[Federal Register Volume 85, Number 167 (Thursday, August 27, 2020)]
[Rules and Regulations]
[Pages 52909-52915]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-18834]
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SOCIAL SECURITY ADMINISTRATION
20 CFR Parts 404, 408, and 416
[Docket No. SSA-2020-0045]
RIN 0960-AI51
Waiver of Recovery of Certain Overpayment Debts Accruing During
the COVID-19 Pandemic Period
AGENCY: Social Security Administration.
ACTION: Interim final rule; request for comments.
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SUMMARY: We are issuing this interim final rule with request for
comments to revise our regulations on how we waive the recovery of
certain overpayment debts. We will apply this interim final rule when
an affected beneficiary requests waiver of certain overpayment debts
that accrued during a portion of the COVID-19 pandemic period. Under
this rule, we may waive recovery of these overpayment debts using a
streamlined internal process. Since the overpayment debts at issue
occurred because of the circumstances surrounding the COVID-19 national
public health emergency, we can assume that these debts are not the
fault of the affected beneficiaries due directly to our strategic
decision to reprioritize workloads to stop manually processing certain
actions, and it would be against equity and good conscience to collect
them. In particular, qualifying overpayment debts include those
incurred between March 1 to September 30, 2020 that we did not manually
process as a result of our cession of certain activities, and that we
identified by December 31. We expect that this interim final rule will
allow us to maintain effective stewardship of the Social Security
programs, while simultaneously ensuring that affected beneficiaries are
not disadvantaged by our actions during this unprecedented national
public health emergency.
DATES: Effective date: This interim final rule is effective on August
27, 2020.
Comment date: We invite written comments. Comments must be
submitted on or before October 26, 2020.
ADDRESSES: You may submit comments by any one of three methods--
internet, fax, or mail. Do not submit the same comments multiple times
or by more than one method. Regardless of which method you choose,
please state that your comments refer to Docket No. SSA-2020-0045 so
that we may associate your comments with the correct rule.
Caution: You should be careful to include in your comments only
information that you wish to make publicly available. We strongly urge
you not to include in your comments any personal information, such as
Social Security numbers or medical information.
1. Internet: We strongly recommend that you submit your comments
via the internet. Please visit the Federal eRulemaking portal at http://www.regulations.gov. Use the search function to find docket number
SSA-2020-0045. The system will issue a tracking number to confirm your
submission. You will not be able to view your comment immediately
because we must post each comment manually. It may take up to a week
for your comments to be viewable.
2. Fax: Fax comments to (410) 966-2830.
3. Mail: Mail your comments to the Office of Regulations and
Reports Clearance, Social Security Administration, 3100 West High Rise
Building, 6401 Security Boulevard, Baltimore, Maryland 21235-6401.
Comments are available for public viewing on the Federal
eRulemaking portal at http://www.regulations.gov or in person, during
regular business hours, by arranging with the contact person identified
in FOR FURTHER INFORMATION CONTACT.
FOR FURTHER INFORMATION CONTACT: Edward Sosar, Office of Regulations
and Reports Clearance, Social Security Administration, 6401 Security
Boulevard, Baltimore, MD 21235-6401, (410) 966-2341. For information on
eligibility or filing for benefits, call our national toll-free number,
1-800-772-1213 or TTY 1-800-325-0778, or visit our internet site,
Social Security Online, at http://www.socialsecurity.gov.
SUPPLEMENTARY INFORMATION:
Background
Beginning on March 17, 2020, we took unprecedented measures to
protect both the public and our employees during the COVID-19 national
public health emergency. These measures included closing our more than
1,200 field offices to in-person service, maximizing our employees' use
of telework, and reprioritizing certain manual workloads to stop
actions that could, under normal circumstances, have resulted in a
reduction, suspension, or termination of benefits or payments under
titles II, VIII, or XVI of the Social Security Act (Act).
For example, we suspended the completion of title XVI
redeterminations, a periodic review of an individual's or couple's non-
medical eligibility factors such as income, resources, and living
arrangement, during which our staff ensures that a recipient or couple
is still eligible for Supplemental Security Income (SSI) payments and
is receiving the correct amount of SSI payments.\1\ Moreover, in some
instances, we may have had information in our files to indicate an
individual's benefits or payments may not have been correct, but we did
not take action on that information to protect beneficiaries' income
and healthcare coverage during the COVID-19 pandemic period.\2\ Because
we suspended certain actions due to the pandemic, we did not establish
some overpayment debts as timely as we would have if our offices had
been operating normally. We note that we would have processed manually
the debts impacted by this action. Due to our focus on prioritizing
other more
[[Page 52910]]
urgent workloads and reducing stress on the people we serve during the
beginning of the pandemic, we did not take action on these types of
overpayment debts. For example, some of these overpayment debts consist
of routine monthly reports of changes such as income, resources, and
living arrangements that would otherwise result in a reduction,
suspension, or termination of benefits. Under normal circumstances, the
agency would manually process the changes and benefits would be timely
reduced. However, by holding these periodic reports of changes, we have
created overpayments within the pandemic period, and therefore the
resulting overpayment debts are subject to relief under this interim
final rule.
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\1\ See 20 CFR 416.204.
\2\ For the purposes of this rule, whenever we cite the
``pandemic period,'' we are referring only to the established period
of March 1, 2020 through September 30, 2020.
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In contrast, overpayment debts that we identified through our
automated processes, such as computer interfaces with the Department of
Veteran Affairs (VA) and (for dually entitled SSI recipients) Social
Security benefit systems, were not affected by the suspension of
certain actions during the pandemic period, even if beneficiaries
incurred the debts during the pandemic period and in the same manner as
some in the manually processed group. Therefore, these overpayment
debts will be subject to our existing overpayment debt waiver process.
For example, an SSI recipient failed to timely report receipt of VA
compensation (not based on need) that began in March 2020, during the
pandemic period. In July 2020, we identified the receipt VA
compensation through our automated processes and updated to the SSI
record, creating an overpayment in the pandemic period. In this
example, the overpayment debt will be subject to our existing
overpayment debt waiver process.
Beginning on August 31, 2020, we intend to resume workloads that we
suspended beginning in mid-March 2020. As we process the suspended
workloads, we anticipate identifying a number of overpayments that we
would have identified and acted on earlier had it not been for our
response to the COVID-19 pandemic. Because of our delay in acting, it
is probable that the resulting overpayment debts may be larger in
amount and greater in number than they would otherwise have been
through no fault of the affected beneficiaries.
Overpayment debts incurred during the pandemic period between March
1, 2020 and September 30, 2020 may be directly the result of the COVID-
19 national public health emergency and our unprecedented response to
it: Our suspension of manually processing and collecting certain
overpayment debts. The combination of the pandemic and our necessary
response to it has created a set of circumstances unlike any other in
the history of our programs. This unique situation affects a number of
our beneficiaries and, more importantly, affects them in a uniformly
detrimental manner primarily due to our reprioritizing workloads to
suspend the manual processing of certain actions.
Because of the unique nature of the COVID-19 pandemic, our
unprecedented response to it, and its uniform impact on this group of
beneficiaries, we are revising our rules to use a simplified waiver
process for affected beneficiaries who request waiver of recovery of a
qualifying overpayment debt. A qualifying overpayment debt is one that
accrued at any point between March 1, 2020 through September 30, 2020
and was directly impacted by our actions to defer and suspend certain
workloads between March 17, 2020 and August 31, 2020. We designed this
simplified waiver process to handle requests for waiver of overpayment
debts efficiently and fairly, and to preserve our agency resources for
mission-critical workloads. By implementing a streamlined process for
this subset of overpayment debts, we can more efficiently
administratively process qualifying overpayment debts and provide
relief in a timely fashion to those directly impacted by our actions.
Summary of the Change
For qualifying overpayment debts--that is, those that that relate
to debts incurred during the period from March 1, 2020, through
September 30, 2020 (the ``pandemic period''); that resulted because of
our decision to defer action and suspend certain workloads; for which
the beneficiary requests waiver and that we identify by December 31,
2020--we will:
Presume overpaid individuals are without fault in having
caused the qualifying overpayment debt;
determine that recovery of the portion of the qualifying
overpayment debt incurred during the pandemic period would be against
equity and good conscience; and
waive recovery of the portion of a qualifying overpayment
debt incurred during the pandemic period.
For purposes of this interim final rule, we ``identify'' an
overpayment debt when we discover the overpayment debt and initiate
action to recover it.
We will not apply this streamlined waiver process to overpayment
debts resulting from fraud or similar fault or involving misuse of
benefits by a representative payee.
As we previously stated, actions that we took based on our
automated processes will not qualify for this streamlined waiver
process. In such cases, since we were not the cause of a delay in
overpayment debts being assessed, and since we did not thus cause an
increase in the amount of the overpayment debt, we are not including
such actions in this special streamlined waiver process. However, in
these cases, beneficiaries may request waiver of recovery of the
overpayment debts through our existing processes, and we will develop
the financial and other information needed to determine whether the
individual qualifies for waiver under our existing regulations.\3\
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\3\ See 20 CFR 404.506(c), 408.910, and 416.550.
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We chose these dates for several reasons. SSA began its pandemic
response activities in mid-March 2020, but we are using March 1, 2020,
as the start date for the waiver period, as we assess actions on a
monthly basis. Accordingly, if SSA stopped certain actions in mid-March
2020, it actually affects payments for the entire month of March 2020.
We are resuming normal workload processing on August 31, but the
systems cutoff date to affect September payments occurs the third week
of August. Since the agency will resume workload processing on August
31, overpayments will have already accrued for the month of September,
so it is appropriate for the period of this regulation's waiver to
extend through September 30.
If the overpayment debt relates to a period that began before March
1, 2020 or after September 30, 2020 and includes all or part of the
pandemic period, only the portion of the qualifying overpayment debt
attributable to months during the pandemic period qualifies for the
streamlined waiver process under this interim final rule. For the
remainder of the overpayment debt, the individual retains the right to
appeal our determination regarding the fact and amount of the
overpayment, or request waiver of recovery of the overpayment debt
under our existing regulations.
Additionally, auxiliary beneficiaries under our title II programs
may also be eligible for streamlined waiver of overpayment debts during
the pandemic period, even if the primary beneficiary incurred an
overpayment debt that is not eligible for streamlined waiver. For
example, if a primary beneficiary incurred an overpayment debt due to
what is found to be fraud, that person would not be eligible for a
streamlined waiver under this interim final rule. However, if that
person had an auxiliary
[[Page 52911]]
beneficiary, the auxiliary beneficiary, unlike the primary beneficiary,
may be eligible for this overpayment waiver.
Finally, under this interim final rule, we will not issue refunds
outside of our normal debt waiver processes for overpayment debt
recoveries that occurred during the pandemic period. If a beneficiary
or recipient had benefits withheld during the pandemic period, or if we
have already begun to withhold benefits due to an overpayment debt that
accrued in part or in whole during the pandemic period, we will not
issue refunds under this interim final rule, because these actions are
not within the scope of this interim final rule. Those beneficiaries
had their overpayment debts and related waiver requests handled in the
usual course of business, and we did not cause or increase the
overpayment debt by our decision to suspend processing of certain
workloads.
This interim final rule will apply to qualifying overpayment debts
that we identify by December 31, 2020. We estimate that a December 31,
2020 cut-off will allow us sufficient time to identify all the
qualifying overpayments that we held during the pandemic period. When
we review a beneficiary's case and find that it occurred during the
pandemic period, we will annotate it with a special code. That code
will help ensure that we know this case should be evaluated under the
interim final rule.
An example of how this would work in practice: In April 2020, we
received evidence reflecting an increase in income for an SSI
beneficiary, and we determined that the beneficiary's payments should
in fact be lower based on the updated income information. However, we
did not process the actual change in payment from April 2020 until the
present, because we had suspended such actions during the pandemic
period. Because we held this case until we resumed processing such
actions in September 2020, and it was through no fault of the
beneficiary's that they received overpayment amounts during the
pandemic period, it would be considered a qualifying overpayment debt
under the interim final rule.
An example of a situation that would not apply under the interim
final rule: If we received evidence in January 2021 reflecting an
increase in income for an SSI beneficiary that first began in April
2020, this SSI beneficiary would not qualify for the special waiver.
Because we were not working on the case throughout the pandemic period
and, accordingly, we were not holding our processing of the increased
income amount, our actions were not responsible for the accrual of
overpayment debt, so the debt does not qualify for this special waiver
process. As always, of course, the beneficiary may still be considered
for a waiver under our existing waiver process.
We chose to apply the streamlined waiver process to qualifying
overpayment debts we identify by December 31, 2020 to fulfill of our
obligation under the Act to ensure effective and responsible
stewardship of the Social Security programs. Including the time
limitation appropriately balances our stewardship obligation with the
needs of beneficiaries who rely on our programs. We also chose the
December 31, 2020 cutoff date because it limits the amount of time we
have to apply two separate overpayment debt business processes;
extending the period indefinitely would exacerbate that operational
issue. We also gain administrative efficiencies by applying a single
waiver of overpayment debt recovery rule to the qualifying subset of
all incurred payments during the period, and the effect of those
efficiencies is lessened when we follow multiple processes for an
extended period. We need to operate efficiently because we expect--due
to resuming the workloads we suspended in March 2020--to have to
process a significantly higher amount of work over the coming months
than comparable periods in the past. In light of these reasons, we
believe the appropriate cutoff date for identifying qualifying
overpayment debts is December 31, 2020.
Effective August 31, 2020, language in our overpayment notices will
direct beneficiaries to contact their local Field Office with any
questions about their overpayment, or to request an overpayment waiver.
Field Office technicians will review the beneficiary's record to
determine if the overpayment qualifies for a streamlined waiver, and if
so, will document the request for waiver on an electronic Report of
Contact (SSA-5002) and attest to the beneficiary's signature. Under the
streamlined process, the beneficiary will not be required to complete
the full form SSA-632 or provide supporting information about his or
her income and expenses to make the waiver determination for the
qualified debt. SSA will terminate the language in the overpayment
notices effective December 31, 2020.
Difference From Current Policy
Under sections 204(a) and 1631(b)(1)(A) of the Act,\4\ the
Commissioner ``shall'' seek repayment of overpayment debts, by one or
more of the methods listed in each section, unless waiver of recovery
of the overpayment debt is appropriate. Consequently, we must seek
repayments of overpayment debts made under both title II and title XVI
of the Act, unless the circumstances of the overpaid individual satisfy
the waiver criteria set out in sections 204(b) or 1631(b)(1)(B) of the
Act.\5\ Under sections 204(b) and 1631(b)(1)(B) of the Act, we waive
recovery of an overpayment debt when the overpaid individual is without
fault in causing the overpayment debt and adjustment or recovery would
defeat the purpose of the statute, or would be against equity and good
conscience, or, for title XVI overpayment debts only, would impede the
efficient or effective administration of title XVI. These statutory
criteria are broadly worded and provide us with considerable latitude
to determine when it would be appropriate for us to waive recovery of
an overpayment debt and to determine the process that we use to waive
recovery of overpayment debts.
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\4\ 42 U.S.C. 404(a) and 1383(b)(1)(A).
\5\ 42 U.S.C. 404(b) and 1383(b)(1)(B).
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Under the current regulations and our internal agency instructions,
before we can waive recovery of an overpayment debt, we must document
any request for waiver, and develop any allegations an individual
raises in the waiver request.\6\ We must obtain sufficient information
to clarify issues of fault, and then often consider the individual's
ability to repay and issues of equity, each of which may require the
overpaid individual to submit additional documentation as evidence. We
must review the evidence and first determine whether the individual is
without fault in causing the overpayment and meets at least one of the
other requirements for waiver specified in the Act and regulations.
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\6\ See 20 CFR 404.506(c), 408.910, and 416.550 and POMS GN
02201.021, GN 02201.021, GN 02201.023, GN 02250.230, GN 02250.244,
GN 02250.400, GN 02250.255, SI 02260.001, SI 02260.005, SI
02260.010, SI 02260.020, and VB 02205.310SI 02260.025.
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The other requirements for waiver shared by titles II, VIII, XVI
are that recovery would defeat the purpose of the program or be against
equity and good conscience. To determine if recovery of an overpayment
debt is against equity and good conscience, our current regulations
require us to develop information that an individual changed his or her
position for the worse or relinquished a valuable right because of
reliance upon a notice that a payment would be made or because of
[[Page 52912]]
the overpayment debt itself.\7\ Generally, when an individual requests
waiver, we request and review information the individual provided us in
order to determine whether the individual is without fault in causing
the overpayment and that recovery would either defeat the purpose of
the program or be against equity and conscience.\8\ If we are unable to
grant a waiver based upon review of the information available, we offer
the person the opportunity for a file review so that the individual can
review the file and applicable law and regulations with one of our
representatives, who is prepared to answer questions.\9\ Individuals
also have the right to have a personal conference, where the person may
offer further explanation and documentation to a decision maker.\10\
This interim final rule does not change the formal aspects of
requesting a waiver for overpayment debt, insofar as the beneficiary
will continue to be able to contact SSA to initiate the process, the
same waiver request application will be used, and when waivers are
issued they will be communicated to beneficiaries in the same manner.
However, when a beneficiary calls their local field office to request a
waiver, if the overpayment is covered under this interim final rule,
the agency will ask the beneficiary to provide less information than is
normally required to adjudicate an overpayment waiver decision, such as
information about a beneficiary's income, expenses, assets, and use of
overpayment funds. Beneficiaries covered under this interim final rule
should normally expect to be able to provide the necessary information
over the phone while guided by our employees and without doing anything
differently in advance of the call.
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\7\ See 20 CFR 404.509; 408.914, 416.554 and POMS GN 02250.150,
and SI 02260.025, VB 02005.330.
\8\ See 20 CFR 404.506 and 416.557.
\9\ 20 CFR 404.506(c) and (d) and 416.577(a) and (b); POMS GN
02270.009, SI 02260.006, VB 02005.360.
\10\ See 20 CFR 404.506(e) & (f); 416.557(c) and (d); and POMS
GN 02270.013, SI 02260.006, VB 02005.360.
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Under this interim final rule, we will use a streamlined waiver
process for qualifying overpayment debts. Qualifying overpayment debts
include debts accrued during the pandemic period because of our
decision to defer action and suspend certain workloads that would have
otherwise allowed us to identify and take appropriate action on the
overpayments. Under this interim final rule, we will presume that the
overpaid individual was without fault in causing the qualifying
overpayment debt, subject to limited exclusions discussed above for
overpayment debts that resulted from fraud or similar fault or misuse
of benefits by a representative payee. Therefore, due to the no fault
presumption, we will not fully develop the issue of fault. If we
presume that the overpaid individual is without fault, we will
determine that recovery of the overpayment debt would be against equity
and good conscience without requiring the beneficiary or recipient to
specifically show that he or she relinquished a valuable right or
changed position, in reliance on the overpayment debt, for the worse.
For purposes of this interim final rule, we will apply a broad concept
of fairness when we find that recovery of the overpayment debt would be
against equity and good conscience.
Regulatory Procedures
Justification for Issuing a Rule Without Notice and Comment
We follow the Administrative Procedure Act (APA) rulemaking
procedures specified in 5 U.S.C. 553 when we develop regulations.
Generally, the APA requires that an agency provide prior notice and
opportunity for public comment before issuing a final rule. The APA
provides exceptions to its notice and public comment procedures when an
agency finds there is good cause for dispensing with such procedures
because they are impracticable, unnecessary, or contrary to the public
interest (5 U.S.C. 553(b)(B)).
We find that there is good cause under 5 U.S.C. 553(b)(B) to issue
this interim final rule without prior public comment because prior
public comment is impracticable and contrary to the public interest. As
discussed above, this interim final rule will allow us to presume that
certain individuals whose overpayment debts accrued during the March 1-
September 30, 2020 COVID-19 pandemic period and that we identify by
December 31 2020 were without fault in causing their overpayment debts
because of our decision to suspend certain workloads and stop certain
actions temporarily. The rule also allows us to apply a streamlined
waiver process to decide waiver requests from these individuals. In the
absence of this rule, our existing regulations would require us to
continue to fully develop requests for waiver of these overpayment
debts.
We find that public comment is impracticable because the delay
associated with the public comment process would impede our ability to
resume more normal operations. The delay associated with the public
comment process would also impede our ability to operate because it
would require us to continue to use our administrative resources to
develop overpayment debt waiver requests for overpayments that we can
readily presume were not the fault of the affected individuals.
Applying our normal overpayment debt processes to these overpayment
debts--rather than the streamlined processes in the interim final
rule--would prevent us from using those administrative resources to
perform other time sensitive and mission critical workloads that we
deferred during the pandemic period. Enhancing our ability to perform
these other critical workloads by forgoing public comment on this rule
will allow us to begin to operate more normally and serve the interests
of all beneficiaries, who are entitled to timely and responsive service
from us, even during these unprecedented circumstances.
We also find that delaying this interim final rule to obtain public
comment would be contrary to the public interest. A delay in
implementation would burden the affected beneficiaries, who will
receive notices of overpayment debts when we begin resuming normal
workloads, and require them to prove the requirements for waiver by
submitting the necessary evidence for us to consider. The delay
associated with a public comment period would also be contrary to the
public interest because it would reduce the effectiveness of the rule
and the streamlined waiver process we are establishing. We are
finalizing this rule before we resume the workloads that we suspended
in March 2020 and begin assessing overpayment debts incurred during the
pandemic period. If we delayed resuming our suspended workloads in
order to obtain public comment on the rule, beneficiaries may incur a
greater amount of overpayment debt than they would under the
streamlined waiver process we are establishing. Prior public comment
would therefore defeat the purpose of this rule, which is to provide
effective and timely relief and ensure economic security to overpaid
individuals affected by our actions to reprioritize our workloads to
stop certain actions during the pandemic period. We thus find that it
would be contrary to the public interest to obtain public comment and
delay our ability to waive these overpayment debts, which were not the
fault of the affected individuals.
In addition, for the reasons cited above, we find good cause for
dispensing with the 30-day delay in the effective date of this rule
provided for
[[Page 52913]]
in 5 U.S.C. 553(d)(3). So, we are making this interim final rule
effective upon publication.
Although we are making this interim final rule effective on
publication, we invite public comment on all aspects of the interim
final rule. We will consider any substantive comments we receive within
60 days of the publication of this interim final rule and will issue a
revised final rule if necessary after we consider the public comments.
Executive Order 12866, as Supplemented by Executive Order 13563
We have consulted with the Office of Management and Budget (OMB)
and determined that this interim final rule meets the criteria for a
significant regulatory action under Executive Order 12866 and is
subject to OMB review.
Anticipated Costs to Our Programs
Our Office of the Chief Actuary estimates that implementing this
interim final rule will result in a reduction in recovered overpayment
debts of approximately $238 million over FYs 2020-30, $157 million for
the OASDI program and $80 million for the Federal SSI program.
Anticipated Administrative Savings to SSA in FY 2021
Our Office of Budget, Finance, and Management estimates that this
change will result in net administrative savings to the agency of up to
220 workyears and $20 million to resume processing actions for these
overpayment debts. To arrive at our estimate, we estimate an additional
5 minutes per action resumed to identify whether the overpayment falls
within the COVID period for purposes of the final rule, offset by
savings of 30 minutes to waive the overpayments for those requesting
relief. We expect to realize the entirety of the net savings in FY
2021.
Executive Order 13132 (Federalism)
We analyzed this rule in accordance with the principles and
criteria established by Executive Order 13132, and determined that the
interim final rule will not have sufficient federalism implications to
warrant the preparation of a federalism assessment. We also determined
that this interim final rule will not preempt any State law or State
regulation or affect the States' abilities to discharge traditional
State governmental functions.
Regulatory Flexibility Act
We certify that this interim final rule will not have a significant
economic impact on a substantial number of small entities, because it
affects only individuals. Therefore, a Regulatory Flexibility Act, as
amended, does not require us to prepare a regulatory flexibility
analysis.
E.O. 13771
This interim final rule is a deregulatory action, because it
results in administrative cost savings, as well as burden reduction for
the public.
Paperwork Reduction Act (PRA)
We maintain existing OMB PRA-approved information collection tools
relating to this interim final rule: The Request for Waiver of
Overpayment Recovery (Form SSA-632-BK, OMB No. 0960-0037), which
respondents use to request a waiver; and the Important Information
About Your Appeal, Waiver Rights, and Repayment (Form SSA-3105, OMB No.
0960-0779), which respondents use to inform us that they may want to
request an appeal or request a change in repayment rate of an
overpayment. We do not plan to make any revisions to these forms due to
this interim final rule.
While we do not plan to make any revisions to these forms, we will
not need to ask all of the information on form SSA-632 (OMB No. 0960-
0037) from respondents who contact us regarding overpayment waivers,
and whose overpayments ultimately prove to be affected by this rule. As
discussed in the preamble, SSA expects that for respondents covered
under this IFR, the agency will not ask respondents questions regarding
income, assets, expenses, or information about receiving the
overpayment that may normally be pertinent for adjudicating a request
for waiving overpayment debt. In a typical change to an information
collection, we would provide a different, reduced burden estimate for
these respondents. However, the burden range already reported in the
OMB-approved information collection request (ICR) is so wide--5 to 120
minutes--that we see no need to calculate a new burden, as the
respondents affected by this regulation would certainly fall within
that range. In addition, while this interim final rule allows us to use
a streamlined waiver for qualifying overpayment debts, we do not
anticipate receiving, on an annual basis, more waiver requests in total
than we normally receive. Finally, because we do not know the number of
affected respondents (having not yet examined the universe of possible
cases), that is also not a factor that would result in burden
recalculation. Ultimately, though, because the burden we already report
for the 0960-0037 ICR includes all of those respondents anyway, that
too does not require a new burden calculation.
Accordingly, we are not soliciting public comment under the PRA on
these ICs. However, upon publication of this interim final rule, we
will submit a non-substantive change request to OMB (viewable to the
public) to document the temporary, short-term, COVID-related change in
criteria we will use for affected respondents.
(Catalog of Federal Domestic Assistance Program Nos. 96.001, Social
Security--Disability Insurance; 96.002, Social Security--Retirement
Insurance; 96.004, Social Security--Survivors Insurance; and 96.006,
Supplemental Security Income)
List of Subjects
20 CFR Part 404
Administrative practice and procedure, Aged, Alimony, Blind,
Disability benefits, Government employees, Income taxes, Individuals
with disabilities, Insurance, Investigations, Penalties, Railroad
retirement, Reporting and recordkeeping requirements, Social security,
Travel and transportation expenses, Treaties, Veterans, Vocational
rehabilitation.
20 CFR Part 408
Administrative practice and procedure, Aged, Reporting and
recordkeeping requirements, Social security, Supplemental Security
Income (SSI), Veterans.
20 CFR Part 416
Administrative practice and procedure, Aged, Alcoholism, Blind,
Disability benefits, Drug abuse, Investigations, Medicaid, Penalties,
Public assistance programs, Reporting and recordkeeping requirements,
Social security, Supplemental Security Income (SSI), Travel and
transportation expenses, Vocational rehabilitation.
The Commissioner of Social Security, Andrew Saul, having reviewed
and approved this document, is delegating the authority to
electronically sign this document to Faye I. Lipsky, who is the primary
Federal Register Liaison for the Social Security Administration, for
purposes of publication in the Federal Register.
Faye I. Lipsky,
Federal Register Liaison, Office of Legislative and Congressional
Affairs, Social Security Administration.
For the reasons stated in the preamble, we are amending subpart F
of part 404, subpart I of part 408, and subpart E of part 416 of title
20 of the Code of Federal Regulations as set forth below:
[[Page 52914]]
PART 404--FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE
(1950--)
Subpart F--Overpayments, Underpayments, Waiver of Adjustment or
Recovery of Overpayments, and Liability of a Certifying Officer
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1. The authority citation for subpart F of part 404 continues to read
as follows:
Authority: Secs. 204, 205(a), 702(a)(5), and 1147 of the Social
Security Act (42 U.S.C. 404, 405(a), 902(a)(5), and 1320b-17); 31
U.S.C. 3711; 31 U.S.C. 3716; 31 U.S.C. 3720A.
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2. Amend Sec. 404.501 by adding a sentence after the second sentence
in paragraph (a) introductory text to read as follows:
Sec. 404.501 General applicability of section 204 of the Act.
(a) * * * The term pandemic period as used throughout this subpart
for the purposes of the waiver authority in Sec. 404.506(b) refers
exclusively to the period of time beginning on March 1, 2020, and
ending on September 30, 2020. * * *
* * * * *
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3. Amend Sec. 404.506 by:
0
a. Redesignating paragraphs (b) through (h) as paragraphs (c) through
(i); and
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b. Adding a new paragraph (b).
The addition reads as follows:
Sec. 404.506 When waiver may be applied and how to process the
request.
* * * * *
(b) We will apply the procedures in this paragraph (b) when an
individual requests waiver of all or part of a qualifying overpayment.
(1) For purposes of this paragraph (b), a qualifying overpayment is
one that accrued during the pandemic period (see Sec. 404.501(a))
because of the actions that we took in response to the COVID-19
national public health emergency, including the suspension of certain
of our manual workloads that would have processed actions identifying
and stopping certain overpayments.
(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 Sec.
404.507) 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 Sec. 404.2041).
(3) If we determine under paragraph (b)(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 (b)(3) only, ``against equity and good
conscience'' is not limited to the meaning used in Sec. 404.509 but
means a broad concept of fairness that takes into account all of the
facts and circumstances of the case.
(4) If we determine that a primary beneficiary is not without fault
with respect to a qualifying overpayment under paragraph (b)(2) of this
section, because it was caused by fraud or similar fault or because of
representative payee misuse, we may still find that any auxiliary
beneficiaries on the primary beneficiary's record are eligible for
waiver of recovery of the qualifying overpayment under this paragraph
(b). If an auxiliary beneficiary requests waiver of a qualifying
overpayment in accordance with this paragraph (b), we will waive
recovery of the overpayment if the auxiliary beneficiary meets all of
the requirements of this paragraph (b).
(5) The provisions of this paragraph (b) will apply to a qualifying
overpayment identified by December 31, 2020.
* * * * *
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4. Amend Sec. 404.507 by adding a sentence after the third sentence of
the introductory text to read as follows:
Sec. 404.507 Fault.
* * * Notwithstanding any other provision of this subpart, we will
not determine any overpaid individual to be at fault in causing a
qualifying overpayment (see Sec. 404.506(b)(1)) unless we determine
that the qualifying overpayment made to a beneficiary or a
representative payee during the pandemic period (see Sec. 404.501) was
the result of fraud or similar fault or involved misuse of benefits by
a representative payee (see Sec. 404.2041).* * *
* * * * *
PART 408--SPECIAL BENEFITS FOR CERTAIN WORLD WAR II VETERANS
Subpart I--Underpayments and Overpayments
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5. The authority citation for subpart I of part 408 continues to read
as follows:
Authority: Secs. 702(a)(5), 808, and 1147 of the Social Security
Act (42 U.S.C. 902(a)(5), 1008, and 1320b-17); 31 U.S.C. 3716; 31
U.S.C. 3720A.
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6. Amend Sec. 408.902 by:
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a. Designating the paragraph as paragraph (a); and
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b. Adding paragraph (b).
The addition read as follows:
Sec. 408.902 What is an overpayment?
* * * * *
(b) As used in this subpart, the term pandemic period for the
purposes of the waiver authority in Sec. 408.910 refers exclusively to
the period of time beginning on March 1, 2020, and ending on September
30, 2020.
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7. Amend Sec. 408.910 by adding paragraph (c) to read as follows:
Sec. 408.910 When will we waive recovery of an SVB overpayment?
* * * * *
(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 (see Sec. 408.902(b))
because of the actions that we took in response to the COVID-19
national public health emergency, including the suspension of certain
of our manual workloads that would have processed actions identifying
and stopping certain overpayments.
(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 Sec.
408.912) unless we determine that the qualifying overpayment made to a
beneficiary or a representative payee was the result of fraud or
similar fault or involved misuse of benefits by a representative payee
(see Sec. 408.641).
(3) If we determine under paragraph (c)(2) of this section that an
individual or a representative payee is without fault in causing a
qualifying overpayment, we will also determine that recovery of the
qualifying overpayment would be against equity and good conscience. For
purposes of this paragraph (c)(3) only, ``against equity and good
conscience'' is not limited to the meaning used in Sec. 408.914 but
means a broad concept of fairness that takes into account all of the
facts and circumstances of the case.
(4) The provisions of this paragraph (c) will apply to a qualifying
overpayment identified by December 31, 2020.
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8. Amend Sec. 408.912 by adding paragraph (c) to read as follows:
Sec. 408.912 When are you without fault regarding an overpayment?
* * * * *
(c) Special rule for qualifying overpayments. Notwithstanding any
[[Page 52915]]
other provision of this subpart, we will not determine any overpaid
individual to be at fault in causing a qualifying overpayment (see
Sec. 408.910(c)(1)) unless we determine that the qualifying
overpayment made to an individual or a representative payee during the
pandemic period (see Sec. 408.902(b)) was the result of fraud or
similar fault or involved misuse of benefits by a representative payee
(see Sec. 408.641).
PART 416--SUPPLEMENTAL SECURITY INCOME FOR THE AGED, BLIND, AND
DISABLED
Subpart E--Payment of Benefits, Overpayments, and Underpayments
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9. The authority citation for subpart E of part 416 continues to read
as follows:
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.
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10. Amend Sec. 416.537 by adding paragraph (c) to read as follows:
Sec. 416.537 Overpayments--defined.
* * * * *
(c) Pandemic period. As used throughout this subpart, the term
pandemic period for the purposes of the waiver authority in Sec.
416.550 refers exclusively to the period of time beginning on March 1,
2020, and ending on September 30, 2020.
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11. Amend Sec. 416.550 by adding paragraph (c) to read as follows:
Sec. 416.550 Waiver of adjustment or recovery--when applicable.
* * * * *
(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 (see Sec. 416.537(c))
because of the actions that we took in response to the COVID-19
national public health emergency, including the suspension of certain
of our manual workloads that would have processed actions identifying
and stopping certain overpayments.
(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 Sec.
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 Sec. 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 Sec. 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.
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12. Amend Sec. 416.552 by adding a sentence following the second
sentence of the introductory text to read as follows:
Sec. 416.552 Waiver of adjustment or recovery--without fault.
* * * Notwithstanding any other provision of this subpart, we will
not determine any overpaid individual to be at fault in causing a
qualifying overpayment (see Sec. 416.550(c)(1)) unless we determine
that the qualifying overpayment made to an individual or a
representative payee during the pandemic period (see Sec. 416.537(c))
was the result of fraud or similar fault or involved misuse of benefits
by a representative payee (see Sec. 416.641). * * *
* * * * *
[FR Doc. 2020-18834 Filed 8-26-20; 8:45 am]
BILLING CODE 4191-02-P