Federal Register: June 11, 2009 (Volume 74, Number 111)
DOCID: fr11jn09-24 FR Doc E9-13621
SOCIAL SECURITY ADMINISTRATION
Social Security Administration
CFR Citation: 20 CFR Part 416
Docket ID: [Docket No. SSA-2008-0051]
RIN ID: RIN 0960-AF97
NOTICE: PROPOSED RULES
DOCID: fr11jn09-24
DOCUMENT ACTION: Notice of proposed rulemaking.
SUBJECT CATEGORY:
Exclusion of Certain Military Pay From Deemed Income and Resources
DATES: To be sure that we consider your comments, we must receive them no later than August 10, 2009.
DOCUMENT SUMMARY:
We propose to revise our rules to clarify that, for Supplemental Security Income (SSI) purposes, we do not consider any combatrelated military pay as income when we determine whether spouses and children of members of the uniformed services are eligible for SSI. The proposed rules also would clarify that we do not consider combat related military pay as income when we determine the spouse's or child's proper payment amount. These proposed rules also would provide that, when we determine whether spouses and children are eligible for SSI, we do not consider retroactive payments of certain military pay as resources for 9 months following receipt. These proposed rules would protect spouses and children of members of the uniformed services from a reduction in, or loss of, benefits because their spouse or parent serves in a combat zone.
SUMMARY:
Exclusion of Certain Military Pay from Deemed Income and Resources
SUPPLEMENTAL 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
The SSI program provides a minimum income level for aged, blind, and disabled persons who do not have income or resources above levels specified in the Social Security Act (the Act). The Act generally requires that when we determine a person's eligibility for, and amount of, SSI benefits, we must consider the income and resources of an ineligible spouse living in the same household and, in the case of a child under the age of 18, an ineligible parent living in the same household (and the spouse of such a parent). Section 1614(f) of the Act, 42 U.S.C. 1382c(f). We use the term ``deeming'' to refer to the process of considering part of an ineligible spouse's or parent's income and resources to be the person's own income and resources.
Although a member of the uniformed services on active duty is unlikely to apply or be eligible for SSI benefits, some members of the uniformed services have spouses or children who receive or may apply for SSI benefits. For purposes of deeming, the Act provides that a spouse or parent who is absent from the household solely because of a duty assignment as a member of the Armed Forces generally will be treated as if he or she were living in the household. Section 1614(f)(4) of the Act, 42 U.S.C. 1382c(f)(4). Therefore, we generally deem income and resources of the member of the uniformed services to his spouse or child when determining the spouse's or child's eligibility for, and amount of, SSI benefits. Because we consider the member of the uniformed services as part of the household, we do not treat his military pay as unearned income from a source outside of the household.
Although we generally deem income of a member of the uniformed services to his spouse or child, the Act excludes from income certain kinds of pay that members of the uniformed services may receive. Section 1612(b)(20) of the Act, 42 U.S.C. 1382a(b)(20). In particular, we exclude from income special pay received pursuant to 37 U.S.C. 310. Members of the uniformed services are eligible for special pay during months in which they are subject to hostile fire or certain other dangerous conditions specified in 37 U.S.C. 310. Our current regulations implementing section 1612(b)(20) of the Act exclude ``hostile fire pay'' received under 37 U.S.C. 310 from income and from deeming to spouses and children. 20 CFR 416.1124(c)(19) and 416.1161(a)(23). We are proposing to replace the term ``hostile fire pay'' in these sections of our rules with the term ``special pay'' to clarify that we exclude from income all special pay that a member of the uniformed services received pursuant to 37 U.S.C. 310.
We are also proposing to add a new paragraph to our rules on deeming of income to spouses and children that excludes from deeming additional types of combatrelated pay beyond special pay under 37 U.S.C. 310. The Act allows us to waive the deeming of income and resources to a spouse or child when we determine that deeming would be inequitable. Section 1614(f) of the Act, 42 U.S.C. 1382c(f). Effective October 1, 2002, we issued instructions under this statutory authority to exclude from a spouse's or child's deemed income any additional pay that members of the uniformed services received because they were deployed to or served in a combat zone. We determined that it would be inequitable to deem that pay as income and reduce a family member's benefits or potentially render the family member ineligible for SSI. We are now proposing to incorporate this exclusion and the definition of the term ``combat zone'' in our SSI rules.
We are also proposing to revise our rules on deeming of resources to spouses and children to exclude retroactive payments of certain kinds of military pay for 9 months following receipt. Congress has retroactively and permanently increased the amount of special pay under 37 U.S.C. 310 and the family separation allowance under 37 U.S.C. 427. Pursuant to section 1614(f) of the Act, we issued instructions excluding retroactive payments of the increase in special pay received after September 2002 from a spouse's or child's deemed resources for a period of 9 months following the month of receipt. Our instructions similarly excluded retroactive payments of the family separation allowance that a member of the uniformed services received as a result of deployment to or service in a combat zone. We determined that it would be inequitable to apply the usual resource deeming rules to these retroactive payments in recognition of the hardships experienced and sacrifices made by members of the uniformed services and their families. We are now proposing to revise our SSI rules to incorporate these exclusions.
Finally, we are proposing to revise the punctuation at the conclusion of Sec. 416.1161(a)(25), (a)(26), and (a)(27). We are also proposing to clarify some of the language in Sec. 416.1202(a) and (b)(1) and to reorganize portions of Sec. 416.1202(b)(1) to make that section easier to understand. We are proposing these changes solely to improve the clarity of these rules, and these changes would have no substantive effect on our policies or procedures.
Explanation of Proposed Changes
We propose to amend the regulations in 20 CFR, part 416, subparts K and L, to reflect the changes discussed above. In summary, we propose to:
1. Revise Sec. 416.1124(c)(19) and Sec. 416.1161(a)(23) to replace the term ``hostile fire pay'' with the term ``special pay.'' We propose this technical clarification to conform the regulatory language to the statutory language in section 1612(b)(20) of the Act.
2. Amend Sec. 416.1160(d) to add a definition of the term ``combat zone.''
3. Amend Sec. 416.1161 by adding new paragraph (a)(28) to exclude
from income deemed from an ineligible spouse or parent any additional increment in pay, other than any
[[Page 27729]]
increase in basic pay (e.g., annual pay raises, promotions), if:
4. Revise the punctuation at the conclusion of paragraphs (a)(25), (a)(26), and (a)(27) of Sec. 416.1161.
5. Revise paragraphs (a) and (b)(1) of Sec. 416.1202 to exclude
from resources deemed from an ineligible spouse or parent (or spouse of
a parent), for 9 months following the month of receipt, the unspent portion of any retroactive payment of:
6. Clarify some language in paragraphs (a) and (b)(1) of Sec. 416.1202, and reorganize portions of paragraph (b)(1).
Clarity of These Rules
Executive Order (E.O.) 12866, as amended, 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 them easier to understand.
For example:
Regulatory Procedures
Executive Order 12866
We have consulted with the Office of Management and Budget (OMB) and determined that these proposed rules meet the requirements for a significant regulatory action under Executive Order 12866, as amended. Thus, they were subject to OMB review.
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. Therefore, a regulatory flexibility analysis as provided in the Regulatory Flexibility Act, as amended, is not required.
Paperwork Reduction Act
These proposed rules do not pose any public reporting requirements
and are, therefore, not subject to the requirements of the Paperwork Reduction Act.
(Catalog of Federal Domestic Assistance Program No. 96.006, Supplemental Security Income)
List of Subjects in 20 CFR Part 416
Administrative practice and procedure; Aged, Blind, Disability
benefits; Public assistance programs; Reporting and recordkeeping requirements; Supplemental Security Income (SSI).
Dated: June 3, 2009.
Michael J. Astrue,
Commissioner of Social Security.
For the reasons set out in the preamble, we propose to amend
subparts K and L of part 416 of chapter III of title 20 Code of Federal Regulations as set forth below:
PART 416SUPPLEMENTAL SECURITY INCOME FOR THE AGED, BLIND, AND DISABLED
Subpart K[Amended]
1. The authority citation for subpart K of part 416 continues to read as follows:
Authority: Secs. 702(a)(5), 1602, 1611, 1612, 1613, 1614(f), 1621, 1631, and 1633 of the Social Security Act (42 U.S.C. 902(a)(5), 1381a, 1382, 1382a, 1382b, 1382c(f), 1382j, 1383, and 1383b); sec. 211, Public Law 9366, 87 Stat. 154 (42 U.S.C. 1382 note).
2. Amend Sec. 416.1124 by revising paragraph (c)(19) to read as follows:
Sec. 416.1124 Unearned income we do not count.
* * * * *
(c) * * *
(19) Special pay received from one of the uniformed services pursuant to 37 U.S.C. 310;
* * * * *
3. Amend Sec. 416.1160 by adding the definition of ``Combat zone'' in paragraph (d) to read as follows:
Sec. 416.1160 What is deeming of income?
* * * * *
(d) * * *
Combat zone means
(i) Any area the President of the United States designates by
Executive Order under 26 U.S.C. 112 as an area in which Armed Forces of the United States are or have engaged in combat;
(ii) A qualified hazardous duty area (QHDA) Congress designates be
treated in the same manner as an area designated by the President under
26 U.S.C. 112, provided the member of the uniformed services serving in
this area is entitled to special pay under 37 U.S.C. 310; or
(iii) An area where the Secretary of Defense or his designated
representative has certified that Armed Forces members provide direct
support for military operations in an area designated by the President
under 26 U.S.C. 112 or a QHDA, provided the member of the uniformed
services serving in the area certified by the Secretary of Defense or
his designated representative is entitled to special pay under 37 U.S.C. 310.
* * * * *
4. Amend Sec. 416.1161 as follows:
a. Amend paragraph (a)(23) by removing the words ``Hostile fire pay'' and adding the words ``Special pay'' in their place;
b. Remove the word ``and'' at the end of paragraph (a)(25);
c. Remove the period at the end of paragraph (a)(26) and add a semicolon in its place;
d. Remove the period at the end of paragraph (a)(27) and add ``; and'' in its place; and
e. Add paragraph (a)(28) to read as follows:
Sec. 416.1161 Income of an ineligible spouse, ineligible parent, and essential person for deeming purposes.
* * * * *
(a) * * *
(28) Any additional increment in pay, other than any increase in
basic pay, received while serving as a member of the uniformed services, if
(i) Your ineligible spouse or parent received the pay as a result of deployment to or service in a combat zone; and
(ii) Your ineligible spouse or parent was not receiving the
additional pay immediately prior to deployment to or service in a combat zone.
* * * * *
SUBPART L[Amended]
5. The authority citation for subpart L of part 416 continues to read as follows:
Authority: Secs. 702(a)(5), 1602, 1611, 1612, 1613, 1614(f),
1621, 1631, and 1633 of the Social Security Act (42 U.S.C. 902(a)(5),
[[Page 27730]]
1381a, 1382, 1382a, 1382b, 1382c(f), 1382j, 1383, and 1383b); sec. 211, Public Law 9366, 87 Stat. 154 (42 U.S.C. 1382 note).
6. In Sec. 416.1202:
a. Revise the second sentence and remove the third sentence of paragraph (a);
b. Add new paragraphs (a)(1), (a)(2), and (a)(3); and
c. Revise paragraph (b)(1).
The additions and revisions read as follows:
Sec. 416.1202 Deeming of resources.
(a) * * * In addition to the exclusions listed in Sec. 416.1210, we also exclude the following items:
(1) Pension funds that the ineligible spouse may have. Pension
funds are defined as funds held in individual retirement accounts
(IRA), as described by the Internal Revenue Code, or in workrelated
pension plans (including such plans for selfemployed persons, sometimes referred to as Keogh plans);
(2) For 9 months beginning with the month following the month of
receipt, the unspent portion of any retroactive payment of special pay
an ineligible spouse received from one of the uniformed services pursuant to 37 U.S.C. 310; and
(3) For 9 months beginning with the month following the month of
receipt, the unspent portion of any retroactive payment of family
separation allowance an ineligible spouse received from one of the
uniformed services pursuant to 37 U.S.C. 427 as a result of deployment
to or service in a combat zone (as defined in Sec. 416.1160(d)). (b) * * *
(1) General. In the case of a child (as defined in Sec. 416.1856)
who is under age 18, we will deem to that child any resources, not
otherwise excluded under this subpart, of his ineligible parent who is
living in the same household with him (as described in Sec. 416.1851).
We also will deem to the child the resources of his ineligible
stepparent. As used in this section, the term ``parent'' means the
natural or adoptive parent of a child, and the term ``stepparent''
means the spouse (as defined in Sec. 416.1806) of such natural or
adoptive parent who is living in the same household with the child and
parent. We will deem to a child the resources of his parent and
stepparent whether or not those resources are available to him. We will
deem to a child the resources of his parent and stepparent only to the
extent that those resources exceed the resource limits described in
Sec. 416.1205. (If the child is living with only one parent, we apply
the resource limit for an individual. If the child is living with both
parents, or the child is living with one parent and a stepparent, we
apply the resource limit for an individual and spouse.) We will not
deem to a child the resources of his parent or stepparent if the child
is excepted from deeming under paragraph (b)(2) of this section. In
addition to the exclusions listed in Sec. 416.1210, we also exclude the following items:
(i) Pension funds of an ineligible parent (or stepparent). Pension
funds are defined as funds held in IRAs, as described by the Internal
Revenue Code, or in workrelated pension plans (including such plans
for selfemployed persons, sometimes referred to as Keogh plans);
(ii) For 9 months beginning with the month following the month of
receipt, the unspent portion of any retroactive payment of special pay
an ineligible parent (or stepparent) received from one of the uniformed services pursuant to 37 U.S.C. 310; and
(iii) For 9 months beginning with the month following the month of
receipt, the unspent portion of any retroactive payment of family
separation allowance an ineligible parent (or stepparent) received from
one of the uniformed services pursuant to 37 U.S.C. 427 as a result of
deployment to or service in a combat zone (as defined in Sec. 416.1160(d)).
* * * * *
[FR Doc. E913621 Filed 61009; 8:45 am]
BILLING CODE 419102P
FOR FURTHER INFORMATION CONTACT
Eric Skidmore, Social Insurance Specialist, Social Security Administration, Office of Income Security Programs, 252 Altmeyer Building, 6401 Security Boulevard, Baltimore, MD 212356401, (410) 5971833, for information about this notice. For information on eligibility or filing for benefits, call our national tollfree number, 18007721213 or TTY 18003250778, or visit our Internet site, Social Security Online, at http:// www.socialsecurity.gov.