[Federal Register Volume 75, Number 34 (Monday, February 22, 2010)]
[Rules and Regulations]
[Pages 7552-7555]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-3383]
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SOCIAL SECURITY ADMINISTRATION
20 CFR Part 416
[Docket No. SSA-2008-0051]
RIN 0960-AF97
Exclusion of Certain Military Pay From Deemed Income and
Resources
AGENCY: Social Security Administration.
ACTION: Final rule.
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SUMMARY: We are revising our rules to clarify that, for Supplemental
Security Income (SSI) purposes, we do not consider any combat-related
military pay as income when we determine whether spouses and children
of members of the uniformed services are eligible for SSI. The rules
also clarify that we do not consider combat-related military pay as
income when we determine the spouse's or child's proper payment amount.
These rules also provide that, when we determine whether spouses and
children are eligible for SSI, we do not consider retroactive payments
of certain military pay as resources for 9 months following receipt.
These final rules protect spouses and children of members of the
uniformed services from a reduction in, or loss of, benefits because
their spouse or parent serves in a combat zone.
DATES: This final rule will be effective March 24, 2010.
FOR FURTHER INFORMATION CONTACT: Eric Skidmore, Social Insurance
Specialist, Social Security Administration, Office of Income Security
Programs, 252 Altmeyer Building, 6401 Security Boulevard, Baltimore, MD
21235-6401, (410) 597-1833. 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:
Electronic Version
The electronic file of this document is available on the date of
publication in the Federal Register at http://www.gpoaccess.gov/fr/index.html.
Background
The SSI program provides a minimum income level for aged, blind,
and disabled persons who do not have income or resources above levels
specified in the Social Security Act (the Act). The Act generally
requires that when we determine a person's eligibility for, and amount
of, SSI benefits, we must consider the income and resources of an
ineligible spouse living in the same household and, in the case of a
child under the age of 18, an ineligible parent living in the same
household (and the spouse of such a parent). Section 1614(f) of the
Act, 42 U.S.C. 1382c(f). We use the term ``deeming'' to refer to the
process of considering part of an ineligible spouse's or parent's
income and resources to be the person's own income and resources.
Although a member of the uniformed services on active duty is
unlikely to apply or be eligible for SSI benefits, some members of the
uniformed services have spouses or children who receive or may apply
for SSI benefits. For purposes of deeming, the Act provides that a
spouse or parent who is absent from the household solely because of a
duty assignment as a member of the Armed Forces generally will be
treated as if he or she were living in the household. Section
1614(f)(4) of the Act, 42 U.S.C. 1382c(f)(4). Therefore, we generally
deem income and resources of the member of the uniformed services to
his or her spouse or child when determining the spouse's or child's
eligibility for, and amount of, SSI benefits. Because we consider the
member of the uniformed services as part of the household, we do not
treat his or her military pay as unearned income from a source outside
of the household.
Although we generally deem income of a member of the uniformed
services
[[Page 7553]]
to his or her spouse or child, the Act excludes from income certain
kinds of pay that members of the uniformed services may receive.
Section 1612(b)(20) of the Act, 42 U.S.C. 1382a(b)(20). In particular,
we exclude from income special pay received pursuant to 37 U.S.C. 310.
Members of the uniformed services are eligible for special pay during
months in which they are subject to hostile fire or certain other
dangerous conditions specified in 37 U.S.C. 310. Our current
regulations implementing section 1612(b)(20) of the Act exclude
``hostile fire pay'' received under 37 U.S.C. 310 from income and from
deeming to spouses and children. 20 CFR 416.1124(c)(19) and
416.1161(a)(23). We are replacing the term ``hostile fire pay'' in
these sections of our rules with the term ``special pay'' to clarify
that we exclude from income all special pay that a member of the
uniformed services received pursuant to 37 U.S.C. 310.
We are also adding a new paragraph to our rules on deeming of
income to spouses and children that excludes from deeming additional
types of combat-related pay beyond special pay under 37 U.S.C. 310. The
Act allows us to waive the deeming of income and resources to a spouse
or child when we determine that deeming would be inequitable. Section
1614(f) of the Act, 42 U.S.C. 1382c(f). Effective October 1, 2002, we
issued instructions under this statutory authority to exclude from a
spouse's or child's deemed income any additional pay that members of
the uniformed services received because they were deployed to or served
in a combat zone. We determined that it would be inequitable to deem
that pay as income and reduce a family member's benefits or potentially
render the family member ineligible for SSI. We are now incorporating
this exclusion and the definition of the term ``combat zone'' in our
SSI rules.
We are also revising our rules on deeming of resources to spouses
and children to exclude retroactive payments of certain kinds of
military pay for 9 months following receipt. Congress has retroactively
and permanently increased the amount of special pay under 37 U.S.C. 310
and the family separation allowance under 37 U.S.C. 427. Pursuant to
section 1614(f) of the Act, we issued instructions excluding
retroactive payments of the increase in special pay received after
September 2002 from a spouse's or child's deemed resources for a period
of 9 months following the month of receipt. Our instructions similarly
excluded retroactive payments of the family separation allowance that a
member of the uniformed services received as a result of deployment to
or service in a combat zone. We determined that it would be inequitable
to apply the usual resource deeming rules to these retroactive payments
in recognition of the hardships experienced and sacrifices made by
members of the uniformed services and their families. We are now
revising our SSI rules to incorporate these exclusions.
Finally, we are revising the punctuation at the conclusion of Sec.
416.1161(a)(25), (a)(26), and (a)(27). We are also clarifying some of
the language in Sec. 416.1202(a) and (b)(1) and reorganizing portions
of Sec. 416.1202(b)(1) to make that section easier to understand. We
are making these changes solely to improve the clarity of these rules,
and these changes have no substantive effect on our policies or
procedures.
Explanation of Changes
We are amending the regulations in 20 CFR, part 416, subparts K and
L, to reflect the changes discussed above. In summary, we are:
1. Revising Sec. 416.1124(c)(19) and Sec. 416.1161(a)(23) to
replace the term ``hostile fire pay'' with the term ``special pay.'' We
are making this technical clarification to conform the regulatory
language to the statutory language in section 1612(b)(20) of the Act.
2. Amending Sec. 416.1160(d) to add a definition of the term
``combat zone.''
3. Amending Sec. 416.1161 by adding new paragraph (a)(28) to
exclude from income deemed from an ineligible spouse or parent any
additional increment in pay, other than any increase in basic pay
(e.g., annual pay raises, promotions), if:
The spouse or parent received the additional pay as a
result of deployment to or service in a combat zone; and
The spouse or parent was not receiving the additional pay
immediately prior to deployment to or service in a combat zone.
4. Revising the punctuation at the conclusion of paragraphs
(a)(25), (a)(26), and (a)(27) of Sec. 416.1161.
5. Revising paragraphs (a) and (b)(1) of Sec. 416.1202 to exclude
from resources deemed from an ineligible spouse or parent (or spouse of
a parent), for 9 months following the month of receipt, the unspent
portion of any retroactive payment of:
Special pay the ineligible spouse or parent received from
one of the uniformed services pursuant to 37 U.S.C. 310; and
Family separation allowance the ineligible spouse or
parent received from one of the uniformed services pursuant to 37
U.S.C. 427 as a result of deployment to or service in a combat zone.
6. Clarifying some language in paragraphs (a) and (b)(1) of Sec.
416.1202, and reorganizing portions of paragraph (b)(1).
Public Comments
In the notice of proposed rulemaking we published at 74 FR 27727
(June 11, 2009), we provided the public with a 60-day period in which
to comment on the proposed changes. That comment period ended on August
10, 2009. We did not receive any comments on the proposed changes. We
are changing our rules exactly as we proposed in the notice of proposed
rulemaking.
Regulatory Procedures
Executive Order 12866
We have consulted with the Office of Management and Budget (OMB)
and determined that these final rules meet the requirements for a
significant regulatory action under Executive Order 12866, as amended.
Thus, they were subject to OMB review.
Regulatory Flexibility Act
We certify that these final rules 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 the Regulatory Flexibility Act, as amended, is not
required.
Paperwork Reduction Act
These final rules impose no reporting or recordkeeping requirements
subject to OMB clearance.
(Catalog of Federal Domestic Assistance Program No. 96.006,
Supplemental Security Income)
List of Subjects in 20 CFR Part 416
Administrative practice and procedure; Aged, Blind, Disability
benefits; Public assistance programs; Reporting and recordkeeping
requirements; Supplemental Security Income (SSI).
Dated: November 9, 2009.
Michael J. Astrue,
Commissioner of Social Security.
0
For the reasons set out in the preamble, we amend subparts K and L of
part 416 of chapter III of title 20 Code of Federal Regulations as set
forth below:
[[Page 7554]]
PART 416--SUPPLEMENTAL SECURITY INCOME FOR THE AGED, BLIND, AND
DISABLED
Subpart K--[Amended]
0
1. The authority citation for subpart K of part 416 continues to read
as follows:
Authority: Secs. 702(a)(5), 1602, 1611, 1612, 1613, 1614(f),
1621, 1631, and 1633 of the Social Security Act (42 U.S.C.
902(a)(5), 1381a, 1382, 1382a, 1382b, 1382c(f), 1382j, 1383, and
1383b); sec. 211, Pub. L. 93-66, 87 Stat. 154 (42 U.S.C. 1382 note).
0
2. Amend Sec. 416.1124 by revising paragraph (c)(19) to read as
follows:
Sec. 416.1124 Unearned income we do not count.
* * * * *
(c) * * *
(19) Special pay received from one of the uniformed services
pursuant to 37 U.S.C. 310;
* * * * *
0
3. Amend Sec. 416.1160 by adding the definition of ``Combat zone'' in
paragraph (d) to read as follows:
Sec. 416.1160 What is deeming of income?
* * * * *
(d) * * *
Combat zone means
(i) Any area the President of the United States designates by
Executive Order under 26 U.S.C. 112 as an area in which Armed Forces of
the United States are or have engaged in combat;
(ii) A qualified hazardous duty area (QHDA) Congress designates be
treated in the same manner as an area designated by the President under
26 U.S.C. 112, provided the member of the uniformed services serving in
this area is entitled to special pay under 37 U.S.C. 310; or
(iii) An area where the Secretary of Defense or his or her
designated representative has certified that Armed Forces members
provide direct support for military operations in an area designated by
the President under 26 U.S.C. 112 or a QHDA, provided the member of the
uniformed services serving in the area certified by the Secretary of
Defense or his or her designated representative is entitled to special
pay under 37 U.S.C. 310.
* * * * *
0
4. Amend Sec. 416.1161 as follows:
0
a. Amend paragraph (a)(23) by removing the words ``Hostile fire pay''
and adding the words ``Special pay'' in their place;
0
b. Remove the word ``and'' at the end of paragraph (a)(25);
0
c. Remove the period at the end of paragraph (a)(26) and add a
semicolon in its place;
0
d. Remove the period at the end of paragraph (a)(27) and add ``; and''
in its place; and
0
e. Add paragraph (a)(28) to read as follows:
Sec. 416.1161 Income of an ineligible spouse, ineligible parent, and
essential person for deeming purposes.
* * * * *
(a) * * *
(28) Any additional increment in pay, other than any increase in
basic pay, received while serving as a member of the uniformed
services, if--
(i) Your ineligible spouse or parent received the pay as a result
of deployment to or service in a combat zone; and
(ii) Your ineligible spouse or parent was not receiving the
additional pay immediately prior to deployment to or service in a
combat zone.
* * * * *
Subpart L--[Amended]
0
5. The authority citation for subpart L of part 416 continues to read
as follows:
Authority: Secs. 702(a)(5), 1602, 1611, 1612, 1613, 1614(f),
1621, 1631, and 1633 of the Social Security Act (42 U.S.C.
902(a)(5), 1381a, 1382, 1382a, 1382b, 1382c(f), 1382j, 1383, and
1383b); sec. 211, Pub. L. 93-66, 87 Stat. 154 (42 U.S.C. 1382 note).
0
6. In Sec. 416.1202:
0
a. Revise the second sentence and remove the third sentence of
paragraph (a);
0
b. Add new paragraphs (a)(1), (a)(2), and (a)(3); and
0
c. Revise paragraph (b)(1).
The additions and revisions read as follows:
Sec. 416.1202 Deeming of resources.
(a) * * * In addition to the exclusions listed in Sec. 416.1210,
we also exclude the following items:
(1) Pension funds that the ineligible spouse may have. Pension
funds are defined as funds held in individual retirement accounts
(IRA), as described by the Internal Revenue Code, or in work-related
pension plans (including such plans for self-employed persons,
sometimes referred to as Keogh plans);
(2) For 9 months beginning with the month following the month of
receipt, the unspent portion of any retroactive payment of special pay
an ineligible spouse received from one of the uniformed services
pursuant to 37 U.S.C. 310; and
(3) For 9 months beginning with the month following the month of
receipt, the unspent portion of any retroactive payment of family
separation allowance an ineligible spouse received from one of the
uniformed services pursuant to 37 U.S.C. 427 as a result of deployment
to or service in a combat zone (as defined in Sec. 416.1160(d)).
(b) * * *
(1) General. In the case of a child (as defined in Sec. 416.1856)
who is under age 18, we will deem to that child any resources, not
otherwise excluded under this subpart, of his or her ineligible parent
who is living in the same household with him or her (as described in
Sec. 416.1851). We also will deem to the child the resources of his or
her ineligible stepparent. As used in this section, the term ``parent''
means the natural or adoptive parent of a child, and the term
``stepparent'' means the spouse (as defined in Sec. 416.1806) of such
natural or adoptive parent who is living in the same household with the
child and parent. We will deem to a child the resources of his or her
parent and stepparent whether or not those resources are available to
him or her. We will deem to a child the resources of his or her parent
and stepparent only to the extent that those resources exceed the
resource limits described in Sec. 416.1205. (If the child is living
with only one parent, we apply the resource limit for an individual. If
the child is living with both parents, or the child is living with one
parent and a stepparent, we apply the resource limit for an individual
and spouse.) We will not deem to a child the resources of his or her
parent or stepparent if the child is excepted from deeming under
paragraph (b)(2) of this section. In addition to the exclusions listed
in Sec. 416.1210, we also exclude the following items:
(i) Pension funds of an ineligible parent (or stepparent). Pension
funds are defined as funds held in IRAs, as described by the Internal
Revenue Code, or in work-related pension plans (including such plans
for self-employed persons, sometimes referred to as Keogh plans);
(ii) For 9 months beginning with the month following the month of
receipt, the unspent portion of any retroactive payment of special pay
an ineligible parent (or stepparent) received from one of the uniformed
services pursuant to 37 U.S.C. 310; and
(iii) For 9 months beginning with the month following the month of
receipt, the unspent portion of any retroactive payment of family
separation allowance an ineligible parent (or stepparent) received from
one of the uniformed services pursuant to 37 U.S.C. 427 as a result of
deployment to or service in a
[[Page 7555]]
combat zone (as defined in Sec. 416.1160(d)).
* * * * *
[FR Doc. 2010-3383 Filed 2-19-10; 8:45 am]
BILLING CODE 4191-02-P