20 CFR Part 408 — Special Benefits for Certain World War II Veterans

PART 408—SPECIAL BENEFITS FOR CERTAIN WORLD WAR II VETERANS Source: 68 FR 16418, Apr. 4, 2003, unless otherwise noted. Subpart A—Introduction, General Provision and Definitions Authority: Secs. 702(a)(5) and 801-813 of the Social Security Act (42 U.S.C. 902(a)(5) and 1001-1013). § 408.101 What is this part about? The regulations in this part 408 (Regulation No. 8 of the Social Security Administration) relate to the provisions of title VIII of the Social Security Act as added by Pub. L. 106-169 enacted December 14, 1999. Title VIII (Special Benefits for Certain World War II Veterans) established a program for the payment of benefits to certain World War II veterans. The regulations in this part are divided into the following subparts according to subject content. (a) Subpart A contains this introductory section, a statement of the general purpose underlying the payment of special benefits to World War II veterans, general provisions applicable to the program and its administration, and defines certain terms that we use throughout part 408. (b) Subpart B contains the requirements for qualification and entitlement to monthly title VIII benefits. (c) Subpart C contains the provisions relating to the filing and withdrawal of applications. (d) Subpart D contains the provisions relating to the evidence required for establishing qualification for and entitlement to monthly title VIII benefits. (e) Subpart E contains the provisions about the amount and payment of monthly benefits. (f) Subpart F is reserved for future use. (g) Subpart G contains the provisions on your requirement to report certain events to us. (h) Subpart H contains the provisions on suspension and termination of title VIII entitlement. (i) Subpart I contains the provisions on underpayments and overpayments. (j) Subpart J contains the provisions on determinations and the administrative review process. (k) Subpart K contains the provisions on claimant representation. (l) Subpart L contains the provisions on Federal administration of State recognition payments. [68 FR 16418, Apr. 4, 2003, as amended at 69 FR 25955, May 10, 2004] § 408.105 Purpose and administration of the program. The purpose of the title VIII program is to assure a basic income level for certain veterans who are entitled to supplemental security income (SSI) and who want to leave the United States to live abroad. The title VIII program is administered by the Social Security Administration. § 408.110 General definitions and use of terms. (a) Terms relating to the Act and regulations. The Act (2) Title (3) Section or § (b) Commissioner; Appeals Council; Administrative Law Judge defined Commissioner (2) Appeals Council (3) Administrative Law Judge (c) Miscellaneous A calendar month. (2) Federal benefit rate (FBR). (3) Qualified individual. (4) Special veterans benefits (SVB). (5) State. (i) A State of the United States (ii) The District of Columbia; or (iii) The Northern Mariana Islands. (6) Supplemental Security Income (SSI). (7) United States. (i) The 50 States; (ii) The District of Columbia; and (iii) The Northern Mariana Islands. (8) We, us our (9) World War II. (10) You your [68 FR 16418, Apr. 4, 2003, as amended at 85 FR 73158, Nov. 16, 2020] § 408.120 Periods of limitations ending on Federal nonworkdays. Title VIII of the Act and the regulations in this part require you to take certain actions within specified time periods or you may lose your right to a portion or all of your benefits. If any such period ends on a Saturday, Sunday, Federal legal holiday, or any other day all or part of which is declared to be a nonworkday for Federal employees by statute or Executive Order, you will have until the next Federal workday to take the prescribed action. Subpart B—SVB Qualification and Entitlement Authority: Secs. 702(a)(5), 801, 802, 803, 804, 806, 810 and 1129A of the Social Security Act (42 U.S.C. 902(a)(5), 1001, 1002, 1003, 1004, 1006, 1010 and 1320a-8a); Sec. 251, Pub. L. 106-169, 113 Stat. 1844. § 408.201 What is this subpart about? You are qualified for SVB if you meet the requirements listed in § 408.202 and if none of the conditions listed in § 408.204 exist. However, you cannot be entitled to receive benefits for any month before the first month in which you reside outside the United States on the first day of the month and meet all the qualification requirements. You must give us any information we request and evidence to prove that you meet these requirements. You continue to be qualified for SVB unless we determine that you no longer meet the requirements for qualification in § 408.202 or we determine that you are not qualified because one of the conditions listed in § 404.204 of this chapter exists. You continue to be entitled to receive benefits unless we determine you are no longer residing outside the United States. § 408.202 How do you qualify for SVB? You qualify for SVB if you meet all of the following requirements. (a) Age. (b) World War II veteran. (c) SSI eligible. (d) Application. (e) Other benefit income. § 408.204 What conditions will prevent you from qualifying for SVB or being entitled to receive SVB payments? (a) General rule. (1) Removal from the United States. (2) Fleeing felon. (3) Parole violation. (4) Residence in certain countries. (b) Condition occurs before we determine that you are qualified. (c) Condition occurs after we determine that you are qualified. § 408.206 What happens when you apply for SVB? (a) General rule. see (b) If you are a qualified individual residing in the United States. (1) You are qualified for SVB; (2) In order to become entitled to SVB, you will have to begin residing outside the United States by the end of the fourth calendar month after the month in which your notice of qualification is dated. For example, if our letter is dated May 15, you must establish residence outside the United States before October 1 of that year; and (3) What documents and information you must give us to establish that you are residing outside the United States. § 408.208 What happens if you establish residence outside the United States within 4 calendar months? If you begin residing outside the United States within 4 calendar months after the month in which your SVB qualification notice is dated, we will send you a letter telling you that you are entitled to SVB and the first month for which SVB payments can be made to you. The letter will also tell you the amount of your monthly benefit payments, whether your payments are reduced because of your other benefit income, and what rights you have to a reconsideration of our determination. § 408.210 What happens if you do not establish residence outside the United States within 4 calendar months? If you do not establish residence outside the United States within 4 calendar months after the month in which your SVB qualification notice is dated, we will deny your SVB claim. We will send you a notice explaining what rights you have to a reconsideration of our determination. You will have to file a new application and meet all the requirements for qualification and entitlement based on the new application to become entitled to SVB. § 408.212 What happens if you are a qualified individual already residing outside the United States? If you meet all the requirements for qualification listed in § 408.202 and if none of the conditions listed in § 408.204 exist, we will ask you for documents and information to establish your residence outside the United States. If you establish that you are residing outside the United States, we will send you a letter telling you that you are entitled to SVB and the first month for which SVB payments can be made to you. The letter will also tell you the amount of your monthly benefit payments, whether your payments are reduced because of your other benefit income, and what rights you have to a reconsideration of our determination. Age § 408.214 Are you age 65? You become age 65 on the first moment of the day before the anniversary of your birth corresponding to age 65. Thus, you must have been born on or before December 15, 1934 to be at least age 65 on December 14, 1999 and to qualify for SVB. Military Service § 408.216 Are you a World War II veteran? (a) Service requirements. (1) Served in the active military, naval or air service of the United States during World War II at any time during the period beginning on September 16, 1940 and ending on July 24, 1947; or (2) Served in the organized military forces of the Government of the Commonwealth of the Philippines, while the forces were in the service of the U.S. Armed Forces pursuant to the military order of the President dated July 26, 1941, including among the military forces organized guerrilla forces under commanders appointed, designated, or subsequently recognized by the Commander in Chief, Southwest Pacific Area, or other competent authority in the U.S. Army. This service must have been rendered at any time during the period beginning July 26, 1941 and ending on December 30, 1946. (b) Discharge requirements. SSI Eligibility § 408.218 Do you meet the SSI eligibility requirements? For SVB purposes, you are eligible for SSI for a given month if all of the following are met: (a) You have been determined to be eligible for SSI (except as noted in paragraph (c) of this section); you do not have to actually receive a payment for that month; (b) Your SSI eligibility has not been terminated for that month; and (c) Your SSI benefits are not subject to a penalty under § 416.1340 of this chapter. This includes months in which a penalty has been imposed, as well as months in which a penalty cannot be imposed because you are in SSI nonpay status for some other reason. Other Benefit Income § 408.220 Do you have other benefit income? (a) Description of other benefit income. (b) When other benefit payments are considered to be similar payments from the same or a related source. (c) Examples of other benefit income. (1) Veterans' compensation or pension, (2) Workers' compensation, (3) U.S. or foreign Social Security benefits (not including SSI payments from the U.S.), (4) Railroad retirement annuity or pension, (5) Retirement or disability pension, (6) Individual Retirement Account (IRA) payments, and (7) Unemployment insurance benefit. (d) If you receive a lump-sum payment. § 408.222 How does your other benefit income affect your SVB? (a) Income began before you qualify for SVB. (b) Income begins after you qualify for SVB. § 408.224 How do we determine the monthly amount of your other benefit income? If your other benefit income is paid in other than monthly amounts, we will compute the equivalent monthly amount as follows: (a) Weekly payments. (b) Bi-weekly payments. (c) Quarterly payments. (d) Semi-annual payments. (e) Lump sum payment. (1) If the payment is for a specific period. (2) If the payment is for a lifetime or for an unspecified period. § 408.226 What happens if you begin receiving other benefit income after you become entitled to SVB? If you begin receiving other benefit income after you become entitled to SVB, we will reduce your SVB by the amount of those payments only if you were receiving similar benefits from the same or a related source during the 12-month period before you filed for SVB. (See § 408.220(b) for a description of when we consider other benefit income to be from the same or a related source.) Residence Outside the United States § 408.228 When do we consider you to be residing outside the United States? (a) Effect of residency on SVB eligibility. (b) Definition of residing outside the United States. (1) Have established an actual dwelling place outside the United States; and (2) Intend to continue to live outside the United States. (c) When we will assume you intend to continue living outside the United States. § 408.230 When must you begin residing outside the United States? (a) 4-month rule. (b) When we will extend the 4-month period. (1) A determination that we made on your SVB claim, or (2) A determination that we made on a title II and/or a title XVI claim but only if the determination affects your SVB qualification. (c) How we extend the 4-month period. § 408.232 When do you lose your foreign resident status? (a) General rule. (1) Enter the United States and stay for more than 1 full calendar month (see § 408.234 for exceptions to this rule); (2) Tell us that you no longer consider yourself to be residing outside the United States; or (3) Become eligible (as defined by title XVI) for SSI benefits. (b) Resumption of SVB following a period of U.S. residence. Example: You leave your home outside the United States on June 15 to visit your son in the United States and return to your home abroad on August 15. Your SVB payments will continue for the months of June and July. However, because you were in the United States for the entire calendar month of July ( i.e., § 408.234 Can you continue to receive SVB payments if you stay in the United States for more than 1 full calendar month? (a) When we will consider your foreign residence to continue. (1) Made a good faith effort to return to your home abroad within that 1-month period but were prevented from doing so by circumstances beyond your control (e.g., sickness, a death in the family, a transportation strike, etc.); or (2) Are exercising your option to be personally present in the United States to present testimony and other evidence in the appeal of an SSA decision on a claim filed under any SSA-administered program. This extension applies only as long as you are participating in activities where you are providing testimony and other evidence in connection with a determination or decision at a specific level of the appeals process (e.g., a hearing before an administrative law judge). (b) When you must return to your home abroad. Subpart C—Filing Applications Authority: Secs. 702(a)(5), 802, 806, and 810 of the Social Security Act (42 U.S.C. 902(a)(5), 1102, 1106 and 1110); Sec. 251, Pub. L. 106-169, 113 Stat. 1844. Filing Your Application § 408.301 What is this subpart about? This subpart contains our rules about filing applications for SVB. It explains what an application is, who may sign it, where and when it must be signed and filed, the period of time it is in effect, and how it may be withdrawn. This subpart also explains when a written statement or an oral inquiry may be considered to establish your application filing date. § 408.305 Why do you need to file an application to receive benefits? In addition to meeting other requirements, you must file an application to become entitled to SVB. If you believe you may be entitled to SVB, you should file an application. Filing an application will— (a) Permit us to make a formal decision on whether you qualify for SVB; (b) Assure that you receive SVB for any months you are entitled to receive payments; and (c) Give you the right to appeal if you are dissatisfied with our determination. § 408.310 What makes an application a claim for SVB? To be considered a claim for SVB, an application must generally meet all of the following conditions: (a) It must be on the prescribed SVB application form (SSA-2000-F6, Application for Special Benefits for World War II Veterans). (b) It must be completed and filed with SSA as described in § 408.325. (c) It must be signed by you or by someone who may sign an application for you as described in § 408.315. (d) You must be alive at the time it is filed. § 408.315 Who may sign your application? (a) When you must sign. (b) When someone else may sign for you. (2) If it is necessary to protect you from losing benefits and there is good cause why you could not sign the application, we may accept an application signed by someone other than you or a person described in paragraph (b)(1) of this section. Example: Mr. Smith comes to a Social Security office a few days before the end of a month to file an application for SVB for his neighbor, Mr. Jones. Mr. Jones, a 68-year-old widower, just suffered a heart attack and is in the hospital. He asked Mr. Smith to file the application for him. We will accept an application signed by Mr. Smith because it would not be possible to have Mr. Jones sign and file the application until the next calendar month and a loss of one month's benefits would result. § 408.320 What evidence shows that a person has authority to sign an application for you? (a) A person who signs an application for you will be required to give us evidence of his or her authority to sign the application for you under the following rules: (1) If the person who signs is a court-appointed representative, he or she must give us a certificate issued by the court showing authority to act for you. (2) If the person who signs is not a court-appointed representative, he or she must give us a statement describing his or her relationship to you. The statement must also describe the extent to which the person is responsible for your care. (3) If the person who signs is the manager or principal officer of an institution which is responsible for your care, he or she must give us a statement indicating the person's position of responsibility at the institution. (b) We may, at any time, require additional evidence to establish the authority of a person to sign an application for you. § 408.325 When is your application considered filed? (a) General rule. (b) Exceptions. (2) We consider an application to be filed on the date of the filing of a written statement or the making of an oral inquiry under the conditions in §§ 408.340 and 408.345. (3) We will establish a deemed filing date of an application in a case of misinformation under the conditions described in § 408.351. The filing date of the application will be a date determined under § 408.351(b). § 408.330 How long will your application remain in effect? Your application for SVB will remain in effect from the date it is filed until we make a final determination on it, unless there is a hearing decision on your application. If there is a hearing decision, your application will remain in effect until the hearing decision is issued. Filing Date Based on Written Statement or Oral Inquiry § 408.340 When will we use a written statement as your filing date? If you file with us under the rules stated in § 408.325 a written statement, such as a letter, indicating your intent to claim SVB, we will use the filing date of the written statement as the filing date of your application. If the written statement is mailed, we will use the date the statement was mailed to us as shown by the United States postmark. If the postmark is unreadable or there is no United States postmark, we will use the date the statement is signed (if dated) or 5 days before the day we receive the written statement, whichever date is later, as the filing date. In order for us to use your written statement to protect your filing date, the following requirements must be met: (a) The statement indicates your intent to file for benefits. (b) The statement is signed by you, your spouse, or a person described in § 408.315. (c) You file an application with us on an application form as described in § 408.310(a), or one is filed for you by a person described in § 408.315, within 60 days after the date of a notice we will send advising of the need to file an application. The notice will say that we will make an initial determination of your qualification if an application form is filed within 60 days after the date of the notice. We will send the notice to you. However, if it is clear from the information we receive that you are mentally incompetent, we will send the notice to the person who submitted the written statement. (d) You are alive when the application is filed. § 408.345 When will we use the date of an oral inquiry as your application filing date? We will use the date of an oral inquiry about SVB as the filing date of your application for SVB if the following requirements are met: (a) The inquiry asks about your entitlement to SVB. (b) The inquiry is made by you, your spouse, or a person who may sign an application on your behalf as described in § 408.315. (c) The inquiry, whether in person or by telephone, is directed to an office or an official described in § 408.325(a). (d) You, or a person on your behalf as described in § 408.315, file an application on a prescribed form within 60 days after the date of the notice we will send telling of the need to file an application. The notice will say that we will make an initial determination on whether you qualify for SVB if an application form is filed within 60 days after the date of the notice. However, if it is clear from the information we receive that you are mentally incompetent, we will send the notice to the person who made the inquiry. (e) You are alive when the prescribed application is filed. Deemed Filing Date Based on Misinformation § 408.351 What happens if we give you misinformation about filing an application? (a) General rule. (b) Deemed filing date of an application based on misinformation. (1) If we determine that you failed to apply for SVB because we gave you misinformation about qualification for or entitlement to such benefits, we will deem an application for such benefits to have been filed with us on the later of— (i) The date on which we gave you the misinformation; or (ii) The date on which all of the requirements for qualification to SVB were met, other than the requirement of filing an application. (2) Before we may establish a deemed filing date of an application for SVB under paragraph (b)(1) of this section, you or a person described in § 408.315 must file an application for such benefits. (c) Requirements concerning the misinformation. (1) The misinformation must have been provided to you by one of our employees while he or she was acting in his or her official capacity as our employee. For purposes of this section, an employee includes an officer of SSA, an employee of a U.S. Foreign Service office, and an employee of the SSA Division of the Veterans Affairs Regional Office in the Philippines who is authorized to take and develop Social Security claims. (2) Misinformation is information which we consider to be incorrect, misleading, or incomplete in view of the facts which you gave to the employee, or of which the employee was aware or should have been aware, regarding your particular circumstances. In addition, for us to find that the information you were given was incomplete, the employee must have failed to provide you with the appropriate, additional information which he or she would be required to provide in carrying out his or her official duties. (3) The misinformation may have been provided to you orally or in writing. (4) The misinformation must have been provided to you in response to a specific request by you to us for information about your qualification for SVB. (d) Evidence that misinformation was provided. (1) Preferred evidence. (i) A notice, letter or other document which was issued by us and addressed to you; or (ii) Our record of your telephone call, letter or in-person contact. (2) Other evidence. (i) Your statements about the alleged misinformation, including statements about— (A) The date and time of the alleged contact(s); (B) How the contact was made, e.g., by telephone or in person; (C) The reason(s) the contact was made; (D) Who gave the misinformation; and (E) The questions you asked and the facts you gave us, and the questions we asked and the information we gave you, at the time of the contact; (ii) Statements from others who were present when you were given the alleged misinformation, e.g., a neighbor who accompanied you to our office; (iii) If you can identify the employee or the employee can recall your inquiry about benefits— (A) Statements from the employee concerning the alleged contact, including statements about the questions you asked, the facts you gave, the questions the employee asked, and the information provided to you at the time of the alleged contact; and (B) Our assessment of the likelihood that the employee provided the alleged misinformation; (iv) An evaluation of the credibility and the validity of your allegations in conjunction with other relevant information; and (v) Any other information regarding your alleged contact. (e) Information which does not constitute satisfactory proof that misinformation was given. (1) General informational pamphlets that we issue to provide basic program information; (2) General information which we review or prepare but which is disseminated by the media, e.g., radio, television, magazines, and newspapers; and (3) Information provided by other governmental agencies, e.g., the Department of Veterans Affairs (except for certain employees of the SSA Division of the Veterans Affairs Regional Office in the Philippines as provided in paragraph (c)(1) of this section), the Department of Defense, State unemployment agencies, and State and local governments. (f) Claim for benefits based on misinformation. (1) An application for SVB is filed with us by you or someone described in § 408.315 who may file. The application must be filed after the alleged misinformation was provided. This application may be— (i) An application on which we have made a previous final determination or decision awarding SVB, but only if the claimant continues to be entitled to benefits based on that application; (ii) An application on which we have made a previous final determination or decision denying the benefits, but only if such determination or decision is reopened; or (iii) A new application on which we have not made a final determination or decision. (2) The establishment of a deemed filing date of an application for benefits based on misinformation could result in entitlement to benefits or payment of additional benefits. (3) We have not made a previous final determination or decision to which you were a party on a claim for benefits based on alleged misinformation involving the same facts and issues. This provision does not apply, however, if the final determination or decision may be reopened. Withdrawal of Application § 408.355 Can you withdraw your application? (a) Request for withdrawal filed before a determination is made. You may withdraw your application for SVB before we make a determination on it if— (1) You, or a person who may sign an application for you under § 408.315, file a written request for withdrawal at a place described in § 408.325; and (2) You are alive at the time the request is filed. (b) Request for withdrawal filed after a determination is made. (c) Effect of withdrawal. § 408.360 Can you cancel your request to withdraw your application? You may request to cancel your request to withdraw your application and have your application reinstated if all of the following requirements are met: (a) You, or someone who may sign an application for you under § 408.315, file a written request for cancellation at a place described in § 408.325; (b) You are alive at the time you file your request for cancellation; and (c) A cancellation request received after we have approved your withdrawal must be filed no later than 60 days after the date of the notice of approval. Subpart D—Evidence Requirements Authority: Secs. 702(a)(5), 806, and 810 of the Social Security Act (42 U.S.C. 902(a)(5), 1006, and 1010); sec. 251, Pub. L. 106-169, 113 Stat. 1844. General Information § 408.401 What is this subpart about? We cannot determine your entitlement to SVB based solely on your statements about your qualification for benefits or other facts concerning payments to you. We will ask you for specific evidence or additional information. We may verify the evidence you give us with other sources to ensure that it is correct. This subpart contains our rules about the evidence you need to give us when you claim SVB. § 408.402 When do you need to give us evidence? When you apply for SVB, we will ask you for any evidence we need to make sure that you meet the SVB qualification and entitlement requirements. After you begin receiving SVB, we may ask you for evidence showing whether your SVB payments should be reduced or stopped. We will help you get any documents you need but do not have. If your evidence is a foreign-language record or document, we can have it translated for you. The evidence you give us will be kept confidential and not disclosed to anyone but you except under the rules set out in part 401 of this chapter. You should also be aware that section 811 of the Act provides criminal penalties for misrepresenting the facts or for making false statements to obtain SVB payments for yourself or someone else, or to continue entitlement to benefits. § 408.403 Where should you give us your evidence? You should give your evidence to the people at a Social Security Administration office. In the Philippines, you should give your evidence to the people at the Veterans Affairs Regional Office. Elsewhere outside the United States, you should give your evidence to the people at the nearest U.S. Social Security office or a United States Foreign Service Office. § 408.404 What happens if you fail to give us the evidence we ask for? (a) You have not yet qualified for SVB. (b) You have qualified for or become entitled to SVB. (c) If you need more time. § 408.405 When do we require original records or copies as evidence? (a) General rule. (b) Certified copies of original records. (1) The official custodian of the record; (2) A Social Security Administration employee authorized to certify copies; (3) A Veterans Affairs employee if the evidence was given to that agency to obtain veteran's benefits; (4) An employee of the Veterans Affairs Regional Office, Manila, Philippines who is authorized to certify copies; or (5) A U.S. Consular Officer or employee of the Department of State authorized to certify evidence received outside the United States. (c) Uncertified copies of original birth records. § 408.406 How do we evaluate the evidence you give us? When you give us evidence, we examine it to see if it is convincing evidence. This means that unless we have information in our records that raises a doubt about the evidence, other evidence of the same fact will not be needed. If the evidence you give us is not convincing by itself, we may ask you for additional evidence. In evaluating whether the evidence you give us is convincing, we consider such things as whether: (a) The information contained in the evidence was given by a person in a position to know the facts; (b) There was any reason to give false information when the evidence was created; (c) The information in the evidence was given under oath, or with witnesses present, or with the knowledge that there was a penalty for giving false information; (d) The evidence was created at the time the event took place or shortly thereafter; (e) The evidence has been altered or has any erasures on it; and (f) The information contained in the evidence agrees with other available evidence including our records. Age § 408.410 When do you need to give us evidence of your age? To qualify for SVB you must establish that you were age 65 or older on December 14, 1999, the date on which Public Law 106-169 was enacted into law. If we have already established your age or date of birth in connection with your claim for other benefit programs that we administer, you will not have to give us evidence of your age for your SVB claim. If we have not established your age or date of birth, you must give us evidence of your age or date of birth. In the absence of information to the contrary, we generally will not ask for additional evidence of your age or date of birth if you state that you are at least age 68, and you submit documentary evidence that is at least 3 years old when the application is filed and supports your statement. § 408.412 What kinds of evidence of age do you need to give us? For a description of the kinds of evidence of age you may need to give us, see § 416.802 of this chapter. § 408.413 How do we evaluate the evidence of age you give us? In evaluating the evidence of age you give us, we use the rules in § 416.803 of this chapter. Military Service § 408.420 What evidence of World War II military service do you need to give us? (a) Kinds of evidence you can give us. (b) What the evidence must show. (1) Your name; (2) The branch of service in which you served; (3) The dates of your military service; (4) Your military service serial number; (5) The character of your discharge; and (6) If your service was in the organized military forces of the Government of the Commonwealth of the Philippines (including the organized guerrilla forces), the period of your service that was under the control of U.S. Armed Forces. SSI Eligibility § 408.425 How do we establish your eligibility for SSI? To qualify for SVB, you must have been eligible for SSI for the month of December 1999, the month in which Public Law 106-169 was enacted, and for the month in which you filed your application for SVB. You do not have to submit evidence of this. We will use our SSI record of your eligibility to determine if you meet these requirements. Other Benefit Income § 408.430 When do you need to give us evidence of your other benefit income? If you tell us or if we have information indicating that you are receiving other benefit income that could affect your qualification for or the amount of your SVB payments, we will ask you to give us evidence of that income as explained in § 408.432. § 408.432 What kind of evidence of your other benefit income do you need to give us? As evidence of your other benefit income, we may require a document such as an award notice or other letter from the paying agency or written notification from the former employer, insurance company, etc. The evidence should show the benefit payable, the current amount of the payment, and the date the payment began. Residence § 408.435 How do you prove that you are residing outside the United States? (a) General rule. (1) Evidence of the date on which you arrived in the country in which you are residing; (2) A statement signed by you showing the address at which you are living and that you intend to continue living there; and (3) Evidence that you are actually living at the address given in your signed statement. (b) Evidence of the date you entered the foreign country. (1) A visa or passport showing the date you entered that country; (2) Your plane ticket showing the date you arrived in that country; or (3) An entry permit showing the date you entered that country. (c) Evidence of your actual place of residence. (1) A lease agreement showing where you live; (2) Rental or mortgage receipts; (3) Utility or other bills addressed to you at the address where you live; (4) A signed statement from a local official showing that he or she knows where you live, when you began living there and how he or she knows this information; or (5) A Standard Form 1199A, Direct Deposit Sign-Up Form, showing your address abroad and signed by an official of the financial institution after the date you arrived in the country in which you will be residing. § 408.437 How do you prove that you had good cause for staying in the United States for more than 1 full calendar month? (a) General rule. (b) Circumstances prevent you from returning to your home abroad. (1) Evidence of your good faith effort to return to your home abroad. (i) A plane ticket showing that you intended to return to your home abroad before the expiration of 1 full calendar month; or (ii) Notice from a travel agency or airline confirming the cancellation of your reservation to return to your home abroad on a date within 1 full calendar month. (2) Evidence of the circumstances preventing your return to your home abroad. (i) Newspaper article or other publication describing the event or natural disaster which prevented your return; or (ii) Doctor's statement, etc. showing that you are unable to travel; or (iii) Death certificate or notice if you are staying in the United States to attend the funeral of a member of your family. (c) You are appealing a decision we made. (d) When we may ask for more evidence. Subpart E—Amount and Payment of Benefits Authority: Secs. 702(a)(5), 801, 805, and 810 of the Social Security Act (42 U.S.C. 902(a)(5), 1001, 1005, and 1010); Sec. 251, Pub. L. 106-169, 113 Stat. 1844. § 408.501 What is this subpart about? This subpart explains how we compute the amount of your monthly SVB payment, including how we reduce your payments if you receive other benefit income. It also explains how we pay benefits under the SVB program. § 408.505 How do we determine the amount of your SVB payment? (a) Maximum SVB payment. (b) Cost-of-living adjustments in the FBR. (c) When we will reduce the amount of your basic benefit. § 408.510 How do we reduce your SVB when you receive other benefit income? (a) Amount of the reduction. (b) Minimum benefit amount. § 408.515 When do we make SVB payments? SVB payments are made on the first day of each month and represent payment for that month. If the first day of the month falls on a Saturday, Sunday, or Federal legal holiday, payment will be made on the first day preceding such day that is not a Saturday, Sunday, or Federal legal holiday. Subpart F—Representative Payment Authority: Secs. 205(j)(1)(C), 702(a)(5), 807, and 810 of the Social Security Act (42 U.S.C. 405(j)(1)(C), 902(a)(5), 1007, and 1010). Source: 69 FR 60235, Oct. 7, 2004, unless otherwise noted. § 408.601 What is this subpart about? (a) Explanation of representative payment. (b) Policy we use to determine whether to make representative payment. § 408.610 When will we send your SVB payments to a representative payee? In determining when we will pay your benefits to a representative payee, we follow the rules in § 404.2010(a) of this chapter. § 408.611 What happens to your monthly benefits while we are finding a suitable representative payee for you? For an explanation of the policy we use to determine what happens to your monthly benefits while we are finding a suitable representative payee for you, see § 404.2011 of this chapter. § 408.615 What information do we consider in determining whether we will pay your benefits to a representative payee? We determine whether to pay your benefits to a representative payee after considering the information listed in § 404.2015 of this chapter. § 408.618 Advance designation of representative payees. For information about advance designation, how to designate representative payees in advance, how to make changes to advance designations, how we consider an advance designation when we select a representative payee, how we consider an advance designation when we select a subsequent representative payee, and other relevant information, see §§ 404.2018, 404.2020, and 404.2021 of this chapter. [85 FR 7665, Feb. 11, 2020] § 408.620 What information do we consider in selecting the proper representative payee for you? To select a proper representative payee for you, we consider the information listed in § 404.2020 of this chapter. § 408.621 What is our order of preference in selecting a representative payee for you? We use the preference list in § 404.2021(a) of this chapter as a guide in selecting the proper representative payee for you. § 408.622 Who may not serve as a representative payee? For a list of individuals who may not serve as a representative payee, see § 408.624 How do we investigate a representative payee applicant? Before selecting an individual or organization as your representative payee, we investigate him or her following the rules in § 404.2024 of this chapter. § 408.625 What information must a representative payee report to us? Your representative payee must report to us information as described in § 404.2025 of this chapter. § 408.626 How do we investigate an appointed representative payee? After we select an individual as your representative payee, we investigate him or her following the rules in § 404.2026 of this chapter. [84 FR 4325, Feb. 15, 2019, as amended at 84 FR 57319, Oct. 25, 2019] § 408.630 How will we notify you when we decide you need a representative payee? (a) We notify you in writing of our determination to make representative payment. If you are legally incompetent, our written notice is sent to your legal guardian or legal representative. The notice explains that we have determined that representative payment is in your interest, and it provides the name of the representative payee we have selected. The notice: (1) Contains language that is easily understandable to the reader. (2) Identifies the person designated as your representative payee. (3) Explains that you, your legal guardian, or your legal representative can appeal our determination that you need a representative payee. (4) Explains that you, your legal guardian, or your legal representative can appeal our designation of a particular person to serve as representative payee. (b) If you, your legal guardian, or your legal representative objects to representative payment or to the designated payee, you can file a formal appeal. § 408.635 What are the responsibilities of your representative payee? For a list of your representative payee's responsibilities, see § 404.2035 of this chapter. § 408.640 How must your representative payee use your benefits? Your representative payee must use your benefits in accordance with the rules in § 404.2040 of this chapter. § 408.641 Who is liable if your representative payee misuses your benefits? For the rules we follow to determine who is liable for repayment of misused benefits, see § 404.2041 of this chapter. § 408.645 What must your representative payee do with unused benefits? If your representative payee has accumulated benefits for you, he or she must conserve or invest them as provided in § 404.2045 of this chapter. § 408.650 When will we select a new representative payee for you? We follow the rules in § 404.2050 of this chapter to determine when we will select a new representative payee for you. § 408.655 When will we stop making your payments to a representative payee? To determine when we will stop representative payment for you, we follow the rules in § 404.2055 of this chapter. § 408.660 What happens to your accumulated funds when your representative payee changes? For a description of what happens to your accumulated funds (including the interest earned on the funds) when we change your representative payee or when you begin receiving benefits directly, see § 404.2060 of this chapter. § 408.665 How does your representative payee account for the use of your SVB payments? (a) Your representative payee must account for the use of your benefits. We require written reports from your representative payee at least once a year. (b) Your representative payee is exempt from the accounting requirement when your representative payee is the spouse of an individual eligible for SVB payments. (c) We may verify how your representative payee used your benefits. Your representative payee should keep records of how benefits were used in order to provide accounting reports and must make those records available upon our request. If your representative payee fails to provide an annual accounting of benefits or other required report, we may require your payee to appear in person at the local Social Security field office or a United States Government facility that we designate serving the area in which you reside. The decision to have your representative payee receive your benefits in person may be based on a variety of reasons. Some of these reasons may include the payee's history of past performance or our past difficulty in contacting the payee. We may ask your representative payee to give us the following information: (1) Where you lived during the accounting period; (2) Who made the decisions on how your benefits were spent or saved; (3) How your benefit payments were used; and (4) How much of your benefit payments were saved and how the savings were invested. [87 FR 35653, June 13, 2022] Subpart G—Reporting Requirements Authority: Secs. 702(a)(5), 802, 803, 804, 806, 807, and 810 of the Social Security Act (42 U.S.C. 902(a)(5), 1002, 1003, 1004, 1006, 1007, and 1010). Source: 69 FR 25955, May 10, 2004, unless otherwise noted. § 408.701 What is this subpart about? To achieve efficient administration of the Special Veterans Benefit (SVB) program, we require you (or your representative) to report certain events to us. It is important for us to know about these events because they may affect your right to receive SVB or the amount of your benefits. This subpart tells you what events you must report; what your reports must include; how you should make your report; and when reports are due. § 408.704 Who must make reports? (a) If you receive your own benefits, you are responsible for making required reports to us. (b) If you have a representative payee, and you have not been legally adjudged incompetent, either you or your representative payee must make the required reports. (c) If you have a representative payee and you have been legally adjudged incompetent, you are not responsible for making reports to us; however, your representative payee is responsible for making required reports to us. § 408.708 What events must you report to us? This section describes the events that you must report to us. They are— (a) A change of address or residence. i.e. (b) A change in your other benefit income. (c) Certain deaths. (2) If you have a representative payee, you must report the death of your representative payee. (d) Entry into the United States. (e) Removal (including deportation) from the United States. (f) Fleeing to avoid criminal prosecution or custody or confinement after conviction, or violating probation or parole. (1) Fleeing to avoid prosecution, under the laws of the United States or the jurisdiction within the United States from which you flee, for a crime, or an attempt to commit a crime, which is a felony under the laws of the place from which you flee (or which, in the case of the State of New Jersey, is a high misdemeanor under the laws of that State); (2) Fleeing to avoid custody or confinement after conviction under the laws of the United States or the jurisdiction within the United States from which you flee, for a crime, or an attempt to commit a crime, which is a felony under the laws of the place from which you flee (or which, in the case of the State of New Jersey, is a high misdemeanor under the laws of that State); or (3) Violating a condition of probation or parole imposed under Federal or State law. § 408.710 What must your report include? When you make a report, you must tell us— (a) The name and social security number of the person to whom the report applies; (b) The event you are reporting and the date it happened; and (c) Your name if you are not the person to whom the report applies. § 408.712 How should you make your report? You should make your report in any of the ways described in this section. (a) Written reports. (b) Oral reports. (c) Other methods of reporting. § 408.714 When are reports due? (a) A reportable event happens. (b) We request a report. see Subpart H—Suspensions and Terminations Authority: Secs. 702(a)(5) and 810(d) of the Social Security Act (42 U.S.C. 902(a)(5) and 1010(d)). Source: 69 FR 25955, May 10, 2004, unless otherwise noted. § 408.801 What is this subpart about? This subpart explains the circumstances that will result in suspension of your SVB payments or termination of your SVB entitlement. Suspension § 408.802 When will we suspend your SVB payments? (a) When suspension is proper. see (b) Effect of suspension. § 408.803 What happens to your SVB payments if you fail to comply with our request for information? (a) Effective date of suspension. (b) Resumption of payments. (c) When we will not suspend your payments. § 408.806 What happens to your SVB payments if you are no longer residing outside the United States? (a) Suspension effective date. (b) Resumption of payments. § 408.808 What happens to your SVB payments if you begin receiving additional benefit income? (a) Suspension effective date. (b) Resumption of payments. § 408.809 What happens to your SVB payments if you are removed (including deported) from the United States? (a) Suspension effective date. (b) Resumption of payments. § 408.810 What happens to your SVB payments if you are fleeing to avoid criminal prosecution or custody or confinement after conviction, or because you violate a condition of probation or parole? (a) Basis for suspension. (1) Fleeing to avoid prosecution under the laws of the United States or the jurisdiction within the United States from which you flee for a crime, or attempt to commit a crime, that is a felony under the laws of the place from which you flee (or that, in the case of the State of New Jersey, is a high misdemeanor under the laws of that State); or (2) Fleeing to avoid custody or confinement after conviction under the laws of the United States or the jurisdiction within the United States from which you flee, for a crime, or an attempt to commit a crime, that is a felony under the laws of the place from which you flee (or that, in the case of the State of New Jersey, is a high misdemeanor under the laws of that State); or (3) Violating a condition of probation or parole imposed under Federal or State law. (b) Suspension effective date. (1) The month in which a warrant or order for your arrest or apprehension, an order requiring your appearance before a court or other appropriate tribunal (e.g., a parole board), or similar order is issued by a court or other duly authorized tribunal in the United States on the basis of an appropriate finding that you— (i) Are fleeing, or have fled, to avoid prosecution as described in paragraph (a)(1) of this section; (ii) Are fleeing, or have fled, to avoid custody or confinement after conviction as described in paragraph (a)(2) of this section; (iii) Are violating, or have violated, a condition of your probation or parole as described in paragraph (a)(3) of this section; or (2) The first month during which you fled to avoid such prosecution, fled to avoid such custody or confinement after conviction, or violated a condition of your probation or parole, if indicated in such warrant or order, or in a decision by a court or other appropriate tribunal in the United States. (c) Resumption of payments. § 408.812 What happens to your SVB payments if you are not a citizen or national of the United States and you begin residing in a Treasury-restricted country? (a) Suspension effective date. (b) Resumption of payments. Termination § 408.814 Can you request termination of your SVB entitlement? You, your legal guardian, or your representative payee, may voluntarily terminate your SVB entitlement by filing a written request for termination. If your representative payee requests termination, it must be shown that no hardship would result to you if the request is processed. When a termination request is filed, your SVB entitlement ends effective with the month following the month you file your request with us unless you specify some other month. However, we will not terminate your entitlement for any month for which payment has been or will be made unless you repay (or there is an assurance you will repay) any amounts paid for those months. When we process a voluntary request for termination of your SVB entitlement, we will send you a notice of our determination in accordance with § 408.1005. Once terminated, your entitlement can be reestablished only if you file a new application, except as provided by § 408.1009. § 408.816 When does SVB entitlement end due to death? Your SVB entitlement ends with the month in which you die. Payments are terminated effective with the month after the month of death. § 408.818 When does SVB entitlement terminate if your benefit payments have been in suspense for 12 consecutive months? We will terminate your SVB entitlement following 12 consecutive months of benefit suspension for any reason beginning with the first month you were no longer entitled to SVB. We will count the 12-month suspension period from the start of the first month that you are no longer entitled to SVB ( see § 408.820 Will we send you a notice of intended action affecting your SVB payment status? (a) Advance written notice requirement. see (b) Continuation of payment pending an appeal. (c) Waiver of right to continued payment. Subpart I—Underpayments and Overpayments 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. 3716; 31 U.S.C. 3720A. Source: 69 FR 25955, May 10, 2004, unless otherwise noted. General Rules § 408.900 What is this subpart about? This subpart explains what happens when you receive less or more than the correct amount of SVB than you are entitled to receive. Sections 408.901 through 408.903 define overpayment and underpayment and describe how we determine the amount of the overpayment or underpayment. When you receive less than the correct amount of SVB (which we refer to as an underpayment), we will take the actions described in §§ 408.904 and 408.905. Waiver of recovery of overpayments (payments of more than the correct amount) is discussed in §§ 408.910 through 408.914, and the methods we use to recover overpayments are discussed in §§ 408.920 through 408.946. In § 408.950, we explain when we will accept a compromise settlement of an overpayment or suspend or terminate collection of an overpayment. § 408.901 What is an underpayment? (a) An underpayment can occur only with respect to a period for which you filed an application for benefits and met all conditions of eligibility for benefits. (b) An underpayment is: (1) Nonpayment, where payment was due but was not made; or (2) Payment of less than the amount due for a period. (c) For purposes of this section, payment has been made when certified by the Social Security Administration to the Department of the Treasury. Payment is not considered to have been made where payment has not been received by the designated payee, or where payment was returned. § 408.902 What is an overpayment? (a) As used in this subpart, the term overpayment means payment of more than the amount due for any period. For purposes of this section, payment has been made when certified by the Social Security Administration to the Department of the Treasury. Payment is not considered to have been made where payment has not been received by the designated payee, or where payment was returned. (b) As used in this subpart, the term pandemic period [69 FR 25955, May 10, 2004, as amended at 85 FR 52914, Aug. 27, 2020] § 408.903 How do we determine the amount of an underpayment or overpayment? (a) General. (b) Limited delay in payment of an underpayment. see (c) Delay in payment of underpayment to ineligible individual. § 408.904 How will you receive an underpayment? We will pay you the amount of any underpayment due you in a separate payment or by increasing the amount of your monthly payment. If you die before we pay you all or any part of an underpayment, the balance of the underpayment reverts to the general fund of the U.S. Treasury. § 408.905 Will we withhold or adjust an underpayment to reduce an overpayment if that overpayment occurred in a different period? We will withhold or adjust any underpayment due you to reduce any overpayment to you that we determine for a different period, unless we have waived recovery of the overpayment under the provisions of §§ 408.910 through 408.914. Waiver of Recovery of SVB Overpayments § 408.910 When will we waive recovery of an SVB overpayment? We will waive recovery of an overpayment when: (a) You are without fault in connection with the overpayment, and (b) Recovery of such overpayment would either: (1) Defeat the purpose of the title VIII program, or (2) Be against equity and good conscience. (c) We will apply the procedures in this paragraph (c) when an individual requests waiver of all or part of a qualifying overpayment. (1) For purposes of this paragraph (c), a qualifying overpayment is one that accrued during the pandemic period (2) Notwithstanding any other provision of this subpart, we will presume that an individual who requests waiver of a qualifying overpayment is without fault in causing the overpayment (see § 408.912) unless we determine that the qualifying overpayment made to a beneficiary or a representative payee was the result of fraud or similar fault or involved misuse of benefits by a representative payee (see § 408.641). (3) If we determine under paragraph (c)(2) of this section that an individual or a representative payee is without fault in causing a qualifying overpayment, we will also determine that recovery of the qualifying overpayment would be against equity and good conscience. For purposes of this paragraph (c)(3) only, “against equity and good conscience” is not limited to the meaning used in § 408.914 but means a broad concept of fairness that takes into account all of the facts and circumstances of the case. (4) The provisions of this paragraph (c) will apply to a qualifying overpayment identified by December 31, 2020. [69 FR 25955, May 10, 2004, as amended at 85 FR 52914, Aug. 27, 2020] § 408.911 What happens when we waive recovery of an SVB overpayment? Waiver of recovery of an overpayment from you (or, after your death, from your estate) frees you and your estate from the obligation to repay the amount of the overpayment covered by the waiver. Example: § 408.912 When are you without fault regarding an overpayment? (a) General—when fault is relevant. (b) The factors we consider to determine whether you were without fault. (1) Your failure to furnish information which you knew or should have known was material; (2) An incorrect statement you made which you knew or should have known was incorrect (this includes furnishing your opinion or conclusion when you were asked for facts), or (3) You did not return a payment, which you knew, or could have been expected to know, was incorrect. (c) Special rule for qualifying overpayments. [69 FR 25955, May 10, 2004, as amended at 85 FR 52914, Aug. 27, 2020] § 408.913 When would overpayment recovery defeat the purpose of the title VIII program? We will waive recovery of an overpayment when you are without fault (as defined in § 408.912) and recovery of the overpayment would defeat the purpose of the title VIII program. Recovery of an overpayment would defeat the purpose of the title VIII program to the extent that our recovery action would deprive you of income and resources you need to meet your ordinary and necessary living expenses as described in § 404.508(a) of this chapter. § 408.914 When would overpayment recovery be against equity and good conscience? We will waive recovery of an overpayment when you are without fault (as defined in § 408.912) and recovery would be against equity and good conscience. Recovery would be against equity and good conscience if you changed your position for the worse or gave up a valuable right in reliance on our notice that payment would be made or because of the incorrect payment itself. Example: Notices § 408.918 What notices will you receive if you are overpaid or underpaid? (a) Notice of overpayment or underpayment determination. (b) Notice of waiver determination. Refund of Overpayments § 408.920 When will we seek refund of an SVB overpayment? We will seek refund of an SVB overpayment in every case in which we have not waived recovery. An overpayment may be refunded by you or by anyone on your behalf. If you are receiving SVB currently and you have not refunded the overpayment, adjustment as set forth in § 408.922 will be proposed. If you die before we recover the full overpayment, we will seek refund of the balance from your estate. Adjustment of SVB § 408.922 When will we adjust your SVB payments to recover an overpayment? If you do not refund your overpayment to us, and waiver of recovery is not applicable, we will adjust any SVB payments due you to recover the overpayment. Adjustment will generally be accomplished by withholding each month the amount set forth in § 408.923 from the benefit payable to you. § 408.923 Is there a limit on the amount we will withhold from your SVB payments to recover an overpayment? (a) Amount of the withholding limit. (b) Your right to request a different rate of withholding. (c) Fraud, misrepresentation or concealment of material information. Adjustment of Title II Benefits § 408.930 Are title II and title XVI benefits subject to adjustment to recover title VIII overpayments? (a) Definitions Cross-program recovery. (2) Benefits payable. (b) When may we collect title VIII overpayments using cross-program recovery? [70 FR 15, Jan. 3, 2004] § 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 §§ 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 § 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 § 408.923 for what we mean by concealment of material information.) [70 FR 16, Jan. 3, 2005] § 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 § 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 § 408.931(d) applies); and (e) You may ask us to waive collection of this overpayment balance. [70 FR 16, Jan. 3, 2005] § 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 § 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 § 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 §§ 408.910 through 408.914. [70 FR 16, Jan. 3, 2005] Tax Refund Offset § 408.940 When will we refer an SVB overpayment to the Department of the Treasury for tax refund offset? (a) General. (b) We will use the Department of the Treasury tax refund offset procedure to collect overpayments that are certain in amount, past due and legally enforceable and eligible for tax refund offset under regulations issued by the Secretary of the Treasury. We will use these procedures to collect overpayments from you only when you are not currently entitled to monthly SVB under title VIII of the Act, and we are not recovering your SVB overpayment from your monthly benefits payable under title II of the Act. We refer overpayments to the Department of the Treasury for offset against Federal tax refunds regardless of the amount of time the debts have been outstanding. [69 FR 25955, May 10, 2004, as amended at 76 FR 65108, Oct. 20, 2011] § 408.941 Will we notify you before we refer an SVB overpayment for tax refund offset? Before we request that an overpayment be collected by reduction of Federal and State income tax refunds, we will send a written notice of our action to the overpaid person. In our notice of intent to collect an overpayment through tax refund offset, we will state: (a) The amount of the overpayment; and (b) That we will collect the overpayment by requesting that the Department of the Treasury reduce any amounts payable to the overpaid person as refunds of Federal and State income taxes by an amount equal to the amount of the overpayment unless, within 60 calendar days from the date of our notice, the overpaid person: (1) Repays the overpayment in full; or (2) Provides evidence to us at the address given in our notice that the overpayment is not past due or legally enforceable; or (3) Asks us to waive collection of the overpayment under section 204(b) of the Act. (c) The conditions under which we will waive recovery of an overpayment under section 808(c) of the Act; (d) That we will review any evidence presented that the overpayment is not past due or not legally enforceable; (e) That you have the right to inspect and copy our records related to the overpayment as determined by us and you will be informed as to where and when the inspection and copying can be done after we receive notice from you requesting inspection and copying. [69 FR 25955, May 10, 2004, as amended at 76 FR 65108, Oct. 20, 2011] § 408.942 Will you have a chance to present evidence showing that the overpayment is not past due or is not legally enforceable? (a) Notification. (b) Submission of evidence. (c) Review of the evidence. (d) Written findings. § 408.943 What happens after we make our determination on your request for review or your request for waiver? (a) If we make a determination that all or part of the overpayment is past due and legally enforceable and/or your waiver request cannot be granted, we will refer the overpayment to the Department of the Treasury for recovery from any Federal income tax refund due you. We will not suspend our referral of the overpayment to the Department of the Treasury under § 408.945 of this subpart pending any further administrative review of the waiver determination that you may seek. (b) We will not refer the overpayment to the Department of the Treasury if we reverse our prior finding that the overpayment is past due and legally enforceable or, upon consideration of a waiver request, we determine that waiver of recovery of the overpayment is appropriate. § 408.944 How can you review our records related to an SVB overpayment? (a) What you must do. (b) What we will do. § 408.945 When will we suspend tax refund offset? If, within 60 days of the date of the notice described in § 408.941 of this subpart, you notify us that you are exercising a right described in § 408.942(a) of this subpart and submit evidence pursuant to § 408.942(b) of this subpart or request a waiver under § 408.910 of this subpart, we will suspend any notice to the Department of the Treasury until we have issued written findings that affirm that an overpayment is past due and legally enforceable and, if applicable, make a determination that a waiver request cannot be granted. § 408.946 What happens if your tax refund is insufficient to cover the amount of your SVB overpayment? If your tax refund is insufficient to recover an overpayment in a given year, the case will remain with the Department of the Treasury for succeeding years, assuming that all criteria for certification are met at that time. Compromise Settlements, or Suspensions or Termination of Collection § 408.950 Will we accept a compromise settlement of an overpayment debt or suspend or terminate collection of an overpayment? (a) General. (1) We may accept a compromise settlement (payment of less than the full amount of the overpayment) to discharge the entire overpayment debt. (2) We may suspend our efforts to collect the overpayment. (3) We may terminate our efforts to collect the overpayment. (b) Rules we apply. (c) Effect of compromise, suspension or termination. Subpart J—Determinations and the Administrative Review Process Authority: Secs. 702(a)(5) and 809 of the Social Security Act (42 U.S.C. 902(a)(5) and 1009). Source: 69 FR 25955, May 10, 2004, unless otherwise noted. Introduction, Definitions, and Initial Determinations § 408.1000 What is this subpart about? (a) Explanation of the administrative review process. (1) Initial determination. (2) Reconsideration. (3) Hearing before an administrative law judge. (4) Appeals Council review. (5) Federal court review. (6) Expedited appeals process. (b) Nature of the administrative review process. § 408.1001 Definitions. As used in this subpart: Date you receive notice Decision Determination Mass change Preponderance of the evidence Remand SVB Vacate Waive We, us, our You your [69 FR 25955, May 10, 2004, as amended at 73 FR 76944, Dec. 18, 2008] § 408.1002 What is an initial determination? Initial determinations are the determinations we make that are subject to administrative and judicial review. The initial determination will state the important facts and give the reasons for our conclusions. We will base our initial determination on the preponderance of the evidence. [69 FR 25955, May 10, 2004, as amended at 73 FR 76944, Dec. 18, 2008] § 408.1003 Which administrative actions are initial determinations? Initial determinations regarding SVB include, but are not limited to, determinations about— (a) Whether you qualify for SVB; (b) Whether you are entitled to receive SVB payments on the basis of your residence outside the United States; (c) The amount of your SVB payments; (d) Suspension or reduction of your SVB payments; (e) Termination of your SVB entitlement; (f) Whether an overpayment of benefits must be repaid to us; (g) Whether payments will be made, on your behalf, to a representative payee, unless you are legally incompetent; (h) Who will act as your payee if we determine that representative payment will be made; (i) A claim for benefits under § 408.351 based on alleged misinformation; and (j) Our calculation of the amount of change in your federally administered State recognition payment amount ( i.e., [69 FR 25955, May 10, 2004; 69 FR 45586, July 30, 2004] § 408.1004 Which administrative actions are not initial determinations? Administrative actions that are not initial determinations may be reviewed by us, but they are not subject to the administrative review process provided by this subpart and they are not subject to judicial review. These actions include, but are not limited to, an action about— (a) Denial of a request to be made your representative payee; (b) Denial of your request to use the expedited appeals process; (c) Denial of your request to reopen a determination or a decision; (d) Disqualifying or suspending a person from acting as your representative in a proceeding before us; (e) Denial of your request to extend the time period for requesting review of a determination or a decision; (f) Denial of your request to readjudicate your claim and apply an Acquiescence Ruling; (g) Declining under § 408.351(f) to make a determination on a claim for benefits based on alleged misinformation because one or more of the conditions specified in § 408.351(f) are not met; (h) Findings on whether we can collect an overpayment by using the Federal income tax refund offset procedure. (See § 408.943). (i) The determination to reduce, suspend, or terminate your federally administered State recognition payments due to a State-initiated mass change, as defined in § 408.1001, in the levels of such payments, except as provided in § 408.1003(h). § 408.1005 Will we mail you a notice of the initial determination? (a) We will mail a written notice of the initial determination to you at your last known address. Generally, we will not send a notice if your benefits are stopped because of your death, or if the initial determination is a redetermination that your eligibility for benefits and the amount of your benefits have not changed. (b) The notice that we send will tell you— (1) What our initial determination is; (2) The reasons for our determination; and (3) What rights you have to a reconsideration of the determination. (c) If our initial determination is that we must suspend, reduce your SVB payments or terminate your SVB entitlement, the notice will also tell you that you have a right to a reconsideration before the determination takes effect (see § 408.820). § 408.1006 What is the effect of an initial determination? An initial determination is binding unless you request a reconsideration within the stated time period, or we revise the initial determination. Reconsideration § 408.1007 What is reconsideration? Reconsideration is the first step in the administrative review process that we provide if you are dissatisfied with the initial determination. If you are dissatisfied with our reconsideration determination, you may request a hearing before an administrative law judge. § 408.1009 How do you request reconsideration? (a) When you must file your request. (b) Where to file your request. (1) Any of our offices; (2) The Veterans Affairs Regional Office in the Philippines; (3) An office of the Railroad Retirement Board if you have 10 or more years of service in the railroad industry; or (4) A competent authority or agency of a country with which the United States has a totalization agreement (see § 404.1927 of this chapter). (c) When we will extend the time period to request a reconsideration. § 408.1011 How do we determine whether you had good cause for missing the deadline to request review? (a) In determining whether you have shown that you have good cause for missing a deadline to request review we consider— (1) What circumstances kept you from making the request on time; (2) Whether our action misled you; (3) Whether you did not understand the requirements of the Act resulting from amendments to the Act, other legislation, or court decisions; and (4) Whether you had any physical, mental, educational, or linguistic limitations (including any lack of facility with the English language) which prevented you from filing a timely request or from understanding or knowing about the need to file a timely request for review. (b) Examples of circumstances where good cause may exist include, but are not limited to, the following situations: (1) You were seriously ill and were prevented from contacting us in person, in writing, or through a friend, relative, or other person. (2) There was a death or serious illness in your immediate family. (3) Important records were destroyed or damaged by fire or other accidental cause. (4) You were trying very hard to find necessary information to support your claim but did not find the information within the stated time periods. (5) You asked us for additional information explaining our action within the time limit, and within 60 days of receiving the explanation you requested reconsideration or a hearing, or within 30 days of receiving the explanation you requested Appeals Council review or filed a civil suit. (6) We gave you incorrect or incomplete information about when and how to request administrative review or to file a civil suit. (7) You did not receive notice of the initial determination or decision. (8) You sent the request to another Government agency in good faith within the time limit and the request did not reach us until after the time period had expired. (9) Unusual or unavoidable circumstances exist, including the circumstances described in paragraph (a)(4) of this section, which show that you could not have known of the need to file timely, or which prevented you from filing timely. § 408.1013 What are the methods for reconsideration? If you request reconsideration, we will give you a chance to present your case. How you can present your case depends upon the issue involved and whether you are asking us to reconsider an initial determination on an application or an initial determination on an SVB suspension, reduction or termination action. The methods of reconsideration include the following: (a) Case review. (b) Informal conference. (c) Formal conference. § 408.1014 What procedures apply if you request reconsideration of an initial determination on your application for SVB? When you appeal an initial determination on your application for benefits, we will offer you a case review, and will make our determination on the basis of that review. § 408.1015 What procedures apply if you request reconsideration of an initial determination that results in suspension, reduction, or termination of your SVB? If you have been entitled to SVB and we notify you that we are going to suspend, reduce or terminate your benefit payments, you can appeal our determination within 60 days of the date you receive our notice. The 60-day period may be extended if you have good cause for an extension of time under the conditions stated in § 408.1011(b). If you appeal, you have the choice of a case review, informal conference or formal conference. § 408.1016 What happens if you request a conference? (a) As soon as we receive a request for a formal or informal conference, we will set the time, date and place for the conference. Formal and informal conferences are held only in the United States. (b) We will send you a written notice about the conference (either by mailing it to your last known address or by personally serving you with it) at least 10 days before the conference. However, we may hold the conference sooner if we all agree. We will not send written notice of the time, date, and place of the conference if you waive your right to receive it. (c) We will schedule the conference within 15 days after you request it, but, at our discretion or at your request, we will delay the conference if we think the delay will ensure that the conference is conducted efficiently and properly. (d) We will hold the conference at one of our offices in the United States, by telephone or in person, whichever you prefer. However, if you are outside the United States, we will hold the conference by telephone only if you request that we do so and time and language differences permit. We will hold the conference in person elsewhere in the United States if you show circumstances that make this arrangement reasonably necessary. § 408.1020 How do we make our reconsidered determination? After you request a reconsideration, we will review the evidence considered in making the initial determination and any other evidence we receive. We will make our determination based on the preponderance of the evidence in the record. The person who makes the reconsidered determination will have had no prior involvement with the initial determination. [69 FR 25955, May 10, 2004, as amended at 73 FR 76944, Dec. 18, 2008] § 408.1021 How does the reconsidered determination affect you? The reconsidered determination is binding unless— (a) You request a hearing before an administrative law judge within the stated time period and a decision is made; (b) The expedited appeals process is used; or (c) The reconsidered determination is revised. § 408.1022 How will we notify you of our reconsidered determination? We will mail a written notice of the reconsidered determination to you at your last known address. We will state the specific reasons for the determination and tell you about your right to a hearing. If it is appropriate, we will also tell you how to use the expedited appeals process. Expedited Appeals Process § 408.1030 When can you use the expedited appeals process? (a) General rules. (b) Exceptions. Hearing Before an Administrative Law Judge § 408.1040 When can you request a hearing before an administrative law judge (ALJ)? (a) General rules. see (b) Exceptions. Administrative Law Judge Hearing Procedures § 408.1045 What procedures apply if you request an ALJ hearing? (a) General rules. (b) Exceptions. (2) In § 416.1452(a)(1)(i), the words “supplemental security income” are deemed to read “SVB.” (3) In § 416.1457, the provisions of paragraph (c)(4) do not apply under this part. Appeals Council Review § 408.1050 When can you request Appeals Council review of an ALJ hearing decision or dismissal of a hearing request? (a) General rules. (b) Exceptions. (2) In § 416.1469(d), the last sentence does not apply under this part. (3) In § 416.1471, paragraph (b) does not apply under this part. (4) In § 416.1482, the reference to “§ 416.1411” in the last sentence is deemed to read “§ 408.1011.” Court Remand Cases § 408.1060 What happens if a Federal Court remands your case to the Commissioner? For purposes of this part, we use the same rules on court remand cases that we use in the title XVI program (see §§ 416.1483-416.1485 of this chapter). Reopening and Revising Determinations and Decisions § 408.1070 When will we reopen a final determination? (a) General rules. (b) Exceptions. (i) A clerical error; or (ii) An error that appears on the face of the evidence that we considered when we made the determination or decision. (2) In § 416.1492(b), the parenthetical clause is deemed to read “(see § 408.820),” and paragraph (d) does not apply to this part. (3) In § 416.1494, the words “one of our offices” in the first sentence are deemed to read “any of the offices listed in § 408.1009(b).” [69 FR 25955, May 10, 2004, as amended at 75 FR 44138, July 28, 2010] Subpart K—Representation of Parties Authority: Secs. 702(a)(5) and 810(a) of the Social Security Act (42 U.S.C. 902(a)(5) and 1010(a)). Source: 69 FR 25955, May 10, 2004, unless otherwise noted. § 408.1101 Can you appoint someone to represent you? (a) General rules. (b) Exceptions. (1) In § 416.1500, paragraph (c) does not apply. (2) The last sentence of § 416.1503 is deemed to read: “You refers to any person claiming or receiving SVB.” (3) In § 416.1507(c), the words “one of our offices” are deemed to read “any of the offices listed in § 408.1009(b).” (4) In § 416.1510(b), the reference to “title XVI of the Act” is deemed to read “title VIII of the Act,” and the reference to “§ 416.315” is deemed to read “§ 408.315.” (5) In § 416.1540, the parenthetical clause in paragraph (b), the second sentences in paragraphs (b)(1) and (b)(2), and paragraph (c)(2) do not apply, and the references to “§ 416.1411(b)” in paragraphs (c)(4) and (c)(7)(i) are deemed to read “§ 408.1011(b).” (6) In § 416.1545, paragraph (c) does not apply. (7) In § 416.1599, paragraph (d) is deemed to read: “The Appeals Council will not grant the request unless it is reasonably satisfied that the person will in the future act according to the provisions of our regulations.” Subpart L—Federal Administration of State Recognition Payments Authority: Secs. 702(a)(5) and 810A of the Social Security Act (42 U.S.C. 902(a)(5) and 1010a). Source: 69 FR 25955, May 10, 2004, unless otherwise noted. § 408.1201 What are State recognition payments? (a) State recognition payments; defined. (1) As a supplement to monthly SVB payments; and (2) Regularly, on a periodic recurring, or routine basis of at least once a quarter; and (3) In cash, which may be actual currency, or any negotiable instrument convertible into cash upon demand. (b) State; defined. § 408.1205 How can a State have SSA administer its State recognition payment program? A State (or political subdivision) may enter into a written agreement with SSA, under which SSA will make recognition payments on behalf of the State (or political subdivision). The regulations in effect for the SVB program also apply in the Federal administration of State recognition payments except as necessary for the effective and efficient administration of both the SVB program and the State's recognition payment program. § 408.1210 What are the essential elements of an administration agreement? (a) Payments. (b) Administrative costs General rule. (2) Determining the administration fee. (i) For fiscal year 2001, $8.10; (ii) For fiscal year 2002, $8.50; and (iii) For fiscal year 2003 and each succeeding fiscal year— (A) The applicable rate in the preceding fiscal year, increased by the percentage, if any, by which the Consumer Price Index for the month of June of the calendar year of the increase exceeds the Consumer Price Index for the month of June of the calendar year preceding the calendar year of the increase, and rounded to the nearest whole cent; or (B) A different rate if the Commissioner determines the different rate is appropriate for the State considering the complexity of administering the State's recognition payment program. (c) Agreement period. (d) Modification or termination. § 408.1215 How do you establish eligibility for Federally administered State recognition payments? (a) Applications. (b) Evidence requirements. (c) Determination. § 408.1220 How do we pay Federally administered State recognition payments? (a) Payment procedures. (b) Maximum amount. (c) Minimum amount. § 408.1225 What happens if you receive an overpayment? If we determine that you received an overpayment, we will adjust future Federally administered State recognition payments you are entitled to. Our rules and requirements (see §§ 408.910 through 408.941) that apply to recovery (or waiver) of SVB overpayments also apply to the recovery (or waiver) of Federally administered State recognition overpayments. If your entitlement to State recognition payments ends before you have repaid the overpayment, we will annotate your record (specifying the amount of the overpayment) to permit us to recoup the overpaid amount if you become reentitled to recognition payments from the same State. § 408.1226 What happens if you are underpaid? If we determine that you are due an underpayment of State recognition payments, we will pay the amount you were underpaid directly to you, or to your representative. § 408.1230 Can you waive State recognition payments? (a) Waiver request in writing. (b) Cancelling your waiver. § 408.1235 How does the State transfer funds to SSA to administer its recognition payment program? (a) Payment transfer and adjustment. (i) An amount of funds equal to SSA's estimate of State recognition payments for any month which will be made by SSA on behalf of such State; and (ii) An amount of funds equal to SSA's estimate of administration fees for any such month determined in the manner described in § 408.1210(b). (3) In order for SSA to make State recognition payments on behalf of a State for any month as provided by the agreement, the estimated amount of State funds referred to in paragraph (a)(1)(i) of this section together with the estimated amount of administration fees referred to in paragraph (a)(1)(ii) of this section, for that month, must be on deposit with SSA on the State recognition payment transfer date, which is: (i) the business day preceding the date that the Commissioner pays such monthly recognition payments; or (ii) with respect to such monthly payments paid for the month that is the last month of the State's fiscal year, the fifth business day following such date. (b) Accounting of State funds. (2) SSA will provide the State with an accounting of State funds received as State recognition payments and administration fees within three calendar months following the termination of an agreement under § 408.1210(d). (3) Adjustments will be made because of State funds due and payable or amounts of State funds recovered for calendar months for which the agreement was in effect. Interest will be incurred by SSA and the States with respect to the adjustment and accounting of State recognition payments funds in accordance with applicable laws and regulations of the United States Department of the Treasury. (c) State audit.

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