we used in 

your most recent period of disability. 

When you are reinstated, you are 

entitled to a 24-month initial 

reinstatement period. Your initial 

reinstatement period begins with the 

month your reinstated benefits begin 

and ends when you have had 24 months 

of payable benefits. We consider a 

month a payable month when you do 

not do substantial gainful activity and 

the non-payment provisions in subpart 

E of part 404 do not apply. During the 

initial reinstatement period, in addition 

to normal non-payment events, a benefit 

is not payable for any month in which 

you do substantial gainful activity. We 

will not apply the provisions of 

§§ 404.1574(c) and 404.1575(d) 

regarding unsuccessful work attempts, 

or the provisions of § 404.1574a 

regarding averaging of earnings, when 

we determine if you have done 

substantial gainful activity in a month 

during your initial reinstatement period. 

After you complete your initial 

reinstatement period, we will consider 

your future work under the work 

incentive provisions of title II of the Act. 

Your trial work period begins the month 

after you complete your initial 

reinstatement period. Your reinstated 

benefits end with the earliest month that 

precedes the third month following the 

month in which we determine your 

disability ceases, the month we 

terminate your benefits for another 

reason, the month you reach retirement 

age, or the month you die. 

We consider determinations we make 

regarding your title II reinstated benefits 

to be initial determinations subject to 

administrative and judicial review. If we 

determine you are not entitled to 

reinstated benefits, we will consider 

your request for reinstatement as your 

intent to file a new initial claim for the 

benefit. 

In these final rules we changed 

§ 404.1592g from the proposed rule to 

§ 404.1592f, since we deleted in its 

entirety the proposed § 404.1592e. In 

these final rules we added a sentence to 

§ 404.1592f(d) that provides if the 

amount of the provisional benefit 

already paid you for a month equals or 

exceeds the amount of the reinstated 

benefit payable for that month so that no 

additional payment is due, we will 

consider that month a payable month 

under § 404.1592f. We added this 

sentence to clarify in these final rules 

our intent in the NPRM; it was not 

intended as a change from the proposed 

rules. We also changed references to 

§ 404.900 through § 404.999 in 

paragraph (g) of the NPRM to subpart J 

of part 404 in these final rules. This has 

been done for simplification purposes 

and is not intended as a change from the 

proposed rules. 

Part 416 

Section 416.999 provides a general 

overview of expedited reinstatement 

and summarizes the basic requirements 

for expedited reinstatement, as 

discussed in §§ 416.999a through 

416.999d. In response to public 

comments, in these final rules we have 

revised the requirement in the NPRM 

that you must have stopped doing 

57136 Federal Register / Vol. 70, No. 189 / Friday, September 30, 2005 / Rules and Regulations 

substantial gainful activity because of 

your medical condition to instead 

provide that you must be unable to do 

substantial gainful activity because of 

your medical condition. In these final 

rules we also revised the proposed 

reference in the last sentence of the 

section from § 416.999e to § 416.999d 

because we deleted the NPRM proposed 

§ 416.999c. 

Section 416.999a describes the 

requirements for reinstatement to title 

XVI benefits. Section 1631(p)(1) of the 

Act lists the requirements you must 

meet to be reinstated under the title XVI 

expedited reinstatement provision. 

These rules explain that you must have 

previously been eligible for SSI based 

on disability or blindness. We must 

have terminated your prior eligibility 

due to earned income or a combination 

of earned and unearned income. You 

must be unable to do substantial gainful 

activity due to your medical condition. 

Your current impairment must be the 

same as or related to the impairment on 

which we based your prior eligibility, 

and you must currently be disabled. 

Section 1631(p)(3) of the Act requires 

we use the medical improvement review 

standard in section 1614(a)(4) of the Act 

when we determine if you are disabled 

for the purposes of this provision. If you 

are reinstated, your spouse can also be 

reinstated if your spouse was previously 

eligible. Your spouse must request 

reinstatement and must meet the current 

eligibility factors for title XVI benefits. 

In response to public comments, we 

are not requiring in these final rules that 

you stopped working due to your 

medical condition. However, as 

required under section 1631(p)(1)(B)(iii) 

of the Act, these final rules now provide 

that you must be unable to do 

substantial gainful activity because of 

your medical condition. When you file 

your request for reinstatement under 

§ 416.999b that states you are unable to 

do substantial gainful activity due to 

your medical condition; and you do not 

do substantial gainful activity in the 

month you file your request for 

reinstatement; and we determine that 

you are under a disability, based on the 

application of the medical improvement 

review standard, as required by 

§ 416.999a(a)(4); we will determine that 

you meet the requirement that you are 

unable to do substantial gainful activity 

due to your medical condition. We 

believe this more closely follows the 

requirement in section 1631(p)(1)(B)(iii) 

of the Act and removes a possible 

disincentive for you to return to work. 

In response to public comments, in 

these final rules we also deleted 

proposed § 416.999a(b) and 

redesignated proposed § 416.999a(c) to 

§ 416.999a(b). We are making these 

changes from the proposed rules so that 

you may be able to make a second 

request for reinstatement of eligibility. 

Therefore, for example, if your request 

for expedited reinstatement is denied 

because we either determine that your 

current impairment is not the same as 

or related to the impairment that we 

used as the basis for your previous 

entitlement or eligibility, or that you are 

not disabled, you may be able to be 

reinstated on a later request for 

reinstatement provided you meet the 

requirements in § 416.999a at that time. 

However, as we explain in § 416.999c, 

in these final rules we have added that 

you cannot be paid additional 

provisional benefits based on the 

subsequent request if you received 

provisional benefits based on the first 

request. By deleting proposed 

§ 416.999a(b), these final rules now 

provide that you may also be able to be 

reinstated on your request for 

reinstatement even if, after your prior 

eligibility had been terminated because 

of your work activity, we had made an 

intervening determination that you were 

no longer disabled under the medical 

improvement review standard because 

we conducted a continuing disability 

review on a disability eligibility. We 

believe these changes make expedited 

reinstatement more responsive to your 

needs, while maintaining the integrity 

of the program. 

Section 416.999b describes how to 

request reinstatement of benefits under 

the expedited reinstatement provision. 

Your request must be in writing. Section 

1631(p)(2)(A) of the Act lists what you 

must include in your request for 

reinstatement and authorizes us to 

determine the form of the request and 

the information it must contain. You 

must file your request within the 

consecutive 60-month period that 

begins with the month that we 

terminated your prior eligibility to 

disability benefits because of earnings. 

However, we may extend this time 

period if we determine that you had 

good cause for failing to file your 

request within the 60-month time 

period. Your request must state that you 

are disabled, that your current 

impairment is the same as or related to 

the impairment that we used as the 

basis for your prior disability eligibility, 

that you cannot do substantial gainful 

activity because of your medical 

condition, and that you meet all of the 

non-medical requirements for eligibility. 

Your request must also include the 

information we need to determine 

whether you meet the non-medical 

factors of eligibility for the benefit and 

the information we need to make the 

medical determination. Your request for 

reinstatement must be filed on or after 

January 1, 2001. In response to public 

comments, in these final rules we 

changed the proposed rule in 

§ 416.999b(e) which stated that you 

must certify that you became unable to 

continue to do substantial gainful 

activity because of your medical 

condition. These final rules have been 

revised to require that you certify that 

you cannot do substantial gainful 

activity due to your medical condition. 

This change is necessary due to our 

decision to delete the proposed 

§ 416.999c. 

In response to public comments, we 

deleted proposed § 416.999c as these 

final rules do not require that you 

stopped working (or reduced your work 

and earnings below the substantial 

gainful activity level) because of your 

impairment. Therefore, the proposed 

§ 416.999c is no longer necessary. As a 

result of this deletion, we changed 

§§ 416.999d and 416.999e in the 

proposed rules to §§ 416.999c and 

416.999d, respectively, in these final 

rules. 

Section 416.999c now provides 

information on when your title XVI 

provisional benefits start, how they are 

computed, when they are paid, and 

when they end. Section 1631(p)(7) of 

the Act lists the requirements for us to 

pay you provisional benefits while we 

are determining whether to approve 

your request for reinstatement. 

Consistent with the law, these final 

rules explain that we can pay you up to 

6 months of provisional benefits during 

your provisional benefit period. Your 

provisional benefits will begin with the 

month after you request reinstatement. 

We will base your provisional benefit 

amount on normal computational 

methods for an individual receiving SSI 

benefits under title XVI of the Act with 

the same amounts and kind of income. 

If your spouse also requests 

reinstatement, we can pay provisional 

payments to your spouse. Your spouse 

must meet SSI eligibility requirements, 

except those relating to the filing of an 

application, before we can pay 

provisional payments. We will use the 

same computation method used for you 

and your spouse’s provisional benefit 

that we would use to figure an eligible 

individual and eligible spouse receiving 

non-provisional benefits under title XVI 

of the Act with the same kind and 

amount of income. As required by 

section 1631(p)(8) of the Act, you are 

not eligible for state supplementary 

payments during the provisional benefit 

period. 

Federal Register / Vol. 70, No. 189 / Friday, September 30, 2005 / Rules and Regulations 57137 

Based on revisions to the proposed 

rules that we are making in response to 

public comments, these final rules 

provide that if you have previously 

received provisional benefits based 

upon a prior request for reinstatement, 

you cannot receive a second period of 

provisional benefits if you file a second 

request for reinstatement based on the 

same prior eligibility. In addition, as 

already provided in the proposed rules, 

we will not pay you provisional benefits 

for any month where a suspension or 

terminating event occurs under our 

usual rules, such as when you are in an 

institution or if you die. We also will 

not pay provisional benefits for any 

month after the earliest month either of 

the following events occurs: the month 

we send you our notice of our 

determination on your request for 

reinstatement; or the sixth month 

following the month you filed your 

request for reinstatement. You are not 

eligible for provisional benefits if, prior 

to starting your provisional benefits, we 

determine you do not meet the 

requirements for reinstatement such as 

when: We determine that you did not 

file your request for reinstatement 

timely; or we determine that your prior 

eligibility terminated for a reason 

unrelated to income; or, as provided in 

these final rules, we determine that you 

engaged in substantial gainful activity in 

the month you requested reinstatement. 

As provided in the final rules, you are 

also not eligible for provisional benefits, 

if we determine that your statements on 

your request for reinstatement are false. 

Our determinations on your provisional 

benefit amounts, when they are payable, 

and when they terminate, are final and 

are not subject to formal administrative 

review. We will not recover previously 

existing overpayments from your 

provisional payments unless you give us 

permission to do so. If we determine 

that you are not eligible for reinstated 

benefits, usually we will not consider 

the provisional payments you received 

as an overpayment unless you knew or 

should have known that you did not 

qualify for reinstatement and you 

should not have received provisional 

payments. In these final rules we added 

a clarification in § 416.999c(h) that 

provides if you receive provisional 

benefits when you are not entitled to 

provisional benefits because we 

determined you are not entitled to 

reinstatement before any provisional 

benefits were paid to you, the payments 

may be subject to recovery as an 

overpayment. Provisional benefits may 

also be subject to recovery as an 

overpayment if we pay you a 

provisional benefit for a month that 

comes after we determine you are not 

entitled to reinstated benefits. 

In response to public comments, these 

final rules have been revised from the 

proposed rules to allow you to request 

reinstatement after being denied in a 

prior request. As these final rules 

provide you can file subsequent 

requests for reinstatement, we have also 

revised these final rules to provide that 

if you file a subsequent request for 

reinstatement on the same prior 

eligibility, after having received 

provisional benefits based upon the 

prior reinstatement request, you cannot 

be paid additional provisional benefits. 

In these final rules we changed 

§ 416.999d from the proposed rule to 

§ 416.999c since we deleted in its 

entirety the proposed § 416.999c. In 

these final rules we have also deleted 

proposed § 416.999d(d)(2) and 

redesignated proposed § 416.999d(d)(3) 

as § 416.999c(e)(2). This was necessary 

since proposed § 416.999d(d)(2) 

referenced deleted § 416.999a(b). 

Section 416.999d now discusses how 

we determine your reinstated SSI 

benefits consistent with the 

requirements regarding paying 

reinstated benefits in section 1631(p)(4) 

of the Act. These final rules explain that 

we will reinstate your eligibility, and 

your spouse’s eligibility, with the month 

following the month you filed your 

request for reinstatement. Your 

eligibility cannot be reinstated for a 

month prior to February 2001. 

We will determine and pay your 

reinstated benefits under the normal 

payment provisions of title XVI of the 

Act, with one exception. We will 

withhold from your reinstated benefits 

due in a month the amount of any 

provisional payments you were already 

paid for that month. If we pay you a 

provisional benefit for a month that 

exceeds the amount of your reinstated 

benefit due for that month, we will 

consider the difference an overpayment. 

When your request for reinstatement is 

approved, you are eligible for a 24- 

month initial reinstatement period. 

Your initial reinstatement period begins 

with the month your reinstated benefits 

begin and ends when you have had 24 

months of payable benefits. We consider 

a month a payable month when, 

considering the normal payment rules, 

you are due a benefit payment for the 

month. As a result of public comments, 

we have also clarified in these final 

rules in § 416.999d(c) that we will 

consider a month a payable month in 

your initial reinstatement period if you 

are considered to be receiving SSI 

benefits in a month under section 

1619(b) of the Act. After you complete 

the initial reinstatement period, you are 

again eligible for expedited 

reinstatement if we terminate your 

eligibility due to income. Your 

reinstated benefits end with the earliest 

month that precedes the third month 

following the month in which we 

determine your disability ceases, the 

month before we terminate your 

eligibility for another reason, or the 

month you die. 

We consider determinations we make 

regarding your title XVI reinstated 

benefits to be initial determinations 

subject to administrative and judicial 

review. If we determine you are not 

eligible for reinstated benefits we will 

consider your request for reinstatement 

your intent to file a new initial claim for 

benefits. 

In these final rules we changed 

§ 416.999e from the proposed rule to 

§ 416.999d since we deleted in its 

entirety the proposed § 416.999c. In 

these final rules we added a sentence to 

§ 416.999d(c) that provides if the 

amount of the provisional benefit 

already paid you for a month equals or 

exceeds the amount of the reinstated 

benefit payable for that month so that no 

additional payment is due, we will 

consider that month a payable month 

under § 416.999d. We also changed 

references to §§ 416.1400 through 

416.1499 in paragraph (e) of the NPRM 

to subpart N of part 416 in these final 

rules. This has been done for 

simplification purposes and is not 

intended as a change from the proposed 

rules. 

Public Comments 

We published a Notice of Proposed 

Rulemaking (NPRM) in the Federal 

Register on October 27, 2003 (68 FR 

61162), which proposed rules regarding 

the Expedited Reinstatement provision. 

We provided a 60-day period for the 

public to comment ending December 26, 

2003. We subsequently extended the 

comment period to January 16, 2004. (69 

FR 307 (1994)). We received comments 

from 72 commenters. We carefully 

considered the comments we received 

on the proposed rules in publishing 

these final rules. The comments we 

received and our responses to the 

comments are set forth below. Although 

we condensed, summarized, or 

paraphrased the comments, we believe 

we have expressed the views accurately 

and have responded to all the relevant 

issues raised. 

Comments and Responses 

Comment: Multiple commenters 

indicated that we should modify 

proposed §§ 404.1592c(b) and 

416.999a(b), which stated that your 

entitlement could not be reinstated 

57138 Federal Register / Vol. 70, No. 189 / Friday, September 30, 2005 / Rules and Regulations 

under the expedited reinstatement 

provision if we had previously denied 

your prior request for expedited 

reinstatement because we determined 

you were not disabled or because we 

determined you did not have a same as 

or related impairment, or because, after 

your prior entitlement had been 

terminated because of your work 

activity, we had made an intervening 

determination that you were no longer 

disabled based upon a prior medical 

review or continuing disability review. 

These commenters indicated that these 

sections could limit the effectiveness of 

expedited reinstatement by not allowing 

you to use this provision more than 

once. Other commenters suggested that 

we should either delete §§ 404.1592c(b) 

and 416.999a(b) or provide a time limit 

after which a second request for 

reinstatement could be allowed. 

Response: Based upon these 

comments, we decided to delete 

proposed §§ 404.1592c(b) and 

416.999a(b) from these final rules. 

Therefore, if your request for expedited 

reinstatement is denied because we 

either determine that your current 

impairment is not the same as or related 

to the impairment that we used as the 

basis for your previous entitlement or 

eligibility, or that you are not disabled, 

as determined under the medical 

improvement review standard in 

§§ 404.1594(a) through 404.1594(e), 

416.994, or 416.994a, you may be able 

to be reinstated on a later request for 

reinstatement provided you meet the 

requirements in § 404.1592c or 

§ 416.999a at that time. However, as we 

explain in our discussion of § 404.1592e 

and § 416.999c, these final rules have 

been revised to provide that you cannot 

be paid additional provisional benefits 

based on a subsequent request if you 

received provisional benefits based on 

the first request. You also may be able 

to be reinstated on your request for 

reinstatement if, after your prior 

entitlement had been terminated 

because of your work activity, we made 

an intervening determination that you 

were no longer disabled under the 

medical improvement review standard 

because we conducted a continuing 

disability review on a disability 

entitlement or eligibility or a medical 

review on your Medicare entitlement. 

We believe these changes make 

expedited reinstatement more 

responsive to those people with 

episodic impairments and serve as a 

better incentive to return to work, while 

also maintaining the integrity of the 

program. 

Comment: Multiple commenters 

indicated that we should change our 

proposed rules in §§ 404.1592b, 

404.1592e, 416.999 and 416.999c to 

state that you should not have to have 

stopped working due to your medical 

condition to qualify for expedited 

reinstatement. 

Response: We agree with these 

comments. In these final rules we 

deleted the requirement in NPRM 

sections §§ 404.1592b, 404.1592e, 

416.999, and 416.999c that you must 

have stopped working due to your 

medical condition. These final rules 

have been revised to require under 

§§ 404.1592b, 404.1592c(a)(4)(i), 

416.999, and 416.999a(4)(i) that you 

must be unable to do substantial gainful 

activity because of your medical 

condition. Also, when you file your 

request for reinstatement under 

§§ 404.1592d and 416.999b these final 

rules provide, as required by sections 

223(i)(2)(A)(ii) and 1631(p)(2)(A)(ii) of 

the Act, that you will need to certify 

that you cannot do substantial gainful 

activity due to your medical condition. 

This requirement was changed from the 

NPRM that you certify that you became 

unable to do substantial gainful activity 

due to your medical condition. When 

you file your request for reinstatement 

stating that you cannot do substantial 

gainful activity due to your medical 

condition, you do not do substantial 

gainful activity in the month you file 

your request for reinstatement, and we 

determine that you are under a 

disability, based on the application of 

the medical improvement review 

standard, as required by 

§§ 404.1592c(a)(4) and 416.999a(a)(4), 

we will then determine that you meet 

the requirement that you cannot do 

substantial gainful activity due to your 

medical condition. We believe this more 

closely follows the requirement in 

sections 223(i)(1)(B)(iii) and 

1631(p)(1)(B)(iii) of the Social Security 

Act as it conforms to the plain language 

of the statue that states your disability 

must render you unable to do 

substantial gainful activity. Therefore, 

your medical condition does not have 

be the reason you stopped working, but 

it must cause you to now be unable to 

do substantial gainful activity. 

We, therefore, deleted in their entirety 

the proposed rules in §§ 404.1592e and 

416.999c as they are no longer 

necessary. Since we deleted 

§§ 404.1592e and 416.999c, we changed 

proposed §§ 404.1592f, 404.1592g, 

416.999d and 416.999e to §§ 404.1592e, 

404.1592f, 416.999c and 416.999d, 

respectively, in these final rules. As 

indicated above, in these final rules we 

have also made necessary changes in 

proposed §§ 404.1592b, 404.1592d, 

416.999 and 416.999b. 

Comment: Multiple commenters 

expressed the view that if we remove 

the requirement in §§ 404.1592e and 

416.999c that you must have stopped 

your work activity due to your medical 

condition, we could then also remove 

the requirement that we must do a 

continuing disability review to 

determine whether you are disabled 

when you request reinstatement. One 

commenter suggested that we should 

reestablish the medical diary review 

date on your reinstatement and do the 

medical review at the previously 

scheduled time. 

Response: We deleted proposed 

§§ 404.1592e and 416.999c. However, 

even though we deleted those rules, we 

still have to make a medical 

determination when you request 

reinstatement. Sections 223(i)(3) and 

1631(p)(3) of the Act require we use the 

requirements of sections 223(f) and 

1614(a)(4) to determine whether you are 

under a disability, or blind or disabled, 

respectively. These sections also require 

that you must have a current physical or 

mental impairment that is the same as 

or related to the impairment that was 

the basis for the finding of disability 

that gave rise to your prior entitlement 

or eligibility. Therefore, the medical 

determination we make when you 

request reinstatement is an entitlement 

or eligibility determination that uses, in 

part, our medical improvement review 

standard. Since the statute requires you 

must be disabled (or blind), we are 

continuing to include that requirement 

in these final rules in §§ 404.1592c(a)(4) 

and 416.999a(a)(4). 

Comment: Multiple commenters 

suggested that we reword the preamble 

explanation of proposed 

§ 404.1592f(a)(6) (§ 404.1592e(a)(6) in 

these final rules) to more closely match 

the wording of the regulation. These 

commenters stated that the wording in 

the preamble could be misinterpreted to 

mean that we would adjust provisional 

benefits payable when the provisional 

benefits, plus the benefit payable to 

beneficiaries already entitled on the 

record, exceed the family maximum 

benefit payable. 

Response: We reworded the preamble 

discussion of this provision to more 

closely match the wording of 

§ 404.1592e(a)(6) in these final rules. We 

believe the revised preamble is clearer 

as it now states that we will not reduce 

your provisional benefit, or the payable 

benefits to other individuals entitled at 

that time on the same record, when your 

provisional benefit causes the total 

benefits payable on the record to exceed 

the family maximum. 

Comment: Multiple commenters 

indicated that under proposed 

Federal Register / Vol. 70, No. 189 / Friday, September 30, 2005 / Rules and Regulations 57139 

§§ 404.1592g(c)(1) and 416.999e(b) 

(§§ 404.1592f(c)(1) and 416.999d(b) in 

these final rules) we should not recover 

as an overpayment provisional benefits 

that were paid to you that exceed the 

amount of the reinstated benefit you are 

due when the family maximum benefit 

is involved. 

Response: Section 223(i)(7)(D) (and 

section 1631(p)(7)(D) for SSI cases) of 

the Act generally provides for the 

exclusion of the provisional benefits 

you have been paid from recovery as an 

overpayment when we determine that 

you are not entitled to reinstated 

benefits. That statutory exclusion is not 

applicable when we determine that you 

are entitled to reinstated benefits. 

Section 223(i)(4)(B)(iii) (and section 

1631(p)(4)(B)(ii) for SSI cases) requires 

us to reduce your reinstated benefits by 

the amount of any provisional benefits 

you have been paid for the month. The 

Act does not provide for the exclusion 

from possible recovery as an 

overpayment the amount of provisional 

benefits that exceed your reinstated 

benefits when you are reinstated. We 

believe the number of overpayments, 

and the amount of those overpayments, 

created under §§ 404.1592f(c)(1) and 

416.999d(c) of these final rules will be 

minimal. You can also request we waive 

adjustment or recovery of the 

overpayment under subpart F of part 

404 (subpart E of part 416 for SSI cases). 

Comment: Multiple commenters 

indicated that the 24 month initial 

reinstatement period in § 404.1592g(d) 

and § 416.999e(c), (§§ 404.1592f(d) and 

416.999d(c) in these final rules) is 

confusing and should be simplified. 

One commenter expressed concern that 

we may not be able to process monthly 

wage reports on a timely basis, which 

could serve as a disincentive for you to 

return to work. 

Response: The 24 month initial 

reinstatement period is established by 

sections 223(i)(6) and 1631(p)(6) of the 

Act. Furthermore, section 223(i)(4)(c) 

specifically provides that, when you are 

reinstated under the expedited 

reinstatement provision, we may not 

pay a benefit for any month in which 

you engage in substantial gainful 

activity. In developing the proposed 

rules, we attempted to avoid any 

unnecessary complexity regarding the 

24 month initial reinstatement period, 

and did not add any complexity beyond 

what the statute requires. We have 

changed the section numbers from 

§§ 404.1592g and 416.999e to 

§§ 404.1592f and 416.999d, respectively, 

because, as explained in response to 

another comment, we decided to delete 

the proposed §§ 404.1592e and 

416.999c. As a result of these comments, 

we have included two clarifications in 

these final rules that were not in the 

proposed rules. We have clarified in 

§ 404.1592f(d) (and § 416.999d(c)) of 

these final rules that if the amount of 

the provisional benefit already paid you 

for a month equals or exceeds the 

amount of the reinstated benefit payable 

for that month, so no additional 

payment is due, we will consider that 

month a payable month in your initial 

reinstatement period. We have also 

clarified in these final rules in 

§ 416.999d(c) that we will consider a 

month a payable month in your initial 

reinstatement period if you are 

considered to be receiving SSI benefits 

in a month under section 1619(b) of the 

Act. We recognize the need to process 

your work reports in a timely manner. 

We believe actions we have taken, 

outside of these final rules, are 

addressing this concern. We do not 

believe these final rules are the 

appropriate avenue to address this 

issue. 

Comment: One commenter indicated 

that if you are requesting reinstatement 

on the record of an insured person 

under proposed § 404.1592c(c), you 

should not be required to file a new 

application to receive those benefits. 

Response: Section 223(i)(5) of the 

Social Security Act provides that we 

may reinstate your entitlement on the 

record of an insured person if we 

determine that you satisfy the 

requirements for entitlement to such 

benefits (other than the requirements 

related to the filing of an application). 

Therefore, under proposed 

§ 404.1592c(c), redesignated as 

§ 404.1592c(b) in these final rules, and 

§ 404.1592d, you must make a request 

for reinstatement (as opposed to filing 

an application) and your request must 

be in writing and provide us the 

information we request so that we can 

determine whether you meet the 

requirements for entitlement. The 

purpose of the form we require is to 

allow us to collect the information we 

need to determine whether you meet the 

requirements for reinstatement and to 

determine your proper benefit amount 

should we determine you can be 

reinstated. 

Comment: Multiple commenters 

indicated that we should design a 

separate form to use to request 

reinstatement under §§ 404.1592d and 

416.999b, rather than using already 

existing forms we use for other 

purposes. Commenters suggested we 

should possibly tailor the form to the 

reinstatement requirements or make the 

form shorter and easier to complete. 

Response: Sections 223(i)(2)(A) and 

1631(p)(2)(A) of the Act provide that we 

should determine the form and the 

information we need in your 

reinstatement request. These sections 

also specifically require that your 

request must include a statement that 

you are under a disability, the 

impairment that is the basis for the 

finding of disability is the same as or 

related to the impairment that was the 

basis for the finding of disability that 

gave rise to your prior disability 

entitlement, and that your disability 

renders you unable to perform 

substantial gainful activity. Therefore, 

your request for reinstatement under 

§§ 404.1592d and 416.999b must be 

made in writing and must provide us 

the information we need so that we can 

determine whether you meet the 

requirements for reinstatement. We have 

designed separate reinstatement request 

forms for you to use to request 

reinstatement. The purpose of the 

supplemental forms we require is to 

allow us to collect the additional 

information we need to determine 

whether you meet the requirements for 

reinstatement and to determine your 

proper benefit amount should we 

determine you can be reinstated. We are 

not developing a specialized 

supplemental form to collect the 

additional information we need, as the 

information needed is the same 

information we can collect using our 

existing forms. 

Comment: One commenter indicated 

that deciding whether to file for 

reinstatement versus filing a new initial 

claim application may be difficult, so 

you should seek advice. This 

commenter suggested that we should 

include language in these final rules 

explaining the complexity of this 

decision and the need to consult with 

our staff and possibly others prior to 

making this decision. 

Response: Our staff is trained to assist 

you when you decide whether to file a 

new initial application, or whether to 

file for expedited reinstatement. There 

can be advantages to filing a request for 

expedited reinstatement such as: the 

payment of provisional benefits, 

entitlement to Medicare benefits or 

Medicaid, using the medical 

improvement review standards for the 

medical determination, and protecting 

your filing for an initial claim if your 

expedited reinstatement request is 

denied. Also, for Social Security benefit 

purposes, if your benefits are reinstated 

on your own earnings record, we will 

compute your primary insurance 

amount with the same date of onset we 

used in your most recent period of 

disability on your earnings record. Since 

we will not pay you reinstated benefits 

for any months of substantial gainful 

57140 Federal Register / Vol. 70, No. 189 / Friday, September 30, 2005 / Rules and Regulations 

activity during your initial 

reinstatement period, this could also be 

an advantage in extending your 

entitlement. There could also be some 

disadvantages to filing a request for 

reinstatement rather than a new initial 

application: such as, if we deny your 

request for reinstatement because we 

determine you are not disabled under 

the medical improvement review 

standard, we could also stop your 

Medicare benefits; in some 

circumstances your monthly benefit 

amount could be less than it would be 

if you became entitled to disability 

benefits again by filing a new 

application; and your trial work period 

begins after you have completed your 24 

month initial reinstatement period 

rather than being immediately available 

to you if you became entitled again by 

filing a new application. It will 

normally be to your advantage to 

request expedited reinstatement rather 

than filing a new initial application; 

however, this decision will depend on 

your particular circumstances and you 

should discuss this thoroughly with our 

staff at the appropriate time. Since these 

decisions must be made based upon 

your own particular circumstances, we 

are not placing language in these final 

rules about these discussions beyond 

what is required to be eligible for, or 

entitled to, reinstatement. 

When you contact us about filing a 

new initial application for benefits, or 

about requesting reinstatement, our staff 

will discuss with you your options and 

the effect of your decision. You could 

also choose to obtain information about 

your options from other knowledgeable 

sources. We want to make sure you 

make the decision that is the most 

advantageous for you. Since the 

decision on whether to request 

reinstatement is your decision, you 

should consider all of your individual 

circumstances, however, we do not 

believe we could properly discuss in 

these final rules everything you should 

consider. Since we cannot identify in 

these final rules all of the information 

you may need to make your decision, 

we also do not believe we could tell you 

how you should arrive at your decision. 

Therefore, while we do encourage you 

to discuss your situation with our staff 

and others who would be helpful, we do 

not believe we can include in these final 

rules a rule on how you should arrive 

at your decision. 

Comment: One commenter noted that 

proposed § 416.999d (§ 416.999c in 

these final rules) discusses overpayment 

policies for provisional benefits when 

we determine that you are not eligible 

to receive reinstated benefits and 

suggested that clarifying this language 

may be helpful, especially when we say 

that provisional benefits already paid 

under § 416.999c will not be subject to 

recovery as an overpayment unless we 

determine you knew, or should have 

known, you did not meet the 

requirements for reinstatement. 

Response: We considered this 

comment and decided not to change 

these final rules. The specific language 

regarding ‘‘whether you knew, or should 

have known,’’ is in § 416.999c(h) and is 

based upon the standard set forth in 

section 1631(p)(7)(D) of the Act. In these 

final rules we used the same phrasing as 

in the statute for whether you knew, or 

should have known. Our determination 

on whether you knew or should have 

known you did not meet the 

requirements for reinstatement will be 

based on the facts of your situation. 

Comment: Multiple commenters 

indicated that under proposed 

§§ 404.1592f and 416.999d 

(§§ 404.1592e and 416.999c in these 

final rules), your provisional benefits 

should be extended beyond the six 

month limitation if we cannot make our 

determination within six months, or we 

should ensure all reinstatement 

determinations are made within six 

months. 

Response: Sections 223(i)(7)(C)(ii) and 

1631(p)(7)(C)(ii) of the Act require us to 

stop your provisional benefits with the 

earlier of the month in which we make 

our determination on your eligibility or 

entitlement for reinstated benefits or 

with the end of the fifth month after 

your provisional benefits start. 

Therefore, we can pay you no more than 

six months of provisional benefits. 

While we do try to make all 

determinations within this six month 

timeframe, since the Act considers the 

possibility we may not be able to do this 

and requires we stop payments if we 

haven’t, we do not have the authority to 

extend provisional benefits beyond the 

consecutive six months that begin with 

the first month your provisional benefits 

can start under § 404.1592e or 

§ 416.999c of these final rules. 

Comment: One commenter indicated 

that we should clarify the circumstances 

when benefits would be offered under 

proposed § 416.999e(f) (§ 416.999d(f) of 

these final rules) when we say that if we 

deny your request for reinstatement, the 

denial protects your filing a new claim. 

Response: Section 1631(p)(2)(B) 

(section 223(i)(2)(B) for title II cases) of 

the Act provides that a request for 

reinstatement may lead to constitute an 

application for benefits if we determine 

you are not eligible for reinstated 

benefits. These final rules, therefore, 

provide that if you request 

reinstatement under § 416.999b and we 

determine that we cannot reinstate your 

eligibility, we will then treat your 

request for reinstatement as your intent 

to file a new initial claim (i.e., a 

protective filing). The NPRM and these 

final rules do not place any restrictions 

on having your reinstatement request 

treated as a protective filing, other than 

we must determine you are not eligible 

for reinstated benefits. If we determine 

you are not eligible for reinstatement, 

you can then file a new initial 

application for benefits and have the 

date you filed your request for 

reinstatement considered to be your 

application filing date. If we determine 

your benefits cannot be reinstated, that 

determination is considered an initial 

determination and you can also request 

review if you are dissatisfied with it. If 

you choose, you can file a new initial 

application for benefits at the same time 

you request we review our 

determination that your benefits cannot 

be reinstated. 

Comment: One commenter indicated 

that since an expedited reinstatement 

determination that denies eligibility 

becomes a new application there 

appears to be little gained by our 

insisting that the expedited 

reinstatement determination not be an 

initial determination for appeal 

purposes. 

Response: We have considered this 

comment and have not changed these 

final rules. These final rules provide, 

under §§ 404.1592f and 416.999d, that 

determinations we make regarding your 

entitlement to or eligibility for 

reinstated benefits are initial 

determinations for purposes of our 

administrative review process. The 

NPRM, and these final rules, provide in 

§§ 404.903, 404.1592e(f), 416.999c(f), 

and 416.1403, that determinations we 

make regarding your provisional 

benefits are not initial determinations 

and are not subject to administrative or 

judicial review. We believe the 

commenter may have confused 

provisional benefit determinations with 

determinations we make regarding your 

entitlement to or eligibility for 

reinstatement. 

Comment: Multiple commenters 

indicated that we should provide a 

means by which you can obtain a new 

ticket under the Ticket to Work program 

when your entitlement is reinstated 

under the expedited reinstatement 

provision. 

Response: If you are reinstated under 

the expedited reinstatement provision, 

under §§ 404.1592b through 404.1592f 

or §§ 416.999 through 416.999d, you 

may be eligible for a new ticket under 

§ 411.125(c). Since the Ticket to Work 

program already provides those rules, 

Federal Register / Vol. 70, No. 189 / Friday, September 30, 2005 / Rules and Regulations 57141 

we have not included them in these 

final rules. 

Comment: Multiple commenters 

stated that we should add a section to 

the expedited reinstatement rules to 

provide different rules for people using 

a ticket under the Ticket to Work 

program. 

Response: Sections 223(i) and 1631(p) 

of the Act do not provide us the 

authority to provide different rules for 

you if you are using a ticket as part of 

the Ticket to Work program under 

§§ 411.100 through 411.735. The 

expedited reinstatement provision is a 

work incentive that you can use if you 

meet the requirements indicated in 

§ 404.1592b or § 416.999, without 

consideration of whether you are using 

a ticket. We cannot add rules in these 

final rules that provide different rules 

for you if you are using a ticket. 

Comment: One commenter stated that 

if you have assigned and are using a 

ticket under the Ticket to Work 

program, you should be allowed to 

move into payment status when you are 

not engaging in substantial gainful 

activity. 

Response: As we noted in the prior 

response, we do not have the statutory 

authority to pay you benefits using 

different rules if you are using a ticket 

under the Ticket to Work Program. 

Section 223(i)(6) of the Act provides 

that after you have been reinstated and 

you have had 24 payable months, you 

will be afforded the work incentives that 

would have been provided you if you 

had filed a new initial application. 

Therefore, as we indicate in these final 

rules, after you have completed your 24 

month initial reinstatement period you 

will then be provided a new trial work 

period and then a reentitlement period 

using the rules in §§ 404.1592 and 

404.1592a. 

Comment: One commenter expressed 

the view that the expedited 

reinstatement rules may discourage your 

employment network, under the Ticket 

to Work program, from providing 

additional services. The provisional 

benefit period could encourage an 

employment network to stop services 

during that period. In addition, the 

commenter noted that if we provide you 

with a new ticket when benefits are 

reinstated, we must cancel the old 

ticket. 

Response: Sections 223(i) and 1631(p) 

of the Act provide the statutory 

requirements for paying provisional 

benefits when you request 

reinstatement. These final rules include 

the rules we will use to determine when 

we can pay you provisional benefits. 

Under § 404.1592e(d) in these final 

rules, and consistent with the statutory 

requirements, we will not pay you a 

provisional benefit for any month that is 

after the month you do substantial 

gainful activity. In addition, under 

§ 416.999c, we will determine your 

benefits payable for supplemental 

security income purposes using our 

normal income rules. Therefore, the 

disincentive for an employment 

network to provide services to you 

during the provisional benefit period is 

lessened by the fact that if you return to 

work at a substantial level we will stop 

paying you provisional benefits. In 

addition, when you are reinstated, we 

can provide you a new ticket if you 

meet the requirements under 

§ 411.125(c). If we provide you with a 

new ticket, we will terminate your prior 

ticket under § 411.155(b) and (c)(7). We 

do not believe that the expedited 

reinstatement rules provide a 

disadvantage to your employment 

network in comparison to the rules for 

establishing entitlement or eligibility 

based on the filing of a new application. 

If your new entitlement or eligibility 

were based upon your filing a new 

initial application for benefits, we 

would terminate your prior ticket under 

§ 411.155(b) and (c)(6). In that case, you 

would receive a new ticket if you meet 

the requirements of § 411.125(a) and (b). 

By providing you a new ticket, you are 

then able to receive services and your 

employment network can then receive 

payments from us based upon the new 

ticket. 

Comment: One commenter suggested 

that we should discuss how expedited 

reinstatement, unemployment 

insurance, and the Workforce 

Investment Act interrelate. This 

commenter pointed out that if we 

determine you cannot be reinstated that 

there may be other services you can 

receive. 

Response: If we determine that we 

cannot reinstate you after you have 

requested expedited reinstatement, 

under §§ 404.1592f(h) and 416.999d(f), 

your request for reinstatement serves as 

your intent to claim benefits. Therefore, 

you can file a new initial application for 

benefits. If we determine your benefits 

cannot be reinstated, that determination 

is considered an initial determination 

and you can request review if you are 

dissatisfied with it. We did not discuss 

in these final rules other services you 

may be able to receive if your 

reinstatement request is denied. Those 

services can vary depending upon 

where you live and your particular 

circumstances and those rules are 

beyond the scope of these final rules. 

Regulatory Procedures 

Executive Order 12866 

We consulted with the Office of 

Management and Budget (OMB) and 

determined that these final rules meet 

the criteria for a significant regulatory 

action under Executive Order 12866, as 

amended by Executive Order 13258. 

Thus, they were subject to OMB review. 

Regulatory Flexibility Act 

We certify that these final rules would 

not have a significant economic impact 

on a substantial number of small entities 

because they would primarily affect 

only individuals. Thus an initial 

regulatory flexibility analysis as 

provided in the Regulatory Flexibility 

Act, as amended, is not required. 

Paperwork Reduction Act 

The Paperwork Reduction Act (PRA) 

of 1995 says that no persons are 

required to respond to a collection of 

information unless it displays a valid 

OMB control number. In accordance 

with the PRA, SSA is providing notice 

that the Office of Management and 

Budget has approved the information 

collection requirements contained in 

sections 404.1592c, 404.1592d, 

416.999a, and 416.999b of these final 

rules. The OMB Control Number for this 

collection is 0960–0690, expiring 08/31/ 

2007. 

(Catalog of Federal Domestic Assistance 

Program Nos. 96.001, Social SecurityDisability Insurance; 96.002, Social SecurityRetirement Insurance; 96.004, Social 

Security-Survivors Insurance; 96.006, 

Supplemental Security Income.) 

List of Subjects 

20 CFR Part 404 

Administrative practice and 

procedure, Blind, Disability benefits, 

Old-age, Survivors, and Disability 

Insurance, Reporting and recordkeeping 

requirements, Social Security. 

20 CFR Part 416 

Administrative practice and 

procedure, Aged, Blind, Disability 

benefits, Public assistance programs, 

Reporting and recordkeeping 

requirements, Supplemental Security 

Income (SSI). 

Dated: September 26, 2005. 

Jo Anne B. Barnhart, 

Commissioner of Social Security. 

■ For the reasons set forth in the 

preamble, we are amending part 404, 

subparts J and P, and part 416, subparts 

I and N, of title 20 of the Code of Federal 

Regulations to read as follows: 

57142 Federal Register / Vol. 70, No. 189 / Friday, September 30, 2005 / Rules and Regulations 

PART 404—FEDERAL OLD-AGE, 

SURVIVOR AND DISABILITY 

INSURANCE (1950– ) 

Subpart J—[Amended] 

■ 1. The authority citation for subpart J 

of part 404 is revised to read as follows: 

Authority: Secs. 201(j), 204(f), 205(a), (b), 

(d)–(h), and (j), 221, 223(i), 225, and 702(a)(5) 

of the Social Security Act (42 U.S.C. 401(j), 

404(f), 405(a), (b), (d)–(h), and (j), 421, 423(i), 

425, and 902(a)(5); sec. 5, Pub. L. 97–455, 96 

Stat. 2500 (42 U.S.C. 405 note); secs. 5, 6(c)–

(e), and 15, Pub. L. 98–460, 98 Stat. 1802 (42 

U.S.C. 421 note). 

■ 2. Amend § 404.903 to revise 

paragraphs (u) and (v) and add 

paragraph (w) to read as follows: 

§ 404.903 Administrative actions that are 

not initial determinations. 

* * * * * 

(u) Determining whether we will refer 

your overpayment to the Department of 

the Treasury for collection by offset 

against Federal payments due you (see 

§§ 404.527 and 422.310 of this chapter); 

(v) Determining whether we will 

order your employer to withhold from 

your disposable pay to collect an 

overpayment you received under title II 

of the Social Security Act (see part 422, 

subpart E, of this chapter); and 

(w) Determining whether provisional 

benefits are payable, the amount of the 

provisional benefits, and when 

provisional benefits terminate (see 

§ 404.1592e). 

Subpart P—[Amended] 

■ 3. The authority citation for subpart P 

of part 404 continues to read as follows: 

Authority: Secs. 202, 205(a), (b), and (d)–

(h), 216(i), 221(a) and (i), 222(c), 223, 225, 

and 702(a)(5) of the Social Security Act (42 

U.S.C. 402, 405(a), (b), and (d)–(h), 416(i), 

421(a) and (i), 422(c), 423, 425, and 

902(a)(5)); sec. 211(b), Pub. L. 104–193, 110 

Stat. 2105, 2189. 

■ 4. Add new §§ 404.1592b through 

404.1592f to read as follows: 

§ 404.1592b What is expedited 

reinstatement? 

The expedited reinstatement 

provision provides you another option 

for regaining entitlement to benefits 

when we previously terminated your 

entitlement to disability benefits due to 

your work activity. The expedited 

reinstatement provision provides you 

the option of requesting that your prior 

entitlement to disability benefits be 

reinstated, rather than filing a new 

application for a new period of 

entitlement. Since January 1, 2001, you 

can request to be reinstated to benefits 

if you stop doing substantial gainful 

activity within 60 months of your prior 

termination. You must not be able to do 

substantial gainful activity because of 

your medical condition. Your current 

impairment must be the same as or 

related to your prior impairment and 

you must be disabled. To determine if 

you are disabled, we will use our 

medical improvement review standard 

that we use in our continuing disability 

review process. The advantage of using 

the medical improvement review 

standard is that we will generally find 

that you are disabled unless your 

impairment has improved so that you 

are able to work or unless an exception 

under the medical improvement review 

standard process applies. We explain 

the rules for expedited reinstatement in 

§§ 404.1592c through 404.1592f. 

§ 404.1592c Who is entitled to expedited 

reinstatement? 

(a) You can have your entitlement to 

benefits reinstated under expedited 

reinstatement if—

(1) You were previously entitled to a 

disability benefit on your own record of 

earnings as indicated in § 404.315, or as 

a disabled widow or widower as 

indicated in § 404.335, or as a disabled 

child as indicated in § 404.350, or to 

Medicare entitlement based on 

disability and Medicare qualified 

government employment as indicated in 

42 CFR 406.15; 

(2) Your disability entitlement 

referred to in paragraph (a)(1) of this 

section was terminated because you did 

substantial gainful activity; 

(3) You file your request for 

reinstatement timely under § 404.1592d; 

and 

(4) In the month you file your request 

for reinstatement—

(i) You are not able to do substantial 

gainful activity because of your medical 

condition as determined under 

paragraph (c) of this section; 

(ii) Your current impairment is the 

same as or related to the impairment 

that we used as the basis for your 

previous entitlement referred to in 

paragraph (a)(2) of this section; and 

(iii) You are disabled, as determined 

under the medical improvement review 

standard in §§ 404.1594(a) through (e). 

(b) You are entitled to reinstatement 

on the record of an insured person who 

is or has been reinstated if—

(1) You were previously entitled to 

one of the following benefits on the 

record of the insured person—

(i) A spouse or divorced spouse 

benefit under §§ 404.330 and 404.331; 

(ii) A child’s benefit under § 404.350; 

or 

(iii) A parent’s benefit under 

§ 404.370; 

(2) You were entitled to benefits on 

the record when we terminated the 

insured person’s entitlement; 

(3) You meet the requirements for 

entitlement to the benefit described in 

the applicable paragraph (b)(1)(i) 

through (b)(1)(iii) of this section; and 

(4) You request to be reinstated. 

(c) We will determine that you are not 

able to do substantial gainful activity 

because of your medical condition, 

under paragraph (a)(4)(i) of this section, 

when: 

(1) You certify under 

§ 404.1592d(d)(2) that you are unable to 

do substantial gainful activity because 

of your medical condition; 

(2) You do not do substantial gainful 

activity in the month you file your 

request for reinstatement; and 

(3) We determine that you are 

disabled under paragraph (a)(4)(iii) of 

this section. 

§ 404.1592d How do I request 

reinstatement? 

(a) You must make your request for 

reinstatement in writing. 

(b) You must have filed your request 

on or after January 1, 2001. 

(c) You must provide the information 

we request so that we can determine 

whether you meet the requirements for 

reinstatement as indicated in 

§ 404.1592c. 

(d) If you request reinstatement under 

§ 404.1592c(a)—

(1) We must receive your request 

within the consecutive 60-month period 

that begins with the month in which 

your entitlement terminated due to 

doing substantial gainful activity. If we 

receive your request after the 60-month 

period we can grant you an extension if 

we determine you had good cause under 

the standards explained in § 404.911 for 

not filing the request timely; and 

(2) You must certify that you are 

disabled, that your current 

impairment(s) is the same as or related 

to the impairment(s) that we used as the 

basis for the benefit you are requesting 

to be reinstated, and that you are unable 

to do substantial gainful activity 

because of your medical condition. 

§ 404.1592e How do we determine 

provisional benefits? 

(a) You may receive up to 6 

consecutive months of provisional cash 

benefits and Medicare during the 

provisional benefit period, while we 

determine whether we can reinstate 

your disability benefit entitlement 

under § 404.1592c—

(1) We will pay you provisional 

benefits, and reinstate your Medicare if 

you are not already entitled to Medicare, 

beginning with the month you file your 

Federal Register / Vol. 70, No. 189 / Friday, September 30, 2005 / Rules and Regulations 57143 

request for reinstatement under 

§ 404.1592c(a). 

(2) We will pay you a monthly 

provisional benefit amount equal to the 

last monthly benefit payable to you 

during your prior entitlement, increased 

by any cost of living increases that 

would have been applicable to the prior 

benefit amount under § 404.270. The 

last monthly benefit payable is the 

amount of the monthly insurance 

benefit we determined that was actually 

paid to you for the month before the 

month in which your entitlement was 

terminated, after we applied the 

reduction, deduction and nonpayment 

provisions in § 404.401 through 

§ 404.480. 

(3) If you are entitled to another 

monthly benefit payable under the 

provisions of title II of the Act for the 

same month you can be paid a 

provisional benefit, we will pay you an 

amount equal to the higher of the 

benefits payable. 

(4) If you request reinstatement for 

more than one benefit entitlement, we 

will pay you an amount equal to the 

higher of the provisional benefits 

payable. 

(5) If you are eligible for 

Supplemental Security Income 

payments, including provisional 

payments, we will reduce your 

provisional benefits under § 404.408b if 

applicable. 

(6) We will not reduce your 

provisional benefit, or the payable 

benefit to other individuals entitled on 

an earnings record, under § 404.403, 

when your provisional benefit causes 

the total benefits payable on the 

earnings record to exceed the family 

maximum. 

(b) You cannot receive provisional 

cash benefits or Medicare a second time 

under this section when—

(1) You request reinstatement under 

§ 404.1592c(a); 

(2) You previously received 

provisional cash benefits or Medicare 

under this section based upon a prior 

request for reinstatement filed under 

§ 404.1592c(a); and 

(3) Your requests under paragraphs 

(b)(1) and (b)(2) are for the same 

previous disability entitlement referred 

to in § 404.1592c(a)(2). 

(4) Examples: 

Example 1 —Mr. K files a request for 

reinstatement in April 2004. His disability 

benefit had previously terminated in January 

2003. Since Mr. K meets other factors for 

possible reinstatement (i.e., his prior 

entitlement was terminated within the last 60 

months because he was engaging in 

substantial gainful activity), we start paying 

him provisional benefits beginning April 

2004 while we determine whether he is 

disabled and whether his current 

impairment(s) is the same as or related to the 

impairment(s) that we used as the basis for 

the benefit that was terminated in January 

2003. In July 2004 we determine that Mr. K 

cannot be reinstated because he is not 

disabled under the medical improvement 

review standard; therefore we stop his 

provisional benefits. Mr. K does not request 

review of that determination. In January 2005 

Mr. K again requests reinstatement on the 

entitlement that terminated in January 2003. 

Since this request meets all the factors for 

possible reinstatement, and his request is still 

within 60 months from January 2003, we will 

make a new determination on whether he is 

disabled and whether his current 

impairment(s) is the same as or related to the 

impairment(s) that we used as the basis for 

the benefit that was terminated in January 

2003. Since the January 2005 request and the 

April 2004 request both request 

reinstatement on the same entitlement that 

terminated in January 2003, and since we 

already paid Mr. K provisional benefits based 

upon the April 2004 request, we will not pay 

additional provisional benefits on the 

January 2005 request for reinstatement. 

Example 2 —Assume the same facts as 

shown in Example 1 of this section, with the 

addition of these facts. We approve Mr. K’s 

January 2005 request for reinstatement and 

start his reinstated benefits beginning January 

2005. Mr. K subsequently returns to work 

and his benefits are again terminated due to 

engaging in substantial gainful activity in 

January 2012. Mr. K must again stop work 

and requests reinstatement in January 2015. 

Since Mr. K meets other factors for possible 

reinstatement (i.e., his prior entitlement was 

terminated within the last 60 months because 

he was engaging in substantial gainful 

activity) we start paying him provisional 

benefits beginning January 2015 while we 

determine whether he is disabled and 

whether his current impairment(s) is the 

same as or related to the impairment(s) that 

we used as the basis for the benefit that was 

terminated in January 2012. 

(c) We will not pay you a provisional 

benefit for a month when an applicable 

nonpayment rule applies. Examples of 

when we will not pay a benefit include, 

but are not limited to—

(1) If you are a prisoner under 

§ 404.468; 

(2) If you have been removed/ 

deported under § 404.464; or 

(3) If you are an alien outside the 

United States under § 404.460. 

(d) We will not pay you a provisional 

benefit for any month that is after the 

earliest of the following months—

(1) The month we send you a notice 

of our determination on your request for 

reinstatement; 

(2) The month you do substantial 

gainful activity; 

(3) The month before the month you 

attain full retirement age; or 

(4) The fifth month following the 

month you requested expedited 

reinstatement. 

(e) You are not entitled to provisional 

benefits if—

(1) Prior to starting your provisional 

benefits, we determine that you do not 

meet the requirements for reinstatement 

under §§ 404.1592c(a); or 

(2) We determine that your statements 

on your request for reinstatement, made 

under § 404.1592d(d)(2), are false. 

(f) Determinations we make regarding 

your provisional benefits under 

paragraphs (a) through (e) of this section 

are final and are not subject to 

administrative and judicial review 

under subpart J of part 404. 

(g) If you were previously overpaid 

benefits under title II or title XVI of the 

Act, we will not recover the 

overpayment from your provisional 

benefits unless you give us permission. 

We can recover Medicare premiums you 

owe from your provisional benefits. 

(h) If we determine you are not 

entitled to reinstated benefits, 

provisional benefits we have already 

paid you under this section that were 

made prior to the termination month 

under paragraph (d) of this section will 

not be subject to recovery as an 

overpayment unless we determine that 

you knew, or should have known, you 

did not meet the requirements for 

reinstatement in § 404.1592c. If we 

inadvertently pay you provisional 

benefits when you are not entitled to 

them because we have already made a 

determination described in paragraph 

(e) of this section, they will be subject 

to recover as an overpayment under 

subpart F of part 404. 

§ 404.1592f How do we determine 

reinstated benefits? 

(a) If you meet the requirements for 

reinstatement under § 404.1592c(a), we 

will then consider in which month to 

reinstate your entitlement. We will 

reinstate your entitlement with the 

earliest month, in the 12-month period 

that ends with the month before you 

filed your request for reinstatement, that 

you would have met all of the 

requirements under § 404.1592c(a) if 

you had filed your request for 

reinstatement in that month. Otherwise, 

you will be entitled to reinstated 

benefits beginning with the month in 

which you filed your request for such 

benefits. We cannot reinstate your 

entitlement for any month prior to 

January 2001. 

(b) When your entitlement is 

reinstated, you are also entitled to 

Medicare benefits under the provisions 

of 42 CFR part 406. 

(c) We will compute your reinstated 

benefit amount and determine benefits 

payable under the applicable paragraphs 

57144 Federal Register / Vol. 70, No. 189 / Friday, September 30, 2005 / Rules and Regulations 

of §§ 404.201 through 404.480 with 

certain exceptions—

(1) We will reduce your reinstated 

benefit due in a month by the amount 

of the provisional benefit we already 

paid you for that month. If your 

provisional benefit paid for a month 

exceeds the reinstated benefit, we will 

treat the difference as an overpayment 

under §§ 404.501 through 404.527. 

(2) If you are reinstated on your own 

earnings record, we will compute your 

primary insurance amount with the 

same date of onset we used in your most 

recent period of disability on your 

earnings record. 

(d) We will not pay you reinstated 

benefits for any months of substantial 

gainful activity during your initial 

reinstatement period. During the initial 

reinstatement period, the trial work 

period provisions of § 404.1592 and the 

reentitlement period provisions of 

§ 404.1592a do not apply. The initial 

reinstatement period begins with the 

month your reinstated benefits begin 

under paragraph (a) of this section and 

ends when you have had 24 payable 

months of reinstated benefits. We 

consider you to have a payable month 

for the purposes of this paragraph when 

you do not do substantial gainful 

activity in that month and when the 

non-payment provisions in subpart E of 

part 404 also do not apply. If the 

amount of the provisional benefit 

already paid you for a month equals or 

exceeds the amount of the reinstated 

benefit payable for that month so that no 

additional payment is due, we will 

consider that month a payable month. 

When we determine if you have done 

substantial gainful activity in a month 

during the initial reinstatement period, 

we will consider only your work in, or 

earnings for, that month. We will not 

apply the unsuccessful work attempt 

provisions of §§ 404.1574(c) and 

404.1575(d) or the averaging of earnings 

provisions in § 404.1574a. 

(e) After you complete the 24-month 

initial reinstatement period as indicated 

in paragraph (d) of this section, your 

subsequent work will be evaluated 

under the trial work provisions in 

§ 404.1592 and then the reentitlement 

period in § 404.1592a. 

(f) Your entitlement to reinstated 

benefits ends with the month before the 

earliest of the following months—

(1) The month an applicable 

terminating event in § 404.301 through 

404.389 occurs; 

(2) The month in which you reach 

retirement age; 

(3) The third month following the 

month in which your disability ceases; 

or 

(4) The month in which you die. 

(g) Determinations we make under 

§§ 404.1592f are initial determinations 

under § 404.902 and subject to review 

under subpart J of part 404. 

(h) If we determine you are not 

entitled to reinstated benefits we will 

consider your request filed under 

§ 404.1592c(a) your intent to claim 

benefits under § 404.630. 

PART 416—SUPPLEMENTAL 

SECURITY INCOME FOR THE AGED, 

BLIND, AND DISABLED 

Subpart I—[Amended] 

■ 5. The authority citation for subpart I 

of part 416 is revised to read as follows: 

Authority: Secs. 702(a)(5), 1611, 1614, 

1619, 1631(a), (c), (d)(1), and (p) and 1633 of 

the Social Security Act (42 U.S.C. 902(a)(5), 

1382, 1382c, 1382h, 1383(a), (c), (d)(1), and 

(p), and 1383b; secs. 4(c) and 5, 6(c)–(e), 

14(a), and 15, Pub. L. 98–460, 98 Stat. 1794, 

1801, 1802, and 1808 (42 U.S.C. 421 note, 

423 note, and 1382h note). 

■ 6. Add new §§ 416.999 through 

416.999d to read as follows: 

§ 416.999 What is expedited 

reinstatement? 

The expedited reinstatement 

provision provides you another option 

for regaining eligibility for benefits 

when we previously terminated your 

eligibility for disability benefits due to 

your work activity. The expedited 

reinstatement provision provides you 

the option of requesting that your prior 

eligibility for disability benefits be 

reinstated, rather than filing a new 

application for a new period of 

eligibility. Since January 1, 2001, you 

can request to be reinstated to benefits 

if you stop doing substantial gainful 

activity within 60 months of your prior 

termination. You must not be able to do 

substantial gainful activity because of 

your medical condition. Your current 

impairment must be the same as or 

related to your prior impairment and 

you must be disabled. To determine if 

you are disabled, we will use our 

medical improvement review standard 

that we use in our continuing disability 

review process. The advantage of using 

the medical improvement review 

standard is that we will generally find 

that you are disabled unless your 

impairment has improved so that you 

are able to work or unless an exception 

under the medical improvement review 

standard process applies. We explain 

the rules for expedited reinstatement in 

§§ 416.999a through 416.999d. 

§ 416.999a Who is eligible for expedited 

reinstatement? 

(a) You can have your eligibility to 

benefits reinstated under expedited 

reinstatement if—

(1) You were previously eligible for a 

benefit based on disability or blindness 

as explained in § 416.202; 

(2) Your disability or blindness 

eligibility referred to in paragraph (a)(1) 

of this section was terminated because 

of earned income or a combination of 

earned and unearned income; 

(3) You file your request for 

reinstatement timely under § 416.999b; 

and 

(4) In the month you file your request 

for reinstatement—

(i) You are not able to do substantial 

gainful activity because of your medical 

condition, as determined under 

paragraph (c) of this section, 

(ii) Your current impairment is the 

same as or related to the impairment 

that we used as the basis for your 

previous eligibility referred to in 

paragraph (a)(2) of this section, 

(iii) You are disabled or blind, as 

determined under the medical 

improvement review standard in 

§§ 416.994 or 416.994a, and 

(iv) You meet the non-medical 

requirements for eligibility as explained 

in § 416.202. 

(b) You are eligible for reinstatement 

if you are the spouse of an individual 

who can be reinstated under § 416.999a 

if—

(1) You were previously an eligible 

spouse of the individual; 

(2) You meet the requirements for 

eligibility as explained in § 416.202 

except the requirement that you must 

file an application; and 

(3) You request reinstatement. 

(c) We will determine that you are not 

able to do substantial gainful activity 

because of your medical condition, 

under paragraph (a)(4)(i) of this section, 

when: 

(1) You certify under § 416.999b(e) 

that you are unable to do substantial 

gainful activity because of your medical 

condition; 

(2) You do not do substantial gainful 

activity in the month you file your 

request for reinstatement; and 

(3) We determine that you are 

disabled under paragraph (a)(4)(iii) of 

this section. 

§ 416.999b How do I request 

reinstatement? 

(a) You must make your request for 

reinstatement in writing. 

(b) You must have filed your request 

on or after January 1, 2001. 

(c) You must provide the information 

we request so that we can determine 

Federal Register / Vol. 70, No. 189 / Friday, September 30, 2005 / Rules and Regulations 57145 

whether you meet the eligibility 

requirements listed in § 416.999a. 

(d) We must receive your request 

within the consecutive 60-month period 

that begins with the month in which 

your eligibility terminated due to earned 

income, or a combination of earned and 

unearned income. If we receive your 

request after the 60-month period, we 

can grant you an extension if we 

determine you had good cause, under 

the standards explained in § 416.1411, 

for not filing the request timely. 

(e) You must certify that you are 

disabled, that your current 

impairment(s) is the same as or related 

to the impairment(s) that we used as the 

basis for the eligibility you are 

requesting to be reinstated, that you are 

unable to do substantial gainful activity 

because of your medical condition, and 

that you meet the non-medical 

requirements for eligibility for benefits. 

§ 416.999c How do we determine 

provisional benefits? 

(a) You may receive up to six 

consecutive months of provisional cash 

benefits and Medicaid during the 

provisional benefit period, while we 

determine whether we can reinstate 

your disability benefit eligibility under 

§ 416.999a—

(1) We will pay you provisional 

benefits beginning with the month after 

you file your request for reinstatement 

under § 416.999a(a). 

(2) If you are an eligible spouse, you 

can receive provisional benefits with the 

month your spouse’s provisional 

benefits begin. 

(3) If you do not have an eligible 

spouse, we will pay you a monthly 

provisional benefit amount equal to the 

monthly amount that would be payable 

to an eligible individual under 

§§ 416.401 through 416.435 with the 

same kind and amount of income as you 

have. 

(4) If you have an eligible spouse, we 

will pay you and your spouse a monthly 

provisional benefit amount equal to the 

monthly amount that would be payable 

to an eligible individual and eligible 

spouse under § 416.401 through 416.435 

with the same kind and amount of 

income as you and your spouse have. 

(5) Your provisional benefits will not 

include state supplementary payments 

payable under §§ 416.2001 through 

416.2176. 

(b) You cannot receive provisional 

cash benefits or Medicaid a second time 

under this section when—

(1) You request reinstatement under 

§ 416.999a; 

(2) You previously received 

provisional cash benefits or Medicaid 

under this section based upon a prior 

request for reinstatement filed under 

§ 416.999a(a); and 

(3) Your requests under paragraphs 

(b)(1) and (b)(2) are for the same 

previous disability eligibility referred to 

in § 416.999a(a)(2) of this section. 

(4) Examples: 

Example 1 —Mr. K files a request for 

reinstatement in April 2004. His disability 

benefit had previously terminated in January 

2003. Since Mr. K meets the other factors for 

possible reinstatement (i.e., his prior 

eligibility was terminated within the last 60 

months because of his work activity) we start 

paying him provisional benefits beginning 

May 2004 while we determine whether he is 

disabled and whether his current 

impairment(s) is the same as or related to the 

impairment(s) that we used as the basis for 

the benefit that was terminated in January 

2003. In July 2004 we determine that Mr. K 

cannot be reinstated because he is not 

disabled under the medical improvement 

review standard; therefore we stop his 

provisional benefits. Mr. K does not request 

review of the determination. In January 2005 

Mr. K again requests reinstatement on the 

eligibility that terminated in January 2003. 

Since this request again meets all the other 

factors for possible reinstatement mentioned 

above, and his request is still within 60 

months from January 2003, we will make a 

new determination on whether he is disabled 

and whether his current impairment(s) is the 

same as or related to the impairment(s) that 

we used as the basis for the benefit that was 

terminated in January 2003. Since the 

January 2005 request and the April 2004 

request both request reinstatement on the 

same benefit that terminated in January 2003, 

and since we already paid Mr. K provisional 

benefits based upon the April 2004 request, 

we will not pay additional provisional 

benefits on the January 2005 request for 

reinstatement. 

Example 2 —Assume the same facts as 

shown in Example 1 of this section, with the 

addition of these facts. We approve Mr. K’s 

January 2005 request for reinstatement and 

start his reinstated benefits beginning 

February 2005. Mr. K subsequently returns to 

work and his benefits are again terminated 

due to his work activity in January 2008. Mr. 

K again stops work and requests 

reinstatement in January 2010. Since Mr. K 

meets the other factors for possible 

reinstatement (i.e., his prior eligibility was 

terminated within the last 60 months because 

of his work activity) we start paying him 

provisional benefits beginning February 2010 

while we determine whether he is disabled 

and whether his current impairment(s) is the 

same as or related to the impairment(s) that 

we used as the basis for the benefit that was 

terminated in January 2008. 

(c) We will not pay you a provisional 

benefit for a month where you are not 

eligible for a payment under 

§§ 416.1322, 416.1323, 416.1325, 

416.1327, 416.1329, 416.1330, 416.1334, 

and 416.1339. 

(d) We will not pay you a provisional 

benefit for any month that is after the 

earliest of either: the month we send 

you notice of our determination on your 

request for reinstatement; or, the sixth 

month following the month you 

requested expedited reinstatement. 

(e) You are not eligible for provisional 

benefits if—

(1) Prior to starting your provisional 

benefits we determine that you do not 

meet the requirements for reinstatement 

under §§ 416.999a(a); or 

(2) We determine that your statements 

on your request for reinstatement, made 

under § 416.999b(d)(2), are false. 

(f) Determinations we make regarding 

your provisional benefits under 

paragraphs (a) through (e) of this section 

are final and are not subject to 

administrative and judicial review 

under subpart N of part 416. 

(g) If you were previously overpaid 

benefits under title II or title XVI of the 

Act, we will not recover the 

overpayment from your provisional 

benefits unless you give us permission. 

(h) If we determine you are not 

eligible to receive reinstated benefits, 

provisional benefits we have already 

paid you under this section that were 

made prior to the termination month 

under paragraph (d) of this section will 

not be subject to recovery as an 

overpayment unless we determine that 

you knew, or should have known, you 

did not meet the requirements for 

reinstatement in § 416.999a. If we 

inadvertently pay you provisional 

benefits when you are not entitled to 

them because we have already made a 

determination described in paragraph 

(e) of this section, they will be subject 

to recover as an overpayment under 

subpart E of part 416. 

§ 416.999d How do we determine 

reinstated benefits? 

(a) If you meet the requirements for 

reinstatement under § 416.999a(a), we 

will reinstate your benefits with the 

month after the month you filed your 

request for reinstatement. We cannot 

reinstate your eligibility for any month 

prior to February 2001. 

(b) We will compute your reinstated 

benefit amount and determine benefits 

payable under the applicable paragraphs 

in §§ 416.401 through 416.435. We will 

reduce your reinstated benefit due in a 

month by a provisional benefit we 

already paid you for that month. If your 

provisional benefit paid for a month 

equals or exceeds the reinstated benefit 

due, we will treat the difference as an 

overpayment under § 416.536. 

(c) Once you have been reinstated 

under § 416.999a you cannot be 

reinstated again until you have 

completed a 24-month initial 

reinstatement period. Your initial 

reinstatement period begins with the 

57146 Federal Register / Vol. 70, No. 189 / Friday, September 30, 2005 / Rules and Regulations 

month your reinstated benefits begin 

under paragraph (a) of this section and 

ends when you have had 24 payable 

months of reinstated benefits. We 

consider you to have a payable month 

for the purposes of this paragraph when 

you are due a cash benefit of any 

amount for the month based upon our 

normal computation and payment rules 

in § 416.401 through § 416.435 or if you 

are considered to be receiving SSI 

benefits in a month under section 

1619(b) of the Social Security Act. If 

your entire benefit payment due you for 

a month is adjusted for recovery of an 

overpayment under § 416.570 and 

§ 416.571 or if the amount of the 

provisional benefit already paid you for 

a month exceeds the amount of the 

reinstated benefit payable for that 

month so that no additional payment is 

due, we will consider the month a 

payable month. 

(d) Your eligibility for reinstated 

benefits ends with the month preceding 

the earliest of the following months—

(1) The month an applicable 

terminating event in §§ 416.1331 

through 416.1339 occurs; 

(2) The third month following the 

month in which your disability ceases; 

or 

(3) The month in which you die. 

(e) Determinations we make under 

this section are initial determinations 

under § 416.1402 and are subject to 

review under subpart N of part 416. 

(f) If we determine you are not eligible 

for reinstated benefits, we will consider 

your request filed under § 416.999a(a) 

your intent to claim benefits under 

§ 416.340. 

Subpart N—[Amended] 

■ 7. The authority citation for subpart N 

of part 416 continues 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). 

■ 8. Amend § 416.1403 by revising 

paragraphs (a) (19) and (20), adding 

paragraph (a) (21), and revising 

paragraphs (b)(1) and (2) to read as 

follows: 

§ 416.1403 Administrative actions that are 

not initial determinations. 

(a) * * * 

(19) Determining whether we will 

refer your overpayment to the 

Department of the Treasury for 

collection by offset against Federal 

payments due you (see §§ 416.590 and 

422.310 of this chapter); 

(20) Determining whether we will 

order your employer to withhold from 

your disposable pay to collect an 

overpayment you received under title 

XVI of the Social Security Act (see part 

422, subpart E, of this chapter); and 

(21) Determining when provisional 

benefits are payable, the amount of the 

provisional benefit payable, and when 

provisional benefits terminate (see 

§ 416.999c). 

(b) * * * 

(1) If you receive an emergency 

advance payment; presumptive 

disability or presumptive blindness 

payment, or provisional payment, we 

will provide a notice explaining the 

nature and conditions of the payments. 

(2) If you receive presumptive 

disability or presumptive blindness 

payments, or provisional payments, we 

shall send you a notice when those 

payments are exhausted. 

* * * * * 

[FR Doc. 05–19529 Filed 9–29–05; 8:45 am] 

BILLING CODE 4191–02–P 

DEPARTMENT OF LABOR 

Occupational Safety and Health 

Administration 

29 CFR Part 1910 

Powered Industrial Trucks 

CFR Correction 

In Title 29 of the Code of Federal 

Regulations, Parts 1900 to § 1910.999, 

revised as of July 1, 2005, in § 1910.178, 

on page 545, remove paragraphs 

(m)(12)(i), (ii), and (iii). 

[FR Doc. 05–55511 Filed 9–29–05; 8:45 am] 

BILLING CODE 1505–01–D 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 100 

[CGD05–05–107] 

RIN 1625–AA08 

Special Local Regulations for Marine 

Event; John H. Kerr Reservoir, 

Clarksville, VA 

AGENCY: Coast Guard, DHS. 

ACTION: Temporary final rule. 

SUMMARY: The Coast Guard is 

establishing temporary special local 

regulations for ‘‘Clarksville Hydroplane 

Challenge’’, a power boat race to be held 

on the waters of the John H. Kerr 

Reservoir adjacent to Clarksville, 

Virginia. These special local regulations 

are necessary to provide for the safety of 

life on navigable waters during the 

event. This action is intended to restrict 

vessel traffic in portions of the John H. 

Kerr Reservoir adjacent to Clarksville, 

Virginia during the power boat race. 

DATES: This rule is effective from 7:30 

a.m. to 6:30 p.m. on October 1 and 2, 

2005. 

ADDRESSES: Comments and material 

received from the public, as well as 

documents indicated in this preamble as 

being available in the docket, are part of 

docket CGD05–05–107 and are available 

for inspection or copying at Commander 

(oax), Fifth Coast Guard District, 431 

Crawford Street, Portsmouth, Virginia 

23704–5004, between 9 a.m. and 2 p.m., 

Monday through Friday, except Federal 

holidays. 

FOR FURTHER INFORMATION CONTACT: 

Dennis Sens, Project Manager, Auxiliary 

and Recreational Boating Safety Branch, 

at (757) 398–6204. 

SUPPLEMENTARY INFORMATION: 

Regulatory Information 

On September 1, 2005, we published 

a notice of proposed rulemaking 

(NPRM) entitled ‘‘Special Local 

Regulations for Marine Events; John H. 

Kerr Reservoir, Clarksville, VA’’ in the 

Federal Register (70 FR 52052). We 

received no letters commenting on the 

proposed rule. No public meeting was 

requested, and none was held. 

Under 5 U.S.C. 553(d)(3), the Coast 

Guard finds that good cause exists for 

making this rule effective less than 30 

days after publication in the Federal 

Register. Delaying the effective date 

would be contrary to the public interest, 

since immediate action is needed to 

ensure the safety of the event 

participants, spectator craft and other 

vessels transiting the event area. 

However, advance notifications will be 

made to affected waterway users via 

marine information broadcasts, local 

radio stations and area newspapers. 

Background and Purpose 

On October 1 and 2, 2005, the 

Virginia Boat Racing Association will 

sponsor the ‘‘Clarksville Hydroplane 

Challenge’’, on the waters of the John H. 

Kerr Reservoir. The event will consist of 

approximately 60 inboard hydroplanes 

racing in heats counter-clockwise 

around an oval racecourse. A fleet of 

spectator vessels is expected to gather 

nearby to view the competition. Due to 

the need for vessel control during the 

event, vessel traffic will be temporarily 

restricted to provide for the safety of 

participants, spectators and transiting 

vessels.