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No: 108-17
Date: February 11, 2004
House Passes H.R. 743, the Social Security Protection
Act of 2003
On February
11, 2004, the House agreed to the Senate amendments and passed H.R. 743 by a vote of 402 to 19. The President is expected to sign the bill.
On April 2, 2003, the House passed an earlier version of H.R. 743 (see Legislative Bulletin 108-5). The Senate then amended and passed
its version of H.R. 743 on December 9, 2003 (see
Legislative Bulletin 108-16). The bill that passed the House on February 11, 2004 is identical to the Senate-passed H.R. 743.
Following are descriptions of provisions in the bill.
Authority to Reissue Benefits Misused by Organizational Representative Payees
- Would require the Commissioner to re-issue benefits under
Titles II, VIII, or XVI whenever an individual representative payee serving
15 or more beneficiaries, or an organizational representative payee,
is found to have misused a beneficiary's funds.
- Would define "misuse" as when a representative payee
converts benefits for use other than for the beneficiary.
- Would exclude reissued benefits from resources under
SSI for 9 months.
- Would be effective for determinations of misuse on or
after January 1, 1995.
Oversight of Representative Payees
- Would require non-governmental fee-for-service organizational
representative payees to be both licensed and bonded, provided that licensing
is available in the State. (This part of provision would be effective
on the first day of the 13th month after enactment.)
- Would require the Commissioner to provide for periodic
onsite reviews for all nonprofit fee-for-service payees, organizational
payees (both governmental and non-governmental) representing 50 or more
beneficiaries, and individual payees representing 15 or more beneficiaries.
- Would require the Commissioner to report annually to
Congress on the results of the onsite reviews.
- Would be effective upon enactment (except as noted above).
Disqualification From
Service As Representative Payee of Persons Convicted of Offenses Resulting
in Imprisonment For More Than 1 Year, or Fleeing Prosecution, Custody,
or Confinement
- Would disqualify an individual from serving as a representative
payee if he or she has been convicted of an offense resulting in more
than one year of imprisonment, unless the Commissioner determines that
such certification would be appropriate notwithstanding such conviction.
Also, would disqualify a person who is fleeing prosecution, custody,
or confinement.
- Would require the Commissioner to share information with
law enforcement on persons disqualified from service as representative
payee.
- Would require a report to Congress 9 months after enactment
whether existing reviews and procedures for payee selection provide sufficient
safeguards.
- Would be effective on the first day of the 13th month
after enactment.
Fee Forfeiture in Case of Benefit Misuse by Representative Payees
- Would require representative payees to forfeit their
fee from the beneficiary's benefits for the months during which the representative
payee misused the funds, as determined by the Commissioner or a court
of competent jurisdiction.
- Would be effective for any month after 180 days after
enactment in which a determination of misuse is made.
Liability of Representative Payees for Misused Benefits
- Would provide that misused benefits by a nongovernmental
representative payee shall be treated as overpayments to the representative
payee, subject to current overpayment recovery authorities.
- Would provide that any recovered benefits not reissued
to the beneficiary pursuant to the first section of this legislation
would be reissued under this provision to the beneficiary or their alternate
representative payee, up to the total amount misused.
- Would be effective with respect to benefit misuse determined
180 days after enactment.
Authority to Redirect
Delivery of Benefit Payments When a Representative Payee Fails to Provide
Required Accounting
- Would provide SSA with the authority to redirect payments
of Social Security, Title VIII, and SSI benefits to local Social Security
field offices if a representative payee fails to provide an annual accounting
of benefits report.
- Would require the Commissioner to provide proper notice
prior to redirecting benefits.
- Would be effective 180 days after enactment.
Survey of Use of
Payments to Representative Payee
- Would authorize and appropriate up to $8.5 million to
the Commissioner to conduct statistically valid surveys to determine
how payments made to representative payees are being used on behalf of
OASDI and SSI beneficiaries.
- Would require the Commissioner to submit a report on
the survey to the House Ways and Means and Senate Finance Committees no later than
18 months after enactment.
- Would be effective upon enactment.
Civil Monetary Penalty
Authority With Respect to Wrongful Conversions by Representative Payees
- Would authorize SSA to impose a civil monetary penalty
for offenses involving misuse of Social Security, Title VIII, or SSI
benefits received by a representative payee on behalf of another individual.
The penalty equals up to $5,000 for each violation. In addition, the
representative payee shall be subject to an assessment of not more than
twice the amount of the misused payments.
- Would also authorize SSA to impose administrative sanctions
for the above offense.
- Would be effective for violations committed after the
date of enactment.
Civil Monetary Penalty
Authority With Respect to Knowing Withholding of Material Facts
- Would authorize SSA to impose, in addition to any other
penalties that apply, civil monetary penalties of up to $5,000 (and assessments)
for withholding of information that is material in determining eligibility
for, or the amount of, benefits, if the person knows, or should know,
that the withholding of such information is misleading.
- Would be effective with respect to violations committed
after the date on which the Commissioner implements the centralized computer
file required under the following section.
Issuance by Commissioner
of Social Security of Receipts to Acknowledge Submission of Reports of
Changes in Work or Earnings Status of Disabled Beneficiaries
- Would require the Commissioner to issue a receipt to
disabled beneficiaries each time they report their work and earnings.
- Would be effective as soon as possible, but no later
than 1 year after enactment and until such time as the Commissioner implements
centralized computer file.
Denial of Title II
Benefits to Persons Fleeing Prosecution, Custody, or Confinement, and to
Persons Violating Probation or Parole
- Would prohibit Title II benefits to persons fleeing prosecution,
custody, or confinement after conviction and to persons violating probation
or parole, unless the Commissioner determines that good cause exists
for paying such benefits. Would amend the current prohibition of paying SSI benefits
to fugitive felons so that the good cause provision would apply to Title XVI.
- Would require the Commissioner to apply the good cause
exception if a court of competent jurisdiction finds the person not guilty,
charges are dismissed, a warrant for arrest is vacated, or there are
similar exonerating circumstances identified by the court. The Commissioner
would also apply the good cause exception if the individual establishes
to the satisfaction of the Commissioner that he or she was the victim
of identity fraud and the warrant was issued on such basis.
- Would provide that the Commissioner may apply the good
cause exception if the criminal offense was non-violent and not drug-related,
and in the case of probation or parole violators, both the violation
and the underlying offense were non-violent and not drug-related. In
such cases, the Commissioner may establish good cause based on mitigating
factors.
- Would also provide, if not in violation of Federal or
State law and upon written request, the Commissioner furnish law enforcement
officers the current address, SSN and photograph (if applicable) if necessary
for the officer to perform his duties with respect to locating and apprehending
the beneficiary.
- Would be effective the first day of the month beginning
on or after the date that is 9 months after enactment.
Requirements Relating
to Offers to Provide for a Fee, a Product, or Service Available without
Charge from the Social Security Administration
- Would amend Section 1140 by adding a mandatory requirement
that persons or companies include in their solicitations a statement
that services which they provide for a fee are available directly from
SSA free of charge.
- Would require that the statements comply with standards
promulgated by the Commissioner with respect to their content, placement,
visibility, and legibility.
- Would be effective for offers of assistance made after
sixth month after enactment.
- Would require that regulations be promulgated within
1 year after enactment.
Refusal to Recognize Certain Individuals as Claimant
Representatives
- Would provide that the Commissioner may, with notice
and an opportunity to respond, disqualify or prohibit from further practice
before SSA an attorney or non‑attorney representative who has been
disbarred, debarred, prohibited, or suspended from any court or bar to
which he or she was previously admitted to practice, or disbarred or
suspended from representing individuals before any other Federal agency
or program.
- Would be effective upon enactment.
Criminal Penalty for
Corrupt or Forcible Interference with Administration of Social Security
Act
- Would impose penalties for any attempt to intimidate
or impede (by force or threats of force) any officer, employee, or contractor
of the United States acting in an official capacity under the Social
Security Act and for any effort to otherwise obstruct or impede the administration
of the Social Security Act. Upon conviction of the use of force, the
maximum penalties would be $5,000 and/or 3-years imprisonment. Upon
conviction of the use of threat, but not force, the maximum penalties
would be no more than $3,000 and/or one-year imprisonment.
- Would be effective upon enactment.
Use of Symbols, Emblems, or Names in Reference to Social Security or Medicare
- Would update section 1140 for HCFA's new name (Centers
for Medicare and Medicaid Services). The section adds Death Benefits
Update, Federal Benefits Information, Funeral Expenses, etc. as items
prohibited from the use of symbols, emblems or names that may provide
a false impression that the item is approved or endorsed by SSA, CMS
or HHS.
- Would be effective for items sent 180 days after enactment.
Disqualification from
Payment During Trial Work Period Upon Conviction of Fraudulent Concealment
of Work Activity
- Would provide that an individual who is convicted by
a Federal court of fraudulently concealing work activity during the trial
work period (TWP) would not be entitled to receive
a disability benefit for TWP months that occur prior to
the conviction but within the same period of disability. If payment has
already been made, he or she is liable for repayment plus restitution, fines, penalties
and assessments.
- Would be effective with respect to work activity performed
after date of enactment.
Authority for Judicial Orders of Restitution
- Would authorize Federal courts to order a defendant convicted
of defrauding Social Security, Special Veterans' Benefits or SSI to make
restitution to SSA.
- Would provide that restitution funds received would be
deposited to the trust funds or general fund of the Treasury, as appropriate.
- Would be effective with respect to violations occurring
on or after enactment.
Authorize Cross-Program
Recovery for Benefit Overpayments
- Would allow the Social Security Administration to more
fully recover overpayments paid under one program from the benefits paid
under another program.
- Would provide for withholding up to 100% of any underpayment
and 10% of ongoing monthly benefits. To protect low-income beneficiaries,
any recovery from SSI would be limited to the lesser of 100% of the monthly
benefit or 10% of individual's total monthly income.
- Would be effective with respect to overpayments that
are outstanding at the time of enactment.
Prohibit Benefits
to Persons Not Authorized to Work in the United States
- Would provide that the payment of Title II benefits based
on the earnings of any noncitizen would be precluded unless (1) the noncitizen
had ever been issued an SSN indicating authorization to work in the United
States, or (2) the noncitizen, at the time any quarters of coverage are
earned, was admitted to the United States under a B1 visa (for business
purposes) or D visa (crew member--e.g., for an airline).
- Would be effective with respect to Social Security numbers
issued on or after January 1, 2004.
Cap on Attorney Assessments
- Would cap the assessment for SSA processing attorney
fees at $75 or 6.3% of attorney fee, whichever is lower.
- Would adjust cap based on annual COLA's rounded down
to next lower $1.
- Would be effective 180 days after enactment.
Temporary Extension
of Attorney Fee Payment System to Title XVI Claims
- Would extend the current Title II attorney fee withholding
process to Title XVI for a period of five years.
- Would cap the assessment for SSA processing attorney
fees at $75 or 6.3% of attorney fee, whichever is lower.
- Would adjust cap based on annual COLA's rounded down
to next lower $1.
- Assessments would be deposited as miscellaneous receipts
in the Treasury's general funds and would be available for obligation
only as appropriated.
- Would be effective with respect to fees that are first
required to be certified or paid on or after the date the Commissioner
submits to Congress written notice of full implementation of the requirements
for operation of the demonstration project under section 303 of the Social
Security Act.
Nationwide
Demonstration Project Providing for Extension of Fee Withholding Procedures
to Non-Attorney Representatives
- Would authorize a demonstration project to allow non-attorneys
the option of fee withholding under both Title II and Title XVI for 5
years.
- Would require that non-attorney representatives to meet
at least the following pre-requisites: hold a bachelor's degree, pass
an examination written and administered by the Commissioner, secure professional
liability insurance or the equivalent, undergo a criminal background
check, and complete continuing education courses.
- Would allow the Commissioner to charge a reasonable fee
to cover the costs of administering the prerequisites.
- Would cap the assessment for SSA processing non-attorney
fees at $75 or 6.3% of the fee, whichever is lower.
- Would adjust cap based on annual COLA's rounded down
to next lower $1.
- Assessments would be deposited in the Treasury's general
funds as miscellaneous receipts or in the OASDI funds as determined appropriate
by the Commissioner and would be available for obligation only as appropriated.
- Would require the Commissioner to take the actions needed
to fully implement the project and report these actions to Congress no
later than one year after enactment; and thereafter to submit annual
interim reports on the progress of the demonstration and a final report
after the conclusion.
GAO Study Regarding the Fee Payment Process for Claimant
Representatives
- Would require the General Accounting Office to study
the results of extending fee withholding to Title XVI and to non-attorneys
under both Title II and Title XVI.
- Would require GAO to provide a comprehensive overview
of the appointment and payment of claimant representatives. Report is
to include a survey of all representatives and compare outcomes by the
type of representative.
- Report would be due no later than 3 years after date
of enactment.
Application of Demonstration Authority Sunset Date to New Projects
- Would extend the demonstration authority through December 18, 2005, and would allow projects initiated by December 17, 2005 to
be completed thereafter. The current authority expires on December
17, 2004.
Expansion of Waiver
Authority Available in Connection with Demonstration Projects Providing
for Reductions in Disability Insurance Benefits Based on Earnings
- Would provide the Commissioner with the authority to
waive requirements of
section 1148 of the Social Security Act for the mandated
demonstration projects.
- Would be effective upon enactment.
Funding of Demonstration
Projects Provided for Reductions in Disability Insurance Benefits Based
on Earnings
- Would clarify that the cost of paying increased benefits
will not be appropriated while the administrative costs associated with
the demonstration projects will come normally from funds available for
administration.
- Would be effective upon enactment.
Availability of Federal and State Work Incentive Services to Additional Individuals
- Would allow Benefits Planning, Assistance, and Outreach
(BPAO) services and Protection and Advocacy (P&A) systems services
to be provided to those beneficiaries in section 1619(b) status, those
beneficiaries receiving only a State Supplement payment, and those beneficiaries
in an extended period of Medicare eligibility under Title XVIII after
a period of disability under Title II has ended.
- Would allow P&A System services to include those
needed to maintain employment (in addition to those needed to secure
or regain it).
- Would be effective with respect to: (1) grants, cooperative
agreements or contracts entered into on or after the date of enactment;
and, (2) payments provided after the date of enactment.
Technical Amendment
Clarifying Treatment for Certain Purposes of Individual Work Plans under
the Ticket to Work and Self-Sufficiency Program
- Would
treat an individual receiving vocational rehabilitation pursuant to an
individual work plan established under the Ticket to Work program the same
as an individual with an individualized work plan under a State plan for
vocational rehabilitation services approved under the Rehabilitation Act
of 1973, thereby making employers who hire such individuals eligible for
the worker opportunity tax credit.
- Would
be effective as if enacted in section 505 of P.L. 106-170 (i.e., applies
to individuals who began work for the employer
after June 30, 1999).
GAO Report on Ticket
to Work
- Would require that GAO study and report on the effectiveness
of the Ticket to Work program, including the annual and interim reports
issued, effectiveness of program activities, and any recommended changes.
- The report would be due no later than one year after
the date of enactment.
Reauthorization of Appropriations for Certain Work Incentives Programs
- Would extend the authorization to provide appropriate
funding for the BPAO program and the State P&A systems established
by the Ticket to Work Act through fiscal year 2009.
Elimination of Transcript
Requirement in Remand Cases Fully Favorable to the Claimant
- Would provide that the Agency does not have to prepare
and file a transcript with the district court after a court-ordered remand
for further administrative proceedings results in a fully-favorable award
of benefits.
- Would be effective with respect to determinations made
upon remand on or after the date of enactment.
Nonpayment of Benefits upon Removal from the United States
- Would end the exemption from nonpayment of benefits for
aliens removed from the United States for smuggling other aliens into the United States.
- Would apply to removal notices received from the Attorney
General and Secretary of Homeland Security after the date of enactment.
Reinstatement of Certain Reporting Requirements
- Would continue the requirement for the Board of Trustees
report on the OASDI, HI, and SMI trust funds, continuing disability reviews
reports, and the disability preeffectuation review report.
- Would be effective upon enactment.
Clarification of Definitions Regarding Certain Survivor Benefits
- Would provide a limited exception to the 9-month duration-of-marriage
requirement for widow(er)'s benefits. This exception would apply in
cases in which the marriage was postponed by legal impediments caused
by State restrictions on divorce due to mental incompetence or similar
incapacity.
- Would apply to applications filed during months ending
after the date of enactment.
Clarification Respecting
the FICA and SECA Tax Exemptions for an Individual Whose Earnings Are Subject
to the Laws of a Totalization Agreement Partner
- Would provide clear legal authority to exempt a worker's
earnings from U.S. Social Security tax in cases where their earnings
were subject to a foreign country's laws in accordance with a U.S. totalization
agreement, but the foreign country's law does not require compulsory
contributions with respect to those earnings.
- Would be effective upon enactment.
Coverage under Divided Retirement System for Public Employees in Kentucky and Louisiana
- Would extend the authority to establish a divided retirement
system to Kentucky and Louisiana.
- Would be effective on January
1, 2003.
Compensation for the Social Security Advisory Board
- Would establish compensation for Social Security Advisory
Board members at the daily rate of basic pay for level IV of the Senior
Executive Schedule for each day in which the member is engaged in the
business of the Board.
- Would be effective January
1, 2003.
60-Month Period
of Employment Requirement for Application of Government Pension Offset
Exemption
- Would require that State and local government workers
be covered by Social Security throughout their last 60 months (5 years)
of employment with the government entity in order to be exempt from the
government pension offset provision.
- Would be effective for applications filed after the month
of enactment. However, the change would not apply to applications filed
after the month of enactment if the worker's last day of government employment
occurs before July 1, 2004.
- In addition, provides for a transition for workers whose
last day of government employment occurs within 5 years after the date
of enactment. For those workers, requirement for the 60 consecutive
months of covered employment shall be reduced (but not to less than one
month) by the number of months in aggregate the worker had in covered
government service under the same retirement system before the date of
enactment. If the 60-month period is reduced, the months of service
needed to fulfill this requirement must be performed after the date of
enactment.
Disclosure to Workers
of Effect of Windfall Elimination Provision and Government Pension Offset
Provision
- Would require SSA to send a modified Social Security
Statement to non-covered employees that describes the potential benefit
reductions that may result from the receipt of a Federal, State, or local
government pension based on employment that is not subject to Social
Security payroll taxes. Would be effective for statements issued on
or after January
1, 2007.
- Would also require government employers to notify non-covered
employees hired on or after January
1, 2005, of the potential effect of
non-covered work on their Social Security benefits.
Post-1956 Military
Wage Credits
- Would transfer from general funds the remaining balance
owed to the Social Security and Medicare trust funds for deemed military
wage credits for 2000 and 2001 and make conforming amendments to reflect
the termination of deemed military wage credits.
- Would be effective no later than July 1, 2004.
Elimination
of Disincentive to Return-To-Work for Childhood Disability Beneficiaries
Technical Correction Relating to Retirement Benefits of Ministers
- Would provide a conforming change to the Social Security
Act to exclude, for Social Security benefit purposes, certain benefits
received by retired ministers and members of religious orders. This
would conform the treatment of these benefits to their treatment for
Social Security tax purposes.
- Would be effective for years beginning before, on, or
after December 31, 1994.
Technical Corrections Relating to Domestic Employment
- Would provide that references to domestic employment
be removed from the provisions in the law that define agricultural employment,
and the provisions that define domestic employment would specify that
domestic employment includes domestic service performed on a farm.
- Would be effective upon enactment.
Technical Corrections of Outdated References
- Would correct various outdated references in the Social
Security Act and related laws. Over the years, provisions of the Social
Security Act, the Internal Revenue Code, and other laws have been deleted,
re-designated, or otherwise amended.
Technical Correction
Respecting Self-Employment Income in Community Property States
- Would conform the provision in the Social Security Act
and the Internal Revenue Code to current practice in both community property
and non-community property States--to provide that income from a trade
or business that is not a partnership will be taxed and credited to the
spouse who is carrying on the trade or business or to each spouse based
on their distributive share of the gross earnings, if jointly operated.
- Would be effective upon enactment.
Technical Changes
to the Railroad Retirement and Survivors' Improvement Act of 2001
- Would make a number of technical and clerical changes
regarding Railroad Retirement Investment Trust relating to quorum rules,
transfers, investments, administrative expenses and exemption from State
and local taxes.
- Would be effective upon enactment.
Exclusion from
Income for Certain Infrequent or Irregular Income and Certain Interest
or Dividend Income
- Would change the calculation of infrequent and irregular
income from a monthly to a quarterly basis. Also would exclude from the
determination of an individual's income all interest and dividend income
earned on countable resources.
- Would be effective with respect to benefits payable for
months that begin more than 90 days after the date of enactment.
Uniform 9-Month
Resource Exclusion Periods
- Would increase to 9 months and make uniform the time
period for excluding from resources amounts attributable to payments
of past-due Social Security and SSI benefits and earned income and child
tax credits.
- Would be effective for benefits payable on or after the
date of enactment.
Elimination of
Certain Restrictions on the Application of the Student Earned Income
Exclusion
- Would permit the student earned income exclusion to apply
to any individual under age 22 who is a student. Thus, students under
age 22 who are married or heads of households would be eligible for the
exclusion.
- Would be effective for benefits payable beginning 1 year
after month of enactment.
Exception to Retrospective
Monthly Accounting for Nonrecurring Income
- Would eliminate triple counting by providing that one-time,
nonrecurring income would be counted only for the month that the income
is received, and not for any other month during the transition to retrospective
monthly accounting during the first 3 months of an individual's SSI eligibility.
- Would be effective for benefits payable for months that
begin on or after 1 year after the date of enactment.
Removal of Restriction
on Payment of Benefits to Children Who Are Born or Who Become Blind or
Disabled after Their Military Parents Are Stationed Overseas
- Would extend the current law exception for SSI eligibility
for blind and disabled children of military personnel whose eligibility
is established prior to their going overseas to blind and disabled children
of military personnel who were born overseas, who became blind or disabled
while overseas, or who first applied for SSI benefits overseas.
- Would be effective for benefits payable for months beginning
after enactment, but only on the basis of an application filed after
enactment.
Treatment of Education-Related
Income and Resources
- Would exclude from the determination of income any gift
to an individual for use in paying tuition or educational fees, just
as grants, scholarships and fellowships for such use are currently excluded
from the determination of income.
- Would also exclude grants, scholarships, fellowships,
or gifts to be used for tuition or education fees from an individual's
countable resources for 9 months after the month of receipt.
- Would be effective for benefits payable for months that
begin more than 90 days after the date of enactment.
Monthly Treatment
of Uniformed Service Compensation
- Would count cash military compensation as reported on
a monthly leave and earnings statement issued by the military, which
reflects compensation earned in the prior month, as received in the prior
month.
- Would be effective for benefits payable for months that
begin more than 90 days after the date of enactment.
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