20 CFR Part 416 — Supplemental Security Income for the Aged, Blind, and Disabled

PART 416—SUPPLEMENTAL SECURITY INCOME FOR THE AGED, BLIND, AND DISABLED Editorial Note: Nomenclature changes to part 416 appear at 68 FR 53509, Sept. 11, 2003. Subpart A—Introduction, General Provisions and Definitions Authority: Secs. 702(a)(5) and 1601-1635 of the Social Security Act (42 U.S.C. 902(a)(5) and 1381-1383d); sec. 212, Pub. L. 93-66, 87 Stat. 155 (42 U.S.C. 1382 note); sec. 502(a), Pub. L. 94-241, 90 Stat. 268 (48 U.S.C. 1681 note). Source: 39 FR 28625, Aug. 9, 1974, unless otherwise noted. § 416.101 Introduction. The regulations in this part 416 (Regulations No. 16 of the Social Security Administration) relate to the provisions of title XVI of the Social Security Act as amended by section 301 of Pub. L. 92-603 enacted October 30, 1972, and as may thereafter be amended. Title XVI (Supplemental Security Income For The Aged, Blind, and Disabled) of the Social Security Act, as amended, established a national program, effective January 1, 1974, for the purpose of providing supplemental security income to individuals who have attained age 65 or are blind or disabled. The regulations in this part are divided into the following subparts according to subject content: (a) This subpart A contains this introduction, a statement of the general purpose underlying the supplemental security income program, general provisions applicable to the program and its administration, and definitions and use of terms occurring throughout this part. (b) Subpart B of this part covers in general the eligibility requirements which must be met for benefits under the supplemental security income program. It sets forth the requirements regarding residence, citizenship, age, disability, or blindness, and describes the conditions which bar eligibility and generally points up other conditions of eligibility taken up in greater detail elsewhere in the regulations (e.g., limitations on income and resources, receipt of support and maintenance, etc.). (c) Subpart C of this part sets forth the rules with respect to the filing of applications, requests for withdrawal of applications, cancellation of withdrawal requests and other similar requests. (d) Subpart D of this part sets forth the rules for computing the amount of benefits payable to an eligible individual and eligible spouse. (e) Subpart E of this part covers provisions with respect to periodic payment of benefits, joint payments, payment of emergency cash advances, payment of benefits prior to a determination of disability, prohibition against transfer or assignment of benefits, adjustment and waiver of overpayments, and payment of underpayments. (f) Subpart F of this part contains provisions with respect to the selection of representative payees to receive benefits on behalf of and for the use of recipients and to the duties and responsibilities of representative payees. (g) Subpart G of this part sets forth rules with respect to the reporting of events and circumstances affecting eligibility or the amount of benefits payable. (h) Subpart H of this part sets forth rules and guidelines for the submittal and evaluation of evidence of age where age is pertinent to establishing eligibility or the amount of benefits payable. (i) Subpart I of this part sets forth the rules for establishing disability or blindness where the establishment of disability or blindness is pertinent to eligibility. (j) Subpart J of this part sets forth the standards, requirements and procedures for States making determinations of disability for the Commissioner. It also sets out the Commissioner's responsibilities in carrying out the disability determination function. (k) Subpart K of this part defines income, earned income, unearned income (l) Subpart L of this part defines the term resources (m) Subpart M of this part deals with events or circumstances requiring suspension or termination of benefits. (n) Subpart N of this part contains provisions with respect to procedures for making determinations with respect to eligibility, amount of benefits, representative payment, etc., notices of determinations, rights of appeal and procedures applicable thereto, and other procedural due process provisions. (o) Subpart O of this part contains provisions applicable to attorneys and other individuals who represent applicants in connection with claims for benefits. (p) Subpart P of this part sets forth the residence and citizenship requirements that are pertinent to eligibility. (q) Subpart Q of this part contains provisions with respect to the referral of individuals for vocational rehabilitation and application for other benefits to which an applicant may be potentially entitled. (r) Subpart R of this part sets forth the rules for determining marital and other family relationships where pertinent to the establishment of eligibility for or the amount of benefits payable. (s) Subpart S of this part explains interim assistance and how benefits may be withheld to repay such assistance given by the State. (t) Subpart T of this part contains provisions with respect to the supplementation of Federal supplemental security income payments by States, agreements for Federal administration of State supplementation programs, and payment of State supplementary payments. (u) Subpart U of this part contains provisions with respect to agreements with States for Federal determination of Medicaid eligibility of applicants for supplemental security income. (v) Subpart V of this part explains when payments are made to State vocational rehabilitation agencies for vocational rehabilitation services. [39 FR 28625, Aug. 9, 1974, as amended at 51 FR 11718, Apr. 7, 1986; 62 FR 38454, July 18, 1997; 83 FR 62459, Dec. 4, 2018; 91 FR 16830, Apr. 3, 2026] § 416.105 Administration. The Supplemental Security Income for the Aged, Blind, and Disabled program is administered by the Social Security Administration. [51 FR 11718, Apr. 7, 1986, as amended at 62 FR 38454, July 18, 1997] § 416.110 Purpose of program. The basic purpose underlying the supplemental security income program is to assure a minimum level of income for people who are age 65 or over, or who are blind or disabled and who do not have sufficient income and resources to maintain a standard of living at the established Federal minimum income level. The supplemental security income program replaces the financial assistance programs for the aged, blind, and disabled in the 50 States and the District of Columbia for which grants were made under the Social Security Act. Payments are financed from the general funds of the United States Treasury. Several basic principles underlie the program: (a) Objective tests. (b) Legal right to payments. (c) Protection of personal dignity. (d) Nationwide uniformity of standards. (e) Incentives to work and opportunities for rehabilitation. (f) State supplementation and Medicaid determinations. (2) States with Medicaid eligibility requirements for the aged, blind, and disabled that are identical (except as permitted by § 416.2111) to the supplemental security income eligibility requirements may elect to have the Social Security Administration determine Medicaid eligibility under the State's program for recipients of supplemental security income and recipients of a federally administered State supplementary payment. The State would pay half of Social Security Administration's incremental administrative costs arising from carrying out the agreement. [39 FR 28625, Aug. 9, 1974, as amended at 53 FR 12941, Apr. 20, 1988; 62 FR 38454, July 18, 1997] § 416.120 General definitions and use of terms. (a) Terms relating to acts and regulations. (1) The Act (2) Wherever a title is referred to, it means such title of the Act. (3) Vocational Rehabilitation Act means the act approved June 2, 1920 (41 Stat. 735), 29 U.S.C. 31-42, as amended, and as may be amended from time to time hereafter. (b) Commissioner; Appeals Council; Administrative Law Judge; Administrative Appeals Judge defined Commissioner (2) Appeals Council (3) Administrative Law Judge (4) Administrative Appeals Judge (c) Miscellaneous. (1) Supplemental security income benefit (2) Income (3) Resources (4) Attainment of age. (5) Couple (6) Institution (7) Public institution (8) Resident of a public institution (9) State, (10) The term United States (11) Masculine gender includes the feminine, unless otherwise indicated. (12) Section (13) Eligible individual (14) Eligible spouse (d) Periods of limitation ending on nonwork days. [39 FR 28625, Aug. 9, 1974, as amended at 43 FR 25091, June 9, 1978; 51 FR 11719, Apr. 7, 1986; 60 FR 16374, Mar. 30, 1995; 62 FR 38454, July 18, 1997; 85 FR 73159, Nov. 16, 2020] § 416.121 Receipt of aid or assistance for December 1973 under an approved State plan under title I, X, XIV, or XVI of the Social Security Act. (a) Recipient of aid or assistance defined. individual who was a recipient of aid or assistance for December 1973 (b) Aid or assistance defined. aid or assistance (c) Determinations of receipt of aid or assistance for December 1973. (d) Special provision for disabled recipients. [39 FR 32024, Sept. 4, 1974; 39 FR 33207, Sept. 16, 1974, as amended at 51 FR 11719, Apr. 7, 1986] Subpart B—Eligibility Authority: Secs. 702(a)(5), 1110(b), 1602, 1611, 1614, 1619(a), 1631, and 1634 of the Social Security Act (42 U.S.C. 902(a)(5), 1310(b), 1381a, 1382, 1382c, 1382h(a), 1383, and 1383c); secs. 211 and 212, Pub. L. 93-66, 87 Stat. 154 and 155 (42 U.S.C. 1382 note); sec. 502(a), Pub. L. 94-241, 90 Stat. 268 (48 U.S.C. 1681 note); sec. 2, Pub. L. 99-643, 100 Stat. 3574 (42 U.S.C. 1382h note Source: 47 FR 3103, Jan. 22, 1982, unless otherwise noted. General § 416.200 Introduction. You are eligible for SSI benefits if you meet all the basic requirements listed in § 416.202. However, the first month for which you may receive SSI benefits is the month after the month in which you meet these eligibility requirements. (See § 416.501.) You must give us any information we request and show us necessary documents or other evidence to prove that you meet these requirements. We determine your eligibility for each month on the basis of your countable income in that month. You continue to be eligible unless you lose your eligibility because you no longer meet the basic requirements or because of one of the reasons given in §§ 416.207 through 416.216. [64 FR 31972, June 15, 1999, as amended at 68 FR 53508, Sept. 11, 2003] § 416.201 General definitions and terms used in this subpart. Any 9-month period Educational or vocational training Emergency shelter Homeless individual custody Institution Medical treatment facility Public emergency shelter for the homeless Public institution public institution Resident of a public institution resident inmate SSI State assistance We Us You Your [47 FR 3103, Jan. 22, 1982, as amended at 49 FR 19639, May 19, 1984; 50 FR 48570, Nov. 26, 1985; 50 FR 51517, Dec. 18, 1985; 54 FR 19164, May 4, 1989; 72 FR 50874, Sept. 5, 2007] § 416.202 Who may get SSI benefits. You are eligible for SSI benefits if you meet all of the following requirements: (a) You are— (1) Aged 65 or older (subpart H); (2) Blind (subpart I); or (3) Disabled (subpart I). (b) You are a resident of the United States (§ 416.1603), and— (1) A citizen or a national of the United States (§ 416.1610); (2) An alien lawfully admitted for permanent residence in the United States (§ 416.1615); (3) An alien permanently residing in the United States under color of law (§ 416.1618); or (4) A child of armed forces personnel living overseas as described in § 416.216. (c) You do not have more income than is permitted (subparts K and D). (d) You do not have more resources than are permitted (subpart L). (e) [Reserved] (f) You are not— (1) Fleeing to avoid prosecution 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 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. (g) You file an application for SSI benefits (subpart C). [47 FR 3103, Jan. 22, 1982, as amended at 58 FR 4897, Jan. 19, 1993; 60 FR 8149, Feb. 10, 1995; 61 FR 10277, Mar. 13, 1996; 65 FR 40495, June 30, 2000; 91 FR 16830, Apr. 3, 2026] § 416.203 Initial determinations of SSI eligibility. (a) What happens when you apply for SSI benefits. (b) How we determine your eligibility for SSI benefits. [47 FR 3103, Jan. 22, 1982, as amended at 50 FR 48570, Nov. 26, 1985; 64 FR 31972, June 15, 1999] § 416.204 Redeterminations of SSI eligibility. (a) Redeterminations defined. (b) When we make redeterminations. (2) We may also redetermine your eligibility when you tell us (or we otherwise learn) of a change in your situation which affects your eligibility or the amount of your benefit. (c) The period for which a redetermination applies: (i) The month in which we make the redetermination; (ii) All months beginning with the first day of the latest of the following: (A) The month of first eligibility or re-eligibility; or (B) The month of application; or (C) The month of deferred or updated development; and (iii) Future months until the second redetermination. (2) All other redeterminations apply to— (i) The month in which we make the redetermination; (ii) All months beginning with the first day of the month the last redetermination was initiated; and (iii) Future months until the next redetermination. (3) If we made two redeterminations which cover the same month, the later redetermination is the one we apply to that month. [47 FR 3103, Jan. 22, 1982, as amended at 50 FR 48570, Nov. 26, 1985; 58 FR 64893, Dec. 10, 1993] Reasons Why You May Not Get SSI Benefits for Which You Are Otherwise Eligible § 416.207 You do not give us permission to contact financial institutions. (a) To be eligible for SSI payments you must give us permission to contact any financial institution and request any financial records that financial institution may have about you. You must give us this permission when you apply for SSI payments or when we ask for it at a later time. You must also provide us with permission from anyone whose income and resources we consider as being available to you, i.e., see (b) Financial institution (1) Bank, (2) Savings bank, (3) Credit card issuer, (4) Industrial loan company, (5) Trust company, (6) Savings association, (7) Building and loan, (8) Homestead association, (9) Credit union, (10) Consumer finance institution, or (11) Any other financial institution as defined in section 1101(1) of the Right to Financial Privacy Act. (c) Financial record (d) We may ask any financial institution for information on any financial account concerning you. We may also ask for information on any financial accounts for anyone whose income and resources we consider as being available to you ( see (e) We ask financial institutions for this information when we think that it is necessary to determine your SSI eligibility or payment amount. (f) Your permission to contact financial institutions, and the permission of anyone whose income and resources we consider as being available to you, i.e., (1) You cancel your permission in writing and provide the writing to us. (2) The deemor cancels their permission in writing and provides the writing to us. (3) The basis on which we consider a deemor's income and resources available to you ends, e.g. when spouses separate or divorce or a child attains age 18. (4) Your application for SSI is denied, and the denial is final. A denial is final when made, unless you appeal the denial timely as described in §§ 416.1400 through 416.1499. (5) You are no longer eligible for SSI as described in §§ 416.1331 through 416.1335. (g) If you don't give us permission to contact any financial institution and request any financial records about you when we think it is necessary to determine your SSI eligibility or payment amount, or if you cancel the permission, you cannot be eligible for SSI payments. Also, except as noted in paragraph (h), if anyone whose income and resources we consider as being available to you ( see (h) You may be eligible for SSI payments if there is good cause for your being unable to obtain permission for us to contact any financial institution and request any financial records about someone whose income and resources we consider as being available to you (see §§ 416.1160, 416.1202, 416.1203, and 416.1204). (1) Good cause exists if permission cannot be obtained from the individual and there is evidence that the individual is harassing you, abusing you, or endangering your life. (2) Good cause may exist if an individual other than one listed in paragraph (h)(3) of this section refuses to provide permission and: you acted in good faith to obtain permission from the individual but were unable to do so through no fault of your own, or you cooperated with us in our efforts to obtain permission. (3) Good cause does not apply if the individual is your representative payee and your legal guardian, if you are a minor child and the individual is your representative payee and your custodial parent, or if you are an alien and the individual is your sponsor or the sponsor's living-with spouse. [68 FR 53508, Sept. 11, 2003] § 416.210 You do not apply for other benefits. (a) General rule. (b) What “other benefits” includes. (c) Our notice to you. (d) What you must do to apply for other benefits. (e) What happens if you do not apply for the other benefits. (2) We will not find you ineligible for SSI benefits if you have a good reason for not applying for the other benefits within the 30-day period or taking other necessary steps to obtain them. In determining whether a good reason exists, we will take into account any physical, mental, educational, or linguistic limitations (including any lack of facility with the English language) which may have caused you to fail to apply for other benefits. You may have a good reason if, for example— (i) You are incapacitated (because of illness you were not able to apply); or (ii) It would be useless for you to apply (you once applied for the benefits and the reasons why you were turned down have not changed). [47 FR 3103, Jan. 22, 1982, as amended at 50 FR 5573, Feb. 11, 1985; 50 FR 14211, Apr. 11, 1985; 59 FR 1635, Jan. 12, 1994; 61 FR 1712, Jan. 23, 1996] § 416.211 You are a resident of a public institution. (a) General rule. (2) By throughout a month (b) Exception—SSI benefits payable at a reduced rate. (1)(i) You reside throughout a month in a public institution that is a medical treatment facility where Medicaid (title XIX of the Social Security Act) pays a substantial part (more than 50 percent) of the cost of your care; you are a child under the age of 18 residing throughout a month in a public institution that is a medical treatment facility where a substantial part (more than 50 percent) of the cost of your care is paid under a health insurance policy issued by a private provider of such insurance; or, you are a child under the age of 18 residing throughout a month in a public institution that is a medical treatment facility where a substantial part (more than 50 percent) of the cost of your care is paid by a combination of Medicaid payments and payments made under a health insurance policy issued by a private provider of such insurance; or (ii) You reside for part of a month in a public institution and the rest of the month in a public institution or private medical treatment facility where Medicaid pays a substantial part (more than 50 percent) of the cost of your care; you are a child under the age of 18 residing for part of a month in a public institution and the rest of the month in a public institution or private medical treatment facility where a substantial part (more than 50 percent) of the cost of your care is paid under a health insurance policy issued by a private provider of such insurance; or you are a child under the age of 18 residing for part of a month in a public institution and the rest of the month in a public institution or private medical treatment facility where a substantial part (more than 50 percent) of the cost of your care is paid by a combination of Medicaid payments and payments made under a health insurance policy issued by a private provider; and (2) You are ineligible in that month for a benefit described in § 416.212 that is payable to a person temporarily confined in a medical treatment facility. (c) Exception for publicly operated community residences which serve no more than 16 residents General rule. (2) Services that a facility must provide in order to be a community residence. (i) Social services; (ii) Help with personal living activities; (iii) Training in socialization and life skills; or (iv) Providing occasional or incidental medical or remedial care. (3) Serving no more than 16 residents. (i) It is designed and planned to serve no more than 16 residents, or the design and plan were changed to serve no more than 16 residents; and (ii) It is in fact serving 16 or fewer residents. (4) Publicly operated. (5) Facilities which are not a publicly operated community residence. (i) A residential facility which is on the grounds of or next to a large institution or multipurpose complex; (ii) An educational or vocational training institution whose main function is to provide an approved, accredited, or recognized program to some or all of those who live there; (iii) A jail or other facility where the personal freedom of anyone who lives there is restricted because that person is a prisoner, is being held under court order, or is being held until charges against that person are disposed of; or (iv) A medical treatment facility (defined in § 416.201). (d) Exception for residents of public emergency shelters for the homeless. Example: You are receiving SSI benefits when you lose your home and enter a public emergency shelter for the homeless on March 10, 1988. You remain a resident of a shelter until October 10, 1988. Since you were not in the shelter throughout the month of March, you are eligible to receive your benefit for March without having this month count towards the 6-month period. The last full month throughout which you reside in the shelter is September 1988. Therefore, if you meet all eligibility requirements, you will also be paid benefits for April through September (6 months during the 9-month period September 1988 back through January 1988). If you are otherwise eligible, you will receive your SSI benefit for October when you left the shelter, since you were not a resident of the shelter throughout that month. [47 FR 3103, Jan. 22, 1982, as amended at 50 FR 51518, Dec. 18, 1985; 51 FR 13492, Apr. 21, 1986; 51 FR 17332, May 12, 1986; 51 FR 34464, Sept. 29, 1986; 54 FR 19164, May 4, 1989; 61 FR 10277, Mar. 13, 1996; 62 FR 1055, Jan. 8, 1997; 64 FR 31972, June 15, 1999; 72 FR 50874, Sept. 5, 2007] § 416.212 Continuation of full benefits in certain cases of medical confinement. (a) Benefits payable under section 1611(e)(1)(E) of the Social Security Act. (1) You were eligible under either section 1619(a) or section 1619(b) of the Social Security Act in the month before the first full month of residence in an institution; (2) The institution agrees that no portion of these benefits will be paid to or retained by the institution excepting nominal sums for reimbursement of the institution for any outlay for a recipient's personal needs (e.g., personal hygiene items, snacks, candy); and (3) The month of your institutionalization is one of the first 2 full months of a continuous period of confinement. (b) Benefits payable under section 1611(e)(1)(G) of the Social Security Act. (i) You were eligible for SSI cash benefits and/or federally administered State supplementary payments for the month immediately prior to the first full month you were a resident in such institution; (ii) The month of your institutionalization is one of the first 3 full months of a continuous period of confinement; (iii) A physician certifies, in writing, that you are not likely to be confined for longer than 90 full consecutive days following the day you entered the institution, and the certification is submitted to SSA no later than the day of discharge or the 90th full day of confinement, whichever is earlier; and (iv) You need to pay expenses to maintain the home or living arrangement to which you intend to return after institutionalization and evidence regarding your need to pay these expenses is submitted to SSA no later than the day of discharge or the 90th full day of confinement, whichever is earlier. (2) We will determine the date of submission of the evidence required in paragraphs (b)(1) (iii) and (iv) of this section to be the date we receive it or, if mailed, the date of the postmark. (c) Prohibition against using benefits for current maintenance. [61 FR 10277, Mar. 13, 1996, as amended at 62 FR 1055, Jan. 8, 1997; 72 FR 50874, Sept. 5, 2007] § 416.215 You leave the United States. You lose your eligibility for SSI benefits for any month during all of which you are outside of the United States. If you are outside of the United States for 30 days or more in a row, you are not considered to be back in the United States until you are back for 30 days in a row. You may again be eligible for SSI benefits in the month in which the 30 days end if you continue to meet all other eligibility requirements. By United States, [47 FR 3103, Jan. 22, 1982. Redesignated at 61 FR 10277, Mar. 13, 1996] § 416.216 You are a child of armed forces personnel living overseas. (a) General rule. overseas i.e. (1) You are a child as described in § 416.1856; (2) You are a citizen of the United States; and (3) You are living with a parent as described in § 416.1881 who is a member of the armed forces of the United States assigned to permanent duty ashore overseas. (b) Living with. (1) You physically live with the parent who is a member of the armed forces overseas; or (2) You are not living in the same household as the military parent but your presence overseas is due to his or her permanent duty assignment. [58 FR 4897, Jan. 19, 1993; 58 FR 9597, Feb. 22, 1993, as amended at 59 FR 41400, Aug. 12, 1994. Redesignated at 61 FR 10277, Mar. 13, 1996; 70 FR 61366, Oct. 24, 2005] Eligibility for Increased Benefits Because of Essential Persons § 416.220 General. If you are a qualified § 416.221 Who is a qualified individual. You are a qualified individual if— (a) You received aid or assistance for the month of December 1973 under a State plan approved under title I, X, XIV, or XVI (AABD) of the Act; (b) The State took into account the needs of another person in deciding your need for the State assistance for December 1973; (c) That other person was living in your home in December 1973; and (d) That other person was not eligible for State assistance for December 1973. § 416.222 Who is an essential person. (a) General rule. (1) That person has continuously lived in the home of the same qualified individual since December 1973; (2) That person was not eligible for State assistance for December 1973; (3) That person was never eligible for SSI benefits in his or her own right or as an eligible spouse; and (4) There are State records which show that under a State plan in effect for June 1973, the State took that person's needs into account in determining the qualified individual's need for State assistance for December 1973. Any person who meets these requirements is an essential person. This means that the qualified individual can have more than one essential person. (b) Absence of an essential person from the home of a qualified individual. (1) The essential person intends to return; (2) The facts support this intention; (3) It is likely that he or she will return; and (4) The absence is not longer than 90 days. (c) Absence of a qualified individual from his or her home. (1) You intend to return; (2) The facts support your intention; (3) It is likely that you will return; and (4) Your absence does not exceed six months. (d) Essential person becomes eligible for SSI benefits. § 416.223 What happens if you are a qualified individual. (a) Increased SSI benefits. (1) You are a qualified individual; and (2) You have one or more essential persons in your home. In subpart D, we explain how these increased benefits are calculated. (b) Income and resource limits. (1) Your resources which are counted do not exceed the limit for SSI eligibility purposes (see subpart L); and (2) Your income which is counted for SSI eligibility purposes (see subpart K) does not exceed the sum of— (i) The SSI Federal benefit rate (see subpart D); and (ii) The proper number of essential person increments (for the value of an essential person increment see subpart D). One essential person increment is added to the SSI Federal benefit rate for each essential person in your home. (c) Excluding the income and resources of an essential person. (2) We will not include the income and resources of the essential person if the person's income or resources would cause you to lose your eligibility. The loss of the essential person increment will be permanent. § 416.250 Experimental, pilot, and demonstration projects in the SSI program. (a) Authority and purpose. (b) Altering benefit requirements, limitations or conditions. (c) Applicability and scope Participants and nonparticipants. (2) Alternative provisions or methods of administration. (d) Selection of participants. (e) Duration of experimental, pilot, and demonstration projects. Federal Register [48 FR 7576, Feb. 23, 1983, as amended at 52 FR 37605, Oct. 8, 1987; 62 FR 38454, July 18, 1997] Special Provisions for People Who Work Despite a Disabling Impairment § 416.260 General. The regulations in §§ 416.260 through 416.269 describe the rules for determining eligibility for special SSI cash benefits and for special SSI eligibility status for an individual who works despite a disabling impairment. Under these rules an individual who works despite a disabling impairment may qualify for special SSI cash benefits and in most cases for Medicaid benefits when his or her gross earned income exceeds the applicable dollar amount which ordinarily represents SGA described in § 416.974(b)(2). The calculation of this gross earned income amount, however, is not to be considered an actual SGA determination. Also, for purposes of determining eligibility or continuing eligibility for Medicaid benefits, a blind or disabled individual (no longer eligible for regular SSI benefits or for special SSI cash benefits) who, except for earnings, would otherwise be eligible for SSI cash benefits may be eligible for a special SSI eligibility status under which he or she is considered to be a blind or disabled individual receiving SSI benefits. We explain the rules for eligibility for special SSI cash benefits in §§ 416.261 and 416.262. We explain the rules for the special SSI eligibility status in §§ 416.264 through 416.269. [59 FR 41403, Aug. 12, 1994] § 416.261 What are special SSI cash benefits and when are they payable. Special SSI cash benefits are benefits that we may pay you in lieu of regular SSI benefits because your gross earned income in a month of initial eligibility for regular SSI benefits exceeds the amount ordinarily considered to represent SGA under § 416.974(b)(2). You must meet the eligibility requirements in § 416.262 in order to receive special SSI cash benefits. Special SSI cash benefits are not payable for any month in which your countable income exceeds the limits established for the SSI program (see subpart K of this part). If you are eligible for special SSI cash benefits, we consider you to be a disabled individual receiving SSI benefits for purposes of eligibility for Medicaid. We compute the amount of special SSI cash benefits according to the rules in subpart D of this part. If your State makes supplementary payments which we administer under a Federal-State agreement, and if your State elects to supplement the special SSI cash benefits, the rules in subpart T of this part will apply to these payments. [47 FR 15324, Apr. 9, 1982, as amended at 50 FR 46763, Nov. 13, 1985; 59 FR 41403, Aug. 12, 1994] § 416.262 Eligibility requirements for special SSI cash benefits. You are eligible for special SSI cash benefits if you meet the following requirements— (a) You were eligible to receive a regular SSI benefit or a federally administered State supplementary payment (see § 416.2001) in a month before the month for which we are determining your eligibility for special SSI cash benefits as long as that month was not in a prior period of eligibility which has terminated according to §§ 416.1331 through 416.1335; (b) In the month for which we are making the determination, your gross earned income exceeds the amount ordinarily considered to represent SGA under § 416.974(b)(2); (c) You continue to have a disabling impairment; and (d) [Reserved] (e) You meet all the nondisability requirements for eligibility for SSI benefits (see § 416.202). We will follow the rules in this subpart in determining your eligibility for special SSI cash benefits. [47 FR 15324, Apr. 9, 1982, as amended at 59 FR 41404, Aug. 12, 1994; 60 FR 8149, Feb. 10, 1995; 64 FR 31972, June 15, 1999; 91 FR 16830, Apr. 3, 2026] § 416.263 No additional application needed. We do not require you to apply for special cash benefits nor is it necessary for you to apply to have the special SSI eligibility status determined. We will make these determinations automatically. [47 FR 15324, Apr. 9, 1982] § 416.264 When does the special SSI eligibility status apply. The special SSI eligibility status applies for the purposes of establishing or maintaining your eligibility for Medicaid. For these purposes we continue to consider you to be a blind or disabled individual receiving benefits even though you are in fact no longer receiving regular SSI benefits or special SSI cash benefits. You must meet the eligibility requirements in § 416.265 in order to qualify for the special SSI eligibility status. Special SSI eligibility status also applies for purposes of reacquiring status as eligible for regular SSI benefits or special SSI cash benefits. [59 FR 41404, Aug. 12, 1994] § 416.265 Requirements for the special SSI eligibility status. In order to be eligible for the special SSI eligibility status, you must have been eligible to receive a regular SSI benefit or a federally administered State supplementary payment (see § 416.2001) in a month before the month for which we are making the special SSI eligibility status determination. The month you were eligible for a regular SSI benefit or a federally administered State supplementary payment may not be in a prior period of eligibility which has been terminated according to §§ 416.1331 through 416.1335. For periods prior to May 1, 1991, you must be under age 65. Also, we must establish that: (a) You continue to be blind or continue to have a disabling impairment. (b) Except for your earnings, you meet all the nondisability requirements for eligibility for SSI benefits (see § 416.202); (c) The termination of your eligibility for Medicaid would seriously inhibit your ability to continue working (see § 416.268); and (d) Your earnings after the exclusions in § 416.1112(c) (6), (8), and (9) are not sufficient to allow you to provide yourself with a reasonable equivalent of the benefits (SSI benefits, federally administered State supplementary payments, Medicaid, and publicly-funded attendant care services, including personal care assistance under § 416.269(d)) which would be available to you if you did not have those earnings (see § 416.269). [47 FR 15324, Apr. 9, 1982, as amended at 59 FR 41404, Aug. 12, 1994; 59 FR 49291, Sept. 27, 1994; 60 FR 8149, Feb. 10, 1995; 91 FR 16830, Apr. 3, 2026] § 416.266 Continuation of SSI status for Medicaid If we stop your benefits because of your earnings and you are potentially eligible for the special SSI eligibility status you will continue to be considered an SSI recipient for purposes of eligibility for Medicaid during the time it takes us to determine whether the special eligibility status applies to you. [47 FR 15324, Apr. 9, 1982] § 416.267 General. We determine whether the special SSI eligibility status applies to you by verifying that you continue to be blind or have a disabling impairment by applying the rules in subpart I of this part, and by following the rules in this subpart to determine whether you meet the requirements in § 416.265(b). If you do not meet these requirements we determine that the special eligibility status does not apply. If you meet these requirements, then we apply special rules to determine if you meet the requirements of § 416.265 (c) and (d). If for the period being evaluated, you meet all of the requirements in § 416.265 we determine that the special status applies to you. [47 FR 15324, Apr. 9, 1982] § 416.268 What is done to determine if you must have Medicaid in order to work. For us to determine that you need Medicaid benefits in order to continue to work, you must establish: (a) That you are currently using or have received services which were paid for by Medicaid during the period which began 12 months before our first contact with you to discuss this use; or (b) That you expect to use these services within the next 12 months; or (c) That you would need Medicaid to pay for unexpected medical expenses in the next 12 months. [59 FR 41404, Aug. 12, 1994] § 416.269 What is done to determine whether your earnings are too low to provide comparable benefits and services you would receive in the absence of those earnings. (a) What we determine. (b) How the determination is made. (1) The amount of gross earnings including amounts excluded under § 416.1112(c) (4), (5) and (7) that would reduce to zero the Federal SSI benefit and the optional State supplementary payment for an individual with no other income living in his or her own household in the State where you reside. This amount will vary from State to State depending on the amount of the State supplementary payment; and (2) The average expenditures for Medicaid benefits for disabled and blind SSI cash recipients, including recipients of federally administered State supplementary payments only, in your State of residence. (c) How the eligibility requirements are met. (i) The amount determined under paragraph (b)(1) of this section that would reduce to zero the Federal SSI benefit and State supplementary payment for your actual living arrangement; (ii) The average Medicaid expenditures for your State of residence under paragraph (b)(2) of this section or, if higher, your actual medical expenditures in the appropriate 12-month period; (iii) Any amounts excluded from your income as impairment-related work expenses (see § 416.1112(c)(6)), work expenses of the blind (see § 416.1112(c)(8)), and income used or set aside for use under an approved plan for achieving self support (see § 416.1112(c)(9)); and (iv) the value of any publicly-funded attendant care services as described in paragraph (d) of this section (including personal care assistance). (2) If you have already completed the 12-month period for which we are determining your eligibility, we will consider only the expenditures made in that period. (d) Attendant care services. (1) Provided by a paid attendant; (2) Needed to assist with work-related and/or personal functions; and (3) Paid from Federal, State, or local funds. (e) Annual update of information. [59 FR 41404, Aug. 12, 1994; 59 FR 49291, Sept. 27, 1994] Subpart C—Filing of Applications Authority: Secs. 702(a)(5), 1611, and 1631 (a), (d), and (e) of the Social Security Act (42 U.S.C. 902(a)(5), 1382, and 1383 (a), (d), and (e)). Source: 45 FR 48120, July 18, 1980, unless otherwise noted. General Provisions § 416.301 Introduction. This subpart contains the rules for filing a claim for supplemental security income (SSI) benefits. It tells you what an application is, who may sign it, who must file one to be eligible for benefits, the period of time it is in effect, and how it may be withdrawn. It also tells you when a written statement or an oral inquiry may be considered to establish an application filing date. § 416.302 Definitions. For the purpose of this subpart— Benefits Claimant We us You your § 416.305 You must file an application to receive supplemental security income benefits. (a) General rule. (1) Permit us to make a formal determination whether or not you are eligible to receive benefits; (2) Assure that you receive benefits for any months you are eligible to receive payment; and (3) Give you the right to appeal if you disagree with the determination. (b) Exceptions. (1) You have been receiving benefits as an eligible spouse and are no longer living with your husband or wife; (2) You have been receiving benefits as an eligible spouse of an eligible individual who has died; (3) You have been receiving benefits because you are disabled or blind and you are 65 years old before the date we determine that you are no longer blind or disabled. (4) A redetermination of your eligibility is being made and it is found that you were not eligible for benefits during any part of a period for which we are making a redetermination but you currently meet the requirements for eligibility; (5) You are notified that your payments of SSI benefits will be stopped because you are no longer eligible and you again meet the requirements for eligibility before your appeal rights are exhausted. [45 FR 48120, July 18, 1980, as amended at 60 FR 16374, Mar. 30, 1995; 64 FR 31972, June 15, 1999] Applications § 416.310 What makes an application a claim for benefits. An application will be considered a claim for benefits, if the following requirements are met: (a) An application form prescribed by us must be filled out. (b) be filed at a social security office, at another Federal or State office we have designated to receive applications for us, or with a person we have authorized to receive applications for us. See § 416.325. (c) The claimant or someone who may sign an application for the claimant must sign the application. See §§ 416.315 and 416.320. (d) The claimant must be alive at the time the application is filed. See §§ 416.340, 416.345, and 416.351 for exceptions. [45 FR 48120, July 18, 1980, as amended at 59 FR 44926, Aug. 31, 1994] § 416.315 Who may sign an application. We will determine who may sign an application according to the following rules: (a) If you are 18 years old or over, mentally competent, and physically able, you must sign your own application. If you are 16 years old or older and under age 18, you may sign the application if you are mentally competent, have no court appointed representative, and are not in the care of any other person or institution. (b) If the claimant is under age 18, or is mentally incompetent, or is physically unable to sign the application, a court appointed representative or a person who is responsible for the care of the claimant, including a relative, may sign the application. If the claimant is in the care of an institution, the manager or principal officer of the institution may sign the application. (c) To prevent a claimant from losing benefits because of a delay in filing an application when there is a good reason why the claimant cannot sign an application, we may accept an application signed by someone other than a person described in this section. Example: Mr. Smith comes to a Social Security office to file an application for SSI disability benefits for Mr. Jones. Mr. Jones, who lives alone, just suffered a heart attack and is in the hospital. He asked Mr. Smith, whose only relationship is that of a neighbor and friend, to file the application for him. We will accept an application signed by Mr. Smith since it would not be possible to have Mr. Jones sign and file the application at this time. SSI benefits can be paid starting with the first day of the month following the month the individual first meets all eligibility requirements for such benefits, including having filed an application. If Mr. Smith could not sign an application for Mr. Jones, a loss of benefits would result if it is later determined that Mr. Jones is in fact disabled. [45 FR 48120, July 18, 1980, as amended at 51 FR 13492, Apr. 21, 1986; 64 FR 31972, June 15, 1999] § 416.320 Evidence of authority to sign an application for another. (a) A person who signs an application for someone else will be required to provide evidence of his or her authority to sign the application for the person claiming benefits under the following rules: (1) If the person who signs is a court appointed representative, he or she must submit a certificate issued by the court showing authority to act for the claimant. (2) If the person who signs is not a court appointed representative, he or she must submit a statement describing his or her relationship to the claimant. The statement must also describe the extent to which the person is responsible for the care of the claimant. This latter information will not be requested if the application is signed by a parent for a child with whom he or she is living. If the person signing is the manager or principal officer of an institution he or she should show his or her title. (b) We may, at any time, require additional evidence to establish the authority of a person to sign an application for someone else. [45 FR 48120, July 18, 1980, as amended at 51 FR 13493, Apr. 21, 1986] § 416.325 When an application is 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 §§ 416.340, 416.345 and 416.350. (3) We will establish a “deemed” filing date of an application in a case of misinformation under the conditions described in § 416.351. The filing date of the application will be a date determined under § 416.351(b). [45 FR 48120, July 18, 1980, as amended at 51 FR 13493, Apr. 21, 1986; 59 FR 44926, Aug. 31, 1994] § 416.327 Pilot program for photographic identification of disability benefit applicants in designated geographic areas. (a) To be eligible for SSI disability or blindness benefits in the designated pilot geographic areas during the time period of the pilot, you or a person acting on your behalf must give SSA permission to take your photograph and make this photograph a part of the claims folder. You must give us this permission when you apply for benefits and/or when we ask for it at a later time. Failure to cooperate will result in denial of benefits. We will permit an exception to the photograph requirement when an individual has a sincere religious objection. This pilot will be in effect for a six-month period after these final rules become effective. (b) Designated pilot geographic areas (1) All SSA field offices in the State of South Carolina. (2) The Augusta, Georgia SSA field office. (3) All SSA field offices in the State of Kansas. (4) Selected SSA field offices located in New York City. [68 FR 23195, May 1, 2003] Effective Filing Period of Application § 416.330 Filing before the first month you meet the requirements for eligibility. If you file an application for SSI benefits before the first month you meet all the other requirements for eligibility, the application will remain in effect from the date it is filed until we make a final determination on your application, 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. (a) If you meet all the requirements for eligibility while your application is in effect, the earliest month for which we can pay you benefits is the month following the month that you first meet all the requirements. (b) If you first meet all the requirements for eligibility after the period for which your application was in effect, you must file a new application for benefits. In this case, we can pay you benefits only from the first day of the month following the month that you meet all the requirements based on the new application. [64 FR 31973, June 15, 1999] § 416.335 Filing in or after the month you meet the requirements for eligibility. When you file an application in the month that you meet all the other requirements for eligibility, the earliest month for which we can pay you benefits is the month following the month you filed the application. If you file an application after the month you first meet all the other requirements for eligibility, we cannot pay you for the month in which your application is filed or any months before that month. See §§ 416.340, 416.345 and 416.350 on how a written statement or an oral inquiry made before the filing of the application form may affect the filing date of the application. [64 FR 31973, June 15, 1999] Filing Date Based Upon a Written Statement or Oral Inquiry § 416.340 Use of date of written statement as application filing date. We will use the date a written statement, such as a letter, an SSA questionnaire or some other writing, is received at a social security office, at another Federal or State office designated by us, or by a person we have authorized to receive applications for us as the filing date of an application for benefits, only if the use of that date will result in your eligibility for additional benefits. If the written statement is mailed, we will use the date the statement was mailed to us as shown by a United States postmark. If the postmark is unreadable or there is no 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 of an application for benefits. In order for us to use your written statement to protect your filing date, the following requirements must be met: (a) The written statement shows an intent to claim benefits for yourself or for another person. (b) You, your spouse or a person who may sign an application for you signs the statement. (c) An application form signed by you or by a person who may sign an application for you is filed with us within 60 days after the date of a notice we will send telling of the need to file an application. The notice will say that we will make an initial determination of eligibility for SSI benefits if an application form is filed within 60 days after the date of the notice. (We will send the notice to the claimant, or where he or she is a minor or incompetent, to the person who gave us the written statement.) (d)(1) The claimant is alive when the application is filed on a prescribed form, or (2) If the claimant dies after the written statement is filed, the deceased claimant's surviving spouse or parent(s) who could be paid the claimant's benefits under § 416.542(b), or someone on behalf of the surviving spouse or parent(s) files an application form. If we learn that the claimant has died before the notice is sent or within 60 days after the notice but before an application form is filed, we will send a notice to such a survivor. The notice will say that we will make an initial determination of eligibility for SSI benefits only if an application form is filed on behalf of the deceased within 60 days after the date of the notice to the survivor. [45 FR 48120, July 18, 1980, as amended at 51 FR 13493, Apr. 21, 1986; 58 FR 52912, Oct. 13, 1993] § 416.345 Use of date of oral inquiry as application filing date. We will use the date of an oral inquiry about SSI benefits as the filing date of an application for benefits only if the use of that date will result in your eligibility for additional benefits and the following requirements are met: (a) The inquiry asks about the claimant's eligibility for SSI benefits. (b) The inquiry is made by the claimant, the claimant's spouse, or a person who may sign an application on the claimant's behalf as described in § 416.315. (c) The inquiry, whether in person or by telephone, is directed to an office or an official described in § 416.310(b). (d) The claimant or a person on his or her behalf as described in § 416.315 files 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 of eligibility for SSI benefits if an application form is filed within 60 days after the date of the notice. (We will send the notice to the claimant or, where he or she is a minor or incompetent, to the person who made the inquiry.) (e)(1) The claimant is alive when the application is filed on a prescribed form, or (2) If the claimant dies after the oral inquiry is made, the deceased claimant's surviving spouse or parent(s) who could be paid the claimant's benefits under § 416.542(b), or someone on behalf of the surviving spouse or parent(s) files an application form. If we learn that the claimant has died before the notice is sent or within 60 days after the notice but before an application form is filed, we will send a notice to such a survivor. The notice will say that we will make an initial determination of eligibility for SSI benefits only if an application form is filed on behalf of the deceased within 60 days after the date of the notice to the survivor. [45 FR 48120, July 18, 1980, as amended at 51 FR 13493, Apr. 21, 1986; 58 FR 52912, Oct. 13, 1993] § 416.350 Treating a title II application as an oral inquiry about SSI benefits. (a) When a person applies for benefits under title II (retirement, survivors, or disability benefits) we will explain the requirements for receiving SSI benefits and give the person a chance to file an application for them if— (1) The person is within 2 months of age 65 or older or it looks as if the person might qualify as a blind or disabled person, and (2) It is not clear that the person's title II benefits would prevent him or her from receiving SSI or any State supplementary benefits handled by the Social Security Administration. (b) If the person applying for title II benefits does not file an application for SSI on a prescribed form when SSI is explained to him or her, we will treat his or her filing of an application for title II benefits as an oral inquiry about SSI, and the date of the title II application form may be used to establish the SSI application date if the requirements of § 416.345 (d) and (e) are met. Deemed Filing Date Based on Misinformation § 416.351 Deemed filing date in a case of misinformation. (a) General. Example 1: Ms. Jones calls a Social Security office to inquire about filing an application for SSI benefits. During her conversation with an SSA employee, she tells the employee about her resources. The SSA employee tells Ms. Jones that because her countable resources are above the allowable limit, she would be ineligible for SSI benefits. The employee fails to consider certain resource exclusions under the SSI program which would have reduced Ms. Jones' countable resources below the allowable limit, making her eligible for benefits. Because Ms. Jones thought that she would be ineligible, she decides not to file an application for SSI benefits. Ms. Jones later reads about resource exclusions under the SSI program. She recontacts the Social Security office to file an SSI application, and alleges that she had been previously misinformed about her eligibility for SSI benefits. She files an application for SSI benefits, provides the information required under paragraph (f) of this section to show that an SSA employee provided misinformation, and requests a deemed filing date based upon her receipt of misinformation. Example 2: Mr. Adams resides in a State which provides State supplementary payments that are administered by SSA under the SSI program. He telephones a Social Security office and tells an SSA employee that he does not have enough income to live on and wants to file for SSI benefits. Mr. Adams states that his only income is his monthly Social Security benefit check. The SSA employee checks Mr. Adams' Social Security record and advises him that he is ineligible for SSI benefits based on the amount of his monthly Social Security benefit. The employee does not consider whether Mr. Adams would be eligible for State supplementary payments. Because Mr. Adams was told that he would not be eligible for benefits under the SSI program, he does not file an application. The employee does not make a record of Mr. Adams' oral inquiry or take any other action. A year later, Mr. Adams speaks to a neighbor who receives the same Social Security benefit amount that Mr. Adams does, but also receives payments under the SSI program. Thinking the law may have changed, Mr. Adams recontacts a Social Security office and learns from an SSA employee that he would be eligible for State supplementary payments under the SSI program and that he could have received these payments earlier had he filed an application. Mr. Adams explains that he did not file an application earlier because he was told by an SSA employee that he was not eligible for SSI benefits. Mr. Adams files an application for the benefits, provides the information required under paragraph (f) of this section to show that an SSA employee provided misinformation, and requests a deemed filing date based on the misinformation provided to him earlier. (b) Deemed filing date of an application based on misinformation. (1)(i) If we determine that you failed to apply for SSI benefits for yourself because we gave you misinformation about your eligibility for such benefits, we will deem an application for such benefits to have been filed with us on the later of— (A) The date on which the misinformation was provided to you; or (B) The date on which you met all of the requirements for eligibility for such benefits, other than the requirement of filing an application. (ii) Before we may establish a deemed filing date of an application for benefits for you under paragraph (b)(1)(i) of this section, you or a person described in § 416.315 must file an application for such benefits. If you die before an application for the benefits is filed with us, we will consider establishing a deemed filing date of an application for such benefits only if a person who would be qualified under § 416.542(b) to receive any benefits due you, or someone on his or her behalf, files an application for the benefits. (2)(i) If you had authority under § 416.315 to sign an application for benefits for another person, and we determine that you failed to apply for SSI benefits for that person because we gave you misinformation about that person's eligibility for such benefits, we will deem an application for such benefits to have been filed with us on the later of— (A) The date on which the misinformation was provided to you; or (B) The date on which the person met all of the requirements for eligibility for such benefits, other than the requirement of filing an application. (ii) Before we may establish a deemed filing date of an application for benefits for the person under paragraph (b)(2)(i) of this section, you, such person, or another person described in § 416.315 must file an application for such benefits. If the person referred to in paragraph (b)(2)(i) of this section dies before an application for the benefits is filed with us, we will consider establishing a deemed filing date of an application for such benefits only if a person who would be qualified under § 416.542(b) to receive any benefits due the deceased person, or someone on his behalf, files an application for the 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. (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, or the particular circumstances of the person referred to in paragraph (b)(2)(i) of this section. In addition, for us to find that the information you received 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 eligibility for benefits or the eligibility for benefits of the person referred to in paragraph (b)(2)(i) of this section for which you were considering filing an application. (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) The SSI Benefit Estimate Letter that is based on an individual's reported and projected income and is an estimate which can be requested at any time; (3) General information which we review or prepare but which is disseminated by the media, e.g., radio, television, magazines, and newspapers; and (4) Information provided by other governmental agencies, e.g., the Department of Veterans Affairs, the Department of Defense, State unemployment agencies, and State and local governments. (f) Claim for benefits based on misinformation. (1) An application for the benefits described in paragraph (b)(1)(i) or (b)(2)(i) of this section is filed with us by someone described in paragraph (b)(1)(ii) or (b)(2)(ii) of this section, as appropriate. 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 the benefits, but only if the claimant continues to be eligible for benefits (or again could be eligible for 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 under § 416.1488; 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 the claimant becoming eligible for benefits or for 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 under § 416.1488. (g) Effective date. [59 FR 44926, Aug. 31, 1994] Withdrawal of Application § 416.355 Withdrawal of an application. (a) Request for withdrawal filed before we make a determination. (1) You or a person who may sign an application for you signs a written request to withdraw the application and files it at a place described in § 416.325. (2) You are alive when the request is filed. (b) Request for withdrawal filed after a determination is made. (1) The conditions in paragraph (a) of this section are met. (2) Every other person who may lose benefits because of the withdrawal consents in writing (anyone who could sign an application for that person may give the consent). (3) All benefits already paid based on the application are repaid or we are satisfied that they will be repaid. (c) Effect of withdrawal. § 416.360 Cancellation of a request to withdraw. You may cancel your request to withdraw your application and your application will still be good if the following requirements are met: (a) You or a person who may sign an application for you signs a written request for cancellation and files it at a place described in § 416.325. (b) You are alive at the time the request for cancellation is filed. (c) For a cancellation request received after we have approved the withdrawal, the cancellation request is filed no later than 60 days after the date of the notice of approval of the withdrawal request. Subpart D—Amount of Benefits Authority: Secs. 702(a)(5), 1611 (a), (b), (c), and (e), 1612, 1617, and 1631 of the Social Security Act (42 U.S.C. 902(a)(5), 1382 (a), (b), (c), and (e), 1382a, 1382f, and 1383). § 416.401 Scope of subpart. This subpart D sets forth basic guidelines for establishing the amount of monthly benefits payable to an eligible individual or couple (as defined in § 416.120(c)(5)). This subpart does not contain provisions with respect to establishing the amount of State supplementary payments payable in accordance with an agreement entered into between a State and the Administration under the provisions of subpart T of this part. Provisions with respect to determination and payment of State supplementary payments under such agreements will be administered by the Administration in accordance with the terms set forth in such agreements. [39 FR 23053, June 26, 1974] § 416.405 Cost-of-living adjustments in benefits. Whenever benefit amounts under title II of the Act (part 404 of this chapter) are increased by any percentage effective with any month as a result of a determination made under Section 215(i) of the Act, each of the dollar amounts in effect for such month under §§ 416.410, 416.412, and 416.413, as specified in such sections or as previously increased under this section or under any provision of the Act, will be increased. We will increase the unrounded yearly SSI benefit amount by the same percentage by which the title II benefits are being increased based on the Consumer Price Index, or, if greater, the percentage they would be increased if the rise in the Consumer Price Index were currently the basis for the title II increase. (See §§ 404.270-404.277 for an explanation of how the title II cost-of-living adjustment is computed.) If the increased annual SSI benefit amount is not a multiple of $12, it will be rounded to the next lower multiple of $12. [51 FR 12606, Apr. 21, 1986; 51 FR 16016, Apr. 30, 1986] § 416.410 Amount of benefits; eligible individual. The benefit under this part for an eligible individual (including the eligible individual receiving benefits payable under the § 416.212 provisions) who does not have an eligible spouse, who is not subject to either benefit suspension under § 416.1325 or benefit reduction under § 416.414, and who is not a qualified individual (as defined in § 416.221) shall be payable at the rate of $5,640 per year ($470 per month) effective for the period beginning January 1, 1996. This rate is the result of a 2.6 percent cost-of-living adjustment (see § 416.405) to the December 1995 rate. For the period January 1, through December 31, 1995, the rate payable, as increased by the 2.8 percent cost-of-living adjustment, was $5,496 per year ($458 per month). For the period January 1, through December 31, 1994, the rate payable, as increased by the 2.6 percent cost-of-living adjustment, was $5,352 per year ($446 per month). The monthly rate is reduced by the amount of the individual's income which is not excluded pursuant to subpart K of this part. [61 FR 10278, Mar. 13, 1996] § 416.412 Amount of benefits; eligible couple. The benefit under this part for an eligible couple (including couples where one or both members of the couple are receiving benefits payable under the § 416.212 provisions), neither of whom is subject to suspension of benefits based on § 416.1325 or reduction of benefits based on § 416.414 nor is a qualified individual (as defined in § 416.221) shall be payable at the rate of $8,460 per year ($705 per month), effective for the period beginning January 1, 1996. This rate is the result of a 2.6 percent cost-of-living adjustment (see § 416.405) to the December 1995 rate. For the period January 1, through December 31, 1995, the rate payable, as increased by the 2.8 percent cost-of-living adjustment, was $8,224 per year ($687 per month). For the period January 1, through December 31, 1994, the rate payable, as increased by the 2.6 percent cost-of-living adjustment, was $8,028 per year ($669 per month). The monthly rate is reduced by the amount of the couple's income which is not excluded pursuant to subpart K of this part. [61 FR 10278, Mar. 13, 1996] § 416.413 Amount of benefits; qualified individual. The benefit under this part for a qualified individual (defined in § 416.221) is payable at the rate for an eligible individual or eligible couple plus an increment for each essential person (defined in § 416.222) in the household, reduced by the amount of countable income of the eligible individual or eligible couple as explained in § 416.420. A qualified individual will receive an increment of $2,820 per year ($235 per month), effective for the period beginning January 1, 1996. This rate is the result of the 2.6 percent cost-of-living adjustment (see § 416.405) to the December 1995 rate, and is for each essential person (as defined in § 416.222) living in the household of a qualified individual. (See § 416.532.) For the period January 1, through December 31, 1995, the rate payable, as increased by the 2.8 percent cost-of-living adjustment, was $2,748 per year ($229 per month). For the period January 1, through December 31, 1994, the rate payable, as increased by the 2.6 percent cost-of-living adjustment, was $2,676 per year ($223 per month). The total benefit rate, including the increment, is reduced by the amount of the individual's or couple's income that is not excluded pursuant to subpart K of this part. [61 FR 10278, Mar. 13, 1996] § 416.414 Amount of benefits; eligible individual or eligible couple in a medical treatment facility. (a) General rule. (1) Those who are otherwise eligible and who are in the medical treatment facility throughout a month. (By throughout a month (2) Those who reside for part of a month in a public institution and for the rest of the month are in a public or private medical treatment facility where Medicaid pays or would have paid (but for the application of section 1917(c) of the Act) a substantial part (more than 50 percent) of the cost of their care; and (3) Children under age 18 who reside for part of a month in a public institution and for the rest of the month are in a public or private medical treatment facility where a substantial part (more than 50 percent) of the cost of their care is being paid under a health insurance policy issued by a private provider or by a combination of Medicaid and payments under a health insurance policy issued by a private provider. (b) The benefit rates are Eligible individual. (2) Eligible couple both of whom are temporarily absent from home in medical treatment facilities as described in § 416.1149(c)(1). (3) Eligible couple with one spouse who is temporarily absent from home as described in § 416.1149(c)(1). (i) For months after June 1988, $30 per month for the spouse in the medical treatment facility; plus (ii) The benefit rate for an eligible individual (see § 416.410) for the spouse who is not in the medical treatment facility. The benefit payment for each spouse is figured by subtracting each individual's own countable income in the appropriate month (see § 416.420) from his or her portion of the benefit rate shown in paragraphs (b)(3) (i) and (ii). (c) Definition. medical treatment facility [47 FR 3106, Jan. 22, 1982, as amended at 50 FR 48571, Nov. 26, 1985; 50 FR 51514, Dec. 18, 1985; 54 FR 19164, May 4, 1989; 58 FR 64894, Dec. 10, 1993; 60 FR 16374, Mar. 30, 1995; 61 FR 10278, Mar. 13, 1996; 62 FR 1056, Jan. 8, 1997; 72 FR 50874, Sept. 5, 2007; 72 FR 54350, Sept. 25, 2007] § 416.415 Amount of benefits; eligible individual is disabled child under age 18. (a) If you are a disabled child under age 18 and meet the conditions in § 416.1165(i) for waiver of deeming, your parents' income will not be deemed to you and your benefit rate will be $30 a month. (b) If you are a disabled child under age 18 and do not meet the conditions in § 416.1165(i) only because your parents' income is not high enough to make you ineligible for SSI but deeming of your parents' income would result in an SSI benefit less than the amount payable if you received benefits as a child under § 416.1165(i), your benefit will be the amount payable if you received benefits as a child under § 416.1165(i). [60 FR 361, Jan. 4, 1995] § 416.420 Determination of benefits; general. Benefits shall be determined for each month. The amount of the monthly payment will be computed by reducing the benefit rate (see §§ 416.410, 416.412, 416.413, and 416.414) by the amount of countable income as figured under the rules in subpart K of this part. The appropriate month's countable income to be used to determine how much your benefit payment will be for the current month (the month for which a benefit is payable) will be determined as follows: (a) General rule. Example 1. Mrs. X's benefit amount is being determined for September (the current month). Mrs. X's countable income in July is used to determine the benefit amount for September. Example 2. Mr. Z's SSI benefit amount is being determined for January (the current month). There has been a cost-of-living increase in SSI benefits effective January. Mr. Z's countable income in November is used to determine the benefit amount for January. In November, Mr. Z had in-kind support and maintenance valued at the presumed maximum value as described in § 416.1140(a). We will use the January benefit rate, as increased by the COLA, to determine the value of the in-kind support and maintenance Mr. Z received in November when we determine Mr. Z's SSI benefit amount for January. Example 3. Mr. Y's SSI benefit amount is being determined for January (the current month). Mr. Y has Social Security income of $100 in November, $100 in December, and $105 in January. We find the amount by which his Social Security income in January exceeds his Social Security income in November ($5) and add that to his income in November to determine the SSI benefit amount for January. (b) Exceptions to the general rule First month of initial eligibility for payment or the first month of eligibility after a month of ineligibility. Example: Mrs. Y applies for SSI benefits in September and meets the requirements for eligibility in that month. (We use Mrs. Y's countable income in September to determine if she is eligible for SSI in September.) The first month for which she can receive payment is October (see § 416.501). We use Mrs. Y's countable income in October to determine the amount of her benefit for October. If Mrs. Y had been receiving SSI benefits through July, became ineligible for SSI benefits in August, and again became eligible for such benefits in September, we would use Mrs. Y's countable income in September to determine the amount of her benefit for September. In addition, the proration rules discussed above would also apply to determine the amount of benefits in September in this second situation. (2) Second month of initial eligibility for payment or second month of eligibility after a month of ineligibility. Example: Mrs. Y was initially eligible for payment of SSI benefits in October. Her benefit amount for November will be based on her countable income in October (first prior month). (3) Third month of initial eligibility for payment or third month of eligibility after a month of ineligibility. Example: Mrs. Y was initially eligible for payment of SSI benefits in October. Her benefit amount for December will be based on her countable income in October (second prior month). (4) Income derived from certain assistance payments. (i) Aid to Families with Dependent Children under title IV-A of the Social Security Act (the Act); (ii) Foster Care under title IV-E of the Act; (iii) Refugee Cash Assistance pursuant to section 412(e) of the Immigration and Nationality Act; (iv) Cuban and Haitian Entrant Assistance pursuant to section 501(a) of Pub. L. 96-422; and (v) Bureau of Indian Affairs general assistance and child welfare assistance pursuant to 42 Stat. 208 as amended. (c) Reliable information which is currently available for determining benefits. (1) Reliable information. reliable information (2) Currently available information. currently available information (d) Payment of benefits. [50 FR 48571, Nov. 26, 1985; 50 FR 51514, Dec. 18, 1985, as amended at 54 FR 31657, Aug. 1, 1989; 62 FR 30751, June 5, 1997; 63 FR 33546, June 19, 1998; 64 FR 31973, June 15, 1999] § 416.421 Determination of benefits; computation of prorated benefits. (a) In the month that you reacquire eligibility after a month or more of ineligibility (see § 416.1320(b)), your benefit will be prorated according to the number of days in the month that you are eligible beginning with the date on which you meet all eligibility requirements. (b) In determining the amount of your benefit for a month in which benefits are to be prorated, we first compute the amount of the benefit that you would receive for the month as if proration did not apply. We then determine the date on which you meet all factors of eligibility. (The income limits must be met based on the entire month and the resource limit must be as of the first day of the month.) We then count the number of days in the month beginning with the day on which you first meet all factors of eligibility through the end of the month. We then multiply the amount of your unprorated benefit for the month by the number of days for which you are eligible for benefits and divide that figure by the number of days in the month for which your benefit is being determined. The result is the amount of the benefit that you are due for the month in which benefits are to be prorated. [51 FR 13493, Apr. 14, 1986, as amended at 64 FR 31973, June 15, 1999] § 416.426 Change in status involving an individual; ineligibility occurs. Whenever benefits are suspended or terminated for an individual because of ineligibility, no benefit is payable for that month. [50 FR 48571, Nov. 26, 1985] § 416.428 Eligible individual without an eligible spouse has an essential person in his home. When an eligible individual without an eligible spouse has an essential person (as defined in § 416.222 of this part) in his home, the amount by which his rate of payment is increased is determined in accordance with §§ 416.220 through 416.223 and with 416.413 of this part. The essential person's income is deemed to be that of the eligible individual, and the provisions of §§ 416.401 through 416.426 will apply in determining the benefit of such eligible individual. [39 FR 23053, June 26, 1974, as amended at 51 FR 10616, Mar. 28, 1986; 65 FR 16814, Mar. 30, 2000] § 416.430 Eligible individual with eligible spouse; essential person(s) present. (a) When an eligible individual with an eligible spouse has an essential person (§ 416.222) living in his or her home, or when both such persons each has an essential person, the increase in the rate of payment is determined in accordance with §§ 416.413 and 416.532. The income of the essential person(s) is included in the income of the couple and the payment due will be equally divided between each member of the eligible couple. (b) When one member of an eligible couple is temporarily absent in accordance with § 416.1149(c)(1) and § 416.222(c) and either one or both individuals has an essential person, add the essential person increment to the benefit rate for the member of the couple who is actually residing with the essential person and include the income of the essential person in that member's income. See § 416.414(b)(3). [60 FR 16375, Mar. 30, 1995] § 416.432 Change in status involving a couple; eligibility continues. When there is a change in status which involves the formation or dissolution of an eligible couple (for example, marriage, divorce), a redetermination of the benefit amount shall be made for the months subsequent to the month of such formation or dissolution of the couple in accordance with the following rules: (a) When there is a dissolution of an eligible couple and each member of the couple becomes an eligible individual, the benefit amount for each person shall be determined individually for each month beginning with the first month after the month in which the dissolution occurs. This shall be done by determining the applicable benefit rate for an eligible individual with no eligible spouse according to §§ 416.410 or 416.413 and 416.414 and applying § 416.420(a). See § 416.1147a for the applicable income rules when in-kind support and maintenance is involved. (b) When two eligible individuals become an eligible couple, the benefit amount will be determined for the couple beginning with the first month following the month of the change. This shall be done by determining which benefit rate to use for an eligible couple according to §§ 416.412 or 416.413 and 416.414 and applying the requirements in § 416.420(a). [60 FR 16375, Mar. 30, 1995] § 416.435 Change in status involving a couple; ineligibility occurs. Whenever benefits are suspended or terminated for both members of a couple because of ineligibility, no benefits are payable for that month. However, when benefits are suspended or terminated for one member of a couple because of ineligibility for a month, the member who remains eligible assumes the eligibility status of an eligible individual without an eligible spouse for such month and the benefit rate and payment amount will be determined as an eligible individual for the month. [50 FR 48572, Nov. 26, 1985] Subpart E—Payment of Benefits, Overpayments, and Underpayments Authority: Secs. 702(a)(5), 1147, 1601, 1602, 1611(c) and (e), and 1631(a)-(d) and (g) of the Social Security Act (42 U.S.C. 902(a)(5), 1320b-17, 1381, 1381a, 1382(c) and (e), and 1383(a)-(d) and (g)); 31 U.S.C. 3716; 31 U.S.C. 3720A. § 416.501 Payment of benefits: General. Payment of SSI benefits will be made for the month after the month of initial eligibility and for each subsequent month provided all requirements for eligibility (see § 416.202) and payment (see § 416.420) are met. In the month the individual re-establishes eligibility after at least a month of ineligibility, benefits are paid for such a month beginning with the date in the month on which the individual meets all eligibility requirements. In some months, while the factors of eligibility based on the current month may be established, it is possible to receive no payment for that month if the factors of eligibility for payment are not met. Payment of benefits may not be made for any period that precedes the first month following the date on which an application is filed or, if later, the first month following the date all conditions for eligibility are met. [64 FR 31973, June 15, 1999] § 416.502 Manner of payment. For the month an individual reestablishes eligibility after a month of ineligibility, an SSI payment will be made on or after the day of the month on which the individual becomes reeligible to receive benefits. In all other months, a payment will be made on the first day of each month and represents payment for that month. If the first day of the month falls on a Saturday, Sunday, or legal holiday, payments will be made on the first day preceding such day which is not a Saturday, Sunday, or legal holiday. Unless otherwise indicated, the monthly amount for an eligible couple will be divided equally and paid separately to each individual. Section 416.520 explains emergency advance payments. [55 FR 4422, Feb. 8, 1990, as amended at 64 FR 31974, June 15, 1999] § 416.503 Minimum monthly benefit amount. If you receive an SSI benefit that does not include a State supplement the minimum monthly SSI benefit amount payable is $1. When an SSI benefit amount of less than $1 is payable, the benefit amount will be increased to $1. If you receive an SSI benefit that does include a State supplement and the SSI benefit amount is less than $1 but when added to the State supplement exceeds $1, the SSI benefit amount will not be increased to $1. Rather, we pay the actual amount of the SSI benefit plus the State supplement. [50 FR 48572, Nov. 26, 1985] § 416.520 Emergency advance payments. (a) General. Emergency advance payment (b) Definition of terms. (1) Emergency advance payment (2) Financial emergency (3) Initially applying (4) Presumptively eligible (c) Computation of payment amount. (1) In computing the emergency advance payment amount, we apply the monthly income counting rules appropriate for the month for which the advance is paid, as explained in § 416.420. Generally, the month for which the advance is paid is the month in which it is paid. However, if the advance is paid in the month the application is filed, the month for which the advance is paid is considered to be the first month of expected eligibility for payment of benefits. (2) For a couple, we separately compute each member's emergency advance payment amount. (d) Recovery of emergency advance payment where eligibility is established. (e) Disposition of emergency advance payments where eligibility is not established. [55 FR 4422, Feb. 8, 1990; 55 FR 7411, Mar. 1, 1990, as amended at 64 FR 31974, June 15, 1999] § 416.525 Reimbursement to States for interim assistance payments. Notwithstanding § 416.542, the Social Security Administration may, in accordance with the provisions of subpart S of this part, withhold supplemental security income benefits due with respect to an individual and may pay to a State (or political subdivision thereof, if agreed to by the Social Security Administration and the State) from the benefits withheld, an amount sufficient to reimburse the State (or political subdivision) for interim assistance furnished on behalf of the individual. [41 FR 20872, May 21, 1976] § 416.532 Method of payment when the essential person resides with more than one eligible person. (a) When an essential person lives with an eligible individual and an eligible spouse, the State may report that the person is essential to one or both members of the couple. In either event, the income and resources of the essential person will be considered to be available to the family unit. The payment increment attributable to the essential person will be added to the rate of payment for the couple, the countable income subtracted, and the resulting total benefit divided equally between the eligible individual and the eligible spouse. (b) Where the essential person lives with two eligible individuals (as opposed to an eligible individual and eligible spouse), one of whom has been designated the qualified individual, the income and resources of the essential person will be considered to be available only to the qualified individual (as defined in § 416.221) and any increase in payment will be made to such qualified individual. (c) In those instances where the State has designated the essential person as essential to two or more eligible individuals so that both are qualified individuals, the payment increment attributable to the essential person must be shared equally, and the income and resources of the essential person divided and counted equally against each qualified individual. (d) When an essential person lives with an eligible individual and an eligible spouse (or two or more eligible individuals) only one of whom is the qualified individual, essential person status is not automatically retained upon the death of the qualified individual or upon the separation from the qualified individual. A review of the State records established on or before December 31, 1973, will provide the basis for a determination as to whether the remaining eligible individual or eligible spouse meets the definition of qualified individual. Payment in consideration of the essential person will be dependent on whether the essential person continues to live with a qualified individual. If the essential person does reside with a qualified individual, status as an essential person is retained. [39 FR 33796, Sept. 20, 1974, as amended at 50 FR 48572, Nov. 26, 1985; 51 FR 10616, Mar. 28, 1986; 60 FR 16375, Mar. 30, 1995] § 416.533 Transfer or assignment of benefits. Except as provided in § 416.525 and subpart S of this part, the Social Security Administration will not certify payment of supplemental security income benefits to a transferee or assignee of a person eligible for such benefits under the Act or of a person qualified for payment under § 416.542. The Social Security Administration shall not certify payment of supplemental security income benefits to any person claiming such payment by virtue of an execution, levy, attachment, garnishment, or other legal process or by virtue of any bankruptcy or insolvency proceeding against or affecting the person eligible for benefits under the Act. [41 FR 20873, May 21, 1976, as amended at 58 FR 52912, Oct. 13, 1993] § 416.534 Garnishment of payments after disbursement. (a) Payments that are covered by section 1631(d)(1) of the Social Security Act and made by direct deposit are subject to 31 CFR part 212, Garnishment of Accounts Containing Federal Benefit Payments. (b) This section may be amended only by a rulemaking issued jointly by the Department of Treasury and the agencies defined as a “benefit agency” in 31 CFR 212.3. [76 FR 9961, Feb. 23, 2011] § 416.535 Underpayments and overpayments. (a) General. (b) [Reserved] (c) Additional rules for eligible individuals under age 18 who have a representative payee. (d) Additional rules for eligible aliens and for their sponsors. (e) Sponsor without fault or good cause exists for failure to report. [52 FR 8881, Mar. 20, 1987, as amended at 60 FR 8149, Feb. 10, 1995; 61 FR 67205, Dec. 20, 1996; 91 FR 16830, Apr. 3, 2026] § 416.536 Underpayments—defined. An underpayment can occur only with respect to a period for which a recipient filed an application, if required, for benefits and met all conditions of eligibility for benefits. An underpayment, including any amounts of State supplementary payments which are due and administered by the Social Security Administration, is: (a) Nonpayment, where payment was due but was not made; or (b) Payment of less than the amount due. For purposes of this section, payment has been made when certified by the Social Security Administration to the Department of the Treasury, except that payment has not been made where payment has not been received by the designated payee, or where payment was returned. [58 FR 52912, Oct. 13, 1993] § 416.537 Overpayments—defined. (a) Overpayments. overpayment (b) Actions which are not overpayments Presumptive disability and presumptive blindness. (2) Penalty. (c) Pandemic period. pandemic period [40 FR 47763, Oct. 10, 1975, as amended at 43 FR 17354, Apr. 24, 1978; 50 FR 48572, Nov. 26, 1985; 55 FR 7313, Mar. 1, 1990; 58 FR 52912, Oct. 13, 1993; 62 FR 38454, July 18, 1997; 85 FR 52915, Aug. 27, 2020] § 416.538 Amount of underpayment or overpayment. (a) General. (b) Limited delay in payment of underpaid amount to recipient or eligible surviving spouse. (c) Delay in payment of underpaid amount to ineligible individual or survivor. (d) Limited delay in payment of underpaid amount to eligible individual under age 18 who has a representative payee. (e) Reduction of underpaid amount. [58 FR 52912, Oct. 13, 1993, as amended at 61 FR 67205, Dec. 20, 1996] § 416.542 Underpayments—to whom underpaid amount is payable. (a) Underpaid recipient alive—underpayment payable. (2) [Reserved] (3) If an underpaid individual under age 18 is alive and has a representative payee and is due past-due benefits which meet the formula in § 416.546, SSA will pay the past-due benefits into the dedicated account described in § 416.640(e). If the underpaid individual dies before the benefits have been deposited into the account, we will follow the rules which apply to underpayments for the payment of any unpaid amount due to any eligible survivor of a deceased individual as described in paragraph (b) of this section. (b) Underpaid recipient deceased—underpaid amount payable to survivor. (2) If the deceased underpaid recipient was a disabled or blind child when the underpayment occurred, the underpaid amount may be paid to the natural or adoptive parent(s) of the underpaid recipient who lived with the underpaid recipient in the month he or she died or within the 6 months preceding death. We consider the underpaid recipient to have been living with the natural or adoptive parent(s) in the period if the underpaid recipient satisfies the “living with” criteria we use when applying § 416.1165 or would have satisfied the criteria had his or her death not precluded the application of such criteria throughout a month. (3) If the deceased individual was living with his or her spouse within the meaning of section 202(i) of the Act in the month of death or within 6 months immediately preceding the month of death, and was also living with his or her natural or adoptive parent(s) in the month of death or within 6 months preceding the month of death, we will pay the parent(s) any SSI underpayment due the deceased individual for months he or she was a blind or disabled child and we will pay the spouse any SSI underpayment due the deceased individual for months he or she no longer met the definition of “child” as set forth at § 416.1856. If no parent(s) can be paid in such cases due to death or other reason, then we will pay the SSI underpayment due the deceased individual for months he or she was a blind or disabled child to the spouse. (4) No benefits may be paid to the estate of any underpaid recipient, the estate of the surviving spouse, the estate of a parent, or to any survivor other than those listed in paragraph (b) (1) through (3) of this section. Payment of an underpaid amount to an ineligible spouse or surviving parent(s) may only be made for benefits payable for months after May 1986. Payment to surviving parent(s) may be made only for months of eligibility during which the deceased underpaid recipient was a child. We will not pay benefits to a survivor other than the eligible spouse who requests payment of an underpaid amount more than 24 months after the month of the individual's death. (c) Underpaid recipient's death caused by an intentional act. [40 FR 47763, Oct. 10, 1975, as amended at 58 FR 52913, Oct. 13, 1993; 60 FR 8149, Feb. 10, 1995; 61 FR 67206, Dec. 20, 1996; 91 FR 16830, Apr. 3, 2026] § 416.543 Underpayments—applied to reduce overpayments. We apply any underpayment due an individual to reduce any overpayment to that individual that we determine to exist (see § 416.558) for a different period, unless we have waived recovery of the overpayment under the provisions of §§ 416.550 through 416.556. Similarly, when an underpaid recipient dies, we first apply any amounts due the deceased recipient that would be payable to a survivor under § 416.542(b) against any overpayment to the survivor unless we have waived recovery of such overpayment under the provisions of §§ 416.550 through 416.556. Example: A disabled child, eligible for payments under title XVI, and his parent, also an eligible individual receiving payments under title XVI, were living together. The disabled child dies at a time when he was underpaid $100. The deceased child's underpaid benefit is payable to the surviving parent. However, since the parent must repay an SSI overpayment of $225 on his own record, the $100 underpayment will be applied to reduce the parent's own overpayment to $125. [58 FR 52913, Oct. 13, 1993] § 416.545 Paying large past-due benefits in installments. (a) General. (1) Benefits due but unpaid which accrued prior to the month payment was effectuated; (2) Benefits due but unpaid which accrued during a period of suspension for which the recipient was subsequently determined to have been eligible; and (3) Any adjustment to benefits which results in an accrual of unpaid benefits. (b) Installment formula. (c) Exception—When installments payments are not required. (d) Exception—Increased first and second installment payments. (i) Outstanding debt for food, clothing, shelter, or medically necessary services, supplies or equipment, or medicine; or (ii) Current or anticipated expenses in the near future for medically necessary services, supplies or equipment, or medicine, or for the purchase of a home. (2) The increase described in paragraph (d)(1) of this section only applies to debts or expenses that are not subject to reimbursement by a public assistance program, the Secretary of Health and Human Services under title XVIII of the Act, a State plan approved under title XIX of the Act, or any private entity that is legally liable for payment in accordance with an insurance policy, pre-paid plan, or other arrangement. [61 FR 67206, Dec. 20, 1996, as amended at 76 FR 453, Jan. 5, 2011; 79 FR 33685, June 12, 2014] § 416.546 Payment into dedicated accounts of past-due benefits for eligible individuals under age 18 who have a representative payee. For purposes of this section, amounts subject to payment into dedicated accounts (see § 416.640(e)) include the amounts described in § 416.545(a) (1), (2), and (3). (a) For an eligible individual under age 18 who has a representative payee and who is determined to be eligible for past-due benefits (including any federally administered State supplementation) in an amount which, after applying § 416.525 (reimbursement to States for interim assistance) and § 416.1520 (payment of attorney fee), exceeds six times the Federal Benefit Rate plus any federally administered State supplementation payable in a month, this unpaid amount must be paid into the dedicated account established and maintained as described in § 416.640(e). (b) After the account is established, the representative payee may (but is not required to) deposit into the account any subsequent funds representing past-due benefits under this title to the individual which are equal to or exceed the maximum Federal Benefit Rate (including any federally administered State supplementation). (c) If the underpaid individual dies before all the benefits due have been deposited into the dedicated account, we will follow the rules which apply to underpayments for the payment of any unpaid amount due to any eligible survivor as described in § 416.542(b). [61 FR 67206, Dec. 20, 1996, as amended at 76 FR 453, Jan. 5, 2011] § 416.550 Waiver of adjustment or recovery—when applicable. Waiver of adjustment or recovery of an overpayment of SSI benefits may be granted when (EXCEPTION: This section does not apply to a sponsor of an alien): (a) The overpaid individual was without fault in connection with an overpayment, and (b) Adjustment or recovery of such overpayment would either: (1) Defeat the purpose of title XVI, or (2) Be against equity and good conscience, or (3) Impede efficient or effective administration of title XVI due to the small amount involved. (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 § 416.552) 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 § 416.641). (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 § 416.554 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)(4) will apply to a qualifying overpayment identified by December 31, 2020. [52 FR 8882, Mar. 20, 1987, as amended at 53 FR 16543, May 10, 1988; 85 FR 52915, Aug. 27, 2020] § 416.551 Waiver of adjustment or recovery—effect of. Waiver of adjustment or recovery of an overpayment from the overpaid person himself (or, after his death, from his estate) frees him and his eligible spouse from the obligation to repay the amount of the overpayment covered by the waiver. Waiver of adjustment or recovery of an overpayment from anyone other than the overpaid person himself or his estate (e.g., a surviving eligible spouse) does not preclude adjustment or recovery against the overpaid person or his estate. Example: The recipient was overpaid $390. It was found that the overpaid recipient was eligible for waiver of adjustment or recovery of $260 of that amount, and such action was taken. Only $130 of the overpayment remained to be recovered by adjustment, refund, or the like. [40 FR 47763, Oct. 10, 1975] § 416.552 Waiver of adjustment or recovery—without fault. Without fault without fault fault fault without fault (a) Failure to furnish information which the individual knew or should have known was material; (b) An incorrect statement made by the individual which he knew or should have known was incorrect (this includes the individual's furnishing his opinion or conclusion when he was asked for facts), or (c) The individual did not return a payment which he knew or could have been expected to know was incorrect. [40 FR 47763, Oct. 10, 1975, as amended at 59 FR 1636, Jan. 12, 1994; 85 FR 52915, Aug. 27, 2020] § 416.553 Waiver of adjustment or recovery—defeat the purpose of the supplemental security income program. We will waive adjustment or recovery of an overpayment when an individual on whose behalf waiver is being considered is without fault (as defined in § 416.552) and adjustment or recovery of the overpayment would defeat the purpose of the supplemental security income program. (a) General rule. (b) Alternative criteria for individuals currently eligible for SSI benefits. (1) The applicable Federal monthly benefit rate for the month in which the determination of waiver is made (see subpart D of this part); plus (2) The $20 monthly general income exclusion described in §§ 416.1112(c)(3) and 416.1124(c)(10); plus (3) The monthly earned income exclusion described in § 416.1112(c)(4); plus (4) The applicable State supplementary payment, if any (see subpart T of this part) for the month in which determination of waiver is made. For those SSI recipients whose income exceeds these criteria, we follow the general rule in paragraph (a) of this section. [45 FR 72649, Nov. 3, 1980, as amended at 50 FR 48573, Nov. 26, 1985] § 416.554 Waiver of adjustment or recovery—against equity and good conscience. We will waive adjustment or recovery of an overpayment when an individual on whose behalf waiver is being considered is without fault (as defined in § 416.552) and adjustment or recovery would be against equity and good conscience. against equity and good conscience against equity and good conscience Example 1: Upon being notified that he was eligible for supplemental security income payments, an individual signed a lease on an apartment renting for $15 a month more than the room he had previously occupied. It was subsequently found that eligibility for the payment should not have been established. In such a case, recovery would be considered “against equity and good conscience.” Example 2: An individual fails to take advantage of a private or organization charity, relying instead on the award of supplemental security income payments to support himself. It was subsequently found that the money was improperly paid. Recovery would be considered “against equity and good conscience.” Example 3: Mr. and Mrs. Smith—members of an eligible couple—separate in July. Later in July, Mr. Smith receives earned income resulting in an overpayment to both. Mrs. Smith is found to be without fault in causing the overpayment. Recovery from Mrs. Smith of Mr. Smith's part of the couple's overpayment is waived as being against equity and good conscience. [60 FR 16375, Mar. 30, 1995] § 416.555 Waiver of adjustment or recovery—impede administration. Waiver of adjustment or recovery is proper when the overpaid person on whose behalf waiver is being considered is without fault, as defined in § 416.552, and adjustment or recovery would impede efficient or effective administration of title XVI due to the small amount involved. The amount of overpayment determined to meet such criteria is measured by the current average administrative cost of handling such overpayment case through such adjustment or recovery processes. In determining whether the criterion is met, the overpaid person's financial circumstances are not considered. [40 FR 47764, Oct. 10, 1975] § 416.556 Waiver of adjustment or recovery—countable resources in excess of the limits prescribed in § 416.1205 by $50 or less. (a) If any overpayment with respect to an individual (or an individual and his or her spouse if any) is attributable solely to the ownership or possession by the individual (and spouse if any) of countable resources having a value which exceeds the applicable dollar figure specified in § 416.1205 by an amount of $50.00 or less, including those resources deemed to an individual in accordance with § 416.1202, such individual (and spouse if any) shall be deemed to have been without fault in connection with the overpayment, and waiver of adjustment or recovery will be made, unless the failure to report the value of the excess resources correctly and in a timely manner was willful and knowing. (b) Failure to report the excess resources correctly and in a timely manner will be considered to be willful and knowing and the individual will be found to be at fault when the evidence clearly shows the individual (and spouse if any) was fully aware of the requirements of the law and of the excess resources and chose to conceal these resources. When an individual incurred a similar overpayment in the past and received an explanation and instructions at the time of the previous overpayment, we will generally find the individual to be at fault. However, in determining whether the individual is at fault, we will consider all aspects of the current and prior overpayment situations, and where we determine the individual is not at fault, we will waive adjustment or recovery of the subsequent overpayment. In making any determination or decision under this section concerning whether an individual is at fault, including a determination or decision of whether the failure to report the excess resources correctly and in a timely manner was willful and knowing, we will take into account any physical, mental, educational, or linguistic limitations (including any lack of facility with the English language) of the individual (and spouse if any). [53 FR 16544, May 10, 1988, as amended at 59 FR 1636, Jan. 12, 1994] § 416.557 Personal conference. (a) If waiver cannot be approved ( i.e. (b) At the file review, the individual and the individual's representative have the right to review the claims file and applicable law and regulations with the decisionmaker or another of our representatives who is prepared to answer questions. We will provide copies of material related to the overpayment and/or waiver from the claims file or pertinent sections of the law or regulations that are requested by the individual or the individual's representative. (c) At the personal conference, the individual is given the opportunity to: (1) Appear personally, testify, cross-examine any witnesses, and make arguments; (2) Be represented by an attorney or other representative (see § 416.1500), although the individual must be present at the conference; and (3) Submit documents for consideration by the decisionmaker. (d) At the personal conference, the decisionmaker: (1) Tells the individual that the decisionmaker was not previously involved in the issue under review, that the waiver decision is solely the decisionmaker's, and that the waiver decision is based only on the evidence or information presented or reviewed at the conference; (2) Ascertains the role and identity of everyone present; (3) Indicates whether or not the individual reviewed the claims file; (4) Explains the provisions of law and regulations applicable to the issue; (5) Briefly summarizes the evidence already in file which will be considered; (6) Ascertains from the individual whether the information presented is correct and whether he/she fully understands it; (7) Allows the individual and the individual's representative, if any, to present the individual's case; (8) Secures updated financial information and verification, if necessary; (9) Allows each witness to present information and allows the individual and the individual's representative to question each witness; (10) Ascertains whether there is any further evidence to be presented; (11) Reminds the individual of any evidence promised by the individual which has not been presented; (12) Lets the individual and the individual's representative, if any, present any proposed summary or closing statement; (13) Explains that a decision will be made and the individual will be notified in writing; and (14) Explains repayment options and further appeal rights in the event the decision is adverse to the individual. (e) SSA issues a written decision to the individual (and his or her representative, if any) specifying the findings of fact and conclusions in support of the decision to approve or deny waiver and advising of the individual's right to appeal the decision. If waiver is denied, adjustment or recovery of the overpayment begins even if the individual appeals. (f) If it appears that the waiver cannot be approved, and the individual declines a personal conference or fails to appear for a second scheduled personal conference, a decision regarding the waiver will be made based on the written evidence of record. Reconsideration is the next step in the appeals process. [73 FR 1973, Jan. 11, 2008] § 416.558 Notice relating to overpayments and underpayments. (a) Notice of overpayment and underpayment determination. (b) Notice of waiver determination. [40 FR 47764, Oct. 10, 1975, as amended at 55 FR 33668, Aug. 17, 1990; 60 FR 8150, Feb. 10, 1995; 91 FR 16830, Apr. 3, 2026] § 416.560 Recovery—refund. An overpayment may be refunded by the overpaid recipient or by anyone on his or her behalf. Refund should be made in every case where the overpaid individual is not currently eligible for SSI benefits. If the individual is currently eligible for SSI benefits and has not refunded the overpayment, adjustment as set forth in § 416.570 will be proposed. [55 FR 33669, Aug. 17, 1990] § 416.570 Adjustment. (a) General. (b) Overpayment made to representative payee after the recipient's death. (1) We will not adjust any other payment due to the eligible spouse of the overpaid representative payee to recover the overpayment, and (2) If the overpaid representative payee dies before we complete adjustment, we will not seek to recover the overpayment from the eligible spouse or the estate of the eligible spouse. [70 FR 16, Jan. 3, 2005, as amended at 73 FR 65543, Nov. 4, 2008] § 416.571 10-percent limitation of recoupment rate—overpayment. Any adjustment or recovery of an overpayment for an individual in current payment status is limited in amount in any month to the lesser of (1) the amount of the individual's benefit payment for that month or (2) an amount equal to 10 percent of the individual's total income (countable income plus SSI and State supplementary payments) for that month. The countable income used is the countable income used in determining the SSI and State supplementary payments for that month under § 416.420. When the overpaid individual is notified of the proposed SSI and/or federally administered State supplementary overpayment adjustment or recovery, the individual will be given the opportunity to request that such adjustment or recovery be made at a higher or lower rate than that proposed. If a lower rate is requested, a rate of withholding that is appropriate to the financial condition of the overpaid individual will be set after an evaluation of all the pertinent facts. An appropriate rate is one that will not deprive the individual of income required for ordinary and necessary living expenses. This will include an evaluation of the individual's income, resources, and other financial obligations. The 10-percent limitation does not apply where it is determined that the overpayment occurred because of fraud, willful misrepresentation, or concealment of material information committed by the individual or his or her spouse. Concealment of material information means an intentional, knowing, and purposeful delay in making or failure to make a report that will affect payment amount and/or eligibility. It does not include a mere omission on the part of the recipient; it is an affirmative act to conceal. The 10-percent limitation does not apply to the recovery of overpayments incurred under agreements to dispose of resources pursuant to § 416.1240. In addition, the 10-percent limitation does not apply to the reduction of any future SSI benefits as a consequence of the misuse of funds set aside in accordance with § 416.1231(b) to meet burial expenses. Adjustment or recovery will be suspended if the recipient is subject to a reduced benefit rate under § 416.414 because of residing in a medical treatment facility in which Medicaid is paying a substantial portion of the recipient's cost of care. [55 FR 33669, Aug. 17, 1990, as amended at 72 FR 50874, Sept. 5, 2007] § 416.572 Are title II and title VIII benefits subject to adjustment to recover title XVI overpayments? (a) Definitions Cross-program recovery. (2) Benefits payable. (b) When may we collect title XVI overpayments using cross-program recovery? [70 FR 16, Jan. 3, 2005] § 416.573 How much will we withhold from your title II and title VIII benefits to recover a title XVI overpayment? (a) If past-due benefits are payable to you, we will withhold the lesser of the entire overpayment balance or the entire amount of past-due benefits. (b)(1) We will collect the overpayment from current monthly benefits due in a month by withholding the lesser of the amount of the entire overpayment balance or 10 percent of the monthly title II benefits and monthly title VIII benefits payable to you in the month. (2) If we are already recovering a title II, title VIII or title XVI overpayment from your monthly title II benefit, we will figure your monthly withholding from title XVI payments (as described in § 416.571) without including your title II benefits in your total countable income. (3) Paragraph (b)(1) of this section does not apply if: (i) You request and we approve a different rate of withholding, or (ii) You or your spouse willfully misrepresented or concealed material information in connection with the overpayment. (c) In determining whether to grant your request that we withhold less than the amount described in paragraph (b)(1) of this section, we will use the criteria applied under § 416.571 to similar requests about withholding from title XVI benefits. (d) If you or your spouse willfully misrepresented or concealed material information in connection with the overpayment, we will collect the overpayment by withholding the lesser of the overpayment balance or the entire amount of title II benefits and title VIII benefits payable to you. We will not collect at a lesser rate. (See § 416.571 for what we mean by concealment of material information.) [70 FR 16, Jan. 3, 2005] § 416.574 Will you receive notice of our intention to apply cross-program recovery? Before we collect an overpayment from you using cross-program recovery, we will send you a written notice that tells you the following information: (a) We have determined that you owe a specific overpayment balance that can be collected by cross-program recovery; (b) We will withhold a specific amount from the title II or title VIII benefits (see § 416.573); (c) You may ask us to review this determination that you still owe this overpayment balance; (d) You may request that we withhold a different amount from your current monthly benefits (the notice will not include this information if § 416.573(d) applies); and (e) You may ask us to waive collection of this overpayment balance. [70 FR 16, Jan. 3, 2005] § 416.575 When will we begin cross-program recovery from your current monthly benefits? (a) We will begin collecting the overpayment balance by cross-program recovery from your current monthly title II and title VIII benefits no sooner than 30 calendar days after the date of the notice described in § 416.574. If within that 30-day period you pay us the full overpayment balance stated in the notice, we will not begin cross-program recovery. (b) If within that 30-day period you ask us to review our determination that you still owe us this overpayment balance, we will not begin cross-program recovery from your current monthly benefits before we review the matter and notify you of our decision in writing. (c) If within that 30-day period you ask us to withhold a different amount from your current monthly benefits than the amount stated in the notice, we will not begin cross-program recovery until we determine the amount we will withhold. This paragraph does not apply when § 416.573(d) applies. (d) If within that 30-day period you ask us to waive recovery of the overpayment balance, we will not begin cross-program recovery from your current monthly benefits before we review the matter and notify you of our decision in writing. See §§ 416.550 through 416.556. [70 FR 16, Jan. 3, 2005] § 416.580 Referral of overpayments to the Department of the Treasury for tax refund offset—General. (a) The standards we will apply and the procedures we will follow before requesting the Department of the Treasury to offset income tax refunds due taxpayers who have an outstanding overpayment are set forth in §§ 416.580 through 416.586 of this subpart. These standards and procedures are authorized by the Deficit Reduction Act of 1984 [31 U.S.C. § 3720A], as implemented through Department of the Treasury regulations at 31 CFR 285.2. (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 only from persons who are not currently entitled to monthly supplemental security income benefits under title XVI 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. [62 FR 49439, Sept. 22, 1997, as amended at 76 FR 65108, Oct. 20, 2011] § 416.581 Notice to overpaid person. We will make a request for collection by reduction of Federal and State income tax refunds only after we determine that a person owes an overpayment that is past due and provide the overpaid person with written notice. Our notice of intent to collect an overpayment through tax refund offset 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 1631(b)(1)(B) of the Act; (d) That we will review any evidence presented that the overpayment is not past due or not legally enforceable; (e) That the overpaid person has the right to inspect and copy our records related to the overpayment as determined by us and will be informed as to where and when the inspection and copying can be done after we receive notice from the overpaid person that inspection and copying are requested. [62 FR 49439, Sept. 22, 1997, as amended at 76 FR 65109, Oct. 20, 2011] § 416.582 Review within SSA that an overpayment is past due and legally enforceable. (a) Notification by overpaid individual. (b) Submission of evidence. (c) Review of the evidence. [62 FR 49439, Sept. 22, 1997] § 416.583 Findings by SSA. (a) Following the review of the record, we will issue written findings which include supporting rationale for the findings. Issuance of these findings concerning whether the overpayment or part of the overpayment is past due and legally enforceable is the final Agency action with respect to the past-due status and enforceability of the overpayment. If we make a determination that a waiver request cannot be granted, we will issue a written notice of this determination in accordance with the regulations in subpart E of this part. Our referral of the overpayment to the Department of the Treasury will not be suspended under § 416.585 of this subpart pending any further administrative review of the waiver request that the individual may seek. (b) Copies of the findings described in paragraph (a) of this section will be distributed to the overpaid individual and the overpaid individual's attorney or other representative, if any. (c) If the findings referred to in paragraph (a) of this section affirm that all or part of the overpayment is past due and legally enforceable and, if waiver is requested and we determine that the request cannot be granted, we will refer the overpayment to the Department of the Treasury. However, no referral will be made if, based on our review of the overpayment, 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 our collection of the overpayment is appropriate. [62 FR 49439, Sept. 22, 1997] § 416.584 Review of our records related to the overpayment. (a) Notification by the overpaid individual. (b) Our response. [62 FR 49439, Sept. 22, 1997] § 416.585 Suspension of offset. If, within 60 days of the date of the notice described in § 416.581 of this subpart, the overpaid individual notifies us that he or she is exercising a right described in § 416.582(a) of this subpart and submits evidence pursuant to § 416.582(b) of this subpart or requests a waiver under § 416.550 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. [62 FR 49440, Sept. 22, 1997] § 416.586 Tax refund insufficient to cover amount of overpayment. If a 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. [62 FR 49440, Sept. 22, 1997] § 416.590 Are there additional methods for recovery of title XVI benefit overpayments? (a) General. (1) The overpayment occurred after you attained age 18; (2) You are no longer entitled to benefits under title XVI of the Act; and (3) Pursuant to paragraph (b) of this section, we have determined that the overpayment is otherwise unrecoverable under section 1631(b) of the Act. (b) When we consider an overpayment to be otherwise unrecoverable. (1) We have completed our billing system sequence ( i.e. (2) We have not entered into an installment payment arrangement with you or, if we have entered into such an arrangement, you have failed to make any payment for two consecutive months. (3) You have not requested waiver pursuant to § 416.550 or § 416.582 or, after a review conducted pursuant to those sections, we have determined that we will not waive collection of the overpayment. (4) You have not requested reconsideration of the initial overpayment determination pursuant to §§ 416.1407 and 416.1409 or, after a review conducted pursuant to § 416.1413, we have affirmed all or part of the initial overpayment determination. (5) We cannot recover your overpayment pursuant to § 416.570 by adjustment of benefits payable to any individual other than you. For purposes of this paragraph, if you are a member of an eligible couple that is legally separated and/or living apart, we will deem unrecoverable from the other person that part of your overpayment which he or she did not receive. [66 FR 67081, Dec. 28, 2001, as amended at 68 FR 74184, Dec. 23, 2003] Subpart F—Representative Payment Authority: Secs. 205(j)(1)(C), 702(a)(5), 1631(a)(2) and (d)(1) of the Social Security Act (42 U.S.C. 405(j)(1)(C), 902(a)(5), 1383(a)(2) and (d)(1)). Source: 47 FR 30475, July 14, 1982, unless otherwise noted. § 416.601 Introduction. (a) Explanation of representative payment. (b) Policy used to determine whether to make representative payment. (2) If we determine that representative payment is in the interest of a beneficiary, we will appoint a representative payee. We may appoint a representative payee even if the beneficiary is a legally competent individual. If the beneficiary is a legally incompetent individual, we may appoint the legal guardian or some other person as a representative payee. (3) If payment is being made directly to a beneficiary and a question arises concerning his or her ability to manage or direct the management of benefit payments, we will, if the beneficiary is 18 years old or older and has not been adjudged legally incompetent, continue to pay the beneficiary until we make a determination about his or her ability to manage or direct the management of benefit payments and the selection of a representative payee. [47 FR 30475, July 14, 1982, as amended at 60 FR 8150, Feb. 10, 1995; 91 FR 16830, Apr. 3, 2026] § 416.610 When payment will be made to a representative payee. (a) We pay benefits to a representative payee on behalf of a beneficiary 18 years old or older when it appears to us that this method of payment will be in the interest of the beneficiary. We do this if we have information that the beneficiary is— (1) Legally incompetent or mentally incapable of managing benefit payments; or (2) Physically incapable of managing or directing the management of his or her benefit payments; or (b) Generally, if a beneficiary is under age 18, we will pay benefits to a representative payee. However, in certain situations, we will make direct payments to a beneficiary under age 18 who shows the ability to manage the benefits. For example, we make direct payment to a beneficiary under age 18 if the beneficiary is— (1) A parent and files for himself or herself and/or his or her child and he or she has experience in handling his or her own finances; or (2) Capable of using the benefits to provide for his or her current needs and no qualified payee is available; or (3) Within 7 months of attaining age 18 and is initially filing an application for benefits. [47 FR 30475, July 14, 1982, as amended at 54 FR 35483, Aug. 28, 1989; 60 FR 8150, Feb. 10, 1995; 91 FR 16830, Apr. 3, 2026] § 416.611 What happens to your monthly benefits while we are finding a suitable representative payee for you? (a) We may pay you directly. (1) If you are receiving disability payments and we have determined that you have a drug addiction or alcoholism condition, or you are legally incompetent, or you are under age 15, we will presume that substantial harm exists. However, we will allow you to rebut this presumption by presenting evidence that direct payment would not cause you substantial harm. (2) If you do not fit any of these categories, we make findings of substantial harm on a case-by-case basis. We consider all matters that may affect your ability to manage your benefits in your own best interest. We decide that substantial harm exists if both of the following conditions exist: (i) Directly receiving benefits can be expected to cause you serious physical or mental injury. (ii) The possible effect of the injury would outweigh the effect of having no income to meet your basic needs. (b) We may delay or suspend your payments. Example 1: Substantial Harm Exists. We are unable to find a representative payee for Mr. X, a 67 year old claimant receiving title XVI benefits based on age who is an alcoholic. Based on contacts with the doctor and beneficiary, we determine that Mr. X was hospitalized recently for his drinking. Paying him directly will cause serious injury, so we may delay payment for as long as one month based on substantial harm while we locate a suitable representative payee. Example 2: Substantial Harm Does Not Exist. We approve a claim for Mr. Y, a title XVI claimant who suffers from a combination of mental impairments but who is not legally incompetent. We determine that Mr. Y needs assistance in managing benefits, but we have not found a representative payee. Although we believe that Mr. Y may not use the money wisely, there is no indication that receiving funds directly would cause him substantial harm ( i.e. (c) How we pay delayed or suspended benefits. [69 FR 60236, Oct. 7, 2004] § 416.615 Information considered in determining whether to make representative payment. In determining whether to make representative payment we consider the following information: (a) Court determinations. (b) Medical evidence. (c) Other evidence. § 416.618 Advance designation of representative payees. (a) General. (1) Is eligible for or an applicant for a benefit; and (2) Has attained 18 years of age or is an emancipated minor, may designate in advance one or more individuals to possibly serve as a representative payee for the individual if we determine that payment will be made to a representative payee (see § 416.610(a)). An individual may not designate in advance possible representative payees if we have information that the individual is either legally incompetent or mentally incapable of managing his or her benefit payments; or physically incapable of managing or directing the management of his or her benefit payments. (b) How to designate possible representative payees in advance. (1) The name of the advance designee, (2) A telephone number of the advance designee, and (3) The order of priority in which the individual would like us to consider the advance designees if he or she designates more than one advance designee. (c) How to make changes to advance designation. (d) How we consider advance designation when we select a representative payee. (i) The advance designee must be willing and able to serve as a representative payee, (ii) Appointment of the advance designee must comply with the requirements in section 205(j)(2) of the Social Security Act, and (iii)There must be no other good cause (see §§ 416.620 and 416.621) to prevent us from selecting the advance designee. (2) If none of the advance designees meet the criteria for selection, we will use our list of categories of preferred payees (see § 416.621), along with our other regulations in subpart F of this part, as a guide to select a suitable representative payee. (e) How we consider advance designation when we select a subsequent representative payee. (f) Organizations. [85 FR 7665, Feb. 11, 2020] § 416.620 Information considered in selecting a representative payee. In selecting a payee we try to select the person, agency, organization or institution that will best serve the interest of the beneficiary. In making our selection we consider— (a) The relationship of the person to the beneficiary; (b) The amount of interest that the person shows in the beneficiary; (c) Any legal authority the person, agency, organization or institution has to act on behalf of the beneficiary; (d) Whether the potential payee has custody of the beneficiary; (e) Whether the potential payee is in a position to know of and look after the needs of the beneficiary; (f) The potential payee's criminal history; and (g) Whether the beneficiary made an advance designation (see § 416.618). [47 FR 30475, July 14, 1982, as amended at 84 FR 4325, Feb. 15, 2019; 85 FR 7665, Feb. 11. 2020] § 416.621 What is our order of preference in selecting a representative payee for you? As a guide in selecting a representative payee, we have established categories of preferred payees. These preferences are flexible. We will consider an individual's advance designees (see § 416.618) before we consider other potential representative payees in the categories of preferred payees listed in this section. When we select a representative payee, we will choose the designee of the beneficiary's highest priority, provided that the designee is willing and able to serve, is not prohibited from serving (see § 416.622), and supports the best interest of the beneficiary (see § 416.620). The preferences are: (a) For beneficiaries 18 years old or older (except those described in paragraph (b) of this section), our preference is— (1) A legal guardian, spouse (or other relative) who has custody of the beneficiary or who demonstrates strong concern for the personal welfare of the beneficiary; (2) A friend who has custody of the beneficiary or demonstrates strong concern for the personal welfare of the beneficiary; (3) A public or nonprofit agency or institution having custody of the beneficiary; (4) A private institution operated for profit and licensed under State law, which has custody of the beneficiary; and (5) Persons other than above who are qualified to carry out the responsibilities of a payee and who are able and willing to serve as a payee for the beneficiary; e.g., members of community groups or organizations who volunteer to serve as payee for a beneficiary. (b) For individuals who are disabled and who have a drug addiction or alcoholism condition our preference is— (1) A community-based nonprofit social service agency licensed by the State, or bonded; (2) A Federal, State or local government agency whose mission is to carry out income maintenance, social service, or health care-related activities; (3) A State or local government agency with fiduciary responsibilities; (4) A designee of an agency (other than a Federal agency) referred to in paragraphs (b)(1), (2), and (3) of this section, if appropriate; or (5) A family member. (c) For beneficiaries under age 18, our preference is— (1) A natural or adoptive parent who has custody of the beneficiary, or a guardian; (2) A natural or adoptive parent who does not have custody of the beneficiary, but is contributing toward the beneficiary's support and is demonstrating strong concern for the beneficiary's well being; (3) A natural or adoptive parent who does not have custody of the beneficiary and is not contributing toward his or her support but is demonstrating strong concern for the beneficiary's well being; (4) A relative or stepparent who has custody of the beneficiary; (5) A relative who does not have custody of the beneficiary but is contributing toward the beneficiary's support and is demonstrating concern for the beneficiary's well being; (6) A relative or close friend who does not have custody of the beneficiary but is demonstrating concern for the beneficiary's well being; and (7) An authorized social agency or custodial institution. [47 FR 30475, July 14, 1982, as amended at 69 FR 60237, Oct. 7, 2004; 85 FR 7665, Feb. 11, 2020] § 416.622 Who may not serve as a representative payee? A representative payee applicant may not serve if he/she: (a) Has been convicted of a violation under section 208, 811 or 1632 of the Social Security Act. (b) Has been convicted of an offense resulting in imprisonment for more than 1 year. However, we may make an exception to this prohibition, if the nature of the conviction is such that selection of the applicant poses no risk to the beneficiary and the exception is in the beneficiary's best interest. (c) Receives title II, VIII, or XVI benefits through a representative payee. (d) Previously served as a representative payee and was found by us, or a court of competent jurisdiction, to have misused title II, VIII or XVI benefits. However, if we decide to make an exception to the prohibition, we must evaluate the payee's performance at least every 3 months until we are satisfied that the payee poses no risk to the beneficiary's best interest. Exceptions are made on a case-by-case basis if all of the following are true: (1) Direct payment of benefits to the beneficiary is not in the beneficiary's best interest. (2) No suitable alternative payee is available. (3) Selecting the payee applicant as representative payee would be in the best interest of the beneficiary. (4) The information we have indicates the applicant is now suitable to serve as a representative payee. (5) The payee applicant has repaid the misused benefits or has a plan to repay them. (e) Is a creditor. A creditor is someone who provides you with goods or services for consideration. This restriction does not apply to the creditor who poses no risk to you and whose financial relationship with you presents no substantial conflict of interest, and is any of the following: (1) A relative living in the same household as you do. (2) Your legal guardian or legal representative. (3) A facility that is licensed or certified as a care facility under the law of a State or a political subdivision of a State. (4) A qualified organization authorized to collect a monthly fee from you for expenses incurred in providing representative payee services for you, under § 416.640a. (5) An administrator, owner, or employee of the facility in which you live and we are unable to locate an alternative representative payee. (6) Any other individual we deem appropriate based on a written determination. Example 1: Sharon applies to be representative payee for Ron who we have determined needs assistance in managing his benefits. Sharon has been renting a room to Ron for several years and assists Ron in handling his other financial obligations, as needed. She charges Ron a reasonable amount of rent. Ron has no other family or friends willing to help manage his benefits or to act as representative payee. Sharon has demonstrated that her interest in and concern for Ron goes beyond her desire to collect the rent each month. In this instance, we may select Sharon as Ron's representative payee because a more suitable payee is not available, she appears to pose no risk to Ron and there is minimal conflict of interest. We will document this decision. Example 2: In a situation similar to the one above, Ron's landlord indicates that she is applying to be payee only to ensure receipt of her rent. If there is money left after payment of the rent, she will give it directly to Ron to manage on his own. In this situation, we would not select the landlord as Ron's representative payee because of the substantial conflict of interest and lack of interest in his well being. (f) Was convicted under Federal or State law of a felony for: Human trafficking, false imprisonment, kidnapping, rape or sexual assault, first-degree homicide, robbery, fraud to obtain access to government assistance, fraud by scheme, theft of government funds or property, abuse or neglect, forgery, or identity theft or identity fraud. We will also apply this provision to a representative payee applicant with a felony conviction of an attempt to commit any of these crimes or conspiracy to commit any of these crimes. (1) If the representative payee applicant is the custodial parent of a minor child beneficiary, custodial parent of a beneficiary who is under a disability which began before the beneficiary attained the age of 22, custodial spouse of a beneficiary, custodial court-appointed guardian of a beneficiary, or custodial grandparent of the minor child beneficiary for whom the applicant is applying to serve as representative payee, we will not consider the conviction for one of the crimes, or of attempt or conspiracy to commit one of the crimes, listed in this paragraph (f), by itself, to prohibit the applicant from serving as a representative payee. We will consider the criminal history of an applicant in this category, along with the factors in paragraphs (a) through (e) of this section, when we decide whether it is in the best interest of the individual entitled to benefits to appoint the applicant as a representative payee. (2) If the representative payee applicant is the parent who was previously the representative payee for his or her minor child who has since turned age 18 and continues to be eligible for benefits, we will not consider the conviction for one of the crimes, or of attempt or conspiracy to commit one of the crimes, listed in this paragraph (f), by itself, to prohibit the applicant from serving as a representative payee for that beneficiary. We will consider the criminal history of an applicant in this category, along with the factors in paragraphs (a) through (e) of this section, when we decide whether it is in the best interest of the individual entitled to benefits to appoint the applicant as a representative payee. (3) If the representative payee applicant received a Presidential or gubernatorial pardon for the relevant conviction, we will not consider the conviction for one of the crimes, or of attempt or conspiracy to commit one of the crimes, listed in this paragraph (f), by itself, to prohibit the applicant from serving as a representative payee. We will consider the criminal history of an applicant in this category, along with the factors in paragraphs (a) through (e) of this section, when we decide whether it is in the best interest of the individual entitled to benefits to appoint the applicant as a representative payee. [69 FR 60237, Oct. 7, 2004, as amended at 71 FR 61408, Oct. 18, 2006; 84 FR 4325, Feb. 15, 2019] § 416.624 How do we investigate a representative payee applicant? Before selecting an individual or organization to act as your representative payee, we will perform an investigation. (a) Nature of the investigation. (1) Conduct a face-to-face interview with the payee applicant unless it is impracticable as explained in paragraph (c) of this section. (2) Require the payee applicant to submit documented proof of identity, unless information establishing identity has recently been submitted with an application for title II, VIII or XVI benefits. (3) Verify the payee applicant's Social Security account number or employer identification number. (4) Determine whether the payee applicant has been convicted of a violation of section 208, 811 or 1632 of the Social Security Act. (5) Determine whether the payee applicant has previously served as a representative payee and if any previous appointment as payee was revoked or terminated for misusing title II, VIII or XVI benefits. (6) Use our records to verify the payee applicant's employment and/or direct receipt of title II, VIII, or XVI benefits. (7) Verify the payee applicant's concern for the beneficiary with the beneficiary's custodian or other interested person. (8) Require the payee applicant to provide adequate information showing his or her relationship to the beneficiary and to describe his or her responsibility for the care of the beneficiary. (9) Determine whether the payee applicant is a creditor of the beneficiary (see § 416.622(e)). (10) Conduct a criminal background check on the individual payee applicant. (b) Subsequent face-to-face interviews. (c) Impracticable. [69 FR 60237, Oct. 7, 2004, as amended at 73 FR 66521, Nov. 10, 2008; 84 FR 4326, Feb. 15, 2018; 84 FR 57320, Oct. 25, 2019] § 416.625 What information must a representative payee report to us? Anytime after we select a representative payee for you, we may ask your payee to give us information showing a continuing relationship with you, a continuing responsibility for your care, and how he/she used the payments on your behalf. If your representative payee does not give us the requested information within a reasonable period of time, we may stop sending your benefit payment to him/her—unless we determine that he/she had a satisfactory reason for not meeting our request and we subsequently receive the requested information. If we decide to stop sending your benefit payment to your representative payee, we will consider paying you directly (in accordance with § 416.611) while we look for a new payee. [69 FR 60238, Oct. 7, 2004] § 416.626 How do we investigate an appointed representative payee? After we select an individual to act as your representative payee, we will conduct a criminal background check on the appointed representative payee at least once every 5 years. [84 FR 4326, Feb. 15, 2019, as amended at 84 FR 57320, Oct. 25, 2019] § 416.630 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. This advance 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. We provide this notice before we actually appoint the payee. If you are under age 15, an unemancipated minor under the age of 18, or legally incompetent, our written notice goes to your legal guardian or legal representative. The advance 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 your representative payee. (5) Explains that you, your legal guardian, or your legal representative can review the evidence upon which our designation of a particular representative payee is based and submit additional evidence. (b) If you, your legal guardian, or your legal representative objects to representative payment or to the designated payee, we will handle the objection as follows: (1) If you disagree with the decision and wish to file an appeal, we will process it under subpart N of this part. (2) If you received your advance notice by mail and you protest or file your appeal within 10 days after you receive the notice, we will delay the action until we make a decision on your protest or appeal. (If you received and signed your notice while you were in the local field office, our decision will be effective immediately.) [69 FR 60238, Oct. 7, 2004] § 416.635 What are the responsibilities of your representative payee? A representative payee has a responsibility to— (a) Use the benefits received on your behalf only for your use and benefit in a manner and for the purposes he or she determines under the guidelines in this subpart, to be in your best interests; (b) Keep any benefits received on your behalf separate from his or her own funds and show your ownership of these benefits unless he or she is your spouse or natural or adoptive parent or stepparent and lives in the same household with you or is a State or local government agency for whom we have granted an exception to this requirement; (c) Treat any interest earned on the benefits as your property; (d) Notify us of any event or change in your circumstances that will affect the amount of benefits you receive, your right to receive benefits, or how you receive them; (e) Submit to us, upon our request, a written report accounting for the benefits received on your behalf, and make all supporting records available for review if requested by us; (f) Notify us of any change in his or her circumstances that would affect performance of his/her payee responsibilities; and (g) Ensure that you are receiving treatment to the extent considered medically necessary and available for the condition that was the basis for providing benefits (see § 416.994a(i)) if you are under age 18 (including cases in which your low birth weight is a contributing factor material to our determination that you are disabled). [71 FR 61408, Oct. 18, 2006] § 416.640 Use of benefit payments. (a) Current maintenance. Example: A Supplemental Security Income beneficiary is entitled to a monthly benefit of $264. The beneficiary's son, who is the representative payee, disburses the benefits in the following manner: Rent and Utilities $166 Medical 20 Food 60 Clothing 10 Miscellaneous 8 The above expenditures would represent proper disbursements on behalf of the beneficiary. (b) Institution not receiving Medicaid funds on beneficiary's behalf. Example: A hospitalized disabled beneficiary is entitled to a monthly benefit of $264. The beneficiary, who resides in a boarding home, has resided there for over 6 years. It is doubtful that the beneficiary will leave the boarding home in the near future. The boarding home charges $215 per month for the beneficiary's room and board. The beneficiary's representative payee pays the boarding home $215 (assuming an unsuccessful effort was made to negotiate a lower rate during the beneficiary's absence) and uses the balance to purchase miscellaneous personal items for the beneficiary. There are no benefits remaining which can be conserved on behalf of the beneficiary. The payee's use of the benefits is consistent with our guidelines. (c) Institution receiving Medicaid funds on beneficiary's behalf. Example: A disabled beneficiary resides in a hospital. The superintendent of the hospital receives $30 per month as the beneficiary's payee. The benefit payment is disbursed in the following manner, which would be consistent with our guidelines: Miscellaneous canteen items $10 Clothing 15 Conserved for future needs of the beneficiary 5 (d) Claims of creditors. Example: A disabled beneficiary was determined to be eligible for a monthly benefit payment of $208 effective April 1981. The benefits were certified to the beneficiary's brother who was appointed as the representative payee. The payee conserved $27 of the benefits received. In June 1981 the payee received a bill from a doctor who had treated the beneficiary in February and March 1981. The bill was for $175. After reviewing the beneficiary's current needs and resources, the payee decided not to use any of the benefits to pay the doctor's bill. (Approximately $180 a month is required for the beneficiary's current monthly living expenses—rent, utilities, food, and insurance—and the beneficiary will need new shoes and a coat within the next few months.) Based upon the above, the payee's decision not to pay the doctor's bill is consistent with our guidelines. (e) Dedicated accounts for eligible individuals under age 18. (2) A representative payee shall use dedicated account funds, whether deposited on a mandatory or permissive basis (as described in § 416.546), for the benefit of the child and only for the following allowable expenses— (i) Medical treatment and education or job skills training; (ii) If related to the child's impairment(s), personal needs assistance; special equipment; housing modification; and therapy or rehabilitation; or (iii) Other items and services related to the child's impairment(s) that we determine to be appropriate. The representative payee must explain why or how the other item or service relates to the impairment(s) of the child. Attorney fees related to the pursuit of the child's disability claim and use of funds to prevent malnourishment or homelessness could be considered appropriate expenditures. (3) Representative payees must keep records and receipts of all deposits to and expenditures from dedicated accounts, and must submit these records to us upon our request, as explained in §§ 416.635 and 416.665. (4) The use of funds from a dedicated account in any manner not authorized by this section constitutes a misapplication of benefits. These misapplied benefits are not an overpayment as defined in § 416.537; however, if we determine that a representative payee knowingly misapplied funds in a dedicated account, that representative payee shall be liable to us in an amount equal to the total amount of the misapplied funds. In addition, if a recipient who is his or her own payee knowingly misapplies benefits in a dedicated account, we will reduce future benefits payable to that recipient (or to that recipient and his or her spouse) by an amount equal to the total amount of the misapplied funds. (5) The restrictions described in this section and the income and resource exclusions described in §§ 416.1124(c)(20) and 416.1247 shall continue to apply until all funds in the dedicated account are depleted or eligibility for benefits terminates, whichever comes first. This continuation of the restrictions and exclusions applies in situations where funds remain in the account in any of the following situations— (i) A child attains age 18, continues to be eligible and receives payments directly; (ii) A new representative payee is appointed. When funds remaining in a dedicated account are returned to us by the former representative payee, the new representative payee must establish an account in a financial institution into which we will deposit these funds, even if the amount is less than that prescribed in § 416.546; or (iii) During a period of suspension due to ineligibility as described in § 416.1320, administrative suspension, or a period of eligibility for which no payment is due. [47 FR 30475, July 14, 1982, as amended at 61 FR 10278, Mar. 13, 1996; 61 FR 67206, Dec. 20, 1996; 76 FR 453, Jan. 5, 2011] § 416.640a Compensation for qualified organizations serving as representative payees. (a) Organizations that can request compensation. (1) Any State or local government agency with fiduciary responsibilities or whose mission is to carry out income maintenance, social service, or health care-related activities; or (2) Any community-based nonprofit social service organization founded for religious, charitable or social welfare purposes, which is tax exempt under section 501(c) of the Internal Revenue Code and which is bonded/insured to cover misuse and embezzlement by officers and employees and which is licensed in each State in which it serves as representative payee (if licensing is available in the State). The minimum amount of bonding or insurance coverage must equal the average monthly amount of supplemental security income payments received by the organization plus the amount of the beneficiaries' conserved funds ( i.e. (b) Requirements qualified organizations must meet. (1) A qualified organization must regularly provide representative payee services concurrently to at least five beneficiaries. An organization which has received our authorization to collect a fee for representative payee services, but is temporarily (not more than 6 months) not a payee for at least five beneficiaries, may request our approval to continue to collect fees. (2) A qualified organization must demonstrate that it is not a creditor of the beneficiary. See paragraph (c) of this section for exceptions to the requirement regarding creditors. (c) Creditor relationship. (1) The creditor services (e.g., providing housing) provided by the organization help to meet the current needs of the beneficiary; and (2) The amount the organization charges the beneficiary for these services is commensurate with the beneficiary's ability to pay. (d) Authorization process. before (2) An organization seeking authorization to collect a fee must also give us evidence to show that it is qualified, pursuant to paragraphs (a), (b), and (c) of this section, to collect a fee. (3) If the evidence provided to us by the organization shows that it meets the requirements of this section, and additional investigation by us proves it suitable to serve, we will notify the organization in writing that it is authorized to collect a fee. If we need more evidence, or if we are not able to authorize the collection of a fee, we will also notify the organization in writing that we have not authorized the collection of a fee. (e) Revocation and cancellation of the authorization. (2) An organization may cancel its authorization at any time upon written notice to us. (f) Notices. (g) Limitation on fees. (2) Any agreement providing for a fee in excess of the amount permitted shall be void and treated as misuse of your benefits by the organization under § 416.641. (3) A fee may be collected for any month during which the organization— (i) Provides representative payee services; (ii) Receives a benefit payment for the beneficiary; and (iii) Is authorized to receive a fee for representative payee services. (4) Fees for services may not be taken from any funds conserved for the beneficiary by a payee in accordance with § 416.645. (5) Generally, an organization may not collect a fee for months in which it does not receive a benefit payment. However, an organization will be allowed to collect a fee for months in which it did not receive a payment if we later issue payment for these months and the organization: (i) Received our approval to collect a fee for the months for which payment is made; (ii) Provided payee services in the months for which payment is made; and (iii) Was the payee when the retroactive payment was paid by us. (6) Fees for services may not be taken from beneficiary benefits for the months for which we or a court of competent jurisdiction determine(s) that the representative payee misused benefits. Any fees collected for such months will be treated as a part of the beneficiary's misused benefits. (7) An authorized organization can collect a fee for providing representative payee services from another source if the total amount of the fee collected from both the beneficiary and the other source does not exceed the amount authorized by us. [69 FR 60238, Oct. 7, 2004, as amended at 71 FR 61408, Oct. 18, 2006] § 416.641 Who is liable if your representative payee misuses your benefits? (a) A representative payee who misuses your benefits is responsible for paying back misused benefits. We will make every reasonable effort to obtain restitution of misused benefits so that we can repay these benefits to you. (b) Whether or not we have obtained restitution from the misuser, we will repay benefits in cases when we determine that a representative payee misused benefits and the representative payee is an organization or an individual payee serving 15 or more beneficiaries. When we make restitution, we will pay you or your alternative representative payee an amount equal to the misused benefits less any amount we collected from the misuser and repaid to you. (c) Whether or not we have obtained restitution form the misuser, we will repay benefits in cases when we determine that an individual representative payee serving 14 or fewer beneficiaries misused benefits and our negligent failure in the investigation or monitoring of that representative payee results in the misuse. When we make restitution, we will pay you or your alternative representative payee an amount equal to the misused benefits less any amount we collected from the misuser and repaid to you. (d) The term “negligent failure” used in this subpart means that we failed to investigate or monitor a representative payee or that we did investigate or monitor a representative payee but did not follow established procedures in our investigation or monitoring. Examples of our negligent failure include, but are not limited to, the following: (1) We did not follow our established procedures in this subpart when investigating, appointing, or monitoring a representative payee; (2) We did not investigate timely a reported allegation of misuse; or (3) We did not take the steps necessary to prevent the issuance of payments to the representative payee after it was determined that the payee misused benefits. (e) Our repayment of misused benefits under these provisions does not alter the representative payee's liability and responsibility as described in paragraph (a) of this section. (f) Any amounts that the representative payee misuses and does not refund will be treated as an overpayment to that representative payee. See subpart E of this part. [69 FR 60239, Oct. 7, 2004, as amended at 71 FR 61409, Oct. 18, 2006] § 416.645 Conservation and investment of benefit payments. (a) General. Example: A State institution for children with intellectual disability, which is receiving Medicaid funds, is representative payee for several beneficiaries. The checks the payee receives are deposited into one account which shows that the benefits are held in trust for the beneficiaries. The institution has supporting records which show the share each individual has in the account. Funds from this account are disbursed fairly quickly after receipt for the personal needs of the beneficiaries. However, not all those funds were disbursed for this purpose. As a result, several of the beneficiaries have significant accumulated resources in this account. For those beneficiaries whose benefits have accumulated over $150, the funds should be deposited in an interest-bearing account or invested relatively free of risk on behalf of the beneficiaries. (b) Preferred investments. (1) For U.S. Savings Bonds— ______ (Name of beneficiary) ___ (Social Security Number), for whom ______ (Name of payee) is representative payee for Supplemental Security Income benefits; (2) For interest or dividend paying accounts— ______ (Name of beneficiary) by ______ (Name of payee), representative payee. (c) Interest and dividend payments. [47 FR 30475, July 14, 1982, as amended at 78 FR 46501, Aug. 1, 2013] § 416.650 When will we select a new representative payee for you? When we learn that your interest is not served by sending your benefit payment to your present representative payee or that your present payee is no longer able or willing to carry out payee responsibilities, we will promptly stop sending your payment to the payee. We will then send your benefit payment to an alternative payee or directly to you, until we find a suitable payee. We may suspend payment as explained in § 416.611(c) if we find that paying you directly would cause substantial harm and we cannot find a suitable alternative representative payee before your next payment is due. We will terminate payment of benefits to your representative payee and find a new payee or pay you directly if the present payee: (a) Has been found by us or a court of competent jurisdiction to have misused your benefits; (b) Has not used the benefit payments on your behalf in accordance with the guidelines in this subpart; (c) Has not carried out the other responsibilities described in this subpart; (d) Dies; (e) No longer wishes to be your payee; (f) Is unable to manage your benefit payments; or (g) Fails to cooperate, within a reasonable time, in providing evidence, accounting, or other information we request. [69 FR 60239, Oct. 7, 2004] § 416.655 When representative payment will be stopped. If a beneficiary receiving representative payment shows us that he or she is mentally and physically able to manage or direct the management of benefit payments, we will make direct payment. Information which the beneficiary may give us to support his or her request for direct payment include the following— (a) A physician's statement regarding the beneficiary's condition, or a statement by a medical officer of the institution where the beneficiary is or was confined, showing that the beneficiary is able to manage or direct the management of his or her funds; or (b) A certified copy of a court order restoring the beneficiary's rights in a case where a beneficiary was adjudged legally incompetent; or (c) Other evidence which establishes the beneficiary's ability to manage or direct the management of benefits. § 416.660 Transfer of accumulated benefit payments. A representative payee who has conserved or invested benefit payments shall transfer these funds and the interest earned from the invested funds to either a successor payee, to the beneficiary, or to us, as we will specify. If the funds and the earned interest are returned to us, we will recertify them to a successor representative payee or to the beneficiary. [47 FR 30475, July 14, 1982, as amended at 75 FR 7552, Feb. 22, 2010] § 416.665 How does your representative payee account for the use of benefits? (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 (except as provided in paragraph (b) of this section and for certain State institutions that participate in a separate onsite review program). (b) Your representative payee is exempt from the accounting requirement when your representative payee is: (1) A natural or adoptive parent of a minor child eligible for title XVI benefits who primarily resides in the same household as the beneficiary; (2) A legal guardian of a minor child eligible for title XVI benefits who primarily resides in the same household as the beneficiary; (3) A natural or adoptive parent of a disabled individual (as defined in section 1614(a)(3) of the Act) eligible for title XVI benefits who primarily resides in the same household as the beneficiary; or (4) The spouse of an individual eligible for title XVI benefits. (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 make 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 reports, we may require your payee to receive your benefits 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 35654, June 13, 2022] Subpart G—Reports Required Authority: 42 U.S.C. 902(a)(5), 1320a-8a, 1320e-3, 1382, 1382a, 1382b, 1382c, and 1383; sec. 211, Pub. L. 93-66, 87 Stat. 154 (42 U.S.C. 1382 note); sec. 202, Pub. L. 108-203, 118 Stat. 509 (42 U.S.C. 902 note). Source: 46 FR 5873, Jan. 21, 1981, unless otherwise noted. Introduction § 416.701 Scope of subpart. (a) Report provisions. (b) Penalty deductions. [46 FR 5873, Jan. 21, 1981, as amended at 89 FR 107259, Dec. 31, 2024] § 416.702 Definitions. For purposes of this subpart— Essential person Parent Participating payroll data provider Payroll data provider Representative payee Residence in the United States United States U.S. We, Us, Our You Your [46 FR 5873, Jan. 21, 1981, as amended at 65 FR 16814, Mar. 30, 2000; 89 FR 107259, Dec. 31, 2024] Report Provisions § 416.704 Who must make reports. (a) You are responsible for making required reports to us if you are— (1) An eligible individual (see § 416.120(c)(13)); (2) An eligible spouse (see § 416.120(c)(14)); (3) An eligible child (see §§ 416.120(c)(13) and 416.1856); or (4) An applicant awaiting a final determination upon an application. (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. [46 FR 5873, Jan. 21, 1981, as amended at 51 FR 10616, Mar. 28, 1986] § 416.708 What you must report. This section describes the events that you must report to us. They are— (a) A change of address. (b) A change in living arrangements. (c) A change in income. (i) Your ineligible spouse who lives with you; (ii) Your essential person; (iii) Your parent, if you are an eligible child and your parent lives with you; or (iv) An ineligible child who lives with you. (2) However, you need not report an increase in your Social Security benefits if the increase is only a cost-of-living adjustment. (For a complete discussion of what we consider income, see subpart K of this part. See § 416.1323 regarding suspension because of excess income.) If you receive benefits based on disability, when you or your representative report changes in your earned income, we will issue a receipt to you or your representative. (d) A change in resources. (1) Your ineligible spouse who lives with you; (2) Your essential person; or (3) Your parent, if you are an eligible child and your parent lives with you. (For a complete discussion of what we consider a resource, see subpart L. See subpart M, § 416.1324 regarding suspension because of excess resources.) (e) Eligibility for other benefits. (f) Certain deaths. (2) If you are an eligible spouse, you must report the death of your spouse, and the death of any other person who was living with you. (3) If you are an eligible child, you must report the death of a parent who was living with you, and the death of any other person who was living with you. (4) If you are a representative payee, you must report the death of an eligible individual, eligible spouse, or eligible child whom you represent; and the death of any other person who was living in the household of the individual you represent. (5) If you have a representative payee, you must report the death of your representative payee. (g) A change in marital status. (1) Your marriage, your divorce, or the annulment of your marriage; (2) The marriage, divorce, or annulment of marriage of your parent who lives with you, if you are an eligible child; (3) The marriage of an ineligible child who lives with you, if you are an eligible child; and (4) The marriage of an ineligible child who lives with you if you are an eligible individual living with an ineligible spouse. (h) Medical improvements. (i)-(j) [Reserved] (k) Admission to or discharge from a medical treatment facility, public institution, or private institution. (1) A medical treatment facility; or (2) A public institution (defined in § 416.201); or (3) A private institution. Private institution (l) A change in school attendance. (1) A change in your school attendance if you are an eligible child; (2) A change in school attendance of an ineligible child who is at least age 18 but less than 21 and who lives with you if you are an eligible child; and (3) A change in school attendance of an ineligible child who is at least age 18 but less than 21 and who lives with you if you are an eligible individual living with an ineligible spouse. (m) A termination of residence in the U.S. (n) Leaving the U.S. temporarily. (o) Fleeing to avoid criminal prosecution or custody or confinement after conviction, or violating probation or parole. (1) Fleeing to avoid prosecution 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 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. [46 FR 5873, Jan. 21, 1981, as amended at 51 FR 10616, Mar. 14, 1986; 65 FR 40495, June 30, 2000; 68 FR 40124, July 7, 2003; 71 FR 66866, Nov. 17, 2006; 72 FR 50874, Sept. 5, 2007; 89 FR 107259, Dec. 31, 2024; 91 FR 16830, Apr. 3, 2026] § 416.709 Reduced reporting requirements when you authorize us to obtain your information from payroll data providers. (a) Authorization to obtain data from a payroll data provider. (b) Scope and duration. (1) We will explain to you that we will use information obtained from a payroll data provider, when it is needed, in connection with a determination of eligibility or the amount of benefits under this title, or for the initial or ongoing entitlement to disability benefits under title II of the Social Security Act, and to prevent improper payments. We will explain to you that we may also use the authorization to obtain wage and employment information from a payroll data provider for claims associated with the claim filed, such as an SSI claim by a spouse or child. We will also explain that we may use and disclose your information consistent with applicable Federal law (see part 401 of this chapter) and any privacy notices we provide to you. (2) We will also inform you that your authorization will remain effective until the earliest of one of the following occurrences: (i) You revoke your authorization in writing (see paragraph (c)(4) of this section); (ii) We have terminated all eligibility for benefits and you have no other claims or appeals pending under this title, and the period for appealing the determination or decision terminating entitlement has lapsed; (iii) There has been an adverse determination or decision on your claim, you have no other claims or appeals pending under this title, and the period for appealing the determination or decision terminating eligibility has lapsed; or (iv) Your deeming relationship ends. (c) When reporting requirements will change. (1) If we have your authorization to obtain wage and employment information from a payroll data provider as described in paragraph (a) of this section, and we receive your wage and employment information from your employer(s) through a participating payroll data provider, you will not have to report changes in your wages paid in cash, as defined in § 416.1110(a), from that employer(s). Also, you will not have to report an increase in the amount of work from that employer or an increase in earnings from that employer, as described in § 416.988(a)(4) and (5). All other reporting requirements still apply. (2) If we have your authorization to obtain wage and employment information from a payroll data provider as described in paragraph (a) of this section, but we do not receive your wage and employment information from your employer(s) through a participating payroll data provider, we will not reduce your reporting responsibilities. (3) If we have your authorization to obtain wage and employment information from a payroll data provider as described in paragraph (a) of this section, and you have more than one employer, (i) You do not need to report wages paid in cash, or an increase in the amount of work or earnings, for an employer if we receive your wage and employment information for that employer through a participating payroll data provider, and (ii) You must still report wages paid in cash, or an increase in the amount of work or earnings, for an employer if we do not receive your wage and employment information for that employer through a participating payroll data provider. (4) You may revoke your authorization at any time, but you must do so in writing. We will apply the revocation to all pending or approved claims under this title as well as all pending or approved disability claims under title II from the time we process your revocation. If you revoke your authorization, all your reporting responsibilities will resume; you will again be subject to all related penalties; and we may not find good cause, under § 416.732, for a failure to report timely a change in employer. We will notify you in writing of these changes. [89 FR 107260, Dec. 31, 2024] § 416.710 What reports must include. When you make a report you must tell us— (a) The name and social security number under which benefits are paid; (b) The name of the person about whom you are reporting; (c) The event you are reporting and the date it happened; and (d) Your name. § 416.712 Form of the report. You may make a report in any of the ways described in this section. (a) Written reports. (b) Oral reports. (c) Other forms. § 416.714 When reports are due. (a) A reportable event happens. (b) We request a report. [46 FR 5873, Jan. 21, 1981, as amended at 50 FR 48573, Nov. 26, 1985] Penalty Deductions § 416.722 Circumstances under which we make a penalty deduction. A penalty deduction is made from your benefits if— (a) You fail to make a required report on time (see §§ 416.708 and 416.714); (b) We must reduce, suspend, or terminate your benefits because of the event you have not reported; (c) You received and accepted an SSI benefit for the penalty period (see §§ 416.724 through 416.728 for penalty period definitions); and (d) You do not have good cause for not reporting on time (see § 416.732). § 416.724 Amounts of penalty deductions. (a) Amounts deducted. (1) $25 for a report overdue in the first penalty period; (2) $50 for a report overdue in the second penalty period; and (3) $100 for a report overdue in the third (or any following) penalty period. (b) Limit on number of penalties. § 416.726 Penalty period: First failure to report. (a) First penalty period. (b) Extension of first penalty period. [46 FR 5873, Jan. 21, 1981, as amended at 50 FR 48573, Nov. 26, 1985] § 416.728 Penalty period: Second failure to report. (a) Second penalty period. (b) Extension of second penalty period. [46 FR 5873, Jan. 21, 1981, as amended at 50 FR 48573, Nov. 26, 1985] § 416.730 Penalty period: Three or more failures to report. (a) Third (or a following) penalty period. (b) Extension of third (or a following) penalty period. [46 FR 5873, Jan. 21, 1981, as amended at 50 FR 48573, Nov. 26, 1985] § 416.732 No penalty deduction if you have good cause for failure to report timely. (a) We will find that you have good cause for failure to report timely and we will not impose a penalty deduction, if— (1) You are “without fault” as defined in § 416.552; or (2) Your failure or delay in reporting is not willful. “Not willful” means that— (i) You did not have full knowledge of the existence of your obligation to make a required report; or (ii) You did not intentionally, knowingly, and purposely fail to make a required report. However, in either case we may require that you refund an overpayment caused by your failure to report. See subpart E of this part for waiver of recovery of overpayments. (b) In determining whether you have good cause for failure to report timely, we will take into account any physical, mental, educational, or linguistic limitations (including any lack of facility with the English language) you may have. [59 FR 1636, Jan. 12, 1994] Subpart H—Determination of Age Authority: Secs. 702(a)(5), 1601, 1614(a)(1) and 1631 of the Social Security Act (42 U.S.C. 902(a)(5), 1381, 1382c(a)(1), and 1383). Source: 39 FR 12731, Apr. 8, 1974, unless otherwise noted. § 416.801 Evidence as to age—when required. An applicant for benefits under title XVI of the Act shall file supporting evidence showing the date of his birth if his age is a condition of eligibility for benefits or is otherwise relevant to the payment of benefits pursuant to such title XVI. Such evidence may also be required by the Administration as to the age of any other individual when such other individual's age is relevant to the determination of the applicant's eligibility or benefit amount. In the absence of evidence to the contrary, if the applicant alleges that he is at least 68 years of age and submits any documentary evidence at least 3 years old which supports his allegation, no further evidence of his age is required. In the absence of evidence to the contrary, if a State required reasonably acceptable evidence of age and provides a statement as to an applicant's age, no further evidence of his age is required unless a statistically valid quality control sample has shown that a State's determination of age procedures do not yield an acceptable low rate of error. § 416.802 Type of evidence to be submitted. Where an individual is required to submit evidence of date of birth as indicated in § 416.801, he shall submit a public record of birth or a religious record of birth or baptism established or recorded before his fifth birthday, if available. Where no such document recorded or established before age 5 is available the individual shall submit as evidence of age another document or documents which may serve as the basis for a determination of the individual's date of birth provided such evidence is corroborated by other evidence or by information in the records of the Administration. § 416.803 Evaluation of evidence. Generally, the highest probative value will be accorded to a public record of birth or a religious record of birth or baptism established or recorded before age 5. Where such record is not available, and other documents are submitted as evidence of age, in determining their probative value, consideration will be given to when such other documents were established or recorded, and the circumstances attending their establishment or recordation. Among the documents which may be submitted for such purpose are: school record, census record, Bible or other family record, church record of baptism or confirmation in youth or early adult life, insurance policy, marriage record, employment record, labor union record, fraternal organization record, military record, voting record, vaccination record, delayed birth certificate, birth certificate of child of applicant, physician's or midwife's record of birth, immigration record, naturalization record, or passport. § 416.804 Certified copy in lieu of original. In lieu of the original of any record, except a Bible or other family record, there may be submitted as evidence of age a copy of such record or a statement as to the date of birth shown by such record, which has been duly certified (see § 404.701(g) of this chapter). § 416.805 When additional evidence may be required. If the evidence submitted is not convincing, additional evidence may be required. § 416.806 Expedited adjudication based on documentary evidence of age. Where documentary evidence of age recorded at least 3 years before the application is filed, which reasonably supports an aged applicant's allegation as to his age, is submitted, payment of benefits may be initiated even though additional evidence of age may be required by §§ 416.801 through 416.805. The applicant will be advised that additional evidence is required and that, if it is subsequently established that the prior finding of age is incorrect, the applicant will be liable for refund of any overpayment he has received. If any of the evidence initially submitted tends to show that the age of the applicant or such other person does not correspond with the alleged age, no benefits will be paid until the evidence required by §§ 416.801 through 416.805 is submitted. Subpart I—Determining Disability and Blindness Authority: 42 U.S.C. 421(m), 902(a)(5), 1382, 1382c, 1382h, 1383, and 1383b; secs. 4(c) and 5, 6(c)-(e), 14(a), and 15, Pub. L. 98-460, 98 Stat. 1794, 1801, 1802, and 1808 (42 U.S.C. 421 note, 423 note, and 1382h note). Source: 45 FR 55621, Aug. 20, 1980, unless otherwise noted. General § 416.901 Scope of subpart. In order for you to become entitled to any benefits based upon disability or blindness you must be disabled or blind as defined in title XVI of the Social Security Act. This subpart explains how we determine whether you are disabled or blind. We have organized the rules in the following way. (a) We define general terms, then discuss who makes our disability or blindness determinations and state that disability and blindness determinations made under other programs are not binding on our determinations. (b) We explain the term disability (c) Sections 416.912 through 416.918 contain our rules on evidence. We explain your responsibilities for submitting evidence of your impairment, state what we consider to be acceptable sources of medical evidence, and describe what information should be included in medical reports. (d) Our general rules on evaluating disability for adults filing new applications are stated in §§ 416.920 through 416.923. We describe the steps that we go through and the order in which they are considered. (e) Our general rules on evaluating disability for children filing new applications are stated in § 416.924. (f) Our rules on medical considerations are found in §§ 416.925 through 416.930. We explain in these rules— (1) The purpose and use of the Listing of Impairments found in appendix 1 of subpart P of part 404 of this chapter; (2) What we mean by the terms medical equivalence functional equivalence (3) The effect of a conclusion by your physician that you are disabled; (4) What we mean by symptoms, signs, and laboratory findings; (5) How we evaluate pain and other symptoms; and (6) The effect on your benefits if you fail to follow treatment that is expected to restore your ability to work or, if you are a child, to reduce your functional limitations to the point that they are no longer marked and severe, and how we apply the rule in § 416.930. (g) In §§ 416.931 through 416.934 we explain that we may make payments on the basis of presumptive disability or presumptive blindness. (h) In § 416.935 we explain the rules which apply in cases of drug addiction and alcoholism. (i) In §§ 416.945 through 416.946 we explain what we mean by the term residual functional capacity, (j) Our rules on vocational considerations are in §§ 416.960 through 416.969a. We explain in these rules— (1) When we must consider vocational factors along with the medical evidence; (2) How we use our residual functional capacity assessment to determine if you can still do your past relevant work or other work; (3) How we consider the vocational factors of age, education, and work experience; (4) What we mean by “work which exists in the national economy”; (5) How we consider the exertional, nonexertional, and skill requirements of work, and when we will consider the limitations or restrictions that result from your impairment(s) and related symptoms to be exertional, nonexertional, or a combination of both; and (6) How we use the Medical-Vocational Guidelines in appendix 2 of subpart P of part 404 of this chapter. (k) Our rules on substantial gainful activity are found in §§ 416.971 through 416.974. These explain what we mean by substantial gainful activity and how we evaluate your work activity. (l) In §§ 416.981 through 416.985 we discuss blindness. (m) Our rules on when disability or blindness continues and stops are contained in §§ 416.986 and 416.988 through 416.998. We explain what your responsibilities are in telling us of any events that may cause a change in your disability or blindness status and when we will review to see if you are still disabled. We also explain how we consider the issue of medical improvement (and the exceptions to medical improvement) in determining whether you are still disabled. [45 FR 55621, Aug. 20, 1980, as amended at 50 FR 50136, Dec. 6, 1985; 56 FR 5553, Feb. 11, 1991; 56 FR 57944, Nov. 14, 1991; 62 FR 6420, Feb. 11, 1997; 65 FR 42788, July 11, 2000; 65 FR 54777, Sept. 11, 2000; 68 FR 51164, Aug. 26, 2003; 91 FR 16830, Apr. 3, 2026] § 416.902 Definitions for this subpart. As used in the subpart— (a) Acceptable medical source (1) Licensed physician (medical or osteopathic doctor); (2) Licensed psychologist, which includes: (i) A licensed or certified psychologist at the independent practice level; or (ii) A licensed or certified school psychologist, or other licensed or certified individual with another title who performs the same function as a school psychologist in a school setting, for impairments of intellectual disability, learning disabilities, and borderline intellectual functioning only; (3) Licensed optometrist for impairments of visual disorders, or measurement of visual acuity and visual fields only, depending on the scope of practice in the State in which the optometrist practices; (4) Licensed podiatrist for impairments of the foot, or foot and ankle only, depending on whether the State in which the podiatrist practices permits the practice of podiatry on the foot only, or the foot and ankle; (5) Qualified speech-language pathologist for speech or language impairments only. For this source, qualified (6) Licensed audiologist for impairments of hearing loss, auditory processing disorders, and balance disorders within the licensed scope of practice only (with respect to claims filed (see § 416.325) on or after March 27, 2017); (7) Licensed Advanced Practice Registered Nurse, or other licensed advanced practice nurse with another title, for impairments within his or her licensed scope of practice (only with respect to claims filed (see § 416.325) on or after March 27, 2017); or (8) Licensed Physician Assistant for impairments within his or her licensed scope of practice (only with respect to claims filed (see § 416.325) on or after March 27, 2017). (b) Adult (c) Child (d) Commissioner (e) Disability redetermination (f) Impairment(s) (g) Laboratory findings (h) Marked and severe functional limitations, (i) Medical source (j) Nonmedical source (1) You; (2) Educational personnel (for example, school teachers, counselors, early intervention team members, developmental center workers, and daycare center workers); (3) Public and private social welfare agency personnel; and (4) Family members, caregivers, friends, neighbors, employers, and clergy. (k) Objective medical evidence (l) Signs (m) State agency (n) Symptoms (o) The listings (p) We us (q) You, your, me, my I [82 FR 5873, Jan. 18, 2017, as amended at 83 FR 51836, Oct. 15, 2018] Determinations § 416.903 Who makes disability and blindness determinations. (a) State agencies. (b) Social Security Administration. (1) Any person living in a State which is not making for the Commissioner any disability and blindness determinations or which is not making those determinations for the class of claimants to which that person belongs; and (2) Any person living outside the United States. (c) What determinations are authorized. (1) Whether you are disabled or blind; (2) The date your disability or blindness began; and (3) The date your disability or blindness stopped. (d) Review of State agency determinations. (1) You are, or are not, disabled or blind, regardless of what the State agency found; (2) Your disability or blindness began earlier or later than the date found by the State agency; and (3) Your disability or blindness stopped earlier or later than the date found by the State agency. (e) Determinations for childhood impairments. [46 FR 29211, May 29, 1981, as amended at 52 FR 33927, Sept. 9, 1987; 58 FR 47577, Sept. 9, 1993; 62 FR 38454, July 18, 1997; 65 FR 34958, June 1, 2000; 71 FR 16458, Mar. 31, 2006; 72 FR 51178, Sept. 6, 2007; 82 FR 5874, Jan. 18, 2017] § 416.903a Program integrity. We will not use in our program any individual or entity, except to provide existing medical evidence, who is currently excluded, suspended, or otherwise barred from participation in the Medicare or Medicaid programs, or any other Federal or Federally-assisted program; whose license to provide health care services is currently revoked or suspended by any State licensing authority pursuant to adequate due process procedures for reasons bearing on professional competence, professional conduct, or financial integrity; or who until a final determination is made has surrendered such a license while formal disciplinary proceedings involving professional conduct are pending. By individual or entity we mean a medical or psychological consultant, consultative examination provider, or diagnostic test facility. Also see §§ 416.919 and 416.919g(b). [56 FR 36963, Aug. 1, 1991] § 416.903b Evidence from excluded medical sources of evidence. (a) General. (1) Any medical source that has been convicted of a felony under section 208 or under section 1632 of the Act; (2) Any medical source that has been excluded from participation in any Federal health care program under section 1128 of the Act; or (3) Any medical source that has received a final decision imposing a civil monetary penalty or assessment, or both, for submitting false evidence under section 1129 of the Act. (b) Good cause. (1) The evidence from the medical source consists of evidence of treatment that occurred before the date the source was convicted of a felony under section 208 or under section 1632 of the Act; (2) The evidence from the medical source consists of evidence of treatment that occurred during a period in which the source was not excluded from participation in any Federal health care program under section 1128 of the Act; (3) The evidence from the medical source consists of evidence of treatment that occurred before the date the source received a final decision imposing a civil monetary penalty or assessment, or both, for submitting false evidence under section 1129 of the Act; (4) The sole basis for the medical source's exclusion under section 223(d)(5)(C)(i) of the Act, as amended, is that the source cannot participate in any Federal health care program under section 1128 of the Act, but the Office of Inspector General of the Department of Health and Human Services granted a waiver of the section 1128 exclusion; or (5) The evidence is a laboratory finding about a physical impairment and there is no indication that the finding is unreliable. (c) Reporting requirements for excluded medical sources of evidence. (1) Excluded medical sources of evidence must provide a written statement, which contains the following information: (i) A heading stating: “WRITTEN STATEMENT REGARDING SECTION 223(d)(5)(C) OF THE SOCIAL SECURITY ACT—DO NOT REMOVE” (ii) The name and title of the medical source; (iii) The applicable excluding event(s) stated in paragraph (a)(1)-(a)(3) of this section; (iv) The date of the medical source's felony conviction under sections 208 or 1632 of the Act, if applicable; (v) The date of the imposition of a civil monetary penalty or assessment, or both, for the submission of false evidence, under section 1129 of the Act, if applicable; and (vi) The basis, effective date, anticipated length of the exclusion, and whether the Office of the Inspector General of the Department of Health and Human Services waived the exclusion, if the excluding event was the medical source's exclusion from participation in any Federal health care program under section 1128 of the Act. (2) The written statement provided by an excluded medical source of evidence may not be removed by any individual or entity prior to submitting evidence to us. (3) We may request that the excluded medical source of evidence provide us with additional information or clarify any information submitted that bears on the medical source's exclusion(s) under section 223(d)(5)(C)(i) of the Act, as amended. [81 FR 65540, Sept. 23, 2016] § 416.904 Decisions by other governmental agencies and nongovernmental entities. Other governmental agencies and nongovernmental entities—such as the Department of Veterans Affairs, the Department of Defense, the Department of Labor, the Office of Personnel Management, State agencies, and private insurers—make disability, blindness, employability, Medicaid, workers' compensation, and other benefits decisions for their own programs using their own rules. Because a decision by any other governmental agency or a nongovernmental entity about whether you are disabled, blind, employable, or entitled to any benefits is based on its rules, it is not binding on us and is not our decision about whether you are disabled or blind under our rules. Therefore, in claims filed (see § 416.325) on or after March 27, 2017, we will not provide any analysis in our determination or decision about a decision made by any other governmental agency or a nongovernmental entity about whether you are disabled, blind, employable, or entitled to any benefits. However, we will consider all of the supporting evidence underlying the other governmental agency or nongovernmental entity's decision that we receive as evidence in your claim in accordance with § 416.913(a)(1) through (4). [82 FR 5874, Jan. 18, 2017, as amended at 82 FR 15132, Mar. 27, 2017] Definition of Disability § 416.905 Basic definition of disability for adults. (a) The law defines disability as the inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months. To meet this definition, you must have a severe impairment(s) that makes you unable to do your past relevant work (see § 416.960(b)) or any other substantial gainful work that exists in the national economy. If your severe impairment(s) does not meet or medically equal a listing in appendix 1 to subpart P of part 404 of this chapter, we will assess your residual functional capacity as provided in §§ 416.920(e) and 416.945. ( See See (b) There are different rules for determining disability for individuals who are statutorily blind. We discuss these in §§ 416.981 through 416.985. [45 FR 55621, Aug. 20, 1980, as amended at 56 FR 5553, Feb. 11, 1991; 68 FR 51164, Aug. 26, 2003; 77 FR 43495, July 25, 2012] § 416.906 Basic definition of disability for children. If you are under age 18, we will consider you disabled if you have a medically determinable physical or mental impairment or combination of impairments that causes marked and severe functional limitations, and that can be expected to cause death or that has lasted or can be expected to last for a continuous period of not less than 12 months. Notwithstanding the preceding sentence, if you file a new application for benefits and you are engaging in substantial gainful activity, we will not consider you disabled. We discuss our rules for determining disability in children who file new applications in §§ 416.924 through 416.924b and §§ 416.925 through 416.926a. [62 FR 6421, Feb. 11, 1997, as amended at 65 FR 54777, Sept. 11, 2000] § 416.907 Disability under a State plan. You will also be considered disabled for payment of supplemental security income benefits if— (a) You were found to be permanently and totally disabled as defined under a State plan approved under title XIV or XVI of the Social Security Act, as in effect for October 1972; (b) You received aid under the State plan because of your disability for the month of December 1973 and for at least one month before July 1973; and (c) You continue to be disabled as defined under the State plan. § 416.908 [Reserved] § 416.909 How long the impairment must last. Unless your impairment is expected to result in death, it must have lasted or must be expected to last for a continuous period of at least 12 months. We call this the duration requirement. § 416.910 Meaning of substantial gainful activity. Substantial gainful activity means work that— (a) Involves doing significant and productive physical or mental duties; and (b) Is done (or intended) for pay or profit. (See § 416.972 for further details about what we mean by substantial gainful activity.) § 416.911 Definition of disabling impairment. (a) If you are an adult: (1) A disabling impairment is an impairment (or combination of impairments) which, of itself, is so severe that it meets or equals a set of criteria in the Listing of Impairments in appendix 1 of subpart P of part 404 of this chapter or which, when considered with your age, education and work experience, would result in a finding that you are disabled under § 416.994, unless the disability redetermination rules in § 416.987(b) apply to you. (2) If the disability redetermination rules in § 416.987 apply to you, a disabling impairment is an impairment or combination of impairments that meets the requirements in §§ 416.920 (c) through (f). (b) If you are a child, a disabling impairment is an impairment (or combination of impairments) that causes marked and severe functional limitations. This means that the impairment or combination of impairments: (1) Must meet, medically equal, or functionally equal the listings, or (2) Would result in a finding that you are disabled under § 416.994a. (c) In determining whether you have a disabling impairment, earnings are not considered. [62 FR 6421, Feb. 11, 1997, as amended at 65 FR 54777, Sept. 11, 2000] Evidence § 416.912 Responsibility for evidence. (a) Your responsibility General. see (i) Your medical source(s); (ii) Your age; (iii) Your education and training; (iv) Your work experience; (v) Your daily activities both before and after the date you say that you became disabled; (vi) Your efforts to work; and (vii) Any other factors showing how your impairment(s) affects your ability to work, or, if you are a child, your functioning. In §§ 416.960 through 416.969, we discuss in more detail the evidence we need when we consider vocational factors. (2) Completeness. (i) The nature and severity of your impairment(s) for any period in question; (ii) Whether the duration requirement described in § 416.909 is met; and (iii) Your residual functional capacity to do work-related physical and mental activities, when the evaluation steps described in §§ 416.920(e) or (f)(1) apply, or, if you are a child, how you typically function compared to children your age who do not have impairments. (3) Statutory blindness. (b) Our responsibility Development. (i) Every reasonable effort (ii) Complete medical history (2) Obtaining a consultative examination. (3) Other work. [82 FR 5874, Jan. 18, 2017] § 416.913 Categories of evidence. (a) What we mean by evidence. (1) Objective medical evidence. (2) Medical opinion. (i) Medical opinions in adult claims are about impairment-related limitations and restrictions in: (A) Your ability to perform physical demands of work activities, such as sitting, standing, walking, lifting, carrying, pushing, pulling, or other physical functions (including manipulative or postural functions, such as reaching, handling, stooping, or crouching); (B) Your ability to perform mental demands of work activities, such as understanding; remembering; maintaining concentration, persistence, or pace; carrying out instructions; or responding appropriately to supervision, co-workers, or work pressures in a work setting; (C) Your ability to perform other demands of work, such as seeing, hearing, or using other senses; and (D) Your ability to adapt to environmental conditions, such as temperature extremes or fumes. (ii) Medical opinions in child claims are about impairment-related limitations and restrictions in your abilities in the six domains of functioning: (A) Acquiring and using information (see § 416.926a(g)); (B) Attending and completing tasks (see § 416.926a(h)); (C) Interacting and relating with others (see § 416.926a(i)); (D) Moving about and manipulating objects (see § 416.926a(j)); (E) Caring for yourself (see § 416.926a(k)); and (F) Health and physical well-being (see § 416.926a(l)). (3) Other medical evidence. other medical evidence (4) Evidence from nonmedical sources. (5) Prior administrative medical finding. (i) The existence and severity of your impairment(s); (ii) The existence and severity of your symptoms; (iii) Statements about whether your impairment(s) meets or medically equals any listing in the Listing of Impairments in Part 404, Subpart P, Appendix 1; (iv) If you are a child, statements about whether your impairment(s) functionally equals the listings in Part 404, Subpart P, Appendix 1; (v) If you are an adult, your residual functional capacity; (vi) Whether your impairment(s) meets the duration requirement; and (vii) How failure to follow prescribed treatment (see § 416.930) and drug addiction and alcoholism (see § 416.935) relate to your claim. (b) Exceptions for privileged communications. (1) The privileged communications listed in paragraphs (b)(1)(i) and (b)(1)(ii) of this section are not evidence, and we will neither consider nor provide any analysis about them in your determination or decision. This exception for privileged communications applies equally whether your representative is an attorney or a non-attorney. (i) Oral or written communications between you and your representative that are subject to the attorney-client privilege, unless you voluntarily disclose the communication to us. (ii) Your representative's analysis of your claim, unless he or she voluntarily discloses it to us. This analysis means information that is subject to the attorney work product doctrine, but it does not include medical evidence, medical opinions, or any other factual matter that we may consider in determining whether or not you are entitled to benefits (see paragraph (b)(2) of this section). (2) The attorney-client privilege generally protects confidential communications between an attorney and his or her client that are related to providing or obtaining legal advice. The attorney work product doctrine generally protects an attorney's analyses, theories, mental impressions, and notes. In the context of your disability claim, neither the attorney-client privilege nor the attorney work product doctrine allow you to withhold factual information, medical opinions, or other medical evidence that we may consider in determining whether or not you are entitled to benefits. For example, if you tell your representative about the medical sources you have seen, your representative cannot refuse to disclose the identity of those medical sources to us based on the attorney-client privilege. As another example, if your representative asks a medical source to complete an opinion form related to your impairment(s), symptoms, or limitations, your representative cannot withhold the completed opinion form from us based on the attorney work product doctrine. The attorney work product doctrine would not protect the source's opinions on the completed form, regardless of whether or not your representative used the form in his or her analysis of your claim or made handwritten notes on the face of the report. [82 FR 5875, Jan. 18, 2017] § 416.913a Evidence from our Federal or State agency medical or psychological consultants. The following rules apply to our Federal or State agency medical or psychological consultants that we consult in connection with administrative law judge hearings and Appeals Council reviews: (a) In claims adjudicated by the State agency, a State agency medical or psychological consultant may make the determination of disability together with a State agency disability examiner or provide medical evidence to a State agency disability examiner when the disability examiner makes the initial or reconsideration determination alone (see § 416.1015(c) of this part). The following rules apply: (1) When a State agency medical or psychological consultant makes the determination together with a State agency disability examiner at the initial or reconsideration level of the administrative review process as provided in § 416.1015(c)(1), he or she will consider the evidence in your case record and make administrative findings about the medical issues, including, but not limited to, the existence and severity of your impairment(s), the existence and severity of your symptoms, whether your impairment(s) meets or medically equals the requirements for any impairment listed in appendix 1 to this subpart, and your residual functional capacity. These administrative medical findings are based on the evidence in your case but are not in themselves evidence at the level of the administrative review process at which they are made. See § 416.913(a)(5). (2) When a State agency disability examiner makes the initial determination alone as provided in § 416.1015(c)(3), he or she may obtain medical evidence from a State agency medical or psychological consultant about one or more of the medical issues listed in paragraph (a)(1) of this section. In these cases, the State agency disability examiner will consider the medical evidence of the State agency medical or psychological consultant under §§ 416.920b, 416.920c, and 416.927. (3) When a State agency disability examiner makes a reconsideration determination alone as provided in § 416.1015(c)(3), he or she will consider prior administrative medical findings made by a State agency medical or psychological consultant at the initial level of the administrative review process, and any medical evidence provided by such consultants at the initial and reconsideration levels, about one or more of the medical issues listed in paragraph (a)(1)(i) of this section under §§ 416.920b, 416.920c, and 416.927. (b) Administrative law judges are responsible for reviewing the evidence and making administrative findings of fact and conclusions of law. They will consider prior administrative medical findings and medical evidence from our Federal or State agency medical or psychological consultants as follows: (1) Administrative law judges are not required to adopt any prior administrative medical findings, but they must consider this evidence according to §§ 416.920b, 416.920c, and 416.927, as appropriate, because our Federal or State agency medical or psychological consultants are highly qualified and experts in Social Security disability evaluation. (2) Administrative law judges may also ask for medical evidence from expert medical sources. Administrative law judges will consider this evidence under §§ 416.920b, 416.920c, and 416.927, as appropriate. (c) When the Appeals Council makes a decision, it will consider prior administrative medical findings according to the same rules for considering prior administrative medical findings as administrative law judges follow under paragraph (b) of this section. [82 FR 5876, Jan. 18, 2017] § 416.914 When we will purchase existing evidence. We need specific medical evidence to determine whether you are disabled or blind. We will pay for the medical evidence we request, if there is a charge. We will also be responsible for the cost of medical evidence we ask you to get. § 416.915 Where and how to submit evidence. You may give us evidence about your impairment at any of our offices or at the office of any State agency authorized to make disability or blindness determinations. You may also give evidence to one of our employees authorized to accept evidence at another place. For more information about this, see subpart C of this part. § 416.916 If you fail to submit medical and other evidence. You (and if you are a child, your parent, guardian, relative, or other person acting on your behalf) must co-operate in furnishing us with, or in helping us to obtain or identify, available medical or other evidence about your impairment(s). When you fail to cooperate with us in obtaining evidence, we will have to make a decision based on information available in your case. We will not excuse you from giving us evidence because you have religious or personal reasons against medical examinations, tests, or treatment. [58 FR 47577, Sept. 9, 1993] § 416.917 Consultative examination at our expense. If your medical sources cannot or will not give us sufficient medical evidence about your impairment for us to determine whether you are disabled or blind, we may ask you to have one or more physical or mental examinations or tests. We will pay for these examinations. However, we will not pay for any medical examination arranged by you or your representative without our advance approval. If we arrange for the examination or test, we will give you reasonable notice of the date, time, and place the examination or test will be given, and the name of the person or facility who will do it. We will also give the examiner any necessary background information about your condition. [56 FR 36964, Aug. 1, 1991] § 416.918 If you do not appear at a consultative examination. (a) General. (b) Examples of good reasons for failure to appear. (1) Illness on the date of the scheduled examination or test; (2) Not receiving timely notice of the scheduled examination or test, or receiving no notice at all; (3) Being furnished incorrect or incomplete information, or being given incorrect information about the physician involved or the time or place of the examination or test, or; (4) Having had death or serious illness occur in your immediate family. (c) Objections by your medical source(s). [45 FR 55621, Aug. 20, 1980, as amended at 59 FR 1636, Jan. 12, 1994; 82 FR 5877, Jan. 18, 2017] Standards To Be Used in Determining When a Consultative Examination Will Be Obtained in Connection With Disability Determinations § 416.919 The consultative examination. A consultative examination is a physical or mental examination or test purchased for you at our request and expense from a treating source or another medical source, including a pediatrician when appropriate. The decision to purchase a consultative examination will be made on an individual case basis in accordance with the provisions of § 416.919a through § 416.919f. Selection of the source for the examination will be consistent with the provisions of § 416.903a and §§ 416.919g through 416.919j. The rules and procedures for requesting consultative examinations set forth in §§ 416.919a and 416.919b are applicable at the reconsideration and hearing levels of review, as well as the initial level of determination. [56 FR 36964, Aug. 1, 1991, as amended at 65 FR 11879, Mar. 7, 2000] § 416.919a When we will purchase a consultative examination and how we will use it. (a) General. (b) Situations that may require a consultative examination. (1) The additional evidence needed is not contained in the records of your medical sources; (2) The evidence that may have been available from your treating or other medical sources cannot be obtained for reasons beyond your control, such as death or noncooperation of a medical source; (3) Highly technical or specialized medical evidence that we need is not available from your treating or other medical sources; or (4) There is an indication of a change in your condition that is likely to affect your ability to work, or, if you are a child, your functioning, but the current severity of your impairment is not established. [56 FR 36964, Aug. 1, 1991, as amended at 62 FR 6421, Feb. 11, 1997; 77 FR 10656, Feb. 23, 2012] § 416.919b When we will not purchase a consultative examination. We will not purchase a consultative examination in situations including, but not limited to, the following situations: (a) When any issues about your actual performance of substantial gainful activity have not been resolved; (b) When you do not meet all of the nondisability requirements. [56 FR 36965, Aug. 1, 1991] Standards for the Type of Referral and for Report Content § 416.919f Type of purchased examinations. We will purchase only the specific examinations and tests we need to make a determination in your claim. For example, we will not authorize a comprehensive medical examination when the only evidence we need is a special test, such as an X-ray, blood studies, or an electrocardiogram. [56 FR 36965, Aug. 1, 1991] § 416.919g Who we will select to perform a consultative examination. (a) We will purchase a consultative examination only from a qualified medical source. The medical source may be your own medical source or another medical source. If you are a child, the medical source we choose may be a pediatrician. (b) By “qualified,” we mean that the medical source must be currently licensed in the State and have the training and experience to perform the type of examination or test we will request; the medical source must not be barred from participation in our programs under the provisions of § 416.903a. The medical source must also have the equipment required to provide an adequate assessment and record of the existence and level of severity of your alleged impairments. (c) The medical source we choose may use support staff to help perform the consultative examination. Any such support staff (e.g., X-ray technician, nurse) must meet appropriate licensing or certification requirements of the State. See § 416.903a. [56 FR 36965, Aug. 1, 1991, as amended at 65 FR 11879, Mar. 7, 2000; 82 FR 5877, Jan. 18, 2017] § 416.919h Your medical source. When, in our judgment, your medical source is qualified, equipped, and willing to perform the additional examination or test(s) for the fee schedule payment, and generally furnishes complete and timely reports, your medical source will be the preferred source for the purchased examination or test(s). [82 FR 5877, Jan. 18, 2017] § 416.919i Other sources for consultative examinations. We will use a different medical source than your medical source for a purchased examination or test in situations including, but not limited to, the following: (a) Your medical source prefers not to perform such an examination or does not have the equipment to provide the specific data needed; (b) There are conflicts or inconsistencies in your file that cannot be resolved by going back to your medical source; (c) You prefer a source other than your medical source and have a good reason for your preference; (d) We know from prior experience that your medical source may not be a productive source, such as when he or she has consistently failed to provide complete or timely reports; or (e) Your medical source is not a qualified medical source as defined in § 416.919g. [82 FR 5877, Jan, 18, 2017] § 416.919j Objections to the medical source designated to perform the consultative examination. You or your representative may object to your being examined by a medical source we have designated to perform a consultative examination. If there is a good reason for the objection, we will schedule the examination with another medical source. A good reason may be that the medical source we designated had previously represented an interest adverse to you. For example, the medical source may have represented your employer in a workers' compensation case or may have been involved in an insurance claim or legal action adverse to you. Other things we will consider include: The presence of a language barrier, the medical source's office location (e.g., 2nd floor, no elevator), travel restrictions, and whether the medical source had examined you in connection with a previous disability determination or decision that was unfavorable to you. If your objection is that a medical source allegedly “lacks objectivity” in general, but not in relation to you personally, we will review the allegations. See § 416.919s. To avoid a delay in processing your claim, the consultative examination in your case will be changed to another medical source while a review is being conducted. We will handle any objection to use of the substitute medical source in the same manner. However, if we had previously conducted such a review and found that the reports of the medical source in question conformed to our guidelines, we will not change your examination. [65 FR 11879, Mar. 7, 2000] § 416.919k Purchase of medical examinations, laboratory tests, and other services. We may purchase medical examinations, including psychiatric and psychological examinations, X-rays and laboratory tests (including specialized tests, such as pulmonary function studies, electrocardiograms, and stress tests) from a medical source. (a) The rate of payment for purchasing medical or other services necessary to make determinations of disability may not exceed the highest rate paid by Federal or public agencies in the State for the same or similar types of service. See §§ 416.1024 and 416.1026 of this part. (b) If a physician's bill, or a request for payment for a physician's services, includes a charge for a laboratory test for which payment may be made under this part, the amount payable with respect to the test shall be determined as follows: (1) If the bill or request for payment indicates that the test was personally performed or supervised by the physician who submitted the bill (or for whose services the request for payment was made) or by another physician with whom that physician shares his or her practice, the payment will be based on the physician's usual and customary charge for the test or the rates of payment which the State uses for purchasing such services, whichever is the lesser amount. (2) If the bill or request for payment indicates that the test was performed by an independent laboratory, the amount of reimbursement will not exceed the billed cost of the independent laboratory or the rate of payment which the State uses for purchasing such services, whichever is the lesser amount. A nominal payment may be made to the physician for collecting, handling and shipping a specimen to the laboratory if the physician bills for such a service. The total reimbursement may not exceed the rate of payment which the State uses for purchasing such services. (c) The State will assure that it can support the rate of payment it uses. The State shall also be responsible for monitoring and overseeing the rate of payment it uses to ensure compliance with paragraphs (a) and (b) of this section. [56 FR 36965, Aug. 1, 1991, as amended at 65 FR 11879, Mar. 7, 2000; 71 FR 16459, Mar. 31, 2006; 76 FR 24810, May 3, 2011] § 416.919m Diagnostic tests or procedures. We will request the results of any diagnostic tests or procedures that have been performed as part of a workup by your treating source or other medical source and will use the results to help us evaluate impairment severity or prognosis. However, we will not order diagnostic tests or procedures that involve significant risk to you, such as myelograms, arteriograms, or cardiac catheterizations for the evaluation of disability under the Supplemental Security Income program. A State agency medical consultant must approve the ordering of any diagnostic test or procedure when there is a chance it may involve significant risk. The responsibility for deciding whether to perform the examination rests with the medical source designated to perform the consultative examination. [56 FR 36966, Aug. 1, 1991, as amended at 65 FR 11879, Mar. 7, 2000; 71 FR 16459, Mar. 31, 2006; 76 FR 24810, May 3, 2011] § 416.919n Informing the medical source of examination scheduling, report content, and signature requirements. The medical sources who perform consultative examinations will have a good understanding of our disability programs and their evidentiary requirements. They will be made fully aware of their responsibilities and obligations regarding confidentiality as described in § 401.105(e). We will fully inform medical sources who perform consultative examinations at the time we first contact them, and at subsequent appropriate intervals, of the following obligations: (a) Scheduling. i.e. (1) Comprehensive general medical examination—at least 30 minutes; (2) Comprehensive musculoskeletal or neurological examination—at least 20 minutes; (3) Comprehensive psychiatric examination—at least 40 minutes; (4) Psychological examination—at least 60 minutes (Additional time may be required depending on types of psychological tests administered); and (5) All others—at least 30 minutes, or in accordance with accepted medical practices. We recognize that actual practice will dictate that some examinations may require longer scheduling intervals depending on the circumstances in a particular situation. We also recognize that these minimum intervals may have to be adjusted to allow for those claimants that do not attend their scheduled examination. The purpose of these minimum scheduling timeframes is to ensure that such examinations are complete and that sufficient time is made available to obtain the information needed to make an accurate determination in your case. State agencies will monitor the scheduling of examinations (through their normal consultative examination oversight activities) to ensure that any overscheduling is avoided, as overscheduling may lead to examinations that are not thorough. (b) Report content. (c) Elements of a complete consultative examination. (1) Your major or chief complaint(s); (2) A detailed description, within the area of specialty of the examination, of the history of your major complaint(s); (3) A description, and disposition, of pertinent “positive” and “negative” detailed findings based on the history, examination and laboratory tests related to the major complaint(s), and any other abnormalities or lack thereof reported or found during examination or laboratory testing; (4) The results of laboratory and other tests (e.g., X-rays) performed according to the requirements stated in the Listing of Impairments (see appendix 1 of subpart P of part 404 of this chapter); (5) The diagnosis and prognosis for your impairment(s); (6) A medical opinion. Although we will ordinarily request a medical opinion as part of the consultative examination process, the absence of a medical opinion in a consultative examination report will not make the report incomplete. See § 416.913(a)(3); and (7) In addition, the medical source will consider, and provide some explanation or comment on, your major complaint(s) and any other abnormalities found during the history and examination or reported from the laboratory tests. The history, examination, evaluation of laboratory test results, and the conclusions will represent the information provided by the medical source who signs the report. (d) When a complete consultative examination is not required. (e) Signature requirements. [56 FR 36966, Aug. 1, 1991, as amended at 62 FR 6421, Feb. 11, 1997; 62 FR 13733, Mar. 21, 1997; 65 FR 11879, Mar. 7, 2000; 65 FR 54778, Sept. 11, 2000; 82 FR 5877, Jan. 18, 2017] § 416.919o When a properly signed consultative examination report has not been received. If a consultative examination report is received unsigned or improperly signed we will take the following action. (a) When we will make determinations and decisions without a properly signed report. (1) Continuous period of disability allowance with an onset date as alleged or earlier than alleged; or (2) Continuance of disability. (b) When we will not make determinations and decisions without a properly signed report. (1) Denial; or (2) Cessation; or (3) Allowance of disability which has ended; or (4) Allowance with an onset date later than the filing date. [56 FR 36967, Aug. 1, 1991, as amended at 65 FR 11880, Mar. 7, 2000] § 416.919p Reviewing reports of consultative examinations. (a) We will review the report of the consultative examination to determine whether the specific information requested has been furnished. We will consider the following factors in reviewing the report: (1) Whether the report provides evidence which serves as an adequate basis for decisionmaking in terms of the impairment it assesses; (2) Whether the report is internally consistent; Whether all the diseases, impairments and complaints described in the history are adequately assessed and reported in the clinical findings; Whether the conclusions correlate the findings from your medical history, clinical examination and laboratory tests and explain all abnormalities; (3) Whether the report is consistent with the other information available to us within the specialty of the examination requested; Whether the report fails to mention an important or relevant complaint within that specialty that is noted in other evidence in the file (e.g., your blindness in one eye, amputations, pain, alcoholism, depression); (4) Whether this is an adequate report of examination as compared to standards set out in the course of a medical education; and (5) Whether the report is properly signed. (b) If the report is inadequate or incomplete, we will contact the medical source who performed the consultative examination, give an explanation of our evidentiary needs, and ask that the medical source furnish the missing information or prepare a revised report. (c) With your permission, or when the examination discloses new diagnostic information or test results that reveal a potentially life-threatening situation, we will refer the consultative examination report to your treating source. When we refer the consultative examination report to your treating source without your permission, we will notify you that we have done so. (d) We will perform ongoing special management studies on the quality of consultative examinations purchased from major medical sources and the appropriateness of the examinations authorized. (e) We will take steps to ensure that consultative examinations are scheduled only with medical sources who have access to the equipment required to provide an adequate assessment and record of the existence and level of severity of your alleged impairments. [56 FR 36967, Aug. 1, 1991, as amended at 65 FR 11880, Mar. 7, 2000] § 416.919q Conflict of interest. All implications of possible conflict of interest between medical or psychological consultants and their medical or psychological practices will be avoided. Such consultants are not only those physicians and psychologists who work for us directly but are also those who do review and adjudication work in the State agencies. Physicians and psychologists who work for us directly as employees or under contract will not work concurrently for a State agency. Physicians and psychologists who do review work for us will not perform consultative examinations for us without our prior approval. In such situations, the physician or psychologist will disassociate himself or herself from further involvement in the case and will not participate in the evaluation, decision, or appeal actions. In addition, neither they, nor any member of their families, will acquire or maintain, either directly or indirectly, any financial interest in a medical partnership, corporation, or similar relationship in which consultative examinations are provided. Sometimes physicians and psychologists who do review work for us will have prior knowledge of a case; for example, when the claimant was a patient. Where this is so, the physician or psychologist will not participate in the review or determination of the case. This does not preclude the physician or psychologist from submitting medical evidence based on treatment or examination of the claimant. [56 FR 36967, Aug. 1, 1991] Authorizing and Monitoring the Referral Process § 416.919s Authorizing and monitoring the consultative examination. (a) Day-to-day responsibility for the consultative examination process rests with the State agencies that make disability determinations for us. (b) The State agency will maintain a good working relationship with the medical community in order to recruit sufficient numbers of physicians and other providers of medical services to ensure ready availability of consultative examination providers. (c) Consistent with Federal and State laws, the State agency administrator will work to achieve appropriate rates of payment for purchased medical services. (d) Each State agency will be responsible for comprehensive oversight management of its consultative examination program, with special emphasis on key providers. (e) A key consultative examination provider is a provider that meets at least one of the following conditions: (1) Any consultative examination provider with an estimated annual billing to the disability programs we administer of at least $150,000; or (2) Any consultative examination provider with a practice directed primarily towards evaluation examinations rather than the treatment of patients; or (3) Any consultative examination provider that does not meet the above criteria, but is one of the top five consultative examination providers in the State by dollar volume, as evidenced by prior year data. (f) State agencies have flexibility in managing their consultative examination programs, but at a minimum will provide: (1) An ongoing active recruitment program for consultative examination providers; (2) A process for orientation, training, and review of new consultative examination providers, with respect to SSA's program requirements involving consultative examination report content and not with respect to medical techniques; (3) Procedures for control of scheduling consultative examinations; (4) Procedures to ensure that close attention is given to specific evaluation issues involved in each case; (5) Procedures to ensure that only required examinations and tests are authorized in accordance with the standards set forth in this subpart; (6) Procedures for providing medical or supervisory approval for the authorization or purchase of consultative examinations and for additional tests or studies requested by consulting medical sources. This includes physician approval for the ordering of any diagnostic test or procedure where the question of significant risk to the claimant/beneficiary might be raised. See § 416.919m. (7) procedures for the ongoing review of consultative examination results to ensure compliance with written guidelines; (8) Procedures to encourage active participation by physicians and psychologists in the consultative examination oversight program; (9) Procedures for handling complaints; (10) Procedures for evaluating claimant reactions to key providers; and (11) A program of systematic, onsite reviews of key providers that will include annual onsite reviews of such providers when claimants are present for examinations. This provision does not contemplate that such reviews will involve participation in the actual examinations but, rather, offer an opportunity to talk with claimants at the provider's site before and after the examination and to review the provider's overall operation. (g) The State agencies will cooperate with us when we conduct monitoring activities in connection with their oversight management of their consultative examination programs. [56 FR 36967, Aug. 1, 1991, as amended at 65 FR 11880, Mar. 7, 2000; 71 FR 16459, Mar. 31, 2006; 75 FR 32846, June 10, 2010; 76 FR 24810, May 3, 2011] Procedures To Monitor the Consultative Examination § 416.919t Consultative examination oversight. (a) We will ensure that referrals for consultative examinations and purchases of consultative examinations are made in accordance with our policies. We will also monitor both the referral processes and the product of the consultative examinations obtained. This monitoring may include reviews by independent medical specialists under direct contract with SSA. (b) Through our regional offices, we will undertake periodic comprehensive reviews of each State agency to evaluate each State's management of the consultative examination process. The review will involve visits to key providers, with State staff participating, including a program physician when the visit will deal with medical techniques or judgment, or factors that go to the core of medical professionalism. (c) We will also perform ongoing special management studies of the quality of consultative examinations purchased from key providers and other sources and the appropriateness of the examinations authorized. [56 FR 36968, Aug. 1, 1991] Evaluation of Disability § 416.920 Evaluation of disability of adults, in general. (a) General Purpose of this section. (2) Applicability of these rules. (3) Evidence considered. (4) The five-step sequential evaluation process. See (i) At the first step, we consider your work activity, if any. If you are doing substantial gainful activity, we will find that you are not disabled. ( See (ii) At the second step, we consider the medical severity of your impairment(s). If you do not have a severe medically determinable physical or mental impairment that meets the duration requirement in § 416.909, or a combination of impairments that is severe and meets the duration requirement, we will find that you are not disabled. ( See (iii) At the third step, we also consider the medical severity of your impairment(s). If you have an impairment(s) that meets or equals one of our listings in appendix 1 to subpart P of part 404 of this chapter and meets the duration requirement, we will find that you are disabled. ( See (iv) At the fourth step, we consider our assessment of your residual functional capacity and your past relevant work. If you can still do your past relevant work, we will find that you are not disabled. See paragraphs (f) and (h) of this section and § 416.960(b). (v) At the fifth and last step, we consider our assessment of your residual functional capacity and your age, education, and work experience to see if you can make an adjustment to other work. If you can make an adjustment to other work, we will find that you are not disabled. If you cannot make an adjustment to other work, we will find that you are disabled. See paragraphs (g) and (h) of this section and § 416.960(c). (5) When you are already receiving disability benefits. (b) If you are working. (c) You must have a severe impairment. (d) When your impairment(s) meets or equals a listed impairment in appendix 1. (e) When your impairment(s) does not meet or equal a listed impairment. (f) Your impairment(s) must prevent you from doing your past relevant work. (g) Your impairment(s) must prevent you from making an adjustment to any other work. See (2) We use different rules if you meet one of the two special medical-vocational profiles described in § 416.962. If you meet one of those profiles, we will find that you cannot make an adjustment to other work, and that you are disabled. (h) Expedited process. [50 FR 8728, Mar. 5, 1985; 50 FR 19164, May 7, 1985, as amended at 56 FR 5554, Feb. 11, 1991; 56 FR 36968, Aug. 1, 1991; 65 FR 80308, Dec. 21, 2000; 68 FR 51164, Aug. 26, 2003; 77 FR 10656, Feb. 23, 2012; 77 FR 43495, July 25, 2012] § 416.920a Evaluation of mental impairments. (a) General. (1) Identify the need for additional evidence to determine impairment severity; (2) Consider and evaluate functional consequences of the mental disorder(s) relevant to your ability to work; and (3) Organize and present our findings in a clear, concise, and consistent manner. (b) Use of the technique. (2) We must then rate the degree of functional limitation resulting from the impairment(s) in accordance with paragraph (c) of this section and record our findings as set out in paragraph (e) of this section. (c) Rating the degree of functional limitation. (2) We will rate the degree of your functional limitation based on the extent to which your impairment(s) interferes with your ability to function independently, appropriately, effectively, and on a sustained basis. Thus, we will consider such factors as the quality and level of your overall functional performance, any episodic limitations, the amount of supervision or assistance you require, and the settings in which you are able to function. See 12.00C through 12.00H of the Listing of Impairments in appendix 1 to subpart P of part 404 of this chapter for more information about the factors we consider when we rate the degree of your functional limitation. (3) We have identified four broad functional areas in which we will rate the degree of your functional limitation: Understand, remember, or apply information; interact with others; concentrate, persist, or maintain pace; and adapt or manage oneself. See 12.00E of the Listing of Impairments in appendix 1 to subpart P of part 404 of this chapter. (4) When we rate your degree of limitation in these areas (understand, remember, or apply information; interact with others; concentrate, persist, or maintain pace; and adapt or manage oneself), we will use the following five-point scale: None, mild, moderate, marked, and extreme. The last point on the scale represents a degree of limitation that is incompatible with the ability to do any gainful activity. (d) Use of the technique to evaluate mental impairments. (1) If we rate the degrees of your limitation as “none” or “mild,” we will generally conclude that your impairment(s) is not severe, unless the evidence otherwise indicates that there is more than a minimal limitation in your ability to do basic work activities (see § 416.922). (2) If your mental impairment(s) is severe, we must then determine if it meets or is equivalent in severity to a listed mental disorder. We do this by comparing the medical findings about your impairment(s) and the rating of the degree of functional limitation to the criteria of the appropriate listed mental disorder. We will record the presence or absence of the criteria and the rating of the degree of functional limitation on a standard document at the initial and reconsideration levels of the administrative review process, or in the decision at the administrative law judge hearing and Appeals Council levels (in cases in which the Appeals Council issues a decision). See paragraph (e) of this section. (3) If we find that you have a severe mental impairment(s) that neither meets nor is equivalent in severity to any listing, we will then assess your residual functional capacity. (e) Documenting application of the technique. (1) When a State agency medical or psychological consultant makes the determination together with a State agency disability examiner at the initial or reconsideration level of the administrative review process as provided in § 416.1015(c)(1) of this part, the State agency medical or psychological consultant has overall responsibility for assessing medical severity. A State agency disability examiner may assist in preparing the standard document. However, our medical or psychological consultant must review and sign the document to attest that it is complete and that he or she is responsible for its content, including the findings of fact and any discussion of supporting evidence. (2) When a State agency disability examiner makes the determination alone as provided in § 416.1015(c)(3), the State agency disability examiner has overall responsibility for assessing medical severity and for completing and signing the standard document. (3) When a disability hearing officer makes a reconsideration determination as provided in § 416.1015(c)(4), the determination must document application of the technique, incorporating the disability hearing officer's pertinent findings and conclusions based on this technique. (4) At the administrative law judge hearing and Appeals Council levels, the written decision must incorporate the pertinent findings and conclusions based on the technique. The decision must show the significant history, including examination and laboratory findings, and the functional limitations that were considered in reaching a conclusion about the severity of the mental impairment(s). The decision must include a specific finding as to the degree of limitation in each of the functional areas described in paragraph (c) of this section. (5) If the administrative law judge requires the services of a medical expert to assist in applying the technique but such services are unavailable, the administrative law judge may return the case to the State agency or the appropriate Federal component, using the rules in § 416.1441 of this part, for completion of the standard document. If, after reviewing the case file and completing the standard document, the State agency or Federal component concludes that a determination favorable to you is warranted, it will process the case using the rules found in § 416.1441(d) or (e) of this part. If, after reviewing the case file and completing the standard document, the State agency or Federal component concludes that a determination favorable to you is not warranted, it will send the completed standard document and the case to the administrative law judge for further proceedings and a decision. [65 FR 50782, Aug. 21, 2000; 65 FR 60584, Oct. 12, 2000, as amended at 71 FR 16459, Mar. 31, 2006; 75 FR 62682, Oct. 13, 2010; 76 FR 24810, May 3, 2011; 81 FR 66178, Sept. 26, 2016; 82 FR 5877, Jan. 18, 2017] § 416.920b How we consider evidence. After we review all of the evidence relevant to your claim, we make findings about what the evidence shows. (a) Complete and consistent evidence. (b) Incomplete or inconsistent evidence. (1) If any of the evidence in your case record, including any medical opinion(s) and prior administrative medical findings, is inconsistent, we will consider the relevant evidence and see if we can determine whether you are disabled based on the evidence we have. (2) If the evidence is consistent but we have insufficient evidence to determine whether you are disabled, or if after considering the evidence we determine we cannot reach a conclusion about whether you are disabled, we will determine the best way to resolve the inconsistency or insufficiency. The action(s) we take will depend on the nature of the inconsistency or insufficiency. We will try to resolve the inconsistency or insufficiency by taking any one or more of the actions listed in paragraphs (b)(2)(i) through (b)(2)(iv) of this section. We might not take all of the actions listed below. We will consider any additional evidence we receive together with the evidence we already have. (i) We may recontact your medical source. We may choose not to seek additional evidence or clarification from a medical source if we know from experience that the source either cannot or will not provide the necessary evidence. If we obtain medical evidence over the telephone, we will send the telephone report to the source for review, signature, and return; (ii) We may request additional existing evidence; (iii) We may ask you to undergo a consultative examination at our expense (see §§ 416.917 through 416.919t); or (iv) We may ask you or others for more information. (3) When there are inconsistencies in the evidence that we cannot resolve or when, despite efforts to obtain additional evidence, the evidence is insufficient to determine whether you are disabled, we will make a determination or decision based on the evidence we have. (c) Evidence that is inherently neither valuable nor persuasive. (1) Decisions by other governmental agencies and nongovernmental entities. (2) Disability examiner findings. (3) Statements on issues reserved to the Commissioner. (i) Statements that you are or are not disabled, blind, able to work, or able to perform regular or continuing work; (ii) Statements about whether or not you have a severe impairment(s); (iii) Statements about whether or not your impairment(s) meets the duration requirement (see § 416.909); (iv) Statements about whether or not your impairment(s) meets or medically equals any listing in the Listing of Impairments in Part 404, Subpart P, Appendix 1; (v) If you are a child, statements about whether or not your impairment(s) functionally equals the listings in Part 404 Subpart P Appendix 1 (see § 416.926a); (vi) If you are an adult, statements about what your residual functional capacity is using our programmatic terms about the functional exertional levels in Part 404, Subpart P, Appendix 2, Rule 200.00 instead of descriptions about your functional abilities and limitations (see § 416.945); (vii) If you are an adult, statements about whether or not your residual functional capacity prevents you from doing past relevant work (see § 416.960); (viii) If you are an adult, statements that you do or do not meet the requirements of a medical-vocational rule in Part 404, Subpart P, Appendix 2; and (ix) Statements about whether or not your disability continues or ends when we conduct a continuing disability review (see § 416.994). [82 FR 5877, Jan. 18, 2017] § 416.920c How we consider and articulate medical opinions and prior administrative medical findings for claims filed on or after March 27, 2017. For claims filed (see § 416.325) on or after March 27, 2017, the rules in this section apply. For claims filed before March 27, 2017, the rules in § 416.927 apply. (a) How we consider medical opinions and prior administrative medical findings. (b) How we articulate our consideration of medical opinions and prior administrative medical findings. (1) Source-level articulation. (2) Most important factors. (3) Equally persuasive medical opinions or prior administrative medical findings about the same issue. (c) Factors. (1) Supportability. (2) Consistency. (3) Relationship with the claimant. (i) Length of the treatment relationship. (ii) Frequency of examinations. (iii) Purpose of the treatment relationship. (iv) Extent of the treatment relationship. (v) Examining relationship. (4) Specialization. (5) Other factors. (d) Evidence from nonmedical sources. [82 FR 5878, Jan. 18, 2017] § 416.921 Establishing that you have a medically determinable impairment(s). If you are not doing substantial gainful activity, we will then determine whether you have a medically determinable physical or mental impairment(s) (see § 416.920(a)(4)(ii)). Your impairment(s) must result from anatomical, physiological, or psychological abnormalities that can be shown by medically acceptable clinical and laboratory diagnostic techniques. Therefore, a physical or mental impairment must be established by objective medical evidence from an acceptable medical source. We will not use your statement of symptoms, a diagnosis, or a medical opinion to establish the existence of an impairment(s). After we establish that you have a medically determinable impairment(s), then we determine whether your impairment(s) is severe. [82 FR 5879, Jan. 18, 2017] § 416.922 What we mean by an impairment(s) that is not severe in an adult. (a) Non-severe impairment(s). (b) Basic work activities. (1) Physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling; (2) Capacities for seeing, hearing, and speaking; (3) Understanding, carrying out, and remembering simple instructions; (4) Use of judgment; (5) Responding appropriately to supervision, co-workers and usual work situations; and (6) Dealing with changes in a routine work setting. [82 FR 5879, Jan. 18, 2017] § 416.923 Multiple impairments. (a) Unrelated severe impairments. (b) Concurrent impairments. (c) Combined effect. [82 FR 5879, Jan. 18, 2017] § 416.924 How we determine disability for children. (a) Steps in evaluating disability. (b) If you are working. (c) You must have a medically determinable impairment(s) that is severe. (d) Your impairment(s) must meet, medically equal, or functionally equal the listings. (1) Therefore, if you have an impairment(s) that meets or medically equals the requirements of a listing or that functionally equals the listings, and that meets the duration requirement, we will find you disabled. (2) If your impairment(s) does not meet the duration requirement, or does not meet, medically equal, or functionally equal the listings, we will find that you are not disabled. (e) Other rules. (f) If you attain age 18 after you file your disability application but before we make a determination or decision. (g) How we will explain our findings. [58 FR 47577, Sept. 9, 1993, as amended at 62 FR 6421, Feb. 11, 1997; 65 FR 54778, Sept. 11, 2000; 71 FR 16460, Mar. 31, 2006; 76 FR 24811, May 3, 2011; 76 FR 41687, July 15, 2011] § 416.924a Considerations in determining disability for children. (a) Basic considerations. (1) Medical evidence General. See (ii) Test scores. See (iii) Medical sources. (2) Statements from nonmedical sources. (i) Your parents and other caregivers. (ii) Early intervention and preschool programs. (iii) School. (b) Factors we consider when we evaluate the effects of your impairment(s) on your functioning General. (2) Factors we consider when we evaluate your functioning. See (3) How your functioning compares to the functioning of children your age who do not have impairments General. (ii) How we will consider reports of your functioning. (4) Combined effects of multiple impairments. (5) How well you can initiate, sustain, and complete your activities, including the amount of help or adaptations you need, and the effects of structured or supportive settings Initiating, sustaining, and completing activities. (A) The range of activities you do; (B) Your ability to do them independently, including any prompting you may need to begin, carry through, and complete your activities; (C) The pace at which you do your activities; (D) How much effort you need to make to do your activities; and (E) How long you are able to sustain your activities. (ii) Extra help. (iii) Adaptations. (iv) Structured or supportive settings. (B) A structured or supportive setting may be your own home in which family members or other people (e.g., visiting nurses or home health workers) make adjustments to accommodate your impairment(s). A structured or supportive setting may also be your classroom at school, whether it is a regular classroom in which you are accommodated or a special classroom. It may also be a residential facility or school where you live for a period of time. (C) A structured or supportive setting may minimize signs and symptoms of your impairment(s) and help to improve your functioning while you are in it, but your signs, symptoms, and functional limitations may worsen outside this type of setting. Therefore, we will consider your need for a structured setting and the degree of limitation in functioning you have or would have outside the structured setting. Even if you are able to function adequately in the structured or supportive setting, we must consider how you function in other settings and whether you would continue to function at an adequate level without the structured or supportive setting. (D) If you have a chronic impairment(s), you may have your activities structured in such a way as to minimize stress and reduce the symptoms or signs of your impairment(s). You may continue to have persistent pain, fatigue, decreased energy, or other symptoms or signs, although at a lesser level of severity. We will consider whether you are more limited in your functioning than your symptoms and signs would indicate. (E) Therefore, if your symptoms or signs are controlled or reduced in a structured setting, we will consider how well you are functioning in the setting and the nature of the setting in which you are functioning (e.g., home or a special class); the amount of help you need from your parents, teachers, or others to function as well as you do; adjustments you make to structure your environment; and how you would function without the structured or supportive setting. (6) Unusual settings. (7) Early intervention and school programs General. (ii) School evidence. (iii) Early intervention and special education programs. (iv) Special education or accommodations. (v) Attendance and participation. (8) The impact of chronic illness and limitations that interfere with your activities over time. (9) The effects of treatment (including medications and other treatment). (i) Effects of medications. (A) Any of your functional limitations that may nevertheless persist, even if there is improvement from the medications; (B) Whether your medications create any side effects that cause or contribute to your functional limitations; (C) The frequency of your need for medication; (D) Changes in your medication or the way your medication is prescribed; and (E) Any evidence over time of how medication helps or does not help you to function compared to other children your age who do not have impairments. (ii) Other treatment. (iii) Treatment and intervention, in general. [65 FR 54779, Sept. 11, 2000, as amended at 82 FR 5879, Jan. 18, 2017] § 416.924b Age as a factor of evaluation in the sequential evaluation process for children. (a) General. see see (1) When we determine whether you have an impairment or combination of impairments that is severe, we will compare your functioning to that of children your age who do not have impairments. (2) When we determine whether your impairment(s) meets a listing, we may or may not need to consider your age. The listings describe impairments that we consider of such significance that they are presumed to cause marked and severe functional limitations. (i) If the listing appropriate for evaluating your impairment is divided into specific age categories, we will evaluate your impairment according to your age when we decide whether your impairment meets that listing. (ii) If the listing appropriate for evaluating your impairment does not include specific age categories, we will decide whether your impairment meets the listing without giving consideration to your age. (3) When we compare an unlisted impairment or a combination of impairments with the listings to determine whether it medically equals the severity of a listing, the way we consider your age will depend on the listing we use for comparison. We will use the same principles for considering your age as in paragraphs (a)(2)(i) and (a)(2)(ii) of this section; that is, we will consider your age only if we are comparing your impairment(s) to a listing that includes specific age categories. (4) We will also consider your age and whether it affects your ability to be tested. If your impairment(s) is not amenable to formal testing because of your age, we will consider all information in your case record that helps us decide whether you are disabled. We will consider other generally acceptable methods consistent with the prevailing state of medical knowledge and clinical practice that will help us evaluate the existence and severity of your impairment(s). (b) Correcting chronological age of premature infants. (1) We compute your CCA by subtracting the number of weeks of prematurity (the difference between 40 weeks of full-term gestation and the number of actual weeks of gestation) from your chronological age. For example, if your chronological age is 20 weeks but you were born at 32 weeks gestation (8 weeks premature), then your CCA is 12 weeks. (2) We evaluate developmental delay in a premature child until the child's prematurity is no longer a relevant factor, generally no later than about chronological age 2. (i) If you have not attained age 1 and were born prematurely, we will assess your development using your CCA. (ii) If you are over age 1 and have a developmental delay, and prematurity is still a relevant factor, we will decide whether to correct your chronological age. We will base our decision on our judgment and all the facts in your case. If we decide to correct your chronological age, we may correct it by subtracting the full number of weeks of prematurity or a lesser number of weeks. If your developmental delay is the result of your medically determinable impairment(s) and is not attributable to your prematurity, we will decide not to correct your chronological age. (3) Notwithstanding the provisions in paragraph (b)(1) of this section, we will not compute a corrected chronological age if the medical evidence shows that your medical source has already considered your prematurity in his or her assessment of your development. We will not compute a CCA when we find you disabled under listing 100.04 of the Listing of Impairments. [65 FR 54778, Sept. 11, 2000, as amended at 72 FR 59431, Oct. 19, 2007; 80 FR 19529, Apr. 13, 2015; 82 FR 5880, Jan. 18, 2017] Medical Considerations § 416.925 Listing of Impairments in appendix 1 of subpart P of part 404 of this chapter. (a) What is the purpose of the Listing of Impairments? (b) How is appendix 1 organized? (1) Part A (2)(i) Part B (ii) Although the severity criteria in part B of the listings are expressed in different ways for different impairments, “listing-level severity” generally means the level of severity described in § 416.926a(a); that is, “marked” limitations in two domains of functioning or an “extreme” limitation in one domain. (See § 416.926a(e) for the definitions of the terms marked extreme (c) How do we use the listings? (2) The introduction to each body system contains information relevant to the use of the listings in that body system; for example, examples of common impairments in the body system and definitions used in the listings for that body system. We may also include specific criteria for establishing a diagnosis, confirming the existence of an impairment, or establishing that your impairment(s) satisfies the criteria of a particular listing in the body system. Even if we do not include specific criteria for establishing a diagnosis or confirming the existence of your impairment, you must still show that you have a severe medically determinable impairment(s), as defined in §§ 416.921 and 416.924(c). (3) In most cases, the specific listings follow the introduction in each body system, after the heading, Category of Impairments. meets (4) Most of the listed impairments are permanent or expected to result in death. For some listings, we state a specific period of time for which your impairment(s) will meet the listing. For all others, the evidence must show that your impairment(s) has lasted or can be expected to last for a continuous period of at least 12 months. (5) If your impairment(s) does not meet the criteria of a listing, it can medically equal (d) Can your impairment(s) meet a listing based only on a diagnosis? (e) How do we consider your symptoms when we determine whether your impairment(s) meets a listing? [71 FR 10430, Mar. 1, 2006, as amended at 76 FR 19698, Apr. 8, 2011; 82 FR 5880, Jan. 18, 2017] § 416.926 Medical equivalence for adults and children. (a) What is medical equivalence? (b) How do we determine medical equivalence? (1)(i) If you have an impairment that is described in the Listing of Impairments in appendix 1 of subpart P of part 404 of this chapter, but— (A) You do not exhibit one or more of the findings specified in the particular listing, or (B) You exhibit all of the findings, but one or more of the findings is not as severe as specified in the particular listing, (ii) We will find that your impairment is medically equivalent to that listing if you have other findings related to your impairment that are at least of equal medical significance to the required criteria. (2) If you have an impairment(s) that is not described in the Listing of Impairments in appendix 1 of subpart P of part 404 of this chapter, we will compare your findings with those for closely analogous listed impairments. If the findings related to your impairment(s) are at least of equal medical significance to those of a listed impairment, we will find that your impairment(s) is medically equivalent to the analogous listing. (3) If you have a combination of impairments, no one of which meets a listing described in the Listing of Impairments in appendix 1 of subpart P of part 404 of this chapter (see § 416.925(c)(3)), we will compare your findings with those for closely analogous listed impairments. If the findings related to your impairments are at least of equal medical significance to those of a listed impairment, we will find that your combination of impairments is medically equivalent to that listing. (4) Section 416.929(d)(3) explains how we consider your symptoms, such as pain, when we make findings about medical equivalence. (c) What evidence do we consider when we determine if your impairment(s) medically equals a listing? (d) Who is a designated medical or psychological consultant? (e) Who is responsible for determining medical equivalence? (1) In cases where the State agency or other designee of the Commissioner makes the initial or reconsideration disability determination, a State agency medical or psychological consultant or other designee of the Commissioner (see § 416.1016 of this part) has the overall responsibility for determining medical equivalence. (2) For cases in the disability hearing process or otherwise decided by a disability hearing officer, the responsibility for determining medical equivalence rests with either the disability hearing officer or, if the disability hearing officer's reconsideration determination is changed under § 416.1418 of this part, with the Associate Commissioner for Disability Policy or his or her delegate. (3) For cases at the administrative law judge or Appeals Council level, the responsibility for deciding medical equivalence rests with the administrative law judge or Appeals Council. [45 FR 55621, Aug. 20, 1980, as amended at 52 FR 33928, Sept. 9, 1987; 56 FR 5561, Feb. 11, 1991; 62 FR 6424, Feb. 11, 1997; 62 FR 13538, Mar. 21, 1997; 65 FR 34959, June 1, 2000; 71 FR 10431, Mar. 1, 2006; 71 FR 16460, Mar. 31, 2006; 76 FR 24811, May 3, 2011; 82 FR 5880, Jan. 18, 2017; 82 FR 15132, Mar. 27, 2017] § 416.926a Functional equivalence for children. (a) General. i.e., i.e., See (1) How well you can initiate and sustain activities, how much extra help you need, and the effects of structured or supportive settings ( see (2) How you function in school ( see (3) The effects of your medications or other treatment ( see (b) How we will consider your functioning. (1) We will consider how you function in your activities in terms of six domains. These domains are broad areas of functioning intended to capture all of what a child can or cannot do. In paragraphs (g) through (l), we describe each domain in general terms. For most of the domains, we also provide examples of activities that illustrate the typical functioning of children in different age groups. For all of the domains, we also provide examples of limitations within the domains. However, we recognize that there is a range of development and functioning, and that not all children within an age category are expected to be able to do all of the activities in the examples of typical functioning. We also recognize that limitations of any of the activities in the examples do not necessarily mean that a child has a “marked” or “extreme” limitation, as defined in paragraph (e) of this section. The domains we use are: (i) Acquiring and using information; (ii) Attending and completing tasks; (iii) Interacting and relating with others; (iv) Moving about and manipulating objects; (v) Caring for yourself; and, (vi) Health and physical well-being. (2) When we evaluate your ability to function in each domain, we will ask for and consider information that will help us answer the following questions about whether your impairment(s) affects your functioning and whether your activities are typical of other children your age who do not have impairments. (i) What activities are you able to perform? (ii) What activities are you not able to perform? (iii) Which of your activities are limited or restricted compared to other children your age who do not have impairments? (iv) Where do you have difficulty with your activities-at home, in childcare, at school, or in the community? (v) Do you have difficulty independently initiating, sustaining, or completing activities? (vi) What kind of help do you need to do your activities, how much help do you need, and how often do you need it? (3) We will try to get information from sources who can tell us about the effects of your impairment(s) and how you function. We will ask for information from your medical sources who can give us medical evidence, including medical opinions, about your limitations and restrictions. We will also ask for information from your parents and teachers, and may ask for information from others who see you often and can describe your functioning at home, in childcare, at school, and in your community. We may also ask you to go to a consultative examination(s) at our expense. ( See (c) The interactive and cumulative effects of an impairment or multiple impairments. (d) How we will decide that your impairment(s) functionally equals the listings. See (e) How we define “marked” and “extreme” limitations General. (ii) The medical evidence may include formal testing that provides information about your development or functioning in terms of percentiles, percentages of delay, or age or grade equivalents. Standard scores (e.g., percentiles) can be converted to standard deviations. When you have such scores, we will consider them together with the information we have about your functioning to determine whether you have a “marked” or “extreme” limitation in a domain. (2) Marked limitation. (ii) If you have not attained age 3, we will generally find that you have a “marked” limitation if you are functioning at a level that is more than one-half but not more than two-thirds of your chronological age when there are no standard scores from standardized tests in your case record. (iii) If you are a child of any age (birth to the attainment of age 18), we will find that you have a “marked” limitation when you have a valid score that is two standard deviations or more below the mean, but less than three standard deviations, on a comprehensive standardized test designed to measure ability or functioning in that domain, and your day-to-day functioning in domain-related activities is consistent with that score. ( See (iv) For the sixth domain of functioning, “Health and physical well-being,” we may also consider you to have a “marked” limitation if you are frequently ill because of your impairment(s) or have frequent exacerbations of your impairment(s) that result in significant, documented symptoms or signs. For purposes of this domain, “frequent means that you have episodes of illness or exacerbations that occur on an average of 3 times a year, or once every 4 months, each lasting 2 weeks or more. We may also find that you have a “marked” limitation if you have episodes that occur more often than 3 times in a year or once every 4 months but do not last for 2 weeks, or occur less often than an average of 3 times a year or once every 4 months but last longer than 2 weeks, if the overall effect (based on the length of the episode(s) or its frequency) is equivalent in severity. (3) Extreme limitation. (ii) If you have not attained age 3, we will generally find that you have an “extreme” limitation if you are functioning at a level that is one-half of your chronological age or less when there are no standard scores from standardized tests in your case record. (iii) If you are a child of any age (birth to the attainment of age 18), we will find that you have an “extreme” limitation when you have a valid score that is three standard deviations or more below the mean on a comprehensive standardized test designed to measure ability or functioning in that domain, and your day-to-day functioning in domain-related activities is consistent with that score. ( See (iv) For the sixth domain of functioning, “Health and physical well-being,” we may also consider you to have an “extreme” limitation if you are frequently ill because of your impairment(s) or have frequent exacerbations of your impairment(s) that result in significant, documented symptoms or signs substantially in excess of the requirements for showing a “marked” limitation in paragraph (e)(2)(iv) of this section. However, if you have episodes of illness or exacerbations of your impairment(s) that we would rate as “extreme” under this definition, your impairment(s) should meet or medically equal the requirements of a listing in most cases. See (4) How we will consider your test scores. (ii) We will consider your test scores together with the other information we have about your functioning, including reports of classroom performance and the observations of school personnel and others. (A) We may find that you have a “marked” or “extreme” limitation when you have a test score that is slightly higher than the level provided in paragraph (e)(2) or (e)(3) of this section, if other information in your case record shows that your functioning in day-to-day activities is seriously or very seriously limited because of your impairment(s). For example, you may have IQ scores above the level in paragraph (e)(2), but other evidence shows that your impairment(s) causes you to function in school, home, and the community far below your expected level of functioning based on this score. (B) On the other hand, we may find that you do not have a “marked” or “extreme” limitation, even if your test scores are at the level provided in paragraph (e)(2) or (e)(3) of this section, if other information in your case record shows that your functioning in day-to-day activities is not seriously or very seriously limited by your impairment(s). For example, you may have a valid IQ score below the level in paragraph (e)(2), but other evidence shows that you have learned to drive a car, shop independently, and read books near your expected grade level. (iii) If there is a material inconsistency between your test scores and other information in your case record, we will try to resolve it. The interpretation of the test is primarily the responsibility of the psychologist or other professional who administered the test. But it is also our responsibility to ensure that the evidence in your case is complete and consistent or that any material inconsistencies have been resolved. Therefore, we will use the following guidelines when we resolve concerns about your test scores: (A) We may be able to resolve the inconsistency with the information we have. We may need to obtain additional information; e.g., by recontact with your medical source(s), by purchase of a consultative examination to provide further medical information, by recontact with a medical source who provided a consultative examination, or by questioning individuals familiar with your day-to-day functioning. (B) Generally, we will not rely on a test score as a measurement of your functioning within a domain when the information we have about your functioning is the kind of information typically used by medical professionals to determine that the test results are not the best measure of your day-to-day functioning. When we do not rely on test scores, we will explain our reasons for doing so in your case record or in our decision. (f) How we will use the domains to help us evaluate your functioning. (2) The general descriptions of each domain in paragraphs (g)-(l) help us decide whether you have limitations in any given domain and whether these limitations are “marked” or “extreme.” (3) The domain descriptions also include examples of some activities typical of children in each age group and some functional limitations that we may consider. These examples also help us decide whether you have limitations in a domain because of your impairment(s). The examples are not all-inclusive, and we will not require our adjudicators to develop evidence about each specific example. When you have limitations in a given activity or activities in the examples, we may or may not decide that you have a “marked” or “extreme” limitation in the domain. We will consider the activities in which you are limited because of your impairment(s) and the extent of your limitations under the rules in paragraph (e) of this section. We will also consider all of the relevant provisions of §§ 416.924a, 416.924b, and 416.929. (g) Acquiring and using information. (1) General. (ii) Thinking is the application or use of information you have learned. It involves being able to perceive relationships, reason, and make logical choices. People think in different ways. When you think in pictures, you may solve a problem by watching and imitating what another person does. When you think in words, you may solve a problem by using language to talk your way through it. You must also be able to use language to think about the world and to understand others and express yourself; e.g., to follow directions, ask for information, or explain something. (2) Age group descriptors Newborns and young infants (birth to attainment of age 1). (ii) Older infants and toddlers (age 1 to attainment of age 3). (iii) Preschool children (age 3 to attainment of age 6). (iv) School-age children (age 6 to attainment of age 12). (v) Adolescents (age 12 to attainment of age 18). (3) Examples of limited functioning in acquiring and using information. (i) You do not demonstrate understanding of words about space, size, or time; e.g., in/under, big/little, morning/night. (ii) You cannot rhyme words or the sounds in words. (iii) You have difficulty recalling important things you learned in school yesterday. (iv) You have difficulty solving mathematics questions or computing arithmetic answers. (v) You talk only in short, simple sentences and have difficulty explaining what you mean. (h) Attending and completing tasks. (1) General. (ii) Adequate attention is needed to maintain physical and mental effort and concentration on an activity or task. Adequate attention permits you to think and reflect before starting or deciding to stop an activity. In other words, you are able to look ahead and predict the possible outcomes of your actions before you act. Focusing your attention allows you to attempt tasks at an appropriate pace. It also helps you determine the time needed to finish a task within an appropriate timeframe. (2) Age group descriptors Newborns and young infants (birth to attainment of age 1). (ii) Older infants and toddlers (age 1 to attainment of age 3). (iii) Preschool children (age 3 to attainment of age 6). (iv) School-age children (age 6 to attainment of age 12). (v) Adolescents (age 12 to attainment of age 18). (3) Examples of limited functioning in attending and completing tasks. (i) You are easily startled, distracted, or overreactive to sounds, sights, movements, or touch. (ii) You are slow to focus on, or fail to complete activities of interest to you, e.g., games or art projects. (iii) You repeatedly become sidetracked from your activities or you frequently interrupt others. (iv) You are easily frustrated and give up on tasks, including ones you are capable of completing. (v) You require extra supervision to keep you engaged in an activity. (i) Interacting and relating with others. (1) General. (ii) Relating to other people means forming intimate relationships with family members and with friends who are your age, and sustaining them over time. You may relate to individuals, such as your siblings, parents or best friend, or to groups, such as other children in childcare, your friends in school, teammates in sports activities, or people in your neighborhood. (iii) Interacting and relating require you to respond appropriately to a variety of emotional and behavioral cues. You must be able to speak intelligibly and fluently so that others can understand you; participate in verbal turntaking and nonverbal exchanges; consider others' feelings and points of view; follow social rules for interaction and conversation; and respond to others appropriately and meaningfully. (iv) Your activities at home or school or in your community may involve playing, learning, and working cooperatively with other children, one-at-a-time or in groups; joining voluntarily in activities with the other children in your school or community; and responding to persons in authority (e.g., your parent, teacher, bus driver, coach, or employer). (2) Age group descriptors Newborns and young infants (birth to attainment of age 1). (ii) Older infants and toddlers (age 1 to attainment of age 3). (iii) Preschool children (age 3 to attainment of age 6). (iv) School-age children (age 6 to attainment of age 12). (v) Adolescents (age 12 to attainment of age 18). (3) Examples of limited functioning in interacting and relating with others. (i) You do not reach out to be picked up and held by your caregiver. (ii) You have no close friends, or your friends are all older or younger than you. (iii) You avoid or withdraw from people you know, or you are overly anxious or fearful of meeting new people or trying new experiences. (iv) You have difficulty playing games or sports with rules. (v) You have difficulty communicating with others; e.g., in using verbal and nonverbal skills to express yourself, carrying on a conversation, or in asking others for assistance. (vi) You have difficulty speaking intelligibly or with adequate fluency. (j) Moving about and manipulating objects. (1) General. (ii) Moving and manipulating things involves several different kinds of actions: Engaging your upper and lower body to push, pull, lift, or carry objects from one place to another; controlling your shoulders, arms, and hands to hold or transfer objects; coordinating your eyes and hands to manipulate small objects or parts of objects. (iii) These actions require varying degrees of strength, coordination, dexterity, pace, and physical ability to persist at the task. They also require a sense of where your body is and how it moves in space; the integration of sensory input with motor output; and the capacity to plan, remember, and execute controlled motor movements. (2) Age group descriptors Newborns and infants (birth to attainment of age 1). (ii) Older infants and toddlers (age 1 to attainment of age 3). (iii) Preschool children (age 3 to attainment of age 6). (iv) School-age children (age 6 to attainment of age 12). (v) Adolescents (age 12 to attainment of age 18). (3) Examples of limited functioning in moving about and manipulating objects. (i) You experience muscle weakness, joint stiffness, or sensory loss (e.g., spasticity, hypotonia, neuropathy, or paresthesia) that interferes with your motor activities (e.g., you unintentionally drop things). (ii) You have trouble climbing up and down stairs, or have jerky or disorganized locomotion or difficulty with your balance. (iii) You have difficulty coordinating gross motor movements (e.g., bending, kneeling, crawling, running, jumping rope, or riding a bike). (iv) You have difficulty with sequencing hand or finger movements. (v) You have difficulty with fine motor movement (e.g., gripping or grasping objects). (vi) You have poor eye-hand coordination when using a pencil or scissors. (k) Caring for yourself. (1) General. (ii) Caring for yourself effectively means becoming increasingly independent in making and following your own decisions. This entails relying on your own abilities and skills, and displaying consistent judgment about the consequences of caring for yourself. As you mature, using and testing your own judgment helps you develop confidence in your independence and competence. Caring for yourself includes using your independence and competence to meet your physical needs, such as feeding, dressing, toileting, and bathing, appropriately for your age. (iii) Caring for yourself effectively requires you to have a basic understanding of your body, including its normal functioning, and of your physical and emotional needs. To meet these needs successfully, you must employ effective coping strategies, appropriate to your age, to identify and regulate your feelings, thoughts, urges, and intentions. Such strategies are based on taking responsibility for getting your needs met in an appropriate and satisfactory manner. (iv) Caring for yourself means recognizing when you are ill, following recommended treatment, taking medication as prescribed, following safety rules, responding to your circumstances in safe and appropriate ways, making decisions that do not endanger yourself, and knowing when to ask for help from others. (2) Age group descriptors Newborns and infants (birth to attainment of age 1. (ii) Older infants and toddlers (age 1 to attainment of age 3). (iii) Preschool children (age 3 to attainment of age 6). (iv) School-age children (age 6 to attainment of age 12). (v) Adolescents (age 12 to attainment of age 18). (3) Examples of limited functioning in caring for yourself. (i) You continue to place non-nutritive or inedible objects in your mouth. (ii) You often use self-soothing activities showing developmental regression (e.g., thumbsucking, re-chewing food), or you have restrictive or stereotyped mannerisms (e.g., body rocking, headbanging). (iii) You do not dress or bathe yourself appropriately for your age because you have an impairment(s) that affects this domain. (iv) You engage in self-injurious behavior (e.g., suicidal thoughts or actions, self-inflicted injury, or refusal to take your medication), or you ignore safety rules. (v) You do not spontaneously pursue enjoyable activities or interests. (vi) You have disturbance in eating or sleeping patterns. (l) Health and physical well-being. (1) A physical or mental disorder may have physical effects that vary in kind and intensity, and may make it difficult for you to perform your activities independently or effectively. You may experience problems such as generalized weakness, dizziness, shortness of breath, reduced stamina, fatigue, psychomotor retardation, allergic reactions, recurrent infection, poor growth, bladder or bowel incontinence, or local or generalized pain. (2) In addition, the medications you take (e.g., for asthma or depression) or the treatments you receive (e.g., chemotherapy or multiple surgeries) may have physical effects that also limit your performance of activities. (3) Your illness may be chronic with stable symptoms, or episodic with periods of worsening and improvement. We will consider how you function during periods of worsening and how often and for how long these periods occur. You may be medically fragile and need intensive medical care to maintain your level of health and physical well-being. In any case, as a result of the illness itself, the medications or treatment you receive, or both, you may experience physical effects that interfere with your functioning in any or all of your activities. (4) Examples of limitations in health and physical well-being. (i) You have generalized symptoms, such as weakness, dizziness, agitation (e.g., excitability), lethargy (e.g., fatigue or loss of energy or stamina), or psychomotor retardation because of your impairment(s). (ii) You have somatic complaints related to your impairments (e.g., seizure or convulsive activity, headaches, incontinence, recurrent infections, allergies, changes in weight or eating habits, stomach discomfort, nausea, headaches, or insomnia). (iii) You have limitations in your physical functioning because of your treatment (e.g., chemotherapy, multiple surgeries, chelation, pulmonary cleansing, or nebulizer treatments). (iv) You have exacerbations from one impairment or a combination of impairments that interfere with your physical functioning. (v) You are medically fragile and need intensive medical care to maintain your level of health and physical well-being. (m) Examples of impairments that functionally equal the listings. see (1) Any physical impairment(s) or combination of physical and mental impairments causing complete inability to function independently outside the area of one's home within age-appropriate norms. (2) Requirement for 24-hour-a-day supervision for medical (including psychological) reasons. (3) Major congenital organ dysfunction which could be expected to result in death within the first year of life without surgical correction, and the impairment is expected to be disabling (because of residual impairment following surgery, or the recovery time required, or both) until attainment of 1 year of age. (n) Responsibility for determining functional equivalence. see [62 FR 6424, Feb. 11, 1997; 62 FR 13538, 13733, Mar. 21, 1997, as amended at 65 FR 54782, Sept. 11, 2000; 65 FR 80308, Dec. 21, 2000; 66 FR 58045, Nov. 19, 2001; 71 FR 16460, Mar. 31, 2006; 72 FR 59431, Oct. 19, 2007; 76 FR 24811, May 3, 2011; 80 FR 19530, Apr. 13, 2015; 81 FR 37153, June 9, 2016; 82 FR 5880, Jan. 18, 2017; 85 FR 78189, Dec. 3, 2020] § 416.927 Evaluating opinion evidence for claims filed before March 27, 2017. For claims filed (see § 416.325) before March 27, 2017, the rules in this section apply. For claims filed on or after March 27, 2017, the rules in § 416.920c apply. (a) Definitions. (1) Medical opinions. (2) Treating source. (b) How we consider medical opinions. (c) How we weigh medical opinions. (1) Examining relationship. (2) Treatment relationship. (i) Length of the treatment relationship and the frequency of examination. (ii) Nature and extent of the treatment relationship. (3) Supportability. (4) Consistency. (5) Specialization. (6) Other factors. (d) Medical source opinions on issues reserved to the Commissioner. i.e., (1) Opinions that you are disabled. (2) Other opinions on issues reserved to the Commissioner. (3) We will not give any special significance to the source of an opinion on issues reserved to the Commissioner described in paragraphs (d)(1) and (d)(2) of this section. (e) Evidence from our Federal or State agency medical or psychological consultants. (f) Opinions from medical sources who are not acceptable medical sources and from nonmedical sources. (1) Consideration. (2) Articulation. [82 FR 5880, Jan. 18, 2017; 82 FR 15133, Mar. 27, 2017] § 416.928 [Reserved] § 416.929 How we evaluate symptoms, including pain. (a) General. (b) Need for medically determinable impairment that could reasonably be expected to produce your symptoms, such as pain. (c) Evaluating the intensity and persistence of your symptoms, such as pain, and determining the extent to which your symptoms limit your capacity for work or, if you are a child, your functioning General. (2) Consideration of objective medical evidence. (3) Consideration of other evidence. (i) Your daily activities; (ii) The location, duration, frequency, and intensity of your pain or other symptoms; (iii) Precipitating and aggravating factors; (iv) The type, dosage, effectiveness, and side effects of any medication you take or have taken to alleviate your pain or other symptoms; (v) Treatment, other than medication, you receive or have received for relief of your pain or other symptoms; (vi) Any measures you use or have used to relieve your pain or other symptoms (e.g., lying flat on your back, standing for 15 to 20 minutes every hour, sleeping on a board, etc.); and (vii) Other factors concerning your functional limitations and restrictions due to pain or other symptoms. (4) How we determine the extent to which symptoms, such as pain, affect your capacity to perform basic work activities, or, if you are a child, your functioning). (d) Consideration of symptoms in the disability determination process. (1) Need to establish a severe medically determinable impairment(s). (2) Decision whether the Listing of Impairments is met. (3) Decision whether the Listing of Impairments is equaled. (4) Impact of symptoms (including pain) on residual functional capacity or, if you are a child, on your functioning. See [56 FR 57944, Nov. 14, 1991, as amended at 62 FR 6429, Feb. 11, 1997; 62 FR 13538, Mar. 21, 1997; 62 FR 38454, July 18, 1997; 65 FR 16814, Mar. 30, 2000; 65 FR 54789, Sept. 11, 2000; 71 FR 10431, Mar. 1, 2006; 71 FR 16461, Mar. 31, 2006; 75 FR 62683, Oct. 13, 2010; 76 FR 24811, May 3, 2011; 82 FR 5882, Jan. 18, 2017] § 416.930 Need to follow prescribed treatment. (a) What treatment you must follow. (b) When you do not follow prescribed treatment. (c) Acceptable reasons for failure to follow prescribed treatment. (1) The specific medical treatment is contrary to the established teaching and tenets of your religion. (2) The prescribed treatment would be cataract surgery for one eye when there is an impairment of the other eye resulting in a severe loss of vision and is not subject to improvement through treatment. (3) Surgery was previously performed with unsuccessful results and the same surgery is again being recommended for the same impairment. (4) The treatment because of its enormity (e.g., open heart surgery), unusual nature (e.g., organ transplant), or other reason is very risky for you; or (5) The treatment involves amputation of an extremity, or a major part of an extremity. [45 FR 55621, Aug. 20, 1980, as amended at 59 FR 1636, Jan. 12, 1994; 62 FR 6429, Feb. 11, 1997; 82 FR 5882, Jan. 18, 2017] Presumptive Disability and Blindness § 416.931 The meaning of presumptive disability or presumptive blindness. If you are applying for supplemental security income benefits on the basis of disability or blindness, we may pay you benefits before we make a formal finding of whether or not you are disabled or blind. In order to receive these payments, we must find that you are presumptively disabled or presumptively blind. You must also meet all other eligibility requirements for supplemental security income benefits. We may make these payments to you for a period not longer than 6 months. These payments will not be considered overpayments if we later find that you are not disabled or blind. [45 FR 55621, Aug. 20, 1980, as amended at 57 FR 53853, Nov. 13, 1992] § 416.932 When presumptive payments begin and end. We may make payments to you on the basis of presumptive disability or presumptive blindness before we make a formal determination about your disability or blindness. The payments can not be made for more than 6 months. They start for a period of not more than 6 months beginning in the month we make the presumptive disability or presumptive blindness finding. The payments end the earliest of— (a) The month in which we make a formal finding on whether or not you are disabled or blind; (b) The month for which we make the sixth monthly payment based on presumptive disability or presumptive blindness to you; or (c) The month in which you no longer meet one of the other eligibility requirements (e.g., your income exceeds the limits). [45 FR 55621, Aug. 20, 1980, as amended at 57 FR 53853, Nov. 13, 1992] § 416.933 How we make a finding of presumptive disability or presumptive blindness. We may make a finding of presumptive disability or presumptive blindness if the evidence available at the time we make the presumptive disability or presumptive blindness finding reflects a high degree of probability that you are disabled or blind. In the case of readily observable impairments (e.g., total blindness), we will find that you are disabled or blind for purposes of this section without medical or other evidence. For other impairments, a finding of disability or blindness must be based on medical evidence or other information that, though not sufficient for a formal determination of disability or blindness, is sufficient for us to find that there is a high degree of probability that you are disabled or blind. For example, for claims involving the human immunodeficiency virus (HIV), the Social Security Field Office may make a finding of presumptive disability if your medical source provides us with information that confirms that your disease manifestations meet the severity of listing-level criteria for HIV. Of course, regardless of the specific HIV manifestations, the State agency may make a finding of presumptive disability if the medical evidence or other information reflects a high degree of probability that you are disabled. [58 FR 36063, July 2, 1993, as amended at 66 FR 58046, Nov. 19, 2001] § 416.934 Impairments that may warrant a finding of presumptive disability or presumptive blindness. We may make findings of presumptive disability and presumptive blindness in specific impairment categories without obtaining any medical evidence. These specific impairment categories are— (a) Amputation of a leg at the hip; (b) Allegation of total deafness; (c) Allegation of total blindness; (d) Allegation of bed confinement or immobility without a wheelchair, walker, or crutches, due to a longstanding condition, excluding recent accident and recent surgery; (e) Allegation of a stroke (cerebral vascular accident) more than 3 months in the past and continued marked difficulty in walking or using a hand or arm; (f) Allegation of cerebral palsy, muscular dystrophy or muscle atrophy and marked difficulty in walking (e.g., use of braces), speaking, or coordination of the hands or arms. (g) Allegation of Down syndrome. (h) Allegation of intellectual disability or another neurodevelopmental impairment (for example, autism spectrum disorder) with complete inability to independently perform basic self-care activities (such as toileting, eating, dressing, or bathing) made by another person who files on behalf of a claimant who is at least 4 years old. (i) Allegation of amyotrophic lateral sclerosis (ALS, Lou Gehrig's disease). (j) Infants weighing less than 1200 grams at birth, until attainment of 1 year of age. (k) Infants weighing at least 1200 but less than 2000 grams at birth, and who are small for gestational age, until attainment of 1 year of age. (Small for gestational age means a birth weight that is at or more than 2 standard deviations below the mean or that is less than the third growth percentile for the gestational age of the infant.) [45 FR 55621, Aug. 20, 1980, as amended at 50 FR 5574, Feb. 11, 1985; 53 FR 3741, Feb. 9, 1988; 56 FR 65684, Dec. 18, 1991; 67 FR 58046, Nov. 19, 2001; 68 FR 51693, Aug. 28, 2003; 80 FR 19530, Apr. 13, 2015; 81 FR 66178, Sept. 26, 2016] Drug Addiction and Alcoholism § 416.935 How we will determine whether your drug addiction or alcoholism is a contributing factor material to the determination of disability. (a) General. (b) Process we will follow when we have medical evidence of your drug addiction or alcoholism. (2) In making this determination, we will evaluate which of your current physical and mental limitations, upon which we based our current disability determination, would remain if you stopped using drugs or alcohol and then determine whether any or all of your remaining limitations would be disabling. (i) If we determine that your remaining limitations would not be disabling, we will find that your drug addiction or alcoholism is a contributing factor material to the determination of disability. (ii) If we determine that your remaining limitations are disabling, you are disabled independent of your drug addiction or alcoholism and we will find that your drug addiction or alcoholism is not a contributing factor material to the determination of disability. [60 FR 8151, Feb. 10, 1995] Residual Functional Capacity § 416.945 Your residual functional capacity. (a) General Residual functional capacity assessment. See (2) If you have more than one impairment. See (3) Evidence we use to assess your residual functional capacity. See See See See (4) What we will consider in assessing residual functional capacity. (5) How we will use our residual functional capacity assessment. See (ii) If we find that you cannot do your past relevant work, you do not have any past relevant work, or if we use the procedures in § 416.920(h) and § 416.962 does not apply, we will use the same assessment of your residual functional capacity at step five of the sequential evaluation process to decide if you can adjust to any other work that exists in the national economy. ( See see (b) Physical abilities. (c) Mental abilities. (d) Other abilities affected by impairment(s). (e) Total limiting effects. [56 FR 57947, Nov. 14, 1991, as amended at 68 FR 51165, Aug. 26, 2003; 77 FR 10657, Feb. 23, 2012; 77 FR 43495, July 25, 2012] § 416.946 Responsibility for assessing your residual functional capacity. (a) Responsibility for assessing residual functional capacity at the State agency. (b) Responsibility for assessing residual functional capacity in the disability hearings process. (c) Responsibility for assessing residual functional capacity at the administrative law judge hearing or Appeals Council level. [68 FR 51165, Aug. 26, 2003, as amended at 71 FR 16461, Mar. 31, 2006; 75 FR 62683, Oct. 13, 2010; 76 FR 24812, May 3, 2011] Vocational Considerations § 416.960 When we will consider your vocational background. (a) General. see (b) Past relevant work. (1) Definition of past relevant work What is past relevant work. (ii) 30 calendar days. (2) Determining whether you can do your past relevant work. See (3) If you can do your past relevant work. (c) Other work. See (2) In order to support a finding that you are not disabled at this fifth step of the sequential evaluation process, we are responsible for providing evidence that demonstrates that other work exists in significant numbers in the national economy that you can do, given your residual functional capacity and vocational factors. We are not responsible for providing additional evidence about your residual functional capacity because we will use the same residual functional capacity assessment that we used to determine if you can do your past relevant work. [68 FR 51166, Aug. 26, 2003, as amended at 77 FR 43495, July 25, 2012; 89 FR 27667, Apr. 18, 2024] § 416.962 Medical-vocational profiles showing an inability to make an adjustment to other work. (a) If you have done only arduous unskilled physical labor. see see Example to paragraph (a): B is a 58-year-old miner's helper with a fourth grade education who has a lifelong history of unskilled arduous physical labor. B says that he is disabled because of arthritis of the spine, hips, and knees, and other impairments. Medical evidence shows a “severe” combination of impairments that prevents B from performing his past relevant work. Under these circumstances, we will find that B is disabled. (b) If you are at least 55 years old, have no more than a limited education, and have no past relevant work experience. see see see see [68 FR 51166, Aug. 26, 2003] § 416.963 Your age as a vocational factor. (a) General. (b) How we apply the age categories. (c) Younger person. (d) Person closely approaching advanced age. (e) Person of advanced age. (f) Information about your age. [45 FR 55621, Aug. 20, 1980, as amended at 65 FR 18001, Apr. 6, 2000; 68 FR 51166, Aug. 26, 2003; 73 FR 64197, Oct. 29, 2008] § 416.964 Your education as a vocational factor. (a) General. Education (b) How we evaluate your education. (1) Illiteracy. (2) Marginal education. (3) Limited education. (4) High school education and above. (c) Information about your education. [45 FR 55621, Aug. 20, 1980, as amended at 85 FR 10603, Feb. 25, 2020] § 416.965 Your work experience as a vocational factor. (a) General. Work experience (b) Information about your work. [89 FR 27667, Apr. 18, 2024] § 416.966 Work which exists in the national economy. (a) General. (1) Work exists in the immediate area in which you live; (2) A specific job vacancy exists for you; or (3) You would be hired if you applied for work. (b) How we determine the existence of work. work which exists in the national economy. (c) Inability to obtain work. (1) Your inability to get work; (2) Lack of work in your local area; (3) The hiring practices of employers; (4) Technological changes in the industry in which you have worked; (5) Cyclical economic conditions; (6) No job openings for you; (7) You would not actually be hired to do work you could otherwise do, or; (8) You do not wish to do a particular type of work. (d) Administrative notice of job data. (1) Dictionary of Occupational Titles, (2) County Business Patterns, (3) Census Reports, (4) Occupational Analyses (5) Occupational Outlook Handbook, (e) Use of vocational experts and other specialists. § 416.967 Physical exertion requirements. To determine the physical exertion requirements of work in the national economy, we classify jobs as sedentary, light, medium, heavy, very heavy. Dictionary of Occupational Titles, (a) Sedentary work. (b) Light work. (c) Medium work. (d) Heavy work. (e) Very heavy work. § 416.968 Skill requirements. In order to evaluate your skills and to help determine the existence in the national economy of work you are able to do, occupations are classified as unskilled, semi-skilled, and skilled. In classifying these occupations, we use materials published by the Department of Labor. When we make disability determinations under this subpart, we use the following definitions: (a) Unskilled work. (b) Semi-skilled work. (c) Skilled work. (d) Skills that can be used in other work (transferability) What we mean by transferable skills. (2) How we determine skills that can be transferred to other jobs. (i) The same or a lesser degree of skill is required; (ii) The same or similar tools and machines are used; and (iii) The same or similar raw materials, products, processes, or services are involved. (3) Degrees of transferability. (4) Transferability of skills for persons of advanced age. advanced age sedentary light sedentary light closely approaching retirement age light [45 FR 55621, Aug. 20, 1980, as amended at 65 FR 18001, Apr. 6, 2000; 73 FR 64197, Oct. 29, 2008] § 416.969 Listing of Medical-Vocational Guidelines in appendix 2 of subpart P of part 404 of this chapter. The Dictionary of Occupational Titles See [45 FR 55584, Aug. 20, 1980, as amended at 77 FR 43495, July 25, 2012] § 416.969a Exertional and nonexertional limitations. (a) General. see See (b) Exertional limitations. (c) Nonexertional limitations. (i) You have difficulty functioning because you are nervous, anxious, or depressed; (ii) You have difficulty maintaining attention or concentrating; (iii) You have difficulty understanding or remembering detailed instructions; (iv) You have difficulty in seeing or hearing; (v) You have difficulty tolerating some physical feature(s) of certain work settings, e.g., you cannot tolerate dust or fumes; or (vi) You have difficulty performing the manipulative or postural functions of some work such as reaching, handling, stooping, climbing, crawling, or crouching. (2) If your impairment(s) and related symptoms, such as pain, only affect your ability to perform the nonexertional aspects of work-related activities, the rules in appendix 2 do not direct factual conclusions of disabled or not disabled. The determination as to whether disability exists will be based on the principles in the appropriate sections of the regulations, giving consideration to the rules for specific case situations in appendix 2. (d) Combined exertional and nonexertional limitations. [56 FR 57947, Nov. 14, 1991, as amended at 68 FR 51166, Aug. 26, 2003] Substantial Gainful Activity § 416.971 General. The work, without regard to legality, that you have done during any period in which you believe you are disabled may show that you are able to work at the substantial gainful activity level. If you are able to engage in substantial gainful activity, we will find that you are not disabled. (We explain the rules for persons who are statutorily blind in § 416.984.) Even if the work you have done was not substantial gainful activity, it may show that you are able to do more work than you actually did. We will consider all of the medical and vocational evidence in your file to decide whether or not you have the ability to engage in substantial gainful activity. [45 FR 55621, Aug. 20, 1980, as amended at 65 FR 42788, July 11, 2000] § 416.972 What we mean by substantial gainful activity. Substantial gainful activity is work activity that is both substantial and gainful: (a) Substantial work activity. (b) Gainful work activity. (c) Some other activities. § 416.973 General information about work activity. (a) The nature of your work. (b) How well you perform. (c) If your work is done under special conditions. (1) You required and received special assistance from other employees in performing your work; (2) You were allowed to work irregular hours or take frequent rest periods; (3) You were provided with special equipment or were assigned work especially suited to your impairment; (4) You were able to work only because of specially arranged circumstances, for example, other persons helped you prepare for or get to and from your work; (5) You were permitted to work at a lower standard of productivity or efficiency than other employees; or (6) You were given the opportunity to work, despite your impairment, because of family relationship, past association with your employer, or your employer's concern for your welfare. (d) If you are self-employed. (e) Time spent in work. [45 FR 55621, Aug. 20, 1980, as amended at 65 FR 42788, July 11, 2000] § 416.974 Evaluation guides if you are an employee. (a) We use several guides to decide whether the work you have done shows that you are able to do substantial gainful activity. If you are working or have worked as an employee, we will use the provisions in paragraphs (a) through (d) of this section that are relevant to your work activity. We will use these provisions whenever they are appropriate in connection with your application for supplemental security income benefits (when we make an initial determination on your application and throughout any appeals you may request) to determine if you are eligible. (1) Your earnings may show you have done substantial gainful activity. (2) We consider only the amounts you earn. (3) If you are working in a sheltered or special environment. (b) Earnings guidelines. General. (2) Earnings that will ordinarily show that you have engaged in substantial gainful activity. (i) Before January 1, 2001, (ii) Beginning January 1, 2001, (A) The amount for the previous year, or (B) An amount adjusted for national wage growth, calculated by multiplying $700 by the ratio of the national average wage index for the year 2 calendar years before the year for which the amount is being calculated to the national average wage index for the year 1998. We will then round the resulting amount to the next higher multiple of $10 where such amount is a multiple of $5 but not of $10 and to the nearest multiple of $10 in any other case. Table 1 For months: Your monthly earnings In calendar years before 1976 $200 In calendar year 1976 230 In calendar year 1977 240 In calendar year 1978 260 In calendar year 1979 280 In calendar years 1980-1989 300 January 1990-June 1999 500 July 1999-December 2000 700 (3) Earnings that will ordinarily show that you have not engaged in substantial gainful activity General. (ii) When we will consider other information in addition to your earnings. (A) Your work is comparable to that of unimpaired people in your community who are doing the same or similar occupations as their means of livelihood, taking into account the time, energy, skill, and responsibility involved in the work; and (B) Your work, although significantly less than that done by unimpaired people, is clearly worth the amounts shown in paragraph (b)(2) of this section, according to pay scales in your community. (c) The unsuccessful work attempt General. (2) Event that must precede an unsuccessful work attempt. (3) If you worked 6 months or less. (4) If you worked more than 6 months. (d) Work activity in certain volunteer programs. (e) Work activity as a member or consultant of an advisory committee established under the Federal Advisory Committee Act (FACA), 5 U.S.C. App. 2. [46 FR 4871, Jan. 19, 1981, as amended at 48 FR 21939, May 16, 1983; 49 FR 22274, May 29, 1984; 54 FR 53605, Dec. 29, 1989; 64 FR 18570, Apr. 15, 1999; 64 FR 22903, Apr. 28, 1999; 65 FR 42789, July 11, 2000; 65 FR 82911, Dec. 29, 2000; 71 FR 3219, Jan. 20, 2006; 71 FR 66857, Nov. 17, 2006; 81 FR 71369, Oct. 17, 2016] § 416.974a When and how we will average your earnings. (a) To determine your initial eligibility for benefits, we will average any earnings you make during the month you file for benefits and any succeeding months to determine if you are doing substantial gainful activity. If your work as an employee or as a self-employed person was continuous without significant change in work patterns or earnings, and there has been no change in the substantial gainful activity earnings levels, your earnings will be averaged over the entire period of work requiring evaluation to determine if you have done substantial gainful activity. (b) If you work over a period of time during which the substantial gainful activity earnings levels change, we will average your earnings separately for each period in which a different substantial gainful activity earnings level applies. (c) If there is a significant change in your work pattern or earnings during the period of work requiring evaluation, we will average your earnings over each separate period of work to determine if any of your work efforts were substantial gainful activity. [65 FR 42790, July 11, 2000] § 416.975 Evaluation guides if you are self-employed. (a) If you are a self-employed person. (1) Test One: (2) Test Two: (3) Test Three: (b) What we mean by significant services. (2) If you are a farm landlord, that is, you rent farm land to another, we will consider you to be rendering significant services if you materially participate in the production or the management of the production of the things raised on the rented farm. (See § 404.1082 of this chapter for an explanation of “material participation”.) If you were given social security earnings credits because you materially participated in the activities of the farm and you continue these same activities, we will consider you to be rendering significant services. (c) What we mean by substantial income. (1) It averages more than the amounts described in § 416.974(b)(2); or (2) It averages less than the amounts described in § 416.974(b)(2) but it is either comparable to what it was before you became seriously impaired if we had not considered your earnings or is comparable to that of unimpaired self-employed persons in your community who are in the same or a similar business as their means of livelihood. (d) The unsuccessful work attempt General. (2) Event that must precede an unsuccessful work attempt. (3) If you worked 6 months or less. (4) If you worked more than 6 months. [46 FR 4872, Jan. 19, 1981, as amended at 48 FR 21940, May 16, 1983; 49 FR 22274, May 29, 1984; 65 FR 42790, July 11, 2000; 81 FR 71369, Oct. 17, 2016] § 416.976 Impairment-related work expenses. (a) General. (b) Conditions for deducting impairment-related work expenses. (1) You are otherwise disabled as defined in §§ 416.905 through 416.907; (2) The severity of your impairment(s) requires you to purchase (or rent) certain items and services in order to work; (3) You pay the cost of the item or service. No deduction will be allowed to the extent that payment has been or will be made by another source. No deduction will be allowed to the extent that you have been, could be, or will be reimbursed for such cost by any other source (such as through a private insurance plan, Medicare or Medicaid, or other plan or agency). For example, if you purchase crutches for $80 but you were, could be, or will be reimbursed $64 by some agency, plan, or program, we will deduct only $16; (4) You pay for the item or service in accordance with paragraph (d) of this section; and (5) Your payment is in cash (including checks or other forms of money). Payment in kind is not deductible. (c) What expenses may be deducted Payments for attendant care services. (ii) If because of your impairment(s) you need assistance with personal functions (e.g., dressing, administering medications) at home in preparation for going to and assistance in returning from work, the payments you make for those services may be deducted. (iii)(A) We will deduct payments you make to a family member for attendant care services only if such person, in order to perform the services, suffers an economic loss by terminating his or her employment or by reducing the number of hours he or she worked. (B) We consider a family member to be anyone who is related to you by blood, marriage or adoption, whether or not that person lives with you. (iv) If only part of your payment to a person is for services that come under the provisions of paragraph (c)(1) of this section, we will only deduct that part of the payment which is attributable to those services. For example, an attendant gets you ready for work and helps you in returning from work, which takes about 2 hours a day. The rest of his or her 8 hour day is spent cleaning your house and doing your laundry, etc. We would only deduct one-fourth of the attendant's daily wages as an impairment-related work expense. (2) Payments for medical devices. (3) Payments for prosthetic devices. (4) Payments for equipment Work-related equipment. (ii) Residential modifications. (iii) Nonmedical appliances and equipment. (5) Payments for drugs and medical services. (ii) Examples of deductible drugs and medical services are anticonvulsant drugs to control epilepsy or anticonvulsant blood level monitoring; antidepressant medication for mental disorders; medication used to allay the side effects of certain treatments; radiation treatment or chemotherapy for cancer patients; corrective surgery for spinal disorders; electroencephalograms and brain scans related to a disabling epileptic condition; tests to determine the efficacy of medication on a diabetic condition; and immunosuppressive medications that kidney transplant patients regularly take to protect against graft rejection. (iii) We will only deduct the costs of drugs or services that are directly related to your impairment(s). Examples of non-deductible items are routine annual physical examinations, optician services (unrelated to a disabling visual impairment) and dental examinations. (6) Payments for similar items and services General. (ii) Medical supplies and services not described above. (iii) Payments for transportation costs. (A) Your impairment(s) requires that in order to get to work you need a vehicle that has structural or operational modifications. The modifications must be critical to your operation or use of the vehicle and directly related to your impairment(s). We will deduct the costs of the modifications, but not the cost of the vehicle. We will also deduct a mileage allowance for the trip to and from work. The allowance will be based on data compiled by the Federal Highway Administration relating to vehicle operating costs. (B) Your impairment(s) requires you to use driver assistance, taxicabs or other hired vehicles in order to work. We will deduct amounts paid to the driver and, if your own vehicle is used, we will also deduct a mileage allowance, as provided in paragraph (c)(6)(iii)(A) of this section, for the trip to and from work. (C) Your impairment(s) prevents your taking available public transportation to and from work and you must drive your (unmodified) vehicle to work. If we can verify through your physician or other sources that the need to drive is caused by your impairment(s) (and not due to the unavailability of public transportation), we will deduct a mileage allowance as provided in paragraph (c)(6)(iii)(A) of this section, for the trip to and from work. (7) Payments for installing, maintaining, and repairing deductible items. (d) When expenses may be deducted Effective date. (2) Payments for services. (3) Payment for items. (e) How expenses are allocated Recurring expenses. Example: B starts work in October 1981 at which time she purchases a medical device at a cost of $4,800 plus interest charges of $720. Her monthly payments begin in October. She earns and receives $400 a month. The term of the installment contract is 48 months. No downpayment is made. The monthly allowable deduction for the item would be $115 ($5520 divided by 48) for each month of work (for SGA purposes) and for each month earned income is received (for SSI payment purposes) during the 48 months. (2) Nonrecurring expenses. Example: A begins working in October 1981 and earns and receives $525 a month. In the same month he purchases and pays for a deductible item at a cost of $250. In this situation we could allow a $250 deduction for both SGA and SSI payment purposes for October 1981, reducing A's earnings below the SGA level for that month. If A's earnings had been $15 above the SGA earnings amount, A probably would select the option of projecting the $250 payment over the 12-month period, October 1981-September 1982, giving A an allowable deduction of $20.83 a month for each month of work (for SGA purposes) and for each month earned income is received (for SSI payment purposes) during that period. This deduction would reduce A's earnings below the SGA level for 12 months. (3) Allocating downpayments. Example 1. C starts working in October 1981, at which time he purchases special equipment at a cost of $4,800, paying $1,200 down. The balance of $3,600, plus interest of $540, is to be repaid in 36 installments of $115 a month beginning November 1981. C earns and receives $500 a month. He chooses to have the downpayment allocated. In this situation we would allow a deduction of $205.42 a month for each month of work (for SGA purposes) and for each month earned income is received (for SSI payment purposes) during the period October 1981 through September 1982. After September 1982, the deduction amount would be the regular monthly payment of $115 for each month of work (for SGA purposes) and for each month earned income is received (for SSI payment purposes) during the remaining installment period. Explanation: Downpayment in 10/81 $1,200 Monthly payments 11/81 through 09/82 1,265 12) 2,465 = $205.42. Example 2. D, while working, buys a deductible item in July 1981, paying $1,450 down. (D earns and receives $500 a month.) However, his first monthly payment of $125 is not due until September 1981. D chooses to have the downpayment allocated. In this situation we would allow a deduction of $225 a month for each month of work (for SGA purposes) and for each month earned income is received (for SSI payment purposes) during the period July 1981 through June 1982. After June 1982, the deduction amount would be the regular monthly payment of $125 for each month of work (for SGA purposes) and for each month earned income is received (for SSI payment purposes). Explanation: Downpayment in 07/81 $1,450 Monthly payments 09/81 through 06/82 1,250 12) 2,700 = 225. (4) Payments made in anticipation of work. (f) Limits on deductions. (2) The decision as to whether you performed substantial gainful activity in a case involving impairment-related work expenses for items or services necessary for you to work generally will be based upon your “earnings” and not on the value of “services” you rendered. (See §§ 416.974(b)(6) (i) and (ii), and 416.975(a)). This is not necessarily so, however, if you are in a position to control or manipulate your earnings. (3) The amount of the expenses to be deducted must be determined in a uniform manner in both the disability insurance and SSI programs. The amount of deductions must, therefore, be the same for determinations as to substantial gainful activity under both programs. The deductions that apply in determining the SSI payment amounts, though determined in the same manner as for SGA determinations, are applied so that they correspond to the timing of the receipt of the earned income to be excluded. (4) No deduction will be allowed to the extent that any other source has paid or will pay for an item or service. No deduction will be allowed to the extent that you have been, could be, or will be, reimbursed for payments you made. (See paragraph (b)(3) of this section.) (5) The provisions described in the foregoing paragraphs of this section are effective with respect to expenses incurred on and after December 1, 1980, although expenses incurred after November 1980 as a result of contractual or other arrangements entered into before December 1980, are deductible. For months before December 1980 we will deduct impairment-related work expenses from your earnings only to the extent they exceeded the normal work-related expenses you would have had if you did not have your impairment(s). We will not deduct expenses, however, for those things which you needed even when you were not working. (g) Verification. [48 FR 21940, May 16, 1983, as amended at 65 FR 42791, July 11, 2000] Blindness § 416.981 Meaning of blindness as defined in the law. We will consider you blind under the law for payment of supplemental security income benefits if we determine that you are statutorily blind. Statutory blindness is central visual acuity of 20/200 or less in the better eye with the use of a correcting lens. An eye which has a limitation in the field of vision so that the widest diameter of the visual field subtends an angle no greater than 20 degrees is considered to have a central visual acuity of 20/200 or less. § 416.982 Blindness under a State plan. We shall also consider you blind for the purposes of payment of supplemental security income benefits if— (a) You were found to be blind as defined under a State plan approved under title X or title XVI of the Social Security Act, as in effect for October 1972; (b) You received aid under the State plan because of your blindness for the month of December 1973; and (c) You continue to be blind as defined under the State plan. § 416.983 How we evaluate statutory blindness. We will find that you are blind if you are statutorily blind (a) That your blindness meet the duration requirement; or (b) That you be unable to do any substantial gainful activity. § 416.984 If you are statutorily blind and still working. There is no requirement that you be unable to work in order for us to find that you are blind. However, if you are working, your earnings will be considered under the income and resources rules in subparts K and L of this part. This means that if your income or resources exceed the limitations, you will not be eligible for benefits, even though you are blind. § 416.985 How we evaluate other visual impairments. If you are not blind as defined in the law, we will evaluate a visual impairment the same as we evaluate other impairments in determining disability. Although you will not qualify for benefits on the basis of blindness, you may still be eligible for benefits if we find that you are disabled as defined in §§ 416.905 through 416.907. § 416.986 Why and when we will find that you are no longer entitled to benefits based on statutory blindness. (a) If your vision does not meet the definition of blindness. (1) The month your vision, based on current medical evidence, does not meet the definition of blindness and you were disabled only for a specified period of time in the past; (2) The month your vision based on current medical evidence, does not meet the definition of blindness, but not earlier than the month in which we mail you a notice saying that the information we have shows that you are not now blind; or (3) The first month in which you fail to follow prescribed treatment that can restore your ability to work (see § 416.930). (b) If you were found blind as defined in a State plan. (c) If you do not cooperate with us. (d) Before we stop your payments. [45 FR 55621, Aug. 20, 1980, as amended at 50 FR 50137, Dec. 6, 1985; 51 FR 7603, Feb. 28, 1986; 59 FR 1636, Jan. 12, 1994] Disability Redeterminations for Individuals Who Attain Age 18 § 416.987 Disability redeterminations for individuals who attain age 18. (a) Who is affected by this section? (i) You are at least 18 years old; and (ii) You became eligible for SSI disability benefits as a child ( i.e., (iii) You were eligible for such benefits for the month before the month in which you attained age 18. (2) We may find that you are not now disabled even though we previously found that you were disabled. (b) What are the rules for age-18 redeterminations? (c) When will my eligibility be redetermined? (d) Will I be notified? We will notify you in writing before we begin your disability redetermination. (i) That we are redetermining your eligibility for payments; (ii) Why we are redetermining your eligibility; (iii) Which disability rules we will apply; (iv) That our review could result in a finding that your SSI payments based on disability could be terminated; (v) That you have the right to submit medical and other evidence for our consideration during the redetermination; and (vi) That we will notify you of our determination, your right to appeal the determination, and your right to request continuation of benefits during appeal. (2) We will notify you in writing of the results of the disability redetermination. (e) When will we find that your disability ended? (1) The month the evidence shows that you are not disabled under the rules in this section, but not earlier than the month in which we mail you a notice saying that you are not disabled. (2) The first month in which you failed without good cause to follow prescribed treatment under the rules in § 416.930. (3) The first month in which you failed without good cause to do what we asked. Section 416.1411 explains the factors we will consider and how we will determine generally whether you have good cause for failure to cooperate. In addition, § 416.918 discusses how we determine whether you have good cause for failing to attend a consultative examination. [65 FR 54789, Sept. 11, 2000, as amended at 70 FR 36508, June 24, 2005; 77 FR 43495, July 25, 2012] Continuing or Stopping Disability or Blindness § 416.988 Your responsibility to tell us of events that may change your disability or blindness status. (a) If you are entitled to payments because you are disabled or blind, you should promptly tell us if— (1) Your condition improves; (2) You return to work; (3) You have a new employer; (4) You increase the amount of your work; or (5) Your earnings increase. (b) If we have your authorization to obtain wage and employment information (see § 416.709(a)) from a payroll data provider (see § 416.702), and we receive your wage and employment information from your employer(s) through a participating payroll data provider, your reporting requirements under paragraphs (a)(4) and (5) will be reduced as described in § 416.709(c). [89 FR 107260, Dec. 31, 2024] § 416.989 We may conduct a review to find out whether you continue to be disabled. After we find that you are disabled, we must evaluate your impairment(s) from time to time to determine if you are still eligible for payments based on disability. We call this evaluation a continuing disability review. We may begin a continuing disability review for any number of reasons including your failure to follow the provisions of the Social Security Act or these regulations. When we begin such a review, we will notify you that we are reviewing your eligibility for payments, why we are reviewing your eligibility, that in medical reviews the medical improvement review standard will apply, that our review could result in the termination of your payments, and that you have the right to submit medical and other evidence for our consideration during the continuing disability review. In doing a medical review, we will develop a complete medical history of at least the preceding 12 months in any case in which a determination is made that you are no longer under a disability. If this review shows that we should stop your payments, we will notify you in writing and give you an opportunity to appeal. In § 416.990 we describe those events that may prompt us to review whether you continue to be disabled. [51 FR 16826, May 7, 1986] § 416.989a We may conduct a review to find out whether you continue to be blind. After we find that you are blind, we must evaluate your impairment(s) from time to time to determine if you are still eligible for payments based on blindness. We call this evaluation a continuing disability review. We may begin a continuing disability review for any number of reasons including your failure to follow the provisions of the Social Security Act or these regulations. When we begin such a review, we will notify you that we are reviewing your eligibility for payments, why we are reviewing your eligibility, that our review could result in the termination of your payments, and that you have the right to submit medical and other evidence for our consideration during the continuing disability review. In doing a medical review, we will develop a complete medical history of at least the preceding 12 months in any case in which a determination is made that you are no longer blind. If this review shows that we should stop your payments, we will notify you in writing and give you an opportunity to appeal. In § 416.990 we describe those events that may prompt us to review whether you continue to be blind. [51 FR 16826, May 7, 1986] § 416.990 When and how often we will conduct a continuing disability review. (a) General. (b) When we will conduct a continuing disability review. (1) You have been scheduled for a medical improvement expected diary review; (2) You have been scheduled for a periodic review (medical improvement possible or medical improvement not expected) in accordance with the provisions of paragraph (d) of this section; (3) We need a current medical or other report to see if your disability continues. (This could happen when, for example, an advance in medical technology, such as improved treatment for Alzheimer's disease, or a change in vocational therapy or technology raises a disability issue); (4) You return to work; (5) Substantial earnings are reported to your wage record; (6) You tell us that— (i) You have recovered from your disability; or (ii) You have returned to work; (7) Your State Vocational Rehabilitation Agency tells us that— (i) The services have been completed; or (ii) You are now working; or (iii) You are able to work; (8) Someone in a position to know of your physical or mental condition tells us any of the following, and it appears that the report could be substantially correct: (i) You are not disabled or blind; or (ii) You are not following prescribed treatment; or (iii) You have returned to work; or (iv) You are failing to follow the provisions of the Social Security Act or these regulations; (9) Evidence we receive raises a question whether your disability or blindness continues; (10) You have been scheduled for a vocational reexamination diary review; or (11) By your first birthday, if you are a child whose low birth weight was a contributing factor material to our determination that you were disabled; i.e., (i) We determine that you have an impairment that is not expected to improve by your first birthday; and (ii) We schedule you for a continuing disability review after your first birthday. (c) Definitions. Medical improvement expected diary Permanent impairment—medical improvement not expected— (1) Parkinsonian Syndrome which has reached the level of severity necessary to meet the Listing in appendix 1 of subpart P or part 404 of this chapter. (2) Amyotrophic Lateral Sclerosis which has reached the level of severity necessary to meet the Listing in appendix 1 of subpart P of part 404 of this chapter. (3) Diffuse pulmonary fibrosis in an individual age 55 or over which has reached the level of severity necessary to meet the Listing in appendix 1 of subpart P of part 404 of this chapter. (4) Amputation of leg at hip. Nonpermanent impairment Vocational reexamination diary (d) Frequency of review. (e) Change in classification of impairment. (f) Review after administrative appeal. (g) Waiver of timeframes. waiver (h) If you are participating in the Ticket to Work program. (i) If you are working and have received social security disability benefits for at least 24 months General. (i) You are currently entitled to disability insurance benefits as a disabled worker, child's insurance benefits based on disability, or widow's or widower's insurance benefits based on disability under title II of the Social Security Act (see subpart D of part 404 of this chapter); and (ii) You have received such benefits for at least 24 months (see paragraph (i)(2) of this section). (2) The 24-month requirement. (ii) In determining whether paragraph (i)(1) of this section applies, we consider whether you have received disability insurance benefits as a disabled worker, child's insurance benefits based on disability, or widow's or widower's insurance benefits based on disability under title II of the Social Security Act for at least 24 months as of the date on which we start a continuing disability review. For purposes of this provision, the date on which we start a continuing disability review is the date on the notice we send you that tells you that we are beginning to review your disability case. (3) When we may start a continuing disability review even if you have received social security disability benefits for at least 24 months. (4) Erroneous start of the continuing disability review. (i) You provide us evidence that establishes that you met the requirements of paragraph (i)(1) of this section as of the date of the start of your continuing disability review and that the start of the review was erroneous; and (ii) We receive the evidence within 12 months of the date of the notice of the initial determination of medical cessation. [51 FR 16826, May 7, 1986, as amended at 62 FR 6430, Feb. 11, 1997; 65 FR 54790, Sept. 11, 2000; 71 FR 66858, Nov. 17, 2006] § 416.991 If your medical recovery was expected and you returned to work. If your impairment was expected to improve and you returned to full-time work with no significant medical limitations and acknowledge that medical improvement has occurred, we may find that your disability ended in the month you returned to work. Unless there is evidence showing that your disability has not ended, we will use the medical and other evidence already in your file and the fact that you returned to full-time work without significant limitations to determine that you are no longer disabled. Example: Evidence obtained during the processing of your claim showed that you had an impairment that was expected to improve about 18 months after your disability began. We, therefore, told you that your claim would be reviewed again at that time. However, before the time arrived for your scheduled medical re-examination, you told us that you had returned to work and your impairment had improved. We reviewed your claim immediately and found that, in the 16th month after your disability began, you returned to full-time work without any significant medical restrictions. Therefore, we would find that your disability ended in the first month you returned to full-time work. [50 FR 50137, Dec. 6, 1985, as amended at 65 FR 42791, July 11, 2000] § 416.992 What happens if you fail to comply with our request for information. We will suspend your payments before we make a determination regarding your continued eligibility for disability payments if you fail to comply, without good cause (see § 416.1411), with our request for information for your continuing disability review or age-18 redetermination. The suspension is effective with the month in which it is determined in accordance with § 416.1322 that your eligibility for disability payments has ended due to your failure to comply with our request for necessary information. When we have received the information, we will reinstate your payments for any previous month for which they are otherwise payable, and continue with the CDR or age-18 redetermination process. We will terminate your eligibility for payments following 12 consecutive months of payment suspension as discussed in § 416.1335. [71 FR 60823, Oct. 17, 2006] § 416.992a [Reserved] § 416.993 Medical evidence in continuing disability review cases. (a) General. (b) Obtaining evidence from your medical sources. (c) When we will purchase a consultative examination. [56 FR 36970, Aug. 1, 1991, as amended at 65 FR 16815, Mar. 30, 2000; 82 FR 5882, Jan. 18, 2017] § 416.994 How we will determine whether your disability continues or ends, disabled adults. (a) General. (b) Disabled persons age 18 or over (adults). (1) Terms and definitions. (i) Medical improvement. Example 1: You were awarded disability benefits due to a herniated nucleus pulposus. At the time of our prior decision granting you benefits you had had a laminectomy. Postoperatively, a myelogram still shows evidence of a persistent deficit in your lumbar spine. You had pain in your back, and pain and a burning sensation in your right foot and leg. There were no muscle weakness or neurological changes and a modest decrease in motion in your back and leg. When we reviewed your claim your medical source who has treated you reported that he or she had seen you regularly every 2 to 3 months for the past 2 years. No further myelograms had been done, complaints of pain in the back and right leg continued especially on sitting or standing for more than a short period of time. Your doctor further reported a moderately decreased range of motion in your back and right leg, but again no muscle atrophy or neurological changes were reported. Medical improvement has not Example 2: You were awarded disability benefits due to rheumatoid arthritis. At the time, laboratory findings were positive for this condition. Your doctor reported persistent swelling and tenderness of your fingers and wrists and that you complained of joint pain. Current medical evidence shows that while laboratory tests are still positive for rheumatoid arthritis, your impairment has responded favorably to therapy so that for the last year your fingers and wrists have not been significantly swollen or painful. Medical improvement has occurred because there has been a decrease in the severity of your impairment as documented by the current symptoms and signs reported by your physician. Although your impairment is subject to temporary remissions and exacerbations, the improvement that has occurred has been sustained long enough to permit a finding of medical improvement. We would then determine if this medical improvement is related to your ability to work. (ii) Medical improvement not related to ability to do work. no Example: You are 65 inches tall and weighed 246 pounds at the time your disability was established. You had venous insufficiency and persistent edema in your legs. At the time, your ability to do basic work activities was affected because you were able to sit for 6 hours, but were able to stand or walk only occasionally. At the time of our continuing disability review, you had undergone a vein stripping operation. You now weigh 220 pounds and have intermittent edema. You are still able to sit for 6 hours at a time and to stand or work only occasionally although you report less discomfort on walking. Medical improvement has occurred because there has been a decrease in the severity of the existing impairment as shown by your weight loss and the improvement in your edema. This medical improvement is not related to your ability to work, however, because your functional capacity to do basic work activities ( i.e. (iii) Medical improvement that is related to ability to do work. and Example 1: You have a back impairment and had a laminectomy to relieve the nerve root impingement and weakness in your left leg. At the time of our prior decision, basic work activities were affected because you were able to stand less than 6 hours, and sit no more than 1/2 Example 2: You were injured in an automobile accident receiving a compound fracture to your right femur and a fractured pelvis. When you applied for disability benefits 10 months after the accident your doctor reported that neither fracture had yet achieved solid union based on his clinical examination. X-rays supported this finding. Your doctor estimated that solid union and a subsequent return to full weight bearing would not occur for at least 3 more months. At the time of our review 6 months later, solid union had occurred and you had been returned to weight-bearing for over a month. Your doctor reported this and the fact that your prior fractures no longer placed any limitation on your ability to walk, stand, lift, etc., and, that in fact, you could return to fulltime work if you so desired. Medical improvement has occurred because there has been a decrease in the severity of your impairments as shown by X-ray and clinical evidence of solid union and your return to full weight-bearing. This medical improvement is related to your ability to work because you no longer meet the same listed impairment in appendix 1 of subpart P of part 404 of this chapter (see paragraph (b)(2)(iii)(A) of this section). In fact, you no longer have an impairment which is severe (see § 416.921) and your disability will be found to have ended. (iv) Functional capacity to do basic work activities. (A) A decrease in the severity of an impairment as measured by changes (improvement) in symptoms, signs or laboratory findings can, if great enough, result in an increase in the functional capacity to do work activities. Vascular surgery (e.g., femoropopliteal bypass) may sometimes reduce the severity of the circulatory complications of diabetes so that better circulation results and the person can stand or walk for longer periods. When new evidence showing a change in symptoms, signs and laboratory findings establishes that both medical improvement has occurred and your functional capacity to perform basic work activities, or residual functional capacity, has increased, we say that medical improvement which is related to your ability to do work has occurred. A residual functional capacity assessment is also used to determine whether you can engage in substantial gainful activity and, thus, whether you continue to be disabled (see paragraph (b)(1)(vi) of this section). (B) Many impairment-related factors must be considered in assessing your functional capacity for basic work activities. Age is one key factor. Medical literature shows that there is a gradual decrease in organ function with age; that major losses and deficits become irreversible over time and that maximum exercise performance diminishes with age. Other changes related to sustained periods of inactivity and the aging process include muscle atrophy, degenerative joint changes, decrease in range of motion, and changes in the cardiac and respiratory systems which limit the exertional range. (C) Studies have also shown that the longer an individual is away from the workplace and is inactive, the more difficult it becomes to return to ongoing gainful employment. In addition, a gradual change occurs in most jobs so that after about 15 years, it is no longer realistic to expect that skills and abilities acquired in these jobs will continue to apply to the current workplace. Thus, if you are age 50 or over and have been receiving disability benefits for a considerable period of time, we will consider this factor along with your age in assessing your residual functional capacity. This will ensure that the disadvantages resulting from inactivity and the aging process during a long period of disability will be considered. In some instances where available evidence does not resolve what you can or cannot do on a sustained basis, we will provide special work evaluations or other appropriate testing. (v) Ability to engage in substantial gainful activity. (vi) Evidence and basis for our decision. (vii) Point of comparison. i.e. (2) Determining medical improvement and its relationship to your abilities to do work. (i) Medical improvement. (ii) Determining if medical improvement is related to ability to work. (iii) Your new residual functional capacity will then be compared to your residual functional capacity at the time of our most recent favorable medical decision. Unless an increase in the current residual functional capacity is based on actual changes in the signs, symptoms, or laboratory findings any medical improvement that has occurred will not be considered to be related to your ability to do work. (iv) Following are some additional factors and considerations which we will apply in making these determinations. (A) Previous impairment met or equaled listings. (B) Prior residual functional capacity assessment made. (C) Prior residual functional capacity assessment should have been made, but was not. i.e. Example: You were previously found to be disabled on the basis that “while your impairment did not meet or equal a listing, it did prevent you from doing your past or any other work.” The prior adjudicator did not, however, include a residual functional capacity assessment in the rationale of this decision and a review of the prior evidence does not show that such an assessment was ever made. If a decrease in medical severity, i.e. (D) Impairment subject to temporary remission. (E) Prior file cannot be located. (3) First group of exceptions to medical improvement. (i) Substantial evidence shows that you are the beneficiary of advances in medical or vocational therapy or technology (related to your ability to work). (ii) Substantial evidence shows that you have undergone vocational therapy (related to your ability to work). Example 1: You were found to be disabled because the limitations imposed on you by your impairment allowed you to only do work that was at a sedentary level of exertion. Your prior work experience was work that required a medium level of exertion. Your age and education at the time would not have qualified you for work that was below this medium level of exertion. You enrolled in and completed a specialized training course which qualifies you for a job in data processing as a computer programmer in the period since you were awarded benefits. On review of your claim, current evidence shows that there is no medical improvement and that you can still do only sedentary work. As the work of a computer programmer is sedentary in nature, you are now able to engage in substantial gainful activity when your new skills are considered. Example 2: You were previously entitled to benefits because the medical evidence and assessment of your residual functional capacity showed you could only do light work. Your prior work was considered to be heavy in nature and your age, education and the nature of your prior work qualified you for work which was no less than medium in exertion. The current evidence and residual functional capacity show there has been no medical improvement and that you can still do only light work. Since you were originally entitled to benefits, your vocational rehabilitation agency enrolled you in and you successfully completed a trade school course so that you are now qualified to do small appliance repair. This work is light in nature, so when your new skills are considered, you are now able to engage in substantial gainful activity even though there has been no change in your residual functional capacity. (iii) Substantial evidence shows that based on new or improved diagnostic or evaluative techniques your impairment(s) is not as disabling as it was considered to be at the time of the most recent favorable decision. (A) How we will determine which methods are new or improved techniques and when they become generally available. (B) How you will know which methods are new or improved techniques and when they become generally available. ( 1 Federal Register. ( 2 Notices Federal Register. Example: The electrocardiographic exercise test has replaced the Master's 2-step test as a measurement of heart function since the time of your last favorable medical decision. Current evidence could show that your condition, which was previously evaluated based on the Master's 2-step test, is not now as disabling as was previously thought. If, taking all your current impairments into account, you are now able to engage in substantial gainful activity, this exception would be used to find that you are no longer disabled even if medical improvement has not occurred. (iv) Substantial evidence demonstrates that any prior disability decision was in error. (A) Substantial evidence shows on its face that the decision in question should not have been made (e.g., the evidence in your file such as pulmonary function study values was misread or an adjudicative standard such as a listing in appendix 1 of subpart P of part 404 of this chapter or a medical/vocational rule in appendix 2 of subpart P of part 404 of this chapter was misapplied). Example 1: You were granted benefits when it was determined that your epilepsy met Listing 11.02. This listing calls for a finding of major motor seizures more frequently than once a month as documented by electroencephalogram evidence and by a detailed description of a typical seizure pattern. A history of either diurnal episodes or nocturnal episodes with residuals interfering with daily activities is also required. On review, it is found that a history of the frequency of your seizures showed that they occurred only once or twice a year. The prior decision would be found to be in error, and whether you were still considered to be disabled would be based on whether you could currently engage in substantial gainful activity. Example 2: Your prior award of benefits was based on vocational rule 201.12 in appendix 2 of subpart P of part 404 of this chapter. This rule applies to a person age 50-54 who has at least a high school education, whose previous work was entirely at a semiskilled level, and who can do only sedentary work. On review, it is found that at the time of the prior determination you were actually only age 46 and vocational rule 201.21 should have been used. This rule would have called for a denial of your claim and the prior decision is found to have been in error. Continuation of your disability would depend on a finding of your current ability to engage in substantial gainful activity. (B) At the time of the prior evaluation, required and material evidence of the severity of your impairment(s) was missing. That evidence becomes available upon review, and substantial evidence demonstrates that had such evidence been present at the time of the prior determination, disability would not have been found. Example: You were found disabled on the basis of chronic obstructive pulmonary disease. The severity of your impairment was documented primarily by pulmonary function testing results. The evidence showed that you could do only light work. Spirometric tracings of this testing, although required, were not obtained, however. On review, the original report is resubmitted by the consultative examining physician along with the corresponding spirometric tracings. A review of the tracings shows that the test was invalid. Current pulmonary function testing supported by spirometric tracings reveals that your impairment does not limit your ability to perform basic work activities in any way. Error is found based on the fact that required, material evidence which was originally missing now becomes available and shows that if it had been available at the time of the prior determination, disability would not have been found. (C) Substantial evidence which is new evidence which relates to the prior determination (of allowance or continuance) refutes the conclusions that were based upon the prior evidence (e.g., a tumor thought to be malignant was later shown to have actually been benign). Substantial evidence must show that had the new evidence, (which relates to the prior determination) been considered at the time of the prior decision, the claim would not have been allowed or continued. A substitution of current judgment for that used in the prior favorable decision will not be the basis for applying this exception. Example: You were previously found entitled to benefits on the basis of diabetes mellitus which the prior adjudicator believed was equivalent to the level of severity contemplated in the Listing of Impairments. The prior record shows that you had “brittle” diabetes for which you were taking insulin. Your urine was 3 + for sugar, and you alleged occasional hypoglycemic attacks caused by exertion. On review, symptoms, signs and laboratory findings are unchanged. The current adjudicator feels, however, that your impairment clearly does not equal the severity contemplated by the listings. Error cannot (D) The exception for error will not be applied retroactively under the conditions set out above unless the conditions for reopening the prior decision (see §§ 416.1488 through 416.1489) are met. (4) Second group of exceptions to medical improvement. (i) A prior determination or decision was fraudulently obtained. (ii) You do not cooperate with us. (iii) We are unable to find you. (iv) You fail to follow prescribed treatment which would be expected to restore your ability to engage in substantial gainful activity. (5) Evaluation steps. continued (i) Step 1. (ii) Step 2. (iii) Step 3. i.e. not is (iv) Step 4. (v) Step 5. (vi) Step 6. (vii) Step 7. see (viii) Step 8. (6) The month in which we will find you are no longer disabled. (i) The month the evidence shows that you are no longer disabled under the rules set out in this section, and you were disabled only for a specified period of time in the past; (ii) The month the evidence shows that you are no longer disabled under the rules set out in this section, but not earlier than the month in which we mail you a notice saying that the information we have shows that you are not disabled; (iii) The month in which you return to full-time work, with no significant medical restrictions and acknowledge that medical improvement has occurred, and we expected your impairment(s) to improve (see § 416.991); (iv) The first month in which you fail without good cause to follow prescribed treatment, when the rule set out in paragraph (b)(4)(iv) of this section applies; (v) The first month you were told by your physician that you could return to work, provided there is no substantial conflict between your physician's and your statements regarding your awareness of your capacity for work and the earlier date is supported by substantial evidence; or (vi) The first month in which you failed without good cause to do what we asked, when the rule set out in paragraph (b)(4)(ii) of this section applies. (7) Before we stop your benefits. (8) If you work during your current period of eligibility based on disability or during certain other periods. (ii) If you are currently entitled to disability insurance benefits as a disabled worker, child's insurance benefits based on disability, or widow's or widower's insurance benefits based on disability under title II of the Social Security Act, and at the time we are making a determination on your case you have received such benefits for at least 24 months, we will not consider the activities you perform in the work you are doing or have done during your current period of entitlement based on disability if they support a finding that your disability has ended. (We will use the rules in § 416.990(i)(2) to determine whether the 24-month requirement is met.) However, we will consider the activities you do in that work if they support a finding that your disability continues or they do not conflict with a finding that your disability continues. We will not presume that you are still disabled if you stop working. (iii) If you are not a person described in paragraph (b)(8)(ii) of this section, we will consider the activities you perform in your work at any of the evaluation steps in paragraph (b)(5) of this section at which we need to assess your ability to function. However, we will not consider the work you are doing or have done during your current period of eligibility based on disability (or, when determining whether you are eligible for expedited reinstatement of benefits under section 1631(p) of the Act, the work you are doing or have done during or after the previously terminated period of eligibility referred to in section 1631(p)(1)(B) of the Act) to be past relevant work under paragraph (b)(5)(vi) of this section or past work experience under paragraph (b)(5)(vii) of this section. (c) Persons who were found disabled under a State plan. [50 FR 50137, Dec. 6, 1985; 51 FR 7063, Feb. 28, 1986; 51 FR 16015, Apr. 30, 1986, as amended at 52 FR 44971, Nov. 24, 1987; 56 FR 5562, Feb. 11, 1991; 59 FR 1636, Jan. 12, 1994; 65 FR 42791, July 11, 2000; 68 FR 51167, Aug. 26, 2003; 68 FR 53219, Sept. 9, 2003; 71 FR 66859, Nov. 17, 2006; 77 FR 43496, July 25, 2012; 82 FR 5882, Jan. 18, 2017] § 416.994a How we will determine whether your disability continues or ends, and whether you are and have been receiving treatment that is medically necessary and available, disabled children. (a) Evaluation of continuing disability, in general. (1) We will first consider whether there has been medical improvement in your impairment(s). We define “medical improvement” in paragraph (c) of this section. If there has been no medical improvement, we will find you are still disabled unless one of the exceptions in paragraphs (e) or (f) of this section applies. If there has been medical improvement, we will consider whether the impairments(s) you had at the time of our most recent favorable determination or decision now meets or medically or functionally equals the severity of the listing it met or equalled at that time. If so, we will find you are still disabled, unless one of the exceptions in paragraphs (e) or (f) of this section applies. If not, we will consider whether your current impairment(s) are disabling under the rules in § 416.924. These steps are described in more detail in paragraph (b) of this section. Even where medical improvement or an exception applies, in most cases, we will find that your disability has ended only if we also find that you are not currently disabled. (2) Our determinations and decisions under this section will be made on a neutral basis, without any initial inference as to the presence or absence of disability being drawn from the fact that you have been previously found disabled. We will consider all evidence you submit and that we obtain from your medical and nonmedical sources. What constitutes “evidence” and our procedures for obtaining it are set out in §§ 416.912 through 416.918. Our determination regarding whether your disability continues will be made on the basis of the weight of the evidence. (b) Sequence of evaluation. (1) Has there been medical improvement in your condition(s)? (i) If one of the first group of exceptions to medical improvement applies, we will proceed to step 3. (ii) If one of the second group of exceptions to medical improvement applies, we may find that your disability has ended. (2) Does your impairment(s) still meet or equal the severity of the listed impairment that it met or equaled before? (i) If one of the first group of exceptions to medical improvement applies, we will proceed to step 3. (ii) If one of the second group of exceptions to medical improvement applies, we may find that your disability has ended. (3) Are you currently disabled? (i) Do you have a severe impairment or combination of impairment? (ii) Does your impairment(s) meet or medically equal the severity of any impairment listed in appendix 1 of subpart P of part 404 of this chapter? (iii) Does your impairment(s) functionally equal the listings? (c) What we mean by medical improvement. (1) The most recent favorable decision is the latest final determination or decision involving a consideration of the medical evidence and whether you were disabled or continued to be disabled. (2) The terms symptoms, signs, and laboratory findings are defined in § 416.902. For children, our definitions of the terms symptoms, signs, laboratory findings (3) Some impairments are subject to temporary remissions, which can give the appearance of medical improvement when in fact there has been none. If you have the kind of impairment that is subject to temporary remissions, we will be careful to consider the longitudinal history of the impairment, including the occurrence of prior remissions and prospects for future worsenings, when we decide whether there has been medical improvement. Improvements that are only temporary will not warrant a finding of medical improvement. (d) Prior file cannot be located. (e) First group of exceptions to medical improvement. (1) Substantial evidence shows that, based on new or improved diagnostic techniques or evaluations, your impairment(s) is not as disabling as it was considered to be at the time of the most recent favorable decision. i.e., (i) How we will determine which methods are new or improved techniques and when they become generally available. (ii) How you will know which methods are new or improved techniques and when they become generally available. (A) Some of the future changes in the Listing of Impairments in appendix 1 of subpart P of part 404 of this chapter will be based on new or improved diagnostic or evaluative techniques. Such listings changes will clearly state this fact as they are published as Notices of Proposed Rulemaking and the new or improved technique will be considered generally available as of the date of the final publication of that particular listing in the Federal Register. (B) From time to time, we will publish in the Federal Register (2) Substantial evidence demonstrates that any prior disability decision was in error. (i) Substantial evidence shows on its face that the determination or decision in question should not have been made (e.g., the evidence in your file, such as pulmonary function study values, was misread, or an adjudicative standard, such as a listing in appendix 1 of subpart P of part 404 of this chapter, was misapplied). (ii) At the time of the prior evaluation, required and material evidence of the severity of your impairment(s) was missing. That evidence becomes available upon review, and substantial evidence demonstrates that, had such evidence been present at the time of the prior determination or decision, disability would not have been found. (iii) New substantial evidence that relates to the prior determination or decision refutes the conclusions that were based upon the prior evidence at the time of that determination or decision (e.g., a tumor thought to be malignant was later shown to have actually been benign). Substantial evidence must show that, had the new evidence (which relates to the prior determination or decision) been considered at the time of the prior determination or decision, the claim would not have been allowed or continued. A substitution of current judgment for that used in the prior favorable determination or decision will not be the basis for applying this exception. (iv) The exception for error will not be applied retroactively under the conditions set out above unless the conditions for reopening the prior decision (see §§ 416.1488 and 416.1489) are met. (f) Second group of exceptions to medical improvement. (1) A prior determination or decision was fraudulently obtained. (2) You do not cooperate with us. (3) We are unable to find you. (4) You fail to follow prescribed treatment which would be expected to improve your impairment(s) so that it no longer results in marked and severe functional limitations. (g) The month in which we will find you are no longer disabled. (1) The month the evidence shows that you are no longer disabled under the rules set out in this section, and you were disabled only for a specified period of time in the past; (2) The month the evidence shows that you are no longer disabled under the rules set out in this section, but not earlier than the month in which we mail you a notice saying that the information we have shows that you are not disabled; (3) The month in which you return to, or begin, full-time work with no significant medical restrictions, and acknowledge that medical improvement has occurred, and we expected your impairment(s) to improve (see § 416.991); (4) The first month in which you fail without good cause to follow prescribed treatment, when the rule set out in paragraph (f)(4) of this section applies; (5) The first month in which you were told by your physician that you could return to normal activities, provided there is no substantial conflict between your physician's and your statements regarding your awareness of your capacity, and the earlier date is supported by substantial evidence; or (6) The first month in which you failed without good cause to do what we asked, when the rule set out in paragraph (f)(2) of this section applies. (h) Before we stop your benefits. (i) Requirement for treatment that is medically necessary and available. (1) What we mean by treatment that is medically necessary. (i) Medical management; (ii) Psychological or psychosocial counseling; (iii) Physical therapy; and (iv) Home therapy, such as administering oxygen or giving injections. (2) How we will consider whether medically necessary treatment is available. (i) The location of an institution or facility or place where treatment, services, or resources could be provided to you in relationship to where you reside; (ii) The availability and cost of transportation for you and your payee to the place of treatment; (iii) Your general health, including your ability to travel for the treatment; (iv) The capacity of an institution or facility to accept you for appropriate treatment; (v) The cost of any necessary medications or treatments that are not paid for by Medicaid or another insurer or source; and (vi) The availability of local community resources (e.g., clinics, charitable organizations, public assistance agencies) that would provide free treatment or funds to cover treatment. (3) When we will not require evidence of treatment that is medically necessary and available. (4) Removal of a payee who does not provide evidence that a child is and has been receiving treatment that is medically necessary and available. (5) If you do not have a representative payee. [56 FR 5562, Feb. 11, 1991; 56 FR 13266, 13365, Apr. 1, 1991, as amended at 58 FR 47586, Sept. 9, 1993; 59 FR 1637, Jan. 12, 1994; 62 FR 6430, Feb. 11, 1997; 62 FR 13538, 13733, Mar. 21, 1997; 65 FR 16815, Mar. 30, 2000; 65 FR 54790, Sept. 11, 2000; 82 FR 5882, Jan. 18, 2017] § 416.995 If we make a determination that your physical or mental impairment(s) has ceased, did not exist or is no longer disabling (Medical Cessation Determination). If we make a determination that the physical or mental impairment(s) on the basis of which disability or blindness benefits were payable has ceased, did not exist or is no longer disabling (a medical cessation determination), your benefits will stop. You will receive a written notice explaining this determination and the month your benefits will stop. The written notice will also explain your right to appeal if you disagree with our determination and your right to request that your disability or blindness benefits be continued under § 416.996. The continued benefit provisions of this section do not apply to an initial determination on an application for disability or blindness benefits or to a determination that you were disabled or blind only for a specified period of time. [53 FR 29023, Aug. 2, 1988] § 416.996 Continued disability or blindness benefits pending appeal of a medical cessation determination. (a) General. (1) Benefits may be continued under this section only if the determination that your physical or mental impairment(s) has ceased, has never existed, or is no longer disabling is made after October 1984. (2) Continued benefits under this section will stop effective with the earlier of: (i) The month before the month in which an administrative law judge's hearing decision finds that your physical or mental impairment(s) has ceased, has never existed, or is no longer disabling or the month before the month of a new administrative law judge decision (or final action is taken by the Appeals Council on the administrative law judge's recommended decision) if your case was sent back to an administrative law judge for further action; or (ii) the month before the month in which no timely request for reconsideration or administrative law judge hearing is pending after notification of our initial or reconsideration cessation determination. These benefits may be stopped or adjusted because of certain events (such as, change in income or resources or your living arrangements) which may occur while you are receiving these continued benefits, in accordance with § 416.1336(b). (b) Statement of choice. (c) What you must do to receive continued benefits pending notice of our reconsideration determination. (2) If you fail to request reconsideration and continued benefits within the 10-day period required by paragraph (c)(1) of this section, but later ask that we continue your benefits pending a reconsidered determination, we will use the rules in § 416.1411 to determine whether good cause exists for your failing to request benefit continuation within 10 days after receipt of the notice of the initial cessation determination. If you request continued benefits after the 10-day period, we will consider the request to be timely and will pay continued benefits only if good cause for delay is established. (d) What you must do to receive continued benefits pending an administrative law judge's decision. (2) If you fail to request a hearing and continued benefits within the 10-day period required under paragraph (d)(1) of this section, but you later ask that we continue your benefits pending an administrative law judge's decision, we will use the rules as provided in § 416.1411 to determine whether good cause exists for your failing to request benefit continuation within 10 days after receipt of the reconsideration determination. If you request continued benefits after the 10-day period, we will consider the delayed request to be timely and will pay continued benefits only if good cause for delay is established. (e) What you must do when your case is remanded to an administrative law judge. (1) When your case is remanded to an administrative law judge, and you have elected to receive continued benefits, we will contact you to update our file to verify that you continue to meet the nonmedical requirements to receive benefits based on disability or blindness. To determine your correct payment amount, we will ask you to provide information about events such as changes in living arrangements, income, or resources since our last contact with you. If you have returned to work, we will request additional information about this work activity. Unless your earnings cause your income to be too much to receive benefits, your continued benefits will be paid while your appeal of the medical cessation of your disability/blindness is still pending, unless you have completed a trial work period and are engaging in substantial gainful activity. If you have completed a trial work period and previously received continued benefits you may still be eligible for special cash benefits under § 416.261 or special SSI eligibility status under § 416.264. (Effective July 1, 1987, a title XVI individual is no longer subject to a trial work period or cessation based on engaging in substantial gainful activity in order to be eligible for special benefits under § 416.261 or special status under § 416.264.) If we determine that you no longer meet a requirement to receive benefits, we will send you a written notice. The written notice will explain why your continued benefits will not be reinstated or will be for an amount less than you received before the prior administrative law judge's decision. The notice will also explain your right to reconsideration under § 416.1407, if you disagree. If you request a reconsideration, you will have the chance to explain why you believe your benefits should be reinstated or should be at a higher amount. If the final decision on your appeal of your medical cessation is a favorable one, we will send you a written notice in which we will advise you of any right to reentitlement to benefits including special benefits under § 416.261 or special status under § 416.264. If you disagree with our determination on your appeal, you will have the right to appeal this decision. (2) After we verify that you meet all the nonmedical requirements to receive benefits as stated in paragraph (e)(1) of this section, and if you previously elected to receive continued benefits pending the administrative law judge's decision, we will start continued benefits again. We will send you a notice telling you this. You do not have to complete a request to have these same benefits continued through the month before the month the new decision or order of dismissal is issued by the administrative law judge or through the month before the month the Appeals Council takes final action on the administrative law judge's recommended decision. These continued benefits will begin again with the first month of nonpayment based on the prior administrative law judge hearing decision or dismissal order. Our notice explaining continued benefits will also tell you to report to us any changes or events that affect your receipt of benefits. (3) When your case is remanded to an administrative law judge, and if you did not (4) If a court orders that your case be sent back to us (remanded) and your case is sent to an administrative law judge for further action under the rules provided in § 416.1483, the administrative law judge's decision or dismissal order on your medical cessation appeal is vacated and is no longer in effect. You may be eligible for continued benefits pending a new decision by the administrative law judge or final action by the Appeals Council on the administrative law judge's recommended decision. In these court-remanded cases reaching the administrative law judge, we will follow the same rules provided in paragraph (e) (1), (2), and (3) of this section. (f) What if your benefits are suspended, reduced or terminated for other reasons. (g) Responsibility to pay back continued benefits. (2) Waiver of recovery of an overpayment resulting from continued benefits to you may be considered as long as the cessation determination was appealed in good faith. We will assume that your appeal was made in good faith and, therefore, you have the right to waiver consideration unless [53 FR 29023, Aug. 2, 1988; 53 FR 39015, Oct. 4, 1988, as amended at 59 FR 1637, Jan. 12, 1994] § 416.998 If you become disabled by another impairment(s). If a new severe impairment(s) begins in or before the month in which your last impairment(s) ends, we will find that your disability is continuing. The new impairment(s) need not be expected to last 12 months or to result in death, but it must be severe enough to keep you from doing substantial gainful activity, or severe enough so that you are still disabled under § 416.994, or, if you are a child, to result in marked and severe functional limitations. [62 FR 6432, Feb. 11, 1997] § 416.999 What is expedited reinstatement? The expedited reinstatement provision provides you another option for regaining eligibility for benefits when we previously terminated your eligibility for disability benefits due to your work activity. The expedited reinstatement provision provides you the option of requesting that your prior eligibility for disability benefits be reinstated, rather than filing a new application for a new period of eligibility. Since January 1, 2001, you can request to be reinstated to benefits if you stop doing substantial gainful activity within 60 months of your prior termination. You must not be able to do substantial gainful activity because of your medical condition. Your current impairment must be the same as or related to your prior impairment and you must be disabled. To determine if you are disabled, we will use our medical improvement review standard that we use in our continuing disability review process. The advantage of using the medical improvement review standard is that we will generally find that you are disabled unless your impairment has improved so that you are able to work or unless an exception under the medical improvement review standard process applies. We explain the rules for expedited reinstatement in §§ 416.999a through 416.999d. [70 FR 57144, Sept. 30, 2005] § 416.999a Who is eligible for expedited reinstatement? (a) You can have your eligibility to benefits reinstated under expedited reinstatement if— (1) You were previously eligible for a benefit based on disability or blindness as explained in § 416.202; (2) Your disability or blindness eligibility referred to in paragraph (a)(1) of this section was terminated because of earned income or a combination of earned and unearned income; (3) You file your request for reinstatement timely under § 416.999b; and (4) In the month you file your request for reinstatement— (i) You are not able or become unable to do substantial gainful activity because of your medical condition as determined under paragraph (c) of this section. (ii) Your current impairment is the same as or related to the impairment that we used as the basis for your previous eligibility referred to in paragraph (a)(2) of this section, (iii) You are disabled or blind, as determined under the medical improvement review standard in §§ 416.994 or 416.994a, and (iv) You meet the non-medical requirements for eligibility as explained in § 416.202. (b) You are eligible for reinstatement if you are the spouse of an individual who can be reinstated under § 416.999a if— (1) You were previously an eligible spouse of the individual; (2) You meet the requirements for eligibility as explained in § 416.202 except the requirement that you must file an application; and (3) You request reinstatement. (c) We will determine that you are not able to do substantial gainful activity because of your medical condition, under paragraph (a)(4)(i) of this section, when: (1) You certify under § 416.999b(e) that you are unable to do substantial gainful activity because of your medical condition; (2) You are not able or become unable to do substantial gainful activity in the month you file your request for reinstatement; and (3) We determine that you are disabled under paragraph (a)(4)(iii) of this section. [70 FR 57144, Sept. 30, 2005, as amended at 81 FR 71370, Oct. 17, 2016] § 416.999b How do I request reinstatement? (a) You must make your request for reinstatement in writing. (b) You must have filed your request on or after January 1, 2001. (c) You must provide the information we request so that we can determine whether you meet the eligibility requirements listed in § 416.999a. (d) We must receive your request within the consecutive 60-month period that begins with the month in which your eligibility terminated due to earned income, or a combination of earned and unearned income. If we receive your request after the 60-month period, we can grant you an extension if we determine you had good cause, under the standards explained in § 416.1411, for not filing the request timely. (e) You must certify that you are disabled, that your current impairment(s) is the same as or related to the impairment(s) that we used as the basis for the eligibility you are requesting to be reinstated, that you are unable to do substantial gainful activity because of your medical condition, and that you meet the non-medical requirements for eligibility for benefits. [70 FR 57144, Sept. 30, 2005] § 416.999c How do we determine provisional benefits? (a) You may receive up to six consecutive months of provisional cash benefits and Medicaid during the provisional benefit period, while we determine whether we can reinstate your disability benefit eligibility under § 416.999a— (1) We will pay you provisional benefits beginning with the month after you file your request for reinstatement under § 416.999a(a). (2) If you are an eligible spouse, you can receive provisional benefits with the month your spouse's provisional benefits begin. (3) If you do not have an eligible spouse, we will pay you a monthly provisional benefit amount equal to the monthly amount that would be payable to an eligible individual under §§ 416.401 through 416.435 with the same kind and amount of income as you have. (4) If you have an eligible spouse, we will pay you and your spouse a monthly provisional benefit amount equal to the monthly amount that would be payable to an eligible individual and eligible spouse under § 416.401 through 416.435 with the same kind and amount of income as you and your spouse have. (5) Your provisional benefits will not include state supplementary payments payable under §§ 416.2001 through 416.2176. (b) You cannot receive provisional cash benefits or Medicaid a second time under this section when— (1) You request reinstatement under § 416.999a; (2) You previously received provisional cash benefits or Medicaid under this section based upon a prior request for reinstatement filed under § 416.999a(a); and (3) Your requests under paragraphs (b)(1) and (b)(2) are for the same previous disability eligibility referred to in § 416.999a(a)(2) of this section. (4) Examples: Example 1: Mr. K files a request for reinstatement in April 2004. His disability benefit had previously terminated in January 2003. Since Mr. K meets the other factors for possible reinstatement ( i.e. Example 2: Assume the same facts as shown in Example 1 of this section, with the addition of these facts. We approve Mr. K's January 2005 request for reinstatement and start his reinstated benefits beginning February 2005. Mr. K subsequently returns to work and his benefits are again terminated due to his work activity in January 2008. Mr. K again stops work and requests reinstatement in January 2010. Since Mr. K meets the other factors for possible reinstatement ( i.e. (c) We will not pay you a provisional benefit for a month where you are not eligible for a payment under §§ 416.1322, 416.1323, 416.1325, 416.1327, 416.1329, 416.1330, 416.1334, and 416.1339. (d) We will not pay you a provisional benefit for any month that is after the earliest of either: the month we send you notice of our determination on your request for reinstatement; or, the sixth month following the month you requested expedited reinstatement. (e) You are not eligible for provisional benefits if— (1) Prior to starting your provisional benefits we determine that you do not meet the requirements for reinstatement under §§ 416.999a(a); or (2) We determine that your statements on your request for reinstatement, made under § 416.999b(d)(2), are false. (f) Determinations we make regarding your provisional benefits under paragraphs (a) through (e) of this section are final and are not subject to administrative and judicial review under subpart N of part 416. (g) If you were previously overpaid benefits under title II or title XVI of the Act, we will not recover the overpayment from your provisional benefits unless you give us permission. (h) If we determine you are not eligible to receive reinstated benefits, provisional benefits we have already paid you under this section that were made prior to the termination month under paragraph (d) of this section will not be subject to recovery as an overpayment unless we determine that you knew, or should have known, you did not meet the requirements for reinstatement in § 416.999a. If we inadvertently pay you provisional benefits when you are not entitled to them because we have already made a determination described in paragraph (e) of this section, they will be subject to recover as an overpayment under subpart E of part 416. [70 FR 57144, Sept. 30, 2005] § 416.999d How do we determine reinstated benefits? (a) If you meet the requirements for reinstatement under § 416.999a(a), we will reinstate your benefits with the month after the month you filed your request for reinstatement. We cannot reinstate your eligibility for any month prior to February 2001. (b) We will compute your reinstated benefit amount and determine benefits payable under the applicable paragraphs in §§ 416.401 through 416.435. We will reduce your reinstated benefit due in a month by a provisional benefit we already paid you for that month. If your provisional benefit paid for a month equals or exceeds the reinstated benefit due, we will treat the difference as an overpayment under § 416.536. (c) Once you have been reinstated under § 416.999a you cannot be reinstated again until you have completed a 24-month initial reinstatement period. Your initial reinstatement period begins with the month your reinstated benefits begin under paragraph (a) of this section and ends when you have had 24 payable months of reinstated benefits. We consider you to have a payable month for the purposes of this paragraph when you are due a cash benefit of any amount for the month based upon our normal computation and payment rules in § 416.401 through § 416.435 or if you are considered to be receiving SSI benefits in a month under section 1619(b) of the Social Security Act. If your entire benefit payment due you for a month is adjusted for recovery of an overpayment under §§ 416.570 and 416.571 or if the amount of the provisional benefit already paid you for a month exceeds the amount of the reinstated benefit payable for that month so that no additional payment is due, we will consider the month a payable month. (d) Your eligibility for reinstated benefits ends with the month preceding the earliest of the following months— (1) The month an applicable terminating event in §§ 416.1331 through 416.1339 occurs; (2) The third month following the month in which your disability ceases; or (3) The month in which you die. (e) Determinations we make under this section are initial determinations under § 416.1402 and are subject to review under subpart N of part 416. (f) If we determine you are not eligible for reinstated benefits, we will consider your request filed under § 416.999a(a) your intent to claim benefits under § 416.340. [70 FR 57144, Sept. 30, 2005] Subpart J—Determinations of Disability Authority: Secs. 702(a)(5), 1614, 1631, and 1633 of the Social Security Act (42 U.S.C. 902(a)(5), 1382c, 1383, and 1383b). Source: 46 FR 29211, May 29, 1981, unless otherwise noted. General Provisions § 416.1001 Purpose and scope. This subpart describes the standards of performance and administrative requirements and procedures for States making determinations of disability for the Commissioner under title XVI of the Act. It also establishes the Commissioner's responsibilities in carrying out the disability determination function. (a) Sections 416.1001 through 416.1003 describe the purpose of the regulations and the meaning of terms frequently used in the regulations. They also briefly set forth the responsibilities of the Commissioner and the States covered in detail in other sections. (b) Sections 416.1010 through 416.1018 describe the Commissioner's and the State's responsibilities in performing the disability determination function. (c) Sections 416.1020 through 416.1033 describe the administrative responsibilities and requirements of the States. The corresponding role of the Commissioner is also set out. (d) Sections 416.1040 through 416.1050 describe the performance accuracy and processing time standards for measuring State agency performance. (e) Sections 416.1060 through 416.1061 describe when and what kind of assistance the Commissioner will provide State agencies to help them improve performance. (f) Sections 416.1070 through 416.1075 describe the level of performance below which the Commissioner will consider a State agency to be substantially failing to make disability determinations consistent with the regulations and other written guidelines and the resulting action the Commissioner will take. (g) Sections 416.1080 through 416.1083 describe the rules for resolving disputes concerning fiscal issues and providing hearings when we propose to find that a State is in substantial failure. (h) Sections 416.1090 through 416.1094 describe when and what action the Commissioner will take and what action the State will be expected to take if the Commissioner assumes the disability determination function from a State agency. [46 FR 29211, May 29, 1981, as amended at 62 FR 38454, July 18, 1997; 71 FR 16461, Mar. 31, 2006; 76 FR 24812, May 3, 2011] § 416.1002 Definitions. For purposes of this subpart: Act Class or classes of cases Commissioner Compassionate allowance Determination of disability disability determination (a) Whether or not a person is under a disability; (b) The date a person's disability began; or (c) The date a person's disability ended. Disability disability blindness Disability determination function Disability program Initial Other written guidelines Quick disability determination Regulations State State agency We, us, our [46 FR 29211, May 29, 1981, as amended at 56 FR 11021, Mar. 14, 1991; 62 FR 38454, July 18, 1997; 72 FR 51178, Sept. 6, 2007; 75 FR 62683, Oct. 13, 2010] § 416.1003 Basic responsibilities for us and the State. (a) General. (b) Our responsibilities. (1) Periodically review the regulations and other written guidelines to determine whether they insure effective and uniform administration of the disability program. To the extent feasible, we will consult with and take into consideration the experience of the States in issuing regulations and guidelines necessary to insure effective and uniform administration of the disability program; (2) Provide training materials or in some instances conduct or specify training (see § 416.1022); (3) Provide funds to the State agency for the necessary cost of performing the disability determination function (see § 416.1026); (4) Monitor and evaluate the performance of the State agency under the established standards (see §§ 416.1044 and 416.1045); and (5) Maintain liaison with the medical profession nationally and with national organizations and agencies whose interests or activities may affect the disability program. (c) Responsibilities of the State. (1) Provide management needed to insure that the State agency carries out the disability determination function so that disability determinations are made accurately and promptly; (2) Provide an organizational structure, adequate facilities, qualified personnel, medical consultant services, designated quick disability determination examiners (§§ 416.1019 and 416.1020(c)), and a quality assurance function (§§ 416.1020 through 416.1024); (3) Furnish reports and records relating to the administration of the disability program (§ 416.1025); (4) Submit budgets (§ 416.1026); (5) Cooperate with audits (§ 416.1027); (6) Insure that all applicants for and recipients of disability benefits are treated equally and courteously; (7) Be responsible for property used for disability program purposes (§ 416.1028); (8) Take part in the research and demonstration projects (§ 416.1029); (9) Coordinate with other agencies (§ 416.1030); (10) Safeguard the records created by the State in performing the disability determination function (§ 416.1031); (11) Comply with other provisions of the Federal law and regulations that apply to the State in performing the disability determination function; (12) Comply with other written guidelines (§ 416.1033); (13) Maintain liaison with the medical profession and organizations that may facilitate performing the disability determination function; and (14) Assist us in other ways that we determine may promote the objectives of effective and uniform administration. [46 FR 29211, May 29, 1981, as amended at 72 FR 51178, Sept. 6, 2007] Responsibilities for Performing the Disability Determination Function § 416.1010 How a State notifies us that it wishes to perform the disability determination function. (a) Deemed notice. (b) Written notice. § 416.1011 How we notify a State whether it may perform the disability determination function. (a) If a State notifies us in writing that it wishes to perform the disability determination function, we will notify the State in writing whether or not it may perform the function. The State will begin performing the disability determination function beginning with the month we and the State agree upon. (b) If we have previously found that a State agency has substantially failed to make disability determinations in accordance with the law or these regulations and other written guidelines or if the State has previously notified us in writing that it does not wish to make disability determinations, the notice will advise the State whether the State agency may again make the disability determinations and, if so, the date and the conditions under which the State may again make them. § 416.1013 Disability determinations the State makes. (a) General rule. (b) New classes of cases. (c) Temporary transfer of classes of cases. [46 FR 29211, May 29, 1981, as amended at 62 FR 38455, July 18, 1997] § 416.1014 Responsibilities for obtaining evidence to make disability determinations. (a) We or the State agency will secure from the claimant or other sources any evidence the State agency needs to make a disability determination. When we secure the evidence, we will furnish it to the State agency for use in making the disability determination. (b) At our request, the State agency will obtain and furnish medical or other evidence and provide assistance as may be necessary for us to carry out our responsibility for making disability determinations in those classes of cases described in the written guidelines for which the State agency does not make the determination. [46 FR 29211, May 29, 1981, as amended at 79 FR 33683, June 12, 2014] § 416.1015 Making disability determinations. (a) When making a disability determination, the State agency will apply subpart I, part 416, of our regulations. (b) The State agency will make disability determinations based only on the medical and nonmedical evidence in its files. (c) Disability determinations will be made by: (1) A State agency medical or psychological consultant and a State agency disability examiner; (2) A State agency disability examiner alone when there is no medical evidence to be evaluated ( i.e. (3) A State agency disability examiner alone if you are not a child (a person who has not attained age 18), and the claim is adjudicated under the quick disability determination process (see § 416.1019) or the compassionate allowance process (see § 416.1002), and the initial or reconsidered determination is fully favorable to you. This paragraph (c)(3) will no longer be effective on December 28, 2018 unless we terminate it earlier by publication of a final rule in the Federal Register (4) A State agency disability hearing officer. See § 416.1016 for the definition of medical or psychological consultant and § 416.1415 for the definition of disability hearing officer. The State agency disability examiner and disability hearing officer must be qualified to interpret and evaluate medical reports and other evidence relating to the claimant's physical or mental impairments and as necessary to determine the capacities of the claimant to perform substantial gainful activity. See § 416.972 for what we mean by substantial gainful activity. (d) In making a determination under title XVI with respect to the disability of a child to whom paragraph (d) of this section does not apply, we will make reasonable efforts to ensure that a qualified pediatrician or other individual who specializes in a field of medicine appropriate to the child's impairment(s) evaluates the case of the child. (e) The State agency will certify each determination of disability to us on forms we provide. (f) The State agency will furnish us with all the evidence it considered in making its determination. (g) The State agency will not be responsible for defending in court any determination made, or any procedure for making determinations, under these regulations. [52 FR 23928, Sept. 9, 1987, as amended at 56 FR 11021, Mar. 14, 1991; 58 FR 47587, Sept. 9, 1993; 61 FR 11136, Mar. 19, 1996; 62 FR 38455, July 18, 1997; 65 FR 34959, June 1, 2000; 75 FR 62684, Oct. 13, 2010; 78 FR 66639, Nov. 6, 2013; 79 FR 51243, Aug. 28, 2014; 80 FR 63093, Oct. 19, 2015; 81 FR 73028, Oct. 24, 2016; 82 FR 5883, Jan. 18, 2017] § 416.1016 Medical consultants and psychological consultants. (a) What is a medical consultant? (b) What qualifications must a medical consultant have? (c) What is a psychological consultant? (d) What qualifications must a psychological consultant have? (1) Is licensed or certified as a psychologist at the independent practice level of psychology by the State in which he or she practices; and (2)(i) Possesses a doctorate degree in psychology from a program in clinical psychology of an educational institution accredited by an organization recognized by the Council on Post-Secondary Accreditation; or (ii) Is listed in a national register of health service providers in psychology which the Commissioner of Social Security deems appropriate; and (3) Possesses 2 years of supervised clinical experience as a psychologist in health service, at least 1 year of which is post-masters degree. (e) Cases involving both physical and mental impairments. [82 FR 5883, Jan. 18, 2017] § 416.1017 Reasonable efforts to obtain review by a physician, psychiatrist, and psychologist. (a) When the evidence of record indicates the existence of a physical impairment, the State agency must make every reasonable effort to ensure that a medical consultant completes the medical portion of the case review and any applicable residual functional capacity assessment. When the evidence of record indicates the existence of a mental impairment, the State agency must make every reasonable effort to ensure that a psychological consultant completes the medical portion of the case review and any applicable residual functional capacity assessment. The State agency must determine if additional physicians, psychiatrists, and psychologists are needed to make the necessary reviews. When it does not have sufficient resources to make the necessary reviews, the State agency must attempt to obtain the resources needed. If the State agency is unable to obtain additional physicians, psychiatrists, and psychologists because of low salary rates or fee schedules, it should attempt to raise the State agency's levels of compensation to meet the prevailing rates for these services. If these efforts are unsuccessful, the State agency will seek assistance from us. We will assist the State agency as necessary. We will also monitor the State agency's efforts and where the State agency is unable to obtain the necessary services, we will make every reasonable effort to provide the services using Federal resources. (b) Federal resources may include the use of Federal contracts for the services of qualified psychiatrists and psychologists to review mental impairment cases. Where Federal resources are required to perform these reviews, which are a basic State agency responsibility, and where appropriate, the State agency's budget will be reduced accordingly. (c) Where every reasonable effort is made to obtain the services of a qualified psychiatrist or psychologist to review a mental impairment case, but the professional services are not obtained, a physician who is not a psychiatrist will review the mental impairment case. For these purposes, every reasonable effort to ensure that a qualified psychiatrist or psychologist review mental impairment cases will be considered to have been made only after efforts by both State and Federal agencies as set forth in paragraphs (a) and (b) of this section are made. [52 FR 23928, Sept. 9, 1987, as amended at 82 FR 5883, Jan. 18, 2017] § 416.1018 Notifying claimant of the disability determination. The State agency will prepare denial notices in accordance with subpart N of this part whenever it makes a disability determination which is fully or partially unfavorable to the claimant. [46 FR 29211, May 29, 1981, as amended at 75 FR 33169, June 11, 2010] Quick Disability Determinations § 416.1019 Quick disability determination process. (a) If we identify a claim as one involving a high degree of probability that the individual is disabled, and we expect that the individual's allegations will be easily and quickly verified, we will refer the claim to the State agency for consideration under the quick disability determination process pursuant to this section and § 416.1020(c). (b) If we refer a claim to the State agency for a quick disability determination, a designated quick disability determination examiner must do all of the following: (1) Subject to the provisions in paragraph (c) of this section, make the disability determination after consulting with a State agency medical or psychological consultant if the State agency disability examiner determines consultation is appropriate or if consultation is required under § 416.926(c). The State agency may certify the disability determination forms to us without the signature of the medical or psychological consultant. (2) Make the quick disability determination based only on the medical and nonmedical evidence in the file. (3) Subject to the provisions in paragraph (c) of this section, make the quick disability determination by applying the rules in subpart I of this part. (c) If the quick disability determination examiner cannot make a determination that is fully favorable, or if there is an unresolved disagreement between the disability examiner and the medical or psychological consultant (except when a disability examiner makes the determination alone under § 416.1015(c)(3)), the State agency will adjudicate the claim using the regularly applicable procedures in this subpart. [72 FR 51178, Sept. 6, 2007, as amended at 75 FR 62684, Oct. 13, 2010] Administrative Responsibilities and Requirements § 416.1020 General administrative requirements. (a) The State will provide the organizational structure, qualified personnel, medical consultant services, and a quality assurance function sufficient to ensure that disability determinations are made accurately and promptly. We may impose specific administrative requirements in these areas and in those under “Administrative Responsibilities and Requirements” in order to establish uniform, national administrative practices or to correct the areas of deficiencies which may later cause the State to be substantially failing to comply with our regulations or other written guidelines. We will notify the State, in writing, of the administrative requirements being imposed and of any administrative deficiencies it is required to correct. We will allow the State 90 days from the date of this notice to make appropriate corrections. Once corrected, we will monitor the State's administrative practices for 180 days. If the State does not meet the requirements or correct all of the deficiencies, or, if some of the deficiencies recur, we may initiate procedures to determine if the State is substantially failing to follow our regulations or other written guidelines. (b) The State is responsible for making accurate and prompt disability determinations. (c) Each State agency will designate experienced disability examiners to handle claims we refer to it under § 416.1019(a). [46 FR 29211, May 29, 1981, as amended at 56 FR 11021, Mar. 14, 1991; 56 FR 13365, Apr. 1, 1991; 72 FR 51178, Sept. 6, 2007] § 416.1021 Personnel. (a) Equal Employment Opportunity. (b) Selection, tenure, and compensation. (c) Travel. (d) Restrictions. § 416.1022 Training. The State will insure that all employees have an acceptable level of competence. We will provide training and other instructional materials to facilitate basic and advanced technical proficiency of disability staff in order to insure uniformity and effectiveness in the administration of the disability program. We will conduct or specify training, as appropriate but only if: (a) A State agency's performance approaches unacceptable levels or (b) The material required for the training is complex or the capacity of the State to deliver the training is in doubt and uniformity of the training is essential. § 416.1023 Facilities. (a) Space, equipment, supplies, and other services. (b) Location of facilities. (c) Access. [46 FR 29211, May 29, 1981, as amended at 56 FR 11022, Mar. 14, 1991] § 416.1024 Medical and other purchased services. The State will determine the rates of payment for purchasing medical or other services necessary to make determinations of disability. The rates may not exceed the highest rate paid by Federal or other agencies in the State for the same or similar type of service. The State will maintain documentation to support the rates of payment it uses. [46 FR 29211, May 29, 1981, as amended at 71 FR 16461, Mar. 31, 2006; 76 FR 24812, May 3, 2011] § 416.1025 Records and reports. (a) The State will establish and maintain the records and furnish the schedules, financial, cost, and other reports relating to the administration of the disability programs as we may require. (b) The State will permit us and the Comptroller General of the United States (including duly authorized representatives) access to and the right to examine records relating to the work which the State performs under these regulations. These records will be retained by the State for the periods of time specified for retention of records in the Federal Procurement Regulations (41 CFR parts 1-20). § 416.1026 Fiscal. (a) We will give the State funds, in advance or by way of reimbursement, for necessary costs in making disability determinations under these regulations. Necessary costs are direct as well as indirect costs as defined in 41 CFR part 1-15, subpart 1-15.7 of the Federal Procurement Regulations System for costs incurred before April 1, 1984; and 48 CFR part 31, subpart 31.6 of the Federal Acquisition Regulations System and Federal Management Circular A-74-4 1 1 (b) The State will submit estimates of anticipated costs in the form of a budget at the time and in the manner we require. (c) We will notify the State of the amount which will be made available to it as well as what anticipated costs are being approved. (d) The State may not incur or make expenditures for items of cost not approved by us or in excess of the amount we make available to the State. (e) After the close of a period for which funds have been made available to the State, the State will submit a report of its expenditures. Based on an audit arranged by the State under Pub. L. 98-502, the Single Audit Act of 1984, or by the Inspector General of the Social Security Administration or based on an audit or review by the Social Security Administration (see § 416.1027), we will determine whether the expenditures were consistent with cost principles described in 41 CFR part 1-15, subpart 1-15.7 for costs incurred before April 1, 1984; and 48 CFR part 31, subpart 31.6 and Federal Management Circular A-74-4 for costs incurred after March 31, 1984; and in other applicable written guidelines in effect at the time the expenditures were made or incurred. (f) Any monies paid to the State which are used for purposes not within the scope of these regulations will be paid back to the Treasury of the United States. [46 FR 29211, May 29, 1981, as amended at 56 FR 11022, Mar. 14, 1991; 62 FR 38455, July 18, 1997] § 416.1027 Audits. (a) Audits performed by the State Generally. (2) Questioned items. (3) State appeal of audit determinations. (b) Audits performed by the Commissioner Generally. (2) Questioned items. (3) State appeal of audit determinations. [56 FR 11022, Mar. 14, 1991, as amended at 62 FR 38455, July 18, 1997] § 416.1028 Property. The State will have title to equipment purchased for disability program purposes. The State will be responsible for maintaining all property it acquires or which we furnish to it for performing the disability determination function. The State will identify the equipment by labeling and by inventory and will credit the SSA account with the fair market value of disposed property. In the event we assume the disability determination function from a State, ownership of all property and equipment acquired with SSA funds will be transferred to us effective on the date the State is notified that we are assuming the disability determination function or we are notified that the State is terminating the relationship. § 416.1029 Participation in research and demonstration projects. We will invite State participation in federally funded research and demonstration projects to assess the effectiveness of the disability program and to ascertain the effect of program policy changes. Where we determine that State participation is necessary for the project to be complete, for example, to provide national uniformity in a claims process, State participation is mandatory. § 416.1030 Coordination with other agencies. (a) The State will establish cooperative working relationships with other agencies concerned with serving the disabled and, insofar as practicable, use their services, facilities, and records to: (1) Assist the State in developing evidence and making determinations of disability; and (2) Insure that referral of disabled or blind persons for rehabilitation services will be carried out effectively. (b) The State may pay these agencies for the services, facilities, or records they provide. The State will include these costs in its estimates of anticipated costs and reports of actual expenditures. § 416.1031 Confidentiality of information and records. The State will comply with the confidentiality of information, including the security of systems, and records requirements described in 20 CFR part 401 and pertinent written guidelines (see § 416.1033). § 416.1032 Other Federal laws and regulations. The State will comply with the provisions of other Federal laws and regulations that directly affect its responsibilities in carrying out the disability determination function; for example, Treasury Department regulations on letters of credit (31 CFR part 205). § 416.1033 Policies and operating instructions. (a) We will provide the State agency with written guidelines necessary for it to carry out its responsibilities in performing the disability determination function. (b) The State agency making determinations of disability will comply with our written guidelines that are not designated as advisory or discretionary. (See § 416.1002 for what we mean by written guidelines.) (c) A representative group of State agencies will be given an opportunity to participate in formulating disability program policies that have an effect on their role in carrying out the disability determination function. State agencies will also be given an opportunity to comment before changes are made in written guidelines unless delay in issuing a change may impair service to the public. [46 FR 29211, May 29, 1981, as amended at 56 FR 11023, Mar. 14, 1991] Performance Standards § 416.1040 General. The following sections provide the procedures and guidelines we use to determine whether the State agency is substantially complying with our regulations and other written guidelines, including meeting established national performance standards. We use performance standards to help assure effective and uniform administration of our disability program and to measure whether the performance of the disability determination function by each State agency is acceptable. Also, the standards are designed to improve overall State agency performance in the disability determination process and to ensure that benefits are made available to all eligible persons in an accurate and efficient manner. We measure the performance of a State agency in two areas—processing time and quality of documentation and decisions on claims. State agency compliance is also judged by State agency adherence to other program requirements. [56 FR 11023, Mar. 14, 1991] § 416.1041 Standards of performance. (a) General. (b) The target level. (c) The threshold level. (d) Intermediate goals. [46 FR 29211, May 29, 1981, as amended at 56 FR 11023, Mar. 14, 1991; 62 FR 38455, July 18, 1997] § 416.1042 Processing time standards. (a) General. (b) Target levels. (1) 37 days for title II initial claims. (2) 43 days for title XVI initial claims. (c) Threshold levels. (1) 49.5 days for title II initial claims. (2) 57.9 days for title XVI initial claims. [46 FR 29211, May 29, 1981, as amended at 56 FR 11023, Mar. 14, 1991] § 416.1043 Performance accuracy standard. (a) General. (b) Target level. (c) Intermediate goals. (d) Threshold levels. § 416.1044 How and when we determine whether the processing time standards are met. (a) How we determine processing times. (b) Frequency of review. [46 FR 29211, May 29, 1981, as amended at 56 FR 11023, Mar. 14, 1991] § 416.1045 How and when we determine whether the performance accuracy standard is met. (a) How we determine performance accuracy. (b) Frequency of review. § 416.1050 Action we will take if a State agency does not meet the standards. If a State agency does not meet two of the three established threshold levels (one of which must be performance accuracy) for two or more consecutive calendar quarters, we will notify the State agency in writing that it is not meeting the standards. Following our notification, we will provide the State agency appropriate performance support described in §§ 416.1060, 416.1061 and 416.1062 for a period of up to 12 months. [56 FR 11023, Mar. 14, 1991] Performance Monitoring and Support § 416.1060 How we will monitor. We will regularly analyze State agency combined title II and title XVI initial performance accuracy rate, title II initial processing time, and title XVI initial processing time. Within budgeted resources, we will also routinely conduct fiscal and administrative management reviews and special onsite reviews. A fiscal and administrative management review is a fact-finding mission to review particular aspects of State agency operations. During these reviews we will also review the quality assurance function. This regular monitoring and review program will allow us to determine the progress each State is making and the type and extent of performance support we will provide to help the State progress toward threshold, intermediate, and/or target levels. [56 FR 11023, Mar. 14, 1991] § 416.1061 When we will provide performance support. (a) Optional support. (b) Mandatory support. (2) We may also decide to provide a State agency with mandatory performance support if regular monitoring and review reveal that any one of the three threshold levels is not met for two consecutive calendar quarters. Support will be provided based on available resources. (3) The threshold levels are: (i) Combined title II and title XVI initial performance accuracy rate—90.6 percent, (ii) Title II initial processing time—49.5 days, and (iii) Title XVI initial processing time—57.9 days. [56 FR 11023, Mar. 14, 1991] § 416.1062 What support we will provide. Performance support may include, but is not limited to, any or all of the following: (a) An onsite review of cases processed by the State agency emphasizing adherence to written guidelines. (b) A request that necessary administrative measures be implemented (e.g., filling staffing vacancies, using overtime, assisting with training activities, etc.). (c) Provisions for Federal personnel to perform onsite reviews, conduct training, or perform other functions needed to improve performance. (d) Provisions for fiscal aid to allow for overtime, temporary hiring of additional staff, etc., above the authorized budget. [56 FR 11024, Mar. 14, 1991] Substantial Failure § 416.1070 General. After a State agency falls below two of three established threshold levels, one being performance accuracy, for two consecutive quarters, and after the mandatory performance support period, we will give the State agency a 3-month adjustment period. During this 3-month period we will not require the State agency to meet the threshold levels. Following the adjustment period, if the State agency again falls below two of three threshold levels, one being performance accuracy, in two consecutive quarters during the next 12 months, we will notify the State that we propose to find that the State agency has substantially failed to comply with our standards and advise it that it may request a hearing on that issue. After giving the State notice and an opportunity for a hearing, if it is found that a State agency has substantially failed to make disability determinations consistent with the Act, our regulations, or other written guidelines, we will assume partial or complete responsibility for performing the disability determination function after we have complied with §§ 416.1090 and 416.1092. [56 FR 11024, Mar. 14, 1991] § 416.1071 Good cause for not following the Act, our regulations, or other written guidelines. If a State has good cause for not following the Act, our regulations, or other written guidelines, we will not find that the State agency has substantially failed to meet our standards. We will determine if good cause exists. Some of the factors relevant to good cause are: (a) Disasters such as fire, flood, or civil disorder, that— (1) Require the diversion of significant personnel normally assigned to the disability determination function, or (2) Destroyed or delayed access to significant records needed to make accurate disability determinations; (b) Strikes of State agency staff or other government or private personnel necessary to the performance of the disability determination function; (c) Sudden and unanticipated workload changes which result from changes in Federal law, regulations, or written guidelines, systems modification or systems malfunctions, or rapid, unpredictable caseload growth for a 6-month period or longer. [56 FR 11024, Mar. 14, 1991] § 416.1075 Finding of substantial failure. A finding of substantial failure with respect to a State may not be made unless and until the State is afforded an opportunity for a hearing. Hearings and Appeals § 416.1080 Notice of right to hearing on proposed finding of substantial failure. If, following the mandatory performance support period and the 3-month adjustment period, a State agency again falls below two of three threshold levels (one being performance accuracy) in two consecutive quarters in the succeeding 12 months, we will notify the State in writing that we will find that the State agency has substantially failed to meet our standards unless the State submits a written request for a hearing with the Department of Health and Human Services' Departmental Appeals Board within 30 days after receiving the notice. The notice will identify the threshold levels that were not met by the State agency, the period during which the thresholds were not met, and the accuracy and processing time levels attained by the State agency during this period. If a hearing is not requested, the State agency will be found to have substantially failed to meet our standards, and we will implement our plans to assume the disability determination function. [56 FR 11024, Mar. 14, 1991] § 416.1081 Disputes on matters other than substantial failure. Disputes concerning monetary disallowances will be resolved in proceedings before the Department of Health and Human Services, Departmental Appeals Board if the issue cannot be resolved between us and the State. Disputes other than monetary disallowances will be resolved through an appeal to the Commissioner of Social Security, who will make the final decision. (See § 416.1027.) [56 FR 11024, Mar. 14, 1991] § 416.1082 Who conducts the hearings. If a hearing is required, it will be conducted by the Department of Health and Human Services' Departmental Appeals Board (the Board). [46 FR 29211, May 29, 1981, as amended at 62 FR 38455, July 18, 1997] § 416.1083 Hearings and appeals process. The rules for hearings and appeals before the Board are provided in 45 CFR part 16. A notice under § 416.1080 of this subpart will be considered a “final written decision” for purposes of Board review. Assumption of Disability Determination Function § 416.1090 Assumption when we make a finding of substantial failure. (a) Notice to State. (b) Effective date of assumption. § 416.1091 Assumption when State no longer wishes to perform the disability determination function. (a) Notice to the Commissioner. (b) Effective date of assumption. [46 FR 29211, May 29, 1981, as amended at 62 FR 38455, July 18, 1997] § 416.1092 Protection of State employees. (a) Hiring preference. (b) Determination by Secretary of Labor. § 416.1093 Limitation on State expenditures after notice. The State agency may not, after it receives the notice referred to in § 416.1090, or gives the notice referred to in § 416.1091, make any new commitments to spend funds allocated to it for performing the disability determination function without the approval of the appropriate SSA regional commissioner. The State will make every effort to close out as soon as possible all existing commitments that relate to performing the disability determination function. § 416.1094 Final accounting by the State. The State will submit its final claims to us as soon as possible, but in no event later than 1 year from the effective date of our assumption of the disability determination function unless we grant an extension of time. When the final claim(s) is submitted, a final accounting will be made by the State of any funds paid to the State under § 416.1026 which have not been spent or committed prior to the effective date of our assumption of the disability determination function. Disputes concerning final accounting issues which cannot be resolved between the State and us will be resolved in proceedings before the Grant Appeals Board as described in 45 CFR part 416. Subpart K—Income Authority: 42 U.S.C. 902(a)(5), 1381a, 1382, 1382a, 1382b, 1382c(f), 1382j, 1383, and 1383b; sec. 211, Pub. L. 93-66, 87 Stat. 154 (42 U.S.C. 1382 note). Source: 45 FR 65547, Oct. 3, 1980, unless otherwise noted. General § 416.1100 Income and SSI eligibility. You are eligible for supplemental security income (SSI) benefits if you are an aged, blind, or disabled person who meets the requirements described in subpart B and who has limited income and resources. Thus, the amount of income you have is a major factor in deciding whether you are eligible for SSI benefits and the amount of your benefit. We count income on a monthly basis. Generally, the more income you have the less your benefit will be. If you have too much income, you are not eligible for a benefit. However, we do not count all of your income to determine your eligibility and benefit amount. We explain in the following sections how we treat your income for the SSI program. These rules apply to the Federal benefit and to any optional State supplement paid by us on behalf of a State (§ 416.2025) except as noted in subpart T and in the Federal-State agreements with individual States. While this subpart explains how we count income, subpart D of these regulations explains how we determine your benefits, including the provision that we generally use countable income in a prior month to determine how much your benefit amount will be for a month in which you are eligible (§ 416.420). [50 FR 48573, Nov. 26, 1985] § 416.1101 Definition of terms. As used in this subpart— Calendar quarter Child Couple Current market value Federal benefit rate Institution Spouse We, Us, Our You Your [45 FR 65547, Oct. 3, 1980, as amended at 50 FR 48573, Nov. 26, 1985; 51 FR 10616, Mar. 28, 1986; 60 FR 16375, Mar. 30, 1995] § 416.1102 What is income? Income is anything that you receive in cash or in-kind that you can use to meet your needs for food or shelter. For purposes of this definition, income may be received actually or constructively. Income is received constructively, unless there are significant restrictions on your ability to receive it, if it is under your control or you can use it despite not actually receiving it. Sometimes income also includes more or less than you actually receive (see §§ 416.1110 and 416.1123(b)). In-kind income is not cash but is something else that you can use to meet your needs for food or shelter. Exception: Food is not included in the calculations of in-kind support and maintenance, which is a type of unearned income that we have special rules for valuing (see §§ 416.1130 through 416.1148). [89 FR 21209, Mar. 27, 2024] § 416.1103 What is not income? Some things you receive are not income because you cannot use them as food or shelter, or use them to obtain food or shelter. In addition, what you receive from the sale or exchange of your own property is not income; it remains a resource. The following are some items that are not income: (a) Medical care and services. (1) Given to you free of charge or paid for directly to the provider by someone else; (2) Room and board you receive during a medical confinement; (3) Assistance provided in cash or in kind (including food or shelter) under a Federal, State, or local government program whose purpose is to provide medical care or medical services (including vocational rehabilitation); (4) In-kind assistance (except shelter) provided under a nongovernmental program whose purpose is to provide medical care or medical services; (5) Cash provided by any nongovernmental medical care or medical services program or under a health insurance policy (except cash to cover food or shelter) if the cash is either: (i) Repayment for program-approved services you have already paid for; or (ii) A payment restricted to the future purchase of a program-approved service. Example: If you have paid for prescription drugs and get the money back from your health insurance, the money is not income. (6) Direct payment of your medical insurance premiums by anyone on your behalf. (7) Payments from the Department of Veterans Affairs resulting from unusual medical expenses. (b) Social services. (1) Assistance provided in cash or in kind (but not received in return for a service you perform) under any Federal, State, or local government program whose purpose is to provide social services including vocational rehabilitation (Example: Cash given you by the Department of Veterans Affairs to purchase aid and attendance); (2) In-kind assistance (except shelter) provided under a nongovernmental program whose purpose is to provide social services; or (3) Cash provided by a nongovernmental social services program (except cash to cover food or shelter) if the cash is either: (i) Repayment for program-approved services you already have paid for; or (ii) A payment restricted to the future purchase of a program-approved service. Example: If you are unable to do your own household chores and a private social services agency provides you with cash to pay a homemaker the cash is not income. (c) Receipts from the sale, exchange, or replacement of a resource. Example: If you sell your automobile, the money you receive is not income; it is another form of a resource. (d) Income tax refunds. (e) Payments by credit life or credit disability insurance. Example: If a credit disability policy pays off the mortgage on your home after you become disabled in an accident, we do not consider either the payment or your increased equity in the home to be income. (f) Proceeds of a loan. (g) Bills paid for you. Examples: (h) Replacement of income you have already received. Example: If your paycheck is stolen and you get a replacement check, we count the first check as income. The replacement check is not income. (i) Weatherization assistance. (j) Receipt of certain noncash items. Example 1: Example 2: [45 FR 65547, Oct. 3, 1980, as amended at 49 FR 48038, Dec. 10, 1984; 57 FR 53850, Nov. 13, 1992; 59 FR 33907, July 1, 1994; 70 FR 6344, Feb. 7, 2005; 89 FR 21209, Mar. 27, 2024] § 416.1104 Income we count. We have described generally what income is and is not for SSI purposes (§ 416.1103). There are different types of income, earned and unearned, and we have rules for counting each. The earned income rules are described in §§ 416.1110 through 416.1112 and the unearned income rules are described in §§ 416.1120 through 416.1124. One type of unearned income is in-kind support and maintenance (shelter), which we value depending on your living arrangement. These rules are described in §§ 416.1130 through 416.1148 of this part. In some situations we must consider the income of certain people with whom you live as available to you and part of your income. These rules are described in §§ 416.1160 through 416.1169. We use all of these rules to determine the amount of your countable income—the amount that is left after we subtract what is not income or is not counted. [45 FR 65547, Oct. 3, 1980, as amended at 65 FR 16815, Mar. 30, 2000; 70 FR 6345, Feb. 7, 2005; 89 FR 21209, Mar. 27, 2024] Earned Income § 416.1110 What is earned income. Earned income may be in cash or in kind. We may include more of your earned income than you actually receive. We include more than you actually receive if amounts are withheld from earned income because of a garnishment or to pay a debt or other legal obligation, or to make any other payments. Earned income consists of the following types of payments: (a) Wages Wages paid in cash—general. See (2) Wages paid in cash to uniformed service members. (3) Wages paid in kind. (b) Net earnings from self-employment. See (c) Refunds of Federal income taxes and advance payments by employers made in accordance with the earned income credit provisions of the Internal Revenue Code. refunds (d) Payments for services performed in a sheltered workshop or work activities center. (e) Certain royalties and honoraria. [45 FR 65547, Oct. 3, 1980, as amended at 48 FR 23179, May 24, 1983; 50 FR 48574, Nov. 26, 1985; 56 FR 3212, Jan. 29, 1991; 59 FR 43471, Aug. 24, 1994; 75 FR 1273, Jan. 11, 2010; 75 FR 54287, Sept. 7, 2010] § 416.1111 How we count earned income. (a) Wages. (b) Net earnings from self-employment. (c) Payments for services in a sheltered workshop or activities center. (d) In-kind earned income. (e) Royalties and honoraria. [45 FR 65547, Oct. 3, 1980, as amended at 48 FR 23179, May 24, 1983; 48 FR 30357, July 1, 1983; 50 FR 48574, Nov. 26, 1985; 58 FR 63889, Dec. 3, 1993; 59 FR 43471, Aug. 24, 1994; 71 FR 45378, Aug. 9, 2006] § 416.1112 Earned income we do not count. (a) General. (b) Other Federal laws. (c) Other earned income we do not count. (1) Any refund of Federal income taxes you receive under section 32 of the Internal Revenue Code (relating to earned income tax credit) and any payment you receive from an employer under section 3507 of the Internal Revenue Code (relating to advance payment of earned income tax credit); (2) The first $30 of earned income received in a calendar quarter if you receive it infrequently or irregularly. We consider income to be received infrequently if you receive it only once during a calendar quarter from a single source and you did not receive it in the month immediately preceding that month or in the month immediately subsequent to that month. We consider income to be received irregularly if you cannot reasonably expect to receive it. (3) If you are under age 22 and a student who is regularly attending school as described in § 416.1861: (i) For earned income beginning January 1, 2002, (A) The monthly and yearly amounts for the previous year, or (B) Monthly and yearly maximum amounts increased for changes in the cost-of-living, calculated in the same manner as the Federal benefit rates described in § 416.405, except that we will use the calendar year 2001 amounts as the base amounts and will round the resulting amount to the next higher multiple of $10 where such amount is a multiple of $5 but not of $10 and to the nearest multiple of $10 in any other case. (ii) For earned income before January 1, 2002, Table 1 For months Up to per month But not more than in a calendar year In calendar years before 2001 $400 $1,620 In calendar year 2001 1,290 5,200 (4) Any portion of the $20 monthly exclusion in § 416.1124(c)(10) which has not been excluded from your unearned income in that same month; (5) $65 of earned income in a month; (6) Earned income you use to pay impairment-related work expenses described in § 416.976, if you are disabled (but not blind) and under age 65 or you are disabled (but not blind) and received SSI as a disabled individual (or received disability payments under a former State plan) for the month before you reached age 65. (i) For periods prior to December 1, 1990, you must be able, however, to establish your initial eligibility for Federal benefits without the use of the impairment-related work expense exclusion. Once you establish your initial eligibility without the use of the impairment-related work expense exclusion, the exclusion applies for determining your eligibility for all subsequent consecutive months for which you are eligible for regular SSI benefits, federally administered optional State supplementary payments, special SSI cash benefits or special SSI eligibility status. If, in a subsequent month, you are not eligible for any of these benefits, you cannot reestablish your eligibility for Federal SSI benefits or federally administered optional State supplementary payments before December 1, 1990, using the impairment-related work expense exclusion. (ii) For periods after November 30, 1990, you may also use the impairment-related work expense exclusion to establish initial eligibility and reeligibility following a month in which you were not eligible for regular SSI benefits, a federally administered optional State supplementary payment, special SSI cash benefits or special SSI eligibility status. (7) One-half of remaining earned income in a month; (8) Earned income used to meet any expenses reasonably attributable to the earning of the income if you are blind and under age 65 or if you receive SSI as a blind person for the month before you reach age 65. (We consider that you “reach” a certain age on the day before that particular birthday.); (9) Any earned income you receive and use to fulfill an approved plan to achieve self-support if you are blind or disabled and under age 65 or blind or disabled and received SSI as a blind or disabled person for the month before you reached age 65. See §§ 416.1180 through 416.1182 for an explanation of plans to achieve self-support and for the rules on when this exclusion applies; and (10) Payments made to participants in AmeriCorps State and National and AmeriCorps National Civilian Community Corps (NCCC). Payments to participants in AmeriCorps State and National and AmeriCorps NCCC may be made in cash or in-kind and may be made directly to the AmeriCorps participant or on the AmeriCorps participant's behalf. These payments include, but are not limited to: Living allowance payments, stipends, educational awards, and payments in lieu of educational awards. [45 FR 65547, Oct. 3, 1980, as amended at 48 FR 21943, May 16, 1983; 50 FR 48574, Nov. 26, 1985; 58 FR 63889, Dec. 3, 1993; 59 FR 41405, Aug. 12, 1994; 65 FR 82912, Dec. 29, 2000; 71 FR 45378, Aug. 9, 2006; 71 FR 66866, Nov. 17, 2006; 75 FR 54287, Sept. 7, 2010] Unearned Income § 416.1120 What is unearned income. Unearned income is all income that is not earned income. We describe some of the types of unearned income in § 416.1121. We consider all of these items as unearned income, whether you receive them in cash or in kind. § 416.1121 Types of unearned income. Some types of unearned income are— (a) Annuities, pensions, and other periodic payments. (b) Alimony and support payments. maintenance (c) Dividends, interest, and certain royalties. (d) Rents. (e) Death benefits. Example: If you receive $2,000 from your uncle's life insurance policy and you spend $900 on his last illness and burial expenses, the balance, $1,100, is unearned income. If you spend the entire $2,000 for the last illness and burial, there is no unearned income. (f) Prizes and awards. (g) Gifts and inheritances. (h) Support and maintenance in-kind. [45 FR 65547, Oct. 3, 1980, as amended at 56 FR 36000, July 30, 1991; 59 FR 43471, Aug. 24, 1994; 70 FR 6345, Feb. 7, 2005; 89 FR 21209, Mar. 27, 2024] § 416.1123 How we count unearned income. (a) When we count unearned income. (b) Amount considered as income. (1) We include more than you actually receive where another benefit payment (such as a social security insurance benefit) (see § 416.1121) has been reduced to recover a previous overpayment. You are repaying a legal obligation through the withholding of portions of your benefit amount, and the amount of the debt reduction is also part of your unearned income. Exception: Example: Joe, an SSI beneficiary, is also entitled to social security insurance benefits in the amount of $200 per month. However, because of a prior overpayment of his social security insurance benefits, $20 per month is being withheld to recover the overpayment. In figuring the amount of his SSI benefits, the full monthly social security insurance benefit of $200 is included in Joe's unearned income. However, if Joe was receiving both benefits when the overpayment of the social security insurance benefit occurred and we then included the overpaid amount as income, we will compute his SSI benefit on the basis of receiving $180 as a social security insurance benefit. This is because we recognize that we computed his SSI benefit on the basis of the higher amount when he was overpaid. (2) We also include more than you actually receive if amounts are withheld from unearned income because of a garnishment, or to pay a debt or other legal obligation, or to make any other payment such as payment of your Medicare premiums. (3) We include less than you actually receive if part of the payment is for an expense you had in getting the payment. For example, if you are paid for damages you receive in an accident, we subtract from the amount of the payment your medical, legal, or other expenses connected with the accident. If you receive a retroactive check from a benefit program other than SSI, legal fees connected with the claim are subtracted. We do not subtract from any taxable unearned income the part you have to use to pay personal income taxes. The payment of taxes is not an expense you have in getting income. (4) In certain situations, we may consider someone else's income to be available to you, whether or not it actually is. (For the rules on this process, called deeming, see §§ 416.1160 through 416.1169.) (c) In-kind income. Example: You are given a $1500 automobile but must pay the $1000 due on it. You are receiving income of $500. (d) Retroactive monthly social security benefits. (1) Periods for which SSI payments have been made. (2) [Reserved] (e) Certain veterans benefits. (2) If you are a dependent of an individual who receives a veterans benefit and a portion of the benefit is attributable to you as a dependent, we count the amount attributable to you as your unearned cash income if— (i) You reside with the individual who receives the veterans benefit, or (ii) You receive your own separate payment from the Department of Veterans Affairs. (f) Uniformed service compensation. (Reporting and recordkeeping requirements in paragraph (b) have been approved by the Office of Management and Budget under control number 0960-0128) [45 FR 65547, Oct. 3, 1980, as amended at 47 FR 4988, Feb. 3, 1982; 47 FR 13794, Apr. 1, 1982; 50 FR 48574, Nov. 26, 1985; 55 FR 20599, May 18, 1990; 56 FR 3212, Jan. 29, 1991; 59 FR 59364, Nov. 17, 1994; 60 FR 8152, Feb. 10, 1995; 71 FR 45378, Aug. 9, 2006; 91 FR 16830, Apr. 3, 2026] § 416.1124 Unearned income we do not count. (a) General. (b) Other Federal laws. (c) Other unearned income we do not count. (1) Any public agency's refund of taxes on real property or food; (2) Assistance based on need which is wholly funded by a State or one of its political subdivisions. (For purposes of this rule, an Indian tribe is considered a political subdivision of a State.) Assistance is based on need when it is provided under a program which uses the amount of your income as one factor to determine your eligibility. Assistance based on need includes State supplementation of Federal SSI benefits as defined in subpart T of this part but does not include payments under a Federal/State grant program such as Temporary Assistance for Needy Families under title IV-A of the Social Security Act; (3) Any portion of a grant, scholarship, fellowship, or gift used or set aside for paying tuition, fees, or other necessary educational expenses. However, we do count any portion set aside or actually used for food or shelter; (4) Food which you or your spouse raise if it is consumed by you or your household; (5) Assistance received under the Disaster Relief and Emergency Assistance Act and assistance provided under any Federal statute because of a catastrophe which the President of the United States declares to be a major disaster. See § 416.1150 for a more detailed discussion of this assistance, particularly the treatment of in-kind support and maintenance received as the result of a major disaster; (6) The first $60 of unearned income received in a calendar quarter if you receive it infrequently or irregularly. We consider income to be received infrequently if you receive it only once during a calendar quarter from a single source and you did not receive it in the month immediately preceding that month or in the month immediately subsequent to that month. We consider income to be received irregularly if you cannot reasonably expect to receive it. (7) Alaska Longevity Bonus payments made to an individual who is a resident of Alaska and who, prior to October 1, 1985: met the 25-year residency requirement for receipt of such payments in effect prior to January 1, 1983; and was eligible for SSI; (8) Payments for providing foster care to an ineligible child who was placed in your home by a public or private nonprofit child placement or child care agency; (9) Any interest earned on excluded burial funds and any appreciation in the value of an excluded burial arrangement which are left to accumulate and become a part of the separate burial fund. (See § 416.1231 for an explanation of the exclusion of burial assets.) This exclusion from income applies to interest earned on burial funds or appreciation in the value of excluded burial arrangements which occur beginning November 1, 1982, or the date you first become eligible for SSI benefits, if later; (10) Certain support and maintenance assistance as described in § 416.1157; (11) One-third of support payments made to or for you by an absent parent if you are a child; (12) The first $20 of any unearned income in a month other than income in the form of in-kind support and maintenance received in the household of another (see § 416.1131) and income based on need. Income based on need is a benefit that uses financial need as measured by your income as a factor to determine your eligibility. The $20 exclusion does not apply to a benefit based on need that is totally or partially funded by the Federal government or by a nongovernmental agency. However, assistance which is based on need and funded wholly by a State or one of its political subdivisions is excluded totally from income as described in § 416.1124(c)(2). If you have less than $20 of unearned income in a month and you have earned income in that month, we will use the rest of the $20 exclusion to reduce the amount of your countable earned income; (13) Any unearned income you receive and use to fulfill an approved plan to achieve self-support if you are blind or disabled and under age 65 or blind or disabled and received SSI as a blind or disabled person for the month before you reached age 65. See §§ 416.1180 through 416.1182 for an explanation of plans to achieve self-support and for the rules on when this exclusion applies; (14) The value of any assistance paid with respect to a dwelling unit under— (i) The United States Housing Act of 1937; (ii) The National Housing Act; (iii) Section 101 of the Housing and Urban Development Act of 1965; (iv) Title V of the Housing Act of 1949; or (v) Section 202(h) of the Housing Act of 1959; (15) Any interest accrued on and left to accumulate as part of the value of an excluded burial space purchase agreement. This exclusion from income applies to interest accrued on or after April 1, 1990; (16) The value of any commercial transportation ticket, for travel by you or your spouse among the 50 States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, and the Northern Mariana Islands, which is received as a gift by you or your spouse and is not converted to cash. If such a ticket is converted to cash, the cash you receive is income in the month you receive the cash; (17) Payments received by you from a fund established by a State to aid victims of crime; (18) Relocation assistance provided you by a State or local government that is comparable to assistance provided under title II of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 that is subject to the treatment required by section 216 of that Act; (19) Special pay received from one of the uniformed services pursuant to 37 U.S.C. 310; (20) Interest or other earnings on a dedicated account which is excluded from resources. (See § 416.1247); (21) Gifts from an organization as described in section 501(c)(3) of the Internal Revenue Code of 1986 which is exempt from taxation under section 501(a) of such Code, to, or for the benefit of, an individual who has not attained 18 years of age and who has a life-threatening condition. We will exclude any in-kind gift that is not converted to cash and cash gifts to the extent that the total gifts excluded pursuant to this paragraph do not exceed $2000 in any calendar year. In-kind gifts converted to cash are considered under income counting rules in the month of conversion; (22) Interest and dividend income from a countable resource or from a resource excluded under a Federal statute other than section 1613(a) of the Social Security Act; and (23) AmeriCorps State and National and AmeriCorps National Civilian Community Corps cash or in-kind payments to AmeriCorps participants or on AmeriCorps participants' behalf. These include, but are not limited to: Food and shelter, and clothing allowances; (24) Any annuity paid by a State to a person (or his or her spouse) based on the State's determination that the person is: (i) A veteran (as defined in 38 U.S.C. 101); and (ii) Blind, disabled, or aged. [45 FR 65547, Oct. 3, 1980, as amended at 47 FR 55213, Dec. 8, 1982; 48 FR 21943, May 16, 1983; 48 FR 33258, July 21, 1983; 48 FR 57127, Dec. 28, 1983; 50 FR 48574, Nov. 26, 1985; 51 FR 39523, Oct. 29, 1986; 54 FR 19164, May 4, 1989; 55 FR 28378, July 11, 1990; 57 FR 1384, Jan. 14, 1992; 57 FR 53850, Nov. 13, 1992; 58 FR 63888, Dec. 3, 1993; 61 FR 1712, Jan. 23, 1996; 61 FR 49964, Sept. 24, 1996; 61 FR 67207, Dec. 20, 1996; 70 FR 6345, Feb. 7, 2005; 70 FR 41137, July 18, 2005; 71 FR 45378, Aug. 9, 2006; 75 FR 7554, Feb. 22, 2010; 75 FR 54287, Sept. 7, 2010] In-Kind Support and Maintenance § 416.1130 Introduction. (a) General. i.e., Exception: Example: (b) How we calculate in-kind support and maintenance. (2) We have two rules for valuing the in-kind support and maintenance that we count. The one-third reduction rule applies if you are living in another person's household, you receive shelter from others living in the household, and others within the household pay for or provide you with all of your meals (see §§ 416.1131 through 416.1133). The presumed value rule applies in all other situations in which you receive countable in-kind support and maintenance (see §§ 416.1140 through 416.1145). If certain conditions exist, we do not count in-kind support and maintenance. These conditions are discussed in §§ 416.1141 through 416.1145. [89 FR 21209, Mar. 27, 2024, as amended at 89 FR 25514, Apr. 11, 2024] § 416.1131 The one-third reduction rule. (a) What the rule is. (1) Live in another person's household (see § 416.1132) for a full calendar month except for temporary absences (see § 416.1149); and (2) Receive shelter from others living in the household. (If you do not receive shelter from others living in the household, see § 416.1140); and (3) Others within the household pay for or provide you with all of your meals. If others within the household do not pay for or provide you with all of your meals, any ISM received for shelter will be calculated under the PMV rule (see § 416.1140). (b) How we apply the one-third reduction rule. (c) If you receive other support and maintenance. [45 FR 65547, Oct. 3, 1980, as amended at 50 FR 48574, Nov. 26, 1985; 89 FR 21210, Mar. 27, 2024] § 416.1132 What we mean by “living in another person's household”. (a) Household. (b) Another person's household. (1) Your spouse (as defined in § 416.1806); (2) A minor child; or (3) An ineligible person (your spouse, parent, or essential person) whose income may be deemed to you as described in §§ 416.1160 through 416.1169. (c) Your own household—not another person's household. (1) You (or your spouse who lives with you or any person whose income is deemed to you) have an ownership interest or a life estate interest in the home; (2) You (or your spouse who lives with you or any person whose income is deemed to you) are liable to the landlord for payment of any part of the rental charges; (3) You live in a noninstitutional care situation as described in § 416.1143; (4) You pay at least a pro rata share of household and operating expenses (see § 416.1133); or (5) All members of the household receive public income—maintenance payments (§ 416.1142). [45 FR 65547, Oct. 3, 1980, as amended at 50 FR 48574, Nov. 26, 1985] § 416.1133 What is a pro rata share of household operating expenses. (a) General. (b) How we determine a pro rata share. (c) Household operating expenses are the household's total monthly expenditures for rent, mortgage, property taxes, heating fuel, gas, electricity, water, sewerage, and garbage collection service. (The term does not include the cost of these items if someone outside the household pays for them.) Generally, we average household operating expenses over the past 12 months to determine a pro rata share. [45 FR 65547, Oct. 3, 1980, as amended at 70 FR 6345, Feb. 7, 2005; 89 FR 21210, Mar. 27, 2024] § 416.1140 The presumed value rule. (a) How we apply the presumed value rule. (2) The presumed value rule allows you to show that your in-kind support and maintenance is not equal to the presumed value. We will not use the presumed value if you show us that— (i) The current market value of any shelter you receive, minus any payment you make for it, is lower than the presumed value; or (ii) The actual amount someone else pays for your shelter is lower than the presumed value. (b) How we determine the amount of your ISM under the presumed value rule. (2) If you show us, as provided in paragraph (a)(2) of this section, that the presumed value is higher than the actual value of the shelter you receive, we use the actual amount to figure your ISM. [89 FR 21210, Mar. 27, 2024] § 416.1141 When the presumed value rule applies. The presumed value rule applies whenever we count in-kind support and maintenance as unearned income and the one-third reduction rule does not apply. This means that the presumed value rule applies if you are living— (a) In another person's household (as described in § 416.1132(b)); you receive shelter from others living in the household; and others within the household do not pay for or provide you with all of your meals; (b) In your own household (as described in § 416.1132(c)). For exceptions, see § 416.1142 if you are in a public assistance household and § 416.1143 if you are in a noninstitutional case situation; or (c) In a nonmedical institution including any— (1) Public nonmedical institution if you are there for less than a full calendar month; (2) Public or private nonprofit educational or vocational training institution; (3) Private nonprofit retirement home or similar institution where there is an express obligation to provide your full support and maintenance or where someone else pays for your support and maintenance. For exceptions, see § 416.1144; and (4) For-profit institution where someone else pays for your support and maintenance. If you or the institution pay for it, see § 416.1145. [45 FR 65547, Oct. 3, 1980, as amended at 89 FR 21210, Mar. 27, 2024] § 416.1142 If you live in a public assistance household. (a) Definition. (1) Title IV-A of the Social Security Act (Temporary Assistance for Needy Families); (2) Title XVI of the Social Security Act (SSI, including federally administered State supplements and State administered mandatory supplements); (3) The Refugee Act of 1980 (Those payments based on need); (4) The Disaster Relief and Emergency Assistance Act; (5) General assistance programs of the Bureau of Indian Affairs; (6) State or local government assistance programs based on need (tax credits or refunds are not assistance based on need); (7) U.S. Department of Veterans Affairs programs (those payments based on need); and (8) The Supplemental Nutrition Assistance Program (SNAP). (b) How the presumed value rule applies. [45 FR 65547, Oct. 3, 1980, as amended at 57 FR 53850, Nov. 13, 1992; 70 FR 6345, Feb. 7, 2005; 70 FR 41137, July 18, 2005; 89 FR 28622, Apr. 19, 2024] § 416.1143 If you live in a noninstitutional care situation. (a) Definitions. (1) You are placed by a public or private agency under a specific program such as foster or family care; (2) The placing agency is responsible for your care; (3) You are in a private household (not an institution) which is licensed or approved by the placing agency to provide care; and (4) You, a public agency, or someone else pays for your care. (b) How the presumed value rule applies. § 416.1144 If you live in a nonprofit retirement home or similar institution. (a) Definitions. (1) Nonprofit retirement home or similar institution (i) Services which are (or could be) covered under Medicaid, or (ii) Education or vocational training. (2) Nonprofit organization (3) An express obligation to provide your full support and maintenance (i) Will provide at least all of your food and shelter needs; and (ii) Does not require any current or future payment for that food and shelter. (For purposes of this paragraph, a lump sum prepayment for lifetime care is not a current payment.) (b) How the presumed value rule applies. (1) The home, institution, or nonprofit organization does not have an express obligation to provide your full support and maintenance; and (2) The home, institution, or nonprofit organization receives no payment for your food or shelter, or receives payment from another nonprofit organization. [45 FR 65547, Oct. 3, 1980, as amended at 51 FR 34464, Sept. 29, 1986; 70 FR 6345, Feb. 7, 2005] § 416.1145 How the presumed value rule applies in a nonmedical for-profit institution. If you live in a nonmedical for-profit institution, we consider the amount accepted by that institution as payment in full to be the current market value of whatever food or shelter the institution provides. If you are paying or are legally indebted for that amount, you are not receiving in-kind support and maintenance. We do not use the presumed value rule unless someone else pays for you. [45 FR 65547, Oct. 3, 1980, as amended at 70 FR 6345, Feb. 7, 2005] In-Kind Support and Maintenance in Special Circumstances § 416.1147 How we value in-kind support and maintenance for a couple. (a) Both members of a couple live in another person's household and receive shelter and all of their meals from others living in the household. (b) One member of a couple is in a medical institution and the other member of the couple lives in another person's household and receives shelter and all of their meals from others living in the household. (2) If the one member of the couple in the institution is eligible for one of the benefits payable under the § 416.212 provisions, we compute benefits as a couple at the rate specified under § 416.412. However, if that one member remains in the institution for a full month after expiration of the period benefits based on § 416.212 can be paid, benefits will be computed as if each person were separately eligible as described under paragraph (c)(1) of this section. This begins with the first calendar month after expiration of the period benefits based on § 416.212 can be paid. (c) Both members of a couple are subject to the presumed value rule. (d) One member of a couple is subject to the presumed value rule and the other member is in a medical institution. (2) If one of you is subject to the presumed value rule and the other in the institution is eligible for one of the benefits payable under § 416.212, we compute the benefits as a couple at the rate specified under § 416.412. However, if the one in the institution remains in the institution after the period benefits based on § 416.212 can be paid, we will compute benefits as if each member of the couple were separately eligible as described in paragraph (d)(1) of this section. [60 FR 16375, Mar. 30, 1995, as amended at 61 FR 10279, Mar. 13, 1996; 70 FR 6345, Feb. 7, 2005; 89 FR 21210, Mar. 27, 2024] § 416.1147a Income rules in change-of-status situations involving in-kind support and maintenance. (a) General. (b) Eligible individuals become an eligible couple. (c) Eligible couple becomes one or two eligible individuals. [50 FR 48575, Nov. 26, 1985] § 416.1148 If you have both in-kind support and maintenance and income that is deemed to you. (a) The one-third reduction and deeming of income. (b) The presumed value rule and deeming of income. (2) If you are a child under age 18 who lives in the same household with an ineligible parent whose income may be deemed to you, and you are temporarily absent from the household to attend school (§ 416.1167(b)), any shelter you receive at school is income to you unless your parent purchases it. Unless otherwise excluded, we value this income under the presumed value rule (§ 416.1140). We also apply the deeming rules to you (§ 416.1165). [60 FR 361, Jan. 4, 1995, as amended at 70 FR 6345, Feb. 7, 2005; 89 FR 21211, Mar. 27, 2024] Temporary Absence § 416.1149 What is a temporary absence from your living arrangement. (a) General. (1) Become a resident of a public institution, or a public or private medical treatment facility where you otherwise would be subject to the reduced benefit rate described in § 416.414, and you are eligible for the benefits payable under § 416.212; or (2) Were in your permanent living arrangement for at least 1 full calendar month prior to the absence and intend to, and do, return to your permanent living arrangement in the same calendar month in which you (or you and your spouse) leave, or in the next month. (b) Rules we apply during a temporary absence. (c) Rules for temporary absence in certain circumstances. (ii) If you enter a medical treatment facility and you are eligible for either benefit payable under § 416.212, we also consider this a temporary absence from your permanent living arrangement. We use the rules that apply to your permanent living arrangement to value any shelter you receive during the month you enter the facility and throughout the period you are eligible for these benefits. We consider your absence to be temporary through the last month benefits under § 416.212 are paid unless you are discharged from the facility in the following month. In that case, we consider your absence to be temporary through the date of discharge. (2)(i) Generally, if you are a child under age 22, you are temporarily absent while you are away at school, regardless of how long you are away, if you come home on some weekends, lengthy holidays, and vacations (or for extended visits as provided in school regulations). (ii) However, if you are a child under age 18, and your permanent living arrangement is with an ineligible parent or essential person (§ 416.222), we follow the rules in § 416.1148(b)(2). When you reach age 18, or if you are under age 18 and deeming does not apply, we consider the circumstances of your permanent living arrangement to value any in-kind support and maintenance you receive. [45 FR 65547, Oct. 3, 1980, as amended at 50 FR 48575, Nov. 26, 1985; 52 FR 8882, Mar. 20, 1987; 61 FR 10279, Mar. 13, 1996; 62 FR 1056, Jan. 8, 1997; 70 FR 6345, Feb. 7, 2005; 72 FR 50874, Sept. 5, 2007; 89 FR 21211, Mar. 27, 2024] Disasters § 416.1150 How we treat income received because of a major disaster. (a) General. (b) Support and maintenance. (i) You live in a household which you or you and another person maintain as your home when a catastrophe occurs in the area; (ii) The President of the United States declares the catastrophe to be a major disaster for purposes of the Disaster Relief and Emergency Assistance Act; (iii) You stop living in the home because of the catastrophe and within 30 days after the catastrophe you begin to receive support and maintenance; and (iv) You receive the support and maintenance while living in a residential facility maintained by another person. (2) We do not count the value of support and maintenance (in cash or in kind) received from any other source, such as from a private household, and the one-third reduction rule does not apply for up to 18 months after you begin to receive it if— (i) You live in a household which you or you and another person maintain as your home when a catastrophe occurs in the area; (ii) The President of the United States declares the catastrophe to be a major disaster for purposes of the Disaster Relief and Emergency Assistance Act; (iii) You stop living in the home because of the catastrophe and within 30 days after the catastrophe you begin to receive support and maintenance; and (iv) You receive the support and maintenance while living in a residential facility (including a private household) maintained by another person. (c) Other assistance you receive. (d) Interest payments. [57 FR 53850, Nov. 13, 1992] § 416.1151 How we treat the repair or replacement of lost, damaged, or stolen resources. (a) General rule. (b) Interest on cash for repair or replacement of a noncash resource. (c) Temporary replacement of a damaged or destroyed home. (1) Your excluded home is damaged or destroyed, and (2) You receive the temporary housing only until your home is repaired or replaced. Home Energy Assistance § 416.1157 Support and maintenance assistance. (a) General. (b) Definitions. Appropriate State agency Based on need (1) Does not have an express obligation to provide the assistance; (2) States that the aid is given for the purpose of support or maintenance assistance or for home energy assistance (e.g., vouchers for heating or cooling bills, storm doors); and (3) Provides the aid for an SSI claimant, a member of the household in which an SSI claimant lives or an SSI claimant's ineligible spouse, parent, sponsor (or the sponsor's spouse) of an alien, or essential person. Private nonprofit agency Rate-of-return entity Support and maintenance assistance (c) What assistance we do not count as income. (1) Provided in kind by a private nonprofit agency; or (2) Provided in cash or in kind by— (i) A supplier of home heating oil or gas; (ii) A rate-of-return entity providing home energy; or (iii) A municipal utility providing home energy. [51 FR 39523, Oct. 29, 1986; 51 FR 43709, Dec. 3, 1986, as amended at 53 FR 35808, Sept. 15, 1988; 70 FR 6345, Feb. 7, 2005] Deeming of Income § 416.1160 What is deeming of income? (a) General. (1) Ineligible spouse. (2) Ineligible parent. i.e. (3) Sponsor of an alien. (4) Essential person. (b) When we deem. (1) Eligibility. (2) Amount of benefit. Exceptions: (i) We use the income from the first month you are initially eligible for payment of SSI benefits (see § 416.501) to determine your benefit amount for that month. In the following month (the second month you are eligible for payment), we use the same countable income that we used in the preceding month to determine your benefit amount. (ii) To determine your benefit amount for the first month you again become eligible after you have been ineligible for at least a month, we use the same countable income that we use to determine your eligibility for that month. In the following month (the second month of reeligibility), we use the same countable income that we used in the preceding month to determine your benefit amount. (iii) To determine the amount of your benefit in the current month, if there are certain changes in your situation which we list below, we use only your own countable income in a prior month, excluding any income deemed to you in that month from an ineligible spouse or parent. These changes are the death of your spouse or parent, your attainment of age 18, or your becoming subject to the $30 Federal benefit rate (§ 416.211(b)). (iv) To determine the amount of your benefit for the current month, we do not use income deemed from your essential person beginning with the month you can no longer qualify for the essential person increment (§ 416.413). We use only your own countable income in a prior month to determine the amount of your benefit for the current month. (c) Steps in deeming. (1) We determine how much earned and unearned income your ineligible spouse, ineligible parent, sponsor, or essential person has, and we apply the appropriate exclusions. (See § 416.1161(a) for exclusions that apply to an ineligible parent or spouse, and § 416.1161(b) for those that apply to an essential person or to a sponsor.) (2) Before we deem income to you from either your ineligible spouse or ineligible parent, we allocate an amount for each ineligible child in the household. (Allocations for ineligible children are explained in §§ 416.1163(b) and 416.1165(b).) We also allocate an amount for each eligible alien who is subject to deeming from your ineligible spouse or parent as a sponsor. (Allocations for eligible aliens are explained in § 416.1163(c).) (3) We then follow the deeming rules which apply to you. (i) For deeming income from your ineligible spouse, see § 416.1163. (ii) For deeming income from your ineligible parent, see § 416.1165. (iii) For deeming income from your ineligible spouse when you also have an eligible child, see § 416.1166. (iv) For deeming income from your sponsor if you are an alien, see § 416.1166a. (v) For deeming income from your essential person, see § 416.1168. The rules on when we stop deeming income from your essential person are in § 416.1169. (vi) For provisions on change in status involving couples see § 416.1163(f) and for those involving parents see § 416.1165(g). (d) Definitions for deeming purposes. Combat zone (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 or her 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 or her designated representative is entitled to special pay under 37 U.S.C. 310. Date of admission to date of entry into the United States Dependent Exception: Essential person Ineligible child child spouse Ineligible parent Ineligible spouse Sponsor [52 FR 8882, Mar. 20, 1987, as amended at 54 FR 19164, May 4, 1989; 64 FR 31974, June 15, 1999; 73 FR 28035, May 15, 2008; 75 FR 7554, Feb. 22, 2010] § 416.1161 Income of an ineligible spouse, ineligible parent, and essential person for deeming purposes. The first step in deeming is determining how much income your ineligible spouse, ineligible parent (if you are a child), your sponsor (if you are an alien), or your essential person, has. We do not always include all of their income when we determine how much income to deem. In this section we explain the rules for determining how much of their income is subject to deeming. As part of the process of deeming income from your ineligible spouse or parent, we must determine the amount of income of any ineligible children in the household. (a) For an ineligible spouse or parent. (1) Income excluded by Federal laws other than the Social Security Act (See the appendix to this subpart.) (2) Any public income-maintenance payments (§ 416.1142(a)) your ineligible spouse or parent receives, and any income which was counted or excluded in figuring the amount of that payment; (3) Any of the income of your ineligible spouse or parent that is used by a public income-maintenance program (§ 416.1142(a)) to determine the amount of that program's benefit to someone else; (4) Any portion of a grant, scholarship, fellowship, or gift used or set aside to pay tuition, fees or other necessary educational expenses; (5) Money received for providing foster care to an ineligible child; (6) The value of food stamps and the value of Department of Agriculture donated foods; (7) Food raised by your parent or spouse and consumed by members of the household in which you live; (8) Tax refunds on income, real property, or food purchased by the family; (9) Income used to fulfill an approved plan for achieving self-support (see §§ 416.1180 through 416.1182); (10) Income used to comply with the terms of court-ordered support, or support payments enforced under title IV-D of the Act; (11) The value of in-kind support and maintenance; (12) Alaska Longevity Bonus payments made to an individual who is a resident of Alaska and who, prior to October 1, 1985: met the 25-year residency requirement for receipt of such payments in effect prior to January 1, 1983; and was eligible for SSI; (13) Disaster assistance as described in §§ 416.1150 and 416.1151; (14) Income received infrequently or irregularly (see §§ 416.1112(c)(1) and 416.1124(c)(6)); (15) Work expenses if the ineligible spouse or parent is blind; (16) Income of your ineligible spouse or ineligible parent which was paid under a Federal, State, or local government program (For example, payments under title XX of the Social Security Act) to provide you with chore, attendant or homemaker services; (17) Certain support and maintenance assistance as described in § 416.1157(c); (18) Housing assistance as provided in § 416.1124(c)(14); (19) The value of a commercial transportation ticket as described in § 416.1124(c)(16). However, if such a ticket is converted to cash, the cash is income in the month your spouse or parent receives the cash; (20) Refunds of Federal income taxes and advances made by an employer relating to an earned income tax credit, as provided in § 416.1112(c); (21) Payments from a fund established by a State to aid victims of crime (see § 416.1124(c)(17)); (22) Relocation assistance, as described in § 416.1124(c)(18); (23) Special pay received from one of the uniformed services pursuant to 37 U.S.C. 310; (24) Impairment-related work expenses, as described in 20 CFR 404.1576, incurred and paid by an ineligible spouse or parent, if the ineligible spouse or parent receives disability benefits under title II of the Act; (25) Interest earned on excluded burial funds and appreciation in the value of excluded burial arrangements which are left to accumulate and become part of separate burial funds, and interest accrued on and left to accumulate as part of the value of agreements representing the purchase of excluded burial spaces (see § 416.1124(c) (9) and (15)); (26) Interest and dividend income from a countable resource or from a resource excluded under a Federal statute other than section 1613(a) of the Social Security Act; (27) Earned income of a student as described in § 416.1112(c)(3); and (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. (b) For an essential person or for a sponsor of an alien. (c) For an ineligible child. (d) For an eligible alien. [45 FR 65547, Oct. 3, 1980, as amended at 46 FR 57276, Nov. 23, 1981; 48 FR 33259, July 21, 1983; 50 FR 48576, Nov. 26, 1985; 51 FR 39523, Oct. 29, 1986; 52 FR 8883, Mar. 20, 1987; 52 FR 44971, Nov. 24, 1987; 55 FR 28378, July 11, 1990; 58 FR 63888, 63890, Dec. 3, 1993; 61 FR 1712, Jan. 23, 1996; 61 FR 49964, Sept. 24, 1996; 67 FR 11034, Mar. 12, 2002; 71 FR 45378, Aug. 9, 2006; 71 FR 66866, Nov. 17, 2006; 75 FR 7554, Feb. 22, 2010] § 416.1161a Income for deeming purposes where Medicaid eligibility is affected. (a) General. (b) When special deeming rules apply: (1) The Department will consider not applying the usual deeming rules only upon application by a State Medicaid agency (requirement approved under OMB No. 0960-0304) and on condition that the agency must show: (i) Deeming would result in lack of Medicaid eligibility for the individual. (ii) Medicaid eligibility would, prospectively, result in savings to the Medicaid program; and (iii) The quality of medical care necessary for the individual would be maintained under the arrangements contemplated. (2) The Department may also in particular cases require that additional facts be demonstrated, or that other criteria or standards be met, before it determines not to apply the usual deeming rules. (c) Amount of income to be deemed. (d) Temporary effect of special deeming rules. [49 FR 5747, Feb. 15, 1984] § 416.1163 How we deem income to you from your ineligible spouse. If you have an ineligible spouse who lives in the same household, we apply the deeming rules to your ineligible spouse's income in the following order. (a) Determining your ineligible spouse's income. (b) Allocations for ineligible children. Exception: (1) The allocation for each ineligible child is the difference between the Federal benefit rate for an eligible couple and the Federal benefit rate for an eligible individual. The amount of the allocation automatically increases whenever the Federal benefit rate increases. The amount of the allocation that we use to determine the amount of a benefit for a current month is based on the Federal benefit rate that applied in the second prior month unless one of the exceptions in § 416.1160(b)(2) applies. (2) Each ineligible child's allocation is reduced by the amount of his or her own income as described in § 416.1161(c). (3) We first deduct the allocations from your ineligible spouse's unearned income. If your ineligible spouse does not have enough unearned income to cover the allocations we deduct the balance from your ineligible spouse's earned income. (c) Allocations for aliens sponsored by your ineligible spouse. (1) The allocation for each alien who is sponsored by and who has income deemed from your ineligible spouse is the difference between the Federal benefit rate for an eligible couple and the Federal benefit rate for an eligible individual. The amount of the allocation automatically increases whenever the Federal benefit rate increases. The amount of the allocation that we use to compute your benefit for a current month is based on the Federal benefit rate that applied in the second prior month (unless the current month is the first or second month of eligibility or re-eligibility as explained in § 416.420(a) and (b) (2) and (3)). (2) Each alien's allocation is reduced by the amount of his or her own income as described in § 416.1161(d). (3) We first deduct the allocations from your ineligible spouse's unearned income. If your ineligible spouse does not have enough unearned income to cover the allocations, we deduct the balance from your ineligible spouse's earned income. (d) Determining your eligibility for SSI. (2) If the amount of your ineligible spouse's income that remains after appropriate allocations is more than the difference between the Federal benefit rate for an eligible couple and the Federal benefit rate for an eligible individual, we treat you and your ineligible spouse as an eligible couple. We do this by: (i) Combining the remainder of your spouse's unearned income with your own unearned income and the remainder of your spouse's earned income with your earned income; (ii) Applying all appropriate income exclusions in §§ 416.1112 and 416.1124; and (iii) Subtracting the couple's countable income from the Federal benefit rate for an eligible couple. (See § 416.2025(b) for determination of the State supplementary payment amount.) (e) Determining your SSI benefit. (2) Your SSI benefit under the deeming rules cannot be higher than it would be if deeming did not apply. Therefore, your benefit is the lesser of the amount computed under the rules in paragraph (d)(2) of this section or the amount remaining after we subtract only your own countable income from an individual's Federal benefit rate. (f) Special rules for couples when a change in status occurs. (1) Ineligible spouse becomes eligible. (2) Spouses separate or divorce. (3) Eligible individual begins living with an ineligible spouse. (4) Ineligible spouse dies. (5) You become subject to the $30 Federal benefit rate. (g) Examples. Example 1. In September 1986, Mr. Todd, an aged individual, lives with his ineligible spouse, Mrs. Todd, and their ineligible child, Mike. Mr. Todd has a Federal benefit rate of $336 per month. Mrs. Todd receives $252 unearned income per month. She has no earned income and Mike has no income at all. Before we deem any income, we allocate to Mike $168 (the difference between the September Federal benefit rate for an eligible couple and the September Federal benefit rate for an eligible individual). We subtract the $168 allocation from Mrs. Todd's $252 unearned income, leaving $84. Since Mrs. Todd's $84 remaining income is not more than $168, which is the difference between the September Federal benefit rate for an eligible couple and the September Federal benefit rate for an eligible individual, we do not deem any income to Mr. Todd. Instead, we compare only Mr. Todd's own countable income with the Federal benefit rate for an eligible individual to determine whether he is eligible. If Mr. Todd's own countable income is less than his Federal benefit rate, he is eligible. To determine the amount of his benefit, we determine his countable income, including any income deemed from Mrs. Todd, in July and subtract this income from the appropriate Federal benefit rate for September. Example 2. In September 1986, Mr. Jones, a disabled individual, lives with his ineligible spouse, Mrs. Jones, and ineligible child, Christine. Mr. Jones and Christine have no income. Mrs. Jones has earned income of $401 a month and unearned income of $252 a month. Before we deem any income, we allocate $168 to Christine. We take the $168 allocation from Mrs. Jones' $252 unearned income, leaving $84 in unearned income. Since Mrs. Jones' total remaining income ($84 unearned plus $401 earned) is more than $168, which is the difference between the September Federal benefit rate for an eligible couple and the September Federal benefit rate for an eligible individual, we compute the combined countable income as we do for a couple. We apply the $20 general income exclusion to the unearned income, reducing it further to $64. We then apply the earned income exclusion ($65 plus one-half the remainder) to Mrs. Jones' earned income of $401, leaving $168. We combine the $64 countable unearned income and $168 countable earned income, and compare it ($232) with the $504 September Federal benefit rate for a couple, and determine that Mr. Jones is eligible. Since Mr. Jones is eligible, we determine the amount of his benefit by subtracting his countable income in July (including any deemed from Mrs. Jones) from September's Federal benefit rate for a couple. Example 3. In September 1986, Mr. Smith, a disabled individual, lives with his ineligible spouse, Mrs. Smith, who earns $201 per month. Mr. Smith receives a pension (unearned income) of $100 a month. Since Mrs. Smith's income is greater than $168, which is the difference between the September Federal benefit rate for an eligible couple and the September Federal benefit rate for an eligible individual, we deem all of her income to be available to both Mr. and Mrs. Smith and compute the combined countable income for the couple. We apply the $20 general income exclusion to Mr. Smith's $100 unearned income, leaving $80. Then we apply the earned income exclusion ($65 plus one-half of the remainder) to Mrs. Smith's $201, leaving $68. This gives the couple total countable income of $148. This is less than the $504 September Federal benefit rate for a couple, so Mr. Smith is eligible based on deeming. Since he is eligible, we determine the amount of his benefit based on his income (including any deemed from Mrs. Smith) in July. Example 4. In September 1986, Mr. Simon has a disabled spouse, Mrs. Simon, and has sponsored an eligible alien, Mr. Ollie. Mrs. Simon has monthly unearned income of $100 and Mr. Simon has earned income of $405. From Mr. Simon's earned income we allocate to Mr. Ollie $168, which is the difference between the Federal benefit rate for an eligible couple and the rate for an eligible individual. Mr. Ollie has no other income. This reduces Mr. Simon's earned income from $405 to $237. Since $237 is more than $168 (the difference between the Federal benefit rate for an eligible couple and the rate for an eligible individual), we deem all of Mr. Simon's remaining income to be available to Mr. and Mrs. Simon and compute the combined countable income for the couple. We apply the $20 general income exclusion to Mrs. Simon's unearned income, leaving $80. Then we apply the general earned income exclusion ($65 plus one-half the remainder) to Mr. Simon's $237 earned income, leaving $86. This gives the couple total income of $166 ($80 + $86.). The $166 is less than the $504 Federal benefit rate for a couple so Mrs. Simon would be eligible based on deeming. Since she is eligible, we determine the amount of her benefit based on her income (including any deemed from Mr. Simon) in July. For the way we deem Mr. Simon's income to Mr. Ollie, see the rules in § 416.1166a. [45 FR 65547, Oct. 3, 1980, as amended at 50 FR 48576, Nov. 26, 1985; 52 FR 8883, Mar. 20, 1987; 53 FR 25151, July 5, 1988; 54 FR 19164, May 4, 1989; 64 FR 31974, June 15, 1999] § 416.1165 How we deem income to you from your ineligible parent(s). If you are a child living with your parents, we apply the deeming rules to you through the month in which you reach age 18. We follow the rules in paragraphs (a) through (e) of this section to determine your eligibility. To determine your benefit amount, we follow the rules in paragraph (f) of this section. The rules in paragraph (g) of this section apply to changes in your family situation. Paragraph (i) of this section discusses the conditions under which we will not deem your ineligible parents' income to you if you are a disabled child living with your parents. (a) Determining your ineligible parent's income. (b) Allocations for ineligible children. (c) Allocations for aliens who are sponsored by and have income deemed from your ineligible parent. (d) Allocations for your ineligible parent(s). (1) We first deduct $20 from the parents' combined unearned income, if any. If they have less than $20 in unearned income, we subtract the balance of the $20 from their combined earned income. (2) Next, we subtract $65 plus one-half the remainder of their earned income. (3) We total the remaining earned and unearned income and subtract— (i) The Federal benefit rate for the month for a couple if both parents live with you; or (ii) The Federal benefit rate for the month for an individual if only one parent lives with you. (e)(1) When you are the only eligible child. (2) When you are not the only eligible child. (3) When one child's income makes that child ineligible. (f) Determining your SSI benefit. (g) Special rules for a change in status. (1) Ineligible parent becomes eligible. (2) Eligible parent becomes ineligible. (3) Ineligible parent dies. (4) Ineligible parent and you no longer live in the same household. i.e. i.e. (5) Ineligible parent and you begin living in the same household. (6) You become subject to the $30 Federal benefit rate. (7) You attain age 18. (h) Examples. Example 1. Henry, a disabled child, lives with his mother and father and a 12-year-old ineligible brother. His mother receives a pension (unearned income) of $365 per month and his father earns $1,165 per month. Henry and his brother have no income. First we deduct an allocation of $211 for Henry's brother from the unearned income. This leaves $154 in unearned income. We reduce the remaining unearned income further by the $20 general income exclusion, leaving $134. We then reduce the earned income of $1,165 by $65 leaving $1,100. Then we subtract one-half of the remainder, leaving $550. To this we add the remaining unearned income of $134 resulting in $684. From this, we subtract the parent allocation of $633 (the Federal benefit rate for a couple) leaving $51 to be deemed as Henry's unearned income. Henry has no other income. We apply Henry's $20 general income exclusion which reduces his countable income to $31. Since that amount is less than the $422 Federal benefit rate for an individual, Henry is eligible. We determine his benefit amount by subtracting his countable income (including deemed income) in a prior month from the Federal benefit rate for an individual for the current month. See § 416.420. Example 2. James and Tony are disabled children who live with their mother. The children have no income but their mother receives $542 a month in unearned income. We reduce the unearned income by the $20 general income exclusion, leaving $522. We then subtract the amount we allocate for the mother's needs, $422 (the Federal benefit rate for an individual). The amount remaining to be deemed to James and Tony is $100, which we divide equally between them resulting in $50 deemed unearned income to each child. We then apply the $20 general income exclusion, leaving each child with $30 countable income. The $30 of unearned income is less than the $422 Federal benefit rate for an individual, so the children are eligible. We then determine each child's benefit by subtracting his countable income (including deemed income) in a prior month from the Federal benefit rate for an individual for the current month. See § 416.420. Example 3. Mrs. Jones is the ineligible mother of two disabled children, Beth and Linda, and has sponsored an eligible alien, Mr. Sean. Beth, Linda, and Mr. Sean have no income; Mrs. Jones has unearned income of $924 per month. We reduce the mother's unearned income by the $211 allocation for Mr. Sean, leaving $713. We further reduce her income by the $20 general income exclusion, which leaves a balance of $693. Next, we subtract the amount we allocate for the mother's needs, $422 (the amount of the Federal benefit rate for an individual). The balance of $271 to be deemed is divided equally between Beth and Linda. Each now has unearned income of $135.50 from which we deduct the $20 general income exclusion, leaving each child with $115.50 countable income. Since this is less than the $422 Federal benefit rate for an individual, the girls are eligible. We then determine each child's benefit by subtracting her countable income (including deemed income) in a prior month from the Federal benefit rate for an individual for the current month. See § 416.420. (For the way we deem the mother's income to Mr. Sean, see examples No. 3 and No. 4 in § 416.1166a.) Example 4. Jack, a disabled child, lives with his mother, father, and two brothers, none of whom are eligible for SSI. Jack's mother receives a private pension of $350 per month and his father works and earns $1,525 per month. We allocate a total of $422 for Jack's ineligible brothers and subtract this from the parents' total unearned income of $350; the parents' unearned income is completely offset by the allocations for the ineligible children with an excess allocation of $72 remaining. We subtract the excess of $72 from the parents' total earned income leaving $1,453. We next subtract the combined general income and earned income exclusions of $85 leaving a remainder of $1,368. We subtract one-half the remainder, leaving $684 from which we subtract the parents' allocation of $633. This results in $51 deemed to Jack. Jack has no other income, so we subtract the general income exclusion of $20 from the deemed income leaving $31 as Jack's countable income. Since this is below the $422 Federal benefit rate for an individual, Jack is eligible. We determine his payment amount by subtracting his countable income (including deemed income) in a prior month from the Federal benefit rate for an individual for the current month. See § 416.420. (i) Disabled child under age 18. (1) You previously received a reduced SSI benefit while a resident of a medical treatment facility, as described in § 416.414; (2) You are eligible for medical assistance under a Medicaid State home care plan approved by the Secretary under the provisions of section 1915(c) or authorized under section 1902(e)(3) of the Act; and (3) You would otherwise be ineligible for a Federal SSI benefit because of the deeming of your parents' income or resources. [52 FR 8885, Mar. 20, 1987, as amended at 54 FR 19164, May 4, 1989; 57 FR 48562, Oct. 27, 1992; 60 FR 361, Jan. 4, 1995; 62 FR 1056, Jan. 8, 1997; 64 FR 31974, June 15, 1999; 72 FR 50874, Sept. 5, 2007; 73 FR 28036, May 15, 2008] § 416.1166 How we deem income to you and your eligible child from your ineligible spouse. If you and your eligible child live in the same household with your ineligible spouse, we deem your ineligible spouse's income first to you, and then we deem any remainder to your eligible child. For the purpose of this section, SSI benefits include any federally administered State supplement. We then follow the rules in § 416.1165(e) to determine the child's eligibility for SSI benefits and in § 416.1165(f) to determine the benefit amount. (a) Determining your ineligible spouse's income. (b) Allocations for ineligible children. (c) Allocations for aliens who are sponsored by and have income deemed from your ineligible spouse. (d) Determining your eligibility for SSI benefits and benefit amount. (e) Determining your child's eligibility and amount of benefits. (2) If you are not eligible for SSI benefits after your ineligible spouse's income has been deemed to you, we deem to your eligible child any of your spouse's income which was not used to reduce your SSI benefits to zero. (f) Examples. Example 1. Mary, a blind individual, lives with her husband, John, and their disabled child, Peter. Mary and Peter have no income, but John is employed and earns $605 per month. We determine Mary's eligibility first. Since John's income is more than $157, which is one-half of the Federal benefit rate for an eligible individual, we treat the entire $605 as earned income available to John and Mary as a couple. Because they have no unearned income, we reduce the $605 by the $20 general income exclusion, and then by the earned income exclusion of $65 plus one-half the remainder. This leaves John and Mary with $260 in countable income. The $260 countable income is less than the $472 Federal benefit rate for a couple, so Mary is eligible; therefore, there is no income to be deemed to Peter. Example 2. Al, a disabled individual, resides with his ineligible spouse, Dora, and their disabled son, Jeff. Al and Jeff have no income, but Dora is employed and earns $1,065 a month. Since Dora's income is more than $157, which is one-half of the Federal benefit rate for an eligible individual, we treat the entire $1,065 as earned income available to Al and Dora as a couple. We reduce this income by the $20 general income exclusion and then by $65 plus one-half the remainder (earned income exclusion), leaving $490 in countable income. Al is ineligible because the couple's $490 countable income exceeds the $472 Federal benefit rate for a couple. Since Al is ineligible, we deem to Jeff $18, the amount of income over and above the amount which causes Al to be ineligible (the difference between the countable income and the Federal benefit rate for a couple). We treat the $18 deemed to Jeff as unearned income, and we apply the $20 general income exclusion, reducing Jeff's countable income to zero. Jeff is eligible. [45 FR 65547, Oct. 3, 1980, as amended at 50 FR 48578, Nov. 26, 1985; 52 FR 8887, Mar. 20, 1987; 64 FR 31975, June 15, 1999] § 416.1166a How we deem income to you from your sponsor if you are an alien. Before we deem your sponsor's income to you if you are an alien, we determine how much earned and unearned income your sponsor has under § 416.1161(b). We then deduct allocations for the sponsor and the sponsor's dependents. This is an amount equal to the Federal benefit rate for an individual for the sponsor (or for each sponsor even if two sponsors are married to each other and living together) plus an amount equal to one-half the Federal benefit rate for an eligible individual for each dependent of the sponsor. An ineligible dependent's income is not subtracted from the sponsor's dependent's allocation. We deem the balance of the income to be your unearned income. (a) If you are the only alien applying for or already eligible for SSI benefits who has income deemed to you from your sponsor. (b) If you are not the only alien who is applying for or already eligible for SSI benefits and who has income deemed from your sponsor. (c) When you are an alien and income is no longer deemed from your sponsor. (d) When sponsor deeming rules do not apply to you if you are an alien. (1) You are a refugee. (2) You have been granted asylum. (3) You become blind or disabled. (e) Examples. Example 1. Mr. John, an alien who has no income, has been sponsored by Mr. Herbert who has monthly earned income of $1,300 and unearned income of $70. Mr. Herbert's wife and three children have no income. We add Mr. Herbert's earned and unearned income for a total of $1,370 and apply the allocations for the sponsor and his dependents. Allocations total $1,008. These are made up of $336 (the Federal benefit rate for an eligible individual) for the sponsor, plus $672 (one-half the Federal benefit rate for an eligible individual, $168 each) for Mr. Herbert's wife and three children. The $1,008 is subtracted from Mr. Herbert's total income of $1,370 which leaves $362 to be deemed to Mr. John as his unearned income. Mr. John's only exclusion is the $20 general income exclusion. Since the $342 balance exceeds the $336 Federal benefit rate, Mr. John is ineligible. Example 2. Mr. and Mrs. Smith are an alien couple who have no income and who have been sponsored by Mr. Hart. Mr. Hart has earned income of $1,350 and his wife, Mrs. Hart, who lives with him, has earned income of $150. Their two children have no income. We combine Mr. and Mrs. Hart's income ($1,350 + $150 = $1,500). We deduct the allocations of $336 for Mr. Hart (the Federal benefit rate for an individual) and $504 for Mrs. Hart and the two children ($168 or one-half the Federal benefit rate for an eligible individual for each), a total of $840. The allocations ($840) are deducted from the total $1,500 income which leaves $660. This amount must be deemed independently to Mr. and Mrs. Smith. Mr. and Mrs. Smith would qualify for SSI benefits as a couple in the amount of $504 if no income had been deemed to them. The $1,320 ($660 each to Mr. and Mrs. Smith) deemed income is unearned income to Mr. and Mrs. Smith and is subject to the $20 general income exclusion, leaving $1,300. This exceeds the couple's rate of $504 so Mr. and Mrs. Smith are ineligible for SSI benefits. Example 3. Mr. Bert and Mr. Davis are aliens sponsored by their sister Mrs. Jean, who has earned income of $800. She also receives $250 as survivors' benefits for her two minor children. We do not consider the $250 survivors' benefits to be Mrs. Jean's income because it is the children's income. We exclude $336 for Mrs. Jean (the Federal benefit rate for an individual) plus $336 ($168, one-half the Federal benefit rate for an eligible individual for each child), a total of $672. We subtract the $672 from Mrs. Jean's income of $800, which leaves $128 to be deemed to Mr. Bert and Mr. Davis. Each of the brothers is liable for rent in the boarding house (a commercial establishment) where they live. Each lives in his own household, receives no in-kind support and maintenance, and is eligible for the Federal benefit rate of $336. The $128 deemed income is deemed both to Mr. Bert and to Mr. Davis. As a result, each has countable income of $108 ($128 minus the $20 general income exclusion). This is less than $336, the Federal benefit rate for an individual, so that both are eligible for SSI. We use their income in a prior month to determine their benefit payments. Example 4. The same situation applies as in example 3 except that one of Mrs. Jean's children is disabled and eligible for SSI benefits. The eligibility of the disabled child does not affect the amount of income deemed to Mr. Bert and Mr. Davis since the sponsor-to-alien and parent-to-child rules are applied independently. The child's countable income is computed under the rules in § 416.1165. [52 FR 8887, Mar. 20, 1987] § 416.1167 Temporary absences and deeming rules. (a) General. (1) You, your ineligible spouse, parent, or an ineligible child leaves the household but intends to and does return in the same month or the month immediately following; or (2) You enter a medical treatment facility and are eligible for either benefit payable under § 416.212. We consider your absence to be temporary through the last month benefits under § 416.212 were paid unless you were discharged from the facility in the following month. In that case, we consider your absence to be temporary through the date of discharge. (b) Child away at school. (c) Active duty military service. Example: Tom is a child who receives SSI. In January 1996, Tom's father leaves the household due solely to an active duty assignment as a member of the Armed Forces. Five months later in June 1996, while Tom's father is still on an active duty assignment, Tom's parents file for divorce. As a result, Tom's father will not be returning to live in Tom's household. Therefore, Tom's father should no longer be considered to be living in the same household with Tom. Beginning July 1, 1996, deeming from Tom's father will cease. [50 FR 48579, Nov. 26, 1985, as amended at 61 FR 10280, Mar. 13, 1996; 62 FR 42411, Aug. 7, 1997; 72 FR 50874, Sept. 5, 2007] § 416.1168 How we deem income to you from your essential person. (a) Essential person's income. (b) Determining your eligibility for an SSI benefit. (c) Determining your SSI benefit amount. Exception: [45 FR 65547, Oct. 3, 1980, as amended at 50 FR 48579, Nov. 26, 1985] § 416.1169 When we stop deeming income from an essential person. If including the income deemed to you from your essential person causes you to be ineligible for an SSI benefit, you are no longer considered to have that essential person whose income makes you ineligible. To determine your eligibility for that month we deduct only your own countable income from your Federal benefit rate. However, other deeming rules may then apply as follows: (a) Essential person is your spouse. (b) Essential person is your parent. [50 FR 48579, Nov. 26, 1985] Alternative Income Counting Rules for Certain Blind Individuals § 416.1170 General. (a) What the alternative is. (1) The SSI income exclusions in §§ 416.1112 and 416.1124; or (2) The disregards that would have applied under the State plan for October 1972. (b) State plan. State plan for October 1972 § 416.1171 When the alternative rules apply. (a) Eligibility for the alternative. (1) You were eligible for, and received, assistance for December 1973 under a State plan for October 1972; (2) You have continued to live in that same State since December 1973; (3) You were transferred to the SSI rolls and received a benefit for January 1974; and (4) You have not been ineligible for an SSI benefit for any period of more than 6 consecutive months. (For purposes of this section, an SSI benefit means a Federal benefit; it does not include any State supplementation.) (b) Living in the same State. (1) If you leave the State for 90 calendar days or less, the absence is temporary and you still live in that State; and (2) If you leave the State for more than 90 calendar days, you are no longer living there. Rules for Helping Blind and Disabled Individuals Achieve Self-Support § 416.1180 General. One of the objectives of the SSI program is to help blind or disabled persons become self-supporting. If you are blind or disabled, we will pay you SSI benefits and will not count the part of your income (for example, your or a family member's wages, title II benefits, or pension income) that you use or set aside to use for expenses that we determine to be reasonable and necessary to fulfill an approved plan to achieve self-support. (See §§ 416.1112(c)(9) and 1124(c)(13).) You may develop a plan to achieve self-support on your own or with our help. As appropriate, we will refer you to a State rehabilitation agency or agency for the blind for additional assistance in developing a plan. [45 FR 65547, Oct. 3, 1980, as amended at 51 FR 10616, Mar. 28, 1986; 62 FR 59813, Nov. 5, 1997; 71 FR 28264, May 16, 2006] § 416.1181 What is a plan to achieve self-support (PASS)? (a) A PASS must— (1) Be designed especially for you; (2) Be in writing; (3) Be approved by us (a change of plan must also be approved by us); (4) Have a specific employment goal that is feasible for you, that is, a goal that you have a reasonable likelihood of achieving; (5) Have a plan to reach your employment goal that is viable and financially sustainable, that is, the plan— (i) Sets forth steps that are attainable in order to reach your goal, and (ii) Shows that you will have enough money to meet your living expenses while setting aside income or resources to reach your goal; (6) Be limited to one employment goal; however, the employment goal may be modified and any changes related to the modification must be made to the plan; (7) Show how the employment goal will generate sufficient earnings to substantially reduce or eliminate your dependence on SSI or eliminate your need for title II disability benefits; Example 1: A Substantial Reduction Exists. Your SSI monthly payment amount is $101 and your PASS employment goal earnings will reduce your SSI payment by $90. We may consider that to be a substantial reduction. Example 2: A Substantial Reduction Exists. You receive a title II benefit of $550 and an SSI payment of $73. Your PASS employment goal will result in work over the SGA level that eliminates your title II benefit but increases your SSI payment by $90. We may consider that a substantial reduction because your work will eliminate your title II payment while only slightly increasing your SSI payment. Example 3: A Substantial Reduction Does Not Exist. Your SSI monthly payment amount is $603 and your PASS employment goal earnings will reduce your SSI payment by $90. We may not consider that to be a substantial reduction. (8) Contain a beginning date and an ending date to meet your employment goal; (9) Give target dates for meeting milestones towards your employment goal; (10) Show what expenses you will have and how they are reasonable and necessary to meet your employment goal; (11) Show what money you have and will receive, how you will use or spend it to attain your employment goal, and how you will meet your living expenses; and (12) Show how the money you set aside under the plan will be kept separate from your other funds. (b) You must propose a reasonable ending date for your PASS. If necessary, we can help you establish an ending date, which may be different than the ending date you propose. Once the ending date is set and you begin your PASS, we may adjust or extend the ending date of your PASS based on progress towards your goal and earnings level reached. (c) If your employment goal is self-employment, you must include a business plan that defines the business, provides a marketing strategy, details financial data, outlines the operational procedures, and describes the management plan. (d) Your progress will be reviewed at least annually to determine if you are following the provisions of your plan. [71 FR 28264, May 16, 2006] § 416.1182 When we begin to count the income excluded under the plan. We will begin to count the earned and unearned income that would have been excluded under your plan in the month in which any of the following circumstances first exist: (a) You fail to follow the conditions of your plan; (b) You abandon your plan; (c) You complete the time schedule outlined in the plan; or (d) You reach your goal as outlined in the plan. [45 FR 65547, Oct. 3, 1980, as amended at 50 FR 48579, Nov. 26, 1985] Appendix to Subpart K of Part 416—List of Types of Income Excluded Under the SSI Program as Provided by Federal Laws Other Than the Social Security Act Many Federal statutes in addition to the Social Security Act provide assistance or benefits for individuals and specify that the assistance or benefit will not be considered in deciding eligibility for SSI. We have listed these statutes in this appendix and have placed them in categories according to the kind of income or assistance they provide. The list gives the name of the Federal statute (where possible), the public law number, and the citation. Each item briefly describes what the statute provides that will not reduce or eliminate an SSI payment. More detailed information is available from a social security office or by reference to the statutes. We update this list periodically. However, when new Federal statutes of this kind are enacted, or existing statutes are changed, we apply the law currently in effect, even before this appendix is updated. I. Food (a) Value of food coupons under the Food Stamp Act of 1977, section 1301 of Pub. L. 95-113 (91 Stat. 968, 7 U.S.C. 2017(b)). (b) Value of federally donated foods distributed under section 32 of Pub. L. 74-320 (49 Stat. 774) or section 416 of the Agriculture Act of 1949 (63 Stat. 1058, 7 CFR 250.6(e)(9)). (c) Value of free or reduced price food for women and children under the— (1) Child Nutrition Act of 1966, section 11(b) of Pub. L. 89-642 (80 Stat. 889, 42 U.S.C. 1780(b)) and section 17 of that Act as added by Pub. L. 92-433 (86 Stat. 729, 42 U.S.C. 1786); and (2) National School Lunch Act, section 13(h)(3), as amended by section 3 of Pub. L. 90-302 (82 Stat. 119, 42 U.S.C. 1761(h)(3)). (d) Services, except for wages paid to residents who assist in providing congregate services such as meals and personal care, provided a resident of an eligible housing project under a congregate services program under section 802 of the Cranston-Gonzales National Affordable Housing Act, Public Law 101-625 (104 Stat. 4313, 42 U.S.C. 8011). II. Housing and Utilities (a) Assistance to prevent fuel cut-offs and to promote energy efficiency under the Emergency Energy Conservation Services Program or the Energy Crisis Assistance Program as authorized by section 222(a)(5) of the Economic Opportunity Act of 1964, as amended by section 5(d)(1) of Pub. L. No. 93-644 and section 5(a)(2) of Pub. L. 95-568 (88 Stat. 2294 as amended, 42 U.S.C. 2809(a)(5)). (b) Home energy assistance payments or allowances under title XXVI of the Omnibus Budget Reconciliation Act of 1981, Public Law 97-35, as amended (42 U.S.C. 8624(f)). Note: This exclusion applies to a sponsor's income only if the alien is living in the housing unit for which the sponsor receives the home energy assistance payments or allowances. (c) Value of any assistance paid with respect to a dwelling unit under— (1) The United States Housing Act of 1937; (2) The National Housing Act; (3) Section 101 of the Housing and Urban Development Act of 1965; or (4) Title V of the Housing Act of 1949. Note: This exclusion applies to a sponsor's income only if the alien is living in the housing unit for which the sponsor receives the housing assistance. (d) Payments for relocating, made to persons displaced by Federal or federally assisted programs which acquire real property, under section 216 of Pub. L. 91-646, the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (84 Stat. 1902, 42 U.S.C. 4636). III. Education and Employment (a) Grants or loans to undergraduate students made or insured under programs administered by the Secretary of Education under section 507 of the Higher Education Amendments of 1968, Pub. L. 90-575 (82 Stat. 1063). (b) Any wages, allowances, or reimbursement for transportation and attendant care costs, unless excepted on a case-by-case basis, when received by an eligible handicapped individual employed in a project under title VI of the Rehabilitation Act of 1973 as added by title II of Pub. L. 95-602 (92 Stat. 2992, 29 U.S.C. 795(b)(c)). (c) Student financial assistance for attendance costs received from a program funded in whole or in part under title IV of the Higher Education Act of 1965, as amended, or under Bureau of Indian Affairs student assistance programs if it is made available for tuition and fees normally assessed a student carrying the same academic workload, as determined by the institution, including costs for rental or purchase of any equipment, materials, or supplies required of all students in the same course of study and an allowance for books, supplies, transportation, and miscellaneous personal expenses for a student attending the institution on at least a half-time basis, as determined by the institution, under section 14(27) of Public Law 100-50, the Higher Education Technical Amendments Act of 1987 (20 U.S.C. 1087uu). IV. Native Americans (a) Types of Payments Excluded Without Regard to Specific Tribes or Groups— (1) Indian judgment funds that are held in trust by the Secretary of the Interior or distributed per capita pursuant to a plan prepared by the Secretary of the Interior and not disapproved by a joint resolution of the Congress under Public Law 93-134 as amended by section 4 of Public Law 97-458 (96 Stat. 2513, 25 U.S.C. 1408). Indian judgment funds include interest and investment income accrued while such funds are so held in trust. This exclusion extends to initial purchases made with Indian judgment funds. This exclusion does not apply to sales or conversions of initial purchases or to subsequent purchases. Note: This exclusion applies to the income of sponsors of aliens only if the alien lives in the sponsor's household. (2) All funds held in trust by the Secretary of the Interior for an Indian tribe and distributed per capita to a member of that tribe are excluded from income under Public Law 98-64 (97 Stat. 365, 25 U.S.C. 117b). Funds held by Alaska Native Regional and Village Corporations (ANRVC) are not held in trust by the Secretary of the Interior and therefore ANRVC dividend distributions are not excluded from countable income under this exclusion. For ANRVC dividend distributions, see paragraph IV.(a)(3) of this appendix. Note: This exclusion applies to the income of sponsors of aliens only if the alien lives in the sponsor's household. (3) Distributions received by an individual Alaska Native or descendant of an Alaska Native from an Alaska Native Regional and Village Corporation pursuant to the Alaska Native Claims Settlement Act, as follows: cash, including cash dividends on stock received from a Native Corporation, to the extent that it does not, in the aggregate, exceed $2,000 per individual each year; stock, including stock issued or distributed by a Native Corporation as a dividend or distribution on stock; a partnership interest; land or an interest in land, including land or an interest in land received from a Native Corporation as a dividend or distribution on stock; and an interest in a settlement trust. This exclusion is pursuant to section 15 of the Alaska Native Claims Settlement Act Amendments of 1987, Public Law 100-241 (101 Stat. 1812, 43 U.S.C. 1626(c)), effective February 3, 1988. Note: This exclusion does not apply in deeming income from sponsors to aliens. (4) Up to $2,000 per year received by Indians that is derived from individual interests in trust or restricted lands under section 13736 of Public Law 103-66 (107 Stat. 663, 25 U.S.C. 1408, as amended). (b) Payments to Members of Specific Indian Tribes and Groups (1) Per capita payments to members of the Red Lake Band of Chippewa Indians from the proceeds of the sale of timber and lumber on the Red Lake Reservation under section 3 of Public Law 85-794 (72 Stat. 958). (2) Per capita distribution payments by the Blackfeet and Gros Ventre tribal governments to members which resulted from judgment funds to the tribes under section 4 of Public Law 92-254 (86 Stat. 65) and under section 6 of Public Law 97-408 (96 Stat. 2036). (3) Settlement fund payments and the availability of such funds to members of the Hopi and Navajo Tribes under section 22 of Public Law 93-531 (88 Stat. 1722) as amended by Public Law 96-305 (94 Stat. 929). Note: This exclusion applies to the income of sponsors of aliens only if the alien lives in the sponsor's household. (4) Judgment funds distributed per capita to, or held in trust for, members of the Sac and Fox Indian Nation, and the availability of such funds under section 6 of Public Law 94-189 (89 Stat. 1094). Note: This exclusion applies to the income of sponsors of aliens only if the alien lives in the sponsor's household. (5) Judgment funds distributed per capita to, or held in trust for, members of the Grand River Band of Ottawa Indians, and the availability of such funds under section 6 of Public Law 94-540 (90 Stat. 2504). Note: This exclusion applies to the income of sponsors of aliens only if the alien lives in the sponsor's household. (6) Any judgment funds distributed per capita to members of the Confederated Tribes and Bands of the Yakima Indian Nation or the Apache Tribe of the Mescalero Reservation under section 2 of Public Law 95-433 (92 Stat. 1047, 25 U.S.C. 609c-1). (7) Any judgment funds distributed per capita or made available for programs for members of the Delaware Tribe of Indians and the absentee Delaware Tribe of Western Oklahoma under section 8 of Public Law 96-318 (94 Stat. 971). (8) All funds and distributions to members of the Passamaquoddy Tribe, the Penobscot Nation, and the Houlton Band of Maliseet Indians under the Maine Indian Claims Settlement Act, and the availability of such funds under section 9 of Public Law 96-420 (94 Stat. 1795, 25 U.S.C. 1728(c)). Note: This exclusion applies to the income of sponsors of aliens only if the alien lives in the sponsor's household. (9) Any distributions of judgment funds to members of the San Carlos Apache Indian Tribe of Arizona under section 7 of Public Law 93-134 (87 Stat. 468) and Public Law 97-95 (95 Stat. 1206). Note: This exclusion applies to the income of sponsors of aliens only if the alien lives in the sponsor's household. (10) Any distribution of judgment funds to members of the Wyandot Tribe of Indians of Oklahoma under section 6 of Public Law 97-371 (96 Stat. 1814). (11) Distributions of judgment funds to members of the Shawnee Tribe of Indians (Absentee Shawnee Tribe of Oklahoma, the Eastern Shawnee Tribe of Oklahoma and the Cherokee Band of Shawnee descendants) under section 7 of Public Law 97-372 (96 Stat. 1816). (12) Judgment funds distributed per capita or made available for programs for members of the Miami Tribe of Oklahoma and the Miami Indians of Indiana under section 7 of Public Law 97-376 (96 Stat. 1829). (13) Distributions of judgment funds to members of the Clallam Tribe of Indians of the State of Washington (Port Gamble Indian Community, Lower Elwha Tribal Community and the Jamestown Band of Clallam Indians) under section 6 of Public Law 97-402 (96 Stat. 2021). (14) Judgment funds distributed per capita or made available for programs for members of the Pembina Chippewa Indians (Turtle Mountain Band of Chippewa Indians, Chippewa Cree Tribe of Rocky Boy's Reservation, Minnesota Chippewa Tribe, Little Shell Band of the Chippewa Indians of Montana, and the nonmember Pembina descendants) under section 9 of Public Law 97-403 (96 Stat. 2025). (15) Per capita distributions of judgment funds to members of the Assiniboine Tribe of Fort Belknap Indian Community and the Papago Tribe of Arizona under sections 6 and 8(d) of Public Law 97-408 (96 Stat. 2036, 2038). (16) Up to $2,000 of per capita distributions of judgment funds to members of the Confederated Tribes of the Warm Springs Reservation under section 4 of Public Law 97-436 (96 Stat. 2284). Note: This exclusion applies to the income of sponsors of aliens only if the alien lives in the sponsor's household. (17) Judgment funds distributed to the Red Lake Band of Chippewa Indians under section 3 of Public Law 98-123 (97 Stat. 816). (18) Funds distributed per capita or family interest payments for members of the Assiniboine Tribe of Fort Belknap Indian Community of Montana and the Assiniboine Tribe of the Fort Peck Indian Reservation of Montana under section 5 of Public Law 98-124 (97 Stat. 818). (19) Distributions of judgment funds and income derived therefrom to members of the Shoalwater Bay Indian Tribe under section 5 of Public Law 98-432 (98 Stat. 1672). (20) All distributions to heirs of certain deceased Indians under section 8 of the Old Age Assistance Claims Settlement Act, Public Law 98-500 (98 Stat. 2319). Note: This exclusion applies to the income of sponsors of aliens only if the alien lives in the sponsor's household. (21) Judgment funds distributed per capita or made available for any tribal program for members of the Wyandotte Tribe of Oklahoma and the Absentee Wyandottes under section 106 of Public Law 98-602 (98 Stat. 3151). (22) Per capita and dividend payment distributions of judgment funds to members of the Santee Sioux Tribe of Nebraska, the Flandreau Santee Sioux Tribe, the Prairie Island Sioux, Lower Sioux, and Shakopee Mdewakanton Sioux Communities of Minnesota under section 8 of Public Law 99-130 (99 Stat. 552) and section 7 of Public Law 93-134 (87 Stat. 468), as amended by Public Law 97-458 (96 Stat. 2513; 25 U.S.C. 1407). (23) Funds distributed per capita or held in trust for members of the Chippewas of Lake Superior and the Chippewas of the Mississippi under section 6 of Public Law 99-146 (99 Stat. 782). (24) Distributions of claims settlement funds to members of the White Earth Band of Chippewa Indians as allottees, or their heirs, under section 16 of Public Law 99-264 (100 Stat. 70). (25) Payments or distributions of judgment funds, and the availability of any amount for such payments or distributions, to members of the Saginaw Chippewa Indian Tribe of Michigan under section 6 of Public Law 99-346 (100 Stat. 677). Note: This exclusion applies to the income of sponsors of aliens only if the alien lives in the sponsor's household. (26) Judgment funds distributed per capita or held in trust for members of the Chippewas of Lake Superior and the Chippewas of the Mississippi under section 4 of Public Law 99-377 (100 Stat. 805). (27) Judgment funds distributed to members of the Cow Creek Band of Umpqua Tribe of Indians under section 4 of Public Law 100-139 (101 Stat. 822). (28) Per capita payments of claims settlement funds to members of the Coushatta Tribe of Louisiana under section 2 of Public Law 100-411 (102 Stat. 1097) and section 7 of Public Law 93-134 (87 Stat. 468), as amended by Public Law 97-458 (96 Stat. 2513; 25 U.S.C. 1407). Note: This exclusion applies to the income of sponsors of aliens only if the alien lives in the sponsor's household. (29) Funds distributed per capita for members of the Hoopa Valley Indian Tribe and the Yurok Indian Tribe under sections 4, 6 and 7 of Public Law 100-580 (102 Stat. 2929, 2930, 2931) and section 3 of Public Law 98-64 (97 Stat. 365; 25 U.S.C. 117b). Note: This exclusion applies to the income of sponsors of aliens only if the alien lives in the sponsor's household. (30) Judgment funds held in trust by the United States, including interest and investment income accruing on such funds, and judgment funds made available for programs or distributed to members of the Wisconsin Band of Potawatomi (Hannahville Indian Community and Forest County Potawatomi) under section 503 of Public Law 100-581 (102 Stat. 2945). Note: This exclusion applies to the income of sponsors of aliens only if the alien lives in the sponsor's household. (31) All funds, assets, and income from the trust fund transferred to the members of the Puyallup Tribe under section 10 of the Puyallup Tribe of Indians Settlement Act of 1989, Public Law 101-41 (103 Stat. 88, 25 U.S.C. 1773h(c)). Note: This exclusion does not apply in deeming income from sponsors to aliens. (32) Judgment funds distributed per capita, or held in trust, or made available for programs, for members of the Seminole Nation of Oklahoma, the Seminole Tribe of Florida, the Miccosukee Tribe of Indians of Florida and the independent Seminole Indians of Florida under section 8 of Public Law 101-277 (104 Stat. 145). Note: This exclusion applies to the income of sponsors of aliens only if the alien lives in the sponsor's household. (33) Payments, funds, distributions, or income derived from them to members of the Seneca Nation of New York under section 8(b) of the Seneca Nation Settlement Act of 1990, Public Law 101-503 (104 Stat. 1297, 25 U.S.C. 1774f). Note: This exclusion does not apply in deeming income from sponsors to aliens. (34) Per capita distributions of settlement funds under section 102 of the Fallon Paiute Shoshone Indian Tribes Water Rights Settlement Act of 1990, Public Law 101-618 (104 Stat. 3289) and section 7 of Public Law 93-134 (87 Stat. 468), as amended by Public Law 97-458 (96 Stat. 2513; 25 U.S.C. 1407). (35) Settlement funds, assets, income, payments, or distributions from Trust Funds to members of the Catawba Indian Tribe of South Carolina under section 11(m) of Public Law 103-116 (107 Stat. 1133). (36) Settlement funds held in trust (including interest and investment income accruing on such funds) for, and payments made to, members of the Confederated Tribes of the Colville Reservation under section 7(b) of Public Law 103-436 (108 Stat. 4579). Note: This exclusion applies to the income of sponsors of aliens only if the alien lives in the sponsor's household. (37) Judgment funds distributed under section 111 of the Michigan Indian Land Claims Settlement Act, (Pub. L. 105-143, 111 Stat. 2665). (38) Judgment funds distributed under section 4 of the Cowlitz Indian Tribe Distribution of Judgment Funds Act, (Pub. L. 108-222, 118 Stat. 624). (c) Receipts from Lands Held in Trust for Certain Tribes or Groups (1) Receipts from land held in trust by the Federal government and distributed to members of certain Indian tribes under section 6 of Public Law 94-114 (89 Stat. 579, 25 U.S.C. 459e). Note: This exclusion applies to the income of sponsors of aliens only if the alien lives in the sponsor's household. (2) Receipts derived from trust lands awarded to the Pueblo of Santa Ana and distributed to members of that tribe under section 6 of Public Law 95-498 (92 Stat. 1677). (3) Receipts derived from trust lands awarded to the Pueblo of Zia of New Mexico and distributed to members of that tribe under section 6 of Public Law 95-499 (92 Stat. 1680). V. Other (a) Compensation provided to volunteers by the Corporation for National and Community Service (CNCS), unless determined by the CNCS to constitute the minimum wage in effect under the Fair Labor Standards Act of 1938 (29 U.S.C. 201 et seq. Note: This exclusion does not apply to the income of sponsors of aliens. (b) Any assistance to an individual (other than wages or salaries) under the Older Americans Act of 1965, as amended by section 102(h)(1) of Pub. L. 95-478 (92 Stat. 1515, 42 U.S.C. 3020a). (c) Amounts paid as restitution to certain individuals of Japanese ancestry and Aleuts for losses suffered as a result of evacuation, relocation, and internment during World War II, under the Civil Liberties Act of 1988 and the Aleutian and Pribilof Islands Restitution Act, sections 105(f) and 206(d) of Public Law 100-383 (50 U.S.C. App. 1989 b and c). (d) Payments made on or after January 1, 1989, from the Agent Orange Settlement Fund or any other fund established pursuant to the settlement in the In Re Agent Orange product liability litigation, M.D.L. No. 381 (E.D.N.Y.) under Public Law 101-201 (103 Stat. 1795) and section 10405 of Public Law 101-239 (103 Stat. 2489). (e) Payments made under section 6 of the Radiation Exposure Compensation Act, Public Law 101-426 (104 Stat. 925, 42 U.S.C. 2210). (f) The value of any child care provided or arranged (or any payment for such care or reimbursement for costs incurred for such care) under the Child Care and Development Block Grant Act, as amended by section 8(b) of Public Law 102-586 (106 Stat. 5035). (g) Payments made to individuals because of their status as victims of Nazi persecution excluded pursuant to section 1(a) of the Victims of Nazi Persecution Act of 1994, Public Law 103-286 (108 Stat. 1450). (h) Any matching funds from a demonstration project authorized by the Community Opportunities, Accountability, and Training and Educational Services Act of 1998 (Pub. L. 105-285) and any interest earned on these matching funds in an Individual Development Account, pursuant to section 415 of Pub. L. 105-285 (112 Stat. 2771). (i) Any earnings, Temporary Assistance for Needy Families matching funds, and interest in an Individual Development Account, pursuant to section 103 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (Pub. L. 104-193, 42 U.S.C. 604(h)(4)). (j) Payments made to individuals who were captured and interned by the Democratic Republic of Vietnam as a result of participation in certain military operations, pursuant to section 606 of the Departments of Labor, Health and Human Services and Education and Related Agencies Appropriations Act of 1996 (Pub. L. 105-78). (k) Payments made to certain Vietnam veterans' children with spina bifida, pursuant to section 421 of the Departments of Veterans Affairs and Housing and Urban Development, and Independent Agencies Appropriations Act of 1997 (Pub. L. 104-204, 38 U.S.C. 1805(a)). (l) Payments made to the children of women Vietnam veterans who suffer from certain birth defects, pursuant to section 401 of the Veterans Benefits and Health Care Improvement Act of 2000 (Pub. L. 106-419 (38 U.S.C. 1833(c)). (m) Payments of the refundable child tax credit made under section 24 of the Internal Revenue Code of 1986, pursuant to section 203 of the Economic Growth and Tax Relief Reconciliation Act of 2001, Public Law 107-16 (115 Stat. 49, 26 U.S.C. 24 note). (n) Assistance provided for flood mitigation activities as provided under section 1324 of the National Flood Insurance Act of 1968, pursuant to section 1 of Public Law 109-64 (119 Stat. 1997, 42 U.S.C. 4031). (o) Payments made to individuals under the Energy Employees Occupational Illness Compensation Program Act of 2000, pursuant to section 1 [Div. C, Title XXXVI section 3646] of Public Law 106-398 (114 Stat. 1654A-510, 42 U.S.C. 7385e). [45 FR 65547, Oct. 3, 1980, as amended at 52 FR 8888, Mar. 20, 1987; 57 FR 53851, Nov. 13, 1992; 57 FR 55088, Nov. 24, 1992; 59 FR 8538, Feb. 23, 1994; 62 FR 30982, June 6, 1997; 70 FR 41137, July 18, 2005; 75 FR 1273, Jan. 11, 2010] Subpart L—Resources and Exclusions 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, Pub. L. 93-66, 87 Stat. 154 (42 U.S.C. 1382 note). Source: 40 FR 48915, Oct. 20, 1975, unless otherwise noted. § 416.1201 Resources; general. (a) Resources; defined. (1) If the individual has the right, authority or power to liquidate the property or his or her share of the property, it is considered a resource. If a property right cannot be liquidated, the property will not be considered a resource of the individual (or spouse). (2) Support and maintenance assistance not counted as income under § 416.1157(c) will not be considered a resource. (3) Except for cash reimbursement of medical or social services expenses already paid for by the individual, cash received for medical or social services that is not income under § 416.1103 (a) or (b), or a retroactive cash payment which is income that is excluded from deeming under § 416.1161(a)(16), is not a resource for the calendar month following the month of its receipt. However, cash retained until the first moment of the second calendar month following its receipt is a resource at that time. (i) For purposes of this provision, a retroactive cash payment is one that is paid after the month in which it was due. (ii) This provision applies only to the unspent portion of those cash payments identified in this paragraph (a)(3). Once the cash from such payments is spent, this provision does not apply to items purchased with the money, even if the period described above has not expired. (iii) Unspent money from those cash payments identified in this paragraph (a)(3) must be identifiable from other resources for this provision to apply. The money may be commingled with other funds, but if this is done in such a fashion that an amount from such payments can no longer be separately identified, that amount will count toward the resource limit described in § 416.1205. (4) Death benefits, including gifts and inheritances, received by an individual, to the extent that they are not income in accordance with paragraphs (e) and (g) of § 416.1121 because they are to be spent on costs resulting from the last illness and burial of the deceased, are not resources for the calendar month following the month of receipt. However, such death benefits retained until the first moment of the second calendar month following their receipt are resources at that time. (b) Liquid resources. (c) Nonliquid resources. (2) For purposes of this subpart L, the equity value (i) The price that item can reasonably be expected to sell for on the open market in the particular geographic area involved; minus (ii) Any encumbrances. [40 FR 48915, Oct. 20, 1975, as amended at 44 FR 43266, July 24, 1979; 48 FR 33259, July 21, 1983; 52 FR 4283, Feb. 11, 1987; 52 FR 16845, May 6, 1987; 53 FR 23231, June 21, 1988; 56 FR 36001, July 30, 1991; 57 FR 35461, Aug. 10, 1992; 57 FR 55089, Nov. 24, 1992; 59 FR 27988, May 31, 1994] § 416.1202 Deeming of resources. (a) Married individual. (1) Pension funds that the ineligible spouse may have. Pension funds (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 § 416.1160(d)). (b) Child General. (i) Pension funds of an ineligible parent (or stepparent). Pension funds (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 § 416.1160(d)). (2) Disabled child under age 18. (i) Previously received a reduced SSI benefit while a resident of a medical treatment facility, as described in § 416.414; (ii) Is eligible for medical assistance under a Medicaid State home care plan approved by the Secretary under the provisions of section 1915(c) or authorized under section 1902(e)(3) of the Act; and (iii) Would otherwise be ineligible because of the deeming of his or her parents' resources or income. (c) Applicability. individual [40 FR 48915, Oct. 20, 1975, as amended at 50 FR 38982, Sept. 26, 1985; 52 FR 8888, Mar. 20, 1987; 52 FR 29841, Aug. 12, 1987; 52 FR 32240, Aug. 26, 1987; 60 FR 361, Jan. 4, 1995; 62 FR 1056, Jan. 8, 1997; 65 FR 16815, Mar. 30, 2000; 72 FR 50875, Sept. 5, 2007; 73 FR 28036, May 15, 2008; 75 FR 7554, Feb. 22, 2010] § 416.1203 Deeming of resources of an essential person. In the case of a qualified individual (as defined in § 416.221) whose payment standard has been increased because of the presence of an essential person (as defined in § 416.222), the resources of such qualified individual shall be deemed to include all the resources of such essential person with the exception of the resources explained in §§ 416.1210(t) and 416.1249. If such qualified individual would not meet the resource criteria for eligibility (as defined in §§ 416.1205 and 416.1260) because of the deemed resources, then the payment standard increase because of the essential person will be nullified and the provision of this section will not apply; essential person status is lost permanently. However, if such essential person is an ineligible spouse of a qualified individual or a parent (or spouse of a parent) of a qualified individual who is a child under age 21, then the resources of such person will be deemed to such qualified individual in accordance with the provision in § 416.1202. [39 FR 33797, Sept. 20, 1974, as amended at 51 FR 10616, Mar. 28, 1986; 70 FR 41138, July 18, 2005] § 416.1204 Deeming of resources of the sponsor of an alien. The resources of an alien who first applies for SSI benefits after September 30, 1980, are deemed to include the resources of the alien's sponsor for 3 years after the alien's date of admission into the United States. The date of admission (a) Exclusions from the sponsor's resources. (b) An alien sponsored by more than one sponsor. (c) More than one alien sponsored by one individual. (d) Alien has a sponsor and a parent or a spouse with deemable resources. (e) Alien's sponsor is also the alien's ineligible spouse or parent. (f) Alien's sponsor also is the ineligible spouse or parent of another SSI beneficiary. [52 FR 8888, Mar. 20, 1987, as amended at 61 FR 1712, Jan. 23, 1996; 70 FR 41138, July 18, 2005; 73 FR 28036, May 15, 2008] § 416.1204a Deeming of resources where Medicaid eligibility is affected. Section 416.1161a of this part describes certain circumstances affecting Medicaid eligibility in which the Department will not deem family income to an individual. The Department will follow the same standards, procedures, and limitations set forth in that section with respect to deeming of resources. [49 FR 5747, Feb. 15, 1984] § 416.1205 Limitation on resources. (a) Individual with no eligible spouse. (b) Individual with an eligible spouse. (c) Effective January 1, 1985 and later. Effective date Individual Individual and spouse Jan. 1, 1985 $1,600 $2,400 Jan. 1, 1986 1,700 $2,550 Jan. 1, 1987 1,800 $2,700 Jan. 1, 1988 1,900 $2,850 Jan. 1, 1989 2,000 $3,000 [50 FR 38982, Sept. 26, 1985] § 416.1207 Resources determinations. (a) General. (b) Increase in value of resources. (c) Decrease in value of resources. (d) Treatment of items under income and resource counting rules. (e) Receipts from the sale, exchange, or replacement of a resource. Example: Miss L., a disabled individual, receives a $350 unemployment insurance benefit on January 10, 1986. The benefit is unearned income to Miss L. when she receives it. On January 14, Miss L. uses the $350 payment to purchase shares of stock. Miss L. has exchanged one item (cash) for another item (stock). The $350 payment is never counted as a resource to Miss L. because she exchanged it in the same month she received it. The stock is not income; it is a different form of a resource exchanged for the cash. Since a resource is not countable until the first moment of the month following its receipt, the stock is not a countable resource to Miss L. until February 1. [52 FR 4283, Feb. 11, 1987] § 416.1208 How funds held in financial institution accounts are counted. (a) General. (b) Individually-held account. (c) Jointly-held account Account holders include one or more SSI claimants or recipients. (2) Account holders include one or more deemors. (3) Right to rebut presumption of ownership. Example: The recipient's first month of eligibility is January 1993. In May 1993 the recipient successfully establishes that none of the funds in a 5-year-old jointly-held account belong to her. We do not count any of the funds as resources for the months of January 1993 and continuing. (4) Procedure for rebuttal. (i) Submit his/her statement, along with corroborating statements from other account holders, regarding who owns the funds in the joint account, why there is a joint account, who has made deposits to and withdrawals from the account, and how withdrawals have been spent; (ii) Submit account records showing deposits, withdrawals, and interest (if any) in the months for which ownership of funds is at issue; and (iii) Correct the account title to show that the individual is no longer a co-owner if the individual owns none of the funds; or, if the individual owns only a portion of the funds, separate the funds owned by the other account holder(s) from his/her own funds and correct the account title on the individual's own funds to show they are solely-owned by the individual. [59 FR 27989, May 31, 1994] § 416.1210 Exclusions from resources; general. In determining the resources of an individual (and spouse, if any), the following items shall be excluded: (a) The home (including the land appertaining thereto) to the extent its value does not exceed the amount set forth in § 416.1212; (b) Household goods and personal effects as defined in § 416.1216; (c) An automobile, if used for transportation, as provided in § 416.1218; (d) Property of a trade or business which is essential to the means of self-support as provided in § 416.1222; (e) Nonbusiness property which is essential to the means of self-support as provided in § 416.1224; (f) Resources of a blind or disabled individual which are necessary to fulfill an approved plan for achieving self-support as provided in § 416.1226; (g) Stock in regional or village corporations held by natives of Alaska during the twenty-year period in which the stock is inalienable pursuant to the Alaska Native Claims Settlement Act (see § 416.1228); (h) Life insurance owned by an individual (and spouse, if any) to the extent provided in § 416.1230; (i) Restricted allotted Indian lands as provided in § 416.1234; (j) Payments or benefits provided under a Federal statute other than title XVI of the Social Security Act where exclusion is required by such statute; (k) Disaster relief assistance as provided in § 416.1237; (l) Burial spaces and certain funds up to $1,500 for burial expenses as provided in § 416.1231; (m) Title XVI or title II retroactive payments as provided in § 416.1233; (n) Housing assistance as provided in § 416.1238; (o) Refunds of Federal income taxes and advances made by an employer relating to an earned income tax credit, as provided in § 416.1235; (p) Payments received as compensation for expenses incurred or losses suffered as a result of a crime as provided in § 416.1229; (q) Relocation assistance from a State or local government as provided in § 416.1239; (r) Dedicated financial institution accounts as provided in § 416.1247; (s) Gifts to children under age 18 with life-threatening conditions as provided in § 416.1248; (t) Restitution of title II, title VIII or title XVI benefits because of misuse by certain representative payees as provided in § 416.1249; (u) Any portion of a grant, scholarship, fellowship, or gift used or set aside for paying tuition, fees, or other necessary educational expenses as provided in § 416.1250; (v) Payment of a refundable child tax credit, as provided in § 416.1235; and (w) Any annuity paid by a State to a person (or his or her spouse) based on the State's determination that the person is: (1) A veteran (as defined in 38 U.S.C. 101); and (2) Blind, disabled, or aged. [40 FR 48915, Oct. 20, 1975, as amended at 41 FR 13338, Mar. 30, 1976; 44 FR 15664, Mar. 15, 1979; 48 FR 57127, Dec. 28, 1983; 51 FR 34464, Sept. 29, 1986; 55 FR 28378, July 11, 1990; 58 FR 63890, Dec. 3, 1993; 59 FR 8538, Feb. 23, 1994; 61 FR 1712, Jan. 23, 1996; 61 FR 67207, Dec. 20, 1996; 70 FR 6345, Feb. 7, 2005; 70 FR 41138, July 18, 2005; 71 FR 45378, Aug. 9, 2006; 75 FR 1273, Jan. 11, 2010; 75 FR 54287, Sept. 7, 2010] § 416.1212 Exclusion of the home. (a) Defined. (b) Home not counted. (c) If an individual changes principal place of residence. (d) If an individual leaves the principal place of residence due to domestic abuse. (e) Proceeds from the sale of an excluded home. (2) The value of a promissory note or similar installment sales contract constitutes a “proceed” which can be excluded from resources if— (i) The note results from the sale of an individual's home as described in § 416.1212(a); (ii) Within 3 months of receipt (execution) of the note, the individual purchases a replacement home as described in § 416.1212(a) (see paragraph (f) of this section for an exception); and (iii) All note-generated proceeds are reinvested in the replacement home within 3 months of receipt (see paragraph (g) of this section for an exception). (3) In addition to excluding the value of the note itself, other proceeds from the sale of the former home are excluded resources if they are used within 3 months of receipt to make payment on the replacement home. Such proceeds, which consist of the downpayment and that portion of any installment amount constituting payment against the principal, represent a conversion of a resource. (f) Failure to purchase another excluded home timely. (g) Failure to reinvest proceeds timely. (i) The value of the note; and (ii) That portion of the proceeds, retained by the individual, which was not timely reinvested (2) The note remains a countable resource until the first moment of the month following the receipt of proceeds that are fully and timely reinvested in the replacement home. Failure to reinvest proceeds for a period of time does not permanently preclude exclusion of the promissory note or installment sales contract. However, previously received proceeds that were not timely reinvested remain countable resources to the extent they are retained. Example 1. On July 10, an SSI recipient received his quarterly payment of $200 from the buyer of his former home under an installment sales contract. As of October 31, the recipient has used only $150 of the July payment in connection with the purchase of a new home. The exclusion of the unused $50 (and of the installment contract itself) is revoked back to July 10. As a result, the $50 and the value of the contract as of August 1, are included in a revised determination of resources for August and subsequent months. Example 2. On April 10, an SSI recipient received a payment of $250 from the buyer of his former home under an installment sales contract. On May 3, he reinvested $200 of the payment in the purchase of a new home. On May 10, the recipient received another $250 payment, and reinvested the full amount on June 3. As of July 31, since the recipient has used only $200 of the April payment in connection with the purchase of the new home, the exclusion of the unused $50 (and of the installment contract itself) is revoked back to April 10. As a result, the $50 and the value of the contract as of May 1 are includable resources. Since the recipient fully and timely reinvested the May payment, the installment contract and the payment are again excludable resources as of June 1. However, the $50 left over from the previous payment remains a countable resource. (h) Interest payments. [50 FR 42686, Oct. 22, 1985, as amended at 51 FR 7437, Mar. 4, 1986; 59 FR 43285, Aug. 23, 1994; 75 FR 1273, Jan. 11, 2010] § 416.1216 Exclusion of household goods and personal effects. (a) Household goods. (i) Items of personal property, found in or near the home, that are used on a regular basis; or (ii) Items needed by the householder for maintenance, use and occupancy of the premises as a home. (2) Such items include but are not limited to: Furniture, appliances, electronic equipment such as personal computers and television sets, carpets, cooking and eating utensils, and dishes. (b) Personal effects. (i) Items of personal property ordinarily worn or carried by the individual; or (ii) Articles otherwise having an intimate relation to the individual. (2) Such items include but are not limited to: Personal jewelry including wedding and engagement rings, personal care items, prosthetic devices, and educational or recreational items such as books or musical instruments. We also do not count as resources items of cultural or religious significance to an individual and items required because of an individual's impairment. However, we do count items that were acquired or are held for their value or as an investment because we do not consider these to be personal effects. Such items can include but are not limited to: Gems, jewelry that is not worn or held for family significance, or collectibles. Such items will be subject to the limits in § 416.1205. [70 FR 6345, Feb. 7, 2005] § 416.1218 Exclusion of the automobile. (a) Automobile; defined. automobile (b) Limitation on automobiles. (1) Total exclusion. (2) Other automobiles. [40 FR 48915, Oct. 20, 1975, as amended at 44 FR 43266, July 24, 1979; 50 FR 42687, Oct. 22, 1985; 70 FR 6345, Feb. 7, 2005] § 416.1220 Property essential to self-support; general. When counting the value of resources an individual (and spouse, if any) has, the value of property essential to self-support is not counted, within certain limits. There are different rules for considering this property depending on whether it is income-producing or not. Property essential to self-support can include real and personal property (for example, land, buildings, equipment and supplies, motor vehicles, and tools, etc.) used in a trade or business (as defined in § 404.1066 of part 404), nonbusiness income-producing property (houses or apartments for rent, land other than home property, etc.) and property used to produce goods or services essential to an individual's daily activities. Liquid resources other than those used as part of a trade or business are not property essential to self-support. If the individual's principal place of residence qualifies under the home exclusion, it is not considered in evaluating property essential to self-support. [50 FR 42687, Oct. 22, 1985] § 416.1222 How income-producing property essential to self-support is counted. (a) General. Example 1. Sharon has a small business in her home making hand-woven rugs. The looms and other equipment used in the business have a current market value of $7,000. The value of her equity is $5,500 since she owes $1,500 on the looms. Sharon's net earnings from self-employment is $400. Since Sharon's equity in the looms and other equipment ($5,500) is under the $6,000 limit for property essential to self-support and her net income after expenses ($400) is greater than 6 percent of her equity, her income-producing property is excluded from countable resources. The home is not considered in any way in valuing property essential to self-support. Example 2. Charlotte operates a farm. She owns 3 acres of land on which her home is located. She also owns 10 acres of farm land not connected to her home. There are 2 tool sheds and 2 animal shelters located on the 10 acres. She has various pieces of farm equipment that are necessary for her farming activities. We exclude the house and the 3 acres under the home exclusion (see § 416.1212). However, we look at the other 10 acres of land, the buildings and equipment separately to see if her total equity in them is no more than $6,000 and if the annual rate of return is 6 percent of her equity. In this case, the 10 acres and buildings are valued at $4,000 and the few items of farm equipment and other inventory are valued at $1,500. Charlotte sells produce which nets her more than 6 percent for this year. The 10 acres and other items are excluded as essential to her self-support and they continue to be excluded as long as she meets the 6-percent annual return requirement and the equity value of the 10 acres and other items remains less than $6,000. Example 3. Henry has an automobile repair business valued at $5,000. There are no debts on the property and bills are paid monthly. For the past 4 years the business has just broken even. Since Henry's income from the business is less then 6 percent of his equity, the entire $5,000 is counted as his resources. Since this exceeds the resources limit as described in § 416.1205, he is not eligible for SSI benefits. (b) Exception. (1) Used in a trade or business or nonbusiness income-producing activity; or (2) Not used due to circumstances beyond the individual's control, e.g., illness, and there is a reasonable expectation that the use will resume. Example: John owns a commercial fishing permit granted by the State Commerce Commission, a boat, and fishing tackle. The boat and tackle have an equity value of $6,500. Last year, John earned $2,000 from his fishing business. The value of the fishing permit is not determined because the permit is excluded under the exception. The boat and tackle are producing in excess of a 6 percent return on the excluded equity value, so they are excluded under the general rule (see paragraph (a) of this section) up to $6,000. The $500 excess value is counted toward the resource limit as described in § 416.1205. [50 FR 42687, Oct. 22, 1985] § 416.1224 How nonbusiness property used to produce goods or services essential to self-support is counted. Nonbusiness property is considered to be essential for an individual's (and spouse, if any) self-support if it is used to produce goods or services necessary for his or her daily activities. This type of property includes real property such as land which is used to produce vegetables or livestock only for personal consumption in the individual's household (for example, corn, tomatoes, chicken, cattle). This type of property also includes personal property necessary to perform daily functions exclusive of passenger cars, trucks, boats, or other special vehicles. (See § 416.1218 for a discussion on how automobiles are counted.) Property used to produce goods or services or property necessary to perform daily functions is excluded if the individual's equity in the property does not exceed $6,000. Personal property which is required by the individual's employer for work is not counted, regardless of value, while the individual is employed. Examples of this type of personal property include tools, safety equipment, uniforms and similar items. Example: Bill owns a small unimproved lot several blocks from his home. He uses the lot, which is valued at $4,800, to grow vegetables and fruit only for his own consumption. Since his equity in the property is less than $6,000, the property is excluded as necessary to self-support. [50 FR 42687, Oct. 22, 1985] § 416.1225 An approved plan to achieve self-support; general. If you are blind or disabled, we will pay you SSI benefits and will not count resources that you use or set aside to use for expenses that we determine to be reasonable and necessary to fulfill an approved plan to achieve self-support. [71 FR 28265, May 16, 2006] § 416.1226 What is a plan to achieve self-support (PASS)? (a) A PASS must— (1) Be designed especially for you; (2) Be in writing; (3) Be approved by us (a change of plan must also be approved by us); (4) Have a specific employment goal that is feasible for you, that is, a goal that you have a reasonable likelihood of achieving; (5) Have a plan to reach your employment goal that is viable and financially sustainable, that is, the plan— (i) Sets forth steps that are attainable in order to reach your goal, and (ii) Shows that you will have enough money to meet your living expenses while setting aside income or resources to reach your goal; (6) Be limited to one employment goal; however, the employment goal may be modified and any changes related to the modification must be made to the plan; (7) Show how the employment goal will generate sufficient earnings to substantially reduce your dependence on SSI or eliminate your need for title II disability benefits; Example 1: A Substantial Reduction Exists. Your SSI monthly payment amount is $101 and your PASS employment goal earnings will reduce your SSI payment by $90. We may consider that to be a substantial reduction. Example 2: A Substantial Reduction Exists. You receive a title II benefit of $550 and an SSI payment of $73. Your PASS employment goal will result in work over the SGA level that eliminates your title II benefit but increases your SSI payment by $90. We may consider that a substantial reduction because your work will eliminate your title II payment while only slightly increasing your SSI payment. Example 3: A Substantial Reduction Does Not Exist. Your SSI monthly payment amount is $603 and your PASS employment goal earnings will reduce your SSI payment by $90. We may not consider that to be a substantial reduction. (8) Contain a beginning date and an ending date to meet your employment goal; (9) Give target dates for meeting milestones towards your employment goal; (10) Show what expenses you will have and how they are reasonable and necessary to meet your employment goal; (11) Show what resources you have and will receive, how you will use them to attain your employment goal, and how you will meet your living expenses; and (12) Show how the resources you set aside under the plan will be kept separate from your other resources. (b) You must propose a reasonable ending date for your PASS. If necessary, we can help you establish an ending date, which may be different than the ending date you propose. Once the ending date is set and you begin your PASS, we may adjust or extend the ending date of your PASS based on progress towards your goal and earnings level reached. (c) If your employment goal is self-employment, you must include a business plan that defines the business, provides a marketing strategy, details financial data, outlines the operational procedures, and describes the management plan. (d) Your progress will be reviewed at least annually to determine if you are following the provisions of your plan. [71 FR 28265, May 16, 2006] § 416.1227 When the resources excluded under a plan to achieve self-support begin to count. The resources that were excluded under the individual's plan will begin to be counted as of the first day of the month following the month in which any of these circumstances occur: (a) Failing to follow the conditions of the plan: (b) Abandoning the plan; (c) Completing the time schedule outlined in the plan; or (d) Reaching the goal as outlined in the plan. [50 FR 42688, Oct. 22, 1985] § 416.1228 Exclusion of Alaskan natives' stock in regional or village corporations. (a) In determining the resources of a native of Alaska (and spouse, if any) there will be excluded from resources, shares of stock held in a regional or village corporation during the period of 20 years in which such stock is inalienable, as provided by sections 7(h) and 8(c) of the Alaska Native Claims Settlement Act (43 U.S.C. 1606, 1607). The 20-year period of inalienability terminates on January 1, 1992. (b) As used in this section, native of Alaska § 416.1229 Exclusion of payments received as compensation for expenses incurred or losses suffered as a result of a crime. (a) In determining the resources of an individual (and spouse, if any), any amount received from a fund established by a State to aid victims of crime is excluded from resources for a period of 9 months beginning with the month following the month of receipt. (b) To be excluded from resources under this section, the individual (or spouse) must demonstrate that any amount received was compensation for expenses incurred or losses suffered as the result of a crime. [61 FR 1712, Jan. 23, 1996] § 416.1230 Exclusion of life insurance. (a) General. (b) Definitions Life insurance. (2) Insurer. (3) Insured. (4) Owner. (5) Term insurance. (6) Face value. (7) Cash surrender value. (8) Burial insurance. § 416.1231 Burial spaces and certain funds set aside for burial expenses. (a) Burial spaces General. (2) Burial spaces defined. (3) An agreement representing the purchase of a burial space. (4) Immediate family defined. immediate family (b) Funds set aside for burial expenses Exclusion. (2) Exception for parental deeming situations. (3) Burial funds defined. (4) Recipients currently receiving SSI benefits. i.e. (5) Reductions. (i) The face value of insurance policies on the life of an individual owned by the individual or spouse (if any) if the cash surrender value of those policies has been excluded from resources as provided in § 416.1230; and (ii) Amounts in an irrevocable trust (or other irrevocable arrangement) available to meet the burial expenses. (6) Irrevocable trust or other irrevocable arrangement. (7) Increase in value of burial funds. (8) Burial funds used for some other purpose. (ii) If any excluded funds are used for a purpose other than the burial arrangements of the individual or the individual's spouse for whom the funds were set aside, future SSI benefits of the individual (or the individual and eligible spouse) will be reduced by an amount equal to the amount of excluded burial funds used for another purpose. This penalty for use of excluded burial funds for a purpose other than the burial arrangements of the individual (or spouse) will apply only if, as of the first moment of the month of use, the individual would have had resources in excess of the limit specified in § 416.1205 without application of the exclusion. (9) Extension of burial fund exclusion during suspension. [48 FR 57127, Dec. 28, 1983, as amended at 55 FR 28377, July 11, 1990; 57 FR 1384, Jan. 14, 1992] § 416.1232 Replacement of lost, damaged, or stolen excluded resources. (a) Cash (including any interest earned on the cash) or in-kind replacement received from any source for purposes of repairing or replacing an excluded resource (as defined in § 416.1210) that is lost, damaged, or stolen is excluded as a resource. This exclusion applies if the cash (and the interest) is used to repair or replace the excluded resource within 9 months of the date the individual received the cash. Any of the cash (and interest) that is not used to repair or replace the excluded resource will be counted as a resource beginning with the month after the 9-month period expires. (b) The initial 9-month time period will be extended for a reasonable period up to an additional 9 months where we find the individual had good cause for not replacing or repairing the resource. An individual will be found to have good cause when circumstances beyond his or her control prevented the repair or replacement or the contracting for the repair or replacement of the resource. The 9-month extension can only be granted if the individual intends to use the cash or in-kind replacement items to repair or replace the lost, stolen, or damaged excluded resource in addition to having good cause for not having done so. If good cause is found for an individual, any unused cash (and interest) is counted as a resource beginning with the month after the good cause extension period expires. Exception: For victims of Hurricane Andrew only, (c) The time period described in paragraph (b) of this section (except the time period for individuals granted an additional extension under the Hurricane Andrew provision) may be extended for a reasonable period up to an additional 12 months in the case of a catastrophe which is declared to be a major disaster by the President of the United States if the excluded resource is geographically located within the disaster area as defined by the Presidential order; the individual intends to repair or replace the excluded resource; and, the individual demonstrates good cause why he or she has not been able to repair or replace the excluded resource within the 18-month period. (d) Where an extension of the time period is made for good cause and the individual changes his or her intent to repair or replace the excluded resource, funds previously held for replacement or repair will be counted as a resource effective with the month that the individual reports this change of intent. [44 FR 15662, Mar. 15, 1979, as amended at 50 FR 48579, Nov. 26, 1985; 61 FR 5944, Feb. 15, 1996] § 416.1233 Exclusion of certain underpayments from resources. (a) General. Exception: (b) Retroactive payments. (c) Limitation on exclusion. (d) Funds must be identifiable. (e) Written notice. [51 FR 34464, Sept. 29, 1986, as amended at 54 FR 19164, May 4, 1989; 70 FR 41138, July 18, 2005] § 416.1234 Exclusion of Indian lands. In determining the resources of an individual (and spouse, if any) who is of Indian descent from a federally recognized Indian tribe, we will exclude any interest of the individual (or spouse, if any) in land which is held in trust by the United States for an individual Indian or tribe, or which is held by an individual Indian or tribe and which can only be sold, transferred, or otherwise disposed of with the approval of other individuals, his or her tribe, or an agency of the Federal Government. [59 FR 8538, Feb. 23, 1994] § 416.1235 Exclusion of certain payments related to tax credits. (a) In determining the resources of an individual (and spouse, if any), we exclude for the 9 months following the month of receipt the following funds received on or after March 2, 2004, the unspent portion of: (1) Any payment of a refundable credit pursuant to section 32 of the Internal Revenue Code (relating to the earned income tax credit); (2) Any payment from an employer under section 3507 of the Internal Revenue Code (relating to advance payment of the earned income tax credit); or (3) Any payment of a refundable credit pursuant to section 24 of the Internal Revenue Code (relating to the child tax credit). (b) Any unspent funds described in paragraph (a) of this section that are retained until the first moment of the tenth month following their receipt are countable as resources at that time. (c) Exception: [75 FR 1273, Jan. 11, 2010] § 416.1236 Exclusions from resources; provided by other statutes. (a) For the purpose of § 416.1210(j), payments or benefits provided under a Federal statute other than title XVI of the Social Security Act where exclusion from resources is required by such statute include: (1) Payments made under title II of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (84 Stat. 1902, 42 U.S.C. 4636). (2) Payments made to Native Americans as listed in paragraphs (b) and (c) of section IV of the appendix to subpart K of part 416, as provided by Federal statutes other than the Social Security Act. (3) Indian judgment funds held in trust by the Secretary of the Interior or distributed per capita pursuant to a plan prepared by the Secretary of the Interior and not disapproved by a joint resolution of the Congress under Public Law 93-134, as amended by Public Law 97-458 (25 U.S.C. 1407). Indian judgment funds include interest and investment income accrued while the funds are so held in trust. This exclusion extends to initial purchases made with Indian judgment funds. This exclusion will not apply to proceeds from sales or conversions of initial purchases or to subsequent purchases. (4) The value of the coupon allotment in excess of the amount paid for the coupons under the Food Stamp Act of 1964 (78 Stat. 705, as amended, 7 U.S.C. 2016(c)). (5) The value of assistance to children under the National School Lunch Act (60 Stat. 230, 42 U.S.C. 1751 et seq. (6) The value of assistance to children under the Child Nutrition Act of 1966 (80 Stat. 889, 42 U.S.C. 1780(b)). (7) Any grant or loan to any undergraduate student for educational purposes made or insured under any program administered by the Commissioner of Education as provided by section 507 of the Higher Education Amendments of 1968, Pub. L. 90-575 (82 Stat. 1063). (8) Incentive allowances received under title I of the Comprehensive Employment and Training Act of 1973 (87 Stat. 849, 29 U.S.C. 821(a)). (9) Compensation provided to volunteers by the Corporation for National and Community Service (CNCS), unless determined by the CNCS to constitute the minimum wage in effect under the Fair Labor Standards Act of 1938 (29 U.S.C. 201 et seq. (10) Distributions received by an individual Alaska Native or descendant of an Alaska Native from an Alaska Native Regional and Village Corporation pursuant to the Alaska Native Claims Settlement Act, as follows: cash, including cash dividends on stock received from a Native Corporation, is disregarded to the extent that it does not, in the aggregate, exceed $2,000 per individual each year (the $2,000 limit is applied separately each year, and cash distributions up to $2,000 which an individual received in a prior year and retained into subsequent years will not be counted as resources in those years); stock, including stock issued or distributed by a Native Corporation as a dividend or distribution on stock; a partnership interest; land or an interest in land, including land or an interest in land received from a Native Corporation as a dividend or distribution on stock; and an interest in a settlement trust. This exclusion is pursuant to the exclusion under section 15 of the Alaska Native Claims Settlement Act Amendments of 1987, Public Law 100-241 (43 U.S.C. 1626(c)), effective February 3, 1988. (11) Value of Federally donated foods distributed pursuant to section 32 of Pub. L. 74-320 or section 416 of the Agriculture Act of 1949 (7 CFR 250.6(e)(9) as authorized by 5 U.S.C. 301). (12) All funds held in trust by the Secretary of the Interior for an Indian tribe and distributed per capita to a member of that tribe under Public Law 98-64. Funds held by Alaska Native Regional and Village Corporations (ANRVC) are not held in trust by the Secretary of the Interior and therefore ANRVC dividend distributions are not excluded from resources under this exclusion. For the treatment of ANRVC dividend distributions, see paragraph (a)(10) of this section. (13) Home energy assistance payments or allowances under the Low-Income Home Energy Assistance Act of 1981, as added by title XXVI of the Omnibus Budget Reconciliation Act of 1981, Public Law 97-35 (42 U.S.C. 8624(f)). (14) Student financial assistance for attendance costs received from a program funded in whole or in part under title IV of the Higher Education Act of 1965, as amended, or under Bureau of Indian Affairs student assistance programs if it is made available for tuition and fees normally assessed a student carrying the same academic workload, as determined by the institution, including costs for rental or purchase of any equipment, materials, or supplies required of all students in the same course of study; and an allowance for books, supplies, transportation, and miscellaneous personal expenses for a student attending the institution on at least a half-time basis, as determined by the institution, under section 14(27) of Public Law 100-50, the Higher Education Technical Amendments Act of 1987 (20 U.S.C. 1087uu), or under Bureau of Indian Affairs student assistance programs. (15) Amounts paid as restitution to certain individuals of Japanese ancestry and Aleuts under the Civil Liberties Act of 1988 and the Aleutian and Pribilof Islands Restitution Act, sections 105(f) and 206(d) of Public Law 100-383 (50 U.S.C. app. 1989 b and c). (16) Payments made on or after January 1, 1989, from the Agent Orange Settlement Fund or any other fund established pursuant to the settlement in the In Re Agent Orange product liability litigation, M.D.L. No. 381 (E.D.N.Y.) under Public Law 101-201 (103 Stat. 1795) and section 10405 of Public Law 101-239 (103 Stat. 2489). (17) Payments made under section 6 of the Radiation Exposure Compensation Act, Public Law 101-426 (104 Stat. 925, 42 U.S.C. 2210). (18) Payments made to individuals because of their status as victims of Nazi persecution excluded pursuant to section 1(a) of the Victims of Nazi Persecution Act of 1994, Public Law 103-286 (108 Stat. 1450). (19) Any matching funds and interest earned on matching funds from a demonstration project authorized by Public Law 105-285 that are retained in an Individual Development Account, pursuant to section 415 of Public Law 105-285 (112 Stat. 2771). (20) Any earnings, Temporary Assistance for Needy Families matching funds, and accrued interest retained in an Individual Development Account, pursuant to section 103 of Public Law 104-193 (42 U.S.C. 604(h)(4)). (21) Payments made to individuals who were captured and interned by the Democratic Republic of Vietnam as a result of participation in certain military operations, pursuant to section 606 of Public Law 105-78 and section 657 of Public Law 104-201 (110 Stat. 2584). (22) Payments made to certain Vietnam veterans' children with spina bifida, pursuant to section 421 of Public Law 104-204 (38 U.S.C. 1805(d)). (23) Payments made to the children of women Vietnam veterans who suffer from certain birth defects, pursuant to section 401 of Public Law 106-419, (38 U.S.C. 1833(c)). (24) Assistance provided for flood mitigation activities under section 1324 of the National Flood Insurance Act of 1968, pursuant to section 1 of Public Law 109-64 (119 Stat. 1997, 42 U.S.C. 4031). (25) Payments made to individuals under the Energy Employees Occupational Illness Compensation Program Act of 2000, pursuant to section 1, app. [Div. C. Title XXXVI section 3646] of Public Law 106-398 (114 Stat. 1654A-510, 42 U.S.C. 7385e). (b) In order for payments and benefits listed in paragraph (a) to be excluded from resources, such funds must be segregated and not commingled with other countable resources so that the excludable funds are identifiable. [41 FR 13338, Mar. 30, 1976, as amended at 42 FR 44221, Sept. 2, 1977; 42 FR 54945, Oct. 12, 1977; 43 FR 45555, Oct. 3, 1978; 57 FR 53851, Nov. 13, 1992; 57 FR 55089, Nov. 24, 1992; 59 FR 8538, Feb. 23, 1994; 62 FR 30983, June 6, 1997; 70 FR 41138, July 18, 2005; 75 FR 1274, Jan. 11, 2010] § 416.1237 Assistance received on account of major disaster. (a) Assistance received under the Disaster Relief and Emergency Assistance Act or other assistance provided under a Federal statute because of a catastrophe which is declared to be a major disaster by the President of the United States or comparable assistance received from a State or local government, or from a disaster assistance organization, is excluded in determining countable resources under § 416.1210. (b) Interest earned on the assistance is excluded from resources. [57 FR 53852, Nov. 13, 1992] § 416.1238 Exclusion of certain housing assistance. The value of any assistance paid with respect to a dwelling under the statutes listed in § 416.1124(c)(14) is excluded from resources. [55 FR 28378, July 11, 1990] § 416.1239 Exclusion of State or local relocation assistance payments. In determining the resources of an individual (or spouse, if any), relocation assistance provided by a State or local government (as described in § 416.1124(c)(18)) is excluded from resources for a period of 9 months beginning with the month following the month of receipt. [61 FR 1712, Jan. 23, 1996] § 416.1240 Disposition of resources. (a) Where the resources of an individual (and spouse, if any) are determined to exceed the limitations prescribed in § 416.1205, such individual (and spouse, if any) shall not be eligible for payment except under the conditions provided in this section. Payment will be made to an individual (and spouse, if any) if the individual agrees in writing to: (1) Dispose of, at current market value, the nonliquid resources (as defined in § 416.1201(c)) in excess of the limitations prescribed in § 416.1205 within the time period specified in § 416.1242; and (2) Repay any overpayments (as defined in § 416.1244) with the proceeds of such disposition. (b) Payment made for the period during which the resources are being disposed of will be conditioned upon the disposition of those resources as prescribed in paragraphs (a)(1) and (a)(2) of this section. Any payments so made are (at the time of disposition) considered overpayments to the extent they would not have been paid had the disposition occurred at the beginning of the period for which such payments were made. (c) If an individual fails to dispose of the resources as prescribed in paragraphs (a)(1) and (a)(2) of this section, regardless of the efforts he or she makes to dispose of them, the resources will be counted at their current market value and the individual will be ineligible due to excess resources. We will use the original estimate of current market value unless the individual submits evidence establishing a lower value (e.g., an estimate from a disinterested knowledgeable source). [75 FR 1274, Jan. 11, 2010] § 416.1242 Time limits for disposing of resources. (a) In order for payment conditioned on the disposition of nonliquid resources to be made, the individual must agree in writing to dispose of real property within 9 months and personal property within 3 months. The time period for disposal of property begins on the date we accept the individual's signed written agreement to dispose of the property. If we receive a signed agreement on or after the date we have determined that the individual meets the eligibility requirements described in § 416.202 of this part, with the exception of the resource requirements described in this subpart, our acceptance of the written agreement will occur on the date the individual receives our written notice that the agreement is in effect. If we receive a signed agreement prior to the date we determine that all nonresource requirements are met, our acceptance of the written agreement will not occur until the date the individual receives our written notice that all nonresource requirements are met and that the agreement is in effect. When the written notice is mailed to the individual, we assume that the notice was received 5 days after the date shown on the notice unless the individual shows us that he or she did not receive it within the 5-day period. (b) The 3-month time period for disposition of personal property will be extended an additional 3 months where it is found that the individual had “good cause” for failing to dispose of the resources within the original time period. The rules on the valuation of real property not disposed of within 9 months are described in § 416.1245(b). (c) An individual will be found to have “good cause” for failing to dispose of a resource if, despite reasonable and diligent effort on his part, he was prevented by circumstances beyond his control from disposing of the resource. (d) In determining whether the appropriate time limits discussed in paragraphs (a) and (b) of this section have elapsed, no month will be counted for which an individual's benefits have been suspended as described in § 416.1320, provided that the reason for the suspension is unrelated to the requirements in § 416.1245(b) and that the individual's eligibility has not been terminated as defined in §§ 416.1331 through 416.1335. [40 FR 48915, Oct. 20, 1975, as amended at 53 FR 13257, Apr. 22, 1988; 55 FR 10419, Mar. 21, 1990; 58 FR 60105, Nov. 15, 1993] § 416.1244 Treatment of proceeds from disposition of resources. (a) Upon disposition of the resources, the net proceeds to the individual from the sale are considered available to repay that portion of the payments that would not have been made had the disposition occurred at the beginning of the period for which payment was made. (b) The net proceeds from disposition will normally be the sales price less any encumbrance on the resource and the expenses of sale such as transfer taxes, fees, advertising costs, etc. where, however, a resource has been sold (or otherwise transferred) by an individual to a friend or relative for less than its current market value, the net proceeds will be the current market value less costs of sale and encumbrance. (c) After deducting any amount necessary to raise the individual's (and spouse's, if any) resources to the applicable limits described in § 416.1205, as of the beginning of the disposition period, the balance of the net proceeds will be used to recover the payments made to the individual (and spouse, if any). Any remaining proceeds are considered liquid resources. (d) The overpayment to be recovered is equal to the balance of the net proceeds (as described in paragraph (c) of this section) or the total payments made to the individual (and spouse, if any) for the period of disposition, whichever is less. [40 FR 48915, Oct. 20, 1975, as amended at 50 FR 38982, Sept. 28, 1985] § 416.1245 Exceptions to required disposition of real property. (a) Loss of housing for joint owner. (b) Reasonable efforts to sell. (2) A conditional benefits period involving excess real property begins as described at § 416.1242(a). The conditional benefits period ends at the earliest of the following times: (i) Sale of the property; (ii) Lack of continued reasonable efforts to sell; (iii) The individual's written request for cancellation of the agreement; (iv) Countable resources, even without the conditional exclusion, fall below the applicable limit (e.g., liquid resources have been depleted); or (v) The 9-month disposal period has expired. (3) Reasonable efforts to sell property consist of taking all necessary steps to sell it in the geographic area covered by the media serving the area in which the property is located, unless the individual has good cause for not taking these steps. More specifically, making a reasonable effort to sell means that: (i) Except for gaps of no more than 1 week, an individual must attempt to sell the property by listing it with a real estate agent or by undertaking to sell it himself; (ii) Within 30 days of receiving notice that we have accepted the individual's signed written agreement to dispose of the property, and absent good cause for not doing so, the individual must: (A) List the property with an agent; or (B) Begin to advertise it in at least one of the appropriate local media, place a “For Sale” sign on the property (if permitted), begin to conduct “open houses” or otherwise show the property to interested parties on a continuous basis, and attempt any other appropriate methods of sale; and (iii) The individual accepts any reasonable offer to buy and has the burden of demonstrating that an offer was rejected because it was not reasonable. If the individual receives an offer that is at least two-thirds of the latest estimate of current market value, the individual must present evidence to establish that the offer was unreasonable and was rejected. (4) An individual will be found to have “good cause” for failing to make reasonable efforts to sell under paragraph (b)(3) of this section if he or she was prevented by circumstances beyond his or her control from taking the steps specified in paragraph (b)(3) (i) through (ii) of this section. (5) An individual who has received conditional benefits through the expiration of the 9 month disposal period and whose benefits have been suspended as described at § 416.1320 for reasons unrelated to the property excluded under the conditional benefits agreement, but whose eligibility has not been terminated as defined at §§ 416.1331 through 416.1335, can continue to have the excess real property not included in countable resources upon reinstatement of SSI payments if reasonable efforts to sell the property resume within 1 week of reinstatement. Such an individual will not have to go through a subsequent conditional benefits period. However, the individual whose eligibility has been terminated as defined at §§ 416.1331 through 416.1335 and who subsequently reapplies would be subject to a new conditional benefits period if there is still excess real property. [55 FR 10419, Mar. 21, 1990, as amended at 62 FR 30983, June 6, 1997; 64 FR 31975, June 15, 1999] § 416.1246 Disposal of resources at less than fair market value. (a) General. (2) If the transferred resource (asset) is returned to the individual, the uncompensated value is no longer counted as of the date of return. If the transferred asset is cash, the uncompensated value is reduced as of the date of return by the amount of cash that is returned. No income will be charged as a result of such returns. The returned asset will be evaluated as a resource according to the rules described in §§ 416.1201 through 416.1230 as of the first day of the following month. (3) If the individual receives additional compensation in the form of cash for the transferred asset the uncompensated value is reduced, as of the date the additional cash compensation is received, by the amount of that additional compensation. (b) Fair market value. (c) Compensation. (d)(1) Uncompensated value—General. (2) Suspension of counting as a resource the uncompensated value where necessary to avoid undue hardship. (3) When undue hardship exists. (i) An individual alleges that failure to receive SSI benefits would deprive the individual of food or shelter; and (ii) The applicable Federal benefit rate (plus the federally-administered State supplementary payment level) exceeds the sum of: The individual's monthly countable and excludable income and monthly countable and excludable liquid resources. (e) Presumption that resource was transferred to establish SSI or Medicaid eligibility. (f) Applicability. [48 FR 40885, Sept. 12, 1983, as amended at 50 FR 38982, Sept. 26, 1985; 53 FR 13257, Apr. 22, 1988; 55 FR 10419, Mar. 21, 1990] § 416.1247 Exclusion of a dedicated account in a financial institution. (a) General. (b) Exclusion during a period of suspension or termination Suspension. (2) Termination. [61 FR 67207, Dec. 20, 1996] § 416.1248 Exclusion of gifts to children with life-threatening conditions. In determining the resources of an individual who has not attained 18 years of age and who has a life-threatening condition, we will exclude any gifts from an organization described in section 501(c)(3) of the Internal Revenue Code of 1986 which is exempt from taxation under section 501(a) of such Code. We will exclude any in-kind gift that is not converted to cash and cash gifts to the extent that the total gifts excluded pursuant to this paragraph do not exceed $2000 in any calendar year. In-kind gifts converted to cash are considered under income counting rules in the month of conversion. [70 FR 41139, July 18, 2005] § 416.1249 Exclusion of payments received as restitution for misuse of benefits by a representative payee. In determining the resources of an individual (and spouse, if any), the unspent portion of any payment received by the individual as restitution for title II, title VIII or title XVI benefits misused by a representative payee under § 404.2041, § 408.641 or § 416.641, respectively, is excluded for 9 months following the month of receipt. [70 FR 41139, July 18, 2005] § 416.1250 How we count grants, scholarships, fellowships or gifts. (a) When we determine your resources (or your spouse's, if any), we will exclude for 9 months any portion of any grant, scholarship, fellowship, or gift that you use or set aside to pay the cost of tuition, fees, or other necessary educational expenses at any educational institution, including vocational or technical institutions. The 9 months begin the month after the month you receive the educational assistance. (b)(1) We will count as a resource any portion of a grant, scholarship, fellowship, or gift you (or your spouse, if any) did not use or set aside to pay tuition, fees, or other necessary educational expenses. We will count such portion of a grant, scholarship, fellowship or gift as a resource in the month following the month of receipt. (2) If you use any of the funds that were set aside for tuition, fees, or other necessary educational expenses for another purpose within the 9-month exclusion period, we will count such portion of the funds used for another purpose as income in the month you use them. (3) If any portion of the funds are no longer set aside for paying tuition, fees, or other necessary educational expenses within the 9-month exclusion period, we will count the portion of the funds no longer set aside as income in the month when they are no longer set aside for paying tuition, fees, or other necessary educational expenses. We will consider any remaining funds that are no longer set aside or used to pay tuition, fees, or other educational expenses as a resource in the month following the month we count them as income. (4) We will count any portion of grants, scholarships, fellowships, or gifts remaining unspent after the 9-month exclusion period as a resource beginning with the 10th month after you received the educational assistance. [71 FR 45378, Aug. 9, 2006] § 416.1260 Special resource provision for recipients under a State plan. (a) General. (1) Has, since December 1973, resided continuously in the State under whose plan he was eligible for the month of December 1973; and (2) Has not, since December 1973, been ineligible for an SSI benefit for a period exceeding 6 consecutive months. An SSI benefit means a Federal benefit only; it does not include any State supplementation. (b) For purposes of this section, an individual will cease to reside continuously in a State if he leaves the State with the present intention to abandon his home there. In the absence of evidence to the contrary, (1) If an individual leaves the State for a period of 90 calendar days or less, his absence from the State will be considered temporary and he will be considered to continue to reside in such State; and (2) If an individual leaves the State for a period in excess of 90 calendar days, he will no longer be considered to reside continuously in such State. (c) State plan; defined. an approved State plan as in effect in October 1972 State plan for October 1972 [41 FR 47424, Oct. 29, 1976, as amended at 52 FR 29841, Aug. 12, 1987] § 416.1261 Application of special resource provision. In determining the resources of an individual (and spouse, if any) who meets the conditions specified in § 416.1260(a), either the State plan resource limit and exclusions (as specified in § 416.1260) or the resource limit (as specified in § 416.1205) and exclusions (as specified in § 416.1210), whichever is most advantageous to the individual (and spouse, if any) will be used. § 416.1262 Special resource provision applicable in cases involving essential persons. (a) Essential persons continuously meet criteria of eligibility. (b) Essential person fails to meet criteria of eligibility. [39 FR 33797, Sept. 20, 1974, as amended at 51 FR 10616, Mar. 28, 1986] § 416.1264 Spouse ineligible under a State plan in December 1973. In the case of an individual who meets the conditions specified in § 416.1260 but whose spouse does not meet such conditions, whichever of the following is most advantageous for the individual (and spouse, if any) will be applied: (a) The resource limitation and exclusions for an individual as in effect under the approved State plan for October 1972, or (b) The resource limitation (as specified in § 416.1205) and exclusions (as specified in § 416.1210) for an individual and eligible spouse or an individual living with an ineligible spouse. § 416.1266 Individual under special resource provision dies after December 1973. Where only one person, either the eligible individual or the eligible spouse, meets the conditions specified in § 416.1260 and that person dies after December 1973, the State plan resource limitation and exclusions will not be applied to determine the amount of resources of the surviving individual. The resource limitation (as specified in § 416.1205) and exclusions (as specified in § 416.1210) will be applied for the now eligible individual beginning with the month such person is considered the eligible individual as defined in subpart A of this part. Subpart M—Suspensions and Terminations Authority: Secs. 702(a)(5), 1129A, 1611-1614, 1619, and 1631 of the Social Security Act (42 U.S.C. 902(a)(5), 1320a-8a, 1382-1382c, 1382h, and 1383). Source: 40 FR 1510, Jan. 8, 1975, unless otherwise noted. § 416.1320 Suspensions; general. (a) When suspension is proper. (b) Effect of suspension. (2) A month of ineligibility for purposes of determining when to prorate the SSI benefit payment for a subsequent month, is a month for which the individual is ineligible for any Federal SSI benefit and any federally administered State supplementation. (c) Actions which are not suspensions. (1) The claimant was notified in accordance with § 416.210(c) at or about the time he filed application and before he received payment of a benefit that he should file a claim for a payment of the type discussed in § 416.1330 and such claimant has failed, without good cause (see § 416.210(e)(2)), to take all appropriate steps within 30 days after receipt of such notice to file and prosecute an application for such payment; (2) Upon initial application, payment of benefits was conditioned upon disposal of specified resources which exceeded the permitted amount and the claimant did not comply with the agreed-upon conditions; (3) Payment was made to an individual faced with a financial emergency who was later found to have been not eligible for payment; or (4) Payment was made to an individual presumed to be disabled and such disability is not established. (d) Exception. (1) You are participating in an appropriate program of vocational rehabilitation services, employment services, or other support services, as described in § 416.1338(c) and (d); (2) You began participating in the program before the date your disability or blindness ended; and (3) We have determined under § 416.1338(e) that your completion of the program, or your continuation in the program for a specified period of time, will increase the likelihood that you will not have to return to the disability or blindness benefit rolls. [40 FR 1510, Jan. 8, 1975, and 47 FR 31544, July 21, 1982; 47 FR 52693, Nov. 23, 1982, as amended at 51 FR 13494, Apr. 21, 1986; 51 FR 17618, May 14, 1986; 56 FR 55453, Oct. 28, 1991. Redesignated at 68 FR 53509, Sept. 11, 2003; 70 FR 36508, June 24, 2005] § 416.1321 Suspension for not giving us permission to contact financial institutions. (a) If you don't give us permission to contact any financial institution and request any financial records about you when we think it is necessary to determine your SSI eligibility or payment amount, or if you cancel the permission, you cannot be eligible for SSI payments ( see (b) We will suspend your payments starting with the month after the month in which we notify you in writing that: (1) You failed to give us permission to contact any financial institution and request any financial records about you, or (2) The person(s) whose income and resources we consider as being available to you failed to give us such permission. (c) If you are otherwise eligible, we will start your benefits in the month following the month in which: (1) You give us permission to contact any financial institution and request any financial records about you, or (2) The person(s) whose income and resources we consider as being available to you gives us such permission. [68 FR 53509, Sept. 11, 2003] § 416.1322 Suspension due to failure to comply with request for information. (a) Suspension of benefit payments is required effective with the month following the month in which it is determined in accordance with § 416.714(b) that the individual is ineligible for payment due to his or her failure to comply with our request for necessary information. When we have information to establish that benefit payments are again payable, the benefit payments will be reinstated for any previous month for which the individual continued to meet the eligibility requirements of § 416.202. If the reason that an individual's benefits were suspended was failure to comply with our request for information, the payments for the months that benefits are reinstated will not be prorated under § 416.421. (b) A suspension of payment for failure to comply with our request for information will not apply with respect to any month for which a determination as to eligibility for or amount of payment can be made based on information on record, whether or not furnished by an individual specified in § 416.704(a). Where it is determined that the information of record does not permit a determination with respect to eligibility for or amount of payment, notice of a suspension of payment due to a recipient's failure to comply with a request for information will be sent in accordance with §§ 416.1336 and 416.1404. [51 FR 13494, Apr. 21, 1986] § 416.1323 Suspension due to excess income. (a) Effective date. (b) Resumption of payments. [40 FR 1510, Jan. 8, 1975, as amended at 51 FR 13494, Apr. 21, 1986; 65 FR 16815, Mar. 30, 2000] § 416.1324 Suspension due to excess resources. (a) Effective date. (1) Ineligibility exists because countable resources are in excess of: (i) The resource limits prescribed in § 416.1205 for an individual and an individual and spouse, or (ii) In the case of an eligible individual (and eligible spouse, if any) who for the month of December 1973 was a recipient of aid or assistance under a State plan approved under title I, X, XIV, or XVI of the Act, the maximum amount of resources specified in such State plan as in effect for October 1972, if greater than the amounts specified in § 416.1205, as applicable; or (2) After eligibility has been established, payment of benefits was conditioned upon disposal of specified resources, which exceeded the permitted amount and the claimant did not comply with the agreed upon conditions. (3) The amount of an individual's or couple's countable resources is determined as of the first moment of each calendar quarter. (b) Resumption of payments. [40 FR 1510, Jan. 8, 1975, as amended at 50 FR 38982, Sept. 26, 1985; 51 FR 13494, Apr. 21, 1986] § 416.1325 Suspension due to status as a resident of a public institution. (a) Except as provided in § 416.211 (b) and (c), a recipient is ineligible for benefits for the first full calendar month in which he or she is a resident of a public institution (as defined in § 416.201) throughout the calendar month (as defined in § 416.211(a)), and payments are suspended effective with such first full month. Such ineligibility continues for so long as such individual remains a resident of a public institution. (b) Resumption of payments. [51 FR 13494, Apr. 21, 1986] § 416.1327 Suspension due to absence from the United States. (a) Suspension effective date. (1) United States (2) Day (3) In determining whether a recipient has been outside the United States for a full calendar month, it must be established whether the recipient is outside the United States for 30 consecutive days or more. If yes, he or she will be treated as remaining outside the United States until he or she has returned to and remained in the United States for a period of 30 consecutive days. When a recipient has been outside the United States, the first period of 30 consecutive days of absence is counted beginning with the day after the day the recipient departs from the United States and ending with the day before the day on which he or she returns to the United States. When a recipient has returned to the United States, the second period of 30 consecutive days starts on the day the individual returned and ends on the 30th day of continuous presence in the United States. Benefits will be suspended effective with the first full calendar month in which a recipient is outside the United States. (b) Resumption of payments after absence from the United States. (1) Effective with the day following the 30th day of continuous presence in the United States after the recipient's return if the absence was for 30 consecutive days or more. (2) Effective with the day the recipient returned to the United States, if the absence from the United States was for a full calendar month, but for less than 30 consecutive days (this can occur only for the calendar month of February). Example 1: Mike left the United States on March 1 and returned on April 1. Counting March 2 through March 31, he was outside the United States for 30 consecutive days; thus he is also deemed to be outside the United States for 30 additional consecutive days. Therefore, for April 1 through April 30, he is deemed to be outside the United States and not eligible for the calendar month of April. Payments start effective May 1. Example 2: Mary left the United States on April 15 and returned on July 1. Counting April 16 through June 30, she was actually outside the United States and not eligible for the calendar months of May and June. Since she was absent for more than 30 consecutive days, she is deemed to be outside the United States for 30 additional consecutive days. Therefore, for July 1 through July 30, she is deemed to be outside the United States and not eligible for payment until July 31. [51 FR 13494, Apr. 21, 1986; 51 FR 17332, May 12, 1986] § 416.1329 Suspension due to loss of United States residency, United States citizenship, or status as an alien lawfully admitted for permanent residence or otherwise permanently residing in the United States under color of law. (a) A recipient ceases to be an eligible individual or eligible spouse, under section 1614(a)(1)(B) of the Act, when he or she ceases to meet the requirement of § 416.202(b) with respect to United States residency, United States citizenship, or status as an alien lawfully admitted for permanent residence or otherwise permanently residing in the United States under color of law. Payments are suspended effective with the first month after the last month in which a recipient meets the requirements of § 416.202(b). (b) Resumption of payments. [51 FR 13495, Apr. 21, 1986] § 416.1330 Suspension due to failure to apply for and obtain other benefits. (a) Suspension effective date. (b) Resumption of payment. [51 FR 13495, Apr. 21, 1986] § 416.1331 Termination of your disability or blindness payments. (a) General. (b) After we make a determination that you are not now disabled or blind. [49 FR 22274, May 29, 1984, as amended at 60 FR 8152, Feb. 10, 1995; 65 FR 42792, July 11, 2000; 70 FR 36508, June 24, 2005; 91 FR 16831, Apr. 3, 2026] § 416.1332 Termination of benefit for disabled individual: Exception. Special SSI cash benefits (see § 416.261) will be payable for the period beginning January 1, 1981, and ending June 30, 1987 if you meet eligibility requirements in § 416.262. These requirements apply if you, as a disabled recipient, are no longer eligible for regular SSI benefits because you demonstrate that you are able to engage in SGA. [47 FR 15325, Apr. 9, 1982, as amended at 50 FR 46763, Nov. 13, 1985] § 416.1333 Termination at the request of the recipient. A recipient, his legal guardian, or his representative payee, may terminate his eligibility for benefits under this part by filing a written request for termination which shows an understanding that such termination may extend to other benefits resulting from eligibility under this part. In the case of a representative payee there must also be a showing which establishes that no hardship would result if an eligible recipient were not covered by the supplemental security income program. When such a request is filed, the recipient ceases to be an eligible individual, or eligible spouse, effective with the month following the month the request is filed with the Social Security Administration unless the recipient specifies some other month. However, the Social Security Administration will not effectuate the request for any month for which payment has been or will be made unless there is repayment, or assurance of repayment, of any amounts paid for those months (e.g., from special payments which would be payable for such months under section 228 of the Act). When the Social Security Administration effectuates a termination of eligibility at the request of the recipient, his legal guardian, or his representative payee, notice of the determination will be sent in accordance with § 416.1404, and eligibility, once terminated, can be reestablished, except as provided by § 416.1408, only upon the filing of a new application. [42 FR 39100, Aug. 2, 1977] § 416.1334 Termination due to death of recipient. Eligibility for benefits ends with the month in which the recipient dies. Payments are terminated effective with the month after the month of death. § 416.1335 Termination due to continuous suspension. We will terminate your eligibility for benefits following 12 consecutive months of benefit suspension for any reason beginning with the first month you were no longer eligible for regular SSI cash benefits, federally-administered State supplementation, special SSI cash benefits described in § 416.262, or special SSI eligibility status described in § 416.265. We will count the 12-month suspension period from the start of the first month that you are no longer eligible for SSI benefits (see § 416.1320(a)) or the start of the month after the month your special SSI eligibility status described in § 416.265 ended. This termination is effective with the start of the 13th month after the suspension began. [60 FR 8153, Feb. 10, 1995, as amended at 64 FR 31975, June 15, 1999] § 416.1336 Notice of intended action affecting recipient's payment status. (a) Advance written notice requirement. (b) Continuation of payment pending an appeal. (c) Waiver of right to continued payment. [43 FR 18170, Apr. 28, 1978, as amended at 65 FR 16815, Mar. 30, 2000] § 416.1337 Exceptions to the continuation of previously established payment level. (a) Multiple payments exception. (2) The advance notice shall explain: (i) That multiple payments were made in the one or more months identified in the notice; (ii) The correct amount of monthly benefits that the recipient is eligible to receive; and (iii) The recipient's appeal rights. (3) If an appeal is filed within 10 days after receipt of the written notice of intent, the highest of the two or more check amounts, or the correct amount if higher (subject to the dollar limitation provisions), shall be continued until a decision on such initial level of appeal is issued. See § 416.1474 for criteria as to good cause for failure to file a timely appeal. For purposes of this paragraph, the date of receipt of the notice of intent shall be presumed to be 5 days after the date on the face of such notice, unless there is a reasonable showing to the contrary. (4) The fact that a recipient is receiving multiple payments is established if the records of the Social Security Administration show that: (i) Two or more checks are being sent to an individual under the same name or a common logical spelling variation of the name; (ii) The social security number is the same or a pseudo number appears; (iii) The checks are being sent to the same address; (iv) The sex code for such individual is the same; and (v) The date of birth for such individual is the same. (b) Dollar limitation exception. (2) The advance notice shall explain: (i) That an erroneous monthly payment which exceeds the dollar limitation applicable to the recipient's payment category was made in the one or more months identified in the notice; (ii) The correct amount of monthly benefits that the recipient is eligible to receive; and (iii) The recipient's appeal rights. (3) If an appeal is filed within 10 days after receipt of the written notice of the intent (see § 416.1474 for criteria as to good cause for failure to file a timely appeal), the amount of payment to be continued, pending decision on appeal, shall be determined as follows: (i) Recipient in payment status. (ii) Recipient in nonpayment status. For purposes of this paragraph, the date of receipt of the notice of planned action shall be presumed to be 5 days after the date on the face of such notice, unless there is a reasonable showing to the contrary. (4) The payment categories and dollar limitations are as follows: Payment Category and Dollar Limitation (i) Federal supplemental security income benefit only Recipients whose records indicate eligibility for Federal supplemental security income benefits for the month before the month the dollar limitation was first exceeded. (ii) Federal supplemental security income benefit and optional supplementation, or optional supplementation only Recipients whose records indicate they were eligible for Federal supplemental security income benefits plus federally-administered optional supplementation, or eligible for federally-administered optional supplementation only, for the month before the month the dollar limitation was first exceeded. (iii) Federal supplemental security income benefit and mandatory or other supplementation, or mandatory supplementation only Recipients whose records show eligibility for Federal supplemental security income benefits and federally-administered mandatory supplementation or essential person increment for the month before the month the dollar limitation was first exceeded. This category also includes those eligible for federally-administered mandatory supplementation only and those eligible for Federal supplemental security income benefits plus an essential person increment and federally-administered optional supplementation. [43 FR 18170, Apr. 28, 1978, as amended at 65 FR 40495, June 30, 2000] § 416.1338 If you are participating in an appropriate program of vocational rehabilitation services, employment services, or other support services. (a) When may your benefits based on disability or blindness be continued? (1) You are participating in an appropriate program of vocational rehabilitation services, employment services, or other support services, as described in paragraphs (c) and (d) of this section; (2) You began participating in the program before the date your disability or blindness ended; and (3) We have determined under paragraph (e) of this section that your completion of the program, or your continuation in the program for a specified period of time, will increase the likelihood that you will not have to return to the disability or blindness benefit rolls. (b) When will we stop your benefits? (1) The month in which you complete the program; or (2) The month in which you stop participating in the program for any reason (see paragraph (d) of this section for what we mean by “participating” in the program); or (3) The month in which we determine under paragraph (e) of this section that your continuing participation in the program will no longer increase the likelihood that you will not have to return to the disability or blindness benefit rolls. Exception to paragraph (b): (c) What is an appropriate program of vocational rehabilitation services, employment services, or other support services? (1) A program that is carried out under an individual work plan with an employment network under the Ticket to Work and Self-Sufficiency Program under part 411 of this chapter; (2) A program that is carried out under an individualized plan for employment with— (i) A State vocational rehabilitation agency ( i.e., (ii) An organization administering a Vocational Rehabilitation Services Project for American Indians with Disabilities authorized under section 121 of part C of title I of the Rehabilitation Act of 1973, as amended (29 U.S.C. 741); (3) A program of vocational rehabilitation services, employment services, or other support services that is carried out under a similar, individualized written employment plan with— (i) An agency of the Federal government (for example, the Department of Veterans Affairs); (ii) A one-stop delivery system or specialized one-stop center described in section 134(c) of the Workforce Investment Act of 1998 (29 U.S.C. 2864(c)); or (iii) Another provider of services approved by us; providers we may approve include, but are not limited to— (A) A public or private organizations with expertise in the delivery or coordination of vocational rehabilitation services, employment services, or other support services; or (B) A public, private or parochial school that provides or coordinates a program of vocational rehabilitation services, employment services, or other support services carried out under an individualized program or plan; (4) An individualized education program developed under policies and procedures approved by the Secretary of Education for assistance to States for the education of individuals with disabilities under the Individuals with Disabilities Education Act, as amended (20 U.S.C. 1400 et seq. (d) When are you participating in the program? (1) You are participating in a program described in paragraph (c)(1), (c)(2) or (c)(3) of this section when you are taking part in the activities and services outlined in your individual work plan, your individualized plan for employment, or your similar individualized written employment plan, as appropriate. (2) If you are a student age 18 through 21 receiving services under an individualized education program described in paragraph (c)(4) of this section, you are participating in your program when you are taking part in the activities and services outlined in your program or plan. (3) You are participating in your program under paragraph (d)(1) or (2) of this section during temporary interruptions in your program. For an interruption to be considered temporary, you must resume taking part in the activities and services outlined in your plan or program, as appropriate, no more than three months after the month the interruption occurred. (e) How will we determine whether or not your completion of the program, or your continuation in the program for a specified period of time, will increase the likelihood that you will not have to return to the disability or blindness benefit rolls? (i) Work experience (see § 416.965) so that you would more likely be able to do past relevant work (see § 416.960(b)), despite a possible future reduction in your residual functional capacity (see § 416.945); or (ii) Education (see § 416.964) and/or skilled or semi-skilled work experience (see § 416.968) so that you would more likely be able to adjust to other work that exists in the national economy (see § 416.960(c)), despite a possible future reduction in your residual functional capacity (see § 416.945). (2) If you are a student age 18 through age 21 participating in an individualized education program described in paragraph (c)(4) of this section, we will find that your completion of or continuation in the program will increase the likelihood that you will not have to return to the disability or blindness benefit rolls. (3) If you are receiving transition services after having completed an individualized education program as described in paragraph (e)(2) of this section, we will determine that the transition services will increase the likelihood that you will not have to return to the disability benefit rolls if they meet the requirements in paragraph (e)(1) of this section. [70 FR 36508, June 24, 2005] § 416.1339 Suspension due to flight to avoid criminal prosecution or custody or confinement after conviction, or due to violation of probation or parole. (a) Basis for suspension. (1) Fleeing to avoid prosecution for a crime, or an attempt to commit a crime, which is a felony under the laws of the place from which the individual flees (or which, 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 for a crime, or an attempt to commit a crime, which is a felony under the laws of the place from which the individual flees (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. (b) Suspension effective date. (i) The month in which a warrant or order for the individual's arrest or apprehension, an order requiring the individual's 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 on the basis of an appropriate finding that the individual— (A) Is fleeing, or has fled, to avoid prosecution as described in paragraph (a)(1) of this section; (B) Is fleeing, or has fled, to avoid custody or confinement after conviction as described in paragraph (a)(2) of this section; (C) Is violating, or has violated, a condition of his or her probation or parole as described in paragraph (a)(3) of this section; or (ii) The first month during which the individual fled to avoid such prosecution, fled to avoid such custody or confinement after conviction, or violated a condition of his or her probation or parole, if indicated in such warrant or order, or in a decision by a court or other appropriate tribunal. (2) An individual will not be considered to be ineligible for SSI benefits and benefit payments will not be suspended under this section for any month prior to August 1996. (c) Resumption of payments. [65 FR 40495, June 30, 2000] § 416.1340 Penalty for making false or misleading statements or withholding information. (a) Why would SSA penalize me? (1) You make, or cause to be made, a statement or representation of a material fact, for use in determining any initial or continuing right to, or the amount of, monthly insurance benefits under title II or benefits or payments under title XVI, that you know or should know is false or misleading; or (2) You make a statement or representation of a material fact for use as described in paragraph (a)(1) of this section with knowing disregard for the truth; or (3) You omit from a statement or representation made for use as described in paragraph (a)(1) of this section, or otherwise withhold disclosure (for example, fail to come forward to notify us) of, a fact which you know or should know is material to the determination of any initial or continuing right to, or the amount of, monthly insurance benefits under title II or benefits or payments under title XVI, if you know, or should know, that the statement or representation with such omission is false or misleading or that the withholding of such disclosure is misleading. (b) What is the penalty? (c) How long will the penalty last? (1) Six consecutive months the first time we penalize you; (2) Twelve consecutive months the second time we penalize you; and (3) Twenty-four consecutive months the third or subsequent time we penalize you. (d) Will this penalty affect any of my other government benefits? (1) Your eligibility for benefits that you would otherwise be eligible for under titles XVIII and XIX but for the imposition of the penalty; and (2) The eligibility or amount of benefits payable under titles II or XVI to another person. For example, if you and your spouse are receiving title XVI benefits, those benefit payments to your spouse based on the benefit rate for a couple will not be affected because of the penalty. Your spouse will receive one half of the couple rate. (e) How will SSA make its decision to penalize me? (f) What should I do if I disagree with SSA's initial determination to penalize me? (g) When will the penalty period begin and end? (1) If you do not request reconsideration of our initial determination to penalize you, the penalty period will begin no earlier than the first day of the second month following the month in which the time limit for requesting reconsideration ends. The penalty period will end on the last day of the final month of the penalty period. For example, if the time period for requesting reconsideration ends on January 10, a 6-month period of nonpayment begins on March 1 if you would otherwise be eligible to receive benefits for that month, and ends on August 31. (2) If you request reconsideration of our initial determination to penalize you and the reconsidered determination does not change our original decision to penalize you, the penalty period will begin no earlier than the first day of the second month following the month we notify you of our reconsidered determination. The penalty period will end on the last day of the final month of the penalty period. For example, if we notify you of our reconsidered determination on August 31, 2001, and you are not otherwise eligible for payment of benefits at that time, but would again be eligible to receive payment of benefits on October 1, 2003, a 6-month period of nonpayment would begin on October 1, 2003 and end on March 31, 2004. [65 FR 42286, July 10, 2000, as amended at 71 FR 61409, Oct. 18, 2006] Subpart N—Determinations, Administrative Review Process, and Reopening of Determinations and Decisions Authority: Secs. 702(a)(5), 1631, and 1633 of the Social Security Act (42 U.S.C. 902(a)(5), 1383, and 1383b); sec. 202, Pub. L. 108-203, 118 Stat. 509 (42 U.S.C. 902 note). Source: 45 FR 52096, Aug. 5, 1980, unless otherwise noted. Introduction, Definitions, and Initial Determinations § 416.1400 Introduction. (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. [45 FR 52096, Aug. 5, 1980, as amended at 51 FR 305, Jan. 3, 1986; 52 FR 4004, Feb. 9, 1987; 80 FR 14838, Mar. 20, 2015; 81 FR 90995, Dec. 16, 2016] § 416.1401 Definitions. As used in this subpart: Date you receive notice Decision Determination Mass change Preponderance of the evidence Remand Substantial evidence Vacate Waive We, us, our You your [45 FR 52096, Aug. 5, 1980, as amended at 59 FR 43038, Aug. 22, 1994; 73 FR 76944, Dec. 18, 2008] § 416.1402 Administrative actions that are initial determinations. Initial determinations are the determinations we make that are subject to administrative and judicial review. We will base our initial determination on the preponderance of the evidence. We will state the important facts and give the reasons for our conclusions in the initial determination. Initial determinations regarding supplemental security income benefits include, but are not limited to, determinations about— (a) Your eligibility for, or the amount of, your supplemental security income benefits or your special SSI cash benefits under § 416.262, except actions solely involving transitions to eligibility between these types of benefits (see §§ 416.1403 (a)(13) and (a)(14)). (b) Suspension, reduction, or termination of your SSI benefits or special SSI cash benefits (see §§ 416.261 and 416.262) or suspension or termination of your special SSI eligibility status (see §§ 416.264 through 416.269); (c) Whether an overpayment of benefits must be repaid to us; (d) Whether the payment of your benefits will be made, on your behalf, to a representative payee; (e) Who will act as your payee if we determine that representative payment will be made; (f) Imposing penalties for failing to report important information; (g) Your drug addiction or alcoholism; (h) Whether you are eligible for special SSI eligibility status under § 416.265; (i) Your disability; (j) Whether your completion of, or continuation for a specified period of time in, an appropriate program of vocational rehabilitation services, employment services, or other support services will increase the likelihood that you will not have to return to the disability or blindness benefit rolls, and thus, whether your benefits may be continued even though you are not disabled or blind; (k) Whether or not you have a disabling impairment as defined in § 416.911; (l) How much and to whom benefits due a deceased individual will be paid; (m) A claim for benefits under § 416.351 based on alleged misinformation; (n) Our calculation of the amount of change in your federally administered State supplementary payment amount ( i.e. (o) Whether we were negligent in investigating or monitoring or failing to investigate or monitor your representative payee, which resulted in the misuse of benefits by your representative payee. [45 FR 52096, Aug. 5, 1980, as amended at 47 FR 15325, Apr. 9, 1982; 49 FR 22275, May 29, 1984; 58 FR 52913, Oct. 13, 1993; 59 FR 41405, Aug. 12, 1994; 59 FR 43039, Aug. 22, 1994; 59 FR 44928, Aug. 31, 1994; 60 FR 8153, Feb. 10, 1995; 60 FR 14215, Mar. 15, 1995; 69 FR 60240, Oct. 7, 2004; 70 FR 36509, June 24, 2005; 73 FR 76944, Dec. 18, 2008] § 416.1403 Administrative actions that are not initial determinations. (a) 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— (1) Presumptive disability or presumptive blindness; (2) An emergency advance payment (as defined in § 416.520(b)); (3) Denial of a request to be made a representative payee; (4) Denial of a request to use the expedited appeals process; (5) Denial of a request to reopen a determination or a decision; (6) The fee that may be charged or received by a person who has represented you in connection with a proceeding before us; (7) Refusing to recognize, disqualifying, or suspending a person from acting as your representative in a proceeding before us (see §§ 416.1505 and 416.1545); (8) Denying your request to extend the time period for requesting review of a determination or a decision; (9) Determining whether (and the amount of) travel expenses incurred are reimbursable in connection with proceedings before us; (10) Denying your request to readjudicate your claim and apply an Acquiescence Ruling; (11) Determining whether an organization may collect a fee from you for expenses it incurs in serving as your representative payee (see § 416.640a); (12) Declining under § 416.351(f) to make a determination on a claim for benefits based on alleged misinformation because one or more of the conditions specified in § 416.351(f) are not met; (13) Transition to eligibility for special SSI cash benefits (§ 416.262) in a month immediately following a month for which you were eligible for regular SSI benefits; (14) Transition to eligibility for regular SSI benefits in a month immediately following a month for which you were eligible for special SSI cash benefits (§ 416.262); (15) The determination to reduce, suspend, or terminate your federally administered State supplementary payments due to a State-initiated mass change, as defined in § 416.1401, in the levels of such payments, except as provided in § 416.1402(n); (16) Termination of Federal administration of State supplementary payments; (17) Findings on whether we can collect an overpayment by using the Federal income tax refund offset procedure. (see § 416.583); (18) Determining whether we will refer information about your overpayment to a consumer reporting agency (see §§ 416.590 and 422.305 of this chapter); (19) Determining whether we will refer your overpayment to the Department of the Treasury for collection by offset against Federal payments due you (see §§ 416.590 and 422.310 of this chapter); (20) Determining whether we will order your employer to withhold from your disposable pay to collect an overpayment you received under title XVI of the Social Security Act (see part 422, subpart E, of this chapter); (21) Determining when provisional benefits are payable, the amount of the provisional benefit payable, and when provisional benefits terminate (see § 416.999c); (22) Determining whether to select your claim for the quick disability determination process under § 416.1019; (23) The removal of your claim from the quick disability determination process under § 416.1019; (24) Starting or discontinuing a continuing disability review; (25) Issuing a receipt in response to your report of a change in your earned income; and (26) Determining whether a non-attorney representative is eligible to receive direct fee payment as described in § 416.1517 of this part. (b) We send some notices of actions that are not initial determinations: (1) If you receive an emergency advance payment; presumptive disability or presumptive blindness payment, or provisional payment, we will provide a notice explaining the nature and conditions of the payments. (2) If you receive presumptive disability or presumptive blindness payments, or provisional payments, we shall send you a notice when those payments are exhausted. (3) If there is a termination of Federal administration of State supplementary payments. [45 FR 52096, Aug. 5, 1980, as amended at 51 FR 8809, Mar. 14, 1986; 55 FR 1020, Jan. 11, 1990; 55 FR 4423, Feb. 8, 1990; 57 FR 23058, June 1, 1992; 59 FR 41405, Aug. 12, 1994; 59 FR 43039, Aug. 22, 1994; 59 FR 44928, Aug. 31, 1994; 62 FR 49440, Sept. 22, 1997; 66 FR 67081, Dec. 28, 2001; 68 FR 74184, Dec. 23, 2003; 70 FR 57146, Sept. 30, 2005; 71 FR 16461, Mar. 31, 2006; 71 FR 66859, 66867, Nov. 17, 2006; 72 FR 51178, Sept. 6, 2007; 76 FR 45194, July 28, 2011; 76 FR 80247, Dec. 23, 2011; 80 FR 400, Jan. 6, 2015] § 416.1404 Notice of the initial determination. (a) We will mail a written notice of our initial determination to you at your last known address. The written notice will explain in simple and clear language what we have determined and the reasons for and the effect of our determination. If our determination involves a determination of disability that is in whole or in part unfavorable to you, our written notice also will contain in understandable language a statement of the case setting forth the evidence on which our determination is based. The notice also will inform you of your right to reconsideration. We will not mail a notice if the beneficiary's entitlement to benefits has ended because of his or her death. (b) If our initial determination is that we must suspend, reduce or terminate your benefits, the notice will also tell you that you have a right to a reconsideration before the determination takes effect (see § 416.1336). [45 FR 52096, Aug. 5, 1980, as amended at 51 FR 305, Jan. 3, 1986; 72 FR 51179, Sept. 6, 2007] § 416.1405 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. [51 FR 305, Jan. 3, 1986] § 416.1406 Testing modifications to the disability determination procedures. (a) Applicability and scope. (b) Procedures for cases included in the tests. Federal Register. (1) In the disability claim manager model, when you file an application for SSI payments based on disability, a disability claim manager will assume primary responsibility for the processing of your claim. The disability claim manager will be the focal point for your contacts with us during the claims intake process and until an initial determination on your claim is made. The disability claim manager will explain the SSI disability program to you, including the definition of disability and how we determine whether you meet all the requirements for SSI payments based on disability. The disability claim manager will explain what you will be asked to do throughout the claims process and how you can obtain information or assistance through him or her. The disability claim manager will also provide you with information regarding your right to representation, and he or she will provide you with appropriate referral sources for representation. The disability claim manager may be either a State agency employee or a Federal employee. In some instances, the disability claim manager may be assisted by other individuals. (2) In the single decisionmaker model, the decisionmaker will make the disability determination and may also determine whether the other conditions of eligibility for SSI payments based on disability are met. The decisionmaker will make the disability determination after any appropriate consultation with a medical or psychological consultant. The medical or psychological consultant will not be required to sign the disability determination forms we use to have the State agency certify the determination of disability to us (see § 416.1015). However, before an initial determination is made in any case where there is evidence which indicates the existence of a mental impairment, the decisionmaker will make every reasonable effort to ensure that a qualified psychiatrist or psychologist has completed the medical portion of the case review and any applicable residual functional capacity assessment pursuant to our existing procedures (see § 416.1017). Similarly, in making an initial determination with respect to the disability of a child under age 18 claiming SSI payments based on disability, the decisionmaker will make reasonable efforts to ensure that a qualified pediatrician, or other individual who specializes in a field of medicine appropriate to the child's impairment(s), evaluates the claim of such child (see § 416.903(f)). In some instances the decisionmaker may be the disability claim manager described in paragraph (b)(1) of this section. When the decisionmaker is a State agency employee, a team of individuals that includes a Federal employee will determine whether the other conditions of eligibility for SSI payments are met. (3) In the predecision interview model, if the decisionmaker(s) finds that the evidence in your file is insufficient to make a fully favorable determination or requires an initial determination denying your claim, a predecision notice will be mailed to you. The notice will tell you that, before the decisionmaker(s) makes an initial determination about whether you are disabled, you may request a predecision interview with the decisionmaker(s). The notice will also tell you that you may also submit additional evidence. You must request a predecision interview within 10 days after the date you receive the predecision notice. You must also submit any additional evidence within 10 days after the date you receive the predecision notice. If you request a predecision interview, the decisionmaker(s) will conduct the predecision interview in person, by videoconference, or by telephone as the decisionmaker(s) determines is appropriate under the circumstances. If you make a late request for a predecision interview, or submit additional evidence late, but show in writing that you had good cause under the standards in § 416.1411 for missing the deadline, the decisionmaker(s) will extend the deadline. If you do not request the predecision interview or if you do not appear for a scheduled predecision interview and do not submit additional evidence, or if you do not respond to our attempts to communicate with you, the decisionmaker(s) will make an initial determination based upon the evidence in your file. If you identify additional evidence during the predecision interview, which was previously not available, the decisionmaker(s) will advise you to submit the evidence. If you are unable to do so, the decisionmaker(s) may assist you in obtaining it. The decisionmaker(s) also will advise you of the specific timeframes you have for submitting any additional evidence identified during the predecision interview. If you have no treating source(s) (see § 416.902), or your treating source(s) is unable or unwilling to provide the necessary evidence, or there is a conflict in the evidence that cannot be resolved through evidence from your treating source(s), the decisionmaker(s) may arrange a consultative examination or resolve conflicts according to existing procedures (see § 416.919a). If you attend the predecision interview, or do not attend the predecision interview but you submit additional evidence, the decisionmaker(s) will make an initial determination based on the evidence in your file, including the additional evidence you submit or the evidence obtained as a result of the predecision notice or interview, or both. (4) In the reconsideration elimination model, we will modify the disability determination process by eliminating the reconsideration step of the administrative review process. If you receive an initial determination on your claim for SSI payments based on disability, and you are dissatisfied with the determination, we will notify you that you may request a hearing before an administrative law judge. [60 FR 20028, Apr. 24, 1995, as amended at 73 FR 2416, Jan. 15, 2008; 76 FR 24812, May 3, 2011; 82 FR 5883, Jan. 18, 2017] Reconsideration § 416.1407 Reconsideration—general. 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. [51 FR 305, Jan. 3, 1986] § 416.1408 Parties to a reconsideration. (a) Who may request a reconsideration. (b) Who are parties to a reconsideration. § 416.1409 How to request reconsideration. (a) We shall reconsider an initial determination if you or any other party to the reconsideration files a written request at one of our offices within 60 days after the date you receive notice of the initial determination (or within the extended time period if we extend the time as provided in paragraph (b) of this section). (b) Extension of time to request a reconsideration. § 416.1411 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. [45 FR 52096, Aug. 5, 1980, as amended at 59 FR 1637, Jan. 12, 1994] § 416.1413 Reconsideration procedures. 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 a suspension, reduction or termination of benefits. The methods of reconsideration include the following: (a) Case review. (b) Informal conference. (c) Formal conference. (d) Disability hearing. [45 FR 52096, Aug. 5, 1980, as amended at 51 FR 305, Jan. 3, 1986] § 416.1413a Reconsiderations of initial determinations on applications. The method of reconsideration we will use when you appeal an initial determination on your application for benefits depends on the issue involved in your case. (a) Nonmedical issues. (b) Medical issues. [45 FR 52096, Aug. 5, 1980. Redesignated at 51 FR 305, Jan. 3, 1986] § 416.1413b Reconsideration procedures for post-eligibility claims. If you are eligible for supplemental security income benefits and we notify you that we are going to suspend, reduce or terminate your benefits, 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 § 416.1411(b). If you appeal a suspension, reduction, or termination of benefits, the method of reconsideration we will use depends on the issue in your case. If the issue in your case is that you are no longer blind or disabled for medical reasons, you will receive an opportunity for a disability hearing. If any other issue is involved, you have the choice of a case review, informal conference or formal conference. [51 FR 305, Jan. 3, 1986] § 416.1413c Arrangement for conferences. (a) As soon as we receive a request for a formal or informal conference, we shall set the time, date and place for the conference. (b) We shall send you and any other parties to the reconsideration 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 shall 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 shall hold the conference at one of our offices, by telephone or in person, whichever you prefer. We will hold the conference elsewhere in person if you show circumstances that make this arrangement reasonably necessary. [45 FR 52096, Aug. 5, 1980. Redesignated at 51 FR 305, Jan. 3, 1986] § 416.1414 Disability hearing—general. (a) Availability. (1) You have been receiving supplemental security income benefits based on a medical impairment that renders you blind or disabled; (2) We have made an initial or revised determination based on medical factors that you are not blind or disabled because your impairment: (i) Has ceased; (ii) Did not exist; or (iii) Is no longer disabling; and (3) You make a timely request for reconsideration of the initial or revised determination. (b) Scope. (c) Time and place General. (2) Change of time or place. (d) Combined issues. (e) Definition. we, us, our [51 FR 305, Jan. 3, 1986, as amended at 51 FR 8809, Mar. 14, 1986; 71 FR 10432, Mar. 1, 2006] § 416.1415 Disability hearing—disability hearing officers. (a) General. (b) State agency hearing officers Appointment of State agency hearing officers. (2) State agency defined. State agency (c) Federal hearing officers. (1) A component of our office other than a State agency made the determination you are appealing; or (2) The State agency does not appoint a disability hearing officer to conduct your disability hearing under paragraph (b) of this section. [51 FR 305, Jan. 3, 1986, as amended at 71 FR 10432, Mar. 1, 2006] § 416.1416 Disability hearing—procedures. (a) General. (b) Your procedural rights. (1) You may request that we assist you in obtaining pertinent evidence for your disability hearing and, if necessary, that we issue a subpoena to compel the production of certain evidence or testimony. We will follow subpoena procedures similar to those described in § 416.1450(d) for the administrative law judge hearing process; (2) You may have a representative at the hearing appointed under subpart O of this part, or you may represent yourself; (3) You or your representative may review the evidence in your case file, either on the date of your hearing or at an earlier time at your request, and present additional evidence; (4) You may present witnesses and question any witnesses at the hearing; and (5) You may waive your right to appear at the hearing. If you do not appear at the hearing, the disability hearing officer will prepare and issue a written reconsidered determination based on the information in your case file. (c) Case preparation. (d) Favorable reconsidered determination without a hearing. (e) Opportunity to submit additional evidence after the hearing. (1) The disability hearing officer determines that the evidence has a direct bearing on the outcome of the hearing; and (2) The evidence could not have been obtained before the hearing. (f) Opportunity to review and comment on evidence obtained or developed by us after the hearing. [51 FR 306, Jan. 3, 1986] § 416.1417 Disability hearing—disability hearing officer's reconsidered determination. (a) General. (1) The disability hearing officer sends the case back for additional development by the component that prepared the case for the hearing, and that component issues a favorable determination, as permitted by § 416.1416(c); (2) It is determined that you are engaging in substantial gainful activity and that you are therefore not disabled; or (3) The reconsidered determination prepared by the disability hearing officer is reviewed under § 416.1418. (b) Content. (c) Notice. (d) Effect. [51 FR 306, Jan. 3, 1986, as amended at 71 FR 10432, Mar. 1, 2006; 73 FR 76944, Dec. 18, 2008] § 416.1418 Disability hearing—review of the disability hearing officer's reconsidered determination before it is issued. (a) General. (1) There appears to be an abuse of discretion by the hearing officer; (2) There is an error of law; or (3) The action, findings or conclusions of the disability hearing officer are not supported by substantial evidence. Note to paragraph ( a If the review indicates that the reconsidered determination prepared by the disability hearing officer is correct, it will be dated and issued immediately upon completion of the review. If the reconsidered determination prepared by the disability hearing officer is found by the Associate Commissioner or his or her delegate to be deficient, it will be changed as described in paragraph (b) of this section. (b) Methods of correcting deficiencies in the disability hearing officer's reconsidered determination. (1) The Associate Commissioner or his or her delegate may return the case file either to the component responsible for preparing the case for hearing or to the disability hearing officer, for appropriate further action; or (2) The Associate Commissioner or his or her delegate may issue a written reconsidered determination which corrects the deficiency. (c) Further action on your case if it is sent back by the Associate Commissioner for Disability Determinations or his or her delegate either to the component that prepared your case for hearing or to the disability hearing officer. (d) Opportunity to comment before the Associate Commissioner for Disability Determinations or his or her delegate issues a reconsidered determination that is unfavorable to you. [71 FR 10432, Mar. 1, 2006] § 416.1419 Notice of another person's request for reconsideration. If any other person files a request for reconsideration of the initial determination in your case, we shall notify you at your last known address before we reconsider the initial determination. We shall also give you an opportunity to present any evidence you think helpful to the reconsidered determination. [45 FR 52096, Aug. 5, 1980. Redesignated at 51 FR 306, Jan. 3, 1986] § 416.1420 Reconsidered determination. After you or another person requests a reconsideration, we will review the evidence we considered in making the initial determination and any other evidence we receive. We will make our determination based on the preponderance of the evidence. The person who makes the reconsidered determination will have had no prior involvement with the initial determination. [73 FR 76945, Dec. 18, 2008] § 416.1421 Effect of a reconsidered determination. The reconsidered determination is binding unless— (a) You or any other party to the reconsideration requests 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. [51 FR 307, Jan. 3, 1986] § 416.1422 Notice of a reconsidered determination. We shall mail a written notice of the reconsidered determination to the parties at their last known address. We shall state the specific reasons for the determination and tell you and any other parties of the right to a hearing. If it is appropriate, we will also tell you and any other parties how to use the expedited appeals process. [45 FR 52096, Aug. 5, 1980. Redesignated at 51 FR 306, Jan. 3, 1986] Expedited Appeals Process § 416.1423 Expedited appeals process—general. By using the expedited appeals process you may go directly to a Federal district court without first completing the administrative review process that is generally required before the court will hear your case. § 416.1424 When the expedited appeals process may be used. You may use the expedited appeals process if all of the following requirements are met: (a) We have made an initial and a reconsidered determination; an administrative law judge has made a hearing decision; or Appeals Council review has been requested, but a final decision has not been issued. (b) You are a party to the reconsidered determination or the hearing decision. (c) You have submitted a written request for the expedited appeals process. (d) You have claimed, and we agree, that the only factor preventing a favorable determination or decision is a provision in the law that you believe is unconstitutional. (e) If you are not the only party, all parties to the determination or decision agree to request the expedited appeals process. § 416.1425 How to request expedited appeals process. (a) Time of filing request. (1) Within 60 days after the date you receive notice of the reconsidered determination (or within the extended time period if we extend the time as provided in paragraph (c) of this section); (2) At any time after you have filed a timely request for a hearing but before you receive notice of the administrative law judge's decision; (3) Within 60 days after the date you receive a notice of the administrative law judge's decision or dismissal (or within the extended time period if we extend the time as provided in paragraph (c) of this section); or (4) At any time after you have filed a timely request for Appeals Council review, but before you receive notice of the Appeals Council's action. (b) Place of filing request. (c) Extension of time to request expedited appeals process. § 416.1426 Agreement in expedited appeals process. If you meet all the requirements necessary for the use of the expedited appeals process, our authorized representative shall prepare an agreement. The agreement must be signed by you, by every other party to the determination or decision, and by our authorized representative. The agreement must provide that— (a) The facts in your claim are not in dispute; (b) The sole issue in dispute is whether a provision of the Act that applies to your case is unconstitutional; (c) Except for your belief that a provision of the Act is unconstitutional, you agree with our interpretation of the law; (d) If the provision of the Act that you believe is unconstitutional were not applied to your case, your claim would be allowed; and (e) Our determination or the decision is final for the purpose of seeking judicial review. § 416.1427 Effect of expedited appeals process agreement. After an expedited appeals process agreement is signed, you will not need to complete the remaining steps of the administrative review process. Instead, you may file an action in a Federal district court within 60 days after the date you receive notice (a signed copy of the agreement will be mailed to you and will constitute notice) that the agreement has been signed by our authorized representative. [45 FR 52096, Aug. 5, 1980, as amended at 49 FR 46370, Nov. 26, 1984] § 416.1428 Expedited appeals process request that does not result in agreement. If you do not meet all of the requirements necessary to use the expedited appeals process, we shall tell you that your request to use this process is denied and that your request will be considered as a request for a hearing, or Appeals Council review, whichever is appropriate. Hearing Before an Administrative Law Judge § 416.1429 Hearing before an administrative law judge—general. If you are dissatisfied with one of the determinations or decisions listed in § 416.1430, you may request a hearing. Subject to § 416.1456, the Deputy Commissioner for Hearings Operations, or their delegate, will appoint an administrative law judge to conduct the hearing. If circumstances warrant, the Deputy Commissioner for Hearings Operations, or their delegate, may assign your case to another administrative law judge. We will schedule you to appear by audio, agency video, online video, or in person as set forth in § 416.1436. Audio means telephone or similar audio-based technology in a private location you choose. Agency video means video, with audio functionality, using our equipment in one of our offices. Online video means video, with audio functionality, using a personal electronic device in a private location you choose. When we determine your manner of appearance, we consider the factors described in § 416.1436 (c)(1)(i) through (ii). You may submit new evidence (subject to the provisions of § 416.1435), examine the evidence used in making the determination or decision under review, and present and question witnesses. The administrative law judge who conducts the hearing may ask you questions. The administrative law judge will issue a decision based on the preponderance of the evidence in the hearing record. If you waive your right to appear at the hearing, the administrative law judge will make a decision based on the preponderance of the evidence that is in the file and, subject to the provisions of § 416.1435, any new evidence that may have been submitted for consideration. [89 FR 68362, Aug. 26, 2024] § 416.1430 Availability of a hearing before an administrative law judge. (a) You or another party may request a hearing before an administrative law judge if we have made— (1) A reconsidered determination; (2) A reconsideration of a revised determination of an initial or reconsidered determination that involves a suspension, reduction or termination of benefits; (3) A revised initial determination or revised reconsidered determination that does not involve a suspension, reduction or termination of benefits; or (4) A revised decision based on evidence not included in the record on which the prior decision was based. (b) We will hold a hearing only if you or another party to the hearing file a written request for a hearing. [45 FR 52096, Aug. 5, 1980, as amended at 51 FR 307, Jan. 3, 1986; 73 FR 2416, Jan. 15, 2008; 76 FR 24812, May 3, 2011] § 416.1432 Parties to a hearing before an administrative law judge. (a) Who may request a hearing. (b) Who are parties to a hearing. [45 FR 52096, Aug. 5, 1980, as amended at 51 FR 307, Jan. 3, 1986; 75 FR 39160, July 8, 2010] § 416.1433 How to request a hearing before an administrative law judge. (a) Written request. (1) Your name and social security number; (2) The name and social security number of your spouse, if any; (3) The reasons you disagree with the previous determination or decision; (4) A statement of additional evidence to be submitted and the date you will submit it; and (5) The name and address of any designated representative. (b) When and where to file. (c) Extension of time to request a hearing. [45 FR 52096, Aug. 5, 1980, as amended at 51 FR 307, Jan. 3, 1986] § 416.1435 Submitting written evidence to an administrative law judge. (a) When you submit your request for hearing, you should also submit information or evidence as required by § 416.912 or any summary of the evidence to the administrative law judge. Each party must make every effort to ensure that the administrative law judge receives all of the evidence and must inform us about or submit any written evidence, as required in § 416.912, no later than 5 business days before the date of the scheduled hearing. If you do not comply with this requirement, the administrative law judge may decline to consider or obtain the evidence unless the circumstances described in paragraph (b) of this section apply. (b) If you have evidence required under § 416.912 but you have missed the deadline described in paragraph (a) of this section, the administrative law judge will accept the evidence if he or she has not yet issued a decision and you did not inform us about or submit the evidence before the deadline because: (1) Our action misled you; (2) You had a physical, mental, educational, or linguistic limitation(s) that prevented you from informing us about or submitting the evidence earlier; or (3) Some other unusual, unexpected, or unavoidable circumstance beyond your control prevented you from informing us about or submitting the evidence earlier. Examples include, but are not limited to: (i) You were seriously ill, and your illness prevented you from contacting us in person, in writing, or through a friend, relative, or other person; (ii) There was a death or serious illness in your immediate family; (iii) Important records were destroyed or damaged by fire or other accidental cause; or (iv) You actively and diligently sought evidence from a source and the evidence was not received or was received less than 5 business days prior to the hearing. (c) Claims Not Based on an Application For Benefits. [81 FR 90994, Dec. 16, 2016 § 416.1436 Time, place, and manner of appearance for a hearing before an administrative law judge. (a) General. (b) Place of hearing. (c) Determining manner of appearance to schedule. (1) When we determine your manner of appearance at the hearing, we consider the following factors: (i) Which manner of appearance would be the most efficient for conducting the hearing; and (ii) Any facts in your particular case that provide a good reason to schedule your appearance by audio, agency video, online video, or in person. (2) We will generally direct any person we call as a witness, other than you or any other party to the hearing, to appear by audio, by agency video, or by online video. Witnesses include medical experts and vocational experts. Witnesses you call will appear at the hearing pursuant to § 416.1450(e). If they are unable to appear with you in the same manner as you, we will generally direct them to appear by agency video or by audio. We will consider directing witnesses to appear in person only when: (i) A witness is unable to appear by other available manners of appearance; (ii) We determine that an alternate manner of appearance would be less efficient than conducting the appearance in person; or (iii) We find that there are facts in your particular case that provide a good reason to schedule this individual's appearance in person. (3) We follow the procedures set forth in § 416.1437 to ensure the safety of the public and our employees in our hearing process. (d) Objecting to appearing by audio, by agency video, or both. (1) If you notify us that you object to appearing by audio, by agency video, or both, more than 30 days after the date you receive our notice, we will extend the time period if you show you had good cause for missing the deadline. To determine whether good cause exists for extending the deadline, we use the standards explained in § 416.1411. (2) Notwithstanding any objections you may have to appearing by audio and subject to paragraph (d)(3) of this section, we will schedule you or any other party to the hearing to appear by audio when we cannot schedule you to appear by agency video or by online video and extraordinary circumstances prevent you from appearing in person. For audio appearances under this subsection, we will call you or any other party to the hearing using your or their telephone number(s). (3) Notwithstanding any objections you may have to appearing by audio, if you are incarcerated and an appearance by agency video and online video is not available, we will schedule you to appear by audio, unless we find that there are facts in your particular case that provide a good reason to schedule you to appear in person, if allowed by the place of confinement, or by agency video, online video, or in person upon your release. For audio appearances under this subsection, we will call you or any other party to the hearing using your or their telephone number(s). (4) Notwithstanding any objections you may have to appearing by audio, by agency video, or both, if you change your residence while your request for hearing is pending, we will determine how you will appear, including by audio or by agency video, as provided in paragraph (c) of this section. For us to consider your change of residence when we schedule your hearing, you must submit evidence verifying your new residence. For audio appearances under this subsection, we will call you or any other party to the hearing using your or their telephone number(s). (5) Notwithstanding any objection you may have to appearing by audio, we will schedule you or any other party to the hearing to appear by audio in the circumstances provided in § 416.1437(b)(2)(ii) and (c). For audio appearances under this subsection, we will call you or any other party to the hearing using your or their telephone number(s). (e) Time period to agree to an appearance by online video. (f) Objecting to the time or place of the hearing. (i) Notify us in writing at the earliest possible opportunity, but not later than 5 days before the date set for the hearing or 30 days after receiving notice of the hearing, whichever is earlier; and (ii) State the reason(s) for your objection and state the time or place you want the hearing to be held. If the administrative law judge finds you have good cause, as determined under paragraph (e) of this section, we will change the time or place of the hearing. (2) If you notify us that you object to the time or place of hearing less than 5 days before the date set for the hearing or, if earlier, more than 30 days after receiving notice of the hearing, we will consider this objection only if you show you had good cause for missing the deadline. To determine whether good cause exists for missing this deadline, we use the standards explained in § 416.1411. (g) Good cause for changing the time or place. (1) The administrative law judge will find good cause to change the time or place of your hearing if he or she determines that, based on the evidence: (i) A serious physical or mental condition or incapacitating injury makes it impossible for you or your representative to travel to the hearing, or a death in the family occurs; or (ii) Severe weather conditions make it impossible for you or your representative to travel to the hearing. (2) In determining whether good cause exists in circumstances other than those set out in paragraph (f)(1) of this section, the administrative law judge will consider your reason(s) for requesting the change, the facts supporting it, and the impact of the proposed change on the efficient administration of the hearing process. Factors affecting the impact of the change include, but are not limited to, the effect on the processing of other scheduled hearings, delays that might occur in rescheduling your hearing, and whether we previously granted you any changes in the time or place of your hearing. Examples of such other circumstances that you might give for requesting a change in the time or place of the hearing include, but are not limited to, the following: (i) You unsuccessfully attempted to obtain a representative and need additional time to secure representation; (ii) Your representative was appointed within 30 days of the scheduled hearing and needs additional time to prepare for the hearing; (iii) Your representative has a prior commitment to be in court or at another administrative hearing on the date scheduled for the hearing; (iv) A witness who will testify to facts material to your case would be unavailable to attend the scheduled hearing and the evidence cannot be otherwise obtained; (v) Transportation is not readily available for you to travel to the hearing; or (vi) You are unrepresented, and you are unable to respond to the notice of hearing because of any physical, mental, educational, or linguistic limitations (including any lack of facility with the English language) which you may have. [84 FR 69307, Dec. 18, 2019, as amended at 89 FR 68362, Aug. 26, 2024] § 416.1437 Protecting the safety of the public and our employees in our hearing process. (a) Notwithstanding any other provision in this part or part 422 of this chapter, we are establishing the procedures set out in this section to ensure the safety of the public and our employees in our hearing process. (b)(1) At the request of any hearing office employee, the Hearing Office Chief Administrative Law Judge will determine, after consultation with the presiding administrative law judge, whether a claimant or other individual poses a reasonable threat to the safety of our employees or other participants in the hearing. The Hearing Office Chief Administrative Law Judge will find that a claimant or other individual poses a threat to the safety of our employees or other participants in the hearing when he or she determines that the individual has made a threat and there is a reasonable likelihood that the claimant or other individual could act on the threat or when evidence suggests that a claimant or other individual poses a threat. In making a finding under this paragraph, the Hearing Office Chief Administrative Law Judge will consider all relevant evidence, including any information we have in the claimant's record and any information we have regarding the claimant's or other individual's past conduct. (2) If the Hearing Office Chief Administrative Law Judge determines that the claimant or other individual poses a reasonable threat to the safety of our employees or other participants in the hearing, the Hearing Office Chief Administrative Law Judge will either: (i) Require the presence of a security guard at the hearing; or (ii) Require that the hearing be conducted by audio, notwithstanding any objection to appearing by audio, or, if the claimant agrees, by online video. (c) If we have banned a claimant from any of our facilities, we will provide the claimant with the opportunity for a hearing that will be conducted by audio, notwithstanding any objection to appearing by audio, or, if the claimant agrees, by online video. (d) The actions of the Hearing Office Chief Administrative Law Judge taken under this section are final and not subject to further review. (e) For audio appearances under this section, we will call you or any other party to the hearing using your or their telephone number(s). [76 FR 13508, Mar. 14, 2011, as amended at 77 FR 10658, Feb. 23, 2012; 89 FR 68363, Aug. 26, 2024] § 416.1438 Notice of a hearing before an administrative law judge. (a) Issuing the notice. (b) Notice information. (1) The specific issues to be decided in your case; (2) That you may designate a person to represent you during the proceedings; (3) How to request that we change the time or place of your hearing; (4) That your hearing may be dismissed if neither you nor the person you designate to act as your representative appears at your scheduled hearing without good reason under § 416.1457; (5) The time and manner(s) in which you, or any other party or witness, will appear. If we schedule you to appear in person or by agency video, as set forth in § 416.1436, the notice of hearing will tell you the place of the hearing. (6) That you must make every effort to inform us about or submit all written evidence that is not already in the record no later than 5 business days before the date of the scheduled hearing, unless you show that your circumstances meet the conditions described in § 416.1435(b); and (7) Any other information about the scheduling and conduct of your hearing. (c) Acknowledging the notice of hearing. (d) Amended notice of hearing or notice of supplemental hearing. [68 FR 5220, Feb. 3, 2003, as amended at 75 FR 39161, July 8, 2010; 78 FR 29628, May 21, 2013; 79 FR 35934, June 25, 2014; 81 FR 90995, Dec. 16, 2016; 84 FR 69308, Dec. 18, 2019; 89 FR 68363, Aug. 26, 2024] § 416.1439 Objections to the issues. If you object to the issues to be decided at the hearing, you must notify the administrative law judge in writing at the earliest possible opportunity, but no later than 5 business days before the date set for the hearing, unless you show that your circumstances meet the conditions described in § 416.1435(b). You must state the reason(s) for your objection(s). The administrative law judge will make a decision on your objection(s) either at the hearing or in writing before the hearing. [81 FR 90995, Dec. 16, 2016 § 416.1440 Disqualification of the administrative law judge. An administrative law judge shall not conduct a hearing if he or she is prejudiced or partial with respect to any party or has any interest in the matter pending for decision. If you object to the administrative law judge who will conduct the hearing, you must notify the administrative law judge at your earliest opportunity. The administrative law judge shall consider your objections and shall decide whether to proceed with the hearing or withdraw. If he or she withdraws, the Associate Commissioner for Hearings and Appeals, or his or her delegate, will appoint another administrative law judge to conduct the hearing. If the administrative law judge does not withdraw, you may, after the hearing, present your objections to the Appeals Council as reasons why the hearing decision should be revised or a new hearing held before another administrative law judge. § 416.1441 Prehearing case review. (a) General. (b) When a prehearing case review may be conducted. (1) Additional evidence is submitted; (2) There is an indication that additional evidence is available; (3) There is a change in the law or regulation; or (4) There is an error in the file or some other indication that the prior determination may be revised. (c) Notice of a prehearing revised determination. (d) Effect of a fully favorable revised determination. (e) Effect of a partially favorable revised determination. [45 FR 52096, Aug. 5, 1980, as amended at 73 FR 76945, Dec. 18, 2008; 75 FR 33169, June 11, 2010; 76 FR 65370, Oct. 21, 2011] § 416.1442 Prehearing proceedings and decisions by attorney advisors. (a) General. (b) When prehearing proceedings may be conducted by an attorney advisor. (1) New and material evidence is submitted; (2) There is an indication that additional evidence is available; (3) There is a change in the law or regulations; or (4) There is an error in the file or some other indication that a fully favorable decision may be issued. (c) Nature of the prehearing proceedings that may be conducted by an attorney advisor. (1) Request additional evidence that may be relevant to the claim, including medical evidence; and (2) If necessary to clarify the record for the purpose of determining if a fully favorable decision is warranted, schedule a conference with the parties. (d) Notice of a decision by an attorney advisor. (e) Effect of an attorney advisor's decision. (1) You or another party to the hearing submits a timely request that an administrative law judge reinstate the request for a hearing under paragraph (d) of this section; (2) The Appeals Council reviews the decision on its own motion pursuant to § 416.1469 as explained in paragraph (f)(3) of this section; or (3) The decision of the attorney advisor is revised under the procedures explained in § 416.1487. (f) Ancillary provisions. (1) Authorize an attorney advisor to exercise the functions performed by an administrative law judge under §§ 416.913a, 416.920a, 416.926, and 416.946. (2) Define the term “decision” to include a decision made by an attorney advisor, as well as the decisions identified in § 416.1401; and (3) Make the decision of an attorney advisor under paragraph (d) of this section subject to review by the Appeals Council if the Appeals Council decides to review the decision of the attorney advisor anytime within 60 days after the date of the decision under § 416.1469. [60 FR 34132, June 30, 1995, as amended at 63 FR 35516, June 30, 1998; 64 FR 13678, Mar. 22, 1999; 64 FR 51894, Sept. 27, 1999; 65 FR 16815, Mar. 30, 2000; 72 FR 44765, Aug. 9, 2007; 73 FR 76945, Dec. 18, 2008; 74 FR 33328, July 13, 2009; 76 FR 18384, Apr. 4, 2011; 76 FR 65371, Oct. 21, 2011; 78 FR 45460, July 29, 2013; 80 FR 31991, June 5, 2015; 82 FR 5884, Jan. 18, 2017; 83 FR 712, Jan. 8, 2018; 83 FR 28993, June 22, 2018; 83 FR 40453, Aug. 15, 2018] § 416.1443 Responsibilities of the adjudication officer. (a)(1) General. (2) Procedures for cases included in the tests. Federal Register. (b)(1) Prehearing procedures conducted by an Adjudication Officer. (2) Representation. (3) Evidence. (4) Referral for a hearing. (c)(1) Fully favorable decisions issued by an adjudication officer. (2) Effect of a decision by an adjudication officer. (i) You or another party requests that the hearing continue, as provided in paragraph (c)(1) of this section; (ii) The Appeals Council decides to review the decision on its own motion under the authority provided in § 416.1469; (iii) The decision is revised under the procedures explained in §§ 416.1487 through 416.1489; or (iv) In a case remanded by a Federal court, the Appeals Council assumes jurisdiction under the procedures in § 416.1484. (3) Fee for a representative's services. (d) Who may be an adjudication officer. [60 FR 47476, Sept. 13, 1995, as amended at 75 FR 33169, June 11, 2010] Administrative Law Judge Hearing Procedures § 416.1444 Administrative law judge hearing procedures—general. A hearing is open to the parties and to other persons the administrative law judge considers necessary and proper. At the hearing, the administrative law judge looks fully into the issues, questions you and the other witnesses, and, subject to the provisions of § 416.1435, accepts as evidence any documents that are material to the issues; may stop the hearing temporarily and continue it at a later date if the administrative law judge finds that there is material evidence missing at the hearing or one or more variables outside of our control, such as audio quality or video quality, materially affects the hearing; and may reopen the hearing at any time before the administrative law judge mails a notice of the decision in order to receive new and material evidence. For purposes of this section, materially affects means prevents the hearing from proceeding. The administrative law judge may decide when the evidence will be presented and when the issues will be discussed. [89 FR 68363, Aug. 26, 2024] § 416.1446 Issues before an administrative law judge. (a) General. (b) New issues General. (2) Notice of a new issue. [45 FR 52096, Aug. 5, 1980, as amended at 51 FR 307, Jan. 3, 1986] § 416.1448 Deciding a case without an oral hearing before an administrative law judge. (a) Decision fully favorable. (b) Parties do not wish to appear. (i) You and all the parties indicate in writing that you do not wish to appear before the administrative law judge at an oral hearing; or (ii) You live outside the United States, you do not inform us that you wish to appear, and there are no other parties who wish to appear. (2) When an oral hearing is not held, the administrative law judge shall make a record of the material evidence. The record will include the applications, written statements, certificates, reports, affidavits, and other documents which were used in making the determination under review and any additional evidence you or any other party to the hearing present in writing. The decision of the administrative law judge must be based on this record. (c) Case remanded for a revised determination. (2) Unless you request the remand the administrative law judge shall notify you that your case has been remanded and tell you that if you object, you must notify him or her of your objections within 10 days of the date the case is remanded or we will assume that you agree to the remand. If you object to the remand, the administrative law judge will consider the objection and rule on it in writing. [45 FR 52096, Aug. 5, 1980, as amended at 51 FR 307, Jan. 3, 1986; 73 FR 76945, Dec. 18, 2008; 75 FR 33169, June 11, 2010; 76 FR 65371, Oct. 21, 2011] § 416.1449 Presenting written statements and oral arguments. You or a person you designate to act as your representative may appear before the administrative law judge to state your case, present a written summary of your case, or enter written statements about the facts and law material to your case in the record. If presenting written statements prior to hearing, you must provide a copy of your written statements for each party no later than 5 business days before the date set for the hearing, unless you show that your circumstances meet the conditions described in § 416.1435(b). [81 FR 90996, Dec. 16, 2016] § 416.1450 Presenting evidence at a hearing before an administrative law judge. (a) The right to appear and present evidence. (b) Waiver of the right to appear. (c) Admissible evidence. (d) Subpoenas. (2) Parties to a hearing who wish to subpoena documents or witnesses must file a written request for the issuance of a subpoena with the administrative law judge or at one of our offices at least 10 business days before the hearing date, unless you show that your circumstances meet the conditions described in § 416.1435(b). The written request must give the names of the witnesses or documents to be produced; describe the address or location of the witnesses or documents with sufficient detail to find them; state the important facts that the witness or document is expected to prove; and indicate why these facts could not be proven without issuing a subpoena. (3) We will pay the cost of issuing the subpoena. (4) We will pay subpoenaed witnesses the same fees and mileage they would receive if they had been subpoenaed by a Federal district court. (e) Witnesses at a hearing. (f) Collateral estoppel—issues previously decided. [45 FR 52096, Aug. 5, 1980, as amended at 51 FR 307, Jan. 3, 1986; 68 FR 5221, Feb. 3, 2003; 75 FR 39161, July 8, 2010; 78 FR 29628, May 21, 2013; 81 FR 90996, Dec. 16, 2016; 84 FR 69308, Dec. 18, 2019; 89 FR 68364, Aug. 26, 2024] § 416.1451 Official record. (a) Hearing recording. (1) The case is sent to the Appeals Council without a decision or with a recommended decision by the administrative law judge; (2) You seek judicial review of your case by filing an action in a Federal district court within the stated time period, unless we request the court to remand the case; or (3) An administrative law judge or the Appeals Council asks for a written record of the proceedings. (b) Contents of the official record. [81 FR 90996, Dec. 16, 2016 § 416.1452 Consolidated hearings before an administrative law judge. (a) General. (i) You have requested a hearing to decide your eligibility for supplemental security income benefits and you have also requested a hearing to decide your rights under another law we administer; and (ii) One or more of the issues to be considered at the hearing you requested are the same issues that are involved in another claim you have pending before us. (2) If the administrative law judge decides to hold the hearing on both claims, he or she decides both claims, even if we have not yet made an initial or reconsidered determination on the other claim. (b) Record, evidence, and decision. [45 FR 52096, Aug. 5, 1980, as amended at 51 FR 308, Jan. 3, 1986] § 416.1453 The decision of an administrative law judge. (a) General. (b) Fully favorable oral decision entered into the record at the hearing. (c) Time for the administrative law judge's decision. (i) The matter to be decided is whether you are disabled; or (ii) There is good cause for extending the time period because of unavoidable circumstances. (2) Good cause for extending the time period may be found under the following circumstances: (i) Delay caused by you or by your representative's action. (ii) Other delays. (d) Recommended decision. [45 FR 52096, Aug. 5, 1980, as amended at 51 FR 308, Jan. 3, 1986; 54 FR 37793, Sept. 13, 1989; 62 FR 38455, July 18, 1997; 69 FR 61597, Oct. 20, 2004; 73 FR 76945, Dec. 18, 2008; 75 FR 33169, June 11, 2010] § 416.1455 The effect of a hearing decision. The decision of the administrative law judge is binding on all parties to the hearing unless— (a) You or another party request a review of the decision by the Appeals Council within the stated time period, and the Appeals Council reviews your case; (b) You or another party requests a review of the decision by the Appeals Council within the stated time period, the Appeals Council denies your request for review, and you seek judicial review of your case by filing an action in a Federal district court; (c) The Appeals Council decides on its own motion to review the decision under the procedures in § 416.1469; (d) The decision is revised by an administrative law judge or the Appeals Council under the procedures explained in § 416.1487; (e) The expedited appeals process is used; (f) The decision is a recommended decision directed to the Appeals Council; or (g) In a case remanded by a Federal court, the Appeals Council assumes jurisdiction under the procedures in § 416.1484. [45 FR 52096, Aug. 5, 1980, as amended at 51 FR 308, Jan. 3, 1986; 54 FR 37793, Sept. 13, 1989; 85 FR 73159, Nov. 16, 2020] § 416.1456 Removal of a hearing request(s) to the Appeals Council. (a) Removal. (b) Notice. (c) Procedures applied. (d) Appeals Council review. (e) Ancillary provisions. [85 FR 73159, Nov. 16, 2020] § 416.1457 Dismissal of a request for a hearing before an administrative law judge. An administrative law judge may dismiss a request for a hearing under any of the following conditions: (a) At any time before notice of the hearing decision is mailed, you or the party or parties that requested the hearing ask to withdraw the request. This request may be submitted in writing to the administrative law judge or made orally at the hearing. (b)(1)(i) Neither you nor the person you designate to act as your representative appears at the time and place set for the hearing and you have been notified before the time set for the hearing that your request for a hearing may be dismissed without further notice if you did not appear at the time and place of hearing, and good cause has not been found by the administrative law judge for your failure to appear; or (ii) Neither you nor the person you designate to act as your representative appears at the time and place set for the hearing and within 10 days after the administrative law judge mails you a notice asking why you did not appear, you do not give a good reason for the failure to appear. (2) In determining good cause or good reason under this paragraph, we will consider any physical, mental, educational, or linguistic limitations (including any lack of facility with the English language) which you may have. (c) The administrative law judge decides that there is cause to dismiss a hearing request entirely or to refuse to consider any one or more of the issues because— (1) The doctrine of res judicata (2) The person requesting a hearing has no right to it under § 416.1430; (3) You did not request a hearing within the stated time period and we have not extended the time for requesting a hearing under § 416.1433(c); or (4) You die, there are no other parties, and we have no information to show that you may have a survivor who may be paid benefits due to you under § 416.542(b) and who wishes to pursue the request for hearing, or that you authorized interim assistance reimbursement to a State pursuant to section 1631(g) of the Act. The administrative law judge, however, will vacate a dismissal of the hearing request if, within 60 days after the date of the dismissal: (i) A person claiming to be your survivor, who may be paid benefits due to you under § 416.542(b), submits a written request for a hearing, and shows that a decision on the issues that were to be considered at the hearing may adversely affect him or her; or (ii) We receive information showing that you authorized interim assistance reimbursement to a State pursuant to section 1631(g) of the Act. [45 FR 52096, Aug. 5, 1980, as amended at 50 FR 21439, May 24, 1985; 51 FR 308, Jan. 3, 1986; 58 FR 52913, Oct. 13, 1993; 59 FR 1637, Jan. 12, 1994] § 416.1458 Notice of dismissal of a request for a hearing before an administrative law judge. We shall mail a written notice of the dismissal of the hearing request to all parties at their last known address. The notice will state that there is a right to request that the Appeals Council vacate the dismissal action. [45 FR 52096, Aug. 5, 1980, as amended at 51 FR 308, Jan. 3, 1986] § 416.1459 Effect of dismissal of a request for a hearing before an administrative law judge. The dismissal of a request for a hearing is binding, unless it is vacated by an administrative law judge or the Appeals Council. [45 FR 52096, Aug. 5, 1980, as amended at 51 FR 308, Jan. 3, 1986] § 416.1460 Vacating a dismissal of a request for a hearing before an administrative law judge. (a) Except as provided in paragraph (b) of this section, an administrative law judge or the Appeals Council may vacate a dismissal of a request for a hearing if you request that we vacate the dismissal. If you or another party wish to make this request, you must do so within 60 days of the date you receive notice of the dismissal, and you must state why our dismissal of your request for a hearing was erroneous. The administrative law judge or Appeals Council will inform you in writing of the action taken on your request. The Appeals Council may also vacate a dismissal of a request for a hearing on its own motion. If the Appeals Council decides to vacate a dismissal on its own motion, it will do so within 60 days of the date we mail the notice of dismissal and will inform you in writing that it vacated the dismissal. (b) If you wish to proceed with a hearing after you received a fully favorable revised determination under the prehearing case review process in § 416.1441, you must follow the procedures in § 416.1441(d) to request that an administrative law judge vacate his or her order dismissing your request for a hearing. [76 FR 65371, Oct. 21, 2011] § 416.1461 Prehearing and posthearing conferences. The administrative law judge may decide on his or her own, or at the request of any party to the hearing, to hold a prehearing or posthearing conference to facilitate the hearing or the hearing decision. The administrative law judge shall tell the parties of the time, place and purpose of the conference at least seven days before the conference date, unless the parties have indicated in writing that they do not wish to receive a written notice of the conference. At the conference, the administrative law judge may consider matters in addition to those stated in the notice, if the parties consent in writing. A record of the conference will be made. The administrative law judge shall issue an order stating all agreements and actions resulting from the conference. If the parties do not object, the agreements and actions become part of the hearing record and are binding on all parties. § 416.1465 [Reserved] Appeals Council Review § 416.1466 [Reserved] § 416.1467 Appeals Council review—general. If you or any other party is dissatisfied with the hearing decision or with the dismissal of a hearing request, you may request that the Appeals Council review that action. The Appeals Council may deny or dismiss the request for review, or it may grant the request and either issue a decision or remand the case to an administrative law judge. The Appeals Council shall notify the parties at their last known address of the action it takes. § 416.1468 How to request Appeals Council review. (a) Time and place to request Appeals Council review. (b) Extension of time to request review. [45 FR 52096, Aug. 5, 1980, as amended at 81 FR 90996, Dec. 16, 2016] § 416.1469 Appeals Council initiates review. (a) General. (b) Identification of cases. (1) Random and selective sampling and case examinations. i.e. i.e. (2) Identification as a result of the effectuation process. (c) Referral of cases. (d) Appeals Council's action. [63 FR 36571, July 7, 1998, as amended at 75 FR 33169, June 11, 2010] § 416.1470 Cases the Appeals Council will review. (a) The Appeals Council will review a case at a party's request or on its own motion if— (1) There appears to be an abuse of discretion by the administrative law judge or administrative appeals judge who heard the case; (2) There is an error of law; (3) The action, findings or conclusions in the hearing decision or dismissal order are not supported by substantial evidence; (4) There is a broad policy or procedural issue that may affect the general public interest; or (5) Subject to paragraph (b) of this section, the Appeals Council receives additional evidence that is new, material, and relates to the period on or before the date of the hearing decision, and there is a reasonable probability that the additional evidence would change the outcome of the decision. (b) In reviewing decisions other than those based on an application for benefits, the Appeals Council will consider the evidence in the administrative law judge hearing record and any additional evidence it believes is material to an issue being considered. However, in reviewing decisions based on an application for benefits, the Appeals Council will only consider additional evidence under paragraph (a)(5) of this section if you show good cause for not informing us about or submitting the evidence as described in § 416.1435 because: (1) Our action misled you; (2) You had a physical, mental, educational, or linguistic limitation(s) that prevented you from informing us about or submitting the evidence earlier; or (3) Some other unusual, unexpected, or unavoidable circumstance beyond your control prevented you from informing us about or submitting the evidence earlier. Examples include, but are not limited to: (i) You were seriously ill, and your illness prevented you from contacting us in person, in writing, or through a friend, relative, or other person; (ii) There was a death or serious illness in your immediate family; (iii) Important records were destroyed or damaged by fire or other accidental cause; (iv) You actively and diligently sought evidence from a source and the evidence was not received or was received less than 5 business days prior to the hearing; or (v) You received a hearing level decision on the record and the Appeals Council reviewed your decision. (c) If you submit additional evidence that does not relate to the period on or before the date of the administrative law judge hearing decision as required in paragraph (a)(5) of this section, or the Appeals Council does not find you had good cause for missing the deadline to submit the evidence in § 416.1435, the Appeals Council will send you a notice that explains why it did not accept the additional evidence and advises you of your right to file a new application. The notice will also advise you that if you file a new application within 60 days after the date of the Appeals Council's notice, your request for review will constitute a written statement indicating an intent to claim benefits under § 416.340. If you file a new application within 60 days of the Appeals Council's notice, we will use the date you requested Appeals Council review as the filing date for your new application. [81 FR 90996, Dec. 16, 2016, as amended at 85 FR 73160, Nov. 16, 2020] § 416.1471 Dismissal by Appeals Council. The Appeals Council will dismiss your request for review if you did not file your request within the stated period of time and the time for filing has not been extended. The Appeals Council may also dismiss any proceedings before it if— (a) You and any other party to the proceedings files a written request for dismissal; or (b) You die, there are no other parties, and we have no information to show that you may have a survivor who may be paid benefits due to you under § 416.542(b) and who wishes to pursue the request for review, or that you authorized interim assistance reimbursement to a State pursuant to section 1631(g) of the Act. The Appeals Council, however, will vacate a dismissal of the request for review if, within 60 days after the date of the dismissal: (1) A person claiming to be your survivor, who may be paid benefits due to you under § 416.542(b), submits a written request for review, and shows that a decision on the issues that were to be considered on review may adversely affect him or her; or (2) We receive information showing that you authorized interim assistance reimbursement to a State pursuant to section 1631(g) of the Act. [45 FR 52096, Aug. 5, 1980, as amended at 58 FR 52914, Oct. 13, 1993] § 416.1472 Effect of dismissal of request for Appeals Council review. The dismissal of a request for Appeals Council review is binding and not subject to further review. § 416.1473 Notice of Appeals Council review. When the Appeals Council decides to review a case, it shall mail a prior notice to all parties at their last known address stating the reasons for the review and the issues to be considered. However, when the Appeals Council plans to issue a decision that is fully favorable to all parties, plans to remand the case for further proceedings, or plans to issue a decision that is favorable in part and remand the remaining issues for further proceedings, it may send the notice of Appeals Council review to all parties with the decision or remand order. [85 FR 73160, Nov. 16, 2020] § 416.1474 Obtaining evidence from Appeals Council. You may request and receive copies or a statement of the documents or other written evidence upon which the hearing decision or dismissal was based and a copy or summary of the transcript of oral evidence. However, you will be asked to pay the costs of providing these copies unless there is a good reason why you should not pay. § 416.1475 Filing briefs with the Appeals Council. Upon request, the Appeals Council shall give you and all other parties a reasonable opportunity to file briefs or other written statements about the facts and law relevant to the case. A copy of each brief or statement should be filed for each party. § 416.1476 Procedures before the Appeals Council. (a) Limitation of issues. (b) Evidence the Appeals Council will exhibit. (c) Oral argument. [81 FR 90996, Dec. 16, 2016, as amended at 84 FR 69308, Dec. 18, 2019; 85 FR 73160, Nov. 16, 2020; 89 FR 68364, Aug. 26, 2024] § 416.1477 Case remanded by Appeals Council. (a) When the Appeals Council may remand a case. (b) Action by administrative law judge on remand. (c) Notice when case is returned with a recommended decision. (d) Filing briefs with and obtaining evidence from the Appeals Council. (2) All other rules for filing briefs with and obtaining evidence from the Appeals Council follow the procedures explained in this subpart. (e) Procedures before the Appeals Council. (2) If the Appeals Council believes that more evidence is required, it may again remand the case to an administrative law judge for further inquiry into the issues, rehearing, receipt of evidence, and another decision or recommended decision. However, if the Appeals Council decides that it can get the additional evidence more quickly, it will take appropriate action. § 416.1479 Decision of Appeals Council. After it has reviewed all the evidence in the administrative law judge hearing record and any additional evidence received, subject to the limitations on Appeals Council consideration of additional evidence in § 416.1470, the Appeals Council will make a decision or remand the case to an administrative law judge. The Appeals Council may affirm, modify or reverse the administrative law judge hearing decision or it may adopt, modify or reject a recommended decision. If the Appeals Council issues its own decision, it will base its decision on the preponderance of the evidence. A copy of the Appeals Council's decision will be mailed to the parties at their last known address. [52 FR 4005, Feb. 9, 1987, as amended at 73 FR 76945, Dec. 18, 2008; 81 FR 90994, Dec. 16, 2016] § 416.1481 Effect of Appeals Council's decision or denial of review. The Appeals Council may deny a party's request for review or it may decide to review a case and make a decision. The Appeals Council's decision, or the decision of the administrative law judge if the request for review is denied, is binding unless you or another party file an action in Federal district court, or the decision is revised. You may file an action in a Federal district court within 60 days after the date you receive notice of the Appeals Council's action. § 416.1482 Extension of time to file action in Federal district court. Any party to the Appeals Council's decision or denial of review, or to an expedited appeals process agreement, may request that the time for filing an action in a Federal district court be extended. The request must be in writing and it must give the reasons why the action was not filed within the stated time period. The request must be filed with the Appeals Council, or if it concerns an expedited appeals process agreement, with one of our offices. If you show that you had good cause for missing the deadline, the time period will be extended. To determine whether good cause exists, we use the standards explained in § 416.1411. Court Remand Cases § 416.1483 Case remanded by a Federal court. (a) General rule. (b) Appeals Council decision without a hearing. (c) Administrative appeals judge decision after holding a hearing. (d) Appeals Council dismissal. (e) Appeals Council remand. [85 FR 73160, Nov. 16, 2020] § 416.1484 Appeals Council review of hearing decision in a case remanded by a Federal court. (a) General. (b) You file exceptions disagreeing with the hearing decision. (2) If written exceptions are timely filed, the Appeals Council will consider your reasons for disagreeing with the hearing decision and all the issues presented by your case. If the Appeals Council concludes that there is no reason to change the hearing decision, it will issue a notice to you addressing your exceptions and explaining why no change in the hearing decision is warranted. In this instance, the hearing decision is the final decision of the Commissioner after remand. (3) When you file written exceptions to the hearing decision, the Appeals Council may assume jurisdiction at any time, even after the 60-day time period which applies when you do not file exceptions. If the Appeals Council assumes jurisdiction of your case, any issues relating to your claim may be considered by the Appeals Council whether or not they were raised in the administrative proceedings leading to the final decision in your case or subsequently considered by the administrative law judge or administrative appeals judge in the administrative proceedings following the court's remand order. The Appeals Council will either make a new, independent decision pursuant to § 416.1483(b) or § 416.1483(c), based on a preponderance of the evidence in the record that will be the final decision of the Commissioner after remand, dismiss the request for a hearing, or remand the case to an administrative law judge for further proceedings, including a new decision. (c) Appeals Council assumes jurisdiction without exceptions being filed. (d) Exceptions are not filed and the Appeals Council does not otherwise assume jurisdiction. [85 FR 73160, Nov. 16, 2020] § 416.1485 Application of circuit court law. The procedures which follow apply to administrative determinations or decisions on claims involving the application of circuit court law. (a) General. (b) Issuance of an Acquiescence Ruling. Federal Register (1) We will release an Acquiescence Ruling for publication in the Federal Register (2) If we make a determination or decision on your claim between the date of a circuit court decision and the date we publish an Acquiescence Ruling, you may request application of the published Acquiescence Ruling to the prior determination or decision. You must demonstrate that application of the Acquiescence Ruling could change the prior determination or decision in your case. You may demonstrate this by submitting a statement that cites the Acquiescence Ruling or the holding or portion of a circuit court decision which could change the prior determination or decision in your case. If you can so demonstrate, we will readjudicate the claim in accordance with the Acquiescence Ruling at the level at which it was last adjudicated. Any readjudication will be limited to consideration of the issue(s) covered by the Acquiescence Ruling and any new determination or decision on readjudication will be subject to administrative and judicial review in accordance with this subpart. Our denial of a request for readjudication will not be subject to further administrative or judicial review. If you file a request for readjudication within the 60-day appeal period and we deny that request, we shall extend the time to file an appeal on the merits of the claim to 60 days after the date that we deny the request for readjudication. (3) After we receive a precedential circuit court decision and determine that an Acquiescence Ruling may be required, we will begin to identify those claims that are pending before us within the circuit and that might be subject to readjudication if an Acquiescence Ruling is subsequently issued. When an Acquiescence Ruling is published, we will send a notice to those individuals whose cases we have identified which may be affected by the Acquiescence Ruling. The notice will provide information about the Acquiescence Ruling and the right to request readjudication under that Acquiescence Ruling, as described in paragraph (b)(2) of this section. It is not necessary for an individual to receive a notice in order to request application of an Acquiescence Ruling to his or her claim, as described in paragraph (b)(2) of this section. (c) Relitigation of court's holding after publication of an Acquiescence Ruling. (1) Activating events: (i) An action by both Houses of Congress indicates that a circuit court decision on which an Acquiescence Ruling was based was decided inconsistently with congressional intent, such as may be expressed in a joint resolution, an appropriations restriction, or enactment of legislation which affects a closely analogous body of law; (ii) A statement in a majority opinion of the same circuit indicates that the court might no longer follow its previous decision if a particular issue were presented again; (iii) Subsequent circuit court precedent in other circuits supports our interpretation of the Social Security Act or regulations on the issue(s) in question; or (iv) A subsequent Supreme Court decision presents a reasonable legal basis for questioning a circuit court holding upon which we base an Acquiescence Ruling. (2) The General Counsel of the Social Security Administration, after consulting with the Department of Justice, concurs that relitigation of an issue and application of our interpretation of the Social Security Act or regulations to selected claims in the administrative review process within the circuit would be appropriate. (3) We publish a notice in the Federal Register (d) Notice of relitigation. (e) Rescission of an Acquiescence Ruling. Federal Register (1) The Supreme Court overrules or limits a circuit court holding that was the basis of an Acquiescence Ruling; (2) A circuit court overrules or limits itself on an issue that was the basis of an Acquiescence Ruling; (3) A Federal law is enacted that removes the basis for the holding in a decision of a circuit court that was the subject of an Acquiescence Ruling; or (4) We subsequently clarify, modify or revoke the regulation or ruling that was the subject of a circuit court holding that we determined conflicts with our interpretation of the Social Security Act or regulations, or we subsequently publish a new regulation(s) addressing an issue(s) not previously included in our regulations when that issue(s) was the subject of a circuit court holding that conflicted with our interpretation of the Social Security Act or regulations and that holding was not compelled by the statute or Constitution. [63 FR 24933, May 6, 1998] Reopening and Revising Determinations and Decisions § 416.1487 Reopening and revising determinations and decisions. (a) General. (b) Procedure for reopening and revision. [59 FR 8535, Feb. 23, 1994] § 416.1488 Conditions for reopening. A determination, revised determination, decision, or revised decision may be reopened— (a) Within 12 months of the date of the notice of the initial determination, for any reason; (b) Within two years of the date of the notice of the initial determination if we find good cause, as defined in § 416.1489, to reopen the case; or (c) At any time if it was obtained by fraud or similar fault. In determining whether a determination or decision was obtained by fraud or similar fault, we will take into account any physical, mental, educational, or linguistic limitations (including any lack of facility with the English language) which you may have had at the time. [45 FR 52096, Aug. 5, 1980, as amended at 59 FR 1637, Jan. 12, 1994] § 416.1489 Good cause for reopening. (a) We will find that there is good cause to reopen a determination or decision if— (1) New and material evidence is furnished; (2) A clerical error was made; or (3) The evidence that was considered in making the determination or decision clearly shows on its face that an error was made. (b) We will not find good cause to reopen your case if the only reason for reopening is a change of legal interpretation or administrative ruling upon which the determination or decision was made. § 416.1491 Late completion of timely investigation. We may revise a determination or decision after the applicable time period in § 416.1488(a) or § 416.1488(b) expires if we begin an investigation into whether to revise the determination or decision before the applicable time period expires. We may begin the investigation either based on a request by you or by an action on our part. The investigation is a process of gathering facts after a determination or decision has been reopened to determine if a revision of the determination or decision is applicable. (a) If we have diligently pursued the investigation to its conclusion, we may revise the determination or decision. The revision may be favorable or unfavorable to you. “Diligently pursued” means that in light of the facts and circumstances of a particular case, the necessary action was undertaken and carried out as promptly as the circumstances permitted. Diligent pursuit will be presumed to have been met if we conclude the investigation and if necessary, revise the determination or decision within 6 months from the date we began the investigation. (b) If we have not diligently pursued the investigation to its conclusion, we will revise the determination or decision if a revision is applicable and if it will be favorable to you. We will not revise the determination or decision if it will be unfavorable to you. [49 FR 46370, Nov. 26, 1984; 49 FR 48036, Dec. 10, 1984] § 416.1492 Notice of revised determination or decision. (a) When a determination or decision is revised, notice of the revision will be mailed to the parties at their last known address. The notice will state the basis for the revised determination or decision and the effect of the revision. The notice will also inform the parties of the right to further review. (b) If a determination is revised and the revised determination requires that your benefits be suspended, reduced, or terminated, the notice will inform you of your right to continued payment (see § 416.1336 and the exceptions set out in § 416.1337) and of your right of reconsideration. (c) If a determination is revised and the revised determination does not require that your benefits be suspended, reduced, or terminated, the notice will inform you of your right to a hearing before an administrative law judge. (d) If a reconsidered determination that you are blind or disabled, based on medical factors, is reopened for the purpose of being revised, you will be notified, in writing, of the proposed revision and of your right to request that a disability hearing be held before a revised reconsidered determination is issued. If a revised reconsidered determination is issued, you may request a hearing before an administrative law judge. (e) If an administrative law judge or the Appeals Council proposes to revise a decision, and the revision would be based on evidence not included in the record on which the prior decision was based, you and any other parties to the decision will be notified, in writing, of the proposed action and of your right to request that a hearing be held before any further action is taken. If a revised decision is issued by an administrative law judge, you and any other party may request that it be reviewed by the Appeals Council, or the Appeals Council may review the decision on its own initiative. (f) If an administrative law judge or the Appeals Council proposes to revise a decision, and the revision would be based only on evidence included in the record on which the prior decision was based, you and any other parties to the decision will be notified, in writing, of the proposed action. If a revised decision is issued by an administrative law judge, you and any other party may request that it be reviewed by the Appeals Council, or the Appeals Council may review the decision on its own initiative. (g) An administrative law judge may, in connection with a valid request for a hearing, propose to reopen an issue other than the issue on which the request for a hearing was based. The administrative law judge will follow the time limits for reopenings set out in § 416.1488. The administrative law judge shall mail to the parties at their last known address a notice of the reopening. [45 FR 52096, Aug. 5, 1980, as amended at 51 FR 308, Jan. 3, 1986] § 416.1493 Effect of revised determination or decision. A revised determination or decision is binding unless— (a) You or a party to the revised determination file a written request for a reconsideration or a hearing; (b) You or another party to the revised decision file, as appropriate, a request for review by the Appeals Council or a hearing; (c) The Appeals Council reviews the revised decision; or (d) The revised determination or decision is further revised. § 416.1494 Time and place to request further review or a hearing on revised determination or decision. You or another party to the revised determination or decision may request, as appropriate, further review or a hearing on the revision by filing a request in writing at one of our offices within 60 days after the date you receive notice of the revision. Further review or a hearing will be held on the revision according to the rules of this subpart. Payment of Certain Travel Expenses § 416.1495 Payment of certain travel expenses—general. When you file a claim for supplemental security income (SSI) benefits, you may incur certain travel expenses in pursuing your claim. Sections 416.1496 through 416.1499 explain who may be reimbursed for travel expenses, the types of travel expenses that are reimbursable, and when and how to claim reimbursement. Generally, the agency that requests you to travel will be the agency that reimburses you. No later than when it notifies you of the examination or hearing described in § 416.1496(a), that agency will give you information about the right to travel reimbursement, the right to advance payment and how to request it, the rules on means of travel and unusual travel costs, and the need to submit receipts. [51 FR 8810, Mar. 14, 1986] § 416.1496 Who may be reimbursed. (a) The following individuals may be reimbursed for certain travel expenses— (1) You, when you attend medical examinations upon request in connection with disability determinations; these are medical examinations requested by the State agency or by us when additional medical evidence is necessary to make a disability determination (also referred to as consultative examinations, see § 416.917); (2) You, your representative (see § 416.1505 (a) and (b)), and all unsubpoenaed witnesses we or the State agency determines to be reasonably necessary who attend disability hearings; and (3) You, your representative, and all unsubpoenaed witnesses we determine to be reasonably necessary who attend hearings on any claim for SSI benefits before an administrative law judge. (b) Sections 416.1495 through 416.1499 do not apply to subpoenaed witnesses. They are reimbursed under §§ 416.1450(d) and 416.1416(b)(1). [51 FR 8810, Mar. 14, 1986] § 416.1498 What travel expenses are reimbursable. Reimbursable travel expenses include the ordinary expenses of public or private transportation as well as unusual costs due to special circumstances. (a) Reimbursement for ordinary travel expenses is limited— (1) To the cost of travel by the most economical and expeditious means of transportation available and appropriate to the individual's condition of health as determined by the State agency or by us, considering the available means in the following order— (i) Common carrier (air, rail, or bus); (ii) Privately owned vehicles; (iii) Commercially rented vehicles and other special conveyances; (2) If air travel is necessary, to the coach fare for air travel between the specified travel points involved unless first-class air travel is authorized in advance by the State agency or by the Secretary in instances when— (i) Space is not available in less-than-first-class accommodations on any scheduled flights in time to accomplish the purpose of the travel; (ii) First-class accommodations are necessary because you, your representative, or reasonably necessary witness is so handicapped or otherwise impaired that other accommodations are not practical and the impairment is substantiated by competent medical authority; (iii) Less-than-first-class accommodations on foreign carriers do not provide adequate sanitation or health standards; or (iv) The use of first-class accommodations would result in an overall savings to the government based on economic considerations, such as the avoidance of additional subsistence costs that would be incurred while awaiting availability of less-than-first-class accommodations. (b) Unusual travel costs may be reimbursed but must be authorized in advance and in writing by us or the appropriate State official, as applicable, unless they are unexpected or unavoidable; we or the State agency must determine their reasonableness and necessity and must approve them before payment can be made. Unusual expenses that may be covered in connection with travel include, but are not limited to— (1) Ambulance services; (2) Attendant services; (3) Meals; (4) Lodging; and (5) Taxicabs. (c) If we reimburse you for travel, we apply the rules in §§ 416.1496 through 416.1499 and the same rates and conditions of payment that govern travel expenses for Federal employees as authorized under 41 CFR chapter 301. If a State agency reimburses you, the reimbursement rates shall be determined by the rules in §§ 416.1496 through 416.1499 and that agency's rules and regulations and may differ from one agency to another and also may differ from the Federal reimbursement rates. (1) When public transportation is used, reimbursement will be made for the actual costs incurred, subject to the restrictions in paragraph (a)(2) of this section on reimbursement for first-class air travel. (2) When travel is by a privately owned vehicle, reimbursement will be made at the current Federal or State mileage rate specified for that geographic location plus the actual costs of tolls and parking, if travel by a privately owned vehicle is determined appropriate under paragraph (a)(1) of this section. Otherwise, the amount of reimbursement for travel by privately owned vehicle cannot exceed the total cost of the most economical public transportation for travel between the same two points. “Total cost” includes the cost for all the authorized travelers who travel in the same privately owned vehicle. Advance approval of travel by privately owned vehicle is not required (but could give you assurance of its approval). (3) Sometimes your health condition dictates a mode of transportation different from most economical and expeditious. In order for your health to require a mode of transportation other than common carrier or passenger car, you must be so handicapped or otherwise impaired as to require special transportation arrangements and the condition must be substantiated by competent medical authority. (d) For travel to a hearing— (1) Reimbursement is limited to travel within the U.S. For this purpose, the U.S. includes the U.S. as defined in § 416.120(c)(10). (2) When the travel is performed after September 30, 1981, we or the State agency will reimburse you, your representative, or an unsubpoenaed witness only if the distance from the person's residence or office (whichever he or she travels from) to the hearing site exceeds 75 miles. (3) For travel expenses incurred on or after April 1, 1991, the amount of reimbursement under this section for travel by your representative to attend a disability hearing or a hearing before an administrative law judge shall not exceed the maximum amount allowable under this section for travel to the hearing site from any point within the geographic area of the office having jurisdiction over the hearing. (i) The geographic area of the office having jurisdiction over the hearing means, as appropriate— (A) The designated geographic service area of the State agency adjudicatory unit having responsibility for providing the disability hearing; (B) If a Federal disability hearing officer holds the disability hearing, the geographic area of the State (as defined in § 416.120(c)(9)) in which the claimant resides or, if the claimant is not a resident of a State, in which the hearing officer holds the disability hearing; or (C) The designated geographic service area of the Office of Hearings Operations hearing office having responsibility for providing the hearing. (ii) We or the State agency determine the maximum amount allowable for travel by a representative based on the distance to the hearing site from the farthest point within the appropriate geographic area. In determining the maximum amount allowable for travel between these two points, we or the State agency apply the rules in paragraphs (a) through (c) of this section and the limitations in paragraph (d) (1) and (4) of this section. If the distance between these two points does not exceed 75 miles, we or the State agency will not reimburse any of your representative's travel expenses. (4) If a change in the location of the hearing is made at your request from the location we or the State agency selected to one farther from your residence or office, neither your additional travel expenses nor the additional travel expenses of your representative and witnesses will be reimbursed. [51 FR 8810, Mar. 14, 1986, as amended at 59 FR 8532, Feb. 23, 1994; 85 FR 73161, Nov. 16, 2020] § 416.1499 When and how to claim reimbursement. (a)(1) Generally, you will be reimbursed for your expenses after your trip. However, travel advances may be authorized if you request prepayment and show that the requested advance is reasonable and necessary. (2) You must submit to us or the State agency, as appropriate, an itemized list of what you spent and supporting receipts to be reimbursed. (3) Arrangements for special means of transportation and related unusual costs may be made only if we or the State agency authorizes the costs in writing in advance of travel, unless the costs are unexpected or unavoidable. If they are unexpected or unavoidable we or the State agency must determine their reasonableness and necessity and must approve them before payment may be made. (4) If you receive prepayment, you must, within 20 days after your trip, provide to us or the State agency, as appropriate, an itemized list of your actual travel costs and submit supporting receipts. We or the State agency will require you to pay back any balance of the advanced amount that exceeds any approved travel expenses within 20 days after you are notified of the amount of that balance. (State agencies may have their own time limits in place of the 20-day periods in the preceding two sentences.) (b) You may claim reimbursable travel expenses incurred by your representative for which you have been billed by your representative, except that if your representative makes a claim for them to us or the State, he or she will be reimbursed directly. (Approved by the Office of Management and Budget under control number 0960-0434) [51 FR 8810, Mar. 14, 1986, as amended at 51 FR 44983, Dec. 16, 1986] Subpart O—Representation of Parties Authority: 42 U.S.C. 405(a), 406, 902(a)(5), 1320a-6, and 1383(d). Source: 45 FR 52106, Aug. 5, 1980, unless otherwise noted. § 416.1500 Introduction. You may appoint someone to represent you in any of your dealings with us. This subpart explains, among other things— (a) Who may be your representative and what his or her qualifications must be; (b) How you appoint a representative; (c) The payment of fees to a representative; (d) Our rules that representatives must follow; and (e) What happens to a representative who breaks the rules. § 416.1503 Definitions. As used in this subpart: Affiliate Assignment Date we notify him or her Eligible non-attorney Entity Federal agency Federal program Legal guardian or court-appointed representative Past-due benefits (1) Continued benefits paid pursuant to § 416.996 of this part; (2) Continued benefits paid pursuant to § 416.1336(b) of this part; or (3) Interim benefits paid pursuant to section 1631(a)(8) of the Act. Point of Contact Registration Representational services Representative Representative We, our, us You your [45 FR 52106, Aug. 5, 1980, as amended at 62 FR 38455, July 18, 1997; 72 FR 16725, Apr. 5, 2007; 74 FR 48384, Sept. 23, 2009; 76 FR 45194, July 28, 2011; 76 FR 80247, Dec. 23, 2011; 89 FR 67555, Aug. 21, 2024] § 416.1505 Who may be your representative. (a) You may appoint as your representative in dealings with us any attorney in good standing who— (1) Has the right to practice law before a court of a State, Territory, District, or island possession of the United States, or before the Supreme Court or a lower Federal court of the United States; (2) Is not disqualified or suspended from acting as a representative in dealings with us; and (3) Is not prohibited by any law from acting as a representative. (b) You may appoint any person who is not an attorney to be your representative in dealings with us if the person— (1) Is capable of giving valuable help to you in connection with your claim; (2) Is not disqualified or suspended from acting as a representative in dealings with us; (3) Is not prohibited by any law from acting as a representative; and (4) Is generally known to have a good character and reputation. Persons lacking good character and reputation, include, but are not limited to, persons who have a final conviction of a felony (as defined by § 404.1506(c) of this chapter), or any crime involving moral turpitude, dishonesty, false statement, misrepresentations, deceit, or theft. (c) Your representative(s) must be registered with us in the manner we prescribe. (d) We may refuse to recognize your chosen representative if the person does not meet the requirements in this section. We will notify you and the proposed representative if we do not recognize the person as your representative. [45 FR 52106, Aug. 5, 1980, as amended at 76 FR 80247, Dec. 23, 2011; 83 FR 30857, July 2, 2018; 89 FR 67555, Aug. 21, 2024] § 416.1506 Notification of options for obtaining attorney representation. If you are not represented by an attorney and we make a determination or decision that is subject to the administrative review process provided under subpart N of this part and it does not grant all of the benefits or other relief you requested or it adversely affects any eligibility to benefits that we have established or may establish for you, we will include with the notice of that determination or decision information about your options for obtaining an attorney to represent you in dealing with us. We will also tell you that a legal services organization may provide you with legal representation free of charge if you satisfy the qualifying requirements applicable to that organization. [58 FR 64886, Dec. 10, 1993] § 416.1507 Appointing a representative. We will recognize a person as your representative if: (a) You and your representative complete and sign our prescribed appointment form; and (b) You or your representative file our prescribed appointment form in the manner we designate. [89 FR 67555, Aug. 21, 2024] § 416.1510 Authority of a representative. (a) What a representative may do. (1) Obtain information about your claim to the same extent that you are able to do; (2) Submit evidence; (3) Make statements about facts and law; and (4) Make any request or give any notice about the proceedings before us. (b) What a representative may not do. § 416.1513 Mandatory use of electronic services. A representative must conduct business with us electronically at the times and in the manner we prescribe on matters for which the representative requests direct fee payment. ( See [76 FR 56109, Sept. 12, 2011] § 416.1515 Notice or request to a representative. (a) We shall send your representative— (1) Notice and a copy of any administrative action, determination, or decision; and (2) Requests for information or evidence. (b) A notice or request sent to your representative will have the same force and effect as if it had been sent to you. § 416.1517 Direct payment of fees to eligible non-attorney representatives. (a) Criteria for eligibility. (1) Completes and submits to us an application as described in paragraph (b) of this section; (2) Pays the application fee as described in paragraph (c) of this section; (3) Demonstrates that he or she possesses: (i) A bachelor's degree from an accredited institution of higher learning; or (ii) At least four years of relevant professional experience and either a high school diploma or a General Educational Development certificate; (4) Passes our criminal background investigation (including checks of our administrative records), and attests under penalty of perjury that he or she: (i) Has not been suspended or disqualified from practice before us and is not suspended or disbarred from the practice of law in any jurisdiction; (ii) Has not had a judgment or lien assessed against him or her by a civil court for malpractice or fraud; (iii) Has not had a felony conviction; and (iv) Has not misrepresented information provided on his or her application or supporting materials for the application; (5) Takes and passes a written examination we administer; (6) Provides proof of and maintains continuous liability insurance coverage that is underwritten by an entity that is legally permitted to provide professional liability insurance in the States in which the representative conducts business. The policy must include coverage for malpractice claims against the representative and be in an amount we prescribe; and (7) Completes and provides proof that he or she has completed all continuing education courses that we prescribe by the deadline we prescribe. (b) Application. (c) Application fee. (1) We will refund the fee if: (i) We do not administer an examination, and an applicant was unable to take the rescheduled examination; or (ii) Circumstances beyond the applicant's control that could not have been reasonably anticipated and planned for prevent an applicant from taking a scheduled examination. (2) We will not refund the fee if: (i) An applicant took and failed the examination; or (ii) An applicant failed to arrive on time for the examination because of circumstances within the applicant's control that could have been anticipated and planned for. (d) Protest procedures. (i) Attest on the application or provide sufficient documentation that he or she possesses the required education or equivalent qualifications, as described in paragraph (a)(3) of this section; (ii) Meet at all times the criminal background investigation criteria, as described in paragraph (a)(4) of this section; (iii) Provide proof that he or she has maintained continuous liability insurance coverage, as described in paragraph (a)(6) of this section, after we previously determined the representative was eligible to receive direct fee payment; or (iv) Complete continuing education courses or provide documentation of the required continuing education courses, as described in paragraph (a)(7) of this section. (2) A non-attorney representative who wants to protest our finding under paragraph (d)(1) of this section must file a protest in writing and provide all relevant supporting documentation to us within 10 calendar days after the date we notify him or her of our finding. (3) A representative may not file a protest for reasons other than those listed in paragraph (d)(1) of this section. If a representative files a protest for reasons other than those listed in paragraph (d)(1) of this section, we will not process the protest and will implement our finding as if no protest had been filed. Our finding in response to the protest is final and not subject to further review. (e) Ineligibility and suspension. (2) If an eligible non-attorney representative does not protest, in accordance with paragraph (d)(2) of this section, our finding about the criteria in paragraphs (a)(3) or (a)(4) of this section, the non-attorney representative will be ineligible to receive direct fee payment beginning with the month after the month the protest period ends. If the eligible non-attorney representative protests in accordance with paragraph (d)(2) of this section and we uphold our finding, the non-attorney representative will be ineligible to receive direct fee payment beginning with the month after the month we uphold our finding. (3) If an eligible non-attorney representative does not protest, in accordance with paragraph (d)(2) of this section, our finding about the criteria in paragraph (a)(6) of this section, the non-attorney representative will be ineligible to receive direct fee payment for 6 full calendar months beginning with the month after the month the protest period ends. If the eligible non-attorney representative protests in accordance with paragraph (d)(2) of this section and we uphold our finding, the non-attorney representative will be ineligible to receive direct fee payment for 6 full calendar months beginning with the month after the month we uphold our finding. In either case, the non-attorney representative may provide us with documentation that he or she has acquired and maintains the required liability insurance coverage described in paragraph (a)(6) of this section, no earlier than the sixth month of the ineligibility. The non-attorney representative will again be eligible to receive direct fee payment beginning in the first month after the month we find that we have received sufficient documentation that the non-attorney representative meets the requirements of paragraph (a)(6) of this section. (4) If an eligible non-attorney representative does not protest, in accordance with paragraph (d)(2) of this section, our finding about the criteria in paragraph (a)(7) of this section, the non-attorney representative will be ineligible to receive direct fee payment for 6 full calendar months beginning with the month after the month the protest period ends. If the eligible non-attorney representative protests in accordance with paragraph (d)(2) of this section and we uphold our finding, the non-attorney will be ineligible to receive direct fee payment for 6 full calendar months beginning with the month after the month we uphold our finding. In either case, the non-attorney representative may provide us with documentation that he or she has satisfied the criteria in paragraph (a)(7) of this section at any time. The non-attorney representative will again be eligible to receive direct fee payment beginning in the first month after the month we find that we have received sufficient documentation, but not earlier than the month following the end of the 6 month ineligibility period. (f) Reapplying. (1) Did not meet the initial criteria for eligibility in paragraph (a)(1), (2), (3), or (5) of this section in a prior application period; or (2) Failed to timely correct a defective application in a prior application period as described in paragraph (b) of this section. [76 FR 45194, July 28, 2011, as amended at 80 FR 400, Jan. 6, 2015] § 416.1520 Fee for a representative's services. (a) General. (b) Charging and receiving a fee. (2) We decide the amount of the fee, if any, a representative may charge or receive. (3) Subject to paragraph (e) of this section, a representative must not charge or receive any fee unless we have authorized it, and a representative must not charge or receive any fee that is more than the amount we authorize. (4) If your representative is an attorney or an eligible non-attorney, and you are entitled to past-due benefits, we will pay the authorized fee, or a part of the authorized fee, directly to the attorney or eligible non-attorney out of the past-due benefits, subject to the limitations described in § 416.1530(b)(1). If the representative is a non-attorney who is ineligible to receive direct fee payment, we assume no responsibility for the payment of any fee that we have authorized. (c) Notice of fee determination. (1) The amount of the fee that is authorized; (2) How we made that decision; (3) Whether we are responsible for paying the fee from past-due benefits; and (4) That within 30 days of the date of the notice, either you or your representative may request us to review the fee determination. (d) Review of fee determination Request filed on time. (2) Request not filed on time. (ii) Some examples of good cause follow: (A) Either you or your representative was seriously ill and the illness prevented you or your representative from contacting us in person or in writing. (B) There was a death or serious illness in your family or in the family of your representative. (C) Material records were destroyed by fire or other accidental cause. (D) We gave you or your representative incorrect or incomplete information about the right to request review. (E) You or your representative did not timely receive notice of the fee determination. (F) You or your representative sent the request to another government agency in good faith within the 30-day period, and the request did not reach us until after the period had ended. (3) Payment of fees. (e) When we do not need to authorize a fee. (1) An entity or a Federal, State, county, or city government agency pays from its funds the representative fees and expenses and both of the following conditions apply: (i) You are not liable to pay a fee or any expenses, or any part thereof, directly or indirectly, to the representative or someone else; and (ii) The representative submits to us a writing in the form and manner we prescribe waiving the right to charge and collect a fee and any expenses from you directly or indirectly, in whole or in part; or (2) A court authorizes a fee for your representative based on the representative's actions as your legal guardian or a court-appointed representative. (f) Assignment of direct payment of fees. [45 FR 52106, Aug. 5, 1980, as amended at 72 FR 16725, Apr. 5, 2007; 74 FR 48384, Sept. 23, 2009; 76 FR 45195, July 28, 2011; 89 FR 67555, Aug. 21, 2024] § 416.1525 Request for approval of a fee. (a) Filing a request. (1) The dates the representative's services began and ended; (2) A list of the services he or she gave and the amount of time he or she spent on each type of service; (3) The amount of the fee he or she wants to charge for the services; (4) The amount of fee the representative wants to request or charge for his or her services in the same matter before any State or Federal court; (5) The amount of and a list of any expenses the representative incurred for which he or she has been paid or expects to be paid; (6) A description of the special qualifications which enabled the representative, if he or she is not an attorney, to give valuable help to you in connection with your claim; and (7) A statement showing that the representative sent a copy of the request for approval of a fee to you. (b) Evaluating a request for approval of a fee. (i) The extent and type of services the representative performed; (ii) The complexity of the case; (iii) The level of skill and competence required of the representative in giving the services; (iv) The amount of time the representative spent on the case; (v) The results the representative achieved; (vi) The level of review to which the claim was taken and the level of the review at which the representative became your representative; and (vii) The amount of fee the representative requests for his or her services, including any amount authorized or requested before, but not including the amount of any expenses he or she incurred. (2) Although we consider the amount of benefits, if any, that are payable, we do not base the amount of fee we authorize on the amount of the benefit alone, but on a consideration of all the factors listed in this section. The benefits payable in any claim are determined by specific provisions of law and are unrelated to the efforts of the representative. We may authorize a fee even if no benefits are payable. § 416.1528 Proceedings before a State or Federal court. (a) Representation of a party in court proceedings. (b) Attorney fee allowed by a Federal court. [72 FR 16725, Apr. 5, 2007] § 416.1530 Payment of fees. (a) Fees allowed by a Federal court. (b) Fees we may pay Attorneys and eligible non-attorneys. (i) We will pay your representative out of the past-due benefits the smallest of the amounts in paragraphs (b)(1)(iii) through (v) of this section, less the amount of the assessment described in paragraph (d) of this section, unless the representative files a waiver of the fee or direct payment of the fee; and (ii) If there is a valid assignment (see paragraph (e) of this section), we will pay the representative's fee (see paragraph (b)(1)(i) of this section) to an entity. (iii) Twenty-five percent of the total of the past-due benefits, as determined before any payment to a State (or political subdivision) to reimburse the State (or political subdivision) for interim assistance furnished you, as described in § 416.525 of this part, and reduced by the amount of any reduction in benefits under this title or title II pursuant to section 1127 of the Act; (iv) The amount of past-due benefits remaining after we pay to a State (or political subdivision) an amount sufficient to reimburse the State (or political subdivision) for interim assistance furnished you, as described in § 416.525 of this part, and after any applicable reductions under section 1127 of the Act; or (v) The amount of the fee that we set. (2) Non-attorneys ineligible for direct payment. (c) Time limit for filing request for approval of fee to obtain direct payment. (2)(i) If no request is filed within 60 days of the date the notice of the favorable determination is mailed, we will mail a written notice to you and your representative at your last known addresses. The notice will inform you and the representative that unless the representative files, within 20 days from the date of the notice, a written request for approval of a fee under § 416.1525, or a written request for an extension of time, we will pay all the past-due benefits to you. (ii) The representative must send you a copy of any request made to us for an extension of time. If the request is not filed within 20 days of the date of the notice, or by the last day of any extension we approved, we will pay to you all past-due benefits remaining after we reimburse the State for any interim assistance you received. We must approve any fee the representative charges after that time, but the collection of any approved fee is a matter between you and the representative. (d) Assessment when we pay a fee directly to a representative. (2) The amount of the assessment is equal to the lesser of: (i) The product we obtain by multiplying the amount of the fee we are paying to the representative by the percentage rate the Commissioner of Social Security determines is necessary to achieve full recovery of the costs of determining and paying fees directly to representatives, but not in excess of 6.3 percent; and (ii) The maximum assessment amount. The maximum assessment amount was initially set at $75, but by law is adjusted annually to reflect the increase in the cost of living. (See §§ 404.270 through 404.277 for an explanation of how the cost-of-living adjustment is computed.) If the adjusted amount is not a multiple of $1, we round down the amount to the next lower $1, but the amount will not be less than $75. We will announce any increase in the maximum assessment amount, and explain how that increase was determined in the Federal Register. (3) We collect the assessment by subtracting it from the amount of the fee to be paid to the representative. The representative who is subject to an assessment may not, directly or indirectly, request or otherwise obtain reimbursement of the assessment from you. (e) Assignment of direct payment of a fee to designated entity. (i) Is eligible for direct payment; (ii) Has not waived the fee or direct payment; (iii) Assigns direct payment of the entire fee we authorize to one entity in the manner we prescribe; (iv) Makes the assignment before the date on which we notify you of our first favorable determination or decision; and (v) Affiliates with the entity through registration. (2) A representative may rescind an assignment in the manner we prescribe before the date on which we notify you of our first favorable determination or decision. (3) A representative may not assign direct payment of a fee to an entity that is ineligible to receive direct payment. (4) A representative may not waive a fee or direct payment of a fee if the representative previously assigned direct payment of a fee in accordance with paragraph (e)(1) of this section and did not timely rescind that assignment in accordance with paragraph (e)(2) of this section. (f) Effective dates for extension of direct payment of fee to attorneys. [72 FR 16726, Apr. 5, 2007, as amended at 76 FR 45195, July 28, 2011; 89 FR 67555, Aug. 21, 2024] § 416.1535 Entity eligible for direct payment of fees. An entity is eligible for direct payment of an authorized fee if the entity: (a) Has an Employer Identification Number; (b) Has registered with us in the manner we prescribe; (c) Has not been found ineligible for direct payment; (d) Designates and maintains an employee who is registered as a representative in the manner we prescribe as a point of contact to speak and act on the entity's behalf; (e) Accepts payment via electronic funds transfer; and (f) Conforms to our rules. [89 FR 67556, Aug. 21, 2024] § 416.1540 Rules of conduct and standards of responsibility for representatives. (a) Purpose and scope. (2) All representatives must be forthright in their dealings with us and with the claimant and must comport themselves with due regard for the nonadversarial nature of the proceedings by complying with our rules and standards, which are intended to ensure orderly and fair presentation of evidence and argument. (b) Affirmative duties. (1) Act with reasonable promptness to help obtain the information or evidence that the claimant must submit under our regulations, and forward the information or evidence to us for consideration as soon as practicable. (2) Assist the claimant in complying, as soon as practicable, with our requests for information or evidence at any stage of the administrative decisionmaking process in his or her claim. In disability and blindness claims, this includes the obligation pursuant to § 416.912(c) to assist the claimant in providing, upon our request, evidence about: (i) The claimant's medical source(s); (ii) The claimant's age; (iii) The claimant's education and training; (iv) The claimant's work experience; (v) The claimant's daily activities both before and after the date the claimant alleges that he or she became disabled; (vi) The claimant's efforts to work; and (vii) Any other factors showing how the claimant's impairment(s) affects his or her ability to work. In §§ 416.960 through 416.969a, we discuss in more detail the evidence we need when we consider vocational factors. (3) Conduct his or her dealings in a manner that furthers the efficient, fair, and orderly conduct of the administrative decision-making process, including duties to: (i) Provide competent representation to a claimant. Competent representation requires the knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. A representative must know the significant issue(s) in a claim, have reasonable and adequate familiarity with the evidence in the case, and have a working knowledge of the applicable provisions of the Social Security Act, as amended, the regulations, the Social Security Rulings, and any other applicable provisions of law. (ii) Act with reasonable diligence and promptness in representing a claimant. This includes providing prompt and responsive answers to our requests for information pertinent to processing of the claim. (iii) When requested, provide us, in a manner we specify, potential dates and times that the representative will be available for a hearing. We will inform the representative how many potential dates and times we require to coordinate the hearing schedule. (iv) Only withdraw representation at a time and in a manner that does not disrupt the processing or adjudication of a claim and that provides the claimant adequate time to find new representation, if desired. A representative should not withdraw after we set the time and place for the hearing (see § 416.1436) unless the representative can show that a withdrawal is necessary due to extraordinary circumstances, as we determine on a case-by-case basis. (v) Maintain prompt and timely communication with the claimant, which includes, but is not limited to, reasonably informing the claimant of all matters concerning the representation, consulting with the claimant on an ongoing basis during the entire representational period, and promptly responding to a claimant's reasonable requests for information. When we evaluate whether a representative has maintained prompt and timely communication with the claimant, we will consider the difficulty the representative has in locating a particular claimant (e.g., because the claimant is homeless) and the representative's efforts to keep that claimant informed. (4) Conduct business with us electronically at the times and in the manner we prescribe on matters for which the representative requests direct fee payment. ( See (5) Disclose in writing, at the time a medical or vocational opinion is submitted to us or as soon as the representative is aware of the submission to us, if: (i) The representative's employee or any individual contracting with the representative drafted, prepared, or issued the medical or vocational opinion; or (ii) The representative referred or suggested that the claimant seek an examination from, treatment by, or the assistance of, the individual providing opinion evidence. (6) Disclose to us immediately if the representative discovers that his or her services are or were used by the claimant to commit fraud against us. (7) Disclose to us whether the representative is or has been disbarred or suspended from any bar or court to which he or she was previously admitted to practice, including instances in which a bar or court took administrative action to disbar or suspend the representative in lieu of disciplinary proceedings (e.g., acceptance of voluntary resignation pending disciplinary action). If the disbarment or suspension occurs after the appointment of the representative, the representative will immediately disclose the disbarment or suspension to us. (8) Disclose to us whether the representative is or has been disqualified from participating in or appearing before any Federal program or agency, including instances in which a Federal program or agency took administrative action to disqualify the representative in lieu of disciplinary proceedings (e.g., acceptance of voluntary resignation pending disciplinary action). If the disqualification occurs after the appointment of the representative, the representative will immediately disclose the disqualification to us. (9) Disclose to us whether the representative has been removed from practice or suspended by a professional licensing authority for reasons that reflect on the person's character, integrity, judgment, reliability, or fitness to serve as a fiduciary. If the removal or suspension occurs after the appointment of the representative, the representative will immediately disclose the removal or suspension to us. (10) Ensure that all of the representative's employees, assistants, partners, contractors, or any person assisting the representative on claims for which the representative has been appointed, comply with these rules of conduct and standards of responsibility for representatives, when the representative has managerial or supervisory authority over these individuals or otherwise has responsibility to oversee their work. This includes a duty to take remedial action when: (i) The representative's employees, assistants, partners, contractors or other individuals' conduct violates these rules of conduct and standards of responsibility; and (ii) The representative has reason to believe a violation of these rules of conduct and standards of responsibility occurred or will occur. (c) Prohibited actions. (1) In any manner or by any means threaten, coerce, intimidate, deceive or knowingly mislead a claimant, or prospective claimant or beneficiary, regarding benefits or other rights under the Act. This prohibition includes misleading a claimant, or prospective claimant or beneficiary, about the representative's services and qualifications. (2) Knowingly charge, collect or retain, or make any arrangement to charge, collect or retain, from any source, directly or indirectly, any fee for representational services in violation of applicable law or regulation. This prohibition includes soliciting any gift or any other item of value, other than what is authorized by law. (3) Make or present, or participate in the making or presentation of, false or misleading oral or written statements, evidence, assertions, or representations about a material fact or law concerning a matter within our jurisdiction, in matters where the representative knows or should have known that those statements, evidence, assertions or representations are false or misleading. (4) Through his or her own actions or omissions, unreasonably delay or cause to be delayed, without good cause (see § 416.1411(b)), the processing of a claim at any stage of the administrative decision-making process. (5) Divulge, without the claimant's consent, except as may be authorized by regulations prescribed by us or as otherwise provided by Federal law, any information we furnish or disclose about a claim or prospective claim. (6) Attempt to influence, directly or indirectly, the outcome of a decision, determination, or other administrative action by any means prohibited by law, or offering or granting a loan, gift, entertainment, or anything of value to a presiding official, agency employee, or witness who is or may reasonably be expected to be involved in the administrative decision-making process, except as reimbursement for legitimately incurred expenses or lawful compensation for the services of an expert witness retained on a non-contingency basis to provide evidence. (7) Engage in actions or behavior prejudicial to the fair and orderly conduct of administrative proceedings, including but not limited to: (i) Repeated absences from or persistent tardiness at scheduled proceedings without good cause (see § 416.1411(b)); (ii) Behavior that has the effect of improperly disrupting proceedings or obstructing the adjudicative process, including but not limited to: (A) Directing threatening or intimidating language, gestures, or actions at a presiding official, witness, contractor, or agency employee; (B) Providing misleading information or misrepresenting facts that affect how we process a claim, including, but not limited to, information relating to the claimant's work activity or the claimant's place of residence or mailing address in matters where the representative knows or should have known that the information was misleading and the facts would constitute a misrepresentation; and (C) Communicating with agency staff or adjudicators outside the normal course of business or other prescribed procedures in an attempt to inappropriately influence the processing or outcome of a claim(s). (8) Violate any section of the Act for which a criminal or civil monetary penalty is prescribed. (9) Refuse to comply with any of our rules or regulations. (10) Suggest, assist, or direct another person to violate our rules or regulations. (11) Advise any claimant or beneficiary not to comply with any of our rules or regulations. (12) Knowingly assist a person whom we suspended or disqualified to provide representational services in a proceeding under title XVI of the Act, or to exercise the authority of a representative described in § 416.1510. (13) Fail to comply with our sanction(s) decision. (14) Fail to oversee the representative's employees, assistants, partners, contractors, or any other person assisting the representative on claims for which the representative has been appointed when the representative has managerial or supervisory authority over these individuals or otherwise has responsibility to oversee their work. (15) While serving as a point of contact for an entity, violate applicable affirmative duties, engage in prohibited actions, or conduct dealings with us in a manner that is untruthful or does not further the efficient and prompt correction of a fee error. [63 FR 41417, Aug. 4, 1998, as amended at 76 FR 56109, Sept. 12, 2011; 76 FR 80247, Dec. 23, 2011; 80 FR 14838, Mar. 20, 2015; 83 FR 30857, July 2, 2018; 89 FR 67556, Aug. 21, 2024] § 416.1545 Violations of our requirements, rules, or standards. When we have evidence that a representative fails to meet our qualification requirements or has violated the rules governing dealings with us, we may begin proceedings to suspend or disqualify that individual from acting in a representational capacity before us. We may file charges seeking such sanctions when we have evidence that a representative: (a) Does not meet the qualifying requirements described in § 416.1505; (b) Has violated the affirmative duties or engaged in the prohibited actions set forth in § 416.1540; (c) Has been convicted of a violation under section 1631(d) of the Act; (d) Has been, by reason of misconduct, disbarred or suspended from any bar or court to which he or she was previously admitted to practice (see § 416.1570(a)); (e) Has been, by reason of misconduct, disqualified from participating in or appearing before any Federal program or agency (see § 416.1570(a)); or (f) Who, as a non-attorney, has been removed from practice or suspended by a professional licensing authority for reasons that reflect on the person's character, integrity, judgment, reliability, or fitness to serve as a fiduciary. [63 FR 41418, Aug. 4, 1998, as amended at 71 FR 2877, Jan. 18, 2006; 83 FR 30858, July 2, 2018] § 416.1550 Notice of charges against a representative. (a) The General Counsel or other delegated official will prepare a notice containing a statement of charges that constitutes the basis for the proceeding against the representative. (b) We will send this notice to the representative either by certified or registered mail, to his or her last known address, or by personal delivery. (c) We will advise the representative to file an answer, within 14 business days from the date of the notice, or from the date the notice was delivered personally, stating why he or she should not be suspended or disqualified from acting as a representative in dealings with us. (d) The General Counsel or other delegated official may extend the 14-day period specified in paragraph (c) of this section for good cause in accordance with § 416.1411. (e) The representative must— (1) Answer the notice in writing under oath (or affirmation); and (2) File the answer with the Social Security Administration, at the address specified on the notice, within the 14-day time period specified in paragraph (c) of this section. (f) If the representative does not file an answer within the 14-day time period specified in paragraph (c) of this section (or the period extended in accordance with paragraph (d) of this section), he or she does not have the right to present evidence, except as may be provided in § 416.1565(g). [45 FR 52106, Aug. 5, 1980, as amended at 56 FR 24132, May 29, 1991; 62 FR 38455, July 18, 1997; 63 FR 41418, Aug. 4, 1998; 71 FR 2878, Jan. 18, 2006; 76 FR 80247, Dec. 23, 2011; 83 FR 30858, July 2, 2018] § 416.1555 Withdrawing charges against a representative. The General Counsel or other delegated official may withdraw charges against a representative. We will withdraw charges if the representative files an answer, or we obtain evidence, that satisfies us that we should not suspend or disqualify the representative from acting as a representative. When we consider withdrawing charges brought under § 416.1545(d) through (f) based on the representative's assertion that, before or after our filing of charges, the representative has been reinstated to practice by the court, bar, or Federal program or Federal agency that suspended, disbarred, or disqualified the representative, the General Counsel or other delegated official will determine whether such reinstatement occurred, whether it remains in effect, and whether he or she is reasonably satisfied that the representative will in the future act in accordance with the provisions of section 206(a) of the Act and our rules and regulations. If the representative proves that reinstatement occurred and remains in effect and the General Counsel or other delegated official is so satisfied, the General Counsel or other delegated official will withdraw those charges. The action of the General Counsel or other delegated official regarding withdrawal of charges is solely that of the General Counsel or other delegated official and is not reviewable, or subject to consideration in decisions made under §§ 416.1570 and 416.1590. If we withdraw the charges, we will notify the representative by mail at the representative's last known address. [83 FR 30859, July 2, 2018] § 416.1565 Hearing on charges. (a) Holding the hearing. (b) Hearing officer. (2) No hearing officer shall hold a hearing in a case in which he or she is prejudiced or partial about any party, or has any interest in the matter. (3) If the representative or any party to the hearing objects to the hearing officer who has been named to hold the hearing, we must be notified at the earliest opportunity. The hearing officer shall consider the objection(s) and either proceed with the hearing or withdraw from it. (4) If the hearing officer withdraws from the hearing, another one will be named. (5) If the hearing officer does not withdraw, the representative or any other person objecting may, after the hearing, present his or her objections to the Appeals Council explaining why he or she believes the hearing officer's decision should be revised or a new hearing held by another administrative law judge designated to act as a hearing officer. (c) Time and place of hearing. (d) Change of time and place for hearing. (2) The hearing officer may adjourn or postpone the hearing. (3) Subject to the limitations in paragraph (g)(2) of this section, the hearing officer may reopen the hearing for the receipt of additional evidence at any time before mailing notice of the decision. (4) The hearing officer shall give the representative and the other party to the hearing reasonable notice of any change in the time or place for the hearing, or of an adjournment or reopening of the hearing. (e) Parties. (f) Subpoenas. (2) The representative or the other party who wants a subpoena issued shall file a written request with the hearing officer. This must be done at least 5 days before the date set for the hearing. The request must name the documents to be produced, and describe the address or location in enough detail to permit the witnesses or documents to be found. (3) The representative or the other party who wants a subpoena issued shall state in the request for a subpoena the material facts that he or she expects to establish by the witness or document, and why the facts could not be established by the use of other evidence which could be obtained without use of a subpoena. (4) We will pay the cost of the issuance and the fees and mileage of any witness subpoenaed, as provided in section 205(d) of the Act. (g) Conduct of the hearing. (2) If the representative did not file an answer to the charges, he or she has no right to present evidence at the hearing. The hearing officer may make or recommend a decision on the basis of the record, or permit the representative to present a statement about the sufficiency of the evidence or the validity of the proceedings upon which the suspension or disqualification, if it occurred, would be based. (3) The hearing officer will make the hearing open to the representative, to the other party, and to any persons the hearing officer or the parties consider necessary or proper. The hearing officer will inquire fully into the matters being considered, hear the testimony of witnesses, and accept any documents that are material. (4) The hearing officer has the right to decide the order in which the evidence and the allegations will be presented and the conduct of the hearing. (h) Evidence. (i) Witnesses. (j) Oral and written summation. (2) The party that files briefs or other written statements shall provide enough copies so that they may be made available to any other party to the hearing who requests a copy. (k) Record of hearing. (l) Representation. (m) Failure to appear. (n) Dismissal of charges. (o) Cost of transcript. [45 FR 52106, Aug. 5, 1980, as amended at 56 FR 24132, May 29, 1991; 62 FR 38455, July 18, 1997; 63 FR 41418, Aug. 4, 1998; 71 FR 2878, Jan. 18, 2006; 76 FR 80248, Dec. 23, 2011; 83 FR 30859, July 2, 2018] § 416.1570 Decision by hearing officer. (a) General. (2) In deciding whether a person has been, by reason of misconduct, disbarred or suspended by a court or bar, or disqualified from participating in or appearing before any Federal program or Federal agency, the hearing officer will consider the reasons for the disbarment, suspension, or disqualification action. If the action was taken for solely administrative reasons (e.g., failure to pay dues or to complete continuing legal education requirements), that will not disqualify the person from acting as a representative before us. However, this exception to disqualification does not apply if the administrative action was taken in lieu of disciplinary proceedings (e.g., acceptance of a voluntary resignation pending disciplinary action). Although the hearing officer will consider whether the disbarment, suspension, or disqualification action is based on misconduct when deciding whether a person should be disqualified from acting as a representative before us, the hearing officer will not re-examine or revise the factual or legal conclusions that led to the disbarment, suspension, or disqualification. For purposes of determining whether a person has been, by reason of misconduct, disqualified from participating in or appearing before any Federal program or Federal agency, disqualified refers to any action that prohibits a person from participating in or appearing before any Federal program or Federal agency, regardless of how long the prohibition lasts or the specific terminology used. (3) If the hearing officer finds that the charges against the representative have been sustained, he or she will either— (i) Suspend the representative for a specified period of not less than 1 year, nor more than 5 years, from the date of the decision; or (ii) Disqualify the representative from acting as a representative in dealings with us until he or she may be reinstated under § 416.1599. Disqualification is the sole sanction available if the charges have been sustained because the representative has been disbarred or suspended from any court or bar to which the representative was previously admitted to practice or disqualified from participating in or appearing before any Federal program or Federal agency, or because the representative has collected or received, and retains, a fee for representational services in excess of the amount authorized. (4) The hearing officer shall mail a copy of the decision to the parties at their last known addresses. The notice will inform the parties of the right to request the Appeals Council to review the decision. (b) Effect of hearing officer's decision. (2) If the final decision is that a person is disqualified from being a representative in dealings with us, he or she will not be permitted to represent anyone in dealings with us until authorized to do so under the provisions of § 416.1599. (3) If the final decision is that a person is suspended for a specified period of time from being a representative in dealings with us, he or she will not be permitted to represent anyone in dealings with us during the period of suspension unless authorized to do so under the provisions of § 416.1599. [45 FR 52106, Aug. 5, 1980, as amended at 56 FR 24132, May 29, 1991; 71 FR 2878, Jan. 18, 2006; 76 FR 80248, Dec. 23, 2011] § 416.1575 Requesting review of the hearing officer's decision. (a) General. (b) Time and place of filing request for review. [45 FR 52106, Aug. 5, 1980, as amended at 83 FR 30859, July 2, 2018] § 416.1576 Assignment of request for review of the hearing officer's decision. Upon receipt of a request for review of the hearing officer's decision, the matter will be assigned to a panel consisting of three members of the Appeals Council none of whom shall be the Chair of the Appeals Council. The panel shall jointly consider and rule by majority opinion on the request for review of the hearing officer's decision, including a determination to dismiss the request for review. Matters other than a final disposition of the request for review may be disposed of by the member designated chair of the panel. [56 FR 24132, May 29, 1991] § 416.1580 Appeals Council's review of hearing officer's decision. (a) Upon request, the Appeals Council will give the parties a reasonable time to file briefs or other written statements as to fact and law, and to request to appear before the Appeals Council to present oral argument. When oral argument is requested within the time designated by the Appeals Council, the Appeals Council will grant the request for oral argument and determine whether the parties will appear at the oral argument in person, by video teleconferencing, or by telephone. If oral argument is not requested within the time designated by the Appeals Council, the Appeals Council may deny the request. (b) If a party files a brief or other written statement with the Appeals Council, he or she shall send a copy to the opposing party and certify that the copy has been sent. [45 FR 52106, Aug. 5, 1980, as amended at 83 FR 30859, July 2, 2018] § 416.1585 Evidence permitted on review. (a) General. (b) Individual charged filed an answer. (2) Before the Appeals Council admits additional evidence into the record, it will mail a notice to the parties, informing them that evidence about certain issues was submitted. The Appeals Council will give each party a reasonable opportunity to comment on the evidence and to present other evidence that is material to an issue it is considering. (3) The Appeals Council will determine whether the additional evidence warrants a new review by a hearing officer or whether the Appeals Council will consider the additional evidence as part of its review of the case. (c) Individual charged did not file an answer. [83 FR 30859, July 2, 2018] § 416.1590 Appeals Council's decision. (a) The Appeals Council will base its decision upon the evidence in the hearing record and any other evidence it may permit on review. The Appeals Council will affirm the hearing officer's decision if the action, findings, and conclusions are supported by substantial evidence. If the hearing officer's decision is not supported by substantial evidence, the Appeals Council will either: (1) Reverse or modify the hearing officer's decision; or (2) Return a case to the hearing officer for further proceedings. (b) The Appeals Council, in changing a hearing officer's decision to suspend a representative for a specified period, shall in no event reduce the period of suspension to less than 1 year. In modifying a hearing officer's decision to disqualify a representative, the Appeals Council shall in no event impose a period of suspension of less than 1 year. Further, the Appeals Council shall in no event impose a suspension when disqualification is the sole sanction available in accordance with § 416.1570(a)(3)(ii). (c) If the Appeals Council affirms or changes a hearing officer's decision, the period of suspension or the disqualification is effective from the date of the Appeals Council's decision. (d) If the hearing officer did not impose a period of suspension or a disqualification, and the Appeals Council decides to impose one or the other, the suspension or disqualification is effective from the date of the Appeals Council's decision. (e) The Appeals Council shall make its decision in writing and shall mail a copy of the decision to the parties at their last known addresses. (f) The Appeals Council may designate and publish certain final decisions as precedent for other actions brought under its representative conduct provisions. Prior to making a decision public, we will remove or redact personally identifiable information from the decision. [45 FR 52106, Aug. 5, 1980, as amended at 56 FR 24133, May 29, 1991; 71 FR 2878, Jan. 18, 2006; 83 FR 30860, July 2, 2018] § 416.1595 When the Appeals Council will dismiss a request for review. The Appeals Council may dismiss a request for the review of any proceeding to suspend or disqualify a representative in any of the following circumstances: (a) Upon request of party. (b) Death of party. (c) Request for review not timely filed. [45 FR 52106, Aug. 5, 1980, as amended at 84 FR 51367, Sept. 30, 2019] § 416.1597 Reinstatement after suspension—period of suspension expired. We shall automatically allow a person to serve again as a representative in dealings with us at the end of any suspension. § 416.1599 Reinstatement after suspension or disqualification—period of suspension not expired. (a) After more than one year has passed, a person who has been suspended or disqualified may ask the Appeals Council for permission to serve as a representative again. The Appeals Council will assign and process a request for reinstatement using the same general procedures described in § 416.1576. (b) The suspended or disqualified person must submit any evidence the person wishes to have considered along with the request to be allowed to serve as a representative again. (c) The General Counsel or other delegated official, upon notification of receipt of the request, will have 30 days in which to present a written report of any experiences with the suspended or disqualified person subsequent to that person's suspension or disqualification. The Appeals Council will make available to the suspended or disqualified person a copy of the report. (d)(1) The Appeals Council shall not grant the request unless it is reasonably satisfied that the person will in the future act according to the provisions of section 206(a) of the Act, and to our rules and regulations. (2) If a person was disqualified because he or she had been disbarred, suspended, or removed from practice for the reasons described in § 416.1545(d) through (f), the Appeals Council will grant a request for reinstatement as a representative only if the criterion in paragraph (d)(1) of this section is met and the disqualified person shows that he or she has been admitted (or readmitted) to and is in good standing with the court, bar, Federal program or agency, or other governmental or professional licensing authority from which he or she had been disbarred, suspended, or removed from practice. (3) If a person was disqualified because the person had been disqualified from participating in or appearing before a Federal program or Federal agency, the Appeals Council will grant the request for reinstatement only if the criterion in paragraph (d)(1) of this section is met and the disqualified person shows that the person is now qualified to participate in or appear before that Federal program or Federal agency. (4) If the person was disqualified as a result of collecting or receiving, and retaining, a fee for representational services in excess of the amount authorized, the Appeals Council will grant the request only if the criterion in paragraph (d)(1) of this section is met and the disqualified person shows that full restitution has been made. (e) The Appeals Council will mail a notice of its decision on the request for reinstatement to the suspended or disqualified person. It will also mail a copy to the General Counsel or other delegated official. (f) If the Appeals Council decides not to grant the request, it will not consider another request before the end of 3 years from the date of the notice of the previous denial. [45 FR 52106, Aug. 5, 1980, as amended at 56 FR 24133, May 29, 1991; 62 FR 38455, July 18, 1997; 63 FR 41418, Aug. 4, 1998; 71 FR 2878, Jan. 18, 2006; 76 FR 80248, Dec. 23, 2011; 83 FR 30860, July 2, 2018] Subpart P—Residence and Citizenship Authority: Secs. 702(a)(5), 1614 (a)(1)(B) and (e), and 1631 of the Social Security Act (42 U.S.C. 902(a)(5), 1382c (a)(1)(B) and (e), and 1383); 8 U.S.C. 1254a; sec. 502, Pub. L. 94-241, 90 Stat. 268 (48 U.S.C. 1681 note). Source: 47 FR 3106, Jan. 22, 1982, unless otherwise noted. § 416.1600 Introduction. You are eligible for supplemental security income (SSI) benefits if you meet the requirements in subpart B. Among these are requirements that you must be a resident of the United States and either a citizen, a national, or an alien with a lawful right to reside permanently in the United States. In this subpart, we tell you what kinds of evidence show that you are a resident of the United States (see § 416.1603) and— (a) A citizen or a national of the United States (see § 416.1610); (b) An alien lawfully admitted for permanent residence in the United States (see § 416.1615); or (c) An alien permanently residing in the United States under color of law (see § 416.1618). § 416.1601 Definitions and terms used in this subpart. We Us You Your § 416.1603 How to prove you are a resident of the United States. (a) What you should give us. (1) Property, income, or other tax forms or receipts; (2) Utility bills, leases or rent payment records; (3) Documents that show you participate in a social services program in the United States; or (4) Other records or documents that show you live in the United States. (b) What “resident of the United States” means. resident of the United States (c) What “United States” means. United States [47 FR 3106, Jan. 22, 1982, as amended at 62 FR 59813, Nov. 5, 1997] § 416.1610 How to prove you are a citizen or a national of the United States. (a) What you should give us. (1) A certified copy of your birth certificate which shows that you were born in the United States; (2) A certified copy of a religious record of your birth or baptism, recorded in the United States within 3 months of your birth, which shows you were born in the United States; (3) Your naturalization certificate; (4) Your United States passport; (5) Your certificate of citizenship; (6) An identification card for use of resident citizens in the United States (Immigration and Naturalization Service Form I-197); or (7) An identification card for use of resident citizens of the United States by both or naturalization of parents (INS Form I-179). (b) How to prove you are an interim citizen of the United States if you live in the Northern Mariana Islands. (1) You can prove you were domiciled in the Northern Mariana Islands by giving us— (i) Statements of civil authorities; or (ii) Receipts or other evidence that show you were domiciled there. (2) You can prove that you are a citizen of the Trust Territory of the Pacific Islands by giving us— (i) Your identification card issued by the Trust Territory of the Pacific Islands and a public or religious record of age which shows you were born in this territory; (ii) Your voter's registration card; (iii) A Chammoro Family Record showing your birth in the Trust Territory of the Pacific Islands; or (iv) Your naturalization certificate. (c) What to do if you cannot give us the information listed in paragraph (a) or (b). (1) Explain why you cannot give us any of the documents; and (2) Give us any information you have which shows or results in proof that you are a citizen or a national of the United States. The kind of information we are most concerned about shows— (i) The date and place of your birth in the United States; (ii) That you have voted or are otherwise known to be a citizen or national of the United States; or (iii) The relationship to you and the citizenship of any person through whom you obtain citizenship. (d) What “United States” means. United States [47 FR 3106, Jan. 22, 1982, as amended at 62 FR 59813, Nov. 5, 1997] § 416.1615 How to prove you are lawfully admitted for permanent residence in the United States. (a) What you should give us. (1) An Alien Registration Receipt Card issued by the Immigration and Naturalization Service (INS) in accordance with that Agency's current regulations; (2) A reentry permit; (3) An alien identification card issued by the government of the Northern Mariana Islands showing that you are admitted to the Northern Mariana Islands for permanent residence; or (4) INS Form I-688 which shows that you have been granted lawful temporary resident status under section 210 or section 210A of the Immigration and Nationality Act. (b) What to do if you cannot give us the information listed in paragraph (a). (1) Explain why you cannot give us any of the documents; and (2) Give us any information you have which shows or results in proof that you are lawfully admitted for permanent residence in the United States. (c) What “United States” means. United States (Approved by the Office of Management and Budget under control number 0960-0451) [47 FR 3106, Jan. 22, 1982, as amended at 52 FR 21943, June 10, 1987; 56 FR 55075, Oct. 24, 1991; 61 FR 56134, Oct. 31, 1996] § 416.1618 When you are considered permanently residing in the United States under color of law. (a) General. (b) Categories of aliens who are permanently residing in the United States under color of law. (1) Aliens admitted to the United States pursuant to 8 U.S.C. 1153(a)(7), (section 203(a)(7) of the Immigration and Nationality Act). We ask for INS Form I-94 endorsed “Refugee-Conditional Entry”; (2) Aliens paroled into the United States pursuant to 8 U.S.C. 1182(d)(5) (section 212(d)(5) of the Immigration and Nationality Act) including Cuban/Haitian Entrants. We ask for INS Form I-94 with the notation that the alien was paroled pursuant to section 212(d)(5) of the Immigration and Nationality Act. For Cuban/Haitian Entrants, we ask for INS Form I-94 stamped “Cuban/Haitian Entrant (Status Pending) reviewable January 15, 1981. Employment authorized until January 15, 1981.” (Although the forms bear this notation, Cuban/Haitian Entrants are admitted under section 212(d)(5) of the Immigration and Nationality Act.); (3) Aliens residing in the United States pursuant to an indefinite stay of deportation. We ask for an Immigration and Naturalization Service letter with this information or INS Form I-94 with such a notation; (4) Aliens residing in the United States pursuant to an indefinite voluntary departure. We ask for an Immigration and Naturalization Service letter or INS Form I-94 showing that a voluntary departure has been granted for an indefinite time period; (5) Aliens on whose behalf an immediate relative petition has been approved and their families covered by the petition, who are entitled to voluntary departure (under 8 CFR 242.5(a)(2)(vi)) and whose departure the Immigration and Naturalization Service does not contemplate enforcing. We ask for a copy of INS Form I-94 or I-210 letter showing that status; (6) Aliens who have filed applications for adjustment of status pursuant to section 245 of the Immigration and Nationality Act (8 U.S.C. 1255) that the Immigration and Naturalization Service has accepted as “properly filed” (within the meaning of 8 CFR 245.2(a) (1) or (2)) and whose departure the Immigration and Naturalization Service does not contemplate enforcing. We ask for INS Form I-181 or a passport properly endorsed; (7) Aliens granted stays of deportation by court order, statute or regulation, or by individual determination of the Immigration and Naturalization Service pursuant to section 106 of the Immigration and Nationality Act (8 U.S.C. 1105a) or relevant Immigration and Naturalization Service instructions, whose departure that agency does not contemplate enforcing. We ask for INS Form I-94 or a letter from the Immigration and Naturalization Service, or copy of a court order establishing the alien's status; (8) Aliens granted asylum pursuant to section 208 of the Immigration and Nationality Act (8 U.S.C. 1158). We ask for INS Form I-94 and a letter establishing this status; (9) Aliens admitted as refugees pursuant to section 207 of the Immigration and Nationality Act (8 U.S.C. 1157) or section 203(a)(7) of the Immigration and Nationality Act (8 U.S.C. 1153(a)(7)). We ask for INS Form I-94 properly endorsed; (10) Aliens granted voluntary departure pursuant to section 242(b) of the Immigration and Nationality Act (8 U.S.C. 1252(b)) or 8 CFR 242.5 whose departure the Immigration and Naturalization Service does not contemplate enforcing. We ask for INS Form I-94 or I-210 bearing a departure date; (11) Aliens granted deferred action status pursuant to Immigration and Naturalization Service Operations Instruction 103.1(a)(ii) prior to June 15, 1984 or 242.1(a)(22) issued June 15, 1984 and later. We ask for INS Form I-210 or a letter showing that departure has been deferred; (12) Aliens residing in the United States under orders of supervision pursuant to section 242 of the Immigration and Nationality Act (8 U.S.C. 1252(d)). We ask for INS Form I-220B; (13) Aliens who have entered and continuously resided in the United States since before January 1, 1972 (or any date established by section 249 of the Immigration and Nationality Act, 8 U.S.C. 1259). We ask for any proof establishing this entry and continuous residence; (14) Aliens granted suspension of deportation pursuant to section 244 of the Immigration and Nationality Act (8 U.S.C. 1254) and whose departure the Immigration and Naturalization Service does not contemplate enforcing. We ask for an order from the immigration judge; (15) Aliens whose deportation has been withheld pursuant to section 243(h) of the Immigration and Nationality Act (8 U.S.C. 1253(h)). We ask for an order from an immigration judge showing that deportation has been withheld; (16) Aliens granted lawful temporary resident status pursuant to section 245A of the Immigration and Nationality Act (8 U.S.C. 1255a). We ask for INS form I-688 showing that status; or (17) Any other aliens living in the United States with the knowledge and permission of the Immigration and Naturalization Service and whose departure that agency does not contemplate enforcing. (c) How to prove you are in a category listed in paragraph (b) of this section. (1) Any of the documents listed in paragraph (b) of this section; or (2) Other information which shows that you are in one of the categories listed in paragraph (b) of this section. (d) We must contact the Immigration and Naturalization Service. (2) If you give us any of the documents listed in paragraphs (b) (1), (2), (3), (4), (8), (9), (11), (12), (13), (15), or (16) of this section, we will pay you benefits if you meet all other eligibility requirements. We will contact the Immigration and Naturalization Service to verify that the document you give us is currently valid. (3) If you give us any of the documents listed in paragraphs (b) (5), (6), (7), (10), or (14) of this section, or documents that indicate that you meet paragraph (b)(17) of this section, or any other information to prove you are permanently residing in the United States under color of law, we will contact the Immigration and Naturalization Service to verify that the document or other information is currently valid. We must also get information from the Immigration and Naturalization Service as to whether that agency contemplates enforcing your departure. We will apply the following rules: (i) If you have a document that shows that you have an Immigration and Naturalization Service status that is valid for an indefinite period we will assume that the Immigration and Naturalization Service does not contemplate enforcing your departure. Therefore, we will pay you benefits if you meet all other eligibility requirements. If, based on the information we get from the Immigration and Naturalization Service, we find that your document is currently valid, we will consider this sufficient proof that the Immigration and Naturalization Service does not contemplate enforcing your departure. We will continue your benefits. However, if we find that your document is not currently valid, we will suspend your benefits under § 416.1320. (ii) If you have a document that appears currently valid and shows you have an Immigration and Naturalization Service status for at least 1 year, or that shows the Immigration and Naturalization Service is allowing you to remain in the United States for a specified period due to conditions in your home country, we will assume that the Immigration and Naturalization Service does not contemplate enforcing your departure. Therefore, we will pay you benefits if you meet all other eligibility requirements. If, based on the information we get from the Immigration and Naturalization Service, we learn that your document is currently valid and that agency does not contemplate enforcing your departure, we will continue your benefits. However, if we learn that your document is not currently valid or that the Immigration and Naturalization Service does contemplate enforcing your departure, we will suspend your benefits under § 416.1320. (iii) If you have a document that shows you have an Immigration and Naturalization Service status valid for less than 1 year, or if your document has no expiration date, or if you have no document, we will not pay you benefits until the Immigration and Naturalization Service confirms that your document is currently valid and we get information from that agency that indicates whether it contemplates enforcing your departure. If that agency does not contemplate enforcing your departure, we will pay you benefits if you meet all other eligibility requirements. (iv) If at any time after you begin receiving benefits we receive information from the Immigration and Naturalization Service which indicates that the Immigration and Naturalization Service contemplates enforcing your departure, we will suspend your benefits under § 416.1320 and any benefits you have received after the date that the Immigration and Naturalization Service began contemplating enforcing departure will be overpayments under subpart E of this part. (e) What “United States” means. United States (Approved by the Office of Management and Budget under control number 0960-0451) [52 FR 21943, June 10, 1987, as amended at 56 FR 55075, Oct. 24, 1991; 56 FR 61287, Dec. 2, 1991] § 416.1619 When you cannot be considered permanently residing in the United States under color of law. We will not consider you to be permanently residing in the United States under color of law and you are not eligible for SSI benefits during a period in which you have been granted temporary protected status by the Immigration and Naturalization Service under section 244A of the Immigration and Nationality Act. [58 FR 41182, Aug. 3, 1993] Subpart Q—Referral of Persons Eligible for Supplemental Security Income to Other Agencies Authority: Secs. 702(a)(5), 1611(e)(3), 1615, and 1631 of the Social Security Act (42 U.S.C. 902(a)(5), 1382(e)(3), 1382d, and 1383). Source: 45 FR 70859, Oct. 27, 1980, unless otherwise noted. General § 416.1701 Scope of subpart. This subpart describes whom we refer to agencies for vocational rehabilitation services. The purpose of these services is to restore your ability to work. [91 FR 16831, Apr. 3, 2026] § 416.1705 Definitions. As used in this subpart— Vocational rehabilitation services We us You your Referral for Vocational Rehabilitation Services § 416.1710 Whom we refer and when. (a) Whom we refer. (b) When we refer. [45 FR 70859, Oct. 27, 1980, as amended at 48 FR 6297, Feb. 23, 1983] §§ 416.1720-416.1725 [Reserved] Subpart R—Relationship Authority: Secs. 702(a)(5), 1612(b), 1614(b), (c), and (d), and 1631(d)(1) and (e) of the Social Security Act (42 U.S.C. 902(a)(5), 1382a(b), 1382c(b), (c), and (d) and 1383(d)(1) and (e)). Source: 45 FR 71795, Oct. 30, 1980, unless otherwise noted. Redesignated at 46 FR 29211, May 29, 1981; 46 FR 42063, Aug. 19, 1981. § 416.1801 Introduction. (a) What is in this subpart. (b) Related subparts. (c) Definitions. Eligible spouse (1) Who is eligible for SSI, (2) Whom we consider the spouse of another person who is eligible for SSI, and (3) Who was living in the same household with that person on— (i) The first day of the month following the date the application is filed (for the initial month of eligibility for payment based on that application); (ii) The date a request for reinstatement of eligibility is filed (for the month of such request); or (iii) The first day of the month, for all other months. An individual is considered to be living with an eligible spouse during temporary absences as defined in § 416.1149 and while receiving continued benefits under section 1611(e)(1) (E) or (G) of the Act. Spouse We us You [45 FR 71795, Oct. 30, 1980. Redesignated at 46 FR 29211, May 29, 1981; 46 FR 42063, Aug. 19, 1981, as amended at 60 FR 16376, Mar. 30, 1995; 64 FR 31975, June 15, 1999; 65 FR 16815, Mar. 30, 2000] Who Is Considered Your Spouse § 416.1802 Effects of marriage on eligibility and amount of benefits. (a) If you have an ineligible spouse Counting income. (2) Counting resources. (b) If you have an eligible spouse Counting income. (2) Counting resources. (c) If you are married, we do not consider you a child. (d)(1) General rule: (2) Exception: If you both meet eligibility requirements after your date of marriage or after your marriage ends. [45 FR 71795, Oct. 30, 1980. Redesignated at 46 FR 29211, May 29, 1981; 46 FR 42063, Aug. 19, 1981, and amended at 51 FR 13495, Apr. 21, 1986; 60 FR 16376, Mar. 30, 1995] § 416.1806 Whether you are married and who is your spouse. (a) We will consider someone to be your spouse (and therefore consider you to be married) for SSI purposes if— (1) You are legally married under the laws of the State where your and his or her permanent home is (or was when you lived together); (2) We have decided that either of you is entitled to husband's or wife's Social Security insurance benefits as the spouse of the other (this decision will not affect your SSI benefits for any month before it is made); or (3) You and an unrelated person of the opposite sex are living together in the same household at or after the time you apply for SSI benefits, and you both lead people to believe that you are husband and wife. (b) if more than one person would qualify as your husband or wife under paragraph (a) of this section, we will consider the person you are presently living with to be your spouse for SSI purposes. [60 FR 16376, Mar. 30, 1995] § 416.1816 Information we need concerning marriage when you apply for SSI. When you apply for SSI benefits, we will ask whether you are married. If you are married, we will ask whether you are living with your spouse. If you are unmarried or you are married but not living with your spouse, we will ask whether you are living in the same household with anyone of the opposite sex who is not related to you. If you are, we will ask whether you and that person lead other people to believe that you are husband and wife. § 416.1821 Showing that you are married when you apply for SSI. (a) General rule: Proof is unnecessary. (b) Exception: If you are a child to whom parental deeming rules apply. (c) Evidence of marriage. [45 FR 71795, Oct. 30, 1980. Redesignated at 46 FR 29211, May 29, 1981; 46 FR 42063, Aug. 19, 1981, and amended at 52 FR 8889, Mar. 20, 1987] § 416.1826 Showing that you are not married when you apply for SSI. (a) General rule: Proof is unnecessary. (b) Exception: If you are under age 22 and have been married. (c) Exception: If you are living with an unrelated person of the opposite sex. (i) What names are the two of you known by? (ii) Do you introduce yourselves as husband and wife? If not, how are you introduced? (iii) What names are used on mail for each of you? (iv) Who owns or rents the place where you live? (v) Do any deeds, leases, time payment papers, tax papers, or any other papers show you as husband and wife? (2) We will consider you married to the person you live with unless the information we have, including the answers to the questions in paragraph (c)(1) of this section, all considered together, show that the two of you do not lead people to believe that you are each other's husband and wife. § 416.1830 When we stop considering you and your spouse an eligible couple. We will stop considering you and your spouse an eligible couple, even if you both remain eligible, at the beginning of whichever of these months comes first— (a) The calendar month after the month you stopped living with your eligible spouse, or (b) The calendar month after the month in which your marriage ends. [45 FR 71795, Oct. 30, 1980. Redesignated at 46 FR 29211, May 29, 1981; 46 FR 42063, Aug. 19, 1981, as amended at 60 FR 16376, Mar. 30, 1995] § 416.1832 When we consider your marriage ended. We consider your marriage ended when— (a) Your spouse dies; (b) Your divorce or annulment becomes final; (c) We decide that either of you is not a spouse of the other for purposes of husband's or wife's social security insurance benefits, if we considered you married only because of § 416.1806(a)(2); or (d) You and your spouse stop living together, if we considered you married only because of § 416.1806(a)(3). [45 FR 71795, Oct. 30, 1980. Redesignated at 46 FR 29211, May 29, 1981; 46 FR 42063, Aug. 19, 1981, as amended at 60 FR 16376, Mar. 30, 1995] § 416.1835 Information we need about separation or end of marriage after you become eligible for SSI. (a) If you and your spouse stop living together. (1) When did you stop living together? (2) Do you expect to live together again? (3) If so, when? (4) Where is your husband or wife living? (5) Is either of you living with someone else as husband and wife? (b) Evidence of end of marriage Death. (2) Divorce or annulment. (3) Other reason. Who Is Considered a Child § 416.1851 Effects of being considered a child. If we consider you to be a child for SSI purposes, the rules in this section apply when we determine your eligibility for SSI and the amount of your SSI benefits. (a) If we consider you to be a student, we will not count all of your earned income when we determine your SSI eligibility and benefit amount. Section 416.1110 tells what we mean by earned income. Section 416.1112(c)(2) tells how much of your earned income we will not count. (b) If you have a parent who does not live with you but who pays money to help support you, we will not count one-third of that money when we count your income. Section 416.1124(c)(9) discusses this rule. (c) If you are under age 18 and live with your parent(s) who is not eligible for SSI benefits, we consider (deem) part of his or her income and resources to be your own. If you are under age 18 and live with both your parent and your parent's spouse (stepparent) and neither is eligible for SSI benefits, we consider (deem) part of their income and resources to be your own. Sections 416.1165 and 416.1166 explain the rules and the exception to the rules on deeming your parent's income to be yours, and § 416.1202 explains the rules and the exception to the rules on deeming your parent's resources to be yours. [45 FR 71795, Oct. 30, 1980. Redesignated at 46 FR 29211, May 29, 1981; 46 FR 42063, Aug. 19, 1981, and amended at 52 FR 8889, Mar. 20, 1987; 73 FR 28036, May 15, 2008] § 416.1856 Who is considered a child. We consider you to be a child if— (a)(1) You are under 18 years old; or (2) You are under 22 years old and you are a student regularly attending school or college or training that is designed to prepare you for a paying job; (b) You are not married; and (c) You are not the head of a household. § 416.1861 Deciding whether you are a child: Are you a student? (a) Are you a student? (1) In a college or university for at least 8 hours a week under a semester or quarter system; (2) In grades 7-12 for at least 12 hours a week; (3) In a course of training to prepare you for a paying job, and you are attending that training for at least 15 hours a week if the training involves shop practice or 12 hours a week if it does not involve shop practice (this kind of training includes anti-poverty programs, such as the Job Corps, and government-supported courses in self-improvement); or (4) Less than the amount of time given in paragraph (a) (1), (2), or (3) of this section for reasons you cannot control, such as illness, if the circumstances justify your reduced credit load or attendance. (b) If you are instructed at home. (c) If you have to stay home. (1) You have to stay home because of your disability; (2) You are studying at home a course or courses given by a school (grades 7-12), college, university, or government agency; and (3) A home visitor or tutor directs your study or training. (d) When you are not in school When school is out. (i) Tell us that you intend to resume attending regularly when school opens again; or (ii) Actually do resume attending regularly when school opens again. (2) Other times. (i) A course designed to prepare disabled people for work; or (ii) A course to prepare you for a job that is specially set up for people who cannot work at ordinary jobs. (e) Last month of school. (f) When we need evidence that you are a student. (g) What evidence we need. (1) Show us any paper you have that shows you are a student in a school, college, or training program, such as a student identification card or tuition receipt; and (2) Tell us— (i) What courses you are taking; (ii) How many hours a week you spend in classes; (iii) The name and address of the school or college you attend or the agency training you; and (iv) The name and telephone number of someone at the school, college, or agency who can tell us more about your courses, in case we need information you cannot give us. [45 FR 71795, Oct. 30, 1980. Redesignated at 46 FR 29211, May 29, 1981; 46 FR 42063, Aug. 19, 1981, as amended at 71 FR 66867, Nov. 17, 2006] § 416.1866 Deciding whether you are a child: Are you the head of a household? (a) Meaning of head of household. (b) If you share decision-making equally. Who Is Considered a Student for Purposes of the Student Earned Income Exclusion § 416.1870 Effect of being considered a student. If we consider you to be a student, we will not count all of your earned income when we determine your SSI eligibility and benefit amount. If you are an ineligible spouse or ineligible parent for deeming purposes and we consider you to be a student, we will not count all of your income when we determine how much of your income to deem. Section 416.1110 explains what we mean by earned income. Section 416.1112(c)(3) explains how much of your earned income we will not count. Section 416.1161(a)(27) explains how the student earned income exclusion applies to deemors. [71 FR 66867, Nov. 17, 2006] § 416.1872 Who is considered a student. We consider you to be a student if you are under 22 years old and you regularly attend school or college or training that is designed to prepare you for a paying job as described in § 416.1861(a) through (e). [71 FR 66867, Nov. 17, 2006] § 416.1874 When we need evidence that you are a student. We need evidence that you are a student if you are under age 22 and you expect to earn over $65 in any month. Section 416.1861(g) explains what evidence we need. [71 FR 66867, Nov. 17, 2006] Who Is Considered Your Parent § 416.1876 Effects a parent (or parents) can have on the child's benefits. Section 416.1851 (b) and (c) tells what effects a parent's income and resources can have on his or her child's benefits. § 416.1881 Deciding whether someone is your parent or stepparent. (a) We consider your parent to be— (1) Your natural mother or father; or (2) A person who legally adopted you. (b) We consider your stepparent to be the present husband or wife of your natural or adoptive parent. A person is not your stepparent if your natural or adoptive parent, to whom your stepparent was married, has died, or if your parent and stepparent have been divorced or their marriage has been annulled. (c) Necessary evidence. Subpart S—Interim Assistance Provisions Authority: Secs. 702(a)(5) and 1631 of the Social Security Act (42 U.S.C. 902(a)(5) and 1383). Source: 46 FR 47449, Sept. 27, 1981, unless otherwise noted. Introduction § 416.1901 Scope of subpart S. (a) General. (b) Organization of this subpart. (1) Definitions. (2) Authorizations. (3) Interim assistance agreements. (4) Appeals. [46 FR 47449, Sept. 27, 1981, as amended at 56 FR 19262, Apr. 26, 1991] § 416.1902 Definitions. For purposes of this subpart— Authorization Interim assistance SSI benefit payment State State We, Us, Our You Your [46 FR 47449, Sept. 28, 1981; 46 FR 50947, Oct. 16, 1981, as amended at 56 FR 19262, Apr. 26, 1991; 56 FR 25446, June 4, 1991; 62 FR 38455, July 18, 1997; 64 FR 31975, June 15, 1999] Authorizations § 416.1904 Authorization to withhold SSI benefits. We may withhold your SSI benefit payment and send it to the State to repay the State for the interim assistance it gave to you, if— (a) We have an interim assistance agreement with the State at the time your authorization goes into effect; and (b) Your authorization is in effect at the time we make the SSI benefit payment. § 416.1906 When your authorization is in effect. Your authorization for us to withhold your SSI benefit payment, to repay the State for interim assistance the State gives you, is effective when we receive it, or (if our agreement with the State allows) when we receive notice from the State that it has received your authorization. It remains in effect until— (a) We make the first SSI benefit payment on your initial application for benefits or, in the case of an authorization effective for a period of suspense or termination, until the initial payment following the termination or suspension of your benefits. (b) We make a final determination on your claim (if your SSI claim is denied, the denial is the final determination, unless you file a timely appeal as described in subpart N of this part); (c) You and the State agree to terminate your authorization; or (d) If earlier than the event in paragraph (a), (b), or (c) of this section, the date (if any) specified in your authorization. [46 FR 47449, Sept. 27, 1981, as amended at 56 FR 19262, Apr. 26, 1991] § 416.1908 When we need another authorization. Once an event described in § 416.1906 occurs, your authorization is no longer effective. If you reapply for SSI benefits, or the authorization has expired, the State must obtain a new authorization from you in order for us to repay the State for interim assistance it gives you. Interim Assistance Agreements § 416.1910 Requirements for interim assistance agreement. An interim assistance agreement must be in effect between us and the State if we are to repay the State for interim assistance. The following requirements must be part of the agreement: (a) SSA to repay the State. (b) State to pay any excess repayment to you. (1) Pay the excess amount to you no later than 10 working days from the date the State receives repayment from us; or (2) Refund the excess amount to us for disposition under the rules in subpart E of the this part on payment of benefits if the State cannot pay it to you (for example, you die or you move and the State cannot locate you). (c) State to notify you. (1) How much we have repaid the State for interim assistance it gave you; (2) The excess amount, if any, due you; and (3) That it will give you an opportunity for a hearing if you disagree with State's actions regarding repayment of interim assistance. (d) Duration of the agreement. (e) State to comply with other regulations. Appeals § 416.1920 Your appeal rights in the State. Under its interim assistance agreement with us, the State must agree to give you an opportunity for a hearing if you disagree with the State's actions regarding repayment of interim assistance. For example, you are entitled to a hearing by the State if you disagree with the State regarding the amount of the repayment the State keeps or the amount of any excess the State pays to you. You are not entitled to a Federal hearing on the State's actions regarding repayment of interim assistance. § 416.1922 Your appeal rights in SSA. If you disagree with the total amount of money we have withheld and sent to the State for the interim assistance it gave to you, you have a right to appeal to us, as described in subpart N of this part. Subpart T—State Supplementation Provisions; Agreement; Payments Authority: Secs. 702(a)(5), 1616, 1618, and 1631 of the Social Security Act (42 U.S.C. 902(a)(5), 1382e, 1382g, and 1383); sec. 212, Pub. L. 93-66, 87 Stat. 155 (42 U.S.C. 1382 note); sec. 8(a), (b)(1)-(b)(3), Pub. L. 93-233, 87 Stat. 956 (7 U.S.C. 612c note, 1431 note and 42 U.S.C. 1382e note); secs. 1(a)-(c) and 2(a), 2(b)(1), 2(b)(2), Pub. L. 93-335, 88 Stat. 291 (42 U.S.C. 1382 note, 1382e note). Source: 40 FR 7640, Feb. 21, 1975, unless otherwise noted. § 416.2001 State supplementary payments; general. (a) State supplementary payments; defined. (1) In supplementation of the Federal supplemental security income benefits; i.e. (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; and (4) In an amount based on the need or income of an individual or couple. (b) State; defined. State (c) Mandatory minimum supplementary payments. (d) Supplementary payments for recipients of special SSI cash benefits. [40 FR 7640, Feb. 21, 1975, as amended at 43 FR 48995, Oct. 20, 1978; 45 FR 54748, July 18, 1980; 47 FR 15326, Apr. 9, 1982; 62 FR 38455, July 18, 1997] § 416.2005 Administration agreements with SSA. (a) Agreement-mandatory only. (b) Agreement—mandatory and optional payments. (c) Administration—combination. (d) Conditions of administration agreement. [40 FR 7640, Feb. 21, 1975, as amended at 62 FR 312, Jan. 3, 1997] § 416.2010 Essentials of the administration agreements. (a) Payments. (1) Receiving (or at the option of the State would, but for the amount of their income, be eligible to receive) supplemental security income benefits under title XVI of the Social Security Act, and (2) Within the variations and categories (as defined in § 416.2030) for which the State (or political subdivision) wishes to provide a supplementary payment, and (3) Residing, subject to the provisions of § 416.2035(a), in such State (or political subdivision thereof). (b) Administrative costs. (i) For fiscal year 1994, $1.67; (ii) For fiscal year 1995, $3.33; (iii) For fiscal year 1996, $5.00; (iv) For fiscal year 1997, $5.00; (v) For fiscal year 1998, $6.20; (vi) For fiscal year 1999, $7.60; (vii) For fiscal year 2000, $7.80; (viii) For fiscal year 2001, $8.10; (ix) For fiscal year 2002, $8.50; and (x) 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) Such different rate as the Commissioner determines is appropriate for the State taking into account the complexity of administering the State's supplementary payment program. (2) SSA shall charge a State an additional services fee if, at the request of the State, SSA agrees to provide the State with additional services beyond the level customarily provided in the administration of State supplementary payments. The additional services fee shall be in an amount that SSA determines is necessary to cover all costs, including indirect costs, incurred by the Federal Government in furnishing the additional services. SSA is not required to perform any additional services requested by a State and may, at its sole discretion, refuse to perform those additional services. An additional services fee charged a State may be a one-time charge or, if the furnished services result in ongoing costs to the Federal Government, a monthly or less frequent charge to the State for providing such services. (c) Agreement period. (d) Modification or termination. (e) Mandatory minimum State supplementation. (1) Certify income and payment amount. (2) Additional data. [40 FR 7640, Feb. 21, 1975, as amended at 62 FR 313, Jan. 3, 1997; 63 FR 33849, June 22, 1998] § 416.2015 Establishing eligibility. (a) Applications. (b) Evidentiary requirements. (c) Determination. (d) Categories; aged, blind, disabled. (e) Concurrent categories. (2) If the administration agreement pursuant to § 416.2005(b) provides for higher supplementary payments to the blind or disabled than to the aged category, then, at the option of the State, the agreement may provide that individuals who are age 65 or over at time of application and who are blind or disabled may elect to receive such higher supplementary payments. § 416.2020 Federally administered supplementary payments. (a) Payment procedures. (b) Maximum amount. (c) Minimum amount. (d) Optional supplementation: nine categories possible. i.e. (1) Since a State with a title XVI program had just the one title in effect, it can supplement only to two categories, the individual (aged, blind, or disabled), the couple (both of whom are aged, blind, or disabled). (2) Other States could supplement up to nine categories, depending on the plans they had in effect. Six of these categories would be for: (i) Aged Individual, (ii) Aged Couple, (iii) Blind Individual, (iv) Blind Couple, (v) Disabled Individual, (vi) Disabled Couple. (3) In addition to those enumerated in paragraph (d)(2) of this section, there are three additional couple categories for which a State may elect to provide a federally administered supplement. These categories are created when one individual in the couple is: (i) Aged and the other blind, or (ii) Aged and the other disabled, or (iii) Blind and the other disabled. [40 FR 7640, Feb. 21, 1975, as amended at 50 FR 48579, Nov. 26, 1985] § 416.2025 Optional supplementation: Countable income. (a) Earned and unearned income. (b) Effect of countable income on payment amounts. Countable income (1) As provided in § 416.420, countable income will first be deducted from the Federal benefit rate applicable to an eligible individual or eligible couple. In the case of an eligible individual living with an ineligible spouse with income (the deeming provisions of § 416.1163 apply), the Federal benefit rate from which countable income will be deducted is the Federal benefit rate applicable to an eligible couple, except that an eligible individual's payment amount may not exceed the amount he or she would have received if he or she were not subject to the deeming provisions (§ 416.1163(e)(2)). (2) If countable income is equal to or less than the amount of the Federal benefit rate, the full amount of the State supplementary payment as specified in the Federal agreement will be made. (3) If countable income exceeds the amount of the Federal benefit rate, the State supplementary benefit will be reduced by the amount of such excess. In the case of an eligible individual living with an ineligible spouse with income (the deeming methodology of § 416.1163 applies), the State supplementary payment rate from which the excess income will be deducted is the higher of the State supplementary rates for an eligible couple or an eligible individual, except that an eligible individual's payment amount may not exceed the amount he or she would have received if he or she were not subject to the deeming provisions (see § 416.1163(e)(2)). For purposes of determining the State supplementary couple rate, the ineligible spouse is considered to be in the same category as the eligible individual. (4) No State supplementary payment will be made where countable income is equal to or exceeds the sum of the Federal benefit rate and the State supplementary payment rate. (c) Effect of additional income exclusions on payment amounts. (1) Countable income (as determined under the Federal eligibility rules) will first be deducted from the Federal benefit rate applicable to an eligible individual or eligible couple. (2) Such countable income is then reduced by the amount of the additional income exclusion specified by the State. (3) If the remaining countable income is equal to or less than the amount of the Federal benefit rate, the full amount of the State supplementary payment will be made. (4) If the remaining countable income exceeds the amount of the Federal benefit rate, the State supplementary payment will be reduced by the amount of such excess. (Secs. 1102, 1614(f), 1616(a), 1631, Social Security Act, as amended, 49 Stat. 647, as amended, 86 Stat. 1473, 1474(a), and 1475 (42 U.S.C. 1302, 1382c(f), 1382e(a), 1383)) [40 FR 7640, Feb. 21, 1975, as amended at 43 FR 39570, Sept. 6, 1978; 53 FR 25151, July 5, 1988] § 416.2030 Optional supplementation: Variations in payments. (a) Payment level. (1) Geographical variations. (2) Living arrangements. (i) Living alone; (ii) Living with an ineligible spouse; (iii) Personal care facility; or, (iv) Domiciliary or congregate care facility. (b) Relationship to actual cost differences. (c) Effective month of State supplementary payment category. [40 FR 7640, Feb. 21, 1975, as amended at 50 FR 48579, Nov. 26, 1985; 56 FR 41455, Aug. 21, 1991; 62 FR 38455, July 18, 1997] § 416.2035 Optional supplementation: Additional State options. (a) Residency requirement. (b) Lien and relative responsibility. (1) The Commissioner has determined that the specific State laws and their enforcement are consistent with the supplemental security income program purpose of providing unencumbered cash payments to recipients; and (2) The Federal Government is not involved in the administration of such laws and will not vary the State supplementary payment amount it makes to comply with such laws; and (3) Neither the basic Federal benefit nor any part of the State supplementary payment financed by Federal funds will be subject to the liens or encumbrances of such laws. [40 FR 7640, Feb. 21, 1975, as amended at 62 FR 38455, July 18, 1997] § 416.2040 Limitations on eligibility. Notwithstanding any other provision of this subpart, the eligibility of an individual (or couple) for optional State supplementary payments administered by the Federal Government in accordance with this subpart shall be limited as follows: (a) Inmate of public institution. (b) Ineligible persons. (c) Recipient eligible for benefits under § 416.212. [40 FR 7640, Feb. 21, 1975, as amended at 56 FR 41455, Aug. 21, 1991; 61 FR 10280, Mar. 13, 1996; 68 FR 40124, July 7, 2003; 91 FR 16831, Apr. 3, 2026] § 416.2045 Overpayments and underpayments; federally administered supplementation. (a) Overpayments. (b) Underpayments. [40 FR 7640, Feb. 21, 1975, as amended at 65 FR 16815, Mar. 30, 2000] § 416.2047 Waiver of State supplementary payments. (a) Waiver request in writing. (b) Revocation of waiver. § 416.2050 Mandatory minimum State supplementation. (a) Determining the amount. (1) The amount by which such individual or couple's December 1973 income (as defined in paragraph (b) of this section) exceeds the amount of such individual or couple's title XVI benefit plus other income which would have been used by such State in computing the assistance payable under the State's approved plan for such month; or (2) Such greater amount as the State may specify. (b) December 1973 income. (1) Money payments. (2) Income. (c) Special needs or circumstances. (d) Optional supplement payable. [40 FR 7640, Feb. 21, 1975, as amended at 51 FR 10616, Mar. 14, 1986; 62 FR 313, Jan. 3, 1997] § 416.2055 Mandatory minimum supplementation reduced. If for any month after December 1973 there is a change with respect to any special need or special circumstance which, if such change had existed in December 1973, would have caused a reduction in the amount of such individual's aid or assistance payment, then, for such month and for each month thereafter, the amount of the mandatory minimum supplement payable to such individual may, at the option of the State, be reduced in accordance with the terms and conditions of the State's plan approved under title I, X, XIV, or XVI of the Act in effect for the month of June 1973. § 416.2060 Mandatory minimum supplementary payments not applicable. An individual eligible for mandatory minimum supplementary payments from a State beginning in January 1974 shall not be eligible for such payments: (a) Month after the month of death. (b) Not aged, blind, or disabled. (c) Not entitled to a Federal payment. (d) Month of change in residence. § 416.2065 Mandatory minimum State supplementation: Agreement deemed. A State shall be deemed to have entered into an agreement with the Commissioner under which such State shall provide mandatory minimum supplementary payments if such State has entered into an agreement with the Commissioner under section 1616 of the Act under which: (a) Other eligible individuals. (b) Minimum requirements. [40 FR 7640, Feb. 21, 1975, as amended at 62 FR 38455, July 18, 1997] § 416.2070 Mandatory supplementation: State compliance not applicable. The requirement that a State must have in effect an agreement with the Commissioner whereby such State shall provide individual aged, blind, and disabled recipients residing in the State mandatory minimum supplementary payments beginning in January 1974 shall not be applicable in the case of any State where: (a) State constitution. (b) Attorney General decision. [40 FR 7640, Feb. 21, 1975, as amended at 62 FR 38455, July 18, 1997] § 416.2075 Monitoring of mandatory minimum supplementary payments. (a) Access to records. (b) Additional data. [40 FR 7640, Feb. 21, 1975, as amended at 62 FR 38455, July 18, 1997] § 416.2090 State funds transferred for supplementary payments. (a) Payment transfer and adjustment. (i) An amount of funds equal to SSA's estimate of State supplementary payments for any month which shall 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 § 416.2010(b)(1); and (iii) If applicable, an amount of funds equal to SSA's determination of the costs incurred by the Federal government in furnishing additional services for the State as described in § 416.2010(b)(2). (2) In order for SSA to make State supplementary 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, necessary to make those payments for the month, 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 supplementary payment transfer date, which is the fifth Federal business day following the day in the month that the regularly recurring monthly supplemental security income payments are issued. The additional services fee referred to in paragraph (a)(1)(iii) of this section shall be on deposit with SSA on the date specified by SSA. The amount of State funds paid to SSA for State supplementary payments and the amount paid for administration fees will be adjusted as necessary to maintain the balance with State supplementary payments paid out by SSA on behalf of the State, and administration fees owed to SSA, respectively. (b) Accounting of State funds. (2) SSA shall provide an accounting of State funds received as State supplementary payments, administration fees, and additional services fees, within three calendar months following the termination of an agreement under § 416.2005. (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 supplementary payments funds in accordance with applicable laws and regulations of the United States Department of the Treasury. (c) State audit. (d) Advance payment and adjustment not applicable. [40 FR 7640, Feb. 21, 1975, as amended at 41 FR 36018, Aug. 26, 1976; 62 FR 313, Jan. 3, 1997] § 416.2095 Pass-along of Federal benefit increases. (a) General. (1) Section 416.2095(b) indicates when the pass-along rules apply to State supplementary payments. (2) Section 416.2096 describes the basic pass-along rules. The States must have an agreement to “pass-along” increases in Federal SSI benefits. A State passes along an increase when it maintains (rather than decreases) the levels of all its supplementary payments after a Federal benefit increase has occurred. Generally, a pass-along of the increase permits recipients to receive an additional amount in combined benefits equal to the Federal benefit increase. Except for the supplementary payment level made to residents of Medicaid facilities (see § 416.2096(d)), a State can decrease one or more of its payment levels if it meets an annual total expenditures test. (3) Section 416.2097 explains the required combined supplementary/SSI payment level. (4) Section 416.2098 explains how to compute the March 1983, December 1981, and December 1976 supplementary payment levels. (5) Section 416.2099 discusses what information a State must provide to the Commissioner concerning its supplementation programs so that the Commissioner can determine whether the State is in compliance. That section also discusses the basis for findings of noncompliance and what will occur if a State is found out of compliance. (b) When the pass-along provisions apply. (2) The pass-along requirements apply to both optional State supplementary payments of the type described in § 416.2001(a) and mandatory minimum State supplementary payments as described in § 416.2001(c), whether or not these State supplementary payments are Federally administered. (3) The requirements apply to State supplementary payments both for recipients who receive Federal SSI benefits and those who, because of countable income, receive only a State supplementary payment. (4) The requirements apply to State supplementary payments for recipients eligible for a State supplementary payment on or after June 30, 1977. (5) Supplementary payments made by a State include payments made by a political subdivision (including Indian tribes) where— (i) The payment levels are set by the State; and (ii) The payments are funded in whole or in part by the State. [52 FR 36241, Sept. 28, 1987, as amended at 54 FR 19165, May 4, 1989; 62 FR 38455, July 18, 1997] § 416.2096 Basic pass-along rules. (a) State agreements to maintain supplementary payment levels. (i) The State must agree to continue to make the supplementary payments; (ii) For months from July 1977 through March 1983, the State must agree to maintain the supplementary payments at levels at least equal to the December 1976 levels (or, if a State first makes supplementary payments after December 1976, the levels for the first month the State makes supplementary payments). For months in the period July 1, 1982 through March 31, 1983, a State may elect to maintain the levels described in paragraph (b)(2) of this section; and (iii) For months after March 1983, the State must agree to maintain supplementary payments at least sufficient to maintain the combined supplementary/SSI payment levels in effect in March 1983, increased by any subsequent SSI benefit increases, except as provided in § 416.2097(b) and § 416.2097(c). (2) We will find that the State has met the requirements of paragraph (a)(1) of this section if the State has the appropriate agreement in effect and complies with the conditions in either paragraph (b) or (c) of this section. We will consider a State to have made supplementary payments on or after June 30, 1977, unless the State furnishes us satisfactory evidence to the contrary. (b) Meeting the pass-along requirements—supplementary payment levels. (1) We will consider a State to have met the requirements for maintaining its supplementary payment levels (described in § 416.2098) for a particular month or months after March 1983 if the combined supplementary/SSI payment levels have not been reduced below the levels in effect in March 1983 (or if a State first made supplementary payments after March 1983, the combined supplementary/SSI payment levels in effect the first month the State made supplementary payments), increased by any subsequent Federal SSI benefit increases, except as provided in § 416.2097(b) and § 416.2097(c). We will consider a State to have met the requirements for maintaining its supplementary payment levels for a particular month or months between June 1977 and April 1983 if the supplementary payment levels have not been reduced below the levels in effect in December 1976 (or if a State first made supplementary payments after December 1976, the levels in effect the first month the State made supplementary payments, or in certain cases described in paragraph (b)(2) of this section, the levels in effect in December 1981.) (2) We will also consider a State to have met the requirements for maintaining its supplementary payment levels for a particular month or months in the period July 1, 1982, through March 31, 1983, if the State had met the requirements of paragraph (c) of this section for a particular month or months in the 12-month period July 1, 1981 through June 30, 1982, and, with respect to any month in the period July 1, 1982 through March 31, 1983, the State maintained the payment levels in effect in December 1981. (3) If a State reduced any of its supplementary payment levels for a month or months within any 12-month period beginning with the effective date of a Federal benefit increase, we will consider the State to have met the requirement to maintain its supplementary payment levels if— (i) Within 12 months after the relevant 12-month period, the State restores the levels retroactively; and (ii) The State makes a single retroactive benefit payment to each of the beneficiaries eligible for the retroactive payment. (c) Meeting the passalong requirement—total expenditures. Exception— (1) If a State does not meet the conditions in paragraph (b) of this section, we will consider a State to have met the requirement for maintaining supplementary payment levels for a particular month or months if total State expenditures for supplementary payments in the 12-month period within which the month or months fall, beginning on the effective date of a Federal SSI benefit increase, are at least equal to the total State expenditures for supplementary payments in the 12-month period immediately before the Federal SSI benefit increase provided that the State was in compliance for such preceding 12-month period. The combined Federal/State payment level for those persons receiving a mandatory minimum State supplementary payment can be no lower than the recipient's total income for December 1973 as defined in section 212(a)(3)(B) of Pub. L. 93-66. (2) If total State expenditures in the relevant 12-month period are less than the total expenditures in the preceding 12-month period (a “shortfall”), we also will consider a State to have met the requirement for maintaining supplementary payment levels for the relevant 12-month period if in the following 12-month period the State increases the total expenditures required for that period by an amount at least equal to the amount of the shortfall in the relevant 12-month period. The increased amount up to the amount needed to correct the shortfall shall be deemed to be an expenditure in the relevant 12-month period, for pass-along purposes only. (See paragraph (c)(5) of this section.) (3)(i) Exception for the 6-month period from July 1, 1983 through December 31, 1983: We will consider the State to have met the total-expenditures requirement for the 6-month period July 1, 1983 through December 31, 1983, if— (A) Total expenditures for State supplementary payments for the period July 1, 1983 through December 31, 1983, equal or exceed the total of such expenditures for the period July l, 1982 through December 31, 1982; (B) Total expenditures for State supplementary payments for the period January 1, 1983 through December 31, 1983, equal or exceed the total of such expenditures for the period January 1, 1982 through December 31, 1982; or (C) Total expenditures for State supplementary payments for the period July 1, 1983 through December 31, 1983 equal or exceed one-half of the total of such expenditures for the period July 1, 1982 through June 30, 1983. The provisions of paragraphs (c)(4) and (c)(5) of this section and of § 416.2099 (b), (c), and (d) shall apply to this 6-month period in the same manner as they apply to the 12-month periods referred to therein. (ii) Exception for the 12-month period ending June 30, 1981: If a State did not meet the conditions in paragraph (b) of this section, we will consider a State to have met the maintenance-of-supplementary-payment-levels requirement for this 12-month period if the State's expenditures for supplementary payments in that period were at least equal to its expenditures for such payments for the 12-month period ending June 30, 1977 (or, if the State made no supplementary payments in that period, the expenditures for the first 12-month period ending June 30 in which the State made such payments); if a State made additional State supplementary payments during the period July 1, 1981 through June 30, 1982, in order to make up a shortfall in the 12-month period ending June 30, 1981 (determined by a comparison with the preceding 12-month period) which later resulted in an excess payment (determined by comparison with the 12-month period July 1, 1976 through June 30, 1977) we will credit the State with the amount of the excess payments if the State so requests. This credit will be applied to any shortfall(s) in total expenditures (should one exist) in any period(s) ending on or before December 31, 1986. (4) Total State expenditures for supplementary payments are the State's total payments for both mandatory minimum and optional State supplementary payments in the appropriate 12-month period less any amounts deemed to be expenditures for another 12-month period under paragraph (c)(2) of this section, less the amount of any payments recovered and other adjustments made in that period. Total State expenditures do not include State administrative expenses, interim assistance payments, vendor payments, or payments made under other Federal programs, such as titles IV, XIX, or XX of the Social Security Act. (5) Adjustments in total State supplementary payments made after the expiration of the relevant 12-month period for purposes of meeting total State expenditures under paragraph (c) of this section shall be considered a State expenditure in the relevant 12-month period only for purposes of the pass-along requirement. For purposes of § 416.2090 of this part, which discusses the rules for limitation on fiscal liability of States (hold harmless), these retroactive adjustments are State expenditures when made and shall be counted as a State expenditure in the fiscal year in which the adjustments are made. (6) To determine whether a State's expenditures for supplementary payments in the 12-month period beginning on the effective date of any increase in the level of SSI benefits are not less than the State's expenditures for the payments in the preceding 12-month period, in computing the State's expenditures, we disregard, pursuant to a one-time election of the State, all expenditures by the State for the retroactive supplementary payments that are required to be made under the Sullivan Zebley, (d) Payments to residents to Medicaid facilities. [52 FR 36241, Sept. 28, 1987, as amended at 54 FR 19165, May 4, 1989; 56 FR 55453, Oct. 28, 1991; 62 FR 30984, June 6, 1997; 62 FR 38455, July 18, 1997; 65 FR 16815, Mar. 30, 2000] § 416.2097 Combined supplementary/SSI payment levels. (a) Other than the level for residents of Medicaid facilities (see paragraph (d) of this section), the combined supplementary/SSI payment level for each payment category that must be provided in any month after March 1983 (or if a State first made supplementary payments after March 1983, the combined supplementary SSI payment levels in effect the first month the State made supplementary payments) in order for a State to meet the requirement of the first sentence of § 416.2096(b) is the sum of— (1) The SSI Federal benefit rate (FBR) for March 1983 for a recipient with no countable income; (2) That portion of the July 1983 benefit increase computed in accordance with paragraph (b) of this section; (3) The full amount of all SSI benefit increases after July 1983; and (4) The State supplementary payment level for March 1983 as determined under § 416.2098. (b) The monthly FBR's were increased in July 1983 by $20 for an eligible individual and $30 for an eligible couple, and the monthly increment for essential persons was increased by $10 in lieu of the expected cost-of-living adjustment which was delayed until January 1984. However, in computing the required combined supplementary/SSI payment levels for the purpose of determining pass-along compliance, we use only the amounts by which the FBR's and the essential person increment would have increased had there been a cost-of-living adjustment in July 1983 (a 3.5 percent increase would have occurred). These amounts are $9.70 for an eligible individual, $14.60 for an eligible couple and $4.50 for an essential person. (c) For the 24-month period January 1, 1984, through December 31, 1985, a State will not be found out of compliance with respect to its payment levels if in the period January 1, 1986, through December 31, 1986, its supplementary payment levels are not less than its supplementary payment levels in effect in December 1976 increased by the percentage by which the FBR has increased after December 1976 and before February 1986. The FBR for an individual in December 1976 was $167.80. The FBR for an individual in effect on January 31, 1986, was $336.00, an increase of 100.24 percent over the December 1976 FBR. In order for a State to take advantage of this provision for the 24-month period January 1, 1984, through December 31, 1985, the State supplementary payment levels in effect for calendar year 1986 must be at least 100.24 percent higher than the State supplementary payment levels in effect in December 1976. This provision does not apply to State supplementary payments to recipients in Federal living arrangement “D” (residents of a medical facility where title XIX pays more than 50 percent of the costs). (d) The combined supplementary/SSI payment level which must be maintained for residents of Medicaid facilities is the State supplement payable on October 1, 1987, or if no such payments were made on October 1, 1987, the supplementary payment amount made in the first month that a supplementary payment was made after October 1987 but before July 1, 1988, plus the Federal benefit rate in effect in October 1987 increased by $5 for an individual/$10 for a couple effective July 1, 1988. [52 FR 36242, Sept. 28, 1987, as amended at 54 FR 19165, May 4, 1989; 54 FR 23018, May 30, 1989] § 416.2098 Supplementary payment levels. (a) General. i.e. (b) Calculation of the required mandatory minimum State supplementary payment level. i.e. (2) Section 1618(c) of the Act permitted any State that had satisfied the requirements of section 1618 of the Act by the total-expenditures method for the 12-month period July 1, 1981, through June 30, 1982, and that elected to change and meet the section 1618 requirements by the maintenance-of-payment-levels method for the period July 1, 1982, through June 30, 1983, to do so by paying benefits at levels no lower than the levels of such payments in effect for December 1981. However, a recipient's December 1981 total income (December 1981 mandatory minimum State supplement plus the FBR) could not be less than the recipient's total income for December 1973 as defined in section 212(a)(3)(B) of Pub. L. 93-66. For a State that elected the option in the preceding two sentences, the mandatory minimum State supplementary payment level for March 1983 is a recipient's December 1981 total income (but not less than the total income for December 1973 as defined by section 212(a)(3)(B) of Pub. L. 93-66) plus any State increases after December 1981 and prior to April 1983, less any reductions made at any time after December 1981 due to changes in special needs or circumstances, less the March 1983 FBR. The amount determined under the previous sentence shall continue for April, May, and June 1983. For July 1983 and later, the amount calculated under the preceding sentence defining the required March 1983 mandatory minimum State supplementary payment level would continue except that it may be reduced by the amount of the July 1983 Federal increase that was not related to the cost of living ( i.e. (c) Calculation of the required optional State supplementary payment level for flat grant amounts. i.e. (d) Calculation of the required optional State supplementary payment level for individually budgeted grant amounts. i.e. (e) Optional State supplementary payment level for per diem based grant amounts. Example: March 1983: $15.40 Per diem rate. × 31 Days in month. 477.40 477.40 + 42.00 Personal needs allowance. 519.40 519.40 Combined State supplementary/SSI payment. −284.30 March 1983 FBR. 235.10 State supplementary payment level. (2) The optional State supplementary payment level for months subsequent to March 1983 for per diem grant amounts is the total dollar amount that the State paid to an individual (or couple) with no countable income at rates in effect in March 1983 (number of days in the calendar month multiplied by the March 1983 per diem rate plus any March 1983 personal needs allowance) in excess of the March 1983 FBR for an individual (or couple) with no countable income increased by all FBR increases subsequent to March 1983 with the exception of the July 1, 1983 increase. For the July 1, 1983 increase to the FBR, a State need pass-along only that portion of the increase which represented the increase in the cost of living adjustment (3.5 percent). Example: Note: The March 1983 combined supplementary/SSI payment level for a 31-day month was $519.40. July 1983 level: $519.40 March 1983 combined payment. + 9.70 July 1983 COLA-equivalent. 529.10 Required July 1983 combined payment level. 529.10 Required July 1983 combined payment level. −304.30 July 1983 FBR. 224.80 Required State Supplementary payment level. 529.10 Required July 1983 combined payment level. −42.00 Personal needs allowance. 487.10 487.10 + 31 Days in month. 15.71 Per diem rate. The required July 1983 combined supplementary/SSI payment level for a 31-day month was $529.10. This amount is equal to the March 1983 combined payment amount for a 31-day month plus the July 1983 COLA-equivalent ($519.40 + $9.70). (f) Required optional State supplementary payment level for months prior to April 1983. (g) Alternative required optional State supplementary payment level for July 1982 through March 1983. [52 FR 36243, Sept. 28, 1987; 53 FR 4135, Feb. 12, 1988, as amended at 54 FR 19165, May 4, 1989; 54 FR 23018, May 30, 1989] § 416.2099 Compliance with pass-along. (a) Information regarding compliance. (1) The State's December 1976 supplementary payment levels, any subsequent supplementary payment levels, and any change in State eligibility requirements. If the State made no supplementary payments in December 1976, it shall provide such information about the first month in which it makes supplementary payments; (2) The State's March 1983 supplementary payment levels, any subsequent supplementary payment levels, and any changes in State eligibility requirements; (3) The total State expenditures for supplementary payments in the 12-month period beginning July 1976 through June 1977, in each subsequent 12-month period, and in any other 12-month period beginning on the effective date of a Federal SSI benefit increase. The State shall also submit advance estimates of its total supplementary payments in each 12-month period covered by the agreement; (4) The total State expenditures for supplementary payments in the 6-month periods July 1, 1982 through December 31, 1982 and July 1, 1983 through December 31, 1983; and (5) The State supplementary payment level payable to residents of Medicaid facilities (see § 416.2096(d)) on October 1, 1987 (or, if a State first makes such supplementary payments after October 1, 1987, but before July 1, 1988, the level for the month the State first makes such supplementary payments). The State shall also report all changes in such payment levels. (b) Records. (c) Noncompliance by the States. (d) Notices to States about potential noncompliance. (Approved by the Office of Management and Budget under control number 0960-0240) [52 FR 36244, Sept. 28, 1987, as amended at 54 FR 19165, May 4, 1989; 62 FR 38455, July 18, 1997] Subpart U—Medicaid Eligibility Determinations Authority: Secs. 702(a)(5), 1106, 1631(d)(1), and 1634 of the Social Security Act (42 U.S.C. 902(a)(5), 1306, 1383(d)(1), and 1383c). Source: 53 FR 12941, Apr. 20, 1988, unless otherwise noted. § 416.2101 Introduction. (a) What is in this subpart. (b) Related regulations. (c) Definitions. SSI benefits State Medicaid Plan State supplementary payments We, us, our § 416.2111 Conditions for our agreeing to make Medicaid eligibility determinations. We will agree to make Medicaid eligibility determinations for a State only if the State's Medicaid eligibility requirements for recipients of SSI benefits and for recipients of State supplementary payments are the same as the requirements for receiving SSI benefits and the requirements for receiving State supplementary payments, respectively. Exceptions: We may agree to make Medicaid eligibility determinations— (a) For one, two, or all of the three categories of people ( i.e. (b) Even though the State's Medicaid eligibility requirements for recipients of SSI benefits or of State supplementary payments, or both, differ from the requirements for SSI or State supplementary payments, or both, in ways mandated by Federal law. § 416.2116 Medicaid eligibility determinations. If a State requests, we may agree, under the conditions in this subpart, to make Medicaid eligibility determinations on behalf of the State. Under these agreements, we make the Medicaid determinations when determinations or redeterminations are necessary for SSI purposes. Our determinations may include non-SSI requirements that are mandated by Federal law. When we determine that a person is eligible for Medicaid in accordance with § 416.2111 or that we are not making the determination, we notify the State of that fact. § 416.2130 Effect of the agreement and responsibilities of States. (a) An agreement under this subpart does not change— (1) The provisions of a State's Medicaid plan; (2) The conditions under which the Secretary will approve a State's Medicaid plan; or (3) A State's responsibilities under the State Medicaid plan. (b) Following are examples of functions we will not agree to carry out for the State: (1) Stationing of our employees at hospitals or nursing homes to take Medicaid applications; (2) Determining whether a person is eligible for Medicaid for any period before he or she applied for SSI benefits; (3) Giving approval for emergency medical care under Medicaid before a determination has been made on whether a person is eligible for SSI benefits; (4) Setting up or running a State's system for requiring a person to pay part of the cost of services he or she receives under Medicaid; or (5) Giving identification cards to people to show that they are eligible for Medicaid. § 416.2140 Liability for erroneous Medicaid eligibility determinations. If the State suffers any financial loss, directly or indirectly, through using any information we provide under an agreement described in this subpart, we will not be responsible for that loss. However, if we erroneously tell a State that a person is eligible for Medicaid and the State therefore makes erroneous Medicaid payments, the State will be paid the Federal share of those payments under the Medicaid program as if they were correct. § 416.2145 Services other than Medicaid determinations. We will agree under authority of section 1106 of the Act and 31 U.S.C. 6505 to provide services other than Medicaid determinations to help the State administer its Medicaid program. We will do this only if we determine it is the most efficient and economical way to accomplish the State's purpose and does not interfere with administration of the SSI program. The services can be part of a Medicaid eligibility determination agreement or a separate agreement. Under either agreement we will— (a) Give the State basic information relevant to Medicaid eligibility from individuals' applications for SSI benefits; (b) Give the State answers to certain purely Medicaid-related questions (in addition to any that may be necessary under § 416.2111(b)), such as whether the SSI applicant has any unpaid medical expenses for the current month or the previous 3 calendar months; (c) Conduct statistical or other studies for the State; and (d) Provide other services the State and we agree on. § 416.2161 Charges to States. (a) States with Medicaid eligibility determination agreement. (1) If making Medicaid determinations and providing basic SSI application information for a State causes us additional cost, the State must pay half of that additional cost. “Additional cost” in this section means cost in addition to costs we would have had anyway in administering the SSI program. (2) The State must pay half our additional cost caused by providing any information that we collect for Medicaid purposes and by any other services directly related to making Medicaid eligibility determinations. (3) The State must pay our full additional cost for statistical or other studies and any other services that are not directly related to making Medicaid eligibility determinations. (b) States without Medicaid eligibility determination agreement. (1) If providing basic SSI application information causes us additional cost, the State must pay our full additional cost. (2) The State must pay our full additional cost caused by providing any information that we collect for Medicaid purposes and for statistical or other studies and any other services. § 416.2166 Changing the agreement. The State and we can agree in writing to change the agreement at any time. § 416.2171 Duration of agreement. An agreement under this subpart is automatically renewed for 1 year at the end of the term stated in the agreement and again at the end of each 1-year renewal term, unless— (a) The State and we agree in writing to end it at any time; (b) Either the State or we end it at any time without the other's consent by giving written notice at least 90 days before the end of a term, or 120 days before any other ending date selected by whoever wants to end the agreement; or (c)(1) The State fails to pay our costs as agreed; (2) We notify the State in writing, at least 30 days before the ending date we select, why we intend to end the agreement; and (3) The State does not give a good reason for keeping the agreement in force beyond the ending date we selected. If the State does provide a good reason, the termination will be postponed or the agreement will be kept in force until the end of the term. § 416.2176 Disagreements between a State and us. (a) If a State with which we have an agreement under this subpart and we are unable to agree about any question of performance under the agreement, the State may appeal the question to the Commissioner of Social Security. The Commissioner or his or her designee will, within 90 days after receiving the State's appeal, give the State either a written decision or a written explanation of why a decision cannot be made within 90 days, what is needed before a decision can be made, and when a decision is expected to be made. (b) The Commissioner's decision will be the final decision of the Social Security Administration. [53 FR 12941, Apr. 20, 1988, as amended at 62 FR 38456, July 18, 1997] Subpart V—Payments for Vocational Rehabilitation Services Authority: Secs. 702(a)(5), 1615, 1631(d)(1) and (e), and 1633(a) of the Social Security Act (42 U.S.C. 902(a)(5), 1382d, 1383(d)(1) and (e), and 1383b(a)). Source: 48 FR 6297, Feb. 10, 1983, unless otherwise noted. General Provisions § 416.2201 General. In general, sections 1615(d) and (e) of the Social Security Act (the Act) authorize payment from the general fund for the reasonable and necessary costs of vocational rehabilitation (VR) services provided certain disabled or blind individuals who are eligible for supplemental security income (SSI) benefits, special SSI eligibility status, or federally administered State supplementary payments. In this subpart, such benefits, status, or payments are referred to as disability or blindness benefits (see § 416.2203). Subject to the provisions of this subpart, payment may be made for VR services provided an individual during a month(s) for which the individual is eligible for disability or blindness benefits, including the continuation of such benefits under section 1631(a)(6) of the Act, or for which the individual's disability or blindness benefits are suspended (see § 416.2215). Paragraphs (a) and (b) of this section describe the cases in which the State VR agencies can be paid for the VR services provided such an individual under this subpart. The purpose of sections 1615(d) and (e) of the Act is to make VR services more readily available to disabled or blind individuals and ensure that savings accrue to the general fund. Payment will be made for VR services provided on behalf of such an individual in cases where— (a) The furnishing of the VR services results in the individual's completion of a continuous 9-month period of substantial gainful activity (SGA) as specified in §§ 416.2210 through 416.2211; or (b) The individual continues to receive disability or blindness benefits, even though his or her disability or blindness has ceased, under section 1631(a)(6) of the Act because of his or her continued participation in an approved VR program which we have determined will increase the likelihood that he or she will not return to the disability or blindness rolls ( see [68 FR 40124, July 7, 2003, as amended at 83 FR 62460, Dec. 4, 2018] § 416.2202 Purpose and scope. This subpart describes the rules under which the Commissioner will pay the State VR agencies for VR services. Payment will be provided for VR services provided on behalf of disabled or blind individuals under one or more of the provisions discussed in § 416.2201. (a) Sections 416.2201 through 416.2203 describe the purpose of these regulations and the meaning of terms we frequently use in them. (b) Section 416.2204 explains how State VR agencies may participate in the payment program under this subpart. (c) [Reserved] (d) Sections 416.2208 through 416.2209 describe the requirements and conditions under which we will pay a State VR agency under this subpart. (e) Sections 416.2210 through 416.2211 describe when an individual has completed a continuous period of SGA and when VR services will be considered to have contributed to that period. (f) Section 416.2212 describes when payment will be made to a VR agency because an individual's disability or blindness benefits are continued based on his or her participation in a VR program which we have determined will increase the likelihood that he or she will not return to the disability rolls. (g) Sections 416.2214 through 416.2215 describe services for which payment will be made. (h) Section 416.2216 describes the filing deadlines for claims for payment for VR services. (i) Section 416.2217 describes the payment conditions. (j) [Reserved] (k) Section 416.2219 describes how we will make payment to State VR agencies for rehabilitation services. (l) Sections 416.2220 and 416.2221 describe the audits and the prepayment and postpayment validation reviews we will conduct. (m) Section 416.2222 discusses confidentiality of information and records. (n) Section 416.2223 provides for the applicability of other Federal laws and regulations. (o) Section 416.2227 provides for the resolution of disputes. [48 FR 6297, Feb. 10, 1983, as amended at 55 FR 8456, Mar. 8, 1990; 59 FR 11916, Mar. 15, 1994; 62 FR 38456, July 18, 1997; 68 FR 40124, July 7, 2003; 83 FR 62460, Dec. 4, 2018] § 416.2203 Definitions. For purposes of this subpart: Accept the recipient as a client for VR services Act Blindness Commissioner Disability Disability or blindness benefits, Medical recovery Place the recipient into an extended evaluation process SGA Special SSI eligibility status State Vocational rehabilitation services VR agency We, us, our [48 FR 6297, Feb. 10, 1983, as amended at 55 FR 8456, Mar. 8, 1990; 55 FR 19423, May 9, 1990; 59 FR 1637, Jan. 12, 1994; 59 FR 11916, Mar. 15, 1994; 61 FR 31026, June 19, 1996; 62 FR 38456, July 18, 1997; 68 FR 40125, July 7, 2003; 83 FR 62460, Dec. 4, 2018] § 416.2204 Participation by State VR agencies. (a) General. (b) Participation by States. (2) A State with one or more approved VR agencies may choose to limit participation of those agencies to a certain class(es) of disabled or blind recipients. For example, a State with separate VR agencies for the blind and disabled may choose to limit participation to the VR agency for the blind. In such a case, we would give the State, through its VR agency for the blind, the opportunity to participate with respect to blind recipients in the State in accordance with paragraph (d) of this section. A State that chooses to limit participation of its VR agency(ies) must notify us in advance under paragraph (e)(1) of this section of its decision to limit such participation. (c) Opportunity for participation through State VR agencies. (2)(i) In order for the State to participate with respect to a disabled or blind recipient whom we referred to a State VR agency, the State VR agency must notify the appropriate Regional Commissioner (SSA) in writing or through electronic notification of its decision either to accept the recipient as a client for VR services or to place the recipient into an extended evaluation process. The notice must be received by the appropriate Regional Commissioner (SSA) no later than the close of the fourth month following the month in which we referred the recipient to the State VR agency. (ii) In any case in which a State VR agency notifies the appropriate Regional Commissioner (SSA) in writing within the stated time period under paragraph (c)(2)(i) of this section of its decision to place the recipient into an extended evaluation process, the State VR agency also must notify that Regional Commissioner in writing upon completion of the evaluation of its decision whether or not to accept the recipient as a client for VR services. If we receive a notice of a decision by the State VR agency to accept the recipient as a client for VR services following the completion of the extended evaluation, the State may continue to participate with respect to such recipient. (d) Opportunity for limited participation through State VR agencies. (e) Decision of a State not to participate or to limit participation. (2) [Reserved] (3) A State which has decided not to participate or to limit participation may participate later through its VR agency(ies) in accordance with paragraph (c) of this section. A State that decides to resume participation under paragraph (c) of this section must provide advance written notice of that decision to the appropriate Regional Commissioner (SSA). A decision of a State to resume participation under paragraph (c) of this section will be effective beginning with the third month following the month in which the notice of the decision is received by the appropriate Regional Commissioner (SSA) or, if later, with a month specified by the State. The notice of the State decision must be submitted by an official authorized to act for the State as explained in paragraph (e)(1) of this section. [59 FR 11917, Mar. 15, 1994, as amended at 83 FR 62460, Dec. 4, 2018] § 416.2206 [Reserved] Payment Provisions § 416.2208 Requirements for payment. (a) The State VR agency must file a claim for payment in each individual case within the time periods specified in § 416.2216; (b) The claim for payment must be in a form prescribed by us and contain the following information: (1) A description of each service provided; (2) When the service was provided; and (3) The cost of the service; (c) The VR services for which payment is being requested must have been provided during the period specified in § 416.2215; (d) The VR services for which payment is being requested must have been provided under a State plan for VR services approved under title I of the Rehabilitation Act of 1973, as amended, and must be services that are described in § 416.2214; (e) The individual must meet one of the VR payment provisions specified in § 416.2201; (f) The State VR agency must maintain, and provide as we may require, adequate documentation of all services and costs for all disabled or blind recipients with respect to whom a State VR agency could potentially request payment for services and costs under this subpart; and (g) The amount to be paid must be reasonable and necessary and be in compliance with the cost guidelines specified in § 416.2217. [48 FR 6297, Feb. 10, 1983, as amended at 55 FR 8456, Mar. 8, 1990; 59 FR 11918, Mar. 15, 1994; 83 FR 62460, Dec. 4, 2018] § 416.2209 Responsibility for making payment decisions. The Commissioner will decide: (a) Whether a continuous period of 9 months of SGA has been completed; (b) Whether a disability or blindness recipient whose disability or blindness has ceased should continue to receive benefits under section 1631(a)(6) of the Social Security Act for a month after October 1984 or, in the case of a blindness recipient, for a month after March 1988, based on his or her continued participation in a VR program; (c) If and when medical recovery has occurred; (d) Whether documentation of VR services and expenditures is adequate; (e) If payment is to be based on completion of a continuous 9-month period of SGA, whether the VR services contributed to the continuous period of SGA; (f) Whether a VR service is a service described in § 416.2214; and (g) What VR costs were reasonable and necessary and will be paid. [55 FR 8456, Mar. 8, 1990, as amended at 59 FR 11918, Mar. 15, 1994; 61 FR 31026, June 19, 1996; 68 FR 40125, July 7, 2003] § 416.2210 What we mean by “SGA” and by “a continuous period of 9 months”. (a) What we mean by “SGA”. (b) What we mean by “a continuous period of 9 months”. (1) The individual performs 9 months of SGA within 10 consecutive months and has monthly earnings that meet or exceed the guidelines in § 416.974(b)(2), or § 404.1584(d) of this chapter if the individual is statutorily blind, or (2) The individual performs at least 9 months of SGA within 12 consecutive months, and the reason for not performing SGA in 2 or 3 of those months was due to circumstances beyond his or her control and unrelated to the impairment (e.g., the employer closed down for 3 months). (c) What work we consider. [48 FR 6297, Feb. 10, 1983, as amended at 55 FR 8457, Mar. 8, 1990] § 416.2211 Criteria for determining when VR services will be considered to have contributed to a continuous period of 9 months. The State VR agency may be paid for VR services if such services contribute to the individual's performance of a continuous 9-month period of SGA. The following criteria apply to individuals who received more than just evaluation services. If a State VR agency claims payment for services to an individual who received only evaluation services, it must establish that the individual's continuous period or medical recovery (if medical recovery occurred before completion of a continuous period) would not have occurred without the services provided. In applying the criteria below, we will consider services described in § 416.2214 that were initiated, coordinated or provided, including services before October 1, 1981. (a) Continuous period without medical recovery. (1) One year or less. (2) More than one year. (ii) If the continuous period was not preceded by transitional work activity that began less than a year after VR services ended, VR services will be considered to have contributed to the continuous period only if it is reasonable to conclude that the work activity which constitutes a continuous period could not have occurred without the VR services (e.g., training). (b) Continuous period with medical recovery occurring before completion. (i) The individualized written rehabilitation program (IWRP), included medical services; and (ii) The medical recovery occurred, at least in part, because of these medical services. (For example, the individual's medical recovery was based on improvement in a back condition which, at least in part, stemmed from surgery initiated, coordinated or provided under an IWRP). (2) In some instances, the State VR agency will not have provided, initiated, or coordinated medical services. If this happens, payment for VR services may still be possible under paragraph (a) of this section if: (i) The medical recovery was not expected by us; and (ii) The individual's impairment is determined by us to be of such a nature that any medical services provided would not ordinarily have resulted in, or contributed to, the medical cessation. [48 FR 6297, Feb. 10, 1983, as amended at 59 FR 11918, Mar. 15, 1994; 83 FR 62460, Dec. 4, 2018] § 416.2212 Payment for VR services in a case where an individual continues to receive disability or blindness benefits based on participation in an approved VR program. Section 1631(a)(6) of the Act contains the criteria we will use in determining if an individual whose disability or blindness has ceased should continue to receive disability or blindness benefits because of his or her continued participation in an approved VR program. A VR agency can be paid for the cost of VR services provided to an individual if the individual was receiving benefits based on this provision in a month(s) after October 1984 or, in the case of a blindness recipient, in a month(s) after March 1988. If this requirement is met, a VR agency can be paid for the costs of VR services provided within the period specified in § 416.2215, subject to the other payment and administrative provisions of this subpart. [83 FR 62461, Dec. 4, 2018] § 416.2214 Services for which payment may be made. (a) General. (1) Necessary to determine an individual's eligibility for VR services or the nature and scope of the services to be provided; or (2) Provided by a State VR agency under an IWRP, but only if the services could reasonably be expected to motivate or assist the individual in returning to, or continuing in, SGA. (b) Specific services. (1) An assessment for determining an individual's eligibility for VR services and vocational rehabilitation needs by qualified personnel, including, if appropriate, an assessment by personnel skilled in rehabilitation technology, and which includes determining— (i) The nature and extent of the physical or mental impairment(s) and the resultant impact on the individual's employability; (ii) The likelihood that an individual will benefit from vocational rehabilitation services in terms of employability; and (iii) An employment goal consistent with the capacities of the individual and employment opportunities; (2) Counseling and guidance, including personal adjustment counseling, and those referrals and other services necessary to help an individual secure needed services from other agencies; (3) Physical and mental restoration services necessary to correct or substantially modify a physical or mental condition which is stable or slowly progressive and which constitutes an impediment to suitable employment at or above the SGA level; (4) Vocational and other training services, including personal and vocational adjustment, books, tools, and other training materials, except that training or training services in institutions of higher education will be covered under this section only if maximum efforts have been made by the State VR agency to secure grant assistance in whole or in part from other sources; (5) Maintenance expenses that are extra living expenses over and above the individual's normal living expenses and that are incurred solely because of and while the individual is participating in the VR program and that are necessary in order for the individual to benefit from other necessary VR services; (6) Travel and related expenses necessary to transport an individual for purpose of enabling the individual's participation in other necessary VR services; (7) Services to family members of a disabled or blind individual only if necessary to the successful vocational rehabilitation of that individual; (8) Interpreter services and note-taking services for an individual who is deaf and tactile interpreting for an individual who is deaf and blind; (9) Reader services, rehabilitation teaching services, note-taking services, and orientation and mobility services for an individual who is blind; (10) Telecommunications, sensory, and other technological aids and devices; (11) Work-related placement services to secure suitable employment; (12) Post-employment services necessary to maintain, regain or advance into suitable employment at or above the SGA level; (13) Occupational licenses, tools, equipment, initial stocks, and supplies; (14) Rehabilitation technology services; and (15) Other goods and services that can reasonably be expected to motivate or assist the individual in returning to, or continuing in, SGA. [59 FR 11919, Mar. 15, 1994, as amended at 83 FR 62461, Dec. 4, 2018] § 416.2215 When services must have been provided. (a) In order for the VR agency to be paid, the services must have been provided— (1) After September 30, 1981; (2) During a month(s) for which— (i) The individual is eligible for disability or blindness benefits or continues to receive such benefits under section 1631(a)(6) of the Act (see § 416.2212); or (ii) The disability or blindness benefits of the individual are suspended due to his or her ineligibility for the benefits (see subpart M of this part concerning suspension for ineligibility); and (3) Before completion of a continuous 9-month period of SGA or termination of disability or blindness benefits, whichever occurs first (see subpart M of this part concerning termination of benefits). (b) If an individual who is receiving disability or blindness benefits under this part, or whose benefits under this part are suspended, also is entitled to disability benefits under part 404 of this chapter, the determination as to when services must have been provided may be made under this section or § 404.2115 of this chapter, whichever is advantageous to the State VR agency that is participating in both VR programs. [61 FR 31026, June 19, 1996, as amended at 83 FR 62461, Dec. 4, 2018] § 416.2216 When claims for payment for VR services must be made (filing deadlines). The State VR agency must file a claim for payment in each individual case within the following time periods: (a) A claim for payment for VR services based on the completion of a continuous 9-month period of SGA must be filed within 12 months after the month in which the continuous 9-month period of SGA is completed. (b) A claim for payment for VR services provided to an individual whose disability or blindness benefits were continued after disability or blindness has ceased because of that individual's continued participation in a VR program must be filed as follows: (1) If a written notice requesting that a claim be filed was sent to the State VR agency, a claim must be filed within 90 days following the month in which VR services end, or if later, within 90 days after receipt of the notice. (2) If no written notice was sent to the State VR agency, a claim must be filed within 12 months after the month in which VR services end. [55 FR 8457, Mar. 8, 1990, as amended at 61 FR 31026, June 19, 1996; 68 FR 40125, July 7, 2003; 83 FR 62461, Dec. 4, 2018] § 416.2217 What costs will be paid. In accordance with section 1615(d) and (e) of the Social Security Act, the Commissioner will pay the State VR agency for the VR services described in § 416.2214 which were provided during the period described in § 416.2215 and which meet the criteria in § 416.2211 or § 416.2212, but subject to the following limitations: (a) The cost must have been incurred by the State VR agency; (b) The cost must not have been paid or be payable from some other source. For this purpose, State VR agencies will be required to seek payment or services from other sources in accordance with the “similar benefit” provisions under 34 CFR part 361, including making maximum efforts to secure grant assistance in whole or part from other sources for training or training services in institutions of higher education. (c)(1) The cost must be reasonable and necessary, in that it complies with the written cost-containment policies of the State VR agency. A cost which complies with these policies will be considered necessary only if the cost is for a VR service described in § 416.2214. The State VR agency must maintain and use these cost-containment policies, including any reasonable and appropriate fee schedules, to govern the costs incurred for all VR services, including the rates of payment for all purchased services, for which payment will be requested under this subpart. For the purpose of this subpart, the written cost-containment policies must provide guidelines designed to ensure— (i) The lowest reasonable cost for such services; and (ii) Sufficient flexibility so as to allow for an individual's needs. (2) The State VR agency shall submit to us before the end of the first calendar quarter of each year a written statement certifying that cost-containment policies are in effect and are adhered to in procuring and providing goods and services for which the State VR agency requests payment under this subpart. Such certification must be signed by the State's chief financial official or the head of the VR agency. Each certification must specify the basis upon which it is made, e.g., a recent audit by an authorized State, Federal or private auditor (or other independent compliance review) and the date of such audit (or compliance review). We may request the State VR agency to submit to us a copy(ies) of its specific written cost-containment policies and procedures (e.g., any guidelines and fee schedules for a given year), if we determine that such additional information is necessary to ensure compliance with the requirements of this subpart. The State VR agency shall provide such information when requested by us. (d) The total payment in each case, including any prior payments related to earlier continuous 9-month periods of SGA made under this subpart, must not be so high as to preclude a “net saving” to the general funds (a “net saving” is the difference between the estimated savings to the general fund, if payments for disability or blindness remain reduced or eventually terminate, and the total amount we pay to the State VR agency); (e) Any payment to the State VR agency for either direct or indirect VR expenses must be consistent with the cost principles described in OMB Circular No. A-87, as revised; (f) Payment for VR services or costs may be made under more than one of the VR payment provisions described in §§ 416.2211 and 416.2212 of this subpart and similar provisions in §§ 404.2111 and 404.2112 of subpart V of part 404. However, payment will not be made more than once for the same VR service or cost; and (g) Payment will be made for administrative costs and for counseling and placement costs. This payment may be on a formula basis, or on an actual cost basis, whichever the State VR agency prefers. The formula will be negotiated. The payment will also be subject to the preceding limitations. [48 FR 6297, Feb. 10, 1983. Redesignated and amended at 55 FR 8457, 8458, Mar. 8, 1990; 55 FR 14916, Apr. 19, 1990; 59 FR 11919, Mar. 15, 1994; 61 FR 31027, June 19, 1996; 62 FR 38456, July 18, 1997; 68 FR 40125, July 7, 2003; 83 FR 62461, Dec. 4, 2018] Administrative Provisions § 416.2218 [Reserved] § 416.2219 Method of payment. Payment to the State VR agencies pursuant to this subpart will be made either by advancement of funds or by payment for services provided (with necessary adjustments for any overpayments and underpayments), as decided by the Commissioner. [83 FR 62462, Dec. 4, 2018] § 416.2220 Audits. (a) General. (b) Audit basis. (c) Appeal of audit determinations. [83 FR 62462, Dec. 4, 2018] § 416.2221 Validation reviews. (a) General. (b) Purpose. (1) To ensure that the VR services and costs meet the requirements for payment under this subpart; (2) To assess the validity of our documentation requirements; and (3) To assess the need for additional validation reviews or additional documentation requirements for any State VR agency to ensure compliance with the requirements under this subpart. (c) Determinations. (d) Appeals. [59 FR 11920, Mar. 15, 1994, as amended at 62462, Dec. 4, 2018] § 416.2222 Confidentiality of information and records. The State shall comply with the provisions for confidentiality of information, including the security of systems, and records requirements described in 20 CFR part 401 and pertinent written guidelines (see § 416.2223). [83 FR 62462, Dec. 4, 2018] § 416.2223 Other Federal laws and regulations. Each State VR agency shall comply with the provisions of other Federal laws and regulations that directly affect its responsibilities in carrying out the vocational rehabilitation function. [83 FR 62462, Dec. 4, 2018] § 416.2227 Resolution of disputes. (a) Disputes on the amount to be paid. (b) Disputes on whether there was a continuous period of SGA and whether VR services contributed to a continuous period of SGA. (c) Disputes on determinations made by the Commissioner which affect a disabled or blind beneficiary's rights to benefits. [48 FR 6297, Feb. 10, 1983, as amended at 55 FR 8458, Mar. 8, 1990; 62 FR 38456, July 18, 1997; 83 FR 62462, Dec. 4, 2018]

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