[Federal Register Volume 59, Number 168 (Wednesday, August 31, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-20519]
[[Page Unknown]]
[Federal Register: August 31, 1994]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Social Security Administration
20 CFR Parts 404 and 416
[Regulations Nos. 4 and 16]
RIN 0960-AD05
Deemed Application Date Based on Misinformation
AGENCY: Social Security Administration, HHS.
ACTION: Final rules.
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SUMMARY: We are adding new rules to our regulations on filing an
application for Social Security or Supplemental Security Income (SSI)
benefits to implement the provisions of section 10302 of the Omnibus
Budget Reconciliation Act of 1989 (OBRA 1989), Pub. L. 101-239. Section
10302 added sections 202(j)(5) and 1631(e)(5) of the Social Security
Act (the Act) to provide, in general, for the establishment of a
``deemed'' filing date of an application for benefits under title II or
title XVI of the Act, respectively, in any case in which it is
determined to the satisfaction of the Secretary that an individual
failed to apply for monthly Social Security or SSI benefits because of
misinformation provided to the individual by an officer or employee of
the Social Security Administration (SSA) about his or her eligibility
for the benefits. In general, sections 202(j)(5) and 1631(e)(5) provide
that, in such a case, an individual will be ``deemed'' to have applied
for monthly Social Security or SSI benefits, as appropriate, on the
later of: The date the misinformation was provided to such individual;
or the date such individual met all requirements for entitlement to or
eligibility for such benefits, other than the requirement of filing an
application.
EFFECTIVE DATE: These rules are effective August 31, 1994.
FOR FURTHER INFORMATION CONTACT: Henry D. Lerner, Legal Assistant,
Office of Regulations, Social Security Administration, 6401 Security
Blvd., Baltimore, MD 21235, (410) 965-1762.
SUPPLEMENTARY INFORMATION:
Background
These regulations implement the provisions of section 10302 of OBRA
1989, Pub. L. 101-239, which added sections 202(j)(5) and 1631(e)(5) of
the Act. Sections 202(j)(5) and 1631(e)(5) of the Act provide that in
any case in which it is determined to the satisfaction of the Secretary
that an individual failed to apply for monthly Social Security or SSI
benefits because of misinformation provided to such individual by an
officer or employee of SSA relating to the individual's eligibility for
the respective benefits, such individual will be ``deemed'' to have
applied for monthly Social Security or SSI benefits, as the case may
be, on the later of: (1) The date the misinformation was provided to
such individual; or (2) the date on which such individual met all
requirements for entitlement to Social Security benefits, or all
requirements of eligibility for SSI benefits, as appropriate, other
than the requirement of filing an application. The amendment relating
to applications for monthly Social Security benefits, under section
202(j)(5) of the Act, applies to misinformation provided after December
31, 1982, and is effective for benefits payable for months beginning
after that date. The amendment relating to applications for SSI
benefits, under section 1631(e)(5) of the Act, applies to
misinformation provided on or after December 19, 1989, the date of the
enactment of OBRA 1989, and is effective for benefits payable for
months after December 1989.
We are amending our regulations on filing an application for Social
Security or SSI benefits to include rules to implement section 10302 of
OBRA 1989. These final regulations describe the rules for establishing
a ``deemed'' filing date of an application for benefits under section
202(j)(5) or 1631(e)(5) of the Act in a case in which an individual
failed to apply for benefits because of certain misinformation provided
to the individual by an officer or employee of SSA. Among other things,
the regulations explain what is meant by ``misinformation'' for
purposes of these rules, describe the kinds of evidence we will
consider in determining whether misinformation was provided, and
explain that a determination on a claim for benefits under these
sections of the Act, i.e., a determination as to whether or not to
establish a ``deemed'' filing date of an application on the basis that
misinformation was provided which caused an individual not to apply for
benefits, is an initial determination for purposes of administrative
and judicial review.
In general, our current regulations at Secs. 404.603 and 416.305(a)
provide that to become entitled to Social Security benefits or become
eligible to receive SSI benefits, an individual, in addition to meeting
all other requirements, must file an application for Social Security
benefits or for SSI benefits, as appropriate. An application must be on
a prescribed application form and meet certain other requirements
specified in Sec. 404.610 or Sec. 416.310.
Current Sec. 404.614 provides, with certain exceptions, that an
application for Social Security benefits is filed on the day it is
received by an SSA employee at one of our offices or by an SSA employee
who is authorized to receive it at another place. If a written
statement indicating intent to claim Social Security benefits is filed,
we will use the filing date of the written statement as the filing date
of the application under the conditions described in Sec. 404.630.
Also, if an individual telephones us and advises us that he or she
intends to file a claim for Social Security benefits but cannot file an
application before the end of the month, Sec. 404.630(b) provides that
we will prepare and sign a written statement if it is necessary to
prevent the loss of benefits.
In the SSI program, current Sec. 416.325 provides, with certain
exceptions, that an application for SSI benefits is considered to be
filed on the day it is received by an SSA employee at any Social
Security office, by someone at another Federal or State office
designated to receive applications for us, or by a person whom we have
authorized to receive applications for us. Also, under the conditions
described in Secs. 416.340, 416.345 and 416.350, if we receive a
written statement indicating an intent to claim SSI benefits or an oral
inquiry about SSI benefits, we will use the filing date of the written
statement or the date of the oral inquiry as the filing date of the
application, if the use of that date will result in eligibility for
additional benefits.
Under these final rules, we continue to require the filing of a
formal written application before we will make a determination on a
claim for benefits under section 202(j)(5) or 1631(e)(5) of the Act
based on an allegation that misinformation was provided which caused an
individual not to apply for benefits. If we determine that such
misinformation was provided, however, we will deem the filing date of
the application to be the date the misinformation was provided or, if
later, the date the claimant, i.e., the individual who is claiming
benefits for himself or herself or the person on whose behalf benefits
are being claimed, met all the requirements for entitlement to Social
Security benefits or eligibility for SSI benefits, as appropriate,
other than the requirement of filing an application.
Under our current regulations, an application for SSI benefits is
also an application for any applicable federally administered State
supplementary payments under section 1616 of the Act. The current
regulations which govern the filing of applications for SSI benefits,
therefore, also apply to applications for these State supplementary
payments. This is reflected in current Sec. 416.302 which provides that
for purposes of the regulations on filing applications for SSI
benefits, Sec. 416.301 et seq., ``[b]enefits means any payments made
under the SSI program,'' and ``SSI benefits also include any federally
administered State supplementary payments.'' As explained below, these
definitions would continue to apply under the regulations which
implement section 1631(e)(5) of the Act.
Section 1631(e)(5) of the Act applies specifically to cases in
which an individual failed to apply for SSI benefits because of the
receipt of misinformation relating to eligibility for SSI benefits.
However, because the application form and our current rules on filing
applications are the same for both SSI claims and claims for federally
administered State supplementary payments, we also will apply the
provisions under section 1631(e)(5) to cases involving misinformation
about eligibility for federally administered State supplementary
payments. This rule is based on the authority under section
1631(e)(1)(A) of the Act which directs the Secretary to ``prescribe
such requirements with respect to the filing of applications * * * as
may be necessary for the effective and efficient administration of this
title.'' Therefore, while not required under section 1631(e)(5) of the
Act, the final regulations will permit the establishment of a
``deemed'' filing date of an application in situations in which an
individual failed to file an application because we provided the
individual misinformation about his or her eligibility for these State
supplementary payments.
Deemed Filing Date of an Application in a Case of Misinformation
We are adding new Secs. 404.633 and 416.351 to our regulations to
explain the rules we will follow in implementing sections 202(j)(5) and
1631(e)(5) of the Act, respectively. Sections 404.633(b) and 416.351(b)
of the final regulations explain that we may establish a ``deemed''
filing date of an application for benefits under these sections of the
Act if we determine to our satisfaction that--
(1) An individual failed to apply for monthly Social Security or
SSI benefits for himself or herself because we provided such
individual misinformation about his or her eligibility for the
respective benefits, including misinformation about the amount or
payment of such benefits; or
(2) An individual who had authority to sign an application for
another person under Sec. 404.612 or Sec. 416.315, as appropriate,
failed to apply for monthly Social Security or SSI benefits for that
person because we provided the individual misinformation about such
person's eligibility for the respective benefits, including
misinformation about the amount or payment of such benefits.
In the first situation, we would deem an application to have been
filed on the date the misinformation was provided to the individual or,
if later, the date on which such individual met all of the requirements
for entitlement to monthly Social Security benefits or eligibility for
SSI benefits, as the case may be, other than the requirement of filing
an application. In the second situation, we would deem an application
to have been filed on the date the misinformation was provided to the
individual or, if later, the date on which the person referred to in
item (2) above, i.e., the person on whose behalf the individual was
inquiring about getting benefits, met all the requirements for
entitlement to monthly Social Security benefits or eligibility for SSI
benefits, as the case may be, other than the requirement of filing an
application.
The regulations explain that we will apply certain requirements and
conditions which are specified in the regulations in making the
determination described above, i.e., a determination as to whether
misinformation was provided. The regulations explain that before we may
make such a determination and establish a ``deemed'' filing date of an
application for benefits, an application for such benefits must be
filed with us either by the claimant, i.e., the individual in item (1)
above or the person referred to in item (2) above, or by someone who is
authorized to sign an application on behalf of the claimant under
Sec. 404.612 or Sec. 416.315. The regulations also provide that if the
claimant dies after the alleged misinformation was provided but before
an application is filed, an application for monthly Social Security
benefits must be filed by a person who would be qualified to receive
any benefits due the deceased. With respect to SSI benefits, if the
claimant dies after the alleged misinformation was provided but before
an application is filed, a person who would be qualified under
Sec. 416.542(b) to receive any benefits due the deceased, or someone on
behalf of such a person, must file an application for the benefits.
This latter provision is consistent with the provisions of our final
regulations on ``Payment of Benefits Due Deceased Recipients,'' which
were published in the Federal Register on October 13, 1993, at 58 FR
52909.
Our regulations on ``Payment of Benefits Due Deceased Recipients''
amended certain sections of the SSI regulations, including, as
pertinent here, Secs. 416.340(d)(2), 416.345(e)(2), and 416.542(b), to
implement section 8 of Pub. L. 99-643. Section 8 of Pub. L. 99-643
amended section 1631(b)(1) of the Act to expand the circumstances under
which SSI benefits due a deceased individual may be paid to survivors.
Among other things, those regulations amended Secs. 416.340(d)(2) and
416.345(e)(2) to permit, in general, a deceased claimant's surviving
spouse or parent(s) who could receive the claimant's benefits under
Sec. 416.542(b), or someone on behalf of such surviving spouse or
parent(s), to file an application for SSI benefits for the claimant
where the claimant dies after we receive a written statement indicating
an intent to claim SSI benefits or an oral inquiry about SSI
eligibility. The rule which we now are adding regarding who may file an
application for SSI benefits on behalf of a claimant where the claimant
dies after the alleged misinformation was provided, discussed above, is
consistent with these earlier changes to the SSI regulations.
We are amending Secs. 404.612, 404.615 and 416.310 to reflect the
provisions of Secs. 404.633(b) and 416.351(b) concerning who may file
an application if a claimant dies after the alleged misinformation was
provided.
Sections 404.633(c) and 416.351(c) explain that the provisions for
establishing a ``deemed'' filing date of an application apply only to
cases in which the misinformation was provided to the individual by an
employee of SSA, including an officer of the Agency, while such person
was acting in his or her official capacity as an employee or officer of
the Agency. The regulations also explain that ``misinformation'' is
information which we would consider incorrect, misleading, or
incomplete in view of the facts which the individual gave to the
employee, or of which the employee otherwise was aware or should have
been aware, regarding the claimant's particular circumstances. Under
these regulations, we will consider the information provided to be
incomplete if the employee failed to provide the individual with
appropriate, additional information which he or she is required to
provide in carrying out his or her official duties. The misinformation
may have been provided orally or in writing. However, the
misinformation must have been provided to the individual in response to
his or her request to us for information about applying for benefits,
either for himself or herself or for another person for whom he or she
could sign an application.
We also are amending Secs. 404.614 and 416.325, which explain when
an application for benefits is considered filed, to reflect the
provisions of Secs. 404.633 and 416.351.
Evidence That Misinformation Was Provided
In Secs. 404.633(d) and 416.351(d), we describe the kinds of
evidence we will consider in determining whether misinformation was
provided. We explain that preferred evidence is written evidence that
relates directly to an individual's inquiry about his or her
eligibility for benefits, or about the eligibility of another person on
whose behalf the individual was considering applying for benefits, and
which shows that we gave the individual misinformation which caused him
or her not to file an application for such benefits. Preferred evidence
includes, but is not limited to, the following--
A notice, letter, or other document which was issued by
SSA and addressed to the individual; and
An SSA record of a telephone call, letter or in-person
contact.
In the absence of preferred evidence, we will consider other
evidence which includes, but is not limited to, the following--
The individual's statements about the alleged
misinformation, including statements about the date and time of the
alleged contact(s); how the contact was made, e.g., by telephone or
in person; the reason(s) the contact was made; who gave the
misinformation; and the questions asked by the individual and the
facts the individual gave us, and the questions asked by the SSA
employee and the information the employee gave the individual at the
time of the contact;
Statements from others who were present when the
alleged misinformation was given, e.g., a neighbor who accompanied
the individual to the SSA office;
If the individual can identify the employee or the
employee can recall the individual's inquiry about benefits--
(1) Statements from the employee concerning the alleged contact,
including statements about the questions the individual asked, the
facts the individual gave, the questions the employee asked, and the
information provided to the individual at the time of the alleged
contact; and
(2) An assessment of the likelihood that the SSA employee gave
the alleged misinformation;
An evaluation of the credibility and the validity of
the individual's allegations in conjunction with other relevant
information; and
Any other information regarding the individual's
alleged contact.
We will evaluate the individual's allegations and seek
corroboration; we will resolve reasonable doubt in the individual's
favor if the allegation of misinformation seems credible, is supported
by other evidence, and there is no contradictory evidence.
Information Which Does Not Constitute Satisfactory Proof That
Misinformation Was Given
Sections 404.633(e) and 416.351(e) explain that certain kinds of
information will not constitute satisfactory proof that we gave the
individual misinformation which caused him or her not to file an
application. Examples of such information include--
General informational pamphlets that we issue to
provide basic program information;
The Personal Earnings and Benefit Estimate Statement
that is based on an individual's reported and projected earnings and
is an estimate of Social Security benefits which can be requested at
any time; the estimate is only a projection based on our records and
the individual's estimated future earnings and is not necessarily
associated with an intent to file or an inquiry about eligibility;
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; the estimate is only a projection
based on our records and the individual's estimated income and is
not necessarily associated with an intent to file or an inquiry
about eligibility;
General information we review or prepare but which is
disseminated by the media, e.g., radio, television, magazines, and
newspapers; and
Information concerning Social Security and SSI benefits
provided by other governmental agencies, e.g., the Department of
Veterans Affairs, the Department of Defense, State unemployment
agencies, and State and local governments.
Claim for Benefits Based on Alleged Misinformation
Under Secs. 404.633(f) and 416.351(f), an individual at any time
may ask us to consider establishing a deemed filing date on the basis
that misinformation was provided. However, the regulations explain that
we will not make a determination on such a claim for benefits unless
the following conditions are met.
First, a claim for benefits based on an allegation that we provided
misinformation must be made in writing. The written statement must
explain what information was provided; how, when and where it was
provided and by whom; and why the information caused the individual not
to file an application for benefits.
Second, an application for the benefits must be filed by the
claimant or by someone who could file on behalf of the claimant. The
application must be filed after the occurrence of the alleged
misinformation. This application may be--
An application on which we have made a previous final
determination or decision awarding such benefits to the claimant,
provided that the claimant continues to be entitled to Social
Security benefits, or continues to be eligible for SSI benefits (or
again could be eligible for SSI benefits), based on that
application;
An application on which we have made a previous final
determination or decision denying the benefits to the claimant, but
only if such determination or decision is reopened under
Sec. 404.988 or Sec. 416.1488; or
A new application on which we have not made a final
determination or decision.
Third, if the only issue in dispute is whether or not the alleged
misinformation occurred, we will not make an initial determination on a
claim for benefits under Sec. 404.633 or Sec. 416.351 unless the
establishment of a deemed filing date of an application based on the
alleged misinformation would result in the claimant becoming entitled
to, or eligible for, benefits or additional benefits.
Fourth, we will not make an initial determination on a claim for
benefits under Sec. 404.633 or Sec. 416.351 if we have made a previous
determination or decision on a claim for benefits based on the alleged
misinformation which involved the same party(ies), the same facts and
the same issues, and this previous determination or decision has become
final. This rule does not apply, however, if the previous final
determination or decision may be reopened under Sec. 404.988 or
Sec. 416.1488.
We are amending Secs. 404.903 and 416.1403 to explain that if we
decline to make an initial determination on a claim for benefits based
on an allegation of misinformation because one or more of the
conditions specified above are not met, our action is not an initial
determination for purposes of our administrative review process or
judicial review. We also are amending Secs. 404.902 and 416.1402 to
make it clear that if we make a determination on a claim for benefits
based on an allegation of misinformation, the determination is an
initial determination subject to administrative and judicial review
under Sec. 404.900 et seq. or Sec. 416.1400 et seq.
Public Comments
We published proposed rules in the Federal Register on October 16,
1992, 57 FR 47415. We gave interested parties 60 days to submit
comments. We also published an amendment to the proposed rules on
January 22, 1993, 58 FR 5687, and we gave interested parties another 60
days to submit comments on the proposed rules, as amended. We received
comments from four commenters: a public policy research center
concerned with child health care, a State public health agency
employee, and two attorneys who represent claimants and beneficiaries.
One commenter supported the proposed rules without modification.
Another commenter supported the proposed rules but recommended that
another example of a situation involving misinformation be included in
the rules. The other commenters believed that the proposed rules should
be expanded to cover certain other situations in which an individual
failed to file an application for benefits. In addition, while
commending the proposed rules, two of the commenters recommended that
SSA also take steps to ensure that Agency employees provide correct
information to potential applicants when they inquire about eligibility
for benefits. A summary of the comments and our responses to the
comments are provided below.
We considered carefully all of the substantive comments which we
received on the proposed rules. However, for the reasons explained
below, we did not make any changes to the proposed rules other than
certain editorial changes discussed below. Therefore, except for some
editorial changes, these final rules are the same as the proposed
rules.
Comment: One commenter recommended that the proposed rules be
expanded to include an example of a situation in which an individual,
such as a parent, inquires about filing an application on behalf of a
child for SSI benefits based on disability or blindness and is provided
misinformation by SSA about the child's eligibility for benefits which
causes the individual not to file an application for the benefits. This
commenter also stated that often a parent of a child who may be
disabled or blind contacts SSA to inquire about SSI benefits for the
child at the suggestion of a child advocate, case manager or hospital
social worker. The commenter believed that these case workers can serve
as sources to corroborate dates and facts of the contact in cases of
alleged misinformation since parents in these situations usually
recontact the case worker to advise the worker that they were dissuaded
from applying for benefits because of the information which SSA
provided to them about the child's eligibility.
Response: The examples in Sec. 416.351(a) are intended simply to
illustrate situations in which misinformation provided by an SSA
employee concerning a potential claimant's eligibility for SSI benefits
causes an individual not to file an application for the benefits. The
examples are not intended to cover all situations involving alleged
misinformation or all categories of SSI benefits. Existing
Sec. 416.315(b) provides that an application for SSI benefits for a
claimant who is under age 18 may be signed by an individual who is
responsible for the care of the claimant, including a relative, or by
certain other individuals described in that section. In
Sec. 416.351(b)(2)(i) of the final regulations, we explain that if an
individual had authority under Sec. 416.315 to sign an application for
benefits for another person, and we determined that the individual
failed to apply for SSI benefits for that person because we gave the
individual misinformation about that person's eligibility for such
benefits, we will deem an application for the benefits to have been
filed on the date specified in Sec. 416.351(b)(2)(i) (A) or (B), as
appropriate. Section 416.351(b)(2)(i) makes it clear that the rules for
establishing a deemed filing date of an application for benefits based
on misinformation apply to cases in which a parent, or other individual
authorized to sign an application for a child, failed to apply for SSI
benefits for a child because we gave the parent, or such other
individual, misinformation about the child's eligibility for SSI
benefits. Section 404.633(b)(2)(i) of the final regulations provides
similar rules with respect to claims for Social Security benefits. We
do not believe that it is necessary, therefore, to add an example to
the regulations to cover the specific situation in which an individual
failed to apply for benefits on behalf of a child because we gave the
individual misinformation about the child's eligibility for the
benefits.
We agree with the commenter that in some circumstances a child
advocate, case manager or hospital social worker may be able to provide
information regarding an individual's alleged contact with SSA. Under
Secs. 404.633(f) and 416.351(f), an individual who makes a claim for
benefits based on alleged misinformation must furnish information that
will enable us to determine if we did provide misinformation to the
individual about his or her eligibility for benefits, or the
eligibility of a person on whose behalf the individual was considering
applying for benefits, which caused the individual not to file an
application for the benefits. Preferred evidence of such misinformation
is written evidence, such as a letter, which shows that we gave the
individual misinformation which caused the individual not to file an
application. In the absence of preferred evidence, we will consider
other evidence, including the individual's statements about the alleged
misinformation as well as ``[a]ny other information regarding [the
individual's] * * * alleged contact,'' as explained in
Secs. 404.633(d)(2) and 416.351(d)(2). This would include statements
provided by a case worker concerning the individual's alleged contact.
Comment: A commenter expressed the view that the proposed
regulations do not address the situation in which an individual who
might be eligible for Social Security and SSI benefits files an
application for Social Security benefits but does not ask about or
express interest in SSI benefits and does not file an application for
those benefits at that time. The commenter suggested that the proposed
rules be amended to provide for the use of the filing date of the
application for Social Security benefits in such a case to establish
the filing date of an application for SSI benefits.
Response: Existing Secs. 416.345 and 416.350, which are not
affected by these final rules, already address the situation discussed
by the commenter. Section 416.350 provides that when an individual
applies for Social Security benefits, we will explain the requirements
for eligibility for SSI benefits to the individual and give the
individual a chance to file an SSI application if it appears that he or
she might be eligible for SSI benefits as explained in that section. If
the individual does not apply for SSI benefits at that time,
Sec. 416.350 provides that we will treat his or her filing of an
application for Social Security benefits as an oral inquiry about SSI
benefits for purposes of Sec. 416.345. The filing date of the
individual's Social Security application, therefore, may be used to
establish the filing date of an SSI application in accordance with
Sec. 416.345. For these reasons, we did not adopt the change suggested
by the commenter.
Comment: One commenter questioned the requirement of proposed
Secs. 404.633(c)(4) and 416.351(c)(4) that ``[t]he 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 [another] * * * person * * * for which you
were considering filing an application.'' The commenter believed that
this provision, as well as proposed Secs. 404.633(a) and 416.351(a),
would require an individual who requests a deemed filing date of an
application based on misinformation to show that he or she had a
specific intent to claim benefits at the time the alleged
misinformation was provided. The commenter believed that such a
requirement would be inconsistent with section 10302 of OBRA 1989.
It was the commenter's opinion that in enacting this statute,
Congress intended to place an affirmative duty on SSA to develop or
encourage claims that could be filed, at least where a potential
applicant presents material facts to the Agency and an employee makes
an incorrect or incomplete response. Therefore, the commenter believed
that the proposed rules should be revised to permit the establishment
of a deemed filing date of an application where an individual does not
inquire about possible eligibility for benefits but simply presents
information to the Agency that might have alerted an SSA employee to a
potential claim, and, because the employee does not consider and does
not advise the individual of the potential claim, the individual does
not file an application for benefits. As an illustration, the commenter
described a situation in which information showing that a disability
insurance beneficiary had children who were born after the beneficiary
began receiving disability benefits and who, upon the filing of the
required applications, could become entitled to child's insurance
benefits based on the beneficiary's earnings record, was overlooked
during a continuing disability review interview with the beneficiary.
Response: Sections 404.633(c)(4) and 416.351(c)(4) prescribe the
circumstances in which the misinformation must have been provided in
order to have caused the individual not to file an application for
benefits. These sections do not require an individual to show that he
or she had the express intention of filing an application for benefits
at the time he or she was provided the alleged misinformation. Rather,
these sections provide only that the alleged misinformation must have
been provided in a situation in which the individual was considering
applying for benefits and contacted SSA to inquire about his or her
eligibility for benefits or the eligibility of another person for whom
the individual had authority to sign an application. We believe this
requirement, which is also reflected in Secs. 404.633(a) and
416.351(a), is consistent with sections 202(j)(5) and 1631(e)(5) of the
Act, which were added by section 10302 of OBRA 1989.
Sections 202(j)(5) and 1631(e)(5) of the Act do not provide for a
deemed filing date of an application for benefits in the situation
described by the commenter. These sections provide for a deemed filing
date when:
* * * it is determined to the satisfaction of the Secretary that
an individual failed as of any date to apply for [Social Security or
SSI] benefits * * * by reason of misinformation provided to such
individual by any officer or employee of the Social Security
Administration relating to such individual's eligibility for [the
respective] benefits * * *.
To be accorded a deemed filing date under these sections of the Act, an
individual must demonstrate to our satisfaction that his or her failure
to apply for benefits was due to misinformation which was communicated
to that individual by an officer or employee of SSA and which concerned
that individual's eligibility for the benefits. There must be a
satisfactory showing that the failure to apply for benefits was the
direct result of such misinformation. For this purpose, we require in
Secs. 404.633(c)(4) and 416.351(c)(4) that the misinformation must have
been provided to an individual in response to his or her request to us
for information about his or her eligibility for benefits, or the
eligibility for benefits of another person, for which he or she was
considering filing an application.
Comment: While expressing strong support for the proposed rules,
one commenter urged that efforts be made by SSA to ensure that
misinformation is not disseminated from SSA field offices or
teleservice centers. Another commenter who supported the proposed rules
recommended that SSA establish a monitoring process to identify sources
of misinformation and implement strategies to correct any problems that
are found.
Response: We are committed to ensuring that we provide the highest
quality service possible to the public in a courteous, timely and
accurate manner. We already have put into place procedures for
monitoring the service provided to the public and for addressing
problems discovered in the delivery of service by our employees. As
part of this effort, employees are instructed to answer all calls by
identifying their Agency, followed by their full name or a title and
last name for identification purposes. In addition, ongoing training is
conducted, incoming telephone calls are randomly monitored, in-office
interviews are monitored, and quality reviews are conducted. We believe
that these measures to protect the public from being given
misinformation will help to ensure that potential applicants are
provided timely and accurate information.
Changes to the Proposed Rules
In Secs. 404.633(b)(2)(ii) and 416.351(b)(2)(ii) of the final
rules, we are revising the phrase ``Before we may consider
establishing'' which was used in the corresponding sections of the
proposed rules. We are changing the phrase to ``Before we may
establish'' to conform to the wording of Secs. 404.633(b)(1)(ii) and
416.351(b)(1)(ii). This is simply an editorial change to make the
provisions of the final rules consistent. The final rules also reflect
a few other nonsubstantive changes to the proposed rules.
Regulatory Procedures
Executive Order 12866
We have consulted with the Office of Management and Budget (OMB)
and determined that these rules do not meet the criteria for a
significant regulatory action under E.O. 12866. Thus, they were not
subject to OMB review.
Paperwork Reduction Act
These regulations contain information collection requirements in
Secs. 404.633(f) and 416.351(f). We ordinarily would seek approval of
these requirements from OMB under the Paperwork Reduction Act. We are
not doing so in this situation because we already have clearance from
OMB to collect this information using form SSA-795 (OMB No. 0960-0045).
Public reporting burden for this collection of information is
estimated to average 15 minutes per response. This includes the time it
will take to read the instructions, gather the necessary facts, and
provide the information. We expect approximately 1,000 claimants or
applicants to complete form SSA-795 annually, and estimate the total
burden to be 250 hours. If you have any comments or suggestions on this
estimate, write to the Social Security Administration, Attn: Reports
Clearance Officer, 1-A-21 Operations Building, Baltimore, MD 21235, and
to the Office of Management and Budget, Paperwork Reduction Project
(0960-0045), Washington, DC 20503.
Regulatory Flexibility Act
We certify that these regulations will not have a significant
economic impact on a substantial number of small entities because they
affect only individuals. Therefore, a regulatory flexibility analysis
as provided in Pub. L. 96-354, the Regulatory Flexibility Act, is not
required.
(Catalog of Federal Domestic Assistance Program Nos. 93.802, Social
Security-Disability Insurance; 93.803, Social Security-Retirement
Insurance; 93.805, Social Security-Survivors Insurance; 93.807,
Supplemental Security Income).
List of Subjects
20 CFR Part 404
Administrative Practice and Procedure, Death benefits, Disability
benefits, Old-Age, Survivors and Disability Insurance, Reporting and
recordkeeping requirements.
20 CFR Part 416
Administrative Practice and Procedure, Aged, Blind, Disability
benefits, Public assistance programs, Reporting and recordkeeping
requirements, Supplemental Security Income (SSI).
Dated: June 28, 1994.
Shirley S. Chater,
Commissioner of Social Security.
Approved: August 11, 1994.
Donna E. Shalala,
Secretary of Health and Human Services.
For the reasons set out in the preamble, Parts 404 and 416 of
Chapter III of Title 20 of the Code of Federal Regulations are amended
as set forth below.
PART 404--FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE
(1950- )
20 CFR Part 404, Subparts G and J are amended as follows:
1. The authority citation for Subpart G continues to read as
follows:
Authority: Secs. 202(i), (j), (o), (p), and (r), 205(a),
216(i)(2), 223(b), 228(a), and 1102 of the Social Security Act; 42
U.S.C. 402(i), (j), (o), (p), and (r), 405(a), 416(i)(2), 423(b),
428(a), and 1302.
2. Section 404.612 is amended by redesignating paragraph (g) as
paragraph (h) and by adding a new paragraph (g) to read as follows:
Sec. 404.612 Who may sign an application.
* * * * *
(g) If a person who could receive benefits on the basis of a
``deemed'' filing date of an application under Sec. 404.633(b)(1)(i) or
(b)(2)(i) dies before an application for the benefits is filed, the
application may be signed by a person who would be qualified to receive
any benefits due the deceased person as explained in
Sec. 404.633(b)(1)(ii) and (b)(2)(ii).
* * * * *
3. Section 404.614 is amended by revising paragraph (a) to read as
follows:
Sec. 404.614 When an application or other form is considered filed.
(a) General rule. Except as otherwise provided in paragraph (b) of
this section and in Secs. 404.630 through 404.633 which relate to the
filing date of an application, an application for benefits, or a
written statement, request, or notice is filed on the day it is
received by an SSA employee at one of our offices or by an SSA employee
who is authorized to receive it at a place other than one of our
offices.
* * * * *
4. Section 404.615 is amended by adding paragraph (d) to read as
follows:
Sec. 404.615 Claimant must be alive when an application is filed.
* * * * *
(d) If a person who could receive benefits on the basis of a
``deemed'' filing date of an application under Sec. 404.633(b)(1)(i) or
(b)(2)(i) dies before an application for the benefits is filed, the
application may be signed by a person who would be qualified to receive
any benefits due the deceased person as explained in
Sec. 404.633(b)(1)(ii) and (b)(2)(ii).
5. A new undesignated heading and a new Sec. 404.633 are added to
read as follows:
Deemed Filing Date Based on Misinformation
Sec. 404.633 Deemed filing date in a case of misinformation.
(a) General. You may have considered applying for monthly benefits
for yourself or for another person, and you may have contacted us in
writing, by telephone or in person to inquire about filing an
application for these benefits. It is possible that in responding to
your inquiry, we may have given you misinformation about your
eligibility for such benefits, or the eligibility of the person on
whose behalf you were considering applying for benefits, which caused
you not to file an application at that time. If this happened, and
later an application for such benefits is filed with us, we may
establish an earlier filing date under this section.
Example 1: Mrs. Smith, a widow of an insured individual, contacts a
Social Security office when she reaches age 60 to inquire about
applying for widow's insurance benefits. She is told by an SSA employee
that she must be age 62 to be eligible for these benefits. This
information, which was incorrect, causes Mrs. Smith not to file an
application for benefits. When Mrs. Smith reaches age 62, she again
contacts a Social Security office to ask about filing for widow's
insurance benefits and learns that she could have received the benefits
at age 60. She files an application for these 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 which she received from an SSA
employee when she was age 60.
Example 2: Ms. Hill, a 22-year-old, is forced to stop work because
of illness. When she contacts a Social Security office to inquire about
applying for disability insurance benefits, she is told by an SSA
employee that she must have 20 quarters of coverage out of the last 40
calendar quarters to be insured for disability insurance benefits. The
employee fails to consider the special rules for insured status for
persons who become disabled before age 31 and, consequently, tells Ms.
Hill that she is not insured because she only has 16 quarters of
coverage. The misinformation causes Ms. Hill not to file an application
for disability insurance benefits. Because of her illness, she is
unable to return to work. A year later, Ms. Hill reads an article that
indicates that there are special rules for insured status for young
workers who become disabled. She again contacts a Social Security
office to inquire about benefits based on disability and learns that
she was misinformed earlier about her insured status. She files an
application for disability insurance 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 her earlier.
(b) Deemed filing date of an application based on misinformation.
Subject to the requirements and conditions in paragraphs (c) through
(g) of this section, we may establish a deemed filing date of an
application for monthly benefits under the following provisions.
(1)(i) If we determine that you failed to apply for monthly
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
entitlement to 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 Sec. 404.612 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 an application for the benefits
is filed with us by a person who would be qualified to receive any
benefits due you.
(2)(i) If you had authority under Sec. 404.612 to sign an
application for benefits for another person, and we determine that you
failed to apply for monthly 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
entitlement to 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 Sec. 404.612 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 an application
for the benefits is filed with us by a person who would be qualified to
receive any benefits due the deceased person.
(c) Requirements concerning the misinformation. We apply the
following requirements for purposes of paragraph (b) of this section.
(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. We will consider the
following evidence in making a determination under paragraph (b) of
this section.
(1) Preferred evidence. Preferred evidence is written evidence
which relates directly to your inquiry about your eligibility for
benefits or the eligibility of another person and which shows that we
gave you misinformation which caused you not to file an application.
Preferred evidence includes, but is not limited to, the following--
(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. In the absence of preferred evidence, we will
consider other evidence, including your statements about the alleged
misinformation, to determine whether we gave you misinformation which
caused you not to file an application. We will not find that we gave
you misinformation, however, based solely on your statements. Other
evidence which you provide or which we obtain must support your
statements. Evidence which we will consider includes, but is not
limited to, the following--
(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. Certain kinds of information will not be
considered satisfactory proof that we gave you misinformation which
caused you not to file an application. Examples of such information
include--
(1) General informational pamphlets that we issue to provide basic
program information;
(2) The Personal Earnings and Benefit Estimate Statement that is
based on an individual's reported and projected earnings 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. You may make a
claim for benefits based on misinformation at any time. Your claim must
contain information that will enable us to determine if we did provide
misinformation to you about your eligibility for benefits, or the
eligibility of a person on whose behalf you were considering applying
for benefits, which caused you not to file an application for the
benefits. Specifically, your claim must be in writing and it must
explain what information was provided; how, when and where it was
provided and by whom; and why the information caused you not to file an
application. If you give us this information, we will make a
determination on such a claim for benefits if all of the following
conditions are also met.
(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 entitled to benefits based on that
application;
(ii) An application on which we have made a previous final
determination or decision denying the benefits, but only if such
determination or decision is reopened under Sec. 404.988; 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
entitled to benefits or to 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 Sec. 404.988.
(g) Effective date. This section applies only to misinformation
which we provided after December 1982. In addition, this section is
effective only for benefits payable for months after December 1982.
6. The authority citation for Subpart J is revised to read as
follows:
Authority: Secs. 201(j), 205 (a), (b), (d)-(h), and (j), 221(d),
and 1102 of the Social Security Act; 31 U.S.C. 3720A; 42 U.S.C.
401(j), 405 (a), (b), (d)-(h), and (j), 421(d), and 1302.
7. Section 404.902 is amended by removing ``and'' following the
semicolon at the end of paragraph (t), by inserting a semicolon in
place of the period at the end of paragraph (u) and adding ``and''
following such semicolon, and by adding a new paragraph (v) to read as
follows:
Sec. 404.902 Administrative actions that are initial determinations.
* * * * *
(v) A claim for benefits under Sec. 404.633 based on alleged
misinformation.
8. Section 404.903 is amended by removing ``and'' following the
semicolon at the end of paragraph (l), by inserting semicolons in place
of the periods at the end of paragraphs (m), (n), (o), (p) and (q), by
adding ``and'' following such semicolon at the end of paragraph (q), by
inserting ``procedure (see'' in place of ``procedure. (See'' in
paragraph (p), by inserting ``payee (see'' in place of ``payee. (See''
in paragraph (q), and by adding a new paragraph (r) to read as follows:
Sec. 404.903 Administrative actions that are not initial
determinations.
* * * * *
(r) Declining under Sec. 404.633(f) to make a determination on a
claim for benefits based on alleged misinformation because one or more
of the conditions specified in Sec. 404.633(f) are not met.
PART 416--SUPPLEMENTAL SECURITY INCOME FOR THE AGED, BLIND, AND
DISABLED
20 CFR Part 416, Subparts C and N are amended as follows:
1. The authority citation for Subpart C of Part 416 continues to
read as follows:
Authority: Secs. 1102, 1611, and 1631 (a), (d), and (e) of the
Social Security Act; 42 U.S.C. 1302, 1382, and 1383 (a), (d), and
(e).
2. Section 416.310 is amended by revising paragraph (d) to read as
follows:
Sec. 416.310 What makes an application a claim for benefits.
* * * * *
(d) The claimant must be alive at the time the application is
filed. See Secs. 416.340, 416.345, and 416.351 for exceptions.
3. Section 416.325 is amended by adding a new paragraph (b)(3) to
read as follows:
Sec. 416.325 When an application is considered filed.
* * * * *
(b) * * *
(3) We will establish a ``deemed'' filing date of an application in
a case of misinformation under the conditions described in
Sec. 416.351. The filing date of the application will be a date
determined under Sec. 416.351(b).
4. A new undesignated heading and a new Sec. 416.351 are added to
read as follows:
Deemed Filing Date Based on Misinformation
Sec. 416.351 Deemed filing date in a case of misinformation.
(a) General. You may have considered applying for SSI benefits for
yourself or for another person, and you may have contacted us in
writing, by telephone or in person to inquire about filing an
application for these benefits. It is possible that in responding to
your inquiry, we may have given you misinformation about your
eligibility for such benefits, or the eligibility of the person on
whose behalf you were considering applying for benefits, which caused
you not to file an application at that time. If this happened, and
later an application for such benefits is filed with us, we may
establish an earlier filing date under this section.
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.
Subject to the requirements and conditions in paragraphs (c) through
(g) of this section, we may establish a deemed filing date of an
application for SSI benefits under the following provisions.
(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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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. We apply the
following requirements for purposes of paragraph (b) of this section.
(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. We will consider the
following evidence in making a determination under paragraph (b) of
this section.
(1) Preferred evidence. Preferred evidence is written evidence
which relates directly to your inquiry about your eligibility for
benefits or the eligibility of another person and which shows that we
gave you misinformation which caused you not to file an application.
Preferred evidence includes, but is not limited to, the following--
(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. In the absence of preferred evidence, we will
consider other evidence, including your statements about the alleged
misinformation, to determine whether we gave you misinformation which
caused you not to file an application. We will not find that we gave
you misinformation, however, based solely on your statements. Other
evidence which you provide or which we obtain must support your
statements. Evidence which we will consider includes, but is not
limited to, the following--
(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. Certain kinds of information will not be
considered satisfactory proof that we gave you misinformation which
caused you not to file an application. Examples of such information
include--
(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. You may make a
claim for benefits based on misinformation at any time. Your claim must
contain information that will enable us to determine if we did provide
misinformation to you about your eligibility for SSI benefits, or the
eligibility of a person on whose behalf you were considering applying
for benefits, which caused you not to file an application for the
benefits. Specifically, your claim must be in writing and it must
explain what information was provided; how, when, and where it was
provided and by whom; and why the information caused you not to file an
application. If you give us this information, we will make a
determination on such a claim for benefits if all of the following
conditions are also met.
(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 Sec. 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 Sec. 416.1488.
(g) Effective date. This section applies only to misinformation
which we provided on or after December 19, 1989. In addition, this
section is effective only for benefits payable for months after
December 1989.
5. The authority citation for Subpart N continues to read as
follows:
Authority: Secs. 1102, 1631, and 1633 of the Social Security
Act; 42 U.S.C. 1302, 1383, and 1383b.
6. Section 416.1402 is amended by removing ``and'' following the
semicolon at the end of paragraph (k), by inserting a semicolon in
place of the period at the end of paragraph (l) and adding ``and''
following such semicolon, and by adding a new paragraph (m) to read as
follows:
Sec. 416.1402 Administrative actions that are initial determinations.
* * * * *
(m) A claim for benefits under Sec. 416.351 based on alleged
misinformation.
7. Section 416.1403 is amended by removing ``and'' following the
semicolon at the end of paragraph (a)(7), by inserting semicolons in
place of the periods at the end of paragraphs (a)(2), (a)(8), (a)(9),
(a)(10) and (a)(11), by adding ``and'' following such semicolon at the
end of paragraph (a)(11), by inserting ``payee (see'' in place of
``payee. (See'' in paragraph (a)(11), and by adding a new paragraph
(a)(12) to read as follows:
Sec. 416.1403 Administrative actions that are not initial
determinations.
(a) * * *
(12) Declining under Sec. 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 Sec. 416.351(f) are not met;
* * * * *
[FR Doc. 94-20519 Filed 8-30-94; 8:45 am]
BILLING CODE 4190-29-P