Methods for Conducting Personal Conferences When Waiver of Recovery of a Title II or Title XVI Overpayment Cannot Be Approved, 1970-1974 [E8-314]
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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:
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I
PART 39—AIRWORTHINESS
DIRECTIVES
1. The authority citation for part 39
continues to read as follows:
I
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[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:
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[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.
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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 https://www.socialsecurity.gov.
SUPPLEMENTARY INFORMATION:
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Electronic Version
The electronic file of this document is
available on the date of publication in
the Federal Register at https://
www.gpoaccess.gov/fr/.
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
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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
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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
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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 §§ 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
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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.
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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
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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.
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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
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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
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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.
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(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]
=======================================================================
-----------------------------------------------------------------------
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 https://
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 https://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
[[Page 1972]]
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
