Use of Electronic Payroll Data To Improve Program Administration, 11773-11788 [2024-02961]
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Proposed Rules
Federal Register
Vol. 89, No. 32
Thursday, February 15, 2024
This section of the FEDERAL REGISTER
contains notices to the public of the proposed
issuance of rules and regulations. The
purpose of these notices is to give interested
persons an opportunity to participate in the
rule making prior to the adoption of the final
rules.
SOCIAL SECURITY ADMINISTRATION
20 CFR Parts 404, 416, and 422
[Docket No. SSA–2016–0039]
RIN 0960–AH88
Use of Electronic Payroll Data To
Improve Program Administration
Social Security Administration.
Notice of proposed rulemaking.
AGENCY:
ACTION:
Section 824 of the Bipartisan
Budget Act of 2015 (BBA) authorizes the
Commissioner of Social Security to
enter into information exchanges with
payroll data providers to obtain wage
and employment information. We use
wage and employment information to
administer the Old-Age, Survivors, and
Disability Insurance (OASDI) disability
and Supplemental Security Income
(SSI) programs under titles II and XVI of
the Social Security Act (Act). We are
proposing these rules pursuant to
section 824 of the BBA, which requires
us to prescribe, by regulation,
procedures for implementing the access
to and use of the information held by
payroll data providers. We expect these
proposed rules will support proper use
of information exchanges with payroll
data providers that will help us
administer our programs more
efficiently and prevent improper
payments under titles II and XVI of the
Act, which can otherwise occur when
we do not receive timely and accurate
wage and employment information.
DATES: To ensure that your comments
are considered, we must receive them
no later than April 15, 2024.
ADDRESSES: You may submit comments
by any one of three methods—internet,
fax, or mail. Do not submit the same
comments multiple times or by more
than one method. Regardless of which
method you choose, please state that
your comments refer to Docket No.
SSA–2016–0039 so that we may
associate your comments with the
correct rule.
Caution: You should be careful to
include in your comments only
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SUMMARY:
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information that you wish to make
publicly available. We strongly urge you
not to include in your comments any
personal information, such as Social
Security numbers or medical
information.
1. Internet: We strongly recommend
that you submit your comments via the
internet. Please visit the Federal
eRulemaking portal at https://
www.regulations.gov. Use the Search
function to find docket number SSA–
2016–0039. The system will issue a
tracking number to confirm your
submission. You will not be able to
view your comment immediately
because we must post each comment
manually. It may take up to a week for
your comment to be viewable.
2. Fax: Fax comments to 1–833–410–
1631.
3. Mail: Mail your comments to the
Office of Legislation and Congressional
Affairs, Regulations and Reports
Clearance Staff, Social Security
Administration, Mail Stop 3253
Altmeyer, 6401 Security Boulevard,
Baltimore, Maryland 21235–6401.
Comments are available for public
viewing on the Federal eRulemaking
portal at https://www.regulations.gov or
in person, during regular business
hours, by arranging with the contact
person identified below.
FOR FURTHER INFORMATION CONTACT:
Nicole Dunham, Policy Analyst, Office
of Supplemental Security Income and
Program Integrity Policy, Social Security
Administration, 6401 Security
Boulevard, Baltimore, Maryland 21235–
6401, (410) 966–9078. 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:
Background
We administer the OASDI disability
and SSI programs under titles II and XVI
of the Act, respectively. The OASDI
program pays benefits to individuals
who meet certain requirements,
including those who are disabled and
insured for disability.1 OASDI also pays
benefits to certain members of disabled
1 See 20 CFR 404.315 for a full list of the OASDI
disability eligibility requirements.
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individuals’ families.2 We refer to
meeting the requirements for OASDI
disability benefits as OASDI disability
‘‘entitlement.’’ The SSI program
provides financial support to: (1) adults
and children with a disability or
blindness; and (2) adults aged 65 and
older. These individuals must meet all
program eligibility requirements,
including having resources and income
below specified amounts.3 We refer to
meeting the factors of eligibility for SSI
payments as SSI ‘‘eligibility.’’
We take seriously our responsibilities
to ensure eligible individuals receive
the benefits to which they are entitled
and to safeguard the integrity of benefit
programs to better serve our customers.
Our commitment includes working to
ensure we have accurate wage data as
quickly as practicable to avoid
overpayments before they occur or
correct them quickly.
We use wage and employment
information to decide who can receive
OASDI disability benefits and SSI
payments. We also use it to determine
SSI payment amounts. Receiving
complete, accurate, and timely wage
and employment information allows us
to administer our programs efficiently
and to avoid improper payments that
can occur when we do not have such
information. Reviews of postentitlement cases show that substantial
gainful activity (SGA) 4 continues to be
the leading cause of overpayments in
the OASDI disability program. In fact,
SGA-related overpayments in the
OASDI program averaged approximately
$500 million annually as of fiscal year
2022.5 Further, wage discrepancies,
2 This can include, for example, a child of the
disabled individual, a child of the disabled
individual entitled to an adult child disability
benefit, a spouse caring for a minor or disabled
child of the disabled individual, or retirement
benefits for a spouse age 62 or older of the disabled
individual. See 20 CFR 404.330, 404.350, 404.351.
3 See 20 CFR 416.202 for a full list of the SSI
eligibility requirements.
4 A requirement for disability for both OASDI
disability and SSI is that you cannot be engaged in
SGA, which is defined as work that involves
significant and productive physical or mental
duties, and is done, or intended to be done, for pay
or profit. 20 CFR 404.1510, 404.1520(b), 416.910,
416.920(b).
5 FY2023 Agency Financial Report, page 180,
available at https://www.ssa.gov/finance/2023/
Full%20FY%202023%20AFR.pdf. Beneficiaries’
failure to report earnings in a timely manner
accounted for 82 percent of SGA-related improper
payments and our failure to take the proper actions
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which reached an annual average of
approximately $1.4 billion in improper
payments as of fiscal year 2022, have
been a leading cause of improper
payments in the SSI program for more
than a decade.6
Currently, we rely on individuals to
report certain wage and employment
information to us. Individuals who are
entitled to OASDI disability must report
to us when their condition improves,
when they return to work, when they
increase the amount they work, and
when their earnings increase.7
Individuals who are eligible for SSI
based on disability or blindness must
make similar reports.8 All SSI recipients
and deemors 9 must also report to us any
change in income 10 as soon as a
reportable event happens.11 For OASDI
disability and SSI, they can report these
changes by phone, fax, mail, in
person,12 or by using mySocialSecurity.
In many cases, SSI recipients may also
report wages through the SSA Mobile
Wage Reporting (SSAMWR) application
and the SSI Telephone Wage Reporting
(SSITWR) system. We may also request
this information from the employer(s) or
payroll data providers when the
information we receive is incomplete or
to process work reports accounted for the
remainder.
6 Id. at 184 and 185. Wage discrepancies occur
when the recipient or their deemor has actual wages
that differ from the wage amount we used to
calculate the SSI payment, either because the
recipient failed to report a change, or we failed to
make changes to payments in a timely manner.
7 See 20 CFR 404.1588(a). We require reporting an
increase in work or earnings because that may
indicate the beneficiary has performed SGA (see 20
CFR 404.1572 and 404.1574) and will no longer be
entitled to an OASDI disability benefit (20 CFR
404.1520(b)).
8 See 20 CFR 416.988. As with OASDI disability,
we require these reports because they may indicate
SGA (see 20 CFR 972 and 416.974), which may
affect SSI eligibility (20 CFR 416.920(b)).
9 A deemor is any person whose income or
resources are material to determining the eligibility
of someone filing for or receiving SSI. 20 CFR
416.1160; SI 01310.127.
10 See 20 CFR 416.708(c). Income in our SSI
regulations is a broad term that includes ‘‘anything
you receive in cash or in kind that you can use to
meet your daily needs for food and shelter.’’ See 20
CFR 416.1102. One type of income is wages, which
are divided into two categories: wages paid in cash
and wages paid in kind. See 20 CFR 416.1110.
Wages paid in cash may include salaries,
commissions, bonuses, severance pay, and any
other special payments received because of
employment. Id.
11 See 20 CFR 416.714.
12 When we receive reports by phone, fax, mail,
or in person, our technicians process them
manually. Manual processing by technicians
includes calculating the total wage amount for the
month, posting the amount to the record, and
providing a receipt to the customer. Electronic
methods of reporting accept wage reports on any
day during the reporting month. Wage reports
submitted by electronic methods are automatically
posted to the record and the payment is adjusted
accordingly.
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we are unable to obtain it from the
individual. Because many individuals
work in jobs where earnings may vary
from week to week, some individuals
report these changes to us each month
or more frequently. In FY 2022, we
received 1.1 million wage reports 13 for
individuals who received OASDI
disability or OASDI disability and SSI
concurrently, and who were in current
pay status (this does not include SSI
only wage reports). Though we strive to
make reporting as easy as possible,
individuals must keep track of their
reportable events, report them as soon
as they happen, and spend time making
the reports, which can be
burdensome.14 We estimate that there
are about 1,100,000 OASDI disability
beneficiaries, between 200,000 and
300,000 SSI recipients, and another
500,000 to 600,000 deemors of SSI
recipients who work in a given year.
Despite the many reporting options, we
do not always receive complete or
timely reports. Even when we receive
complete reports, we may still need to
verify them with independent or
collateral sources when we do not have
proper wage evidence to verify the
report, such as a paystub. Currently, to
verify wage reports, we conduct a
manual query, requesting records from
payroll data providers, and sometimes
employers, on a case-by-case basis. This
is time-consuming, prolongs the
resolution of the case, and adds to our
workloads. An automated information
exchange would allow us to obtain this
information more efficiently because it
could automatically process large
numbers of queries at once.
As we discuss later in this proposed
rule, when individuals become eligible
for reduced reporting responsibilities,
we would no longer burden them with
frequent reporting of certain wage
information. They would no longer need
to keep track of certain reportable
events, report them as soon as they
happen, and spend time making the
13 A ‘‘wage report’’ is anytime SSA becomes
aware of wages, whether through self-reporting
(mail, fax, office visit, or a self-report through an
electronic method), third party data provider, IRS
annual wage data, or State reported wage data.
14 To be considered in time to process a particular
month’s payment, SSI recipients or their
representative payees must report income changes
within the first ten days of the month following the
month of change (20 CFR 416.714). Receiving this
information earlier in the month allows us more
time to calculate the correct payment, send a Notice
of Planned Action (NOPA) when an adverse action
applies, and adjust benefits for the following
month. If a change is reported after the first ten days
of the month and the change results in a change in
the recipient’s payment amount, then it is likely
that we will not be able to adjust benefits for the
following month, resulting in an overpayment or
underpayment.
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reports. Further, we would no longer
need to burden employers with requests
for this information. As discussed in the
regulatory analysis section, we project
that identifying overpayments more
quickly will reduce the quantity and
size of overpayments, benefitting both
recipients and employers, and better
fulfill our stewardship obligations.
Section 824 of the BBA and the
Proposed Automated Process
Section 824 of the BBA 15 authorizes
the Commissioner of Social Security to
enter into information exchanges with
payroll data providers 16 to obtain wage
and employment information. It
authorizes these information exchanges
for the purposes of efficient program
administration and to prevent improper
OASDI disability and SSI payments 17
without the need for verification by
independent or collateral sources.18
Section 824 adds a new section 1184 to
the Act and also adds language to
sections 225 and 1631(e) of the Act 19 to
clarify the role that information
exchanges will play in determining
payment amount and making eligibility
and entitlement determinations and
decisions for the OASDI disability and
SSI programs.
As discussed above, we require wage
and employment information to
administer the OASDI disability and SSI
programs. An information exchange
would allow us to automate the process
of obtaining and recording the wage and
employment data we receive from a
payroll data provider through the
information exchange to the appropriate
OASDI disability and SSI systems
records.20 We will use this information
15 Public
Law 114–74, 129 Stat. 584, 607.
data providers’’ include payroll
providers, wage verification companies, and other
commercial or non-commercial entities that collect
and maintain information regarding employment
and wages. 42 U.S.C. 1320e–3(c)(1).
17 Under 42 U.S.C. 1320e–3(a)(1) the information
exchange is limited to disability insurance
beneficiaries (those under subsections (d)(1)(B)(ii),
(d)(6)(A)(ii), (d)(6)(B), (e)(1)(B)(ii), and (f)(1)(B)(ii) of
section 202 and subsection (a)(1) of section 223)
and supplemental security income benefits under
title XVI. The law does not allow us to use the
information exchange to obtain wage information
for other beneficiaries under Title II (e.g.,
individuals who continue to work while receiving
old-age benefits).
18 42 U.S.C. 1320e–3(a). ‘‘Information exchanges’’
are the automated comparison of our system(s) of
records with information of payroll data providers.
42 U.S.C.. 1320e–3(c)(2).
19 42 U.S.C. 425, 1320e–3, and 1383(e).
20 Implementation of the information exchange
will not affect our quarterly data-matches with the
National Directory of New Hires (NDNH) or our
annual match with the Master Earnings File, both
which supply us with limited wage data. The
NDNH is a federally mandated national repository
of employment, unemployment insurance, and
quarterly wage information submitted by state
16 ‘‘Payroll
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to efficiently administer OASDI and SSI
benefits, including adjusting payment
amounts and making entitlement or
eligibility determinations for the OASDI
disability and SSI programs based on
the information we receive from a
payroll data provider. We will also use
this information to avoid making
improper payments of those benefits.
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Advantages of Using Information
Exchanges With Payroll Data Providers
We expect that receiving monthly
wage and employment information for
our claimants, beneficiaries, recipients,
and deemors 21 automatically through
an information exchange with a payroll
data provider who provides sufficiently
accurate, up-to-date, and complete
information will improve payment
accuracy. It will also reduce improper
payments that occur when we do not
receive wage or employment reports
timely (although, as indicated in the
E.O. 12866 analysis section, we do not
estimate the reduction in improper
payments). Further, this process would
reduce the burden of self-reporting on
individuals who authorize us to obtain
wage and employment information from
a participating payroll data provider and
we receive their wage and employment
information from their employer
through an information exchange.
Additionally, individuals who provide
authorization would not be subject to
certain penalties under section 1129A of
the Act 22 for any omission or error with
respect to wages reported by a
participating payroll data provider (in
FY 2022 we performed 54 cases of
administrative sanctions in the SSI
program and 82 administrative
sanctions in the Social Security
Disability Insurance (SSDI) program; in
FY 2023 it was 59 cases and 24 cases,
respectively). We define a participating
payroll data provider as a payroll data
provider that has an information
exchange arrangement with us to
provide wage and employment
information.
We anticipate that implementation of
an information exchange would result
in more efficient use of our limited
administrative resources. If we receive
directories of new hires, state workforce agencies,
and Federal employers. The Master Earnings File
contains data derived from IRS Form W–2,
quarterly earnings records, and annual income tax
forms. These data include regular wages and
salaries, tips, self-employment income, and
deferred compensation (contributions or
distributions).
21 As explained above, a deemor is any person
whose income or resources are material to
determining the eligibility of someone filing for or
receiving SSI. 20 CFR 416.1160; SI 01310.127.
22 42 U.S.C. 1320a–8a. See also 20 CFR 404.459
and 416.1340.
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wage and employment information
through an information exchange with a
participating payroll data provider, our
technicians can reduce the amount of
time spent manually requesting this
information from payroll data providers
and employers, manually entering data
into our systems from an individual’s
pay records, contacting individuals, and
assisting individuals with the results of
incomplete or untimely reporting.
Solicitation for Payroll Data Provider
In May 2019, we solicited proposals
for payroll providers using full and
open competition in accordance with
Federal Acquisition Regulations (FAR)
Part 15. As stated in our solicitation, we
based our award decision on a trade-off
process (best value), considering both
price and non-price factors.23
Equifax Workforce Solutions (Equifax)
was the only payroll provider to
respond to our solicitation. We
evaluated the proposal against the
evaluation criteria listed above, which
consisted of technical approach,
corporate experience, past performance,
and price. The Technical Evaluation
Committee 24 determined the Non-Price
Proposal to be acceptable and assigned
favorable ratings for the three non-price
factors. The Contracting Officer
evaluated the Business Proposal (i.e.,
price proposal) and determined the
proposed prices were fair and
reasonable according to FAR 15.404–
1(b) and the terms of the solicitation. In
September 2019, the agency awarded
the Payroll Information Exchange
contract to Equifax, as we determined
Equifax offered the best value to the
government, all factors considered.25
Accuracy Study
We conducted an accuracy study 26 of
data we received from Equifax through
a database known as The Work
23 In accordance with FAR Subpart 15.101–1(a), a
trade-off process is appropriate when it may be in
the best interest of the Government to consider
award to other than the lowest priced offeror or
other than the highest rated offeror. The non-price
factors (listed in descending order of importance)
used were: 1. Technical approach, 2. Corporate
experience, and 3. Past performance. The
solicitation stated factors 1, 2, and 3 when
combined were approximately equal in importance
to price.
24 The Technical Evaluation Committee supports
the source selection for the acquisition. It is
typically comprised of no more than three
individuals with the appropriate technical expertise
to evaluate proposals in accordance with the
solicited evaluation factors.
25 We published notice of our information
exchange with Equifax, pursuant to section 824 of
the BBA, on January 19, 2021. 86 FR 5303.
26 The study, ‘‘Evaluation of Payroll Information
Exchange (PIE) Wage Data Accuracy,’’ is available
in the rulemaking record at www.regulations.gov as
a supporting document for Docket SSA–2016–0039.
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Number.27 Equifax reports that The
Work Number covers over two-thirds of
non-farm payroll, although neither SSA
nor Equifax has analyzed whether
working disability benefit recipients are
represented in a similar proportion in
the database. This study compared wage
and employment information we
received from Equifax to wage and
employment information we obtained
from paystubs that users uploaded to
the SSAMWR application, an online
wage reporting tool currently available
to SSI recipients, deemors, and their
representative payees. We identified
about 40,000 samples from March 2022
through September 2022 where both
Equifax and SSAMWR had information
on the same paystub for the same
employee, employer, and time period.28
We then compared the information that
Equifax and SSAMWR had for these
paystubs using the following four
variables: pay period start date, pay
period end date, pay date, and gross
earnings amount.
We evaluated the accuracy through
two steps. First, we matched seven
months of information exchange records
to SSAMWR based on SSN and pay
periods as identified by the variables
pay period start date, pay period end
date, and pay date. Of the roughly
40,000 records with SSNs in both
datasets, we found that 80.43% exactly
matched both gross earning and all date
fields. In 13.35% of the cases all dates
matched but gross earnings did not. In
the remainder of the cases there were
iterations of partial earnings matches
but with inaccurate dates.
To study the cause of the 7,976 cases
with matching errors, our second step
was to randomly sample 4% (341) and
manually review the cases. We first
found that a large source of gross
earnings match errors between
information exchange data and
SSAMWR were due to optical scanning
inaccuracies from our SSAMWR file
compared with the actual photo of the
paystub the beneficiary had uploaded to
SSAMWR. To further determine the
accuracy of information exchangereported data, we compared the
information exchange data against
actual images of the paystubs which
27 We performed a limited period of exchanges
through September 2022 with Equifax. We used this
data to test systems we created to receive, interpret,
and incorporate the data Equifax sent. We were also
able to use this data to perform this accuracy study.
28 The sampling choices limit the types of
conclusions that can be drawn about the accuracy
of Equifax’s data across the entire covered
population. For example, if Equifax reports payroll
information on an individual who was not working
during a pay period, such an error would lower the
true accuracy of using the Equifax database but
would not be identified in this study.
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were submitted in SSAMWR. Through
this process, we determined that in
77.4% of the sampled cases,29 all dates
and gross earnings matched between the
information exchange and the true
paystub.
By extrapolating this sample to the
broader set of 7,976 cases where there
were initial mismatches between
information exchange records and
SSAMWR, we concluded that in 95.6
percent 30 of the original roughly 40,000
cases, all four variables matched
between the actual paystub and the
information exchange record. Although
some data differed in 4.4 percent of
these cases between Equifax and
SSAMWR, the study did not determine
whether the differences would have
affected our benefit determinations. For
example, one of the pay period variables
we evaluated, pay period start date,
would have no discernable impact on
benefit determinations.31 While some
other variable inconsistencies likewise
may have had little or no impact on
benefit determinations, potential errors
related to total pay (such as over- or
under-reporting actual income) could
result in us initiating an action to
change benefit amount.32
Based on the results of this accuracy
study, we are confident the information
exchange will supply the accurate wage
and employment information we need
to make benefit determinations in most
circumstances.
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Requirements of Section 824 of the BBA
Section 824(d) of the BBA 33 requires
us to publish regulations prescribing
29 The 95 percent confidence interval for this
estimate had a lower bound of 73.0 percent and an
upper bound of 81.8 percent.
30 The 95 percent confidence interval for this
estimate had a lower bound of 94.7 percent and an
upper bound of 96.5 percent.
31 The pay period start date obtained through this
exchange is not used for benefit determinations. For
OASDI disability determinations, we use pay period
end date, gross earnings, and sometimes pay date.
For SSI determinations, we use only the pay date
and gross earnings. When we removed the pay
period start date variable from the study data, the
match rate increased from 95.6 percent to 97.1
percent.
32 Regarding the sample of cases that did not
match on gross earnings, representing roughly half
of the 4.4 percent of mismatched data, the study did
not determine, for example, whether the mismatch
in gross earnings was a significant difference that
would result in an incorrect benefit determination.
Mismatched earnings may not impact benefit
eligibility or amounts if the earnings are below
relevant thresholds or not relevant to the
calculation based on when they are paid (for SSI)
or earned (for OASDI disability). The study did not
determine how mismatched cases impacted benefit
determinations. Also, the study only looked at
single instances of paystubs and not the full
monthly earnings amount. Therefore, the study was
unable to determine the true impact of those
inaccuracies.
33 Public Law 114–74, 129 Stat. 584, 610.
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procedures for implementing the access
and use of the information held by
payroll data providers, including: (1)
guidelines for establishing and
maintaining information exchanges with
payroll data providers, pursuant to
section 1184 of the Act; (2) beneficiary
authorizations; (3) reduced wage
reporting responsibilities for individuals
when they authorize us to access
information held by payroll data
providers through an information
exchange; and (4) procedures for
notifying individuals in writing when
they become subject to such reduced
wage reporting requirements and when
such reduced wage reporting
requirements no longer apply to them.
We discuss each of these four items
below.
1. Guidelines for Establishing and
Maintaining Information Exchanges
With Payroll Data Providers
As discussed above, we need wage
and employment information to decide
who can receive OASDI disability
benefits and SSI payments and to
determine SSI payment amounts.34
Although individuals are required to
report this information to us, they do
not always report it to us timely or
provide complete information. As
required by section 824 of the BBA, we
propose to prescribe guidelines for
establishing and maintaining an
information exchange.
To establish an information exchange,
we will identify the payroll data
providers (as defined in proposed
§§ 404.702 and 416.702) that may be
interested in participating in an
information exchange with us. Before
we establish an information exchange
with a payroll data provider, we will
consider such factors as the provider’s
ability and willingness to: engage in an
information exchange; provide us with
wage and employment information that
includes all necessary data elements
needed to make program determinations
and payment amount decisions; and
provide data that is sufficiently
accurate,35 complete,36 and up-to34 Section 824 of the BBA also permits us to
obtain wage and employment information from a
participating payroll data provider for the purpose
of making OASDI disability benefit amount
determinations. 42 U.S.C. 1320e–3(b)(1)(A).
Currently, we do not use wage and employment
information from a payroll data provider for OASDI
disability benefit amount determinations.
35 By ‘‘accurate’’ we mean that the exchange
supplies the correct wage and employment
information received for the requested individual.
36 By ‘‘complete’’ we mean the wage and
employment information received from the
participating payroll data provider contains all the
required data elements necessary for us to make
determinations and decisions regarding entitlement
under title II of the Act. and eligibility and payment
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date.37 We will also consider and
evaluate any conditions and limitations
associated with our receipt of the data.
Any arrangement with a selected
payroll data provider will describe: the
records to be matched; the procedure for
conducting the match; any requirements
established relating to ensuring records
are accurate, complete, and up-to-date;
procedures for ensuring the
administrative, technical, and physical
security of the records matched; and
such other provisions as are necessary.
Further, before we enter into an
information exchange,38 we will publish
a notice in the Federal Register
describing the information exchange,39
including our assessment that the
information received through the
exchange is relevant and necessary to
administer our programs and an
explanation for why the information is
sufficiently accurate, complete, and upto-date. Receiving accurate, complete,
and up-to-date, information from an
information exchange is necessary to
allow us to decide claims earlier and
avoid improper payments that may arise
from untimely, incomplete, or missing
wage and employment reports.
Once we enter into an information
exchange with a payroll data provider,
we will maintain the information
exchange by periodically assessing
whether the data we receive continues
to be accurate, complete, and up-to-date.
We will also monitor compliance with
the requirements of the information
exchange.
2. Beneficiary Authorizations
When an individual applies for
benefits under OASDI disability or SSI,
we will request authorization from the
individual to obtain their wage and
employment information from a payroll
data provider.40 We will also ask for
amounts under title XVI of the Act. We note that,
in cases in which our current participating payroll
data provider cannot supply all the wage and
employment information we require to make benefit
determinations, we investigate further to gather
additional information.
37 By ‘‘up-to-date’’ we mean the latest wage and
employment information received from the payroll
data provider each month. For example, our current
participating payroll data provider makes wage and
employment information available within 24 hours
of receipt from employers.
38 We have interpreted this to mean before
implementing an information exchange by data
sharing, which would occur after establishing an
arrangement with a payroll data provider (e.g.,
contract) to develop the exchange.
39 On January 19, 2021, we published a notice in
the Federal Register that provided advance
notification to the public regarding an information
exchange we established with Equifax (86 FR 5303).
To date, that is the only information exchange we
have established under section 824 of the BBA.
40 The law allows SSA to require the
authorization. SSA has decided that we will request
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authorization during other postentitlement events, such as a
redetermination for SSI. Although we
have not started using payroll data, in
anticipation of implementing the
information exchange, we began
collecting authorizations in late 2017
(which we currently collect via paper
form or through attestation).41 In the
future, we could accept authorization
electronically. For OASDI disability, we
request authorization from individuals
who apply for or are entitled to
benefits.42 For SSI, we request
authorization from individuals who
apply for or receive SSI, as well as
deemors, ineligible children, and
individuals who turn age 18.43 An
authorization applies to all pending and
approved claims under the specific
program until the authorization is
revoked or terminated.
When we request authorization, we
explain the authorization’s scope and
duration. With regard to scope, we
explain that we will use the
authorization to obtain information from
a payroll data provider to determine
initial or ongoing entitlement to
disability benefits for OASDI, as well as
eligibility and payment amounts for SSI.
We also explain that we may use the
authorization for additional claims
associated with the claim filed, such as
an SSI claim by a spouse or child. In
addition, we explain how we may use
and disclose records obtained from
payroll data providers consistent with
applicable Federal law and any privacy
notices we provide the individual. For
example, we may use the individual’s
wage and employment information to
decide whether they may be entitled to
or eligible for benefits under both the
this authorization on a voluntary basis, and that
there will be no automatic assumption of inclusion
without obtaining prior authorization. Under the
law, individuals may refuse to provide this
authorization and may revoke it. We will follow the
BBA 824 requirements about the specific
information to be provided with the authorization.
41 Attestation is the action taken by an SSA
employee of confirming and annotating on record
the proper individual’s intent to sign an SSA form.
42 For OASDI disability, we request authorization
at the initial claim, expedited reinstatement (EXR),
and work continuing disability review (CDR) stages.
When unsuccessful or if the individual is not
available to provide authorization at the time we
request it, we mail the paper SSA–8240 to the
authorizing person, including a cover letter
indicating the individual should complete, sign,
and return the paper SSA–8240 form.
43 For SSI, we request authorization at the full
and deferred initial claims, and redetermination
stages. We attempt to collect the authorization
verbally and record it in our relevant system of
record. When unsuccessful or if the individual is
not available to provide authorization at the time
we request it, we mail the paper SSA–8240 to the
authorizing person, including a cover letter
indicating the individual should complete, sign,
and return the paper SSA–8240 form.
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OASDI disability and SSI programs,
even if the individual’s authorization
was given for only one of those
programs.
With respect to the duration of an
authorization, we inform individuals
that the authorization remains in effect
until the earliest of the following occurs:
(a) the individual revokes their
authorization in writing;
(b) we terminate all entitlement(s) to
benefits or eligibility for payments,
there are no other claims or appeals
pending, and all periods for appealing
the determination or decision to
terminate entitlement or eligibility have
lapsed; 44
(c) there has been an adverse
determination or decision under the
OASDI disability or SSI program, and,
for that program, the individual is not
otherwise currently entitled to benefits
or eligible for payments, there are no
other claims or appeals pending, and
the period for appealing the adverse
determination or decision has lapsed; or
(d) for SSI deemors, the deeming
relationship ends.45
Individuals may revoke their
authorization in writing at any time. If
they revoke their authorization, we will
apply the revocation to all pending or
approved claims under the OASDI
disability and SSI programs from the
time we process the revocation,
including claims involving deemors. If
the authorization is revoked, we will no
longer request new information from
payroll data providers for that
individual.
3. Reduced Wage Reporting
Responsibilities When Individuals
Authorize Us To Access Information
Held by Payroll Data Providers Through
an Information Exchange
Currently, if individuals become
entitled to OASDI disability or eligible
for SSI, they must report certain wage
and employment information to us. We
use this information to make program
determinations. We expect that, once
implemented, the information
exchanges will help us reduce the wage
reporting obligations of some
44 In cases with multiple claims, if one of the
claims has an adverse determination or decision
and the appeals period for that determination or
decision has ended or the benefits terminate, we
will no longer use the authorization for that specific
claim. However, we will continue to use the
authorization for all other current claims under the
program for which the individual provided
authorization and there is no other reason to end
the authorization.
45 Additionally, if a parent or legal guardian gave
us the initial authorization for an individual who
is not a legally incompetent adult, the authorization
will terminate when the individual turns 18 years
of age. See, e.g., POMS SI 00515.001.C.
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11777
individuals. Further explanation
follows.
Under section 824 of the BBA and
these regulations, when individuals
apply for or become entitled to a benefit
based on disability under OASDI or any
type of benefit under SSI and they
authorize us to obtain information from
payroll data providers, their reporting
responsibilities may be reduced. The
reduced wage reporting responsibilities
depends on whether we receive their
wage and employment information for
their employer(s) through a
participating payroll data provider. We
will send a notice to individuals
whenever their wage reporting
responsibilities change, as discussed in
the next section.
Under our current rules, individuals
who are entitled to OASDI disability
must report to us when their condition
improves, when they return to work,
when they increase the amount they
work, or if their earnings increase.46
There are many ways to do this. As
mentioned above, individuals receiving
OASDI disability can report changes in
work activity by phone, fax, mail, in
person, or online via their
mySocialSecurity account. Under the
proposed rules, we would require
reporting only when their condition
improves, they return to work, or they
have a new employer. However, if
individuals provide authorization and
we receive their wage and employment
information from their employer(s)
through a participating payroll data
provider, they would no longer have to
report an increase in the amount of their
work or an increase in their earnings
with that employer, because we will
obtain that information directly from the
payroll data provider.
For SSI, wage reporting
responsibilities may affect both
eligibility and the payment amount.
Individuals must report events that
might change their disability or
blindness status, including when their
condition improves, when they return to
work, when they increase the amount of
their work, or when their earnings
increase.47 To determine SSI eligibility
and payment amount, we require
individuals to report various events to
us, among them any change in income 48
and individuals must report to us as
46 20 CFR 404.1588(a). We require reporting an
increase in work or earnings because that may
indicate that the beneficiary has performed
substantial gainful activity (see 20 CFR 404.1572
and 404.1574) and will no longer be entitled to an
OASDI disability benefit (20 CFR 404.1520(b)).
47 See 20 CFR 416.988.
48 See 20 CFR 416.708(c).
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soon as a reportable event happens.49 As
mentioned above, individuals receiving
SSI can report changes in work activity
by phone, fax, mail, in person, online
via their mySocialSecurity account, or
by using SSAMWR or SSITWR.
However, if individuals provide
Program
Reporting responsibilities under current regulations
OASDI disability ......
Individuals must report to us when:
• their condition improves:
• they return to work;
• they increase the amount they work; or
• their earnings increase.
Individuals must report to us any change in income as
soon as a reportable event happens.
They must also report to us when:
• their condition improves;
• they return to work;
• they increase the amount they work; or
• their earnings increase.
See § 416.708 for additional reporting requirements.
SSI ...........................
In addition to the reduced wage
reporting responsibilities described
above, individuals may not be subject to
certain penalties related to reporting if
they authorize us to obtain information
from a payroll data provider.
Individuals who authorize us to obtain
wage and employment information from
a payroll data provider will not be
subject to penalties under section 1129A
of the Act for omissions or errors in the
data we receive from a participating
payroll data provider, excluding
situations where there may be fraud or
similar fault.51
Further, if individuals report changes
in income late or not at all in
connection with SSI payments, they
may be subject to penalties under
section 1631(e)(2) of the Act, unless
they have good cause for the failure to
report timely.52 In cases in which an
individual has authorized us to obtain
information from a payroll data
provider, however, we will find good
cause for a failure of, or delay by, an
individual reporting a change in
employer.53 In our notice of a change in
reporting responsibilities, we will
khammond on DSKJM1Z7X2PROD with PROPOSALS
authorization and we receive their wage
and employment information from their
employer(s) through a participating
payroll data provider, they will no
longer have to report an increase in the
amount of their work for that employer,
an increase in earnings from that
49 See
20 CFR 416.714.
‘‘wages paid in cash’’ we are referring to
wages paid in money or its equivalent, as opposed
to wages paid ‘‘in kind,’’ which refers to the value
of food, clothing, shelter, or other items provided
as wages instead of cash. See 20 CFR 416.1110.
51 42 U.S.C. 1320a–8a. See 20 CFR 404.459,
416.1340. The relevant penalty under section
1129A of the Act and 20 CFR 404.459, 416.1340 is
the non-payment of OASDI disability benefits and
50 By
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employer, or changes to wages paid in
cash 50 from that employer, because we
will obtain that information directly
from the payroll data provider. All other
reporting obligations apply, as detailed
in the chart.
Reporting responsibilities under proposed regulations when
we receive wage and employment information for an
employer through a payroll data provider
Individuals must report to us when:
• their condition improves;
• they return to work; or
• they have a new employer.
Individuals no longer have to report changes to wages paid
in cash.
They must report to us when:
• their condition improves;
• they return to work; or
• they have a new employer.
See § 416.708 for additional reporting requirements.
include any changes in penalty relief
that may apply or when we may make
the good cause finding described above.
Penalties that we may impose for
failure to report are distinct from any
attempts we may make to recover
money that is improperly paid as a
result of an overpayment. While
individuals may not be subject to
penalties for omissions or errors that
may occur as a result of wage reporting,
if we discover an overpayment, we will
still attempt to recover any improperly
paid funds. Although we do not propose
it at this time, we are considering
clarifying that for individuals who are
exempt from reporting responsibilities
because we get their wage and income
information from a payroll data
provider, any overpayments which
result from inaccurate reporting of their
income by the payroll data provider
would be treated as an overpayment
which they were ‘‘without fault’’ in
causing under 20 CFR 404.507 (for
OASDI) and 20 CFR 416.552 (for SSI).
While we still initially may seek
recovery of an overpayment from an
individual who is considered ‘‘without
fault’’ in causing the overpayment, these
individuals may request a waiver of the
overpayment recovery which we may
grant if, among other reasons, we
determine that recovering the
overpayment would either be ‘‘against
equity and good conscience’’ or ‘‘defeat
the purpose’’ of the program. Because
one benefit of the payroll exchange is to
facilitate the automatic transmission of
wage data without the beneficiary
manually reviewing and reporting this
information to us, this alternative would
provide an additional protection for
participating beneficiaries against
payroll inaccuracies. As discussed in
the Solicitation for Public comment
section below, prior to adopting this
alternative policy we seek comments on
if it would lower burdens for our
beneficiaries or improve administrative
efficiencies, other improvements we
might consider related to addressing
overpayments associated with workers
who participate in the payroll exchange,
as well as whether we should consider
any other consequences of this
alternative.
ineligibility for SSI cash benefits. Other penalties
under section 1129A of the Act may apply in
situations involving false or misleading statements,
including statements regarding wages and
employment.
52 42 U.S.C. 1383(e)(2). See 20 CFR 416.722 to
416.732. This penalty may be assessed for failure
or delay in making certain reports to us.
53 This comes directly from the BBA and we
expect the intent was to provide additional relief
from reporting obligations for SSI cases with
authorizations. In section 824(c)(2)(B), the BBA
added language to section 1631(e)(2)(B) of the Act
clarifying that if someone authorizes, and there is
a failure or delay to report a change in employer,
SSA will find good cause for that failure or delay
if ‘‘the event or change in circumstance is a change
in the individual’s employer.’’ We would anticipate
receiving this information through the information
exchange.
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Program
Penalties under current law affected by the BBA
OASDI disability ......
• Individuals are subject to penalties for omissions or errors in wage and employment information under section
1129A.
SSI ...........................
• Individuals are subject to penalties for omissions or errors in wage and employment information under section
1129A.
• We may impose a penalty under section 1631(e)(2) of
the Act for a failure or delay in reporting certain events or
changes in circumstances relevant to SSI eligibility or
payment amount unless the individual can show good
cause for the failure or delay.
4. Procedures for Notifying Individuals
in Writing When They Become Subject
to Reduced or Increased Wage Reporting
Requirements and When Penalty Relief
Applies
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We will notify individuals in writing
of changes in their reporting
responsibilities whenever we start or
stop receiving their wage and
employment information from a payroll
data provider through an information
exchange. We also explain whether they
may be subject to penalties under
section 1129A of the Act at the time
they provide authorization.54 If they
receive SSI, we will also explain when
we will find good cause for a failure or
delay in reporting a change in employer
under section 1631(e)(2) of the Act.
As discussed above, if individuals
authorize us to obtain information from
a payroll data provider, and we receive
their wage and employment information
for their employer(s) through a
participating payroll data provider, they
will not have to report, for that
employer, changes in earnings for
OASDI disability and SSI or wages paid
in cash for SSI. This will continue for
as long as we continue to receive this
information through a participating
payroll data provider for that employer,
and we will send a notice to the
individual informing them of the change
to their reporting responsibilities. We
will also send notices whenever we start
and stop receiving information about
their employer and their reporting
responsibilities change. All other
reporting requirements will still apply.
If individuals work multiple jobs,
they will not have to report an increase
54 There are certain instances where an individual
may be subject to penalties even though they have
authorized the use of an information exchange. For
example, if an individual authorizes the use of an
information exchange but their employer does not
actually participate in one, they may be subject to
penalties for failure to report their income. As
another example, if an individual’s employer
participates in the information exchange but the
individual fails to report a separate stream of selfemployment income, they may be subject to
penalties for failure to report their income.
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16:54 Feb 14, 2024
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Penalty relief when providing authorization
• Individuals are no longer subject to penalties under section 1129A for omissions or errors in wage and employment information that we receive from a payroll data provider through an information exchange.
• Individuals are no longer subject to penalties under section 1129A for omissions or errors in wage and employment information that we receive from a payroll data provider through an information exchange.
• We will find good cause for a failure of, or delay by, an
individual reporting a change in employer. This means
the penalty would not apply.
in earnings for OASDI disability and SSI
or wages paid in cash for SSI from any
employer(s) whose wage and
employment information we receive
from a participating payroll data
provider, as long as we continue to
receive this information through a
participating payroll data provider for
that employer(s). We will send a
notice 55 to the individual informing
them of any change to their reporting
responsibilities. When an individual
gives us authorization to obtain their
wage and employment information from
a payroll data provider, we promptly
issue them a receipt that includes the
scope and duration of their
authorization and explains their wage
reporting responsibilities related to the
information exchange. This receipt
explains they are required to continue to
report their wage and employment
information to us until they receive a
specific notice telling them that they no
longer must report. The notice will
identify the employer(s) for whom the
individual will not need to report wage
and employment information to us.
Individuals must still report an increase
in earnings for OASDI disability and SSI
and wages paid in cash for SSI from any
employer(s) whose wage and
employment information we do not
receive through a participating payroll
data provider. They must also tell us if
they have a new employer.
If individuals revoke their
authorization, we will notify them in
writing to explain that all reporting
responsibilities apply and that penalties
relating to reporting may apply.
When Individuals Disagree With Wage
and Employment Information Obtained
From a Payroll Data Provider
As noted above, wage and
employment information may affect
OASDI disability entitlement, SSI
eligibility, and SSI payment amounts
55 Following publication of this proposed rule, we
will submit to OMB a request for a revision to an
existing information collection under the
Paperwork Reduction Act (5 CFR 1320.11).
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11779
because we use that information to
determine or decide who can receive
benefits and the amount of the SSI
payments for eligible individuals. If we
implement the information exchange,
we would obtain the payroll data from
the previous month on or around the
7th day of the current month. For
example, on November 7, 2023, we
would receive the wage and
employment information for October
2023. If our use of wage and
employment information from a payroll
data provider affects entitlement,
eligibility, or payment amounts, all of
our usual procedures apply.56 By
receiving this information early in a
month for SSI cases, we should have
enough time to calculate the correct
payment, send an advance notice or
Notice of Planned Action (NOPA) when
an adverse action applies, and adjust
benefits accurately for the following
month (December 2023 in this
example).57
For OASDI disability, we send a
notice to the beneficiary before taking
an adverse action (e.g., reduction,
suspension, or termination of benefits) if
we learned of the reason for the action
from a source other than a first party
report. We call this an advance notice.
Once we issue the advance notice, the
beneficiary has 15 days or 35 days to
rebut the information in the advance
notice before the adverse action will
56 As described in this and subsequent
paragraphs, we will provide adequate notice to
beneficiaries before adversely adjusting their
benefits. However, we do not undertake any
specialized review of payroll data to identify
potential aberrations or other indicators that a
reported income may be particularly unlikely to be
accurate.
57 We note that the monthly information
exchange only provides us data for the previous
month but does not provide any updates to
revisions made for earlier months. For example, if
during the May 7th, 2024 information exchange we
received information that a beneficiary earned $500
in April, but during the month of May the employer
corrected that amount in their own payroll system
to $800, the June 7th, 2024 information exchange
would not alert us to the change in reported income
for April.
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occur.58 If we do not hear from the
beneficiary within the timeframe, we
assume the information in the advance
notice is correct and we will take the
adverse action. When we take the
adverse action, the beneficiary will
receive a final (initial determination)
notice,59 which provides the beneficiary
with the right to appeal the action taken.
OASDI DISABILITY
Estimated Date by Which Information Must Be Received for an Adverse Action.
For SSI, we send a NOPA to the
beneficiary before taking an adverse
action (e.g., reduction, suspension, or
termination of benefits). This NOPA,
also referred to as a Goldberg Kelly (GK)
notice, is a written notice of proposed
adverse action. The notice includes the
basis for the adverse action and an
explanation of appeal rights. It allows a
recipient the necessary time to appeal
the planned action and continue to
receive unreduced benefits pending a
determination on the appeal. After
receiving the NOPA, the individual has
60 days to file an appeal. If an appeal
is filed within 60 days, the recipient
For adverse actions that do not involve an automated computer or nonautomated data match: At least 15 days in advance.
For adverse actions that involve an automated computer or non-automated data match: At least 35 days in advance.
Note: Individuals whose wage and employment information is received
through an information exchange will have 35 days to rebut the information.
will receive, unless waived, continued,
or reinstated SSI payments until we
make a determination at the
reconsideration level.60
Because we must provide a NOPA
before reducing or terminating benefits,
we will only take an adverse action if
we receive information leading to that
action at least 15 days before the first
day of the adverse action month. This
allows time for mailing and for the
individual to respond. If there is
insufficient time remaining in the
month to accommodate the NOPA
procedures, we will not take the adverse
action until the following month. For
example, if we received information
adversely affecting ongoing benefits on
March 26, 2024, we would send a NOPA
that notifies the recipient of the adverse
action that will occur in May 2024. The
first month we could reduce or
terminate benefits would be May
2024.61 Because the wage and
employment information from the
information exchange is always
requested for the prior month, the pay
period cycle (i.e., the date the individual
receives payment) has a minimal effect
on the information exchange.
SSI
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Estimated Date by Which Earnings Must Be Received for an Adverse
Action.
For adverse actions: At least 15 days before the first day of the adverse action month.
As noted above, our usual procedures
apply. This includes our procedures for
seeking review of an initial
determination and any related
procedures. Our administrative review
process is described in existing
regulations § 404.900 for OASDI
disability and § 416.1400 for SSI. As in
any other case, the process consists of
several administrative review steps
which generally must be completed
within certain time periods, and in the
following order: (1) initial
determination, (2) reconsideration, (3)
hearing held by an administrative law
judge, and (4) Appeals Council
review.62 An individual who is
dissatisfied with our final decision may
seek judicial review.63
A claimant, recipient, beneficiary, or
deemor may present us with evidence
such as pay stubs or we may send
requests to their employers for this
information, if the individual believes
our information is not correct.64 We will
consider all evidence submitted and use
it to determine the appropriate action
for the individual’s record. We will
prioritize pay stubs over payroll data
provider information in situations in
which the individual questions the
wage and employment information we
receive from payroll data providers
through an information exchange. We
have longstanding policies for resolving
discrepancies in wage evidence, which
we would leverage. Individuals are
58 The time frame for rebuttal is 15 days for cases
that involve adverse actions or adjustments that do
not involve an automated computer or nonautomated data match and 35 days for cases that
involve automated computer or non-automated data
match. See POMS GN 03001.015. Individuals
whose wage and employment information is
received through an information exchange will have
35 days to rebut the information.
59 Initial determinations are the determinations
we make that are subject to administrative and
judicial review. We base our initial determination
on the preponderance of the evidence. We state the
important facts and give the reasons for our
conclusions in the initial determination. See 20
CFR 404.902, 20 CFR 404.900, 20 CFR 416.1402,
and 20 CFR 416.1400. We mail a written notice of
our initial determination to them at their last
known address. The written notice will explain in
simple and clear language what we have
determined and the reasons for and the effect of our
determination. If our determination involves a
determination of disability that is in whole or in
part unfavorable to them, our written notice also
will contain in understandable language a statement
of the case setting forth the evidence on which our
determination is based. The notice also will inform
them of their right to reconsideration. We will not
mail a notice if the beneficiary’s entitlement to
benefits has ended because of their death. See 20
CFR 404.904 and 20 CFR 416.1404. Initial
determinations may be appealed within 60 days (or
longer with good cause). See 20 CFR 404.909, 20
CFR 404.901, 20 CFR 416.1409, and 20 CFR
416.1401. To appeal an initial determination, an
individual may file an SSA–561–U2
Reconsideration Request available at: https://
www.ssa.gov/forms/ssa-561-u2.pdf. To appeal a
Reconsideration Determination, an individual can
file an HA–501–U5 Request for Hearing by
Administrative Law Judge available at https://
www.ssa.gov/forms/ha-501.pdf. To appeal a hearing
decision, an individual can file an HA–520 Request
for Review of Hearing Decision/Order available at
https://www.ssa.gov/forms/ha-520.html. To appeal
an Appeals Council Decision or if the Appeals
Council denies review of the hearing decision, an
individual can file an action in Federal District
Court. The SSA–561–U2, HA–501–U5, and HA–520
can be completed and submitted online via the
Non-Medical Appeal Page available at https://
secure.ssa.gov/iApplNMD/start.
60 20 CFR 416.1336(b) and EM 21064REV.
61 POMS SI 02301.301.
62 See subpart J of 20 CFR 404 and subpart N of
20 CFR 416.
63 See section 205(g) of the Act, 42 U.S.C. 405(g).
64 Section 824 of the BBA allows us to treat the
wage and employment information we receive from
the from a payroll data provider through the
information exchange as verified and does not
require additional verification.
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generally responsible for providing
evidence to us, but if a situation arises
in which it is difficult for them to obtain
evidence, we may assist them. Our
policies direct technicians to use other
acceptable evidence of wages when
discrepancies are present, and to
document the discrepancy, resolution,
and associated evidence. If a technician
determines based on acceptable
evidence that the earnings do not belong
to the individual, those earnings will be
removed and will not affect SSI
eligibility or payment determinations.
In addition, if an individual is not
satisfied with the wage and employment
information we are receiving from
payroll data providers through an
information exchange, they have the
option to revoke authorization at any
time.
Finally, we are requesting public
input on expanding the methods which
are available under our regulations to
initiate a reconsideration (which is the
first step of appealing an adverse
decision). We do not intend to make any
changes to the appeals filing process at
this time, but we will consider public
input for future rulemaking. One such
option would be removing the
requirement that reconsideration
requests must be ‘‘written.’’ Under our
current regulations, a request for
reconsideration can only be made as a
‘‘written request’’ (see 20 CFR 404.909(a)
and 20 CFR 416.1409(a)). As a result, if
an individual participating in the
payroll exchange receives an advanced
notice or NOPA indicating that their
benefits may be reduced, they do not
have the option of calling our 800
number or a field office to initiate the
process of requesting a reconsideration
(currently, available options for
initiating a reconsideration request
including completing and mailing paper
form SSA–561, visiting a field office and
completing an SSA–561 in-person, or
completing the i561 through
www.ssa.gov). This alternative would
allow individuals, if they desired, to
submit a request by calling us (which
may be the preferred option for many of
our beneficiaries). As discussed in the
Solicitation for Public comment section
below, we seek comments on if this
would lower burdens for our
beneficiaries as well as whether we
should consider any other consequences
of this alternative.
Summary of Changes
In § 404.702 and § 416.702, we
propose to add definitions for
‘‘Participating payroll data provider’’
and ‘‘Payroll data provider.’’
In § 404.703, we propose to designate
the existing text as paragraph (a) and
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add paragraph (b) to explain that we
will ask individuals for written
authorization so that we can obtain their
wage and employment information from
a payroll data provider when they apply
for or become entitled to monthly
insurance benefits. We will also explain
the scope and duration of the
authorization and how we will use it.
In § 404.1588, we propose to clarify in
paragraph (a) that an individual must
report if they have a new employer. This
clarification will more effectively cover
the situation where an individual starts
a new job, rather than requiring
individuals to report all increased work
when reduced reporting applies. We
also propose to add a new paragraph (b)
to explain OASDI disability reporting
obligations when individuals authorize
us to obtain their wage and employment
information from payroll data providers.
Proposed § 404.1588(b) explains that if
we have the authorization described in
§ 404.703, we will reduce reporting
responsibilities if we receive the
individuals’ wage and employment
information from their employer(s)
through a participating payroll data
provider, but only for that employer(s).
We will notify individuals in writing
whenever there is a change in their
reporting responsibilities related to the
authorization, or when they may be
subject to certain penalties. However,
the OASDI disability beneficiary will
always have to report when their
condition improves, when they return to
work, and when they have a new
employer.
We also explain that individuals may
revoke their authorization in writing at
any time and that if they do, we will
apply the revocation to all pending or
approved disability claims under
OASDI and all pending or approved
claims under SSI from the time we
process the revocation. If they revoke
their authorizations, they will be subject
to all reporting responsibilities and
possible penalties. Also, we removed
references to the centralized computer
file from redesignated paragraph (c)
because these references were
outdated.65
We propose to revise § 416.701 to
explain that subpart G discusses what
events individuals must report to us. We
inform individuals what their reports
must include, when reports are due, and
65 We are proposing to remove outdated language
in this section and in § 416.709 (discussed below)
explaining that the establishment of a centralized
computer file may cause us to stop issuing receipts
under certain circumstances. Because we do not use
the centralized computer file described in the
regulations, we are removing references to it. We
will continue to issue receipts whenever we get
information about the changes described in this
section or in earned income described in § 416.709.
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11781
when certain reporting requirements
and penalties relating to reporting
requirements do not apply.
We propose to revise § 416.708 to
explain that individuals must report any
increase or decrease in their income and
any increase or decrease in the income
of certain other individuals, unless the
circumstances in § 416.709(a) and (c)
apply. Those circumstances are:
• they authorize us to obtain
information from a payroll data
provider; and
• we receive their wage and
employment information from their
employer(s) through a participating
payroll data provider.
Also, we removed references to the
centralized computer file from
paragraph (c) because these references
were outdated.66
We propose to add a new section,
§ 416.709, to explain the potential for
reduced reporting responsibilities for
SSI when an individual authorizes us to
obtain wage and employment
information from payroll data providers
through an information exchange. As
proposed, § 416.709(a) explains that we
will ask individuals for written
authorization to obtain wage and
employment information about them
from a payroll data provider whenever
we determine the information is needed
in connection with a determination of
initial or ongoing eligibility for SSI
benefits. We further explain the scope
and duration of the authorization, and
when reporting requirements change in
proposed paragraphs (b) and (c) of
§ 416.709. Reporting responsibilities
will change based on whether we
receive an individual’s wage and
employment information from their
employer(s) through a participating
payroll data provider. If we receive
wage and employment information from
an individual’s employer(s) through a
participating payroll data provider, they
will not have to report changes in their
wages paid in cash from that
employer(s) only. However, the
individual will have to comply with all
other reporting requirements.
In proposed paragraph (c) in
§ 416.709, we also explain that when we
inform individuals about changes in
their reporting responsibilities, we will
also inform them whether they may be
subject to certain penalties, and when
and how they may revoke their
authorization.
We propose to revise § 416.988 to
explain that, if we receive wage and
employment information from an
individual’s employer(s) through a
participating payroll data provider, they
66 Id.
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will not have to report an increase in the
amount of work or an earnings increase
from that employer(s) only. As with
§ 404.1588, we have clarified that an
individual must report a new employer.
This clarification will more effectively
cover the situation where an individual
starts a new job, rather than requiring
individuals to report all increased work
when reduced reporting applies.
We also propose to add a new section,
§ 422.150, to explain our guidelines for
establishing and maintaining an
information exchange with payroll data
providers. We will identify and review
payroll data providers to determine
their ability to engage in an information
exchange with us. We also explain that
consistent with applicable law and
regulations, we will establish an
information exchange with the selected
payroll data provider. Proposed
§ 422.150(a) also explains the
requirements for an information
exchange, and that we will publish a
notice in the Federal Register
describing the information exchange
and other factors before we receive and
use information from a payroll data
provider. Finally, proposed § 422.150(b)
explains that we will periodically assess
whether the data we receive under an
information exchange continues to be
accurate, complete, and up-to-date, and
monitor compliance with the
requirements of the information
exchange.
khammond on DSKJM1Z7X2PROD with PROPOSALS
Solicitation for Public Comment
As discussed elsewhere in this NPRM,
we are seeking public comment.
Questions that interested parties may
wish to consider when evaluating this
proposed rule:
1. If we receive someone’s wage and
employment information through the
payroll exchange, should we treat any
overpayments which result from
inaccurate reporting of their wage and
employment information by their
employer or the payroll data provider as
an overpayment which the individual
was ‘‘without fault’’ in causing? Would
this lower burdens for our beneficiaries
or improve administrative efficiencies,
are there other improvements we might
consider related to addressing
overpayments associated with workers
who participate in the payroll exchange,
or are there any other consequences that
we should consider?
2. Should we revise our regulations to
remove the requirement that
reconsideration be received only via
‘‘written request’’ to accommodate the
ability to receive reconsideration
requests via the phone? Would this
lower burden for beneficiaries and are
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there any other consequences that we
should consider?
Rulemaking Analyses and Notices
Clarity of These Rules
Executive Order (E.O.) 12866 as
supplemented by E.O. 13563 and
amended by E.O. 14094 require each
agency to write all rules in plain
language. In addition to your
substantive comments on this NPRM,
we invite your comments on how to
make rules easier to understand.
For example:
• Would more, but shorter, sections
be better?
• Are the requirements in the rule
clearly stated?
• Have we organized the material to
suit your needs?
• Could we improve clarity by adding
tables, lists, or diagrams?
• What else could we do to make the
rule easier to understand?
• Does the rule contain technical
language or jargon that is not clear?
• Would a different format make the
rule easier to understand, e.g., grouping
and order of sections, use of headings,
paragraphing?
Regulatory Procedures
E.O. 12866 as Supplemented by E.O.
13563 and Amended by E.O. 14094
We consulted with the Office of
Management and Budget (OMB) and
OMB has determined that this proposed
rule meets the criteria for a Section
3(f)(1) significant regulatory action
under E.O. 12866, as supplemented by
E.O. 13563 and amended by E.O. 14094
and is subject to OMB review.
Assumptions
We estimate that, by 2033, 96% of SSI
recipients will have authorized us to
obtain this information from payroll
data providers through information
exchanges, and about 60% of disabled
OASDI beneficiaries will have also
provided this authorization. We base
this estimate on current rates of
adoption as we have sought
authorization from beneficiaries during
both new enrollment and disability
review processes since late 2017. Since
2017, 98% of OASDI disability
beneficiaries and SSI recipients who
have been asked have provided
authorization—this corresponds to
about 25% of all current OASDI
disability beneficiaries as of May 2023.
As of July 2022, 56% of all current SSI
recipients and 67% of SSI deemors have
provided authorization.67
67 We do not know why SSI deemors have
provided authorization at a higher rate than
beneficiaries.
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We estimate that there are about
1,100,000 OASDI disability
beneficiaries, between 200,000 and
300,000 SSI recipients, and another
500,000 to 600,000 deemors of SSI
recipients who work in a given year.
Because employers representing
approximately two-thirds of the nonfarm payroll of employees will
automatically provide payroll data to us,
we expect individuals will submit fewer
wage reports.68
Additionally, we estimate that there
are 100,000 OASDI disability
beneficiaries who are overpaid due to
working at or above the SGA level. Over
FYs 2018 through 2022, these
individuals were overpaid an annual
average of $1,163 million. We estimate
that, through the information exchange,
we will be able to identify both wages
we otherwise would not have known
about, as well as wages that will be
identified timelier than under current
processes. Additionally, we estimate
that we will identify and assess
approximately an additional 10% of
overpayments due to working at or
above SGA (OASDI) or having wages
from employment (SSI) which we never
would have identified through our
current processes.69
Anticipated Costs to the Public
There are minor costs to the public
associated with this rulemaking.
Individuals who apply for or are
receiving OASDI disability, individuals
who apply for or are receiving SSI, and
SSI deemors, will need to spend a
68 As stated in the preamble, neither SSA nor
Equifax has analyzed whether working disability
benefit recipients are represented in a similar
proportion in the database, but we assume it for the
purposes of this analysis.
69 We do not have data to specifically support the
assumption that we will identify 10% more
overpayments. However, we do know certain small
overpayments may be currently overlooked through
our current systems. Through review processes
such as the Master Earnings File, SSA is generally
able to identify overpayments from unreported
wage changes at least on an annual basis. In certain
circumstances, however, annual earnings as
identified on the Master Earnings File or on a
quarterly match may be below the threshold for
identifying an overpayment even though the
beneficiary’s monthly earnings in certain months
would have resulted in changes to the amount they
were owed. For example, if an OASDI disability
beneficiary worked at $50 above SGA for 11 months
of the year, and worked $0 in the 12th month, they
would generally be passed over in the annual match
because their total annual wages would be below
12 times SGA. Having the monthly data would give
SSA more exact information and the agency would
be able to compare on a monthly basis whether
earnings exceeds SGA. As another example, certain
de minimis changes in benefit payment rates due
to changes in income may not be assessed under
current policy because of required efforts under
current processes; because these processes will be
automated through PIE, these changes will be made
in a timely manner.
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minimal amount of time to complete the
authorization to allow us to obtain wage
and employment information from
payroll data providers through an
information exchange. Similarly,
individuals who want to revoke their
authorizations would need to spend a
minimal amount of time to do so. We
anticipate this time would be more than
offset by the time saved by individuals
who would no longer need to spend
time reporting certain wage and
employment information and work
activity.
There is a potential for lost benefits to
the beneficiary or recipient in instances
where we make an unfavorable or
partially favorable determination or
decision based on potentially inaccurate
information obtained from payroll data
providers through an information
exchange. We have not estimated at this
time the number of additional NOPAs
which might be due to inaccurate
payroll information.
There is a potential burden on the
public to correct any inaccurate data
reported to us from a payroll data
provider if an individual identifies an
error in the information we receive
through an information exchange.
However, the primary burden related to
these rules is the time it would take for
the individual to correct information
with us. Additionally, although
individuals can give us information that
we may use to correct our records, they
may also have to work with the payroll
data provider directly to correct any
inaccurate data in its records, because
we can only update our records.70
We anticipate minimal costs to the
public associated with reporting
inaccurate data based on the accuracy
rate recorded in the accuracy analysis
study previously discussed and
included in the rulemaking record.
khammond on DSKJM1Z7X2PROD with PROPOSALS
Anticipated Benefit to the Public
An information exchange has many
benefits. Individuals will have reduced
wage reporting responsibilities if they
provide us with authorization to obtain
their wage and employment information
from a payroll data provider and we
obtain that information from a
participating payroll data provider
through an information exchange.
Reducing reporting responsibilities
relieves the burden placed on
70 When an individual believes the information
we are receiving from a payroll data provider is
incorrect, they can correct the information with us.
A beneficiary may also wish to contact the payroll
data provider to resolve a recurring issue or if, for
example, they believe the error may be due to
potential fraud. We will provide information in the
advance notice (for OASDI disability) or NOPA (for
SSI) for how to contact the payroll data provider
directly.
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11783
individuals to report certain wage and
employment information to us if we are
already receiving it from a payroll data
provider through an information
exchange. This reduced reporting
responsibility should make it easier for
individuals to comply with our wage
reporting rules. It reduces the
individual’s need to report certain wage
and employment information to us
which includes the burden of the time
it takes the individual to report this
information and the burden of
remembering to report it to us within a
certain timeframe.
The timely receipt of wage and
employment information from a payroll
data provider through an information
exchange would also help us reduce
improper payments, which may be a
source of confusion for the public and
may cause individuals to spend time
addressing errors associated with
improper payments or filing appeals or
waiver requests. Lastly, authorizing us
to obtain records from a payroll data
provider through an information
exchange may relieve individuals from
certain penalties under section 1129A of
the Act for any omission or error with
respect to wages reported to us by a
participating payroll data provider. And
for SSI, we will find good cause for a
failure or delay in reporting a change in
employer, which can avoid certain
additional penalties.
overpayments that would be prevented
due to implementation of this rule will
immediately reduce benefit payments,
such early identification of earnings will
also avoid subsequent potential
overpayments through fiscal year 2033
and beyond.
Anticipated Transfers to Our Program
Our Office of the Chief Actuary
estimates that implementation of this
proposed rule would result in a total net
reduction in OASDI benefit payments of
$1.8 billion and a total net reduction in
Federal SSI payments of $1.9 billion
over fiscal years 2024 through 2033. The
estimates assume implementation of
this rule on October 1, 2023, and that
SSA will not, during the estimate
period, contract with any other payroll
data provider beyond Equifax. We note
that the increase in the amount of
overpayments identified or prevented in
this period would be larger than the
reduction in actual benefits paid in this
period. First, regarding overpayments
newly identified, as discussed in our
Assumptions section, these estimates
assume that 50 percent of work-related
overpayments identified for OASDI
beneficiaries and 80 percent of earnedincome related overpayments for SSI
recipients will be recovered within 10
years after they are identified. Thus,
much of the overpayments newly
identified, especially those identified
late in this 10-year period, will be only
partially recovered with subsequent
reductions in payments through fiscal
year 2033. Second, while potential
Executive Order 13132 (Federalism)
We analyzed this proposed rule in
accordance with the principles and
criteria established by Executive Order
13132 and determined that the proposed
rule will not have sufficient Federalism
implications to warrant the preparation
of a Federalism assessment. We also
determined that this proposed rule will
not preempt any State law or State
regulation or affect the States’ abilities
to discharge traditional State
governmental functions.
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Anticipated Administrative Costs to the
Social Security Administration
The Office of Budget, Finance, and
Management estimates that this
proposal will result in a net
administrative cost of $419 million for
the 10-year period from FY 2024 to FY
2033. The net administrative cost is
mainly a result of the contract and IT
costs to administer the information
exchange. The total costs are offset by
some administrative savings from a
shorter wage development process in
affected cases during title XVI (SSI) preeffectuation reviews, redeterminations,
post-eligibility actions, and
overpayments, as well as during title II
(OASDI) work continuing disability
reviews. However, we do not attempt to
estimate these time savings. As
explained above, under our current
process, we sometimes conduct a
manual query to request records from
payroll data providers or employers. We
estimate we would save approximately
20 minutes of our staff’s time each time
we no longer need to complete this
query.71
Regulatory Flexibility Act
We certify that these proposed rules
will not have a significant economic
impact on a substantial number of small
entities because it primarily affects
individuals. In some instances, this
proposed change may reduce the burden
on employers because we may need to
contact employers for information less
frequently when we receive wage and
employment information from payroll
data providers through an information
exchange. Because our contact with
employers for this reason is limited
now, we do not expect a significant
71 We note these savings are for our staff. They
do not represent public reporting burden savings.
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difference. Therefore, a regulatory
flexibility analysis is not required under
the Regulatory Flexibility Act, as
amended. We discuss the time burden
savings for employers stemming from
this proposed rule in the Paperwork
Reduction Act section of the preamble.
Paperwork Reduction Act Statement
SSA already has existing OMBapproved information collection tools
relating to this proposed rule: the Letter
to Employer Requesting Information
About Wages Earned by Beneficiary
(SSA–L725, OMB Control No. 0960–
0034); Letter to Employer Requesting
Wage Information (SSA–L4201, OMB
Control No. 0960–0138); Monthly SSI
Wage Reporting (SSA’s Mobile Wage
Reporting, Telephone Wage Reporting,
and Internet myWage Report
application, OMB Control No. 0960–
0715); the Authorization for the Social
Security Administration to Obtain Wage
and Employment Information from
Payroll Data Providers (Form SSA–8240,
Current
average
burden per
response
(minutes)
Frequency
of
response
Number of
respondents
OMB #; form #; CFR citations
Employment Information from Payroll
Data Providers (0960–0807) prior to the
creation of this new rule. We will
include the appropriate CFR citations
under that OMB approved information
collection upon publication of the final
rule. In addition, we will obtain OMB
approval for revisions to the collection
instruments as needed simultaneously
with the publication of the final rule.
Finally, the implementation of this
proposed rule would decrease the time
burden for the public, as it would
remove the need for individuals or
employers to submit wages to SSA
when we receive them from payroll data
providers through an information
exchange instead. While we
acknowledge that there is a burden on
the public for 20 CFR 422.150(a)(3), we
did not include it in the chart below
because fewer than 10 providers submit
this information to SSA. The following
chart shows the anticipated burden
reduction due to the other regulatory
requirements from this proposed rule:
OMB Control No. 0960–0807); and the
Notice to Electronic Information
Exchange Partners to Provide Contractor
List (SSA–731, OMB Control No. 0960–
0820). While we previously obtained
OMB approval for the new form (under
OMB Control No. 0960–0807) to collect
the authorization for the wage and
employment information from payroll
data providers, SSA has not utilized this
information through an automated
information exchange, because those
exchanges have not yet gone live. The
proposed rule provides additional
information on OASDI and SSI reduced
reporting requirements, as well as the
effects of beneficiaries, recipients, and
deemors authorizing us to obtain
records from payroll data providers. In
addition, the proposed rule describes
the establishment of the requirements to
enter into an information exchange with
payroll data providers. SSA established
the information collection for the
Authorization for the Social Security
Administration to Obtain Wage and
Current
estimated
total
burden
(hours)
Anticipated
new
number of
respondents
under
regulation
Anticipated
new burden
per response
under
regulation
(minutes)
Anticipated
estimated
total burden
under
regulation
(hours)
Estimated
burden
savings
(hours)
0960–0034—SSA–L725 ............................
0960–0138—SSA–L4201 ..........................
0960–0715—Mobile Wage reporting,
404.703(a), 416.708(c), 416.709 (new)
0960–0715—Telephone Wage reporting,
404.703(a), 416.708(c), 416.709 (new)
0960–0715—myWage Report,
404.703(a), 416.708(c), 416.709 (new)
0960–0807—SSA–8240, 404.703(b),
404.1588(a), 404.1588(b)(3)(iii),
404.1588(b)(4), 416.988(a) ...................
0960–0807—MCS/SSI Claim System,
404.703(b), 404.1588(a),
404.1588(b)(3)(iii), 404.1588(b)(4),
416.988(a) .............................................
0960–0807—Internet, 404.703(b),
404.1588(a), 404.1588(b)(3)(iii),
404.1588(b)(4), 416.988(a) ...................
170,000
133,000
1
1
40
30
113,333
66,500
170,000
133,000
40
30
113,333
66,500
*0
*0
88,382
12
6
106,058
36,237
6
43,484
62,574
16,341
12
5
16,341
6,700
5
6,700
9,641
3,557
12
7
4,980
1,458
7
2,041
** 2,939
150,000
1
8
20,000
150,000
8
20,000
*0
697,580
1
3
34,879
697,580
3
34,879
*0
147,820
1
3
7,391
147,820
3
7,391
*0
Totals .................................................
1,406,680
....................
....................
369,482
1,342,795
......................
294,328
75,154
* These proposed rules will not significantly affect the burden for this information collection; therefore, we do not anticipate any burden reduction for this information
collection due to the implementation of this rule.
** SSA is providing this figure as a current best estimate for burden reduction under these proposed rules. We will not have accurate data until we implement the
rule.
khammond on DSKJM1Z7X2PROD with PROPOSALS
The following chart shows the
reduction in theoretical cost burdens
associated with the proposed rule:
Anticipated
new number of
respondents
OMB #; form #; CFR citations
0960–0034—SSA–L725 ............................................................
0960–0138—SSA–L4201 ..........................................................
0960–0715—Mobile Wage reporting, 404.703(a), 416.708(c),
416.709 (new) ........................................................................
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PO 00000
Estimated
burden
per response
from chart
above
(minutes)
Anticipated
estimated
total burden
under
regulation
(hours)
Average
theoretical
hourly cost
amount
(dollars) *
Average
combined
wait time in
field office
and/or
teleservice
centers
(minutes) **
Anticipated
annual
opportunity
cost
(dollars) ***
170,000
133,000
40
30
113,333
66,500
* $25.14
* 25.14
0
0
*** $2,849,192
*** 1,671,810
36,237
6
43,484
* 21.29
0
*** 925,774
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Estimated
burden
per response
from chart
above
(minutes)
Anticipated
new number of
respondents
OMB #; form #; CFR citations
0960–0715—Telephone Wage reporting, 404.703(a),
416.708(c), 416.709 (new) ....................................................
0960–0715—myWage Report, 404.703(a), 416.708(c),
416.709 (new) ........................................................................
0960–0807—SSA–8240, 404.703(b), 404.1588(a),
404.1588(b)(3)(iii), 404.1588(b)(4), 416.988(a) .....................
0960–0807—MCS/SSI Claim System, 404.703(b),
404.1588(a), 404.1588(b)(3)(iii), 404.1588(b)(4), 416.988(a)
0960–0807—Internet, 404.703(b), 404.1588(a),
404.1588(b)(3)(iii), 404.1588(b)(4), 416.988(a) .....................
Totals .................................................................................
Anticipated
estimated
total burden
under
regulation
(hours)
Average
theoretical
hourly cost
amount
(dollars) *
Average
combined
wait time in
field office
and/or
teleservice
centers
(minutes) **
Anticipated
annual
opportunity
cost
(dollars) ***
6,700
5
6,700
* 21.29
0
*** 142,643
1,458
7
2,041
* 21.29
0
*** 43,453
150,000
8
20,000
* 21.29
** 24
*** 1,703,200
697,580
3
34,879
* 21.29
** 21
*** 5,940,591
147,820
3
7,391
* 21.29
** 21
*** 1,258,835
1,342,795
........................
294,328
........................
........................
*** 14,535,498
khammond on DSKJM1Z7X2PROD with PROPOSALS
* We based this figure on the average Payroll and Timekeeping Clerks hourly salary, as reported by the Bureau of Labor Statistics data (https://www.bls.gov/oes/
current/oes433051.htm); as well as the averaging of SSDI payments based on SSA’s current FY 2023 data (https://www.ssa.gov/legislation/2023factsheet.pdf) and
the average U.S. citizen’s hourly salary, as reported by Bureau of Labor Statistics data (https://www.bls.gov/oes/current/oes_nat.htm).
** We based this figure on the average FY 2023 wait times for field offices and hearings office, as well as by averaging both the average FY 2023 wait times for
field offices and teleservice centers, based on SSA’s current management information data.
*** This figure does not represent actual costs that SSA is imposing on recipients of Social Security payments to complete this application; rather, these are theoretical opportunity costs for the additional time respondents will spend to complete the application. There is no actual charge to respondents to complete the
application.
SSA submitted a single new
Information Collection Request which
encompasses revisions to information
collections currently under OMB
Numbers 0960–0034, 0960–0138, 0960–
0715, 0960–0807) to OMB for the
approval of the changes due to the
proposed rule. After approval at the
final rule stage, we will adjust the
figures associated with the current OMB
numbers for these forms to reflect the
new burden. We are soliciting
comments on the burden estimate; the
need for the information; its practical
utility; ways to enhance its quality,
utility, and clarity; and ways to
minimize the burden on respondents,
including the use of automated
techniques or other forms of information
technology. In addition, we are
specifically seeking comment on
whether you have any questions or
suggestions for edits to the forms
referenced above in the context of this
proposed regulatory change. If you
would like to submit comments, please
send them to the following locations:
Office of Management and Budget, Attn:
Desk Officer for SSA, Fax Number:
202–395–6974
Social Security Administration, OLCA,
Attn: Reports Clearance Director, Mail
Stop 3253 Altmeyer, 6401 Security
Blvd., Baltimore, MD 21235, Fax:
410–966–2830, Email address:
OR.Reports.Clearance@ssa.gov
You can submit comments until April
15, 2024, which is 60 days after the
publication of this notice. To receive a
copy of the OMB clearance package,
contact the SSA Reports Clearance
Officer using any of the above contact
methods. We prefer to receive
comments by email or fax.
VerDate Sep<11>2014
16:54 Feb 14, 2024
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(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)
PART 404—FEDERAL OLD-AGE,
SURVIVORS AND DISABILITY
INSURANCE
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 (SSI).
20 CFR Part 422
Administrative practice and
procedure; Organization and functions
(Government agencies); Operational
effectiveness; Social Security.
The Commissioner of Social Security,
Martin O’Malley, having reviewed and
approved this document, is delegating
the authority to electronically sign this
document to Faye I. Lipsky, who is the
primary Federal Register Liaison for
SSA, for purposes of publication in the
Federal Register.
Faye I. Lipsky,
Federal Register Liaison, Office of Legislation
and Congressional Affairs, Social Security
Administration.
For the reasons set out in the
preamble, we propose to amend 20 CFR
chapter III parts 404, 416, and 422 as set
forth below:
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Subpart H—Evidence
1. The authority citation for subpart H
of part 404 is revised to read as follows:
Authority: 42 U.S.C. 405(a), 902(a)(5), and
1320e–3.
2. Amend § 404.702 by adding, in
alphabetical order, the definitions of
‘‘Participating payroll data provider’’
and ‘‘Payroll data provider’’ to read as
follows:
■
§ 404.702
Definitions.
*
*
*
*
*
Participating payroll data provider
means a payroll data provider that has
established an information exchange
with us to provide wage and
employment information.
Payroll data provider means payroll
providers, wage verification companies,
and other commercial or noncommercial entities that collect and
maintain information regarding
employment and wages.
*
*
*
*
*
■ 3. Revise § 404.703 to read as follows:
§ 404.703
When evidence is needed.
(a) Evidence. When you apply for
benefits, we will ask for evidence that
you are eligible for them. After you
become entitled to benefits, we may ask
for evidence showing whether you
continue to be entitled to benefits; or
evidence showing whether your benefit
payments should be reduced or stopped.
See § 404.401 for a list showing when
benefit payments must be reduced or
stopped.
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(b) Authorization to obtain data from
a payroll data provider.
(1) We will ask you for a written
authorization to obtain information
about you from a payroll data provider
whenever we determine the information
is needed in connection with a
determination of initial or ongoing
entitlement to benefits.
(2) When we ask for your
authorization, we will explain the
authorization’s scope and duration.
(i) We will explain to you that we will
use the information obtained from a
payroll data provider when it is needed
in connection with a determination of
initial or ongoing entitlement to title II
benefits based on disability, or for
eligibility or the amount of benefits
under the Supplemental Security
Income program of title XVI of the
Social Security Act, and to prevent
improper payments. We will explain to
you that we may also use the
authorization to obtain wage and
employment information from a payroll
data provider for claims associated with
the claim filed, such as a claim for
benefits by a spouse or child. We will
also explain that we may use and
disclose your information consistent
with applicable Federal law (see, e.g.,
part 401 of this chapter) and any privacy
notices we provide to you.
(ii) We will also inform you that your
authorization will remain effective until
the earliest of one of the following
occurrences: (A) you revoke your
authorization in writing (see
§ 404.1588(b)(4)); (B) we have
terminated all entitlement for benefits,
you have no other claims or appeals
pending under this title, and the period
for appealing the determination or
decision terminating entitlement has
lapsed; or (C) there has been an adverse
determination or decision on your
claim, you have no other claims or
appeals pending under this title, and the
period for appealing the adverse
determination or decision has lapsed.
Subpart P—Determining Disability and
Blindness
4. The authority citation for subpart P
of part 404 is revised to read as follows:
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■
Authority: 42 U.S.C. 402, 405(a)-(b) and
(d)–(h), 416(i), 421(a) and (h)–(j), 422(c), 423,
425, 902(a)(5), and 1320e–3; sec. 211(b), Pub.
L. 104–193, 110 Stat. 2105, 2189; sec. 202,
Pub. L. 108–203, 118 Stat. 509 (42 U.S.C. 902
note).
5. Amend § 404.1588 by redesignating
paragraph (b) as paragraph (c) and
adding a new paragraph (b) and revising
paragraphs (a) and (c) to read as follows:
■
VerDate Sep<11>2014
16:54 Feb 14, 2024
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§ 404.1588 Your responsibility to tell us of
events that may change your disability
status.
(a) Your responsibility to report
changes to us. If you are entitled to cash
benefits or to a period of disability
because you are disabled, you should
promptly tell us if—
(1) Your condition improves;
(2) You return to work;
(3) You have a new employer;
(4) You increase the amount of your
work; or
(5) Your earnings increase.
(b) Effect of authorizing us to obtain
your information from payroll data
providers.
(1) We will reduce your reporting
responsibilities as described in
paragraphs (a)(4) and (a)(5) of this
section if we have your authorization to
obtain wage and employment
information from a payroll data provider
(see § 404.703), and we receive your
wage and employment information from
your employer(s) through a participating
payroll data provider (see § 404.702).
(2) We will notify you in writing
whenever there is a change in your
reporting responsibilities relating to the
authorization described in § 404.703.
When we tell you about changes in your
reporting responsibilities, we will also
tell you whether you may be subject to
a penalty of nonpayment of benefits (see
§ 404.459) related to information we
receive from a participating payroll data
provider. You are always required to
submit any changes described in
paragraphs (a)(1), (a)(2), and (a)(3) of
this section.
(3) When your reporting requirements
will change—
(i) If we have your authorization to
obtain wage and employment
information from a payroll data provider
(see § 404.703), and we receive your
wage and employment information from
your employer through a participating
payroll data provider, you will not have
to report when your earnings from that
employer increase.
(ii) If we have your authorization to
obtain wage and employment
information from a payroll data provider
(see § 404.703), but we do not receive
your wage and employment information
from your employer through a
participating payroll data provider, we
will not reduce your reporting
responsibilities.
(iii) If we have your authorization to
obtain wage and employment
information from a payroll data provider
(see § 404.703) and you have more than
one employer,
(A) you do not need to report when
your earnings increase for an employer
if we receive your wage and
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employment information for that
employer through a participating
payroll data provider, and
(B) you must still report when your
earnings increase for an employer if we
do not receive your wage and
employment information for that
employer through a participating
payroll data provider.
(4) You may revoke your
authorization at any time, but you must
do so in writing. We will apply the
revocation to all pending or approved
disability claims under this title, as well
as all pending or approved claims under
title XVI, from the time we process your
revocation. If you revoke your
authorization, all your reporting
responsibilities will resume, and you
will again be subject to all related
penalties. We will notify you in writing
of these changes.
(c) Our responsibility when you report
your work to us. When you or your
representative report changes in your
work activity to us under paragraphs
(a)(2), (a)(3), (a)(4), and (a)(5) of this
section, we will issue a receipt to you
or your representative.
Part 416—SUPPLEMENTAL SECURITY
INCOME FOR THE AGED, BLIND, AND
DISABLED
Subpart G—Reports Required
6. The authority citation for subpart G
of part 416 is revised to read as follows:
■
Authority: 42 U.S.C. 902(a)(5), 1320a–8a,
1320e–3, 1382, 1382a, 1382b, 1382c, and
1383; sec. 211, Pub. L. 93–66, 87 Stat. 154 (42
U.S.C. 1382 note); sec. 202, Pub. L. 108–203,
118 Stat. 509 (42 U.S.C. 902 note).
7. Amend § 416.701 by revising the
third sentence of paragraph (a) to read
as follows:
■
§ 416.701
Scope of subpart.
(a) * * * This subpart tells you what
events you must report; what your
reports must include; when reports are
due; and when certain reporting
requirements, and penalties relating to
reporting requirements, do not apply.
* * *
*
*
*
*
*
■ 8. Amend 416.702 by adding, in
alphabetical order, the definitions of
‘‘Participating payroll data provider’’
and ‘‘Payroll data provider’’ to read as
follows:
§ 416.702
Definitions.
*
*
*
*
*
Participating payroll data provider
means a payroll data provider that has
established an information exchange
with us to provide wage and
employment information.
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Payroll data provider means payroll
providers, wage verification companies,
and other commercial or noncommercial entities that collect and
maintain information regarding
employment and wages.
*
*
*
*
*
■ 9. Amend § 416.708 by revising
paragraph (c) to read as follows:
§ 416.708
What you must report.
*
*
*
*
*
(c) A change in income. Unless the
circumstances in § 416.709(a) and (c)
apply, you must report to us any
increase or decrease in your income and
any increase or decrease in the income
of—
(1) Your ineligible spouse who lives
with you;
(2) Your essential person;
(3) Your parent, if you are an eligible
child and your parent lives with you; or
(4) An ineligible child who lives with
you.
However, you need not report an
increase in your Social Security benefits
if the increase is only a cost-of-living
adjustment. (For a complete discussion
of what we consider income, see subpart
K of this part. See § 416.1323 regarding
suspension because of excess income.) If
you receive benefits based on disability,
when you or your representative report
changes in your earned income, we will
issue a receipt to you or your
representative.
*
*
*
*
*
■ 10. Add § 416.709 to read as follows:
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§ 416.709 Reduced reporting requirements
when you authorize us to obtain your
information from payroll data providers.
(a) Authorization to obtain data from
a payroll data provider. We will ask you
for written authorization to obtain
information about you from a payroll
data provider whenever we determine
the information is needed in connection
with a determination of initial or
ongoing eligibility for benefits.
(b) Scope and duration. When we ask
for your authorization, we will explain
the authorization’s scope and duration.
(1) We will explain to you that we
will use information obtained from a
payroll data provider, when it is
needed, in connection with a
determination of eligibility or the
amount of benefits under this title, or
for the initial or ongoing entitlement to
disability benefits under title II of the
Social Security Act, and to prevent
improper payments. We will explain to
you that we may also use the
authorization to obtain wage and
employment information from a payroll
data provider for claims associated with
the claim filed, such as an SSI claim by
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16:54 Feb 14, 2024
Jkt 262001
a spouse or child. We will also explain
that we may use and disclose your
information consistent with applicable
Federal law (see part 401 of this
chapter) and any privacy notices we
provide to you.
(2) We will also inform you that your
authorization will remain effective until
the earliest of one of the following
occurrences: (A) you revoke your
authorization in writing (see paragraph
(c)(4) of this section); (B) we have
terminated all eligibility for benefits and
you have no other claims or appeals
pending under this title, and the period
for appealing the determination or
decision terminating entitlement has
lapsed; (C) there has been an adverse
determination or decision on your
claim, you have no other claims or
appeals pending under this title, and the
period for appealing the determination
or decision terminating eligibility has
lapsed; or (D) your deeming relationship
ends.
(c) When reporting requirements will
change. We will notify you in writing
whenever there is a change in your
reporting responsibilities relating to the
authorization described in paragraph (a)
of this section. When we tell you about
changes in your reporting
responsibilities, we will also tell you
whether you may be subject to a penalty
of ineligibility for cash benefits (see
§ 416.1340) related to information we
receive from a participating payroll data
provider. We will also tell you when we
will find good cause, under section
416.732, for a failure or delay in
reporting a change in employer.
(1) If we have your authorization to
obtain wage and employment
information from a payroll data provider
as described in paragraph (a) of this
section, and we receive your wage and
employment information from your
employer(s) through a participating
payroll data provider, you will not have
to report changes in your wages paid in
cash, as defined in § 416.1110(a), from
that employer(s). Also, you will not
have to report an increase in the amount
of work from that employer or an
increase in earnings from that employer,
as described in § 416.988(a)(4) and
(a)(5). All other reporting requirements
still apply.
(2) If we have your authorization to
obtain wage and employment
information from a payroll data provider
as described in paragraph (a) of this
section, but we do not receive your
wage and employment information from
your employer(s) through a participating
payroll data provider, we will not
reduce your reporting responsibilities.
(3) If we have your authorization to
obtain wage and employment
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11787
information from a payroll data provider
as described in paragraph (a) of this
section, and you have more than one
employer,
(i) you do not need to report wages
paid in cash for an employer if we
receive your wage and employment
information for that employer through a
participating payroll data provider, and
(ii) you must still report wages paid
in cash for an employer if we do not
receive your wage and employment
information for that employer through a
participating payroll data provider.
(4) You may revoke your
authorization at any time, but you must
do so in writing. We will apply the
revocation to all pending or approved
claims under this title as well as all
pending or approved disability claims
under title II from the time we process
your revocation. If you revoke your
authorization, all your reporting
responsibilities will resume; you will
again be subject to all related penalties;
and we may not find good cause, under
§ 416.732, for a failure to report timely
a change in employer. We will notify
you in writing of these changes.
Subpart I—Determining Disability and
Blindness
11. The authority citation for subpart
I of part 416 is revised to read as
follows:
■
Authority: 42 U.S.C. 421(m), 902(a)(5),
1382, 1382c, 1382h, 1383, and 1383b; secs.
4(c) and 5, 6(c)–(e), 14(a), and 15, Pub. L. 98–
460, 98 Stat. 1794, 1801, 1802, and 1808 (42
U.S.C. 421 note, 423 note, and 1382h note).
■
12. Revise § 416.988to read as follows:
§ 416.988 Your responsibility to tell us of
events that may change your disability or
blindness status.
(a) If you are entitled to payments
because you are disabled or blind, you
should promptly tell us if—
(1) Your condition improves;
(2) You return to work;
(3) You have a new employer;
(4) You increase the amount of your
work; or
(5) Your earnings increase.
(b) If we have your authorization to
obtain wage and employment
information (see § 416.709(a)) from a
payroll data provider (see § 416.702),
and we receive your wage and
employment information from your
employer(s) through a participating
payroll data provider, your reporting
requirements under paragraphs (a)(4)
and (a)(5) will be reduced as described
in § 416.709(c).
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Federal Register / Vol. 89, No. 32 / Thursday, February 15, 2024 / Proposed Rules
PART 422—ORGANIZATION AND
FUNCTIONS OF THE SOCIAL
SECURITY ADMINISTRATION
Subpart B—General Procedures
13. The authority citation for subpart
B of part 422 is revised to read as
follows:
■
Authority: 42 U.S.C. 405, 432, 902(a)(5),
1320b–1, 1320b–13, and 1320e–3, and sec.
7213(a)(1)(A) of Pub. L. 108–458.
■
14. Add § 422.150 to read as follows:
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§ 422.150 Guidelines for Establishing and
Maintaining an Information Exchange with
Payroll Data Providers
(a) Guidelines for Establishing an
Information Exchange with Payroll Data
Providers. In establishing an
information exchange under section
1184 of the Social Security Act, we will
do the following:
(1) Identify the payroll data providers
(as defined in §§ 404.702 and 416.702 of
this chapter) that may be interested in
participating in an information
exchange with us.
(2) Review the payroll data providers
and consider factors such as: whether a
payroll data provider is able and willing
to engage in an information exchange;
what data the payroll data provider
could provide; whether the data from
the payroll data provider is sufficiently
accurate, complete, and up-to-date; and
any conditions and limitations
associated with our receipt of the data.
(3) Consistent with applicable law
and regulations, establish an
information exchange with the selected
payroll data provider. The arrangement
between us and the selected payroll data
provider will describe:
(i) the records that will be matched;
(ii) the procedures for the match;
(iii) any requirements established
related to accuracy, completeness, and
up-to-date records;
(iv) the procedures for ensuring the
administrative, technical, and physical
security of the records matched; and
(v) such other provisions as are
necessary.
(4) Prior to receiving payroll data
provider information, publish a notice
in the Federal Register that describes
the information exchange and the extent
to which the information received
through such exchange is:
(i) relevant and necessary to: (A)
accurately determine initial and ongoing
entitlement to, and the amount of,
disability benefits under title II of the
Social Security Act; (B) accurately
determine eligibility for, and the
amount of, benefits under the
Supplemental Security Income program
under title XVI of the Social Security
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16:54 Feb 14, 2024
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Act; and (C) prevent improper payments
of such benefits; and
(ii) sufficiently accurate, up-to-date,
and complete.
(b) Guidelines for Maintaining an
Information Exchange with Payroll Data
Providers. We will perform the
following activities while we maintain
an established information exchange
with a payroll data provider described
in paragraph (a):
(1) Periodically assess whether the
data we receive under the information
exchange continues to be accurate,
complete, and up-to-date; and
(2) Monitor compliance with the
requirements of the information
exchange described in paragraph (a)(3).
[FR Doc. 2024–02961 Filed 2–14–24; 8:45 am]
BILLING CODE 4191–02–P
DEPARTMENT OF LABOR
Employment and Training
Administration
20 CFR Part 656
[Docket No. ETA–2023–0006]
RIN 1205–AC16
Labor Certification for Permanent
Employment of Foreign Workers in the
United States; Modernizing Schedule A
To Include Consideration of Additional
Occupations in Science, Technology,
Engineering, and Mathematics (STEM)
and Non-STEM Occupations
Employment and Training
Administration (ETA), Labor.
ACTION: Request for information;
extension of public comment period.
AGENCY:
On December 21, 2023, ETA
published a Request for Information
(RFI), titled ‘‘Labor Certification for
Permanent Employment of Foreign
Workers in the United States;
Modernizing Schedule A To Include
Consideration of Additional
Occupations in Science, Technology,
Engineering, and Mathematics (STEM)
and Non-STEM Occupations.’’ The
period for submitting public comments
is being extended to May 13, 2024, to
allow stakeholders additional time to
comment.
DATES: The comment period for the RFI
published in the Federal Register on
December 21, 2023 (88 FR 88290), is
extended. Submit comments to the RFI
and other information by May 13, 2024.
ADDRESSES: You may submit written
comments electronically by the
following method:
• Federal eRulemaking Portal:
https://www.regulations.gov. Follow the
SUMMARY:
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Fmt 4702
Sfmt 4702
instructions on the website for
submitting comments.
• Instructions: Include the docket
number ETA–2023–0006 in your
comments. All comments received will
be posted without change to https://
www.regulations.gov. Please do not
include any personally identifiable or
confidential business information you
do not want publicly disclosed.
FOR FURTHER INFORMATION CONTACT:
Brian Pasternak, Administrator, Office
of Foreign Labor Certification,
Employment and Training
Administration, Department of Labor,
200 Constitution Avenue NW, N–5311,
Washington, DC 20210; Telephone (202)
513–7350 (this is not a toll-free
number). For persons with a hearing or
speech disability who need assistance to
use the telephone system, please dial
711 to access telecommunications relay
services.
SUPPLEMENTARY INFORMATION: On
December 21, 2023, ETA published an
RFI titled, ‘‘Labor Certification for
Permanent Employment of Foreign
Workers in the United States;
Modernizing Schedule A To Include
Consideration of Additional
Occupations in Science, Technology,
Engineering, and Mathematics (STEM)
and Non-STEM Occupations.’’ 88 FR
88290. In the RFI, ETA invited public
comment on ‘‘evaluating the utility of
expanding Schedule A to include STEM
occupations, the Department invites the
public to provide input on the
appropriate data sources and methods
for determining whether labor shortages
exist, whether Schedule A should be
used to alleviate any labor shortages in
STEM occupations should it be
determined from these data sources and
methods that such shortages exist, and
if so, how the Department could
establish a reliable, objective, and
transparent methodology for identifying
STEM occupations that are experiencing
labor shortages.’’ The RFI further invited
the public to answer a number of
questions in their responses that would
assist ETA in making this evaluation.
The public comment period for this
RFI was to conclude on February 20,
2024, 60 days after publication of the
RFI. To date, ETA has received a very
limited number of comments, many of
which do not provide the information
requested or address the questions
raised in the RFI. In addition, ETA
received a request from a stakeholder for
an extension of the public comment
period (Document ID ETA–2023–0006–
0035). ETA agrees to an extension of the
public comment period and believes
that an extension until May 13, 2024, is
sufficient and appropriate to balance the
E:\FR\FM\15FEP1.SGM
15FEP1
]]>Agencies
[Federal Register Volume 89, Number 32 (Thursday, February 15, 2024)]
[Proposed Rules]
[Pages 11773-11788]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-02961]
========================================================================
Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
========================================================================
Federal Register / Vol. 89, No. 32 / Thursday, February 15, 2024 /
Proposed Rules
[[Page 11773]]
SOCIAL SECURITY ADMINISTRATION
20 CFR Parts 404, 416, and 422
[Docket No. SSA-2016-0039]
RIN 0960-AH88
Use of Electronic Payroll Data To Improve Program Administration
AGENCY: Social Security Administration.
ACTION: Notice of proposed rulemaking.
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SUMMARY: Section 824 of the Bipartisan Budget Act of 2015 (BBA)
authorizes the Commissioner of Social Security to enter into
information exchanges with payroll data providers to obtain wage and
employment information. We use wage and employment information to
administer the Old-Age, Survivors, and Disability Insurance (OASDI)
disability and Supplemental Security Income (SSI) programs under titles
II and XVI of the Social Security Act (Act). We are proposing these
rules pursuant to section 824 of the BBA, which requires us to
prescribe, by regulation, procedures for implementing the access to and
use of the information held by payroll data providers. We expect these
proposed rules will support proper use of information exchanges with
payroll data providers that will help us administer our programs more
efficiently and prevent improper payments under titles II and XVI of
the Act, which can otherwise occur when we do not receive timely and
accurate wage and employment information.
DATES: To ensure that your comments are considered, we must receive
them no later than April 15, 2024.
ADDRESSES: You may submit comments by any one of three methods--
internet, fax, or mail. Do not submit the same comments multiple times
or by more than one method. Regardless of which method you choose,
please state that your comments refer to Docket No. SSA-2016-0039 so
that we may associate your comments with the correct rule.
Caution: You should be careful to include in your comments only
information that you wish to make publicly available. We strongly urge
you not to include in your comments any personal information, such as
Social Security numbers or medical information.
1. Internet: We strongly recommend that you submit your comments
via the internet. Please visit the Federal eRulemaking portal at
https://www.regulations.gov. Use the Search function to find docket
number SSA-2016-0039. The system will issue a tracking number to
confirm your submission. You will not be able to view your comment
immediately because we must post each comment manually. It may take up
to a week for your comment to be viewable.
2. Fax: Fax comments to 1-833-410-1631.
3. Mail: Mail your comments to the Office of Legislation and
Congressional Affairs, Regulations and Reports Clearance Staff, Social
Security Administration, Mail Stop 3253 Altmeyer, 6401 Security
Boulevard, Baltimore, Maryland 21235-6401.
Comments are available for public viewing on the Federal
eRulemaking portal at https://www.regulations.gov or in person, during
regular business hours, by arranging with the contact person identified
below.
FOR FURTHER INFORMATION CONTACT: Nicole Dunham, Policy Analyst, Office
of Supplemental Security Income and Program Integrity Policy, Social
Security Administration, 6401 Security Boulevard, Baltimore, Maryland
21235-6401, (410) 966-9078. 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:
Background
We administer the OASDI disability and SSI programs under titles II
and XVI of the Act, respectively. The OASDI program pays benefits to
individuals who meet certain requirements, including those who are
disabled and insured for disability.\1\ OASDI also pays benefits to
certain members of disabled individuals' families.\2\ We refer to
meeting the requirements for OASDI disability benefits as OASDI
disability ``entitlement.'' The SSI program provides financial support
to: (1) adults and children with a disability or blindness; and (2)
adults aged 65 and older. These individuals must meet all program
eligibility requirements, including having resources and income below
specified amounts.\3\ We refer to meeting the factors of eligibility
for SSI payments as SSI ``eligibility.''
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\1\ See 20 CFR 404.315 for a full list of the OASDI disability
eligibility requirements.
\2\ This can include, for example, a child of the disabled
individual, a child of the disabled individual entitled to an adult
child disability benefit, a spouse caring for a minor or disabled
child of the disabled individual, or retirement benefits for a
spouse age 62 or older of the disabled individual. See 20 CFR
404.330, 404.350, 404.351.
\3\ See 20 CFR 416.202 for a full list of the SSI eligibility
requirements.
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We take seriously our responsibilities to ensure eligible
individuals receive the benefits to which they are entitled and to
safeguard the integrity of benefit programs to better serve our
customers. Our commitment includes working to ensure we have accurate
wage data as quickly as practicable to avoid overpayments before they
occur or correct them quickly.
We use wage and employment information to decide who can receive
OASDI disability benefits and SSI payments. We also use it to determine
SSI payment amounts. Receiving complete, accurate, and timely wage and
employment information allows us to administer our programs efficiently
and to avoid improper payments that can occur when we do not have such
information. Reviews of post-entitlement cases show that substantial
gainful activity (SGA) \4\ continues to be the leading cause of
overpayments in the OASDI disability program. In fact, SGA-related
overpayments in the OASDI program averaged approximately $500 million
annually as of fiscal year 2022.\5\ Further, wage discrepancies,
[[Page 11774]]
which reached an annual average of approximately $1.4 billion in
improper payments as of fiscal year 2022, have been a leading cause of
improper payments in the SSI program for more than a decade.\6\
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\4\ A requirement for disability for both OASDI disability and
SSI is that you cannot be engaged in SGA, which is defined as work
that involves significant and productive physical or mental duties,
and is done, or intended to be done, for pay or profit. 20 CFR
404.1510, 404.1520(b), 416.910, 416.920(b).
\5\ FY2023 Agency Financial Report, page 180, available at
https://www.ssa.gov/finance/2023/Full%20FY%202023%20AFR.pdf.
Beneficiaries' failure to report earnings in a timely manner
accounted for 82 percent of SGA-related improper payments and our
failure to take the proper actions to process work reports accounted
for the remainder.
\6\ Id. at 184 and 185. Wage discrepancies occur when the
recipient or their deemor has actual wages that differ from the wage
amount we used to calculate the SSI payment, either because the
recipient failed to report a change, or we failed to make changes to
payments in a timely manner.
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Currently, we rely on individuals to report certain wage and
employment information to us. Individuals who are entitled to OASDI
disability must report to us when their condition improves, when they
return to work, when they increase the amount they work, and when their
earnings increase.\7\ Individuals who are eligible for SSI based on
disability or blindness must make similar reports.\8\ All SSI
recipients and deemors \9\ must also report to us any change in income
\10\ as soon as a reportable event happens.\11\ For OASDI disability
and SSI, they can report these changes by phone, fax, mail, in
person,\12\ or by using mySocialSecurity. In many cases, SSI recipients
may also report wages through the SSA Mobile Wage Reporting (SSAMWR)
application and the SSI Telephone Wage Reporting (SSITWR) system. We
may also request this information from the employer(s) or payroll data
providers when the information we receive is incomplete or we are
unable to obtain it from the individual. Because many individuals work
in jobs where earnings may vary from week to week, some individuals
report these changes to us each month or more frequently. In FY 2022,
we received 1.1 million wage reports \13\ for individuals who received
OASDI disability or OASDI disability and SSI concurrently, and who were
in current pay status (this does not include SSI only wage reports).
Though we strive to make reporting as easy as possible, individuals
must keep track of their reportable events, report them as soon as they
happen, and spend time making the reports, which can be burdensome.\14\
We estimate that there are about 1,100,000 OASDI disability
beneficiaries, between 200,000 and 300,000 SSI recipients, and another
500,000 to 600,000 deemors of SSI recipients who work in a given year.
Despite the many reporting options, we do not always receive complete
or timely reports. Even when we receive complete reports, we may still
need to verify them with independent or collateral sources when we do
not have proper wage evidence to verify the report, such as a paystub.
Currently, to verify wage reports, we conduct a manual query,
requesting records from payroll data providers, and sometimes
employers, on a case-by-case basis. This is time-consuming, prolongs
the resolution of the case, and adds to our workloads. An automated
information exchange would allow us to obtain this information more
efficiently because it could automatically process large numbers of
queries at once.
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\7\ See 20 CFR 404.1588(a). We require reporting an increase in
work or earnings because that may indicate the beneficiary has
performed SGA (see 20 CFR 404.1572 and 404.1574) and will no longer
be entitled to an OASDI disability benefit (20 CFR 404.1520(b)).
\8\ See 20 CFR 416.988. As with OASDI disability, we require
these reports because they may indicate SGA (see 20 CFR 972 and
416.974), which may affect SSI eligibility (20 CFR 416.920(b)).
\9\ A deemor is any person whose income or resources are
material to determining the eligibility of someone filing for or
receiving SSI. 20 CFR 416.1160; SI 01310.127.
\10\ See 20 CFR 416.708(c). Income in our SSI regulations is a
broad term that includes ``anything you receive in cash or in kind
that you can use to meet your daily needs for food and shelter.''
See 20 CFR 416.1102. One type of income is wages, which are divided
into two categories: wages paid in cash and wages paid in kind. See
20 CFR 416.1110. Wages paid in cash may include salaries,
commissions, bonuses, severance pay, and any other special payments
received because of employment. Id.
\11\ See 20 CFR 416.714.
\12\ When we receive reports by phone, fax, mail, or in person,
our technicians process them manually. Manual processing by
technicians includes calculating the total wage amount for the
month, posting the amount to the record, and providing a receipt to
the customer. Electronic methods of reporting accept wage reports on
any day during the reporting month. Wage reports submitted by
electronic methods are automatically posted to the record and the
payment is adjusted accordingly.
\13\ A ``wage report'' is anytime SSA becomes aware of wages,
whether through self-reporting (mail, fax, office visit, or a self-
report through an electronic method), third party data provider, IRS
annual wage data, or State reported wage data.
\14\ To be considered in time to process a particular month's
payment, SSI recipients or their representative payees must report
income changes within the first ten days of the month following the
month of change (20 CFR 416.714). Receiving this information earlier
in the month allows us more time to calculate the correct payment,
send a Notice of Planned Action (NOPA) when an adverse action
applies, and adjust benefits for the following month. If a change is
reported after the first ten days of the month and the change
results in a change in the recipient's payment amount, then it is
likely that we will not be able to adjust benefits for the following
month, resulting in an overpayment or underpayment.
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As we discuss later in this proposed rule, when individuals become
eligible for reduced reporting responsibilities, we would no longer
burden them with frequent reporting of certain wage information. They
would no longer need to keep track of certain reportable events, report
them as soon as they happen, and spend time making the reports.
Further, we would no longer need to burden employers with requests for
this information. As discussed in the regulatory analysis section, we
project that identifying overpayments more quickly will reduce the
quantity and size of overpayments, benefitting both recipients and
employers, and better fulfill our stewardship obligations.
Section 824 of the BBA and the Proposed Automated Process
Section 824 of the BBA \15\ authorizes the Commissioner of Social
Security to enter into information exchanges with payroll data
providers \16\ to obtain wage and employment information. It authorizes
these information exchanges for the purposes of efficient program
administration and to prevent improper OASDI disability and SSI
payments \17\ without the need for verification by independent or
collateral sources.\18\ Section 824 adds a new section 1184 to the Act
and also adds language to sections 225 and 1631(e) of the Act \19\ to
clarify the role that information exchanges will play in determining
payment amount and making eligibility and entitlement determinations
and decisions for the OASDI disability and SSI programs.
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\15\ Public Law 114-74, 129 Stat. 584, 607.
\16\ ``Payroll data providers'' include payroll providers, wage
verification companies, and other commercial or non-commercial
entities that collect and maintain information regarding employment
and wages. 42 U.S.C. 1320e-3(c)(1).
\17\ Under 42 U.S.C. 1320e-3(a)(1) the information exchange is
limited to disability insurance beneficiaries (those under
subsections (d)(1)(B)(ii), (d)(6)(A)(ii), (d)(6)(B), (e)(1)(B)(ii),
and (f)(1)(B)(ii) of section 202 and subsection (a)(1) of section
223) and supplemental security income benefits under title XVI. The
law does not allow us to use the information exchange to obtain wage
information for other beneficiaries under Title II (e.g.,
individuals who continue to work while receiving old-age benefits).
\18\ 42 U.S.C. 1320e-3(a). ``Information exchanges'' are the
automated comparison of our system(s) of records with information of
payroll data providers. 42 U.S.C.. 1320e-3(c)(2).
\19\ 42 U.S.C. 425, 1320e-3, and 1383(e).
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As discussed above, we require wage and employment information to
administer the OASDI disability and SSI programs. An information
exchange would allow us to automate the process of obtaining and
recording the wage and employment data we receive from a payroll data
provider through the information exchange to the appropriate OASDI
disability and SSI systems records.\20\ We will use this information
[[Page 11775]]
to efficiently administer OASDI and SSI benefits, including adjusting
payment amounts and making entitlement or eligibility determinations
for the OASDI disability and SSI programs based on the information we
receive from a payroll data provider. We will also use this information
to avoid making improper payments of those benefits.
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\20\ Implementation of the information exchange will not affect
our quarterly data-matches with the National Directory of New Hires
(NDNH) or our annual match with the Master Earnings File, both which
supply us with limited wage data. The NDNH is a federally mandated
national repository of employment, unemployment insurance, and
quarterly wage information submitted by state directories of new
hires, state workforce agencies, and Federal employers. The Master
Earnings File contains data derived from IRS Form W-2, quarterly
earnings records, and annual income tax forms. These data include
regular wages and salaries, tips, self-employment income, and
deferred compensation (contributions or distributions).
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Advantages of Using Information Exchanges With Payroll Data Providers
We expect that receiving monthly wage and employment information
for our claimants, beneficiaries, recipients, and deemors \21\
automatically through an information exchange with a payroll data
provider who provides sufficiently accurate, up-to-date, and complete
information will improve payment accuracy. It will also reduce improper
payments that occur when we do not receive wage or employment reports
timely (although, as indicated in the E.O. 12866 analysis section, we
do not estimate the reduction in improper payments). Further, this
process would reduce the burden of self-reporting on individuals who
authorize us to obtain wage and employment information from a
participating payroll data provider and we receive their wage and
employment information from their employer through an information
exchange. Additionally, individuals who provide authorization would not
be subject to certain penalties under section 1129A of the Act \22\ for
any omission or error with respect to wages reported by a participating
payroll data provider (in FY 2022 we performed 54 cases of
administrative sanctions in the SSI program and 82 administrative
sanctions in the Social Security Disability Insurance (SSDI) program;
in FY 2023 it was 59 cases and 24 cases, respectively). We define a
participating payroll data provider as a payroll data provider that has
an information exchange arrangement with us to provide wage and
employment information.
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\21\ As explained above, a deemor is any person whose income or
resources are material to determining the eligibility of someone
filing for or receiving SSI. 20 CFR 416.1160; SI 01310.127.
\22\ 42 U.S.C. 1320a-8a. See also 20 CFR 404.459 and 416.1340.
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We anticipate that implementation of an information exchange would
result in more efficient use of our limited administrative resources.
If we receive wage and employment information through an information
exchange with a participating payroll data provider, our technicians
can reduce the amount of time spent manually requesting this
information from payroll data providers and employers, manually
entering data into our systems from an individual's pay records,
contacting individuals, and assisting individuals with the results of
incomplete or untimely reporting.
Solicitation for Payroll Data Provider
In May 2019, we solicited proposals for payroll providers using
full and open competition in accordance with Federal Acquisition
Regulations (FAR) Part 15. As stated in our solicitation, we based our
award decision on a trade-off process (best value), considering both
price and non-price factors.\23\
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\23\ In accordance with FAR Subpart 15.101-1(a), a trade-off
process is appropriate when it may be in the best interest of the
Government to consider award to other than the lowest priced offeror
or other than the highest rated offeror. The non-price factors
(listed in descending order of importance) used were: 1. Technical
approach, 2. Corporate experience, and 3. Past performance. The
solicitation stated factors 1, 2, and 3 when combined were
approximately equal in importance to price.
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Equifax Workforce Solutions (Equifax) was the only payroll provider
to respond to our solicitation. We evaluated the proposal against the
evaluation criteria listed above, which consisted of technical
approach, corporate experience, past performance, and price. The
Technical Evaluation Committee \24\ determined the Non-Price Proposal
to be acceptable and assigned favorable ratings for the three non-price
factors. The Contracting Officer evaluated the Business Proposal (i.e.,
price proposal) and determined the proposed prices were fair and
reasonable according to FAR 15.404-1(b) and the terms of the
solicitation. In September 2019, the agency awarded the Payroll
Information Exchange contract to Equifax, as we determined Equifax
offered the best value to the government, all factors considered.\25\
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\24\ The Technical Evaluation Committee supports the source
selection for the acquisition. It is typically comprised of no more
than three individuals with the appropriate technical expertise to
evaluate proposals in accordance with the solicited evaluation
factors.
\25\ We published notice of our information exchange with
Equifax, pursuant to section 824 of the BBA, on January 19, 2021. 86
FR 5303.
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Accuracy Study
We conducted an accuracy study \26\ of data we received from
Equifax through a database known as The Work Number.\27\ Equifax
reports that The Work Number covers over two-thirds of non-farm
payroll, although neither SSA nor Equifax has analyzed whether working
disability benefit recipients are represented in a similar proportion
in the database. This study compared wage and employment information we
received from Equifax to wage and employment information we obtained
from paystubs that users uploaded to the SSAMWR application, an online
wage reporting tool currently available to SSI recipients, deemors, and
their representative payees. We identified about 40,000 samples from
March 2022 through September 2022 where both Equifax and SSAMWR had
information on the same paystub for the same employee, employer, and
time period.\28\ We then compared the information that Equifax and
SSAMWR had for these paystubs using the following four variables: pay
period start date, pay period end date, pay date, and gross earnings
amount.
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\26\ The study, ``Evaluation of Payroll Information Exchange
(PIE) Wage Data Accuracy,'' is available in the rulemaking record at
www.regulations.gov as a supporting document for Docket SSA-2016-
0039.
\27\ We performed a limited period of exchanges through
September 2022 with Equifax. We used this data to test systems we
created to receive, interpret, and incorporate the data Equifax
sent. We were also able to use this data to perform this accuracy
study.
\28\ The sampling choices limit the types of conclusions that
can be drawn about the accuracy of Equifax's data across the entire
covered population. For example, if Equifax reports payroll
information on an individual who was not working during a pay
period, such an error would lower the true accuracy of using the
Equifax database but would not be identified in this study.
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We evaluated the accuracy through two steps. First, we matched
seven months of information exchange records to SSAMWR based on SSN and
pay periods as identified by the variables pay period start date, pay
period end date, and pay date. Of the roughly 40,000 records with SSNs
in both datasets, we found that 80.43% exactly matched both gross
earning and all date fields. In 13.35% of the cases all dates matched
but gross earnings did not. In the remainder of the cases there were
iterations of partial earnings matches but with inaccurate dates.
To study the cause of the 7,976 cases with matching errors, our
second step was to randomly sample 4% (341) and manually review the
cases. We first found that a large source of gross earnings match
errors between information exchange data and SSAMWR were due to optical
scanning inaccuracies from our SSAMWR file compared with the actual
photo of the paystub the beneficiary had uploaded to SSAMWR. To further
determine the accuracy of information exchange-reported data, we
compared the information exchange data against actual images of the
paystubs which
[[Page 11776]]
were submitted in SSAMWR. Through this process, we determined that in
77.4% of the sampled cases,\29\ all dates and gross earnings matched
between the information exchange and the true paystub.
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\29\ The 95 percent confidence interval for this estimate had a
lower bound of 73.0 percent and an upper bound of 81.8 percent.
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By extrapolating this sample to the broader set of 7,976 cases
where there were initial mismatches between information exchange
records and SSAMWR, we concluded that in 95.6 percent \30\ of the
original roughly 40,000 cases, all four variables matched between the
actual paystub and the information exchange record. Although some data
differed in 4.4 percent of these cases between Equifax and SSAMWR, the
study did not determine whether the differences would have affected our
benefit determinations. For example, one of the pay period variables we
evaluated, pay period start date, would have no discernable impact on
benefit determinations.\31\ While some other variable inconsistencies
likewise may have had little or no impact on benefit determinations,
potential errors related to total pay (such as over- or under-reporting
actual income) could result in us initiating an action to change
benefit amount.\32\
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\30\ The 95 percent confidence interval for this estimate had a
lower bound of 94.7 percent and an upper bound of 96.5 percent.
\31\ The pay period start date obtained through this exchange is
not used for benefit determinations. For OASDI disability
determinations, we use pay period end date, gross earnings, and
sometimes pay date. For SSI determinations, we use only the pay date
and gross earnings. When we removed the pay period start date
variable from the study data, the match rate increased from 95.6
percent to 97.1 percent.
\32\ Regarding the sample of cases that did not match on gross
earnings, representing roughly half of the 4.4 percent of mismatched
data, the study did not determine, for example, whether the mismatch
in gross earnings was a significant difference that would result in
an incorrect benefit determination. Mismatched earnings may not
impact benefit eligibility or amounts if the earnings are below
relevant thresholds or not relevant to the calculation based on when
they are paid (for SSI) or earned (for OASDI disability). The study
did not determine how mismatched cases impacted benefit
determinations. Also, the study only looked at single instances of
paystubs and not the full monthly earnings amount. Therefore, the
study was unable to determine the true impact of those inaccuracies.
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Based on the results of this accuracy study, we are confident the
information exchange will supply the accurate wage and employment
information we need to make benefit determinations in most
circumstances.
Requirements of Section 824 of the BBA
Section 824(d) of the BBA \33\ requires us to publish regulations
prescribing procedures for implementing the access and use of the
information held by payroll data providers, including: (1) guidelines
for establishing and maintaining information exchanges with payroll
data providers, pursuant to section 1184 of the Act; (2) beneficiary
authorizations; (3) reduced wage reporting responsibilities for
individuals when they authorize us to access information held by
payroll data providers through an information exchange; and (4)
procedures for notifying individuals in writing when they become
subject to such reduced wage reporting requirements and when such
reduced wage reporting requirements no longer apply to them. We discuss
each of these four items below.
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\33\ Public Law 114-74, 129 Stat. 584, 610.
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1. Guidelines for Establishing and Maintaining Information Exchanges
With Payroll Data Providers
As discussed above, we need wage and employment information to
decide who can receive OASDI disability benefits and SSI payments and
to determine SSI payment amounts.\34\ Although individuals are required
to report this information to us, they do not always report it to us
timely or provide complete information. As required by section 824 of
the BBA, we propose to prescribe guidelines for establishing and
maintaining an information exchange.
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\34\ Section 824 of the BBA also permits us to obtain wage and
employment information from a participating payroll data provider
for the purpose of making OASDI disability benefit amount
determinations. 42 U.S.C. 1320e-3(b)(1)(A). Currently, we do not use
wage and employment information from a payroll data provider for
OASDI disability benefit amount determinations.
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To establish an information exchange, we will identify the payroll
data providers (as defined in proposed Sec. Sec. 404.702 and 416.702)
that may be interested in participating in an information exchange with
us. Before we establish an information exchange with a payroll data
provider, we will consider such factors as the provider's ability and
willingness to: engage in an information exchange; provide us with wage
and employment information that includes all necessary data elements
needed to make program determinations and payment amount decisions; and
provide data that is sufficiently accurate,\35\ complete,\36\ and up-
to-date.\37\ We will also consider and evaluate any conditions and
limitations associated with our receipt of the data.
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\35\ By ``accurate'' we mean that the exchange supplies the
correct wage and employment information received for the requested
individual.
\36\ By ``complete'' we mean the wage and employment information
received from the participating payroll data provider contains all
the required data elements necessary for us to make determinations
and decisions regarding entitlement under title II of the Act. and
eligibility and payment amounts under title XVI of the Act. We note
that, in cases in which our current participating payroll data
provider cannot supply all the wage and employment information we
require to make benefit determinations, we investigate further to
gather additional information.
\37\ By ``up-to-date'' we mean the latest wage and employment
information received from the payroll data provider each month. For
example, our current participating payroll data provider makes wage
and employment information available within 24 hours of receipt from
employers.
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Any arrangement with a selected payroll data provider will
describe: the records to be matched; the procedure for conducting the
match; any requirements established relating to ensuring records are
accurate, complete, and up-to-date; procedures for ensuring the
administrative, technical, and physical security of the records
matched; and such other provisions as are necessary. Further, before we
enter into an information exchange,\38\ we will publish a notice in the
Federal Register describing the information exchange,\39\ including our
assessment that the information received through the exchange is
relevant and necessary to administer our programs and an explanation
for why the information is sufficiently accurate, complete, and up-to-
date. Receiving accurate, complete, and up-to-date, information from an
information exchange is necessary to allow us to decide claims earlier
and avoid improper payments that may arise from untimely, incomplete,
or missing wage and employment reports.
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\38\ We have interpreted this to mean before implementing an
information exchange by data sharing, which would occur after
establishing an arrangement with a payroll data provider (e.g.,
contract) to develop the exchange.
\39\ On January 19, 2021, we published a notice in the Federal
Register that provided advance notification to the public regarding
an information exchange we established with Equifax (86 FR 5303). To
date, that is the only information exchange we have established
under section 824 of the BBA.
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Once we enter into an information exchange with a payroll data
provider, we will maintain the information exchange by periodically
assessing whether the data we receive continues to be accurate,
complete, and up-to-date. We will also monitor compliance with the
requirements of the information exchange.
2. Beneficiary Authorizations
When an individual applies for benefits under OASDI disability or
SSI, we will request authorization from the individual to obtain their
wage and employment information from a payroll data provider.\40\ We
will also ask for
[[Page 11777]]
authorization during other post-entitlement events, such as a
redetermination for SSI. Although we have not started using payroll
data, in anticipation of implementing the information exchange, we
began collecting authorizations in late 2017 (which we currently
collect via paper form or through attestation).\41\ In the future, we
could accept authorization electronically. For OASDI disability, we
request authorization from individuals who apply for or are entitled to
benefits.\42\ For SSI, we request authorization from individuals who
apply for or receive SSI, as well as deemors, ineligible children, and
individuals who turn age 18.\43\ An authorization applies to all
pending and approved claims under the specific program until the
authorization is revoked or terminated.
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\40\ The law allows SSA to require the authorization. SSA has
decided that we will request this authorization on a voluntary
basis, and that there will be no automatic assumption of inclusion
without obtaining prior authorization. Under the law, individuals
may refuse to provide this authorization and may revoke it. We will
follow the BBA 824 requirements about the specific information to be
provided with the authorization.
\41\ Attestation is the action taken by an SSA employee of
confirming and annotating on record the proper individual's intent
to sign an SSA form.
\42\ For OASDI disability, we request authorization at the
initial claim, expedited reinstatement (EXR), and work continuing
disability review (CDR) stages. When unsuccessful or if the
individual is not available to provide authorization at the time we
request it, we mail the paper SSA-8240 to the authorizing person,
including a cover letter indicating the individual should complete,
sign, and return the paper SSA-8240 form.
\43\ For SSI, we request authorization at the full and deferred
initial claims, and redetermination stages. We attempt to collect
the authorization verbally and record it in our relevant system of
record. When unsuccessful or if the individual is not available to
provide authorization at the time we request it, we mail the paper
SSA-8240 to the authorizing person, including a cover letter
indicating the individual should complete, sign, and return the
paper SSA-8240 form.
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When we request authorization, we explain the authorization's scope
and duration. With regard to scope, we explain that we will use the
authorization to obtain information from a payroll data provider to
determine initial or ongoing entitlement to disability benefits for
OASDI, as well as eligibility and payment amounts for SSI. We also
explain that we may use the authorization for additional claims
associated with the claim filed, such as an SSI claim by a spouse or
child. In addition, we explain how we may use and disclose records
obtained from payroll data providers consistent with applicable Federal
law and any privacy notices we provide the individual. For example, we
may use the individual's wage and employment information to decide
whether they may be entitled to or eligible for benefits under both the
OASDI disability and SSI programs, even if the individual's
authorization was given for only one of those programs.
With respect to the duration of an authorization, we inform
individuals that the authorization remains in effect until the earliest
of the following occurs:
(a) the individual revokes their authorization in writing;
(b) we terminate all entitlement(s) to benefits or eligibility for
payments, there are no other claims or appeals pending, and all periods
for appealing the determination or decision to terminate entitlement or
eligibility have lapsed; \44\
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\44\ In cases with multiple claims, if one of the claims has an
adverse determination or decision and the appeals period for that
determination or decision has ended or the benefits terminate, we
will no longer use the authorization for that specific claim.
However, we will continue to use the authorization for all other
current claims under the program for which the individual provided
authorization and there is no other reason to end the authorization.
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(c) there has been an adverse determination or decision under the
OASDI disability or SSI program, and, for that program, the individual
is not otherwise currently entitled to benefits or eligible for
payments, there are no other claims or appeals pending, and the period
for appealing the adverse determination or decision has lapsed; or
(d) for SSI deemors, the deeming relationship ends.\45\
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\45\ Additionally, if a parent or legal guardian gave us the
initial authorization for an individual who is not a legally
incompetent adult, the authorization will terminate when the
individual turns 18 years of age. See, e.g., POMS SI 00515.001.C.
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Individuals may revoke their authorization in writing at any time.
If they revoke their authorization, we will apply the revocation to all
pending or approved claims under the OASDI disability and SSI programs
from the time we process the revocation, including claims involving
deemors. If the authorization is revoked, we will no longer request new
information from payroll data providers for that individual.
3. Reduced Wage Reporting Responsibilities When Individuals Authorize
Us To Access Information Held by Payroll Data Providers Through an
Information Exchange
Currently, if individuals become entitled to OASDI disability or
eligible for SSI, they must report certain wage and employment
information to us. We use this information to make program
determinations. We expect that, once implemented, the information
exchanges will help us reduce the wage reporting obligations of some
individuals. Further explanation follows.
Under section 824 of the BBA and these regulations, when
individuals apply for or become entitled to a benefit based on
disability under OASDI or any type of benefit under SSI and they
authorize us to obtain information from payroll data providers, their
reporting responsibilities may be reduced. The reduced wage reporting
responsibilities depends on whether we receive their wage and
employment information for their employer(s) through a participating
payroll data provider. We will send a notice to individuals whenever
their wage reporting responsibilities change, as discussed in the next
section.
Under our current rules, individuals who are entitled to OASDI
disability must report to us when their condition improves, when they
return to work, when they increase the amount they work, or if their
earnings increase.\46\ There are many ways to do this. As mentioned
above, individuals receiving OASDI disability can report changes in
work activity by phone, fax, mail, in person, or online via their
mySocialSecurity account. Under the proposed rules, we would require
reporting only when their condition improves, they return to work, or
they have a new employer. However, if individuals provide authorization
and we receive their wage and employment information from their
employer(s) through a participating payroll data provider, they would
no longer have to report an increase in the amount of their work or an
increase in their earnings with that employer, because we will obtain
that information directly from the payroll data provider.
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\46\ 20 CFR 404.1588(a). We require reporting an increase in
work or earnings because that may indicate that the beneficiary has
performed substantial gainful activity (see 20 CFR 404.1572 and
404.1574) and will no longer be entitled to an OASDI disability
benefit (20 CFR 404.1520(b)).
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For SSI, wage reporting responsibilities may affect both
eligibility and the payment amount. Individuals must report events that
might change their disability or blindness status, including when their
condition improves, when they return to work, when they increase the
amount of their work, or when their earnings increase.\47\ To determine
SSI eligibility and payment amount, we require individuals to report
various events to us, among them any change in income \48\ and
individuals must report to us as
[[Page 11778]]
soon as a reportable event happens.\49\ As mentioned above, individuals
receiving SSI can report changes in work activity by phone, fax, mail,
in person, online via their mySocialSecurity account, or by using
SSAMWR or SSITWR. However, if individuals provide authorization and we
receive their wage and employment information from their employer(s)
through a participating payroll data provider, they will no longer have
to report an increase in the amount of their work for that employer, an
increase in earnings from that employer, or changes to wages paid in
cash \50\ from that employer, because we will obtain that information
directly from the payroll data provider. All other reporting
obligations apply, as detailed in the chart.
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\47\ See 20 CFR 416.988.
\48\ See 20 CFR 416.708(c).
\49\ See 20 CFR 416.714.
\50\ By ``wages paid in cash'' we are referring to wages paid in
money or its equivalent, as opposed to wages paid ``in kind,'' which
refers to the value of food, clothing, shelter, or other items
provided as wages instead of cash. See 20 CFR 416.1110.
----------------------------------------------------------------------------------------------------------------
Reporting responsibilities under
proposed regulations when we receive
Program Reporting responsibilities under wage and employment information for an
current regulations employer through a payroll data
provider
----------------------------------------------------------------------------------------------------------------
OASDI disability.............. Individuals must report to us when: Individuals must report to us when:
their condition improves: their condition improves;
they return to work; they return to work; or
they increase the amount they have a new employer.
they work; or
their earnings increase.
SSI........................... Individuals must report to us any Individuals no longer have to report
change in income as soon as a changes to wages paid in cash.
reportable event happens.
They must also report to us when: They must report to us when:
their condition improves; their condition improves;
they return to work; they return to work; or
they increase the amount they they have a new employer.
work; or
their earnings increase.
See Sec. 416.708 for additional See Sec. 416.708 for additional
reporting requirements. reporting requirements.
----------------------------------------------------------------------------------------------------------------
In addition to the reduced wage reporting responsibilities
described above, individuals may not be subject to certain penalties
related to reporting if they authorize us to obtain information from a
payroll data provider. Individuals who authorize us to obtain wage and
employment information from a payroll data provider will not be subject
to penalties under section 1129A of the Act for omissions or errors in
the data we receive from a participating payroll data provider,
excluding situations where there may be fraud or similar fault.\51\
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\51\ 42 U.S.C. 1320a-8a. See 20 CFR 404.459, 416.1340. The
relevant penalty under section 1129A of the Act and 20 CFR 404.459,
416.1340 is the non-payment of OASDI disability benefits and
ineligibility for SSI cash benefits. Other penalties under section
1129A of the Act may apply in situations involving false or
misleading statements, including statements regarding wages and
employment.
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Further, if individuals report changes in income late or not at all
in connection with SSI payments, they may be subject to penalties under
section 1631(e)(2) of the Act, unless they have good cause for the
failure to report timely.\52\ In cases in which an individual has
authorized us to obtain information from a payroll data provider,
however, we will find good cause for a failure of, or delay by, an
individual reporting a change in employer.\53\ In our notice of a
change in reporting responsibilities, we will include any changes in
penalty relief that may apply or when we may make the good cause
finding described above.
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\52\ 42 U.S.C. 1383(e)(2). See 20 CFR 416.722 to 416.732. This
penalty may be assessed for failure or delay in making certain
reports to us.
\53\ This comes directly from the BBA and we expect the intent
was to provide additional relief from reporting obligations for SSI
cases with authorizations. In section 824(c)(2)(B), the BBA added
language to section 1631(e)(2)(B) of the Act clarifying that if
someone authorizes, and there is a failure or delay to report a
change in employer, SSA will find good cause for that failure or
delay if ``the event or change in circumstance is a change in the
individual's employer.'' We would anticipate receiving this
information through the information exchange.
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Penalties that we may impose for failure to report are distinct
from any attempts we may make to recover money that is improperly paid
as a result of an overpayment. While individuals may not be subject to
penalties for omissions or errors that may occur as a result of wage
reporting, if we discover an overpayment, we will still attempt to
recover any improperly paid funds. Although we do not propose it at
this time, we are considering clarifying that for individuals who are
exempt from reporting responsibilities because we get their wage and
income information from a payroll data provider, any overpayments which
result from inaccurate reporting of their income by the payroll data
provider would be treated as an overpayment which they were ``without
fault'' in causing under 20 CFR 404.507 (for OASDI) and 20 CFR 416.552
(for SSI). While we still initially may seek recovery of an overpayment
from an individual who is considered ``without fault'' in causing the
overpayment, these individuals may request a waiver of the overpayment
recovery which we may grant if, among other reasons, we determine that
recovering the overpayment would either be ``against equity and good
conscience'' or ``defeat the purpose'' of the program. Because one
benefit of the payroll exchange is to facilitate the automatic
transmission of wage data without the beneficiary manually reviewing
and reporting this information to us, this alternative would provide an
additional protection for participating beneficiaries against payroll
inaccuracies. As discussed in the Solicitation for Public comment
section below, prior to adopting this alternative policy we seek
comments on if it would lower burdens for our beneficiaries or improve
administrative efficiencies, other improvements we might consider
related to addressing overpayments associated with workers who
participate in the payroll exchange, as well as whether we should
consider any other consequences of this alternative.
[[Page 11779]]
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Penalties under Penalty relief when
Program current law affected providing
by the BBA authorization
------------------------------------------------------------------------
OASDI disability.......... Individuals Individuals
are subject to are no longer
penalties for subject to penalties
omissions or errors under section 1129A
in wage and for omissions or
employment errors in wage and
information under employment
section 1129A. information that we
receive from a
payroll data
provider through an
information
exchange.
SSI....................... Individuals Individuals
are subject to are no longer
penalties for subject to penalties
omissions or errors under section 1129A
in wage and for omissions or
employment errors in wage and
information under employment
section 1129A. information that we
We may receive from a
impose a penalty payroll data
under section provider through an
1631(e)(2) of the information
Act for a failure or exchange.
delay in reporting We will find
certain events or good cause for a
changes in failure of, or delay
circumstances by, an individual
relevant to SSI reporting a change
eligibility or in employer. This
payment amount means the penalty
unless the would not apply.
individual can show
good cause for the
failure or delay.
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4. Procedures for Notifying Individuals in Writing When They Become
Subject to Reduced or Increased Wage Reporting Requirements and When
Penalty Relief Applies
We will notify individuals in writing of changes in their reporting
responsibilities whenever we start or stop receiving their wage and
employment information from a payroll data provider through an
information exchange. We also explain whether they may be subject to
penalties under section 1129A of the Act at the time they provide
authorization.\54\ If they receive SSI, we will also explain when we
will find good cause for a failure or delay in reporting a change in
employer under section 1631(e)(2) of the Act.
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\54\ There are certain instances where an individual may be
subject to penalties even though they have authorized the use of an
information exchange. For example, if an individual authorizes the
use of an information exchange but their employer does not actually
participate in one, they may be subject to penalties for failure to
report their income. As another example, if an individual's employer
participates in the information exchange but the individual fails to
report a separate stream of self-employment income, they may be
subject to penalties for failure to report their income.
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As discussed above, if individuals authorize us to obtain
information from a payroll data provider, and we receive their wage and
employment information for their employer(s) through a participating
payroll data provider, they will not have to report, for that employer,
changes in earnings for OASDI disability and SSI or wages paid in cash
for SSI. This will continue for as long as we continue to receive this
information through a participating payroll data provider for that
employer, and we will send a notice to the individual informing them of
the change to their reporting responsibilities. We will also send
notices whenever we start and stop receiving information about their
employer and their reporting responsibilities change. All other
reporting requirements will still apply.
If individuals work multiple jobs, they will not have to report an
increase in earnings for OASDI disability and SSI or wages paid in cash
for SSI from any employer(s) whose wage and employment information we
receive from a participating payroll data provider, as long as we
continue to receive this information through a participating payroll
data provider for that employer(s). We will send a notice \55\ to the
individual informing them of any change to their reporting
responsibilities. When an individual gives us authorization to obtain
their wage and employment information from a payroll data provider, we
promptly issue them a receipt that includes the scope and duration of
their authorization and explains their wage reporting responsibilities
related to the information exchange. This receipt explains they are
required to continue to report their wage and employment information to
us until they receive a specific notice telling them that they no
longer must report. The notice will identify the employer(s) for whom
the individual will not need to report wage and employment information
to us. Individuals must still report an increase in earnings for OASDI
disability and SSI and wages paid in cash for SSI from any employer(s)
whose wage and employment information we do not receive through a
participating payroll data provider. They must also tell us if they
have a new employer.
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\55\ Following publication of this proposed rule, we will submit
to OMB a request for a revision to an existing information
collection under the Paperwork Reduction Act (5 CFR 1320.11).
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If individuals revoke their authorization, we will notify them in
writing to explain that all reporting responsibilities apply and that
penalties relating to reporting may apply.
When Individuals Disagree With Wage and Employment Information Obtained
From a Payroll Data Provider
As noted above, wage and employment information may affect OASDI
disability entitlement, SSI eligibility, and SSI payment amounts
because we use that information to determine or decide who can receive
benefits and the amount of the SSI payments for eligible individuals.
If we implement the information exchange, we would obtain the payroll
data from the previous month on or around the 7th day of the current
month. For example, on November 7, 2023, we would receive the wage and
employment information for October 2023. If our use of wage and
employment information from a payroll data provider affects
entitlement, eligibility, or payment amounts, all of our usual
procedures apply.\56\ By receiving this information early in a month
for SSI cases, we should have enough time to calculate the correct
payment, send an advance notice or Notice of Planned Action (NOPA) when
an adverse action applies, and adjust benefits accurately for the
following month (December 2023 in this example).\57\
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\56\ As described in this and subsequent paragraphs, we will
provide adequate notice to beneficiaries before adversely adjusting
their benefits. However, we do not undertake any specialized review
of payroll data to identify potential aberrations or other
indicators that a reported income may be particularly unlikely to be
accurate.
\57\ We note that the monthly information exchange only provides
us data for the previous month but does not provide any updates to
revisions made for earlier months. For example, if during the May
7th, 2024 information exchange we received information that a
beneficiary earned $500 in April, but during the month of May the
employer corrected that amount in their own payroll system to $800,
the June 7th, 2024 information exchange would not alert us to the
change in reported income for April.
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For OASDI disability, we send a notice to the beneficiary before
taking an adverse action (e.g., reduction, suspension, or termination
of benefits) if we learned of the reason for the action from a source
other than a first party report. We call this an advance notice. Once
we issue the advance notice, the beneficiary has 15 days or 35 days to
rebut the information in the advance notice before the adverse action
will
[[Page 11780]]
occur.\58\ If we do not hear from the beneficiary within the timeframe,
we assume the information in the advance notice is correct and we will
take the adverse action. When we take the adverse action, the
beneficiary will receive a final (initial determination) notice,\59\
which provides the beneficiary with the right to appeal the action
taken.
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\58\ The time frame for rebuttal is 15 days for cases that
involve adverse actions or adjustments that do not involve an
automated computer or non-automated data match and 35 days for cases
that involve automated computer or non-automated data match. See
POMS GN 03001.015. Individuals whose wage and employment information
is received through an information exchange will have 35 days to
rebut the information.
\59\ Initial determinations are the determinations we make that
are subject to administrative and judicial review. We base our
initial determination on the preponderance of the evidence. We state
the important facts and give the reasons for our conclusions in the
initial determination. See 20 CFR 404.902, 20 CFR 404.900, 20 CFR
416.1402, and 20 CFR 416.1400. We mail a written notice of our
initial determination to them at their last known address. The
written notice will explain in simple and clear language what we
have determined and the reasons for and the effect of our
determination. If our determination involves a determination of
disability that is in whole or in part unfavorable to them, our
written notice also will contain in understandable language a
statement of the case setting forth the evidence on which our
determination is based. The notice also will inform them of their
right to reconsideration. We will not mail a notice if the
beneficiary's entitlement to benefits has ended because of their
death. See 20 CFR 404.904 and 20 CFR 416.1404. Initial
determinations may be appealed within 60 days (or longer with good
cause). See 20 CFR 404.909, 20 CFR 404.901, 20 CFR 416.1409, and 20
CFR 416.1401. To appeal an initial determination, an individual may
file an SSA-561-U2 Reconsideration Request available at: https://www.ssa.gov/forms/ssa-561-u2.pdf. To appeal a Reconsideration
Determination, an individual can file an HA-501-U5 Request for
Hearing by Administrative Law Judge available at https://www.ssa.gov/forms/ha-501.pdf. To appeal a hearing decision, an
individual can file an HA-520 Request for Review of Hearing
Decision/Order available at https://www.
