Methods for Conducting Personal Conferences When Waiver of Recovery of a Title II or Title XVI Overpayment Cannot Be Approved, 1970-1974 [E8-314]

Download as PDF 1970 Federal Register / Vol. 73, No. 8 / Friday, January 11, 2008 / Rules and Regulations Authority: 49 U.S.C. 106(g), 40113, 44701. operators to be $4000, assuming that oxygen cylinders are installed on 100 aircraft. § 39.13 Authority for This Rulemaking Title 49 of the United States Code specifies the FAA’s authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. ‘‘Subtitle VII: Aviation Programs,’’ describes in more detail the scope of the Agency’s authority. We are issuing this rulemaking under the authority described in ‘‘Subtitle VII, Part A, Subpart III, Section 44701: General requirements.’’ Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify this AD: 1. Is not a ‘‘significant regulatory action’’ under Executive Order 12866; 2. Is not a ‘‘significant rule’’ under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared an economic evaluation of the estimated costs to comply with this AD and placed it in the AD docket. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. Adoption of the Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows: ebenthall on PRODPC61 with RULES I PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: I VerDate Aug<31>2005 14:32 Jan 10, 2008 Jkt 214001 [Amended] 2. The FAA amends § 39.13 by adding the following new AD: I 2007–26–11 Intertechnique Zodiac Aircraft Systems: Amendment 39–15313. Docket No. FAA–2007–0374; Directorate Identifier 2007–SW–02–AD. Effective Date (a) This airworthiness directive (AD) becomes effective January 28, 2008. Other Affected ADs (b) None. Applicability (c) This AD applies to Intertechnique (F5341), aluminum alloy AA5283, oxygen cylinders manufactured by Societe Metallurgique de Gerzat SAS with GLD series, GLF series, PC2300 or SLF300 part numbers, installed in any aircraft certificated in any category. These oxygen reserve cylinders are installed on but not limited to Model Airbus 300 series; Pilatus P–6; Dassault Aviation Mystere-Falcon 20, Falcon 50, Falcon 200, and Falcon 900 airplanes; and Eurocopter AS350 and Eurocopter SA315 helicopters. Reason (d) The mandatory continued airworthiness information (MCAI) states: This Airworthiness Directive (AD) is issued following information concerning the risk of high-pressure oxygen cylinder tearing with sudden emptying. These cylinders are used for missions at high altitudes or to ensure respiratory air for passengers feeling sick. It has been demonstrated that the material characteristics of the Aluminum Alloy 5283 (AA5283) from which the cylinders are manufactured deteriorate in the course of time and may possibly lead these oxygen cylinders to tear and abruptly vent aboard an aircraft. (1) Alternative Methods of Compliance (AMOCs): The Manager, Safety Management Group, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Send information to ATTN: Uday Garadi, Aviation Safety Engineer, Regulations and Guidance Group, Fort Worth, Texas 76193–0110, telephone (817) 222–5123, fax (817) 222– 5961. (2) Airworthy Product: Use only FAAapproved corrective actions. Corrective actions are considered FAA-approved if they are approved by the State of Design Authority (or their delegated agent) if the State of Design has an appropriate bilateral agreement with the United States. You are required to assure the product is airworthy before it is returned to service. (3) Reporting Requirements: For any reporting requirement in this AD, under the provisions of the Paperwork Reduction Act, the Office of Management and Budget (OMB) has approved the information collection requirements and has assigned OMB Control Number 2120–0056. Related Information (i) Mandatory Continuing Airworthiness Information (MCAI) EASA Airworthiness Directive No. 2006–0286R1, dated March 22, 2007; Intertechnique Service Bulletin No. GLD/GLF–35–150, dated September 20, 2006; and Eurocopter Alert Service Bulletin Nos. 05.00.54 for the Model AS350B3 and 05.42 for the Model SA315B, both dated August 16, 2006, contain related information. Issued in Fort Worth, Texas, on December 3, 2007. David A. Downey, Manager, Rotorcraft Directorate, Aircraft Certification Service. [FR Doc. E7–25391 Filed 1–10–08; 8:45 am] BILLING CODE 4910–13–P SOCIAL SECURITY ADMINISTRATION Actions and Compliance (e) Unless already done, remove any affected oxygen reserve cylinder before further flight. 20 CFR Parts 404 and 416 Differences Between the FAA AD and the MCAI (f) This AD differs from the MCAI as follows: (1) The MCAI requires removal of the affected oxygen cylinders at specific time intervals; however, this AD requires removal before further flight. (2) The MCAI requires certain procedures to be used for emptying the cylinders as well as certain action for cylinders held as spares. These actions are beyond the scope of the action needed to correct this unsafe condition and are not included in this AD. Methods for Conducting Personal Conferences When Waiver of Recovery of a Title II or Title XVI Overpayment Cannot Be Approved Subject (g) Air Transport Association of America (ATA) Code 3530: Portable Oxygen System. Other Information (h) The following provisions also apply to this AD: PO 00000 Frm 00010 Fmt 4700 Sfmt 4700 [Docket No. SSA–2006–0096] RIN 0960–AG40 AGENCY: Social Security Administration (SSA). ACTION: Final rules. SUMMARY: We are revising our title II regulations and adding title XVI regulations on personal conferences when waiver of recovery of an overpayment cannot be approved. These final rules allow for the conferences to be conducted face-to-face, by telephone, or by video teleconference in these circumstances. DATES: These final rules are effective February 11, 2008. E:\FR\FM\11JAR1.SGM 11JAR1 Federal Register / Vol. 73, No. 8 / Friday, January 11, 2008 / Rules and Regulations FOR FURTHER INFORMATION CONTACT: Robin Strauss, Social Insurance Specialist, Social Security Administration, Office of Income Security Programs, 252 Altmeyer Building, 6401 Security Boulevard, Baltimore, MD 21235–6401, (410) 965– 7944, for information about this Federal Register document. 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: ebenthall on PRODPC61 with RULES 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 Our existing regulations at § 404.506 state that we will waive recovery of a title II overpayment if the individual was without fault in causing the overpayment and if recovery would defeat the purpose of title II of the Social Security Act or be against equity and good conscience. Section 404.506 further states that, if we cannot approve waiver after reviewing the information the individual has given to support his or her contention that the recovery of the overpayment should be waived, we will offer the individual a personal conference. The personal conference policy was established so that the decisionmaker would have the opportunity to assess an individual’s contention through personal, versus written, contact. Our existing regulations at § 416.550 state that we will waive recovery of a title XVI overpayment if the individual was without fault in causing the overpayment and if recovery would either defeat the purpose of title XVI, or be against equity and good conscience, or impede the efficient administration of title XVI. There is currently no title XVI regulation regarding personal conferences. Section 404.506(e)(1) states that the individual is given the opportunity to ‘‘appear personally’’ at the personal conference. Current regulations do not further specify the method in which this appearance may be made. Our longstanding policy contained in Social Security Ruling (SSR) 94–4p, which implemented the decisions in Buffington, et al. v. Schweiker and Califano v. Yamasaki, provides that a face-to-face pre-recoupment hearing will be conducted prior to the denial of waiver of recovery of an overpayment. However, a face-to-face appearance at VerDate Aug<31>2005 14:32 Jan 10, 2008 Jkt 214001 the field office is not always convenient for the beneficiary. Often, if an individual is not able to come to the face-to-face conference, field office personnel will go to the person to hold the conference. Offering additional appearance options for the conference would improve service to the beneficiaries and reduce costly home visits by field personnel. In order to fulfill our stewardship responsibilities to the Social Security trust fund, we must employ methods that will simplify our personal conference procedures and use our resources most efficiently. We should be using all available technology when we conduct personal conferences. Therefore, we are revising the regulations to allow for personal conferences to be conducted face-to-face at a place we designate (usually in the field office), by telephone, or by video teleconference. We will give the choice to the individual; the individual will still be provided the opportunity to appear face-to-face by choosing to come to us for the personal conference, or may choose to participate by telephone or video teleconference. If the individual elects to conduct the personal conference by video teleconference, the individual will designate the location for his or her end of the video teleconference. Any individual who is interested in conducting the personal conference by video teleconference can contact us for additional information and assistance with this process. Because we are offering claimants two new and convenient ways to participate in a personal conference—in addition to the face-to-face conferences at our field offices we currently offer—we believe the need for our personnel to make costly home visits will significantly decrease. Therefore, we will consider conducting face-to-face conferences at locations other than SSA field offices only on a case-by-case basis, and only in those limited circumstances where: (a) a claimant has exhausted all other means of obtaining a personal conference, and (b) conducting a personal conference by any other means would be so inadequate, owing to a claimant’s physical or mental condition, as to infringe upon the person’s right to a hearing. This process is in no way meant to circumscribe an individual’s right to reasonable accommodation or to relieve SSA of our responsibility to provide such accommodation in accordance with 29 U.S.C. 794. These final rules will not affect the individual’s right to review the claims file, have a representative present for the proceedings, cross-examine PO 00000 Frm 00011 Fmt 4700 Sfmt 4700 1971 witnesses, or submit documentary evidence. Those provisions will not change. For example, claimants who choose to conduct the personal conference via telephone or video teleconference will be given an opportunity to submit documentary evidence by mail or fax prior to the scheduled conference. If necessary, the conference could be rescheduled to allow claimants time to do this. In conducting the personal conference face-to-face at a place we designate, by telephone, or by video teleconference, we will be fulfilling our stewardship responsibilities while offering an additional convenience to the individual and continuing to protect the individual’s right to present his or her contention that he or she meets the requirements for waiver of recovery of an overpayment. The decisionmaker will still be able to properly assess the person’s contentions regarding fault under these new procedures. We already successfully conduct some hearings by telephone and by video teleconference. For example, the administrative review of an initial determination for Medicare Part D subsidies is conducted either by a telephone hearing or a case review. See § 418.3625. Additionally, some administrative hearings to review claims under title II (including administrative law judge review of denial of waiver based on a personal conference), and other claims under title XVI are now conducted via video teleconferencing. See §§ 404.936 and 416.1436. Our experience in these contexts has demonstrated that these procedures adequately protect a claimant’s due process rights. Explanation of Changes We are changing the regulations in 20 CFR parts 404 and 416 to reflect the methods for conducting personal conferences when waiver of recovery of an overpayment cannot be approved as follows: • We are changing the regulations at § 404.506 to reflect the various methods we can use to conduct the personal conference. These methods are: face-toface in a location we designate (usually in the field office), via telephone, or via video teleconference. • Currently, part 416 has no reference to personal conferences when waiver of recovery of the overpayment cannot be approved. We are adding a new section that is similar to the regulations at § 404.506. New § 416.557 includes the various methods we can use to conduct the personal conference and describes the individual’s rights and E:\FR\FM\11JAR1.SGM 11JAR1 1972 Federal Register / Vol. 73, No. 8 / Friday, January 11, 2008 / Rules and Regulations ebenthall on PRODPC61 with RULES responsibilities regarding the personal conference. Since SSR 94–4p only provides for a pre-recoupment hearing that is conducted face-to-face before waiver of recovery of an overpayment can be denied, the changes in §§ 404.506 and 416.557 expand that policy. Therefore, we are also publishing a notice rescinding SSR 94–4p concurrently with the effective date of these final rules on the same day we publish these final rules. Public Comments On March 5, 2007, we published proposed rules in the Federal Register at 72 FR 9709 and provided a 60-day comment period. We received comments from two organizations and one individual. The comments from the individual were totally supportive of the proposed rules, noting that the rule will provide beneficiaries with practical options for presenting further evidence in favor of waiver of recovery, even when they cannot appear at the SSA office for a face-to-face conference. We carefully considered all of the comments in publishing these final rules. Because some of the comments were long and quite detailed, we have condensed, summarized and paraphrased them in the following discussion. However, we have tried to present all views adequately and to address carefully all of the significant issues raised by the commenters that are within the scope of the proposed rules. We have not addressed in this preamble comments that are outside the scope of the rulemaking proceeding. Comment: Both organizations which commented raised the concern that the regulations were not consistent with SSA’s obligation under Section 504 of the Rehabilitation Act to provide reasonable accommodation for disabled individuals. In support of this proposition, both commenters cited the example in the preamble. This example said that SSA would consider conducting a face-to-face personal conference at a location other than an SSA field office where the claimant was deaf and bedridden. The commenters were concerned that this implies that SSA will only provide accommodation and accessibility measures to the most severely limited program participants and not to all persons with disabilities. Response: The example in the preamble was not intended to represent the only type of situation in which SSA would consider conducting a face-toface personal conference at a location other than an SSA field office. These requests will be decided on a case-bycase basis and will be consistent with VerDate Aug<31>2005 14:32 Jan 10, 2008 Jkt 214001 our obligations under section 504 of the Rehabilitation Act to provide reasonable accommodation to disabled people. To avoid any confusion, we did not include the example in the preamble to these final rules. Comment: One organization commented that they felt that our criteria for considering conducting faceto-face conferences at locations other than SSA field offices (described in paragraph three of the ‘‘Background’’ section of the preamble), ‘‘seems to circumscribe individual rights under section 504.’’ They recommend that SSA either withdraw this statement or redraft it to be more consistent with section 504. Response: We do not feel that the description of when a face-to-face personal conference will be conducted at a location other than an SSA field office circumscribes the claimant’s rights in any way. In addition to conducting personal conferences faceto-face in the field office, the new rule offers beneficiaries two additional options for conducting personal conferences (by telephone and by video teleconferencing) and retains an option for face-to-face conferences at locations other than the field office on a case-bycase basis. We believe that this procedure is consistent with our obligation to provide reasonable accommodation under the Rehabilitation Act. However, to make our intent clear, we have added a sentence at the end of the paragraph explaining that the intent of this regulation is neither to circumscribe the individual’s right to request reasonable accommodation nor to relieve SSA of its obligation to provide it in accordance with the law. Comment: One organization suggested that the regulation be more specific about the different ways in which a personal conference can be conducted, such as by text telephone. Both organizations which commented recommended that specific language be included in the regulation about SSA’s responsibility to provide reasonable accommodation. Response: Our offices regularly conduct business via text telephone, relay services, and various other methods. These methods are all implied when we describe conducting a personal conference by telephone. As to the suggestion for including specific language in the regulation about SSA’s responsibility to provide reasonable accommodation, we do not believe that this is necessary. Section 504 of the Rehabilitation Act already sets forth SSA’s obligation to provide reasonable accommodation to disabled individuals. PO 00000 Frm 00012 Fmt 4700 Sfmt 4700 Our statement in paragraph three of the Background section of the preamble evidences our understanding of that obligation in the personal conference context. Comment: One of the organizations was concerned that local SSA offices may attempt to coerce claimants into choosing an option for conducting the personal conference that is most convenient for their office. They suggest that SSA require the distribution of information about a disabled individual’s right to request reasonable accommodation in the personal conference process, and to ensure that employees in the field offices understand the importance of providing disabled individuals with this information. Response: The field office personnel deal with disabled claimants daily, and understand SSA’s obligation to provide reasonable accommodation when requested. Also, as described in the regulation, it is the claimant who chooses the method for conducting the personal conference. We expect that they would select the option that best accommodates any limitations they may have. Comment: One commenter suggested that adjustment to recover the overpayment after waiver of recovery is denied should be delayed, if the claimant appeals the decision, until after the appeals process has ended. They state that this is a more equitable way of collecting the overpayments, particularly for disabled individuals with low incomes. Response: Beginning adjustment or recovery of an overpayment following denial of waiver of recovery does not constitute any change in existing policy. See § 404.506(g). As stated under the ‘‘Explanation of Changes’’ section of this preamble, part 416 did not have a reference to personal conferences when waiver of recovery of the overpayment cannot be approved. We simply added a new section that is similar to the regulations at § 404.506 to the title XVI regulations that codifies the policies on personal conferences that have long been in place. Courts have found that this process comports with due process and with the statute. With regard to the commenter’s concerns about recoupment from low-income title XVI beneficiaries, our regulations provide a 10 percent limitation of recoupment rate for title XVI overpayments in most cases. Additionally, individuals are given the opportunity to request that the adjustment or recovery be made at a lower rate than the one proposed. If an individual requests a lower rate, a rate of withholding that is appropriate to the E:\FR\FM\11JAR1.SGM 11JAR1 Federal Register / Vol. 73, No. 8 / Friday, January 11, 2008 / Rules and Regulations financial condition of the overpaid individual will be set after evaluation of all the pertinent facts. See § 416.571. Comment: One organization was concerned that these changes will make it more difficult for the claimant to receive and provide pertinent information, and for SSA personnel to make credibility determinations. They are also concerned that many claimants, particularly those who can least afford to repay an overpayment, will not have access to technology such as video teleconferencing equipment. Response: As cited in the ‘‘Background’’ section of this preamble, SSA is already successfully conducting some hearings by telephone and by video teleconference, including administrative law judge review of denial of waiver based on a personal conference. As for a claimant’s access to certain technological equipment, the method of conducting the personal conference is their choice and, as stated above, holding a face-to-face conference at a location other than the SSA field office will be considered on a case-bycase basis, if requested. Moreover, any individual who is interested in conducting the personal conference by video teleconference can contact us for additional information and assistance with this process. Other Changes In addition to the changes already discussed above, we have made minor, non-substantive changes for clarification purposes only. Regulatory Procedures Executive Order 12866 We have consulted with the Office of Management and Budget (OMB) and determined that these final rules meet the criteria for a significant regulatory action under Executive Order 12866, as amended. Thus, they were reviewed by OMB. We have also determined that these final rules meet the plain language requirement of Executive Order 12866, as amended. ebenthall on PRODPC61 with RULES Regulatory Flexibility Act We certify that these final rules would not have a significant economic impact on a substantial number of small entities because they affect only individuals. Thus, a regulatory flexibility analysis as provided in the Regulatory Flexibility Act, as amended, is not required. Paperwork Reduction Act These final rules contain information collection burdens in §§ 416.557(c)(3) and 416.557(d)(8) that require OMB clearance under the Paperwork Reduction Act of 1995 (PRA). As VerDate Aug<31>2005 14:32 Jan 10, 2008 Jkt 214001 1973 required by the PRA, we have submitted a clearance request to OMB for approval of these sections. (As requested by OMB, we also included associated sections §§ 404.506(e)(3) and 404.506(f)(8), which deal with personal conferences but are not included in the text of the regulation). We will publish the OMB number and expiration date upon approval. As required by the PRA, we published a notice of proposed rulemaking on March 5, 2007 at 72 FR 9709, in which we solicited comments under the PRA on the burden estimate; the need for the information; its practical utility; ways to enhance its quality, utility and clarity; and on ways to minimize the burden on respondents, including the use of automated collection techniques or other forms of information technology. No public comments were submitted relating to any of these issues. I (Catalog of Federal Domestic Assistance Program Nos. 96.001, Social SecurityDisability Insurance; 96.002, Social SecurityRetirement Insurance; 96.004, Social Security-Survivors Insurance; and 96.006, Supplemental Security Income) 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. 3720A. List of Subjects I Administrative practice and procedure, Blind, Disability benefits, Old-Age, Survivors and Disability Insurance; Reporting and recordkeeping requirements, Social Security. 20 CFR Part 416 Administrative practice and procedure, Aged, Blind, Disability benefits, Public assistance programs, Reporting and recordkeeping requirements, Supplemental Security Income. Dated: November 30, 2007. Michael J. Astrue, Commissioner of Social Security. For the reasons set out in the preamble, we are amending subpart F of part 404 and subpart E of part 416 of chapter III of title 20 of the Code of Federal Regulations as follows: I PART 404—FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE (1950–) Subpart F—[Amended] 1. The authority citation for subpart F of part 404 continues to read as follows: I 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. 3720A. Frm 00013 Fmt 4700 § 404.506 When waiver may be applied and how to process the request. * * * * * (c) * * * We will offer to the individual the option of conducting the personal conference face-to-face at a place we designate, by telephone, or by video teleconference. The notice will advise the individual of the date and time of the personal conference. * * * * * PART 416—SUPPLEMENTAL SECURITY INCOME FOR THE AGED, BLIND, AND DISABLED Subpart E—[Amended] 1. The authority citation for subpart E of part 416 continues to read as follows: I 2. Section 416.557 is added to read as follows: 20 CFR Part 404 PO 00000 2. Section 404.506 is amended by adding a sentence at the end of paragraph (c) to read as follows: Sfmt 4700 § 416.557 Personal conference. (a) If waiver cannot be approved (i.e., the requirements in § 416.550 (a) and (b) are not met), the individual is notified in writing and given the dates, times and place of the file review and personal conference; the procedure for reviewing the claims file prior to the personal conference; the procedure for seeking a change in the scheduled date, time and/or place; and all other information necessary to fully inform the individual about the personal conference. The file review is always scheduled at least 5 days before the personal conference. We will offer to the individual the option of conducting the personal conference face-to-face at a place we designate, by telephone, or by video teleconference. The notice will advise the individual of the date and time of the personal conference. (b) At the file review, the individual and the individual’s representative have the right to review the claims file and applicable law and regulations with the decisionmaker or another of our representatives who is prepared to answer questions. We will provide copies of material related to the overpayment and/or waiver from the claims file or pertinent sections of the law or regulations that are requested by the individual or the individual’s representative. E:\FR\FM\11JAR1.SGM 11JAR1 ebenthall on PRODPC61 with RULES 1974 Federal Register / Vol. 73, No. 8 / Friday, January 11, 2008 / Rules and Regulations (c) At the personal conference, the individual is given the opportunity to: (1) Appear personally, testify, crossexamine any witnesses, and make arguments; (2) Be represented by an attorney or other representative (see § 416.1500), although the individual must be present at the conference; and (3) Submit documents for consideration by the decisionmaker. (d) At the personal conference, the decisionmaker: (1) Tells the individual that the decisionmaker was not previously involved in the issue under review, that the waiver decision is solely the decisionmaker’s, and that the waiver decision is based only on the evidence or information presented or reviewed at the conference; (2) Ascertains the role and identity of everyone present; (3) Indicates whether or not the individual reviewed the claims file; (4) Explains the provisions of law and regulations applicable to the issue; (5) Briefly summarizes the evidence already in file which will be considered; (6) Ascertains from the individual whether the information presented is correct and whether he/she fully understands it; (7) Allows the individual and the individual’s representative, if any, to present the individual’s case; (8) Secures updated financial information and verification, if necessary; (9) Allows each witness to present information and allows the individual and the individual’s representative to question each witness; (10) Ascertains whether there is any further evidence to be presented; (11) Reminds the individual of any evidence promised by the individual which has not been presented; (12) Lets the individual and the individual’s representative, if any, present any proposed summary or closing statement; (13) Explains that a decision will be made and the individual will be notified in writing; and (14) Explains repayment options and further appeal rights in the event the decision is adverse to the individual. (e) SSA issues a written decision to the individual (and his or her representative, if any) specifying the findings of fact and conclusions in support of the decision to approve or deny waiver and advising of the individual’s right to appeal the decision. If waiver is denied, adjustment or recovery of the overpayment begins even if the individual appeals. (f) If it appears that the waiver cannot be approved, and the individual VerDate Aug<31>2005 14:32 Jan 10, 2008 Jkt 214001 declines a personal conference or fails to appear for a second scheduled personal conference, a decision regarding the waiver will be made based on the written evidence of record. Reconsideration is the next step in the appeals process. community, to purchase and live in homes in these communities. The November 1, 2006, final rule, codified the GNND Sales Program regulations at 24 CFR part 291, subpart F. [FR Doc. E8–314 Filed 1–10–08; 8:45 am] It has come to HUD’s attention that the regulatory text of the November 1, 2006, final rule contained a typographical error regarding properties available for sale under the GNND Sales Program. The preamble to the final rule correctly makes clear that occupied properties, properties located in Asset Control Areas, and properties that HUD determines will be sold through an alternative sales method will not be made available for purchase under the GNND Sales Program (see 61 FR 64422, third column). However, due to typographical error regarding the closing of a parenthetical, § 291.510(b) of the regulatory text (entitled ‘‘Eligible properties’’) incorrectly provides that: BILLING CODE 4191–02–P DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT 24 CFR Part 291 [Docket No. FR–4712–C–04] RIN 2502–AH72 Good Neighbor Next Door Sales Program; Technical Correction Office of the Assistant Secretary for Housing—Federal Housing Commissioner, HUD. ACTION: Technical correction. AGENCY: This document makes a correction to HUD’s November 1, 2006, final rule establishing regulations for the Good Neighbor Next Door (GNND) Sales Program. It has come to HUD’s attention that the regulatory text of the November 1, 2006, final rule contained a typographical error regarding properties available for sale under the GNND Sales Program. The purpose of this document is to make the necessary correction. DATES: Effective Date: January 11, 2008. FOR FURTHER INFORMATION CONTACT: Ivery W. Himes, Director, Asset Management and Disposition Division, Office of Single Family Asset Management, Department of Housing and Urban Development, 451 Seventh Street, SW., Room 9172, Washington, DC 20410–8000; telephone (202) 708– 1672 (this is not a toll-free number). Hearing- or speech-impaired individuals may access this number through TTY by calling the toll-free Federal Information Relay Service at (800) 877–8339. SUPPLEMENTARY INFORMATION: SUMMARY: On November 1, 2006 (71 FR 64422), HUD published a final rule establishing regulations for the Good Neighbor Next Door (GNND) Sales Program. The GNND Sales Program seeks to improve the quality of life in distressed urban communities by encouraging law enforcement officers, teachers, and firefighters/emergency medical technicians, whose daily responsibilities and duties reflect a high level of public service commitment and represent a nexus to the needs of the Frm 00014 Fmt 4700 Under the GNND Sales Program, singleunit properties acquired by HUD located in HUD-designated revitalization areas (except occupied properties), those located in Asset Control Areas, or those that HUD has determined will be sold through an alternative sales method will be made available to interested law enforcement officers, teachers, and firefighters/emergency medical technicians prior to listing the properties for sale to other purchasers. Rather than ending after the phrase ‘‘occupied properties,’’ the parenthetical should close at the end of the list of excluded properties after the phrase ‘‘those that HUD has determined will be sold through an alternative sales method.’’ The purpose of this document is to make the necessary correction to § 291.510(b). List of Subjects in 24 CFR Part 291 Community facilities, Conflict of interests, Homeless, Lead poisoning, Low and moderate income housing, Mortgages, Reporting and recordkeeping requirements, Surplus government property. Accordingly, 24 CFR part 291 is corrected by making the following correcting amendment: I I. Background PO 00000 II. Need for Correction Sfmt 4700 PART 291—DISPOSITION OF HUDACQUIRED SINGLE FAMILY PROPERTY 1. The authority citation for 24 CFR part 291 continues to read as follows: I Authority: 12 U.S.C. 1701 et seq.; 42 U.S.C. 1441, 1441a, 1551a, and 3535(d). 2. Revise § 291.510(b) to read as follows: I E:\FR\FM\11JAR1.SGM 11JAR1

Agencies

[Federal Register Volume 73, Number 8 (Friday, January 11, 2008)]
[Rules and Regulations]
[Pages 1970-1974]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-314]


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SOCIAL SECURITY ADMINISTRATION

20 CFR Parts 404 and 416

[Docket No. SSA-2006-0096]
RIN 0960-AG40


Methods for Conducting Personal Conferences When Waiver of 
Recovery of a Title II or Title XVI Overpayment Cannot Be Approved

AGENCY: Social Security Administration (SSA).

ACTION: Final rules.

-----------------------------------------------------------------------

SUMMARY: We are revising our title II regulations and adding title XVI 
regulations on personal conferences when waiver of recovery of an 
overpayment cannot be approved. These final rules allow for the 
conferences to be conducted face-to-face, by telephone, or by video 
teleconference in these circumstances.

DATES: These final rules are effective February 11, 2008.

[[Page 1971]]


FOR FURTHER INFORMATION CONTACT: Robin Strauss, Social Insurance 
Specialist, Social Security Administration, Office of Income Security 
Programs, 252 Altmeyer Building, 6401 Security Boulevard, Baltimore, MD 
21235-6401, (410) 965-7944, for information about this Federal Register 
document. 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

    Our existing regulations at Sec.  404.506 state that we will waive 
recovery of a title II overpayment if the individual was without fault 
in causing the overpayment and if recovery would defeat the purpose of 
title II of the Social Security Act or be against equity and good 
conscience. Section 404.506 further states that, if we cannot approve 
waiver after reviewing the information the individual has given to 
support his or her contention that the recovery of the overpayment 
should be waived, we will offer the individual a personal conference. 
The personal conference policy was established so that the 
decisionmaker would have the opportunity to assess an individual's 
contention through personal, versus written, contact. Our existing 
regulations at Sec.  416.550 state that we will waive recovery of a 
title XVI overpayment if the individual was without fault in causing 
the overpayment and if recovery would either defeat the purpose of 
title XVI, or be against equity and good conscience, or impede the 
efficient administration of title XVI. There is currently no title XVI 
regulation regarding personal conferences.
    Section 404.506(e)(1) states that the individual is given the 
opportunity to ``appear personally'' at the personal conference. 
Current regulations do not further specify the method in which this 
appearance may be made. Our longstanding policy contained in Social 
Security Ruling (SSR) 94-4p, which implemented the decisions in 
Buffington, et al. v. Schweiker and Califano v. Yamasaki, provides that 
a face-to-face pre-recoupment hearing will be conducted prior to the 
denial of waiver of recovery of an overpayment. However, a face-to-face 
appearance at the field office is not always convenient for the 
beneficiary. Often, if an individual is not able to come to the face-
to-face conference, field office personnel will go to the person to 
hold the conference. Offering additional appearance options for the 
conference would improve service to the beneficiaries and reduce costly 
home visits by field personnel.
    In order to fulfill our stewardship responsibilities to the Social 
Security trust fund, we must employ methods that will simplify our 
personal conference procedures and use our resources most efficiently. 
We should be using all available technology when we conduct personal 
conferences. Therefore, we are revising the regulations to allow for 
personal conferences to be conducted face-to-face at a place we 
designate (usually in the field office), by telephone, or by video 
teleconference. We will give the choice to the individual; the 
individual will still be provided the opportunity to appear face-to-
face by choosing to come to us for the personal conference, or may 
choose to participate by telephone or video teleconference. If the 
individual elects to conduct the personal conference by video 
teleconference, the individual will designate the location for his or 
her end of the video teleconference. Any individual who is interested 
in conducting the personal conference by video teleconference can 
contact us for additional information and assistance with this process. 
Because we are offering claimants two new and convenient ways to 
participate in a personal conference--in addition to the face-to-face 
conferences at our field offices we currently offer--we believe the 
need for our personnel to make costly home visits will significantly 
decrease. Therefore, we will consider conducting face-to-face 
conferences at locations other than SSA field offices only on a case-
by-case basis, and only in those limited circumstances where: (a) a 
claimant has exhausted all other means of obtaining a personal 
conference, and (b) conducting a personal conference by any other means 
would be so inadequate, owing to a claimant's physical or mental 
condition, as to infringe upon the person's right to a hearing. This 
process is in no way meant to circumscribe an individual's right to 
reasonable accommodation or to relieve SSA of our responsibility to 
provide such accommodation in accordance with 29 U.S.C. 794.
    These final rules will not affect the individual's right to review 
the claims file, have a representative present for the proceedings, 
cross-examine witnesses, or submit documentary evidence. Those 
provisions will not change. For example, claimants who choose to 
conduct the personal conference via telephone or video teleconference 
will be given an opportunity to submit documentary evidence by mail or 
fax prior to the scheduled conference. If necessary, the conference 
could be rescheduled to allow claimants time to do this. In conducting 
the personal conference face-to-face at a place we designate, by 
telephone, or by video teleconference, we will be fulfilling our 
stewardship responsibilities while offering an additional convenience 
to the individual and continuing to protect the individual's right to 
present his or her contention that he or she meets the requirements for 
waiver of recovery of an overpayment. The decisionmaker will still be 
able to properly assess the person's contentions regarding fault under 
these new procedures.
    We already successfully conduct some hearings by telephone and by 
video teleconference. For example, the administrative review of an 
initial determination for Medicare Part D subsidies is conducted either 
by a telephone hearing or a case review. See Sec.  418.3625. 
Additionally, some administrative hearings to review claims under title 
II (including administrative law judge review of denial of waiver based 
on a personal conference), and other claims under title XVI are now 
conducted via video teleconferencing. See Sec. Sec.  404.936 and 
416.1436. Our experience in these contexts has demonstrated that these 
procedures adequately protect a claimant's due process rights.

Explanation of Changes

    We are changing the regulations in 20 CFR parts 404 and 416 to 
reflect the methods for conducting personal conferences when waiver of 
recovery of an overpayment cannot be approved as follows:
     We are changing the regulations at Sec.  404.506 to 
reflect the various methods we can use to conduct the personal 
conference. These methods are: face-to-face in a location we designate 
(usually in the field office), via telephone, or via video 
teleconference.
     Currently, part 416 has no reference to personal 
conferences when waiver of recovery of the overpayment cannot be 
approved. We are adding a new section that is similar to the 
regulations at Sec.  404.506. New Sec.  416.557 includes the various 
methods we can use to conduct the personal conference and describes the 
individual's rights and

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responsibilities regarding the personal conference.
    Since SSR 94-4p only provides for a pre-recoupment hearing that is 
conducted face-to-face before waiver of recovery of an overpayment can 
be denied, the changes in Sec. Sec.  404.506 and 416.557 expand that 
policy. Therefore, we are also publishing a notice rescinding SSR 94-4p 
concurrently with the effective date of these final rules on the same 
day we publish these final rules.

Public Comments

    On March 5, 2007, we published proposed rules in the Federal 
Register at 72 FR 9709 and provided a 60-day comment period. We 
received comments from two organizations and one individual. The 
comments from the individual were totally supportive of the proposed 
rules, noting that the rule will provide beneficiaries with practical 
options for presenting further evidence in favor of waiver of recovery, 
even when they cannot appear at the SSA office for a face-to-face 
conference. We carefully considered all of the comments in publishing 
these final rules. Because some of the comments were long and quite 
detailed, we have condensed, summarized and paraphrased them in the 
following discussion. However, we have tried to present all views 
adequately and to address carefully all of the significant issues 
raised by the commenters that are within the scope of the proposed 
rules. We have not addressed in this preamble comments that are outside 
the scope of the rulemaking proceeding.
    Comment: Both organizations which commented raised the concern that 
the regulations were not consistent with SSA's obligation under Section 
504 of the Rehabilitation Act to provide reasonable accommodation for 
disabled individuals. In support of this proposition, both commenters 
cited the example in the preamble. This example said that SSA would 
consider conducting a face-to-face personal conference at a location 
other than an SSA field office where the claimant was deaf and 
bedridden. The commenters were concerned that this implies that SSA 
will only provide accommodation and accessibility measures to the most 
severely limited program participants and not to all persons with 
disabilities.
    Response: The example in the preamble was not intended to represent 
the only type of situation in which SSA would consider conducting a 
face-to-face personal conference at a location other than an SSA field 
office. These requests will be decided on a case-by-case basis and will 
be consistent with our obligations under section 504 of the 
Rehabilitation Act to provide reasonable accommodation to disabled 
people. To avoid any confusion, we did not include the example in the 
preamble to these final rules.
    Comment: One organization commented that they felt that our 
criteria for considering conducting face-to-face conferences at 
locations other than SSA field offices (described in paragraph three of 
the ``Background'' section of the preamble), ``seems to circumscribe 
individual rights under section 504.'' They recommend that SSA either 
withdraw this statement or redraft it to be more consistent with 
section 504.
    Response: We do not feel that the description of when a face-to-
face personal conference will be conducted at a location other than an 
SSA field office circumscribes the claimant's rights in any way. In 
addition to conducting personal conferences face-to-face in the field 
office, the new rule offers beneficiaries two additional options for 
conducting personal conferences (by telephone and by video 
teleconferencing) and retains an option for face-to-face conferences at 
locations other than the field office on a case-by-case basis. We 
believe that this procedure is consistent with our obligation to 
provide reasonable accommodation under the Rehabilitation Act. However, 
to make our intent clear, we have added a sentence at the end of the 
paragraph explaining that the intent of this regulation is neither to 
circumscribe the individual's right to request reasonable accommodation 
nor to relieve SSA of its obligation to provide it in accordance with 
the law.
    Comment: One organization suggested that the regulation be more 
specific about the different ways in which a personal conference can be 
conducted, such as by text telephone. Both organizations which 
commented recommended that specific language be included in the 
regulation about SSA's responsibility to provide reasonable 
accommodation.
    Response: Our offices regularly conduct business via text 
telephone, relay services, and various other methods. These methods are 
all implied when we describe conducting a personal conference by 
telephone. As to the suggestion for including specific language in the 
regulation about SSA's responsibility to provide reasonable 
accommodation, we do not believe that this is necessary. Section 504 of 
the Rehabilitation Act already sets forth SSA's obligation to provide 
reasonable accommodation to disabled individuals. Our statement in 
paragraph three of the Background section of the preamble evidences our 
understanding of that obligation in the personal conference context.
    Comment: One of the organizations was concerned that local SSA 
offices may attempt to coerce claimants into choosing an option for 
conducting the personal conference that is most convenient for their 
office. They suggest that SSA require the distribution of information 
about a disabled individual's right to request reasonable accommodation 
in the personal conference process, and to ensure that employees in the 
field offices understand the importance of providing disabled 
individuals with this information.
    Response: The field office personnel deal with disabled claimants 
daily, and understand SSA's obligation to provide reasonable 
accommodation when requested. Also, as described in the regulation, it 
is the claimant who chooses the method for conducting the personal 
conference. We expect that they would select the option that best 
accommodates any limitations they may have.
    Comment: One commenter suggested that adjustment to recover the 
overpayment after waiver of recovery is denied should be delayed, if 
the claimant appeals the decision, until after the appeals process has 
ended. They state that this is a more equitable way of collecting the 
overpayments, particularly for disabled individuals with low incomes.
    Response: Beginning adjustment or recovery of an overpayment 
following denial of waiver of recovery does not constitute any change 
in existing policy. See Sec.  404.506(g). As stated under the 
``Explanation of Changes'' section of this preamble, part 416 did not 
have a reference to personal conferences when waiver of recovery of the 
overpayment cannot be approved. We simply added a new section that is 
similar to the regulations at Sec.  404.506 to the title XVI 
regulations that codifies the policies on personal conferences that 
have long been in place. Courts have found that this process comports 
with due process and with the statute. With regard to the commenter's 
concerns about recoupment from low-income title XVI beneficiaries, our 
regulations provide a 10 percent limitation of recoupment rate for 
title XVI overpayments in most cases. Additionally, individuals are 
given the opportunity to request that the adjustment or recovery be 
made at a lower rate than the one proposed. If an individual requests a 
lower rate, a rate of withholding that is appropriate to the

[[Page 1973]]

financial condition of the overpaid individual will be set after 
evaluation of all the pertinent facts. See Sec.  416.571.
    Comment: One organization was concerned that these changes will 
make it more difficult for the claimant to receive and provide 
pertinent information, and for SSA personnel to make credibility 
determinations. They are also concerned that many claimants, 
particularly those who can least afford to repay an overpayment, will 
not have access to technology such as video teleconferencing equipment.
    Response: As cited in the ``Background'' section of this preamble, 
SSA is already successfully conducting some hearings by telephone and 
by video teleconference, including administrative law judge review of 
denial of waiver based on a personal conference. As for a claimant's 
access to certain technological equipment, the method of conducting the 
personal conference is their choice and, as stated above, holding a 
face-to-face conference at a location other than the SSA field office 
will be considered on a case-by-case basis, if requested. Moreover, any 
individual who is interested in conducting the personal conference by 
video teleconference can contact us for additional information and 
assistance with this process.

Other Changes

    In addition to the changes already discussed above, we have made 
minor, non-substantive changes for clarification purposes only.

Regulatory Procedures

Executive Order 12866

    We have consulted with the Office of Management and Budget (OMB) 
and determined that these final rules meet the criteria for a 
significant regulatory action under Executive Order 12866, as amended. 
Thus, they were reviewed by OMB. We have also determined that these 
final rules meet the plain language requirement of Executive Order 
12866, as amended.

Regulatory Flexibility Act

    We certify that these final rules would not have a significant 
economic impact on a substantial number of small entities because they 
affect only individuals. Thus, a regulatory flexibility analysis as 
provided in the Regulatory Flexibility Act, as amended, is not 
required.

Paperwork Reduction Act

    These final rules contain information collection burdens in 
Sec. Sec.  416.557(c)(3) and 416.557(d)(8) that require OMB clearance 
under the Paperwork Reduction Act of 1995 (PRA). As required by the 
PRA, we have submitted a clearance request to OMB for approval of these 
sections. (As requested by OMB, we also included associated sections 
Sec. Sec.  404.506(e)(3) and 404.506(f)(8), which deal with personal 
conferences but are not included in the text of the regulation). We 
will publish the OMB number and expiration date upon approval.
    As required by the PRA, we published a notice of proposed 
rulemaking on March 5, 2007 at 72 FR 9709, in which we solicited 
comments under the PRA on the burden estimate; the need for the 
information; its practical utility; ways to enhance its quality, 
utility and clarity; and on ways to minimize the burden on respondents, 
including the use of automated collection techniques or other forms of 
information technology. No public comments were submitted relating to 
any of these issues.

(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, Blind, Disability benefits, 
Old-Age, Survivors and Disability Insurance; Reporting and 
recordkeeping requirements, Social Security.

20 CFR Part 416

    Administrative practice and procedure, Aged, Blind, Disability 
benefits, Public assistance programs, Reporting and recordkeeping 
requirements, Supplemental Security Income.

    Dated: November 30, 2007.
Michael J. Astrue,
Commissioner of Social Security.

0
For the reasons set out in the preamble, we are amending subpart F of 
part 404 and subpart E of part 416 of chapter III of title 20 of the 
Code of Federal Regulations as follows:

PART 404--FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE 
(1950-)

Subpart F--[Amended]

0
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. 3720A.


0
2. Section 404.506 is amended by adding a sentence at the end of 
paragraph (c) to read as follows:


Sec.  404.506  When waiver may be applied and how to process the 
request.

* * * * *
    (c) * * * We will offer to the individual the option of conducting 
the personal conference face-to-face at a place we designate, by 
telephone, or by video teleconference. The notice will advise the 
individual of the date and time of the personal conference.
* * * * *

PART 416--SUPPLEMENTAL SECURITY INCOME FOR THE AGED, BLIND, AND 
DISABLED

Subpart E--[Amended]

0
1. 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. 3720A.


0
2. Section 416.557 is added to read as follows:


Sec.  416.557  Personal conference.

    (a) If waiver cannot be approved (i.e., the requirements in Sec.  
416.550 (a) and (b) are not met), the individual is notified in writing 
and given the dates, times and place of the file review and personal 
conference; the procedure for reviewing the claims file prior to the 
personal conference; the procedure for seeking a change in the 
scheduled date, time and/or place; and all other information necessary 
to fully inform the individual about the personal conference. The file 
review is always scheduled at least 5 days before the personal 
conference. We will offer to the individual the option of conducting 
the personal conference face-to-face at a place we designate, by 
telephone, or by video teleconference. The notice will advise the 
individual of the date and time of the personal conference.
    (b) At the file review, the individual and the individual's 
representative have the right to review the claims file and applicable 
law and regulations with the decisionmaker or another of our 
representatives who is prepared to answer questions. We will provide 
copies of material related to the overpayment and/or waiver from the 
claims file or pertinent sections of the law or regulations that are 
requested by the individual or the individual's representative.

[[Page 1974]]

    (c) At the personal conference, the individual is given the 
opportunity to:
    (1) Appear personally, testify, cross-examine any witnesses, and 
make arguments;
    (2) Be represented by an attorney or other representative (see 
Sec.  416.1500), although the individual must be present at the 
conference; and
    (3) Submit documents for consideration by the decisionmaker.
    (d) At the personal conference, the decisionmaker:
    (1) Tells the individual that the decisionmaker was not previously 
involved in the issue under review, that the waiver decision is solely 
the decisionmaker's, and that the waiver decision is based only on the 
evidence or information presented or reviewed at the conference;
    (2) Ascertains the role and identity of everyone present;
    (3) Indicates whether or not the individual reviewed the claims 
file;
    (4) Explains the provisions of law and regulations applicable to 
the issue;
    (5) Briefly summarizes the evidence already in file which will be 
considered;
    (6) Ascertains from the individual whether the information 
presented is correct and whether he/she fully understands it;
    (7) Allows the individual and the individual's representative, if 
any, to present the individual's case;
    (8) Secures updated financial information and verification, if 
necessary;
    (9) Allows each witness to present information and allows the 
individual and the individual's representative to question each 
witness;
    (10) Ascertains whether there is any further evidence to be 
presented;
    (11) Reminds the individual of any evidence promised by the 
individual which has not been presented;
    (12) Lets the individual and the individual's representative, if 
any, present any proposed summary or closing statement;
    (13) Explains that a decision will be made and the individual will 
be notified in writing; and
    (14) Explains repayment options and further appeal rights in the 
event the decision is adverse to the individual.
    (e) SSA issues a written decision to the individual (and his or her 
representative, if any) specifying the findings of fact and conclusions 
in support of the decision to approve or deny waiver and advising of 
the individual's right to appeal the decision. If waiver is denied, 
adjustment or recovery of the overpayment begins even if the individual 
appeals.
    (f) If it appears that the waiver cannot be approved, and the 
individual declines a personal conference or fails to appear for a 
second scheduled personal conference, a decision regarding the waiver 
will be made based on the written evidence of record. Reconsideration 
is the next step in the appeals process.

[FR Doc. E8-314 Filed 1-10-08; 8:45 am]
BILLING CODE 4191-02-P