[Federal Register: January 3, 2005 (Volume 70, Number 1)]
[Rules and Regulations]
[Page 11-17]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr03ja05-5]
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SOCIAL SECURITY ADMINISTRATION
20 CFR Parts 404, 408 and 416
[Regulations No. 4, 8, and 16]
RIN 0960-AG06
Expanded Authority for Cross-Program Recovery of Benefit
Overpayments
AGENCY: Social Security Administration.
ACTION: Final rules with request for comment.
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SUMMARY: To implement part of the Social Security Protection Act of
2004 (SSPA), we are revising our rules on the recovery of overpayments
incurred under one of our programs from benefits payable to the
overpaid individual under other programs we administer. Provisions of
the SSPA expand the authority for cross-program recovery of
overpayments made in our various programs. Implementation of these
regulatory revisions when they become effective will yield significant
program savings.
Although we are issuing these rules as final rules, we are also
requesting comments on certain material changes from the proposed rules
we previously published concerning expanded cross-program recovery.
These changes would allow us to use cross-program recovery if: an
individual is no longer receiving benefits under a particular program
but is making regular monthly installments to refund an overpayment
previously received under that program; or an individual is receiving
monthly payments under a particular program and we are recovering a
previous overpayment made under that program by adjusting the amount of
those monthly benefits. We will not implement these changes before we
consider comments which we receive by the date provided below and
publish a document in the Federal Register. If we determine that any
further changes in these sections are warranted, we will publish
revised rules. See ``Additional Changes'' in the SUPPLEMENTARY
INFORMATION section for further discussion.
DATES: These rules are effective January 3, 2005. We invite public
comments on Sec. Sec. 404.530(b), 408.930(b), and 416.572(b). To be
sure that we consider your comments on these changes, we must receive
them by February 2, 2005.
ADDRESSES: You may give us your comments by: using our Internet site
facility (i.e., Social Security Online) at http:///policy.ssa.gov/pnpublic.nsf/LawsRegs or the Federal eRulemaking Portal at http://www.regulations.gov
; e-mail to regulations@ssa.gov; telefax to (410)
966-2830; or letter to the Commissioner of Social Security, P.O. Box
17703, Baltimore, Maryland 21235-7703. You may also deliver them to the
Office of Regulations, Social Security Administration, 100 Altmeyer
Building, 6401 Security Boulevard, Baltimore, Maryland 21235-6401,
between 8 a.m. and 4:30 p.m. on regular business days. Comments are
posted on our Internet site at http://policy.ssa.gov/pnpublic.nsf/LawsRegs
or you may inspect them on regular business days by making
arrangements with the contact person shown in this preamble.
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) at http://policy.ssa.gov/pnpublic.nsf/LawsRegs.
FOR FURTHER INFORMATION CONTACT: Richard Bresnick, Social Insurance
Specialist, Office of Regulations, Social Security Administration, 100
Altmeyer Building, 6401 Security Boulevard, Baltimore, MD 21235-6401,
(410) 965-1758 or TTY (410) 966-5609. For information on eligibility or
filing for benefits, call our national toll-free number, 1-800-772-1213
or TTY 1-800-325-0778, or visit our Internet site, Social Security
Online, at http://www.socialsecurity.gov.
SUPPLEMENTARY INFORMATION:
Background
Section 210 of the SSPA, Public Law 108-203, enacted on March 2,
2004, significantly expands our ability to recover overpayments made in
one of our programs from benefits payable to the overpaid individual
under other programs we administer. These programs are Social Security
benefits under title II of the Social Security Act (the Act), Special
Veterans Benefits (SVB) under title VIII of the Act and Supplemental
Security Income (SSI) benefits under title XVI of the Act.
Prior to enactment of the SSPA, sections 808, 1147 and 1147A of the
Act allowed cross-program adjustment to recover overpayments as
follows:
We could withhold no more than 10 percent of any title II
benefit payment (i.e., a current monthly payment and a past-due
payment) to recover an SSI overpayment, if the person is not currently
eligible for SSI;
We could withhold any title II benefit payment to recover
an SVB overpayment, if the person is not qualified for SVB;
[[Page 12]]
We could withhold no more than 10 percent of any SVB
payment to recover an SSI overpayment, if the person is not currently
eligible for SSI;
We could withhold any SVB payment to recover a title II
overpayment, if the person is not currently receiving title II
benefits.
The Act did not allow us to withhold SSI payments to recover title II
or SVB overpayments.
Section 210 of the SSPA repealed section 1147A and cross-program
recovery provisions in section 808 of the Act and amended section 1147
to expand our cross-program recovery authority to allow recovery of an
overpayment occurring under any of these programs from benefits or
payments due in any other of these programs at a rate not to exceed 10
percent of the monthly benefit. It allows for unlimited withholding of
past-due benefits in one program to recover an overpayment paid under
another program. It also allows for cross-program recovery even if the
individual is entitled under the program in which the overpayment was
made.
Explanation of Changes
We are changing the regulations in 20 CFR parts 404, 408 and 416 to
reflect the expanded cross-program recovery authority.
Currently, part 404 has no provisions permitting cross-program
recovery. In part 404, we are adding new Sec. Sec. 404.530, .535,
.540, and .545, which parallel existing regulations at Sec. Sec.
408.930 through 408.933, to include the expanded authority to recover
title II overpayments as follows:
We may withhold from a current monthly SSI payment no more
than the lesser of that payment or 10 percent of the monthly income (as
defined in the regulation) to recover a title II overpayment;
We may withhold no more than 10 percent of current monthly
SVB payments to recover a title II overpayment;
We may withhold up to 100 percent of SSI and SVB past-due
payments to recover a title II overpayment.
We are changing Sec. Sec. 408.930 through 408.933 to reflect the
expanded authority to recover title VIII overpayments as follows:
We may withhold from a current monthly SSI payment no more
than the lesser of that payment or 10 percent of the monthly income to
recover an SVB overpayment;
We may withhold no more than 10 percent of current monthly
title II benefits to recover an SVB overpayment;
We may withhold up to 100 percent of title II and SSI
past-due payments to recover an SVB overpayment.
We are changing the regulations at Sec. 416.570 to delete obsolete
information. We are changing the regulations at Sec. 416.572 and
adding Sec. Sec. 416.573, .574, and .575 to reflect the expanded
authority to recover title XVI overpayments as follows:
We may withhold no more than 10 percent of current monthly
title II benefits to recover an SSI overpayment;
We may withhold no more than 10 percent of current monthly
SVB payments to recover an SSI overpayment;
We may withhold up to 100 percent of title II and SVB
past-due payments to recover an SSI overpayment.
The new sections follow the same structure as the existing
regulations at Sec. Sec. 408.930 through 408.933. We believe that this
format is easy for members of the public to understand. We are removing
the title II example from Sec. 416.572 because the example illustrated
how we applied the 10 percent limit to past-due title II benefits.
Under the new law, this limitation no longer applies. We are removing
the title VIII example from Sec. 416.572 because we have added a
cross-reference to the title VIII regulations that explain how title
VIII benefits are computed.
We are removing from the SVB and SSI regulations the provisions
that preclude cross-program recovery when the overpaid person is
currently eligible for payment under the program from which we made the
overpayment. The amended statute does not contain that restriction. As
revised, Sec. 416.572(b) also states that if we are already recovering
an overpayment from title II benefits, the maximum amount which may be
withheld from title XVI monthly benefits is the lesser of the person's
title XVI benefit for that month or 10 percent of the person's total
income for that month, not including the title II income used to
compute the title XVI benefit.
Like the current regulations in 20 CFR part 408, subpart I, and
part 416, subpart E, the final regulations for each program require
that, before we impose cross-program recovery, we will notify the
overpaid person of the proposed action and allow the overpaid person an
opportunity to pay the remaining balance of the overpayment debt, to
request review of the status of the debt, to request waiver of
recovery, and to request recovery of the debt from current monthly
benefits at a different rate than that stated in the notice. We will
not begin cross-program recovery from current monthly benefits until 30
calendar days have elapsed after the date of the notice. If within that
time period the person requests review of the debt, waiver of recovery
of the debt, or reduction of the rate of recovery from current monthly
benefits stated in the notice, we will not take any action to reduce
current monthly benefits before we notify the debtor of our
determination on the request. As permitted by section 1147(b)(2)(A) of
the Act, the regulations provide that, if we find that the overpaid
person or that person's spouse was involved in willful
misrepresentation or concealment of material information in connection
with the overpayment, we can withhold the entire amount of the current
monthly benefit.
Following the discussion of our responses to public comments, we
address changes that we made in Sec. Sec. 404.530(b), 408.930(b) and
416.572(b) from the versions published in the notice of proposed
rulemaking. See below under the heading Additional Changes.
Public Comments
On August 24, 2004, we published proposed rules in the Federal
Register at 69 FR 51962 and provided a 30-day period for interested
parties to comment. We received comments from six organizations.
Because some of the comments received are quite detailed, we have
condensed, summarized or paraphrased them in the discussion below. We
address all of the significant issues raised by the commenters that are
within the scope of the proposed rules.
Comment: Four organizations commented that the terms ``willful
misrepresentation'' and ``concealment of material fact'' are not
defined adequately in these regulations. They also commented that the
actions of a recipient's spouse do not always reflect the intentions of
the recipient and the recipient may not even be aware of his or her
spouse's actions. Concerns were expressed that imposition of the 100
percent withholding could adversely affect innocent spouses and that
the 100 percent withholding would be imposed improperly or without
appropriate development to make a determination of willful
misrepresentation or concealment of material information.
Response: The concepts of willful misrepresentation and concealment
of material information for the purpose of cross-program recovery are
not new. Since 2000, we have applied the same policy and procedures
regarding willful misrepresentation and concealment of material
information for cross-program recovery purposes as we apply when we
collect SSI overpayments from monthly SSI benefits under section
1631(b) of the
[[Page 13]]
Act and 20 CFR 416.571. The new regulations continue this practice
under the expanded cross-program recovery authorized by section 210 of
the SSPA. The new regulations include cross-references to the
definition of the term ``concealment of material information'' in other
regulations. Also, our operating instructions provide more detailed
definitions and examples to guide SSA staff in determining whether
willful misrepresentation or concealment of material information
occurred.
In order to determine a person's continuing eligibility for SSI and
the amount payable, we need to have accurate information about his or
her spouse's income, living arrangements and resources. If the person
is overpaid because the spouse willfully misrepresented or concealed
material information, we think it is our stewardship duty to apply the
100 percent collection rule when appropriate. Our field offices have
detailed instructions regarding the process for imposing 100 percent
withholding due to willful misrepresentation or concealment of material
information in connection with an overpayment. Whenever we propose to
collect at the 100 percent rate, the person will be notified and have
the opportunity to protest before we would take this action. We would
take all factors into consideration before imposing 100 percent
withholding. Moreover, an overpaid person whose spouse caused the
overpayment may request that we waive collection, and we will grant
waiver to a person who is without fault and satisfies the other waiver
criteria.
Comment: Three organizations stated that we should include in the
notices described in Sec. Sec. 404.540, 408.932 and 416.574 the same
information about the cause of the overpayment and the overpaid amount
that we include in the initial notice of overpayment. They state that
the information should be included because they feel a person cannot
adequately identify or question an overpayment without more
information. Two of the organizations also suggested that the notice
advise the person that waiver can be requested at any time.
Response: After considering the comments, we decided not to adopt
the suggested changes regarding information about the causes and
original amount of the overpayment. The new notice described in
Sec. Sec. 404.540, 408.932 and 416.574 will show the balance of the
overpayment at the time we send the notice. The initial notice of
overpayment previously sent to the overpaid individual includes
information such as the beginning balance of the overpayment, the cause
of the overpayment, and the monthly amounts received compared to the
monthly amounts that the person should have received for each month of
the overpaid period. We include the more detailed information in
initial notices of overpayment because those notices give overpaid
individuals the right to request appeal of the fact or amount of the
overpayment. To exercise that right, the overpaid individual needs to
know specifically the overpayment amount, when the overpayment
occurred, how the overpayment was calculated, and why the overpayment
occurred.
The notices described in Sec. Sec. 404.540, 408.932 and 416.574
are sent to the overpaid individual after the individual has had the
opportunity to appeal the initial overpayment determination. At the
time that this additional notice is sent, the individual has either
appealed the initial overpayment determination and received our
decision or has chosen not to appeal and the time to appeal the
overpayment determination has expired. Accordingly, the detailed
information about the overpayment is not required in the new notice
regarding cross-program recovery in order to afford the individual due
process of law on the decision to collect the overpayment balance by
cross-program recovery. Under the new regulation, the overpaid
individual would have the right to have us review whether he or she
still owes all or part of the overpayment balance. For example, the
individual may have evidence that he or she refunded all or part of the
balance or that we previously waived collection. We believe that the
new notice of cross-program recovery gives sufficient information about
the overpayment for the individual to determine whether to ask for such
review.
In addition, it is our long-held policy to provide the detailed
information on the amount of the initial overpayment and the cause of
the overpayment in the initial overpayment notice. We do not repeat
that information with each subsequent overpayment-related notice that
we send. In subsequent notices to overpaid individuals, we invite them
to ask for more information if they want to know more detail. To make
it easier for overpaid individuals to obtain additional information, we
provide in our subsequent notices contact information, such as the
Agency's national toll-free telephone number and the address and
telephone number of the local office that is closest to them. We will
include this contact information in the new notices described in
Sec. Sec. 404.540, 408.932, and 416.574. When overpaid persons ask for
more information, we provide them with the details contained in our
records, including why the overpayment occurred, when it occurred, and
how we calculated the overpayment.
As to the suggestion that the notice advise that waiver can be
requested at any time, the new notices described in Sec. Sec. 404.540,
408.932 and 416.574 will advise that waiver may be requested at any
time.
Comment: One organization raised a concern about cross-program
recovery of overpayments from monthly title XVI benefits, claiming that
``[t]itle XVI beneficiaries are presumed to be unable to afford to
repay overpayments under the law'' and ``[t]hey need only prove lack of
fault in causing the overpayment to receive a waiver.'' The comment
states that SSA should include this information in the notices that
propose recovery from title XVI payments.
Response: This comment is based on an apparent misunderstanding of
our existing regulations. A title XVI recipient does not have to show
only that he or she is without fault to have overpayment recovery
waived. In addition, the individual must demonstrate that recovery
would defeat the purpose of title XVI, be against equity and good
conscience, or impede efficient or effective administration of the
program. Our regulation at 20 CFR 416.553(a) states that recovery
defeats the purpose of the SSI program ``if the individual's income and
resources are needed for ordinary and necessary living expenses.'' This
explanation is included in our notice language about waiver. Section
416.553(b) explains the alternative criteria that meet the requirement
described in Sec. 416.553(a). Nowhere does the regulation say that a
title XVI recipient is automatically deemed to meet the criteria for
``defeat the purpose'' of the SSI program.
Comment: Two organizations asserted that there are problems in the
administration of our programs that cause overpayments; specifically,
timely processing of reports of work activity and earned income which
potentially affect eligibility or benefit amounts.
Response: Overpayments and underpayments of benefits occur for many
reasons. We take our responsibility for stewardship of the programs
that we administer very seriously, which is why we constantly track our
payment accuracy and strive to minimize overpayments and to determine
eligibility and process claims timely. In addition, we are pursuing
several initiatives that address both the causes of overpayments and
the timely processing of reports affecting
[[Page 14]]
eligibility. Regardless of the reasons for overpayments, we are
responsible for recovering as much of the overpaid money as possible
consistent with the law.
Comment: One organization suggested that special language be added
to the regulations to protect the health and welfare of individuals
when they are receiving medical assistance in either a nursing
facility, state institution or a home and community-based setting. They
are concerned about the impact cross-program recovery ``will have on
these individuals because it will reduce their countable income which
Medicaid cannot supplement and then the provider will not receive full
reimbursement.''
Response: The comment is not clear regarding the impact that cross-
program recovery would have on the individuals described in the
comment, and the organization does not specify the change(s) in the
regulations that the organization wants. The Agency assumes that the
organization wants special arrangements in the regulations that would
apply while the overpaid person receives the medical assistance
described in the comment. Such a change is not necessary because
appropriate arrangements are already available in the rules governing
waiver of recovery and recovering at a rate that is less than 10
percent of the current monthly benefits. Therefore, this suggestion is
not being implemented since a special rule is not required to cover
this situation. The general rules for overpayment recovery take into
consideration a person's financial circumstances.
Additional Changes
Upon further review and consideration, we have deleted from
Sec. Sec. 404.530(b), 408.930(b) and 416.572(b), as published on
August 24, 2004, the provisions that would exclude certain types of
cases from cross-program recovery. Under one of the exclusions, we
would not apply cross-program recovery when the overpaid person is no
longer eligible for payment under the program where the overpayment
occurred but is refunding that overpayment voluntarily by making
monthly installment payments. Under the other exclusion, we would not
recover an overpayment in one program by adjusting benefits payable
under another program when we already are adjusting those benefits to
recover an overpayment of benefits within that program.
As amended by section 210 of the SSPA, section 1147 of the Act
permits us to apply cross-program recovery in both situations described
above. By eliminating these exclusions from paragraph (b) of Sec. Sec.
404.530, 408.930, and 416.572, we believe that we will fulfill our
stewardship responsibilities regarding the programs more effectively.
For example, if an individual is not eligible for SSI benefits and is
refunding an SSI overpayment by making monthly installment payments, we
would be able to recover the SSI overpayment balance by cross-program
recovery against a title II past-due benefit. Cross-program recovery is
a more efficient and reliable collection method than collection by
installment payments. This approach is consistent with our policy under
amended section 1147 of the Act to apply cross-program recovery in
addition to adjusting benefits payable under the program in which the
overpayment was made. Moreover, if an individual incurred both an SSI
overpayment and a title II overpayment, we would be able to recover
both the title II overpayment and the title XVI overpayment
simultaneously from the title II benefits. For example, if we are
collecting a title II overpayment by title II benefit adjustment and a
large title II underpayment becomes payable, we could collect the title
II overpayment balance from that underpayment and apply any remaining
title II past-due benefits to the SSI overpayment.
Because these are material changes from the proposed rule, we have
decided to offer an additional opportunity for public comment before we
implement them.
In addition to the changes described above, we made a few non-
substantive clarifying revisions in Sec. Sec. 404.535(b), 408.931(b),
and 416.573(b).
Regulatory Procedures
Pursuant to section 702(a)(5) of the Social Security Act, 42 U.S.C.
902(a)(5), SSA follows the Administrative Procedure Act rulemaking
procedures specified in 5 U.S.C. 553 in the development of regulations.
Subject to certain exceptions, 5 U.S.C. 553(d) requires that an agency
publish a final rule at least 30 days before the rule becomes
effective. Except for the changes in paragraph (b) of Sec. Sec.
404.530, 408.930, and 416.572 discussed above, we find ``good cause''
under 5 U.S.C. 553(d)(3) for applying these regulations immediately.
Waiting an additional 30 days would delay for no legitimate reason
collection of overpayments made under titles II, VIII and XVI of the
Act under the expanded authority for cross-program recovery. Such delay
would be unnecessary and contrary to the public interest. There is a
significant public interest in recovering those overpayments as soon as
possible consistent with applicable law. We do not need 30 more days to
prepare to begin implementing the expanded authority, and the
regulations do not require any action by individuals or organizations
to prepare for cross-program recovery.
Executive Order 12866
The Office of Management and Budget (OMB) has reviewed these rules
in accordance with Executive Order 12866, as amended by Executive Order
13258. We have also determined that these rules meet the plain language
requirement of Executive Order 12866, as amended by Executive Order
13258.
Regulatory Flexibility Act
We certify that these rules will not have a significant economic
impact on a substantial number of small entities because it affects
only individuals. Thus, a regulatory flexibility analysis as provided
in the Regulatory Flexibility Act, as amended, is not required.
Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (PRA) 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 Sec. 408.932(c), (d)
and (e) of these final rules. The OMB control number for this
collection is 0960-0692, expiring 11/30/2007.
(Catalog of Federal Domestic Assistance Program Nos. 96.001, Social
Security-Disability Insurance; 96.002, Social Security-Retirement
Insurance; 96.004, Social Security-Survivors Insurance; 96.006,
Supplemental Security Income; and 96.020, Special Benefits for
Certain World War II Veterans)
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 408
Administrative practice and procedure, Aged; Reporting and
recordkeeping requirements, Social Security; Special Veterans benefits,
Veterans.
20 CFR Part 416
Administrative practice and procedure, Aged, Blind, Disability
benefits, Public assistance programs;
[[Page 15]]
Reporting and recordkeeping requirements, Supplemental Security Income
(SSI).
Dated: November 24, 2004.
Jo Anne B. Barnhart,
Commissioner of Social Security.
0
For the reasons set out in the preamble, we are amending subpart F of
part 404, subpart I of part 408 and subpart E of part 416 of chapter
III of title 20 of the Code of Federal Regulations as set forth below:
PART 404--FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE
(1950- )
Subpart F--[Amended]
0
1. The authority citation for subpart F of part 404 is revised to read
as follows:
Authority: Secs. 204, 205(a), 702(a)(5), and 1147 of the Social
Security Act (42 U.S.C. 404, 405(a), 902(a)(5), and 1320b-17); 31
U.S.C. 3720A.
0
2. Sections 404.530, 404.535, 404.540 and 404.545 are added to read as
follows:
Sec. 404.530 Are title VIII and title XVI benefits subject to
adjustment to recover title II overpayments?
(a) Definitions. (1) Cross-program recovery. Cross-program recovery
is the process that we will use to collect title II overpayments from
benefits payable to you under title VIII and title XVI of the Act.
(2) Benefits payable. For purposes of this section, benefits
payable means the amount of title VIII or title XVI benefits you
actually would receive. For title VIII benefits, it includes your
monthly benefit and any past-due benefits after any reduction by the
amount of income for the month as described in Sec. Sec. 408.505
through 408.515 of this chapter. For title XVI benefits, it includes
your monthly benefit and any past-due benefits as described in Sec.
416.420 of this chapter.
(b) When may we collect title II overpayments using cross-program
recovery? We may use cross-program recovery to collect a title II
overpayment you owe when benefits are payable to you under title VIII,
title XVI, or both.
Sec. 404.535 How much will we withhold from your title VIII and title
XVI benefits to recover a title II overpayment?
(a) If past-due benefits are payable to you, we will withhold the
lesser of the entire overpayment balance or the entire amount of past-
due benefits.
(b)(1) We will collect the overpayment from current monthly
benefits due in a month under title VIII and title XVI by withholding
the lesser of the amount of the entire overpayment balance or:
(i) 10 percent of the monthly title VIII benefits payable for that
month and
(ii) in the case of title XVI benefits, an amount no greater than
the lesser of the benefit payable for that month or an amount equal to
10 percent of your income for that month (including such monthly
benefit but excluding payments under title II when recovery is also
made from title II benefits and excluding income excluded pursuant to
Sec. Sec. 416.1112 and 416.1124 of this chapter).
(2) Paragraph (b)(1) of this section does not apply if:
(i) You request and we approve a different rate of withholding, or
(ii) You or your spouse willfully misrepresented or concealed
material information in connection with the overpayment.
(c) In determining whether to grant your request that we withhold
less than the amount described in paragraph (b)(1) of this section, we
will use the criteria applied under Sec. 404.508 to similar requests
about withholding from title II benefits.
(d) If you or your spouse willfully misrepresented or concealed
material information in connection with the overpayment, we will
collect the overpayment by withholding the lesser of the overpayment
balance or the entire amount of title VIII and title XVI benefits
payable to you. We will not collect at a lesser rate. (See Sec.
416.571 of this chapter for what we mean by concealment of material
information.)
Sec. 404.540 Will you receive notice of our intention to apply cross-
program recovery?
Before we collect an overpayment from you using cross-program
recovery, we will send you a written notice that tells you the
following information:
(a) We have determined that you owe a specific overpayment balance
that can be collected by cross-program recovery;
(b) We will withhold a specific amount from the title VIII or title
XVI benefits (see Sec. 404.535);
(c) You may ask us to review this determination that you still owe
this overpayment balance;
(d) You may request that we withhold a different amount from your
current monthly benefits (the notice will not include this information
if Sec. 404.535(d) applies); and
(e) You may ask us to waive collection of this overpayment balance.
Sec. 404.545 When will we begin cross-program recovery from current
monthly benefits?
(a) We will begin collecting the overpayment balance from your
title VIII or title XVI current monthly benefits or payments by cross-
program recovery no sooner than 30 calendar days after the date of the
notice described in Sec. 404.540. If within that 30-day period you pay
us the full overpayment balance stated in the notice, we will not begin
cross-program recovery.
(b) If within that 30-day period you ask us to review our
determination that you still owe us this overpayment balance, we will
not begin cross-program recovery from your current monthly benefits
before we review the matter and notify you of our decision in writing.
(c) If within that 30-day period you ask us to withhold a different
amount than the amount stated in the notice, we will not begin cross-
program recovery from your current monthly benefits until we determine
the amount we will withhold. This paragraph does not apply when Sec.
404.535(d) applies.
(d) If within that 30-day period you ask us to waive recovery of
the overpayment balance, we will not begin cross-program recovery from
your current monthly benefits before we review the matter and notify
you of our decision in writing. See Sec. Sec. 404.506 through 404.512.
PART 408--SPECIAL BENEFITS FOR CERTAIN WORLD WAR II VETERANS
Subpart I--[Amended]
0
3. The authority citation for subpart I of part 408 is revised to read
as follows:
Authority: Secs. 702(a)(5), 808, and 1147 of the Social Security
Act (42 U.S.C. 902(a)(5), 1008, and 1320b-17); 31 U.S.C. 3720A.
0
4. Section 408.930 is revised to read as follows:
Sec. 408.930 Are title II and title XVI benefits subject to
adjustment to recover title VIII overpayments?
(a) Definitions. (1) Cross-program recovery. Cross-program recovery
is the process that we will use to collect title VIII overpayments from
benefits payable to you under title II or title XVI of the Social
Security Act.
(2) Benefits payable. For purposes of this section, benefits
payable means the amount of title II or title XVI benefits you actually
would receive. For title II benefits, it includes your monthly benefit
and your past-due benefits after any reductions or deductions listed in
Sec. 404.401(a) and (b) of this chapter. For title XVI benefits, it
includes your monthly benefit and your past-due benefits as described
in Sec. 416.420 of this chapter.
(b) When may we collect title VIII overpayments using cross-program
recovery? We may use cross-program recovery to collect a title VIII
[[Page 16]]
overpayment you owe when benefits are payable to you under title II,
title XVI, or both.
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5. Section 408.931 is revised to read as follows:
Sec. 408.931 How much will we withhold from your title II and title
XVI benefits to recover a title VIII overpayment?
(a) If past-due benefits are payable to you, we will withhold the
lesser of the entire overpayment balance or the entire amount of past-
due benefits.
(b)(1) We will collect the overpayment from current monthly
benefits due in a month under title II and title XVI by withholding the
lesser of the amount of the entire overpayment balance or:
(i) 10 percent of the monthly title II benefits payable for that
month and
(ii) in the case of title XVI benefits, an amount no greater than
the lesser of the benefit payable for that month or an amount equal to
10 percent of your income for that month (including such monthly
benefit but excluding payments under title II when recovery is also
made from title II benefits and excluding income excluded pursuant to
Sec. Sec. 416.1112 and 416.1124 of this chapter).
(2) Paragraph (b)(1) of this section does not apply if:
(i) You request and we approve a different rate of withholding, or
(ii) You or your spouse willfully misrepresented or concealed
material information in connection with the overpayment.
(c) In determining whether to grant your request that we withhold
less than the amount described in paragraph (b)(1) of this section, we
will use the criteria applied under Sec. 408.923 to similar requests
about withholding from title VIII benefits.
(d) If you or your spouse willfully misrepresented or concealed
material information in connection with the overpayment, we will
collect the overpayment by withholding the lesser of the overpayment
balance or the entire amount of title II benefits and title XVI
benefits payable to you. We will not collect at a lesser rate. (See
Sec. 408.923 for what we mean by concealment of material information.)
0
6. Section 408.932 is revised to read as follows:
Sec. 408.932 Will you receive notice of our intention to apply cross-
program recovery?
Before we collect an overpayment from you using cross-program
recovery, we will send you a written notice that tells you the
following information:
(a) We have determined that you owe a specific overpayment balance
that can be collected by cross-program recovery;
(b) We will withhold a specific amount from the title II or title
XVI benefits (see Sec. 408.931(b));
(c) You may ask us to review this determination that you still owe
this overpayment balance;
(d) You may request that we withhold a different amount from your
current monthly benefits (the notice will not include this information
if Sec. 408.931(d) applies); and
(e) You may ask us to waive collection of this overpayment balance.
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7. Section 408.933 is revised to read as follows:
Sec. 408.933 When will we begin cross-program recovery from your
current monthly benefits?
(a) We will begin collecting the overpayment balance by cross-
program recovery from your title II and title XVI current monthly
benefits no sooner than 30 calendar days after the date of the notice
described in Sec. 408.932. If within that 30-day period you pay us the
full overpayment balance stated in the notice, we will not begin cross-
program recovery from your current monthly benefits.
(b) If within that 30-day period you ask us to review our
determination that you still owe us this overpayment balance, we will
not begin cross-program recovery from your current monthly benefits
before we review the matter and notify you of our decision in writing.
(c) If within that 30-day period you ask us to withhold a different
amount than the amount stated in the notice, we will not begin cross-
program recovery from your current monthly benefits until we determine
the amount we will withhold. This paragraph does not apply when Sec.
408.931(d) applies.
(d) If within that 30-day period you ask us to waive recovery of
the overpayment balance, we will not begin cross-program recovery from
your current monthly benefits before we review the matter and notify
you of our decision in writing. See Sec. Sec. 408.910 through 408.914.
PART 416--SUPPLEMENTAL SECURITY INCOME FOR THE AGED, BLIND, AND
DISABLED
Subpart E--[Amended]
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8. The authority citation for subpart E of part 416 continues to read
as follows:
Authority: Secs. 702(a)(5), 1147, 1601, 1602, 1611(c) and (e),
and 1631(a)-(d) and (g) of the Social Security Act (42 U.S.C.
902(a)(5), 1320b-17, 1381, 1381a, 1382(c) and (e), and 1383(a)-(d)
and (g)); 31 U.S.C. 3720A.
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9. Section 416.570 is revised to read as follows:
Sec. 416.570 Adjustment--general rule.
When a recipient has been overpaid, the overpayment has not been
refunded, and waiver of adjustment or recovery is not applicable, any
payment due the overpaid recipient or his or her eligible spouse (or
recovery from the estate of either or both when either or both die
before adjustment is completed) is adjusted for recovery of the
overpayment. Adjustment will generally be accomplished by withholding
each month the amount set forth in Sec. 416.571 from the benefit
payable to the individual except that, when the overpayment results
from the disposition of resources as provided by Sec. Sec. 416.1240(b)
and 416.1244, the overpayment will be recovered by withholding any
payments due the overpaid recipient or his or her eligible spouse
before any further payment is made. Absent a specific request from the
person from whom recovery is sought, no overpayment made under title
XVIII of the Act will be recovered by adjusting SSI benefits. In no
case shall an overpayment of SSI benefits be adjusted against title
XVIII benefits. No funds properly deposited into a dedicated account
(see Sec. Sec. 416.546 and 416.640(e)) can be used to repay an
overpayment while the overpaid individual remains subject to the
provisions of those sections.
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10. Section 416.572 is revised and sections 416.573, 416.574 and
416.575 are added to read as follows:
Sec. 416.572 Are title II and title VIII benefits subject to
adjustment to recover title XVI overpayments?
(a) Definitions. (1) Cross-program recovery. Cross-program recovery
is the process that we will use to collect title XVI overpayments from
benefits payable to you under title II or title VIII of the Social
Security Act.
(2) Benefits payable. For purposes of this section, benefits
payable means the amount of title II or title VIII benefits you
actually would receive. For title II benefits, it includes your monthly
benefit and your past-due benefits after any reductions or deductions
listed in Sec. 404.401(a) and (b) of this chapter. For title VIII
benefits, it includes your monthly benefit and any past-due benefits
after any reduction by the amount of income for the month as described
in Sec. Sec. 408.505 through 408.510 of this chapter.
(b) When may we collect title XVI overpayments using cross-program
recovery? We may use cross-program recovery to collect a title XVI
[[Page 17]]
overpayment you owe when benefits are payable to you under title II,
title VIII, or both.
Sec. 416.573 How much will we withhold from your title II and title
VIII benefits to recover a title XVI overpayment?
(a) If past-due benefits are payable to you, we will withhold the
lesser of the entire overpayment balance or the entire amount of past-
due benefits.
(b)(1) We will collect the overpayment from current monthly
benefits due in a month by withholding the lesser of the amount of the
entire overpayment balance or 10 percent of the monthly title II
benefits and monthly title VIII benefits payable to you in the month.
(2) If we are already recovering a title II, title VIII or title
XVI overpayment from your monthly title II benefit, we will figure your
monthly withholding from title XVI payments (as described in Sec.
416.571) without including your title II benefits in your total
countable income.
(3) Paragraph (b)(1) of this section does not apply if:
(i) You request and we approve a different rate of withholding, or
(ii) You or your spouse willfully misrepresented or concealed
material information in connection with the overpayment.
(c) In determining whether to grant your request that we withhold
less than the amount described in paragraph (b)(1) of this section, we
will use the criteria applied under Sec. 416.571 to similar requests
about withholding from title XVI benefits.
(d) If you or your spouse willfully misrepresented or concealed
material information in connection with the overpayment, we will
collect the overpayment by withholding the lesser of the overpayment
balance or the entire amount of title II benefits and title VIII
benefits payable to you. We will not collect at a lesser rate. (See
Sec. 416.571 for what we mean by concealment of material information.)
Sec. 416.574 Will you receive notice of our intention to apply cross-
program recovery?
Before we collect an overpayment from you using cross-program
recovery, we will send you a written notice that tells you the
following information:
(a) We have determined that you owe a specific overpayment balance
that can be collected by cross-program recovery;
(b) We will withhold a specific amount from the title II or title
VIII benefits (see Sec. 416.573);
(c) You may ask us to review this determination that you still owe
this overpayment balance;
(d) You may request that we withhold a different amount from your
current monthly benefits (the notice will not include this information
if Sec. 416.573(d) applies); and
(e) You may ask us to waive collection of this overpayment balance.
Sec. 416.575 When will we begin cross-program recovery from your
current monthly benefits?
(a) We will begin collecting the overpayment balance by cross-
program recovery from your current monthly title II and title VIII
benefits no sooner than 30 calendar days after the date of the notice
described in Sec. 416.574. If within that 30-day period you pay us the
full overpayment balance stated in the notice, we will not begin cross-
program recovery.
(b) If within that 30-day period you ask us to review our
determination that you still owe us this overpayment balance, we will
not begin cross-program recovery from your current monthly benefits
before we review the matter and notify you of our decision in writing.
(c) If within that 30-day period you ask us to withhold a different
amount from your current monthly benefits than the amount stated in the
notice, we will not begin cross-program recovery until we determine the
amount we will withhold. This paragraph does not apply when Sec.
416.573(d) applies.
(d) If within that 30-day period you ask us to waive recovery of
the overpayment balance, we will not begin cross-program recovery from
your current monthly benefits before we review the matter and notify
you of our decision in writing. See Sec. Sec. 416.550 through 416.556.
[FR Doc. 04-28693 Filed 12-30-04; 8:45 am]
BILLING CODE 4191-02-P