[Federal Register Volume 60, Number 61 (Thursday, March 30, 1995)]
[Rules and Regulations]
[Pages 16372-16376]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-7847]



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[[Page 16373]]

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Social Security Administration

20 CFR Part 416

RIN 0960-AC98


Supplemental Security Income for the Aged, Blind, and Disabled 
Elimination of Waiting Period for Termination of Couple Status

AGENCY: Social Security Administration, HHS.

ACTION: Final rule.

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SUMMARY: This final rule implements section 8012(a) of Pub. L. 101-239 
which, effective October 1, 1990, changed the definition of the term 
``eligible spouse'' as it is used in the supplemental security income 
(SSI) program. Under the former definition of ``eligible spouse,'' 
members of an SSI eligible couple who began living apart could not be 
treated as individuals for SSI eligibility and payment purposes during 
the first 6 months following the month in which they began living 
apart. The statutory change eliminated the 6-month waiting period. The 
final rule revises the definition of ``eligible spouse'' contained in 
the regulations as well as makes a number of other conforming changes. 
Finally, the rule eliminates provisions in the regulations pertaining 
to eligible couples living apart.

EFFECTIVE DATE: March 30, 1995.

FOR FURTHER INFORMATION CONTACT:
Regarding this document--Harry Short, Legal Assistant, 3-B-1 Operations 
Building, 6401 Security Boulevard, Baltimore, MD 21235, (410) 965-6243; 
regarding eligibility or filing for benefits--our national toll-free 
number, 1-800-772-1213.

SUPPLEMENTARY INFORMATION: Section 1614(b) of the Social Security Act 
(the Act), as in effect until October 1, 1990, defined an eligible 
spouse as ``an aged, blind, or disabled individual who is the husband 
or wife of another aged, blind, or disabled individual and who has not 
been living apart from such other aged, blind, or disabled individual 
for more than six months.'' One effect of this definition was to create 
a 6-month waiting period before the members of an eligible couple, who 
begin living apart, could be treated as individuals for SSI purposes.
    Section 8012 of Public Law 101-239 (the Omnibus Budget 
Reconciliation Act of 1989) eliminated the 6-month waiting period by 
revising the definition of an eligible spouse. Effective October 1, 
1990, ``eligible spouse'' means an aged, blind, or disabled individual 
who is the husband or wife of another aged, blind, or disabled 
individual and who is living with that eligible individual on the first 
day of the month, or, in any case in which either spouse files an 
application for benefits or requests restoration of eligibility under 
the SSI program during the month, at the time the application or 
request is filed.
    This final rule revises the definition of ``eligible spouse'' in 
Secs. 416.120(c)(14) and 416.1801(c) to reflect section 8012 of Public 
Law 101-239.
    The legislative history does not indicate that Congress intended to 
treat couples who are temporarily separate as individuals. Therefore, 
the rule also provides in Sec. 416.1801(c) that an individual is 
considered to be living with an eligible spouse during temporary 
absences as defined in Sec. 416.1149 and while receiving continued 
benefits under section 1611(e)(1)(E) or (G) of the Act.
    In addition to revising the definition of ``eligible spouse'' in 
Secs. 416.120(c)(14) and 416.1801(c), a number of other sections in the 
regulations are revised to eliminate provisions which refer to the 
prior rule for terminating eligible couple status based on a 6-month 
period of living apart. These sections are as follows:
    <bullet> Section 416.305(b)(1) is revised to remove language 
regarding the eligible spouse living apart from the eligible individual 
for a period of 6 months.
    <bullet> Section 416.412 is amended by using more precise language 
in the first sentence when referring to a member of an eligible couple 
temporarily residing in a medical care facility. We also make a 
technical change for convenience in future updating by showing the 
payment amounts for such eligible couple in a table rather than as text 
and updating the table with the amounts published in the Federal 
Register at:

52 FR 41672 (10/29/87)
53 FR 43932 (10/31/88)
54 FR 45801 (10/31/89)
54 FR 53751 (12/29/89)
55 FR 45856 (10/31/90)
56 FR 55325 (10/25/91)
57 FR 48619 (10/27/92)
58 FR 58004 (10/28/93)
59 FR 54464 (10/31/94)

    <bullet> Section 416.414 is revised to specify that the 
computations in paragraphs (b)(2) and (b)(3) are applicable only when 
one or both members of an eligible couple are temporarily absent from 
home per Sec. 416.1149(c)(1). As their absence is temporary, they are 
not separated.
    <bullet> Section 416.430, which deals with essential person 
increments, is revised by removing language regarding when the members 
of an eligible couple live apart and adding language to explain how to 
pay a couple when one member is temporarily absent and subject to the 
$30 payment limit while an inpatient at a medical facility where 
Medicaid is paying more than half the cost of care. The reference to 
Sec. 416.531 is also changed to Sec. 416.413.
    <bullet> In Sec. 416.432, a portion of the introductory language 
and paragraphs (a) and (b) are removed. The removed material concerns 
members of an eligible couple who have separated.
    <bullet> Section 416.532(e), which provides for essential person 
increments when members of an eligible couple live apart, is removed.
    <bullet> In Sec. 416.554, the last sentence of the text and example 
three regarding separated members of an eligible couple are revised.
    <bullet> In Sec. 416.1130(c), the last sentence, which refers to 
members of an eligible couple who have different living arrangements, 
is removed.
    <bullet> In Sec. 416.1147, paragraphs (a) and (d) are removed and 
the remaining paragraphs are revised and redesignated (a), (b), (c), 
and (d) respectively. The deleted material deals with valuation of in-
kind support and maintenance for a member of an eligible couple who is 
separated from his or her spouse.
    <bullet> Section 416.1802(b) is revised to remove language 
referring to computation of benefits for separated members of an 
eligible couple.
    <bullet> Section 416.1806 is revised to contain rules on who will 
be considered the individual's spouse, if more than one person would 
qualify.
    <bullet> Section 416.1811 is removed as a result of the revision to 
Sec. 416.1806. The cross-reference to Sec. 416.1811 in Sec. 416.1101 
(definition of ``spouse'') is also removed.
    <bullet> Section 416.1830(a)(1) is revised to provide that, if the 
members of an eligible couple begin living apart, they will be treated 
as individuals beginning with the month following the calendar month 
they stopped living together.
    <bullet> In Sec. 416.1832 (c) and (d), the cross-references to 
Sec. 416.1806 (b) and (c) respectively are revised to refer to 
Sec. 416.1806 (a)(2) and (a)(3) respectively. This change is 
necessitated by the revision we are making to Sec. 416.1806.
    <bullet> Section 416.1832(d) is revised to provide that, if a 
marital relationship has been found to exist solely because a man and 
woman are living together and leading others to believe that they are 
husband and wife, such marital relationship will be considered to end 
as of the date the man and woman stop living together. [[Page 16374]] 

Public Comments

    This rule was published as a Notice of Proposed Rulemaking on March 
8, 1994 (59 FR 10766). A 60-day comment period was provided. We did not 
receive any public comments. We are, therefore, adopting the rule 
essentially as proposed with the exception of some nonsubstantive 
technical revisions and the addition of the technical and update change 
being made to Sec. 416.412 discussed above.

Obsolete Social Security Rulings

    Enactment of Section 8012(a) of Public Law 101-239 has made the 
following Social Security Rulings (SSRs) obsolete: 76-28, 76-41, and 
88-11c. Therefore, we are rescinding these SSRs simultaneously with the 
publication of this final rule.

Regulatory Procedures

Executive Order No. 12866

    We have consulted with the Office of Management and Budget (OMB) 
and determined that this rule does not meet the criteria for a 
significant regulatory action under Executive Order 12866. Thus, it was 
not subject to OMB review.

Regulatory Flexibility Act

    We certify that this final regulation will not have a significant 
economic impact on a substantial number of small entities because it 
will affect only individuals and states. Therefore, a regulatory 
flexibility analysis as provided in Public Law 96-354, the Regulatory 
Flexibility Act, is not required.

Paperwork Reduction Act of 1980

    This final regulation imposes no additional reporting and 
recordkeeping requirements necessitating clearance by OMB.

(Catalog of Federal Domestic Assistance Program No. 93.807, 
Supplemental Security Income.)

List of Subjects in 20 CFR Part 416

    Administrative Practice and Procedure, Aged, Blind, Disability 
benefits, Public assistance programs, Reporting and recordkeeping 
requirements, Supplemental Security Income

    Dated: February 1, 1995.
Shirley Chater,
Commissioner of Social Security.

    Approved: March 24, 1995
Donna E. Shalala,
Secretary of Health and Human Services.

    For the reasons set out in the preamble, part 416 of chapter II of 
title 20 of the Code of Federal Regulations is amended as follows:

PART 416--SUPPLEMENTAL SECURITY INCOME FOR THE AGED, BLIND AND 
DISABLED.

    1. The authority citation for subpart A continues to read as 
follows:

    Authority: Secs. 1102 and 1601-1634 of the Social Security Act; 
42 U.S.C. 1302 and 1381-1383c; sec. 212 of Pub. L. 93-66, 87 Stat. 
155 and sec. 502(a) of Pub. L. 94-241, 90 Stat. 268.

    2. In Sec. 416.120, paragraph (c)(14) is revised to read as 
follows:


Sec. 416.120  General definitions and use of terms.

 * * * * *
    (c) Miscellaneous. * * *
    (14) Eligible spouse means an aged, blind, or disabled individual 
who is the husband or wife of another aged, blind, or disabled 
individual and who is living with that individual (see 
Sec. 416.1801(c)).
 * * * * *
    3. The authority citation for subpart C continues to read as 
follows:

    Authority: Secs. 1102, 1611 and 1631(a), (d), and (e) of the 
Social Security Act; 42 U.S.C. 1302, 1382, 1383(a), (d), and (e).

    4. In Sec. 416.305, paragraph (b)(1) is revised to read as follows:


Sec. 416.305  You must file an application to receive supplemental 
security income benefits.

 * * * * *
    (b) Exceptions. You need not file a new application if--
    (1) You have been receiving benefits as an eligible spouse and are 
no longer living with your husband or wife;
 * * * * *
    5. The authority citation for subpart D continues to read as 
follows:

    Authority: Sec. 1102, 1611 (a), (b), (c), and (e), 1612, 1617, 
and 1631 of the Social Security Act; 42 U.S.C. 1302, 1382 (a), (b), 
(c), and (e), 1382a, 1382f, and 1383.

    6. Section 416.412 is revised to read as follows:


Sec. 416.412  Amount of benefits; eligible couple.

    The benefit under this part for an eligible couple, neither of whom 
is temporarily residing in a medical care facility as described in 
Sec. 416.1149(c)(1) nor is a qualified individual (as defined in 
Sec. 416.211), shall be payable at the following rate:

------------------------------------------------------------------------
                       Percentage                                       
  Effective date        increase        Rate per year    Rate per month 
------------------------------------------------------------------------
07/82............            7.4         $5,116.80           $426.40    
07/83............            3.5          5,476.80            456.40    
01/84............            3.5          5,664.00            472.00    
01/85............            3.5          5,856.00            488.00    
01/86............            3.1          6,048.00            504.00    
01/87............            1.3          6,120.00            510.00    
01/88............            4.2          6,384.00            532.00    
01/89............            4.0          6,636.00            553.00    
01/90............            4.7          6,948.00            579.00    
01/91............            5.4          7,320.00            610.00    
01/92............            3.7          7,596.00            633.00    
01/93............            3.0          7,824.00            652.00    
01/94............            2.6          8,028.00            669.00    
01/95............            2.8          8,244.00            687.00    
------------------------------------------------------------------------

    The monthly rate is reduced by the amount of the couple's income 
which is not excluded pursuant to subpart K of this part.
    7. In Sec. 416.414, the paragraph headings for paragraphs (b)(2) 
and (b)(3) are revised to read as follows:


Sec. 416.414  Amount of benefits; eligible individual or eligible 
couple in a medical care facility.

* * * * *
    (b) * * * [[Page 16375]] 
    (2) Eligible couple both of whom are temporarily absent from home 
in medical care facilities as described in Sec. 416.1149(c)(1). * * *
    (3) Eligible couple with one spouse who is temporarily absent from 
home as described in Sec. 416.1149(c)(1). * * *
* * * * *
    8. Section 416.430 is revised to read as follows:


Sec. 416.430  Eligible individual with eligible spouse; essential 
person(s) present.

    (a) When an eligible individual with an eligible spouse has an 
essential person (Sec. 416.222) living in his or her home, or when both 
such persons each has an essential person, the increase in the rate of 
payment is determined in accordance with Secs. 416.413 and 416.532. The 
income of the essential person(s) is included in the income of the 
couple and the payment due will be equally divided between each member 
of the eligible couple.
    (b) When one member of an eligible couple is temporarily absent in 
accordance with Sec. 416.1149(c)(1) and Sec. 416.222(c) and either one 
or both individuals has an essential person, add the essential person 
increment to the benefit rate for the member of the couple who is 
actually residing with the essential person and include the income of 
the essential person in that member's income. See Sec. 416.414(b)(3).
    9. Section 416.432 is revised to read as follows:


Sec. 416.432  Change in status involving a couple; eligibility 
continues.

    When there is a change in status which involves the formation or 
dissolution of an eligible couple (for example, marriage, divorce), a 
redetermination of the benefit amount shall be made for the months 
subsequent to the month of such formation or dissolution of the couple 
in accordance with the following rules:
    (a) When there is a dissolution of an eligible couple and each 
member of the couple becomes an eligible individual, the benefit amount 
for each person shall be determined individually for each month 
beginning with the first month after the month in which the dissolution 
occurs. This shall be done by determining the applicable benefit rate 
for an eligible individual with no eligible spouse according to 
Secs. 416.410 or 416.413 and 416.414 and applying Sec. 416.420(a). See 
Sec. 416.1147a for the applicable income rules when in-kind support and 
maintenance is involved.
    (b) When two eligible individuals become an eligible couple, the 
benefit amount will be determined for the couple beginning with the 
first month following the month of the change. This shall be done by 
determining which benefit rate to use for an eligible couple according 
to Secs. 416.412 or 416.413 and 416.414 and applying the requirements 
in Sec. 416.420(a).
    10. The authority citation for subpart E continues to read as 
follows:

    Authority: Secs. 1102, 1601, 1602, 1611(c), and 1631 (a)-(d) and 
(g) of the Social Security Act; 42 U.S.C. 1302, 1381, 1381a, 
1382(c), and 1383 (a)-(d) and (g).


Sec. 416.532  [Amended]

    11. In Sec. 416.532, paragraph (e) is removed.
    12. Section 416.554 is revised to read as follows:


Sec. 416.554  Waiver of adjustment or recovery--against equity and good 
conscience.

    We will waive adjustment or recovery of an overpayment when an 
individual on whose behalf waiver is being considered is without fault 
(as defined in Sec. 416.552) and adjustment or recovery would be 
against equity and good conscience. Adjustment or recovery is 
considered to be against equity and good conscience if an individual 
changed his or her position for the worse or relinquished a valuable 
right because of reliance upon a notice that payment would be made or 
because of the incorrect payment itself. In addition, adjustment or 
recovery is considered to be against equity and good conscience for an 
individual who is a member of an eligible couple that is legally 
separated and/or living apart for that part of an overpayment not 
received, but subject to recovery under Sec. 416.570.

    Example 1: Upon being notified that he was eligible for 
supplemental security income payments, an individual signed a lease 
on an apartment renting for $15 a month more than the room he had 
previously occupied. It was subsequently found that eligibility for 
the payment should not have been established. In such a case, 
recovery would be considered ``against equity and good conscience.''
    Example 2: An individual fails to take advantage of a private or 
organization charity, relying instead on the award of supplemental 
security income payments to support himself. It was subsequently 
found that the money was improperly paid. Recovery would be 
considered ``against equity and good conscience.''
    Example 3: Mr. and Mrs. Smith--members of an eligible couple--
separate in July. Later in July, Mr. Smith receives earned income 
resulting in an overpayment to both. Mrs. Smith is found to be 
without fault in causing the overpayment. Recovery from Mrs. Smith 
of Mr. Smith's part of the couple's overpayment is waived as being 
against equity and good conscience. Whether recovery of Mr. Smith's 
portion of the couple's overpayment can be waived will be evaluated 
separately.

    13. The authority citation for subpart K continues to read as 
follows:

    Authority: Secs. 1102, 1602, 1611, 1612, 1613, 1614(f), 1621, 
and 1631 of the Social Security Act; 42 U.S.C. 1302, 1381a, 1382, 
1382a, 1382b, 1382c(f), 1382j, and 1383; sec. 211 of Pub. L. 93-66, 
87 Stat. 154.


Sec. 416.1101  [Amended]

    14. In Sec. 416.1101, the parenthetical reference in the definition 
of ``Spouse'' which reads ``(See Secs. 416.1806 through 416.1811)'' is 
revised to read ``(See Sec. 416.1806).''
    15. In Sec. 416.1130, paragraph (c) is revised to read as follows:


Sec. 416.1130  Introduction.

* * * * *
    (c) How we value in-kind support and maintenance. Essentially, we 
have two rules for valuing the in-kind support and maintenance which we 
must count. The one-third reduction rule applies if you are living in 
the household of a person who provides you with both food and shelter 
(Secs. 416.1131 through 416.1133). The presumed value rule applies in 
all other situations where you are receiving countable in-kind support 
and maintenance (Secs. 416.1140 through 416.1145). If certain 
conditions exist, we do not count in-kind support and maintenance. 
These are discussed in Secs. 416.1141 through 416.1145.
    16. Section 416.1147 is revised to read as follows:


Sec. 416.1147  How we value in-kind support and maintenance for a 
couple.

    (a) Both members of a couple live in another person's household and 
receive food and shelter from that person. When both of you live in 
another person's household throughout a month and receive food and 
shelter from that person, we apply the one-third reduction to the 
Federal benefit rate for a couple (Sec. 416.1131).
    (b) One member of a couple lives in another person's household and 
receives food and shelter from that person and the other is in a 
medical institution. If one of you is living in the household of 
another person who provides you with both food and shelter and the 
other is temporarily absent from the household as provided in 
Sec. 416.1149(c)(1) (in a medical institution that receives Medicaid 
payments for his or her care (Sec. 416.211(b)), we compute your 
benefits as if you were separately eligible individuals (see 
Sec. 416.414(b)(3)). This begins with the first full calendar month one 
of you is in the medical institution. The one living in another 
person's household is eligible at an [[Page 16376]] eligible 
individual's Federal benefit rate and one-third of that rate is counted 
as income not subject to any income exclusions. The one in the medical 
institution cannot receive more than the rate described in 
Sec. 416.414(b)(3)(i).
    (c) Both members of a couple are subject to the presumed value 
rule. If the presumed value rule applies to both of you, we value any 
food, clothing, or shelter you and your spouse receive at one-third of 
the Federal benefit rate for a couple plus the amount of the general 
income exclusion (Sec. 416.1124(c)(12)), unless you can show that their 
value is less as described in Sec. 416.1140(a)(2).
    (d) One member of a couple is subject to the presumed value rule 
and the other is in a medical institution. If one of you is subject to 
the presumed value rule and the other is temporarily absent from the 
household as provided in Sec. 416.1149(c)(1) (in a medical institution 
that receives Medicaid payments for his or her care (Sec. 416.211(b)), 
we compute your benefits as if you were separately eligible individuals 
(see Sec. 416.414(b)(3)). This begins with the first full calendar 
month that one of you is in the medical institution (Sec. 416.211(b)). 
We value any food, clothing, or shelter received by the one outside of 
the medical institution at one-third of an eligible individual's 
Federal benefit rate, plus the amount of the general income exclusion 
(Sec. 416.1124(c)(12)), unless you can show that their value is less as 
described in Sec. 416.1140(a)(2). The one in the medical institution 
cannot receive more than the rate described in Sec. 416.414(b)(3)(i).
    17. The authority citation for subpart R continues to read as 
follows:

    Authority: Secs. 1102, 1614 (b) (c), and (d), and 1631 (d)(1) 
and (e) of the Social Security Act; 42 U.S.C. 1302, 1382c (b), (c), 
and (d), and 1383 (d)(1) and (e).

    18. In Sec. 416.1801(c), the definition of ``eligible spouse'' is 
revised to read as follows:


Sec. 416.1801  Introduction.

* * * * *
    (c) * * *
    Eligible spouse means a person--
    (1) Who is eligible for SSI,
    (2) Whom we consider the spouse of another person who is eligible 
for SSI, and
    (3) Who was living in the same household with that person on--
    (i) The date of filing an application for benefits (for the month 
of an application);
    (ii) The date a request for reinstatement of eligibility is filed 
(for the month of such request); or
    (iii) The first day of the month, for all other months. An 
individual is considered to be living with an eligible spouse during 
temporary absences as defined in Sec. 416.1149 and while receiving 
continued benefits under section 1611(e)(1) (E) or (G) of the Act.
* * * * *
    19. In Sec. 416.1802, paragraph (b) is revised to read as follows:


Sec. 416.1802  Effects of marriage on eligibility and amount of 
benefits.

* * * * *
    (b) If you have an eligible spouse--
    (1) Counting income. If you apply for or receive SSI benefits and 
have an eligible spouse as defined in Sec. 416.1801(c), we will count 
your combined income and calculated the benefit amount for you as a 
couple. Section 416.412 gives a detailed statement of the amount of 
benefits and subpart K of this part explains how we count income for an 
eligible couple.
    (2) Counting resources. If you have an eligible spouse as defined 
in Sec. 416.1801(c), we will count the value of your combined resources 
(money and property), minus certain exclusions, and use the couple's 
resource limit when we determine your eligibility. Section 416.1205(b) 
gives a detailed statement of the resource limit for an eligible 
couple.
* * * * *
    20. Section 416.1806 is revised to read as follows:


Sec. 416.1806  Whether you are married and who is your spouse.

    (a) We will consider someone to be your spouse (and therefore 
consider you to be married) for SSI purposes if--
    (1) You are legally married under the laws of the State where your 
and his or her permanent home is (or was when you lived together);
    (2) We have decided that either of you is entitled to husband's or 
wife's Social Security insurance benefits as the spouse of the other 
(this decision will not affect your SSI benefits for any month before 
it is made); or
    (3) You and an unrelated person of the opposite sex are living 
together in the same household at or after the time you apply for SSI 
benefits, and you both lead people to believe that you are husband and 
wife.
    (b) if more than one person would qualify as your husband or wife 
under paragraph (a) of this section, we will consider the person you 
are presently living with to be your spouse for SSI purposes.


Sec. 416.1811  [Removed]

    21. Section 416.1811 is removed.
    22. In Sec. 416.1830, paragraph (a) is revised to read as follows:


Sec. 416.1830  When we stop considering you and your spouse an eligible 
couple.

 * * * * *
    (a) The calendar month after the month you stopped living with your 
eligible spouse, or
 * * * * *
    23. In Sec. 416.1832, paragraphs (c) and (d) are revised to read as 
follows:


Sec. 416.1832  When we consider your marriage ended.

 * * * * *
    (c) We decide that either of you is not a spouse of the other for 
purposes of husband's or wife's social security insurance benefits, if 
we considered you married only because of Sec. 416.1806(a)(2); or
    (d) You and your spouse stop living together, if we considered you 
married only because of Sec. 416.1806(a)(3).

[FR Doc. 95-7847 Filed 3-29-95; 8:45 am]
BILLING CODE 4190-29-M