[Federal Register: March 5, 2007 (Volume 72, Number 42)]
[Proposed Rules]
[Page 9709-9712]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05mr07-15]
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SOCIAL SECURITY ADMINISTRATION
20 CFR Parts 404 and 416
[Docket No. SSA-2006-0096]
RIN 0960-AG40
Methods for Conducting Personal Conferences When Waiver of
Recovery of a Title II or Title XVI Overpayment Cannot Be Approved
AGENCY: Social Security Administration.
ACTION: Proposed rules.
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SUMMARY: We propose to revise our title II regulations and add title
XVI regulations on personal conferences when waiver of recovery of an
overpayment cannot be approved. These proposed rules would allow for
the conferences to be conducted face-to-face, by telephone, or by video
teleconference in these circumstances.
DATES: To be sure that we consider your comments, we must receive them
by May 4, 2007.
ADDRESSES: You may give us your comments: by Internet through the
Federal eRulemaking Portal at http://www.regulations.gov; by e-mail to
regulations@ssa.gov; by telefax to (410) 966-2830; or by 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, 107 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 the Federal
eRulemaking Portal. You may also inspect the comments on regular
business days by making arrangements with the contact person shown in
this preamble.
FOR FURTHER INFORMATION CONTACT: Robin Strauss, Social Insurance
Specialist, Office of Income Security Programs, Social Security
Administration, 252 Altmeyer Building, 6401 Security Boulevard,
Baltimore, MD 21235-6401, (410) 965-7944 or TTY (410) 966-5609, for
information about this notice. 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:
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
.
Background
Our existing regulations at Sec. 404.506 state that we will waive
recovery of an overpayment if the individual was without fault in
causing the overpayment and if recovery would defeat the purpose of the
Social Security Act or be against equity and good conscience. Section
404.506 further states that, if we cannot approve waiver after
reviewing the information the individual has given to support his or
her contention that the recovery of the overpayment should be waived,
we will offer the individual a personal conference. The personal
conference policy was established so that the decisionmaker would have
the opportunity to assess an individual's contention through personal,
versus written, contact. Our existing regulations at Sec. 416.550
state that we will waive recovery of an overpayment if the individual
was without fault in causing the overpayment and if recovery would
either defeat the purpose of title XVI, or be against equity and good
conscience, or impede the efficient
[[Page 9710]]
administration of title XVI. There is currently no title XVI regulation
regarding personal conferences.
Section 404.506(e)(1) states that the individual is given the
opportunity to ``appear personally'' at the personal conference.
Current regulations do not further specify the method in which this
appearance may be made. Our longstanding policy contained in Social
Security Ruling (SSR) 94-4p which implemented the decisions in
Buffington, et. al. v. Schweiker and Califano v. Yamasaki, provides
that a face-to-face pre-recoupment hearing will be conducted prior to
the denial of waiver of recovery of an overpayment. However, a face-to-
face appearance at the field office is not always convenient for the
beneficiary. Often, if an individual is not able to come to the face-
to-face conference, field office personnel will go to the person to
hold the conference. Offering additional appearance options for the
conference would improve service to the beneficiaries and reduce costly
home visits by field personnel.
In order to fulfill our stewardship responsibilities to the Social
Security trust fund, we must employ methods that will simplify our
personal conference procedures and use our resources most efficiently.
We should be using all available technology when we conduct personal
conferences. Therefore, we propose to revise the regulations to allow
for personal conferences to be conducted face-to-face at a place we
designate (usually in the field office), by telephone, or by video
teleconference. We will give the choice to the individual; the
individual will still be provided the opportunity to appear face-to-
face by choosing to come to us for the personal conference, or may
choose to participate by telephone or video teleconference. If the
individual elects to conduct the personal conference by video
teleconference, the individual will designate the location for his or
her end of the video teleconference. We will designate the location for
our end of the video teleconference, if video teleconferencing is
feasible, e.g., the field office has reasonable access to video
teleconferencing. Because we are offering claimants two new and
convenient ways to participate in a personal conference--in addition to
the face-to-face conferences at our field offices we currently offer--
we believe the need for our personnel to make costly home visits will
significantly decrease. Therefore, we will consider conducting face-to-
face conferences at locations other than SSA field offices only on a
case-by-case basis, and only in those limited circumstances where: (a)
A claimant has exhausted all other means of obtaining a personal
conference, and (b) conducting a personal conference by any other means
would be so inadequate, owing to a claimant's physical or mental
condition, as to infringe upon the person's right to a hearing. An
example of such a circumstance would be a claimant who is bedridden and
deaf, and therefore, will have considerable difficulty traveling to a
field office and participating in a conference by phone.
These proposed rules will not affect the individual's right to
review the claims file, have a representative present for the
proceedings, cross-examine witnesses, or submit documentary evidence.
Those provisions will not change. For example, claimants who choose to
conduct the personal conference via telephone or video teleconference
will be given an opportunity to submit documentary evidence by mail or
fax prior to the scheduled conference. If necessary, the conference
could be rescheduled to allow claimants time to do this. In conducting
the personal conference face-to-face at a place we designate, or by
telephone, or by video teleconference, we will be fulfilling our
stewardship responsibilities while offering an additional convenience
to the individual and continuing to protect the individual's right to
present his or her contention that he or she meets the requirements for
waiver of recovery of an overpayment. The decisionmaker will still be
able to properly assess the person's contentions regarding fault under
these new procedures.
We already successfully conduct some hearings by telephone and by
video teleconference. For example, the administrative review of an
initial determination for Medicare Part D subsidies is conducted either
by a telephone hearing or a case review. See Sec. 418.3625.
Additionally, some administrative hearings to review claims under title
II (including administrative law judge review of denial of waiver based
on a personal conference), and other claims under title XVI are now
conducted via video teleconferencing. See Sec. Sec. 404.936 and
416.1436. Our experience in these contexts has demonstrated that these
procedures adequately protect a claimant's due process rights.
Explanation of Proposed Changes
We propose to change the regulations in 20 CFR parts 404 and 416 to
reflect the methods for conducting personal conferences when waiver of
recovery of an overpayment cannot be approved as follows:
We propose to change the regulations at Sec. 404.506 to
reflect the various methods we can use to conduct the personal
conference. These methods are: face-to-face in a location we designate
(usually in the field office), via telephone, or via video
teleconference.
Currently, part 416 has no reference to personal
conferences when waiver of recovery of the overpayment cannot be
approved. We are proposing to add a new section that is similar to the
regulations at Sec. 404.506. New Sec. 416.557 would include the
various methods we can use to conduct the personal conference and
describe the individual's rights and responsibilities regarding the
personal conference.
Since SSR 94-4p only provides for a pre-recoupment hearing that is
conducted face-to-face before waiver of recovery of an overpayment can
be denied, the proposed changes in Sec. Sec. 404.506 and 416.557 would
expand that policy. Therefore, if we proceed to publish final rules, we
will also publish a notice rescinding SSR 94-4p concurrently with the
effective date of the final rules.
Clarity of These Proposed Rules
Executive Order 12866, as amended by Executive Order 13258,
requires each agency to write all rules in plain language. In addition
to your substantive comments on these proposed rules, we invite your
comments on how to make these proposed rules easier to understand. For
example:
Have we organized the material to suit your needs?
Are the requirements in the rules clearly stated?
Do the rules contain technical language or jargon that is
not clear?
Would a different format (grouping and order of sections,
use of headings, paragraphing) make the rules easier to understand?
Would more (but shorter) sections be better?
Could we improve clarity by adding tables, lists, or
diagrams?
What else could we do to make the rules easier to
understand?
Regulatory Procedures
Executive Order 12866
We have consulted with the Office of Management and Budget (OMB)
and determined that these proposed rules meet the criteria for a
significant regulatory action under Executive Order 12866, as amended
by Executive Order
[[Page 9711]]
13258. Thus, they were reviewed by OMB.
Regulatory Flexibility Act
We certify that these proposed rules would not have a significant
economic impact on a substantial number of small entities because they
affect only individuals. Thus, a regulatory flexibility analysis as
provided in the Regulatory Flexibility Act, as amended, is not
required.
Paperwork Reduction Act
We are proposing to revise our rules on conducting personal
conferences when waiver of recovery of a title II or title XVI
overpayment cannot be approved. These proposed revisions would allow
for the conferences to be conducted face-to-face, by telephone, or by
video teleconference. Currently, we only conduct these conferences
face-to-face. Although these proposed rules only contain information
collection burdens in Sec. Sec. 416.557(c)(3) and 416.557(d)(8), we
are also including the associated information collection burdens for
Sec. Sec. 404.506(e)(3) and 404.506(f)(8) since those sections deal
with personal conferences. As outlined in the table below, in
Sec. Sec. 404.506(e)(3), 404.506(f)(8), 416.557(c)(3) and
416.557(d)(8), respondents may provide additional evidence for
consideration at the personal conference. The collection of evidence is
a public paperwork burden that requires clearance under the Paperwork
Reduction Act of 1995. Respondents to these collections are individual
and the individual's representative that request a waiver conference of
their overpayment and submit additional evidence.
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Average
Annual number Frequency of burden per Estimated
Title/section & collection description of response response annual burden
respondents (minutes) (hours)
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Personal Conference 404.506(e)(3) Submittal of 150,000 1 30 75,000
additional documents for consideration at
personal conferences...........................
Personal Conference 404.506(f)(8) Submittal of 75,000 1 30 37,500
additional mitigating financial information and
verifications for consideration at personal
conferences....................................
Personal Conference 416.557(c)(3) Submittal of 100,000 1 30 50,000
additional documents for consideration at
personal conferences...........................
Personal Conference 416.557(d)(8) Submittal of 50,000 1 30 25,000
additional mitigating financial information and
verifications for consideration at personal
conferences....................................
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Total....................................... 375,000 .............. .............. 187,500
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An Information Collection Request has been submitted to OMB for
clearance. We are soliciting comments on the burden estimate; the need
for the information; its practical utility; ways to enhance its
quality, utility and clarity; and on ways to minimize the burden on
respondents, including the use of automated collection techniques or
other forms of information technology. Comments should be sent to OMB
by fax or by e-mail to: Office of Management and Budget, Attn: Desk
Officer for SSA, Fax Number: 202-395-6974, E-mail address:
OIRA_Submission@omb.eop.gov.
Comments on the paperwork burdens associated with this rule can be
received for up to 60 days after publication of this notice and will be
most useful if received within 30 days of publication. This does not
affect the deadline for the public to comment to SSA on the proposed
regulations. These information collection requirements will not become
effective until approved by OMB. When OMB has approved these
information collection requirements, SSA will publish a notice in the
Federal Register.
To receive a copy of the OMB clearance package, your staff may call
the SSA Reports Clearance Officer on 410-965-0454.
(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; and 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: November 27, 2006.
Jo Anne B. Barnhart,
Commissioner of Social Security.
For the reasons set out in the preamble, we propose to amend
subpart F of part 404 and subpart E of part 416 of chapter III of title
20 of the Code of Federal Regulations as follows:
PART 404--FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE
(1950-- )
Subpart F--[Amended]
1. The authority citation for subpart F of part 404 continues 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.
2. Section 404.506 is amended by adding a sentence at the end of
paragraph (c) to read as follows:
Sec. 404.506 When waiver may be applied and how to process the
request.
* * * * *
(c) * * * We will offer to the individual the option of conducting
the personal conference face-to-face at a place we designate, by
telephone, or by video teleconference. The notice will advise the
individual of the date and time of the personal conference.
* * * * *
PART 416-SUPPLEMENTAL SECURITY INCOME FOR THE AGED, BLIND, AND
DISABLED
Subpart E--[Amended]
1. The authority citation for subpart E of part 416 continues to
read as follows:
[[Page 9712]]
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.
2. Section 416.557 is added to read as follows:
Sec. 416.557 Personal conference.
(a) If waiver cannot be approved (i.e., the requirements in Sec.
416.550 (a) and (b) are not met), the individual is notified in writing
and given the dates, times and place of the file review and personal
conference; the procedure for reviewing the claims file prior to the
personal conference; the procedure for seeking a change in the
scheduled dates, times and/or place; and all other information
necessary to fully inform the individual about the personal conference.
The file review is always scheduled at least 5 days before the personal
conference. We will offer to the individual the option of conducting
the personal conference face-to-face at a place we designate, by
telephone, or by video teleconference. The notice will advise the
individual of the date and time of the personal conference.
(b) At the file review, the individual and the individual's
representative have the right to review the claims file and applicable
law and regulations with the decisionmaker or another of our
representatives who is prepared to answer questions. We will provide
copies of material related to the overpayment and/or waiver from the
claims file or pertinent sections of the law or regulations that are
requested by the individual or the individual's representative.
(c) At the personal conference, the individual is given the
opportunity to:
(1) Appear personally, testify, cross-examine any witnesses, and
make arguments;
(2) Be represented by an attorney or other representative (see
Sec. 416.1500), although the individual must be present at the
conference; and
(3) Submit documents for consideration by the decisionmaker.
(d) At the personal conference, the decisionmaker:
(1) Tells the individual that the decisionmaker was not previously
involved in the issue under review, that the waiver decision is solely
the decisionmaker's, and that the waiver decision is based only on the
evidence or information presented or reviewed at the conference;
(2) Ascertains the role and identity of everyone present;
(3) Indicates whether or not the individual reviewed the claims
file;
(4) Explains the provisions of law and regulations applicable to
the issue;
(5) Briefly summarizes the evidence already in file which will be
considered;
(6) Ascertains from the individual whether the information
presented is correct and whether he/she fully understands it;
(7) Allows the individual and the individual's representative, if
any, to present the individual's case;
(8) Secures updated financial information and verification, if
necessary;
(9) Allows each witness to present information and allows the
individual and the individual's representative to question each
witness;
(10) Ascertains whether there is any further evidence to be
presented;
(11) Reminds the individual of any evidence promised by the
individual which has not been presented;
(12) Lets the individual and the individual's representative, if
any, present any proposed summary or closing statement;
(13) Explains that a decision will be made and the individual will
be notified in writing; and
(14) Explains repayment options and further appeal rights in the
event the decision is adverse to the individual.
(e) SSA issues a written decision to the individual (and his or her
representative, if any) specifying the finding of fact and conclusions
in support of the decision to approve or deny waiver and advising of
the individual's right to appeal the decision. If waiver is denied,
adjustment or recovery of the overpayment begins even if the individual
appeals.
(f) If it appears that the waiver cannot be approved, and the
individual declines a personal conference or fails to appear for a
second scheduled personal conference, a decision regarding the waiver
will be made based on the written evidence of record. Reconsideration
is then the next step in the appeals process.
[FR Doc. E7-3782 Filed 3-2-07; 8:45 am]
BILLING CODE 4191-02-P